Opinion

Kristen Alice Rowe v. Calvin Albert Rowe, III

Court: Court of Appeals of Tennessee
Filed: May 23, 2025
Status: Published
On the bench: Judge Thomas R. Frierson, II
Cited by: 0 cases
Authority: More cited than 35.8%

The opinion

05/23/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 4, 2025 Session

KRISTEN ALICE ROWE v. CALVIN ALBERT ROWE, III

Appeal from the Circuit Court for Montgomery County

No. CC-22-CV-2064 Kathryn Olita, Judge

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No. M2024-00114-COA-R3-CV

___________________________________

Following a bench trial in this divorce action, the trial court granted a divorce to the wife

on the ground of inappropriate marital conduct. The court entered a permanent parenting

plan order, designating the wife as the primary residential parent to the parties’ four minor

children and granting the husband 144 days of annual residential co-parenting time. In

what the court found to be an equitable division of the marital estate, it awarded to the wife

$303,260.00 in marital assets, which included the equity in and possession of the marital

residence and her marital share of the husband’s military retirement. The husband received

$274,097.10 in marital assets, which included the equity in and possession of an

unimproved parcel of real property. The court directed that the wife would be responsible

for the mortgage owed on the marital residence but also directed that the wife would not

be required to refinance the mortgage debt until the youngest child had reached the age of

eighteen years. Finding the wife to be the economically disadvantaged spouse and

expressly finding that she was not voluntarily underemployed, the court awarded to her

$5,000.00 monthly in transitional alimony for a period of six years, to be offset by her share

of the husband’s military retirement benefits upon his retirement. However, the court

specified that “[t]he amount of $5,000.00 is a global amount which shall include the child

support obligation owed by [the husband].” Based on the child support guidelines, the

court ordered the husband to pay $1,992.00 monthly in child support. The court further

awarded to the wife $10,127.00 in reasonable attorney’s fees as alimony in solido. The

husband has appealed. Discerning no reversible error, we affirm the trial court’s judgment

with the minor modification of an added provision stating that the wife will indemnify and

hold the husband harmless for the mortgage debt on the marital residence until it is paid in

full or refinanced. We also award to the wife her reasonable attorney’s fees incurred on

appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed as Modified; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Mark R. Olson, Clarksville, Tennessee, for the appellant, Calvin Albert Rowe, III.

Steven C. Girsky, Clarksville, Tennessee, for the appellee, Kristen Alice Rowe.

OPINION

I. Factual and Procedural Background

The plaintiff, Kristen Alice Rowe (“Wife”), filed a complaint for divorce on October

18, 2022, in the Montgomery County Circuit Court (“trial court”). Wife alleged grounds

for divorce against the defendant, Calvin Albert Rowe, III (“Husband”), of irreconcilable

differences or, in the alternative, inappropriate marital conduct and adultery. According to

Wife, the parties were married in July 2008 and separated in May 2022. Four children

were born to the marriage: Aiden in June 2009, Caleb in February 2012, Owen in August

2015, and Bennett in August 2017 (collectively, “the Children”). At the time of the

complaint’s filing, the parties owned improved real property located in Montgomery

County, Tennessee (“the Marital Residence”). Wife requested that she be granted

“immediate sole temporary custody” of the Children and that upon a divorce judgment, she

be granted primary custody with “reasonable parenting privileges” afforded to Husband.

Wife also requested, as pertinent on appeal, an award of child support, an award of alimony,

continued medical insurance coverage for the Children provided by Husband, an equitable

distribution of the parties’ assets and debts, and an award of reasonable attorney’s fees and

costs.

Husband filed an answer and counter-complaint on November 14, 2022, denying

Wife’s fault-based grounds for divorce. In his counter-complaint, Husband asserted

divorce grounds of irreconcilable differences or, in the alternative, inappropriate marital

conduct by Wife. Husband requested “joint residential care” of the Children and an award

of spousal support. Husband subsequently filed a motion proposing a temporary parenting

plan that would have provided Wife with 199 days of residential co-parenting time and

Husband with 166 days annually. Although Husband’s proposed plan named Wife as

primary residential parent, he proposed that the parties have joint decision-making

authority for all major decisions.

