Michael Lee Brown v. Jennifer Karen Brown ( 2020 )

09/18/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 6, 2020 Session
MICHAEL LEE BROWN V. JENNIFER KAREN BROWN
Appeal from the Circuit Court for Montgomery County
No. CC16CV492 Kathryn Wall Olita, Judge
No. M2019-00693-COA-R3-CV
Divorcing parents of a minor child agreed to all terms of the divorce other than the
permanent parenting plan. Following an evidentiary hearing, the trial court designated the
father as the primary residential parent. The mother appealed, and we affirm the trial
court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Dana McLendon, Franklin, Tennessee, for the appellant, Jennifer Karen Brown.
Bethany Cecilya Brasher, Franklin, Tennessee, for the appellee, Michael Lee Brown.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
Michael Lee Brown (“Father”) and Jennifer Karen Brown (“Mother”) were married
in 2005, had a child (“Child”) together in 2011, and separated in 2014. Father filed a
complaint for divorce in March 2016, and Mother filed a counter-complaint for divorce the
following month. Both parties sought to be named Child’s primary residential parent. The
parties filed a marital dissolution agreement with the trial court in which they agreed to all
terms of the divorce with the exception of the permanent parenting plan.
A trial was held in March 2019 to determine which parent should be designated
Child’s primary residential parent. The court heard testimony from Father, Father’s
brother, Mother, a friend of Mother’s, and an investigator in the criminal division of the
Montgomery County Sheriff’s Department.
The evidence showed that the parties lived together in Clarksville from the time the
parties were married until February 2015. Father, who was in the military, was relocated
to Colorado in February 2015, while Mother remained in Clarksville with Child. Mother
was Child’s primary caregiver until she was arrested for an alcohol-related offense in June
2015. Father testified that Mother had a drinking problem. Before Child was born, Father
stated that Mother became intoxicated once or twice a month. Once Child was born, Father
testified, “the frequency and intensity [of Mother’s drinking] increased substantially.”
Mother’s first charge for driving under the influence (“DUI”) was in 2010, before
Child was born. Mother was arrested and again charged with DUI in 2015, when Child
was three years old. Father was stationed in Afghanistan when this occurred. Mother
testified that she had been drinking at home when she decided to drive with Child to Red
Lobster to pick up some food. Mother left Child alone in the car while she went inside.
Mother testified that she ordered a drink at the bar, but rather than consuming it, she told
someone at the restaurant that she needed to call for a ride because she felt “tipsy.” Mother
then telephoned a neighbor to ask for a ride home, but she was arrested before the neighbor
could get to the restaurant. Someone else had apparently called the police to report a child
unattended in Mother’s car, and Mother was charged with DUI and child abuse, neglect,
and endangerment. The evidence showed that Mother was required to serve twenty days
in jail and her license was suspended for a year following her arrest. Father’s commanding
officer in Afghanistan informed Father that Mother had been arrested and that Child was
“in trouble.” Father received immediate leave and flew back to Clarksville to take custody
of Child.
Father testified that he regularly communicated with Child using a video chat forum
when Child was with Mother, and that Mother appeared to be intoxicated during some of
these chats. Father explained:
[Mother] would pass out unconscious, and [Child] would try to wake her up,
you know, saying, “Mommy, Mommy.” And I’d end up having to put
[Child] to sleep via Skype. Tell her, “Baby, go get your pillow and your
blanket and curl up on the couch right there in front of me.” And I would sit
there on Skype until one of the two of us ran out of battery, and then hope
beyond that point that nothing happened.
Once Father took Child with him to Colorado in June 2015, Child remained in
Colorado until November 2015, when Mother flew out to Colorado and took Child with
her back to Clarksville. Child went back and forth between Mother and Father until
September 2017, when Mother was arrested a third time and Child was placed into the
State’s custody. Mother was driving with her youngest child (Child’s half-sibling) when
she was arrested for public intoxication in September 2017. As Mother explained it, she
had been drinking at home when she put her one-year-old in the car and drove with him to
the gas station to buy more beer. The gas station attendant refused to sell Mother the beer
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she tried to purchase and called the police “due to [Mother’s] level of intoxication.” When
the attendant informed Mother of this, Mother said that she “sat down at the table and
waited for [the police to arrive].” Mother was arrested and charged with public intoxication
and child endangerment and neglect. Child was not with Mother when Mother was
arrested, and Father was deployed at that time. Mother’s fiancé was unable to take custody
of Child following Mother’s arrest because he failed a drug screen. Child was nearly six
years old at this time. Child was initially placed by the State into foster care, and after a
few days Child was placed with Father’s brother.1 Father’s brother retained custody of
Child until the following month, when Father was able to return from his deployment to
take custody of Child.2
In October 2017, the Department of Children’s Services (“DCS”) filed a petition
against Mother in the juvenile court asserting that Child was dependent and neglected.
