08/30/2018 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE April 17, 2018 Session

FREDERICK JEROME BROWN, JR. v. ROXANA ISABEL BROWN

Appeal from the Circuit Court for Hamilton County No. 15D1336 L. Marie Williams, Judge ___________________________________

No. E2017-01348-COA-R3-CV ___________________________________

In this divorce case, the trial court designated father, Frederick Jerome Brown, Jr., as the primary residential parent of the parties’ only child. Mother, Roxana Isabel Brown, appeals. She argues that the trial court abused its discretion when it (1) designated father as the primary residential parent and (2) when it established a parenting plan that was not in the best interest of the child. We reverse the trial court’s designation of father as the primary residential parent and remand the case for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded for Further Proceedings

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H. DINKINS and THOMAS R. FRIERSON, II, JJ., joined.

Roxana Isabel Brown, Smyrna, Georgia, appellant, pro se.

Lucy C. Wright, Chattanooga, Tennessee, for the appellee, Frederick Jerome Brown, Jr..

OPINION

I.

Before the parties were married, but while they were engaged, father lived in Ooltewah, Tennessee, a suburb of Chattanooga. He worked – and continues to work – as an engineer for Tennessee Valley Authority at its Sequoyah Nuclear Plant in Chattanooga. In order to marry father, mother left her job at a Nashville law firm and moved to Ooltewah. Because mother was unable to secure employment as an attorney in Chattanooga, she eventually accepted a non-legal position with TVA.

The parties married on November 5, 2011, and shortly thereafter their relationship

rapidly deteriorated. The marriage was strained by personality conflicts, communication issues, an unfortunate miscarriage, and conflicting career goals. With respect to the latter, mother greatly desired a job that would allow her to utilize her legal training. Because of this desire, she wanted to expand her job search to the greater Atlanta area. Father, however, was unwilling to relocate because of geographical limitations imposed by his own job, e.g., for six to eight weeks per year, father must be able to report to work within an hour’s notice.

In July 2014, mother accepted an attorney position with the U.S. Department of Defense in Smyrna, Georgia, a suburb of Atlanta. Initially, mother planned to live in Ooltewah and commute to work (a 220-mile round trip). A week before she began her new job, however, mother discovered that she was pregnant with the child who is now at the center of this custody dispute. Because mother was concerned about the feasibility of the commute during her pregnancy, she signed a six-month lease for an apartment in Smyrna so she could live near her work pending the birth of the child. During those six months, mother lived in Smyrna and travelled back to Ooltewah on weekends.

On April 9, 2015, the child was born. Mother took four months of maternity leave and returned to Ooltewah. During this time, father had significant overtime. TVA scheduled a mandatory “refueling outage” that began on April 11, 2015 and lasted over a month.^[1] During that outage, father worked night shifts, between ten and twelve hours per day, six days per week. At the conclusion of the refueling outage, in late May, father took about two weeks of paternity leave. However, on June 8, 2015, he volunteered for an optional assignment at Watts Bar Nuclear Plant in Spring City, Tennessee. This assignment frequently required father to work twelve hours a day (plus a two-hour commute), seven days per week from June 8, 2015 to August 11, 2015. During that period, father only had a few days off from work.

Over the course of this hectic summer, the parties were unable to reach an agreement about relocating closer to Smyrna. At this point, the parties’ testimony of the facts diverges.^[2] Mother says that she informed Father that she had signed a lease for an apartment in Smyrna and secured a spot for the minor child at the Oxford Babies daycare. However, she also told father she would readily cancel her plans if the parties reached a resolution before she had to return to work. In late June, with no resolution in place and her maternity leave ending in less than a month, Mother informed Father that, if he still had no plan for their living situation, she would temporarily move to Smyrna with the minor child until the parties could move together to Dalton.

According to father, Mother knew that Father did not want to relocate to Smyrna[,] Georgia because Father made this clear to her any time the topic was raised. However, Mother’s solution to this was to move regardless, with the child, making all decisions unilaterally and not promptly informing the Father.