DCS stated in its petition that Mother was too intoxicated at the time of her arrest in
September 2017 to provide sufficient information to the DCS caseworker about a safe
placement for Child and Mother’s other minor children. According to DCS’s petition, one
of its employees interviewed Child about Mother’s alcohol consumption, and Child
“disclosed that [Mother] does drink regularly and has been intoxicated around [Child].”
The juvenile court held a hearing in March 2018, and Mother stipulated at that time to
Child’s dependency and neglect. The court found by clear and convincing evidence that
Child was dependent and neglected and denied Mother’s motion that Child be returned to
her care. Child was placed in Father’s custody, and Mother was granted unsupervised
visitation with Child under terms to be worked out between Mother and Father.
Jeffrey Keith Blanchard was a criminal investigator for Montgomery County, and
he testified about a 911 call Mother made in November 2018 in which she reported she
was being “assaulted by unknown males.” According to Mr. Blanchard, Mother gave three
different accounts of what led her to call 911. Mr. Blanchard and his colleagues were
unable to find any factual support to back up any of Mother’s reports. When Mother went
down to the Sheriff’s office a few days later at the investigators’ request, she confessed
that she had made up the assault story because she and her fiancé had been arguing and
“she thought he wouldn’t be mad at her if she was assaulted by unknown subjects.” Mother
was charged with making a false report, which was a Class D felony. Mother admitted at
trial that she had been drinking alcohol prior to making the 911 call.
The parties executed a Mediation Settlement Agreement on May 16, 2018, in which
they settled issues regarding their marital property, marital debts, real property, retirement
1
Father’s brother testified that he was in Missouri when Mother was arrested in 2017 and that Child was
placed into foster care until he was able to get to Clarksville to take custody of Child.
2
When Mother was arrested in September 2017, she was under a July 2, 2016 order by the trial court to
maintain an interlock device on her car that prevented her from driving if her alcohol level was above a
certain limit. This court order also “restrained her from consuming any alcohol at any time.”
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accounts, bank accounts, and alimony. In this agreement, Mother “agree[d] to maintain an
interlock device on her vehicle.” Despite the court order dating from 2016 and this 2018
agreement, Mother did not maintain the interlock device on her car. Mother testified that
she kept the interlock device on her car from the time she was arrested in 2015 until her
probation was over in 2016. Mother put the interlock device back on her car when she was
arrested in 2017, and she testified that it was still on the car at the time of trial.
Both parties introduced evidence that Child was subjected to inappropriate activity
of a sexual nature with sons of each of the parties’ paramours at Mother’s house in
Clarksville and Father’s residence in Colorado. Both parties took steps to limit Child’s
interaction with each of these boys after learning of the inappropriate activity. Father is no
longer seeing the mother of the boy at issue in Colorado, but Mother was engaged to the
father of the boy at issue in Clarksville at the time of trial.
At some point prior to trial, Father requested and was granted a transfer to a
nondeployable position with the military and relocated to Louisiana, where he resided at
the time of trial. In Louisiana, Father employed a live-in nanny to help him with child-
care. The nanny’s responsibilities included picking Child up from school and watching
Child until Father returned home from work around 5:00 in the afternoon. On the rare
occasion that Father had to do some work-related activity in the evening, the nanny stayed
with Child until Father returned home.
A friend of Mother’s testified that she had known Mother since 2012. The friend
had a child who was the same age as Child and had no concerns about leaving her child in
Mother’s care. Mother was a stay-at-home mother and the friend was employed by the
military. The friend described Mother as “very eyes on, and she disciplined accordingly.”
The friend stated that she “had no question that if I was not in the house that my daughter
would not be safe.” The friend stated that she never observed Mother drink excessively or
become intoxicated.