Due to the impasse, Father filed for divorce on July 2, 2015. Shortly thereafter, mother filed a motion requesting permission to relocate with the child to Smyrna. On July 27, 2015, the parties appeared before the trial court. The court ordered the parties to attend mediation. It established a short-term parenting plan (lasting only two weeks), which provided that the child would reside with mother, in Smyrna, from Sundays to Thursdays and with father, in Ooltewah, from Thursdays to Sundays.

On August 11, 2015, the court held a hearing to establish a temporary parenting plan. The next day, the court entered a temporary order providing that the child would reside with each parent on alternating weeks. The order also allowed each parent up to six hours of visitation during the weeks that the child was with the other parent. The parties subsequently submitted proposed permanent parenting plans. Father’s proposed plan designated father as the primary residential parent and provided for the continuation of the alternating-week residential schedule. Mother’s proposed plan designated mother as the primary residential parent and provided that the child would reside with mother 244 days per year and with father 121 days per year.

Trial was held over the course of three days – May 31, 2016, June 1, 2016, and December 14, 2016. On April 19, 2017, the trial court issued a memorandum opinion finding both parties at fault and declaring the parties to be divorced. This memorandum opinion was adopted and incorporated by reference in the court’s May 31, 2017 final decree of divorce. In addition to settling other issues not relevant to this appeal, the court designated father as the primary residential parent. Instead of adopting father’s proposed permanent parenting plan, however, the court adopted mother’s proposed plan and “flipped” the residential schedule such that the child would reside with father 244 days per year and with mother 121 days per year. Specifically, the court ordered that mother would only have responsibility for the child “every other week from Thursday at 7:00 p.m. until Sunday at 5:00 p.m. and in the alternating weeks from Thursday at 7:00 p.m. until Friday at 7:00 p.m.” The plan also provided that “[w]hen [the child] begins pre- kindergarten, Mother shall parent every other week from Friday at 7:00 p.m. to Sunday at 5:00 p.m.^[3]

II.

Mother raises two issues on appeal:

Whether the trial court abused its discretion in designating father as the primary residential parent; and Whether the trial court abused its discretion by establishing a parenting plan that is not in the best interest of the child.

III.

Trial courts have broad discretion in matters relating to child custody. See Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). Consequently, we will affirm the trial court’s decision in this case absent evidence that the court abused its discretion. Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). “[A] trial court abuses its discretion when it: 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.” Newberry v. Newberry, No. E2017-00340-COA-R3- CV, 2018 WL 3058285, at * 3 (Tenn. Ct. App., filed Jun. 20, 2018) (quoting Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013)).

We recognize that a trial court’s designation of a primary residential parent “often hinge[s] on subtle factors, including the parents’ demeanor and credibility during the divorce proceedings themselves. Accordingly, appellate courts are reluctant to second- guess a trial court’s decisions.” Gaskill, 936 S.W.2d at 631. Nevertheless, trial courts “still must base their decisions on the proof and upon the appropriate application of the applicable principles of law.” Id. Similarly,

[although] we are reluctant to second-guess a trial court’s decisions regarding the adoption of a parenting plan, we will not hesitate to do so if we conclude that the trial court’s decision is not supported by the evidence, that the trial court’s decision rests on an error of law, or that the child’s interests will be best served by another parenting arrangement.

Massey-Holt, 255 S.W.3d at 611.

In conducting our review, we presume that the trial court’s findings of fact are correct unless evidence in the record preponderates otherwise. Tenn. R. App. P. 13(d). On the other hand, we consider questions of law de novo, with no presumption of correctness. Burden v. Burden, 250 S.W.3d 899, 904 (Tenn. Ct. App. 2007). “Nor does the presumption of correctness attach to ‘the trial court’s conclusions that are based on undisputed facts.’ ” Id. at 905 (quoting Hall v. Houston, No. M2002–01371–COA–R3– CV, 2003 WL 21688578, at *3 (Tenn. Ct. App., filed July 21, 2003)).

IV. A.

In a final decree of divorce involving a minor child, a trial court must incorporate a permanent parenting plan in conformity with the provisions of Tenn. Code Ann. § 36-6- 404 (2017). Among other things, the permanent parenting plan must include a “residential schedule” that designates a “primary residential parent,” with whom the child will reside “more than fifty percent (50%) of the time.” Tenn. Code Ann. §§ 36-6- 402(4)-(5), -404(b). We first consider whether the trial court abused its discretion by designating father as the primary residential parent.