Father’s brother testified on behalf of Father and stated that he observed Mother
drinking on multiple occasions. Father’s brother went to visit Father and Mother at least a
couple of times a month after Mother and Father were married and Child was born, and the
brother testified that whenever he saw her Mother was either intoxicated “or working on
[becoming intoxicated].” When asked whether he believed Mother was “a truthful person,”
Father’s brother responded, “No.” As an example of her untruthfulness, Father’s brother
described a time when Mother told him her mother had committed suicide and she had to
go to the funeral. At some later point in time, Mother “slipped up and said something about
going to visit [her mother.]” Mother then admitted to Father’s brother that she had made
that story up and “[i]t didn’t really happen.” Father’s brother described Father as “a great
father” and “a great caregiver.” Father’s brother continued:
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He’s always teaching [Child] new stuff. He’s always taking [Child] on
nature hikes. They’re always doing something around the house. You know,
going fishing, doing things [Child] likes to do, like playing with [Child’s
toys]. . . . He’s a great dad. I couldn’t be more proud of him.
Trial Court’s Decision
The trial court issued a Memorandum Opinion and Order on March 26, 2019. The
court found that Mother was Child’s primary caregiver during Child’s first few years of
life. In addition to the evidence discussed above, the trial court noted Mother’s allegations
that Father had “failed to get the minor child medical treatment relating to a skin infection
and leg fracture, an eye infection and dental care.” The court found that both parents had
provided Child with medical and dental treatment, stating: “[B]ecause the child has been
exchanged back and forth between the parties so frequently for much of [Child’s] young
life, there is no intentional failure to provide the child with medical or dental care.”
The trial court made a finding of credibility, stating, “During the course of this 7-
hour trial, this Court had the opportunity to closely observe both parties and the Court
specifically finds the Father’s testimony to be credible.” The court then conducted a
comparative fitness analysis as required by Tenn. Code Ann. § 36-6-106 to determine
which parent should be designated Child’s primary residential parent. The court
considered each factor set forth in the statute:
a. The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
Both parties love the child and the child has good relationships with both
parents. However, the Court finds that the nature of the child’s
relationship with Father is more stable. Father has had primary custody
of the child since 2017 when Mother was arrested. To that end, Father
has performed the majority of the parenting responsibilities in that time.
Prior to 2017, the child spent time with both Mother and Father,
particularly after Mother’s 2015 arrest. The child’s day-to-day schedule
with [Child’s] Father in Louisiana is predictable and consistent, which
is a benefit to the child. While Mother is a stay-at-home mom, the minor
child referenced the fact that Mother has two younger children who
require a lot of Mother’s attention. For all of these reasons, this factor
favors Father.
b. Each parent’s or caregiver’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of the
parents and caregivers to facilitate and encourage a close and continuing
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parent-child relationship between the child and both of the child’s parents,
consistent with the best interest of the child. In determining the willingness
of each of the parents and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and both of the child’s
parents, the court shall consider the likelihood of each parent and caregiver
to honor and facilitate court ordered parenting arrangements and rights, and
the court shall further consider any history of either parent or any caregiver
denying parenting time to either parent in violation of a court order;
Father has demonstrated a past performance of parenting
responsibilities. When Mother was arrested in 2017, Father asked the
Army to place him in a non-deployable position so that he could be a
full-time parent for the minor child. He has also shown the potential for
future performance of parenting responsibilities by ensuring that the
minor child has a consistent, dependable schedule. While Father’s
decision to withhold information from Mother about the second . . .
incident [of inappropriate sexual-type activity with the son of Father’s
girlfriend in Colorado] was a bad choice, it does not evidence a complete
lack of willingness to facilitate and encourage the minor child to have a
relationship with Mother.[3] Further, the Court does not find that either
party is guilty of intentionally denying parenting time in violation of a
court order. Specifically, the Agreed Order of July 2, 2016 allowed for
flexibility in the exchange of the minor child. Father’s deployment as a
member of the United States Army also played a part in making these
parties’ custodial issues more complicated, but he is not faulted for that.
Father’s concern about Mother’s alcohol use and its effect on her
parenting does not equate to an unwillingness to facilitate and encourage
a close and continuing parent-child relationship between the child and
Mother.
Mother has demonstrated a lack of ability to perform parenting
responsibilities in the past. Specifically, she has had two serious alcohol-
related incidents involving her children. On two occasions, DCS has had
to involve itself in the care and protection of this minor child. Both times,
there was a finding of dependency and neglect. While it does appear
Mother is trying to make strides in abstaining from alcohol, she has had
an incident involving police as recently as four months ago that also
included her being under the influence of alcohol.
3
Father admitted at trial that he did not inform Mother of an incident that was sexual in nature between
Child and the son of Father’s former girlfriend that occurred in 2017. However, Father did not ignore the
incident; he immediately addressed the situation with Child and arranged for Child to see a therapist.
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For all of these reasons, this factor favors Father.
c. Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;
This factor is not applicable in this matter.
d. The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
Both parents are able to provide the child with food and clothing. Both
parents have provided the child with medical care over the years and
are able to continue to do so in the future. Currently the child is enrolled
in school and doing well, bringing home A’s and B’s. With regard to
other necessary care, the undisputed evidence of Mother’s alcohol-
related incidents, particular those involving her children, suggest that
there have been occasions when Mother was not fully capable of
providing other necessary care to the minor child. This factor favors
Father.
e. The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
Father has had primary custody of the child since 2017 when Mother
was arrested. To that end, Father has been the primary caregiver in that
time. While Father utilizes the services of [a nanny] for approximately
two hours every afternoon, Father’s testimony that he is otherwise
entirely responsible for parenting the child was not contradicted. Prior
to 2017, the child spent time with both Mother and Father, particularly
after Mother’s 2015 arrest. Mother was responsible primarily for the
child’s care from birth until age 3, but Mother’s legal troubles since that
time resulted in dependency and neglect findings on two occasions. As
such, this factor favors Father.
f. The love, affection, and emotional ties existing between each parent and
the child;
Both parents love the child and the child loves, has affection for and
emotional ties with both parents. This factor is equal as to both parties.
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g. The emotional needs and developmental level of the child;
The Court is not aware of any developmental needs of the child. It
remains to be seen what emotional needs she might have in the future as
a result of the sexual events that have occurred in her young life. The
stability present in Father’s home is a benefit to the child and as such,
this consideration favors Father.
h. The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. The court may order an examination
of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if
necessary for the conduct of the proceedings, order the disclosure of
confidential mental health information of a party under § 33-3-105(3). The
court order required by § 33-3-105(3) must contain a qualified protective
order that limits the dissemination of confidential protected mental health
information to the purpose of the litigation pending before the court and
provides for the return or destruction of the confidential protected mental
health information at the conclusion of the proceedings;
Both parents appear physically fit to parent the children. Father appears
morally, mentally and emotionally fit to parent. Mother’s alcohol-
related incidents and other legal troubles do create a question of her
fitness as it relates to the ability to parent. Two separate DCS
investigations have resulted in dependency and neglect findings. It is
true that Mother cooperated and completed all requirements placed on
her in her second DCS case. However, in the span of 8 years, Mother has
had three alcohol-related arrests and a felony false reporting charge that
occurred when Mother had been drinking. This suggests that there are
ongoing issues affecting her. This factor favors Father.
i. The child’s interaction and interrelationships with siblings, other relatives
and step-relatives, and mentors, as well as the child’s involvement with the
child’s physical surroundings, school, or other significant activities;
[The nanny] has been a presence in the child’s life since [Child] lived in
Colorado. [The nanny] did not testify, but the evidence was undisputed
that she was the child’s provider at the CDC (on-post daycare [in
Colorado]) prior to moving to Louisiana. Father no longer lives with [the
mother of the boy who engaged in inappropriate activities of a sexual
nature with Child].
The Court was not provided with any testimony regarding the minor
child’s relationship with [Mother’s fiancé]. [Mother’s fiancé] did not
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testify at the hearing. The Court was provided, however, with the report
of Dr. Jeremy Lynch which indicated the minor child had engaged in a
sexual encounter with [the fiancé]’s son . . . . According to that report,
the minor child says [Child] “doesn’t have any problems with him now
and isn’t afraid of him.” That is not a judgment that a seven-year-old is
qualified to make. Mother testified, without dispute, that the minor child
has a loving relationship with [Child’s] younger brothers, who are 2 and
7 months. It is appropriate for [Child] to maintain a relationship with
these younger siblings. Nevertheless, this factor favors Father.
j. The importance of continuity in the child’s life and the length of time the
child has lived in a stable, satisfactory environment;
See a. and b. above. The child has primarily resided with Father since
2017. Father’s current duty station in Louisiana provides a stable,
satisfactory environment and this factor favors Father.
k. Evidence of physical or emotional abuse to the child, to the other parent
or to any other person. The court shall, where appropriate, refer any issues of
abuse to juvenile court for further proceedings;
The Court heard no credible evidence or allegation of physical or
emotional abuse by the parents. Unfortunately, it does appear the child
has encountered sexual situations not appropriate for her age in both
Mother’s home and Father’s home. The situation has been rectified in
Father’s home, but not in Mother’s home. To the contrary, Mother is
engaged to [the minor perpetrator’s father], which would result in the
minor child and [the boy at issue] becoming stepsiblings residing
together into the future. Mother testified that the children are under
strict supervision and are on separate ends of the house, which would be
appropriate. However, this factor favors Father.