In a suit for divorce, all custody determinations “shall be made on the basis of the best interest of the child.” Tenn. Code Ann. § 36-6-106(a) (2017). To that end, the statute instructs the trial court to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in this subsection (a), the location of the residences of the parents, the child’s need for stability and all other relevant factors.” Id. Subsection (a) includes the following best interest factors:

(1) 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;

(2) 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 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;

(3) 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;

(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(5) 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;

(6) The love, affection, and emotional ties existing between each parent and the child;

(7) The emotional needs and developmental level of the child;

(8) 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;

(9) 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;

(10) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;

(11) 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;

(12) 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;

(13) 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;

(14) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and (15) Any other factors deemed relevant by the court.

Tenn. Code Ann. § 36-6-106(a).

In analyzing the above factors, our courts do not hold each parent to the standard of perfection; instead, courts “must conduct a ‘comparative fitness’ analysis, requiring the court to determine which of the available parents would be comparatively more fit than the other.” Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006) (citing Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.1983)).

In this case, the trial court emphasized that “[t]his child needs additional stability.” The court also expressly considered the statutory best interest factors and made findings of fact with respect to each. The court concluded that only two factors weighed in favor of one parent over the other. Specifically, the court held that factor (9) favored mother and that factor (2) favored father. Ultimately, the trial court gave greater weight to factor (2) and therefore designated father as the primary residential parent.

Mother argues that the evidence in the record preponderates against the trial court’s finding that factor (2) favored father and that factors (1), (5), and (14) favored neither parent. In addition, mother argues that the trial court erred by failing to give any weight to factor (9), which the court found to favor mother. We address each of these best interest factors in turn.

1.

Best interest factor (2) directs the court to consider “each parent’s . . . past and future performance of parenting responsibilities, including the willingness and ability of each of the parents . . . to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents . . . .” Tenn. Code Ann. § 36-6-106(a)(2).4 In 2012, the General Assembly amended this portion of the statute by adding the following language:

In determining the willingness of each of the parents . . . 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 . . . to honor and facilitate court-ordered parenting arrangements and rights, and the court shall further consider any history of either parent . . . denying parenting time to either parent in violation of a court order. Tenn. Code Ann. § 36-6-106(a)(2).

Here, the trial court determined that factor (2) weighed in favor of father and was ultimately dispositive. With respect to the first part of factor (2), the court found that “Mrs. Brown is an excellent Mother and Mr. Brown is an excellent Father. Both have the potential for future performance of parenting responsibility.” However, the court expressed doubts about mother’s willingness to facilitate and encourage a good relationship between the child and father:

In the earlier hearings, the Mother was extremely critical of and dismissive of the Father. She essentially had nothing good to say about him and his ability to parent. By the time of the final hearing, she had softened her attitude and articulated an understanding of the need of the child to have a good relationship with both parents. The Court would like to believe this is because she had come to understand that it is essential to the child’s well being . . . . However, the Court fully understands her change may have been a result of enlightenment on the statutory factors for consideration by the Court in reaching a parenting plan.

Later, the court stated the following:

There has been an increased willingness and ability of the parents to facilitate and encourage a close and continuing parent/child relationship between the child and both of the child’s parents. Mr. Brown has been consistent throughout in his articulation of the need for the child to have a close relationship with the Mother. At trial, the Mother stated a consistent view. Perhaps most persuasive of the progress these parties have made is the communication permitted between each parent and the child while with the other parent by Tango. There have been continuing and daily video interactions between the child and the parent with whom he is not physically present. The attitudes testified to by the parents are in stark contrast to the relationship revealed in emails, texts, and social media generally.

Here, the trial court was referring to thirteen text messages and four emails that mother sent father between August 2015 and December 2015. According to the court, these emails show that “Mother has quite the temper and ability to be very derogatory of the Father.” Our review of this evidence confirms that mother repeatedly used language intended to insult father’s intelligence and to impugn his parenting abilities. For example, mother called father an “idiot” four times and twice used an expletive to describe what type of father she believed him to be.