1. The character and behavior of any other person who resides in or frequents
the home of a parent and such person’s interactions with the child;
The Court heard limited testimony about [Father’s live-in nanny], but
none of it negative.
The Court heard no real testimony about [Mother’s fiancé] aside from
the fact that the minor child could not be placed with him at the time of
Mother’s 2017 arrest because he tested positive for THC. See also i.
above regarding the [fiancé’s son].
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Based on the evidence provided at trial, this factor favors Father.
m. The reasonable preference of the child if twelve (12) years of age or older.
The court may hear the preference of a younger child upon request. The
preference of older children should normally be given greater weight than
those of younger children;
This factor is not applicable in this matter.
n. Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
Father works while the child is in school and the nanny is responsible
for [Child] for two hours in the afternoon. Mother is a stay-at-home
mom and would be available to care for the child when [Child] was not
in school. This factor is equal as to these parents.
(Bold text in original).
After conducting the comparative fitness test, the trial court concluded that Father
was comparatively more fit to be Child’s primary residential parent. The court adopted the
permanent parenting plan Father proposed, with the modification that Mother was to
maintain an interlock device on her car for one year rather than permanently, as Father
proposed. The parenting plan provided for Child to reside with Father full-time during the
school year and to spend time with Mother during school breaks and other holidays. Under
this schedule, Child would spend 275 days per year with Father and 90 days per year with
Mother.
Mother appeals from the court’s order designating Father as Child’s primary
residential parent and adopting Father’s parenting plan, as modified.
II. ANALYSIS
A. Standard of Review
In a non-jury case such as this, an appellate court reviews the trial court’s findings
of fact de novo upon the record, affording the findings of fact a presumption of correctness
unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); Kelly v. Kelly, 445
S.W.3d 685, 691-92 (Tenn. 2014). We review questions of law de novo, with no
presumption of correctness given to the trial court’s conclusions of law. Kelly, 445 S.W.3d
at 692; Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). The Armbrister
Court described the review appellate courts apply to cases involving parenting plans:
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Because decisions regarding parenting arrangements are factually
driven and require careful consideration of numerous factors, Holloway v.
Bradley, 190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v.
Brumit, 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have
the opportunity to observe the witnesses and make credibility determinations,
are better positioned to evaluate the facts than appellate judges. Massey-Holt
v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus, determining the
details of parenting plans is “peculiarly within the broad discretion of the trial
judge.’” Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988) (quoting
Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)). “It is not
the function of appellate courts to tweak a [residential parenting schedule] in
the hopes of achieving a more reasonable result than the trial court.” Eldridge
v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). A trial court’s decision
regarding the details of a residential parenting schedule should not be
reversed absent an abuse of discretion. Id. “An abuse of discretion occurs
when the trial court . . . appl[ies] an incorrect legal standard, reaches an
illogical result, resolves the case on a clearly erroneous assessment of the
evidence, or relies on reasoning that causes an injustice.” Gonsewski v.
Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).
Armbrister, 414 S.W.3d at 693; see also Kelly, 445 S.W.3d at 692. “A trial court’s broad
discretion on custody matters extends to the question of which parent should be named
primary residential parent.” Grissom v. Grissom, 586 S.W.3d 387, 391 (Tenn. Ct. App.
2019); see also Kathryne B.F. v. Michael David B., No. W2014-01863-COA-R3-CV, 2015
WL 4366311, at *8 (Tenn. Ct. App. July 16, 2015). As the Armbrister Court stated, “A
trial court abuses its discretion in establishing a residential parenting schedule ‘only when
the trial court’s ruling falls outside the spectrum of rulings that might reasonably result
from an application of the correct legal standards to the evidence found in the
record.’” Armbrister, 414 S.W.3d at 693 (quoting Eldridge, 42 S.W.3d at 88). Mother
must demonstrate that the trial court abused its discretion in naming Father the primary
residential parent and adopting his proposed parenting plan to prevail on appeal.