The trial court concluded that “Mother is less willing to foster the requisite relationship between the child and the Father but the Court hopes this can be cured.” Based on the quoted material above, we presume that the trial court based this conclusion on its observation of mother’s courtroom demeanor, the handful of text messages and emails exchanged between the parties in the early months of the divorce, and the court’s speculation about the reason for mother’s improved attitude.

Mother first argues that the trial court’s heavy reliance on her demeanor at the August 2015 hearing was “misplaced.” Mother says that her critical words at this hearing “stemmed from the unrefuted fact that [father] had been minimally involved with the minor child [in the months immediately after the child’s birth] due to his hectic work schedule.”

Second, mother admits that some of her text messages and emails to father were inappropriate; however, mother argues that these private communications have little to no probative value to the factor (2) analysis. Mother points out that the name-calling did not occur in the presence of the child. In addition, none of the messages threatened to interfere with father’s co-parenting or visitation time. Finally, the messages were sent in the early stages of the divorce and father conceded at trial that communication since then “has been pretty good.”

Third, mother argues that evidence in the record preponderates in favor of an alternate finding that she was willing to facilitate and encourage the child’s relationship with both parents. Specifically, mother claims that father failed to refute any of the following evidence:

On more than one occasion, Mother offered Father the opportunity to visit with the child privately in her home when Father expressed that he did not have anywhere in the Atlanta area to exercise his six-hour visitation with the child;

Mother agreed for Father to visit with the child on several Saturdays – despite the Temporary Order prohibiting visits on that day – due to the fact Father had not been able to exercise his visits on his Fridays off.

Mother encouraged Father to take advantage of the six-hour visits with the child after Father failed to do so between September and November 2015.

Mother, who always exercised her six-hour visits with the child on Thursdays, reschedule[d] her visit to a different day [one] week so that Father could spend his birthday with the child;

During Father’s November 2015 outage, Mother voluntarily gave Father four more nights during each of his parenting weeks than the Temporary Order required;

Mother always attempted to schedule the child’s routine medical appointments in order to allow maximum participation from Father, notified Father of all such appointments, and informed Father of any issues immediately after each appointment Father did not attend; and

Like Father, Mother routinely sent Father pictures and videos of the minor child and allowed him to Tango with the child daily.

- 10 -

We do not question the trial court’s finding that mother was “extremely critical of and dismissive of the Father” at the August 2015 hearing, regardless of whether her hostility was justified. The trial court is in the best position to assess the demeanor of witnesses and such a determination is relevant in child custody disputes. Gaskill, 936 S.W.2d at 631. For the same reason, we do not disturb the court’s finding that “[b]y the time of the final hearing, [mother] had softened her attitude and articulated an understanding of the need of the child to have a good relationship with both parents.” In our view, this latter finding greatly dilutes the significance of the former finding.

The text messages and emails speak for themselves and we are not required to presume the correctness of “conclusions that are based on undisputed facts.” See Burden, 250 S.W.3d at 905 (quoting Hall v. Houston, No. M2002–01371–COA–R3– CV, 2003 WL 21688578, at *3 (Tenn. Ct. App., filed July 21, 2003)). However, we agree with mother that these communications have little to no probative value in the factor (2) analysis. It is common for divorcing parents to harbor animosity toward one another, especially in the early stages of the divorce. It is also common for divorcing parents to be uncivil in their communications with one another. By containing their incivility to private, written messages inaccessible to their infant child, mother and father sheltered the child from the brunt of the verbal attacks.

Father points to Nunnally v. Nunnally as an example of this Court considering private communications between parents in a best interest analysis. No. E2016-01414- COA-R3-CV, 2017 WL 1536084 (Tenn. Ct. App., filed Mar. ^[1], 2017). However, mother correctly observes that the text messages in Nunnally were primarily offered as evidence of the mother’s mental illness, which the mother denied she had. See id. at *6. Also, one of the mother’s text messages in that case actually threatened interference with the father’s co-parenting rights. See id. at *2. In our case, father did not introduce the text messages and emails in order to prove a fact independent of the name-calling itself; neither does father contend that mother threatened interference with his parenting rights. Accordingly, Nunnally is not controlling in this matter.

Putting aside the text messages and emails, we are left only with the trial court’s speculation about the reason for mother’s improved behavior and the possibility of future bad conduct. Although a trial court has extensive discretion in determining which parent is more likely to facilitate and encourage a good relationship between the child and both parents, the court’s decision must be guided by the language of the statute. As previously discussed, the child custody statute specifically instructs courts to “consider the likelihood of each parent . . . to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent . . . denying parenting time to either parent in violation of a court order.” Tenn. Code Ann. § 36-6- 106(a)(2) (emphasis added).

In Burden v. Burden, before the statute was even amended to include the - 11 -

aforementioned language, we emphasized the importance of considering a parent’s compliance with court-ordered parenting arrangements. 250 S.W.3d 899, 910 (Tenn. Ct. App. 2007). Specifically, we rejected a trial court’s mere speculation that the father’s “parenting [would be] over” if the court were to adopt the mother’s proposed parenting plan, because there was

no evidentiary basis for the court’s implicit prediction that [mother] would interfere so drastically as to blatantly defy her own proposed parenting plan . . . . There is certainly no need to strike preemptively against the possibility of such defiance, especially given that there is nothing in the record suggesting that [mother] has a history of violating court orders or otherwise interfering with Husband’s rights to the extreme degree contemplated by the language of the opinion.

Id. (emphasis added).

As in Burden, “there is nothing in the record suggesting that [mother] has a history of violating court orders or otherwise interfering with [father’s] rights . . . .” To the contrary, father conceded and the trial court found that mother allowed the child to video chat with father on a daily basis while the child was in her care. In addition, the only apparent violation of a court order occurred when mother allowed father to visit the child on some Saturdays, which the temporary parenting plan prohibited. Mother also testified, without contradiction, to numerous other instances in which she accommodated and facilitated father’s co-parenting time. See supra. These undisputed facts suggest that the trial court’s speculative finding was contrary to the great weight of the evidence.

To summarize, we hold that the court erred by overemphasizing the petty insults that mother directed at father in private communications during the early stages of the divorce. The content of those messages is not probative of mother’s willingness to facilitate and encourage a good relationship between the child and father. Although we respect the trial court’s finding with respect to mother’s demeanor in the August 2015 hearing, that finding is diluted by the court’s admission that mother significantly improved her attitude by the time of trial. The court erred by presuming that mother would seek to undermine the child’s relationship with father absent any evidence that mother had previously interfered with their relationship or threatened to do so in the future. All evidence in the record preponderates in favor of the opposite conclusion – that mother took affirmative steps to facilitate and encourage the child’s relationship with father. To conclude otherwise would be to “resolve[] the case on a clearly erroneous assessment of the evidence,” which constitutes an abuse of discretion. Newberry, 2018 WL 3058285, at * 3.

At the same time, we find no evidence in the record that suggests father is unlikely - 12 -

to facilitate and encourage a good relationship between the child and mother. To the contrary, we credit the trial court’s finding that father “has been consistent throughout in his articulation of the need for the child to have a close relationship with the Mother.” Although father sometimes sent text messages to mother that were critical of her parenting, we do not find these messages relevant to the factor (2) analysis for the same reason that we do not find mother’s messages relevant. Instead, we find it more significant that father, like mother, sent mother photos of the child and allowed the child to video chat with mother on a daily basis while the child was in his care. There is no evidence that father ever interfered or threatened to interfere with mother’s visitation or co-parenting time. Accordingly, we conclude that factor (2) favors neither party.^[5]

2.

Best interest factors (1) and (5) require the court to consider the extent of each party’s parenting involvement prior to the divorce. Specifically, the court must consider:

(1) 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; [and]

(5) 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.

Tenn. Code Ann. § 36-6-106(a)(1), (5) (emphasis added).

With respect to factor (1), the trial court stated:

Both parties are able to and have attended to the parenting responsibilities and daily needs of the child. Because of the bitter and aggressive denial of Mr. Brown’s ability to care for the child during early hearings in this matter, the Court determined it appropriate to let actual experience with parenting by Mr. Brown take place and be put into evidence as opposed to the fears and concerns of Mrs. Brown. He has proven himself more than capable of being an outstanding Father. During the Mother’s maternity leave, she and her Mother took over the care of the child. The Father was working a mandatory outage at TVA. As not uncommon with