B. Primary Residential Parent Designation
When a trial court is faced with divorcing parents who have one or more minor
children, the court must determine the child(ren)’s primary residential parent by conducting
a “‘comparative fitness analysis.’” Grissom, 586 S.W.3d at 392 (quoting Chaffin v. Ellis,
211 S.W.3d 264, 286 (Tenn. Ct. App. 2006)). In conducting this analysis, the court is
required to consider the factors set forth in Tenn. Code Ann. § 36-6-106(a). Id.; see also
Chaffin, 211 S.W.3d at 286.
As discussed above, the trial court here engaged in the comparative fitness analysis
by addressing each of the factors set forth in Tenn. Code Ann. § 36-6-106(a). Mother
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challenges the court’s determination that factors (a), (b), (d), (e), (i), and (k) favor Father,
and she argues that factor (n) favors her rather than both parties equally, as the court
concluded. We will address each factor Mother challenges.
Factor (a) concerns Child’s relationship with each parent and which parent has
performed the majority of the parenting responsibilities. See Tenn. Code Ann. § 36-6-
106(a)(1). Mother correctly points out that she was the primary parent for the first few
years of Child’s life until she was arrested for DUI in 2015, when Child was three years
old. When Mother was arrested in 2015 and again in 2017, Father was deployed and flew
home on an emergency basis to take custody of Child. Because Mother was too intoxicated
when she was arrested in 2017 to inform DCS of a proper placement for Child, Child was
taken into state custody and was required to live with a foster family for a number of days
and then with Father’s brother before Father was able to return from Afghanistan.
Father was living in Colorado while Mother was in Tennessee, and Father managed
to make the necessary arrangements to be the full-time parent Child needed following both
of Mother’s DUI incidents in 2015 and 2017. After Mother’s arrest in 2017, Father was
able to transfer to a nondeployable position within the military and relocated to Louisiana.
The evidence shows Father has provided Child with the stability at issue in factor (a). We
agree with the trial court that factor (a) favored Father.
Factor (b) concerns each parent’s ability to perform parenting responsibilities and
the willingness to foster a relationship between the child and the other parent. See Tenn.
Code Ann. § 36-6-106(a)(2). Mother contends that a court order provided that she was
supposed to have time with Child starting on May 21, 2016, for “approximately two
months.” Rather than comply with this order, Mother complains that Father chose to have
his mother care for Child during a month-long training exercise that occurred over this time
period and did not send Child to live with Mother until June 24. However, nothing
prevented Mother from traveling to Colorado to collect Child in late May 2016, and Mother
introduced no evidence that she offered to travel to Colorado to collect Child from Father
prior to the start of his month-long exercise. The evidence reveals that Father believed the
dates of exchanging Child were flexible and that Father did not shorten the overall time
Mother had with Child once Child was delivered to Mother. We note that the court order
in effect during 2016 provided that the parties were to share the expenses of Child’s
transportation, yet Mother testified that she did not contribute to the cost of transporting
Child to her from Father’s residence in Colorado during the summer of 2016.
Mother also complains that Father did not comply with some of Mother’s attempts
to speak with Child when Child was with Father. Although the evidence supports Mother’s
argument to some extent, the overall evidence does not preponderate against the trial
court’s finding that Mother’s DUI-related arrests in 2015 and 2017 demonstrated a lack of
ability to perform parenting responsibilities. We agree with the trial court’s determination
that factor (b) favored Father.
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Factor (d) concerns each parent’s ability to provide food, clothing, medical care,
and education. See Tenn. Code Ann. § 36-6-106(a)(4). Mother contends Father has
neglected Child’s medical needs and has returned Child to Mother with inadequate
attention paid to Child’s teeth and overall health. The evidence at trial showed that both
parents have taken Child to the doctor and dentist when necessary and that neither parent
intentionally ignored Child’s medical or dental health. The trial court determined that this
factor favored Father based on Mother’s alcohol-related incidents, stating that Mother may
not have been fully capable of providing necessary care to Child as a result of these
incidents. Mother fails to show that the court erred in so finding. As a result, we affirm
the trial court’s finding that this factor favored Father.
Factor (e) considers which parent has been the primary caregiver. See Tenn. Code
Ann. § 36-6-106(a)(5). Mother argues that because she has spent more time as Child’s
primary caregiver than Father since the time of Child’s birth, factor (e) should weigh in her
favor. However, “a parent who has been a child’s primary caregiver may not necessarily
be comparatively more fit than the other parent to have permanent custody of the child.”
Gaskill v. Gaskill, 936 S.W.2d 626, 630-31 (Tenn. Ct. App. 1996). Mother takes issue
with the court’s focus on the time period since 2017, when Mother was last arrested for an
alcohol-related event, and believes Father should be faulted for employing a nanny to care
for Child for a couple of hours after school.
We believe the evidence shows that Father has been the more reliable caregiver
since 2015, when Mother was arrested for her second DUI, the first since Child was born.
The fact that Father works full-time and employs a nanny to watch Child in the afternoons
until Father returns home from work does not detract from Father’s status as Child’s
primary caregiver since 2017 and the more reliable and responsible caregiver since 2015,
when Mother was arrested for DUI. We do not believe the evidence preponderates against
the trial court’s finding that factor (e) favored Father.
Factor (i) concerns Child’s relationship with siblings and step-siblings as well as
Child’s involvement with school and extracurricular activities. See Tenn. Code Ann. § 36-
6-106(a)(9). Mother testified about Child’s close relationship with Mother’s two younger
children, which the trial court credited as important. However, the court was bothered by
the fact that Mother was engaged at the time of trial to marry the father of the boy who
engaged in inappropriate sexual activity with Child when Child was younger and that Child
would be sharing a residence with this boy if Mother was named Child’s primary
residential parent. The son of Father’s prior girlfriend who previously posed a danger to
Child was no longer a threat to Child at the time of trial because the boy lived in Colorado
and Father, who had moved to Louisiana, was no longer in a relationship with the boy’s
mother. Child will be able to see Child’s step-siblings and maintain a relationship with
them when Child visits Mother during school holidays and in the summer. We affirm the
trial court’s finding that factor (i) favored Father.
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Factor (k) concerns any physical or emotional abuse to Child or any other member
of either party’s household. See Tenn. Code Ann. § 36-6-106(a)(11). The court addressed
the sexual abuse Child suffered in both Mother’s and Father’s homes in the past and found
it significant that the boy at issue in Colorado no longer posed a threat, whereas the boy at
issue in Clarksville remained in the house with Mother. On balance, the trial court found
that this issue favored Father, a result with which we agree.
The final factor Mother challenges is factor (n), which is concerned with the parents’
employment schedules. See Tenn. Code Ann. § 36-6-106(a)(14). Mother is a stay-at-home
parent, and she has two children younger than Child. Father has no other children requiring
his time or attention. Father takes Child to school each day and employs a nanny for just
two hours or so to watch Child after school until he is able to return home from work. This
is not a case where a parent travels for work and is away from home for days or weeks at
a time. Father’s employment schedule does not impair his ability to be Child’s primary
residential parent. We agree with the court that this factor favors both parents equally.
“‘[D]etermining a child’s best interest is a fact-sensitive inquiry,’” Grissom, 586
S.W.3d at 393 (quoting Solima v. Solima, No. M2014-01452-COA-R3-CV, 2015 WL
4594134, at *4 (Tenn. Ct. App. July 30, 2015)), and this determination
“does not call for a rote examination of each of [the relevant] factors and then
a determination of whether the sum of the factors tips in favor of or against
the parent. The relevancy and weight to be given each factor depends on the
unique facts of each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one factor may
very well dictate the outcome of the analysis.”
Id. (quoting Solima, 2015 WL 4594134, at *4). In determining that Father was better suited
to function as Child’s primary residential parent, the trial court focused heavily on
Mother’s alcohol-related arrests and other issues emanating from her drinking as well as
the presence in Mother’s household of one of the boys who had previously engaged in
inappropriate sexual activity with Child. Given the broad discretion the trial court has in
making this determination, we conclude that Mother has failed to demonstrate that the court
abused its discretion or reached a decision that “‘falls outside the spectrum of rulings that
might reasonably result from an application of the correct legal standards to the evidence
found in the record.’” Armbrister, 414 S.W.3d at 693 (quoting Eldridge, 42 S.W.3d at 88).
We affirm the trial court’s decision designating Father as Child’s primary residential parent
and adopting Father’s proposed permanent parenting plan, as modified by the trial court.
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III. CONCLUSION
The judgment of the trial court is affirmed. Costs of appeal are assessed against the
appellant, Jennifer Karen Brown, for which execution may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
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