On November 30, 2022, Wife filed a response opposing Husband’s proposed

temporary parenting plan and proposing one of her own. In her response, Wife raised

concerns about the possibility of Husband’s leaving the Children with his mother

(“Paternal Grandmother”) unsupervised. Wife alleged that when the parties’ youngest

child was two years old, he had nearly drowned while in Paternal Grandmother’s care when

Paternal Grandmother had been too intoxicated to assist the Child. Wife averred that she

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had arrived to find the child floating, lifeless, in a swimming pool and had rendered aid

while Paternal Grandmother remained motionless.

As to Husband, Wife averred that because Husband had been an active duty member

of the United States Army throughout the marriage, he was often gone for long stretches

of time and had not always played an active role in the Children’s lives. Wife further

asserted that it was not in the best interest of the Children to spend additional time in

Husband’s care because he was “violent” and “often [had] angry outbursts directed toward

[the Children].” Wife’s proposed plan provided for the Children to spend 280 days with

her annually and 85 days with Husband, setting Husband’s co-parenting schedule on

alternate weekends from Friday evening to Sunday evening. Wife also proposed that she

be awarded sole major decision-making authority regarding the Children. Wife

subsequently filed an answer to Husband’s counter-complaint, denying any inappropriate

marital conduct on her part and opposing Husband’s requests to be designated the primary

residential parent and to receive spousal support.

Following a hearing regarding the parties’ proposed temporary parenting plans, the

trial court entered an order on December 16, 2022, delineating a temporary co-parenting

schedule. The court directed that Husband would have responsibility for the Children’s

care on alternate weekends, beginning on Thursday at 6:00 p.m. and ending on Sunday at

6:00 p.m. The court also set forth a holiday co-parenting schedule and directed that

Paternal Grandmother was not to be left unsupervised with the Children for any reason.

The court gave Wife the right of first refusal in the event that Husband had to be away from

the Children for more than eight consecutive hours during his parenting time. A mediator’s

report filed in April 2023 reflected that the parties participated in mediation but did not

resolve any issues.

On May 26, 2023, Husband filed a motion to amend the temporary parenting plan,

asserting that he needed more time with the Children and that Wife had been

unaccommodating regarding his requests for extra time. Husband further urged that a co-

parenting schedule for the 2023 holidays needed to be established. He attached a proposed

temporary parenting plan wherein Wife would enjoy 224 days annually with the Children

and he would enjoy 141 days. He again proposed joint decision-making authority. On

June 7, 2023, Wife filed a motion to appoint a guardian ad litem (“GAL”) to represent the

best interest of the Children. Wife concomitantly filed a response opposing Husband’s

motion to amend the temporary parenting plan. Wife attached examples of text messages

between the parties purportedly demonstrating that they had been cooperating well when

Husband requested extra time with the Children or needed to adjust his schedule. On

August 15, 2023, the trial court entered an order appointing attorney Amy Bates as the

GAL pursuant to Tennessee Supreme Court Rule 40A.

On October 20, 2023, Wife filed a motion requesting leave from the trial court to

file an amended complaint for legal separation due to a recently discovered need for

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ongoing medical care and continued health insurance coverage through Husband. The trial

court entered an order granting leave for Wife to file an amended complaint on November

9, 2023.

Prior to trial, each party filed a pretrial brief and a proposed permanent parenting

plan. Under Husband’s proposed plan, the parties would both be designated as primary

residential parents sharing equal residential co-parenting time and joint major decision-

making authority. Husband proposed that the Children spend alternating weeks with each

parent throughout the year. Wife proposed a schedule wherein she would enjoy 256 days

of annual co-parenting time while Husband would enjoy 109 days, and Wife would have

sole major decision-making authority. Wife desired to keep Husband’s co-parenting time

on alternate weekends as it had been during the pendency of the divorce. Wife also

proposed that the provisions included in the temporary parenting plan regarding Paternal

Grandmother’s need for supervision and Wife’s right of first refusal be memorialized.

The trial court conducted a bench trial on November 20, 2023, during which the

parties were the sole witnesses. During her testimony, Wife presented an income and

expense statement reflecting a monthly gross income from her employment of $500.00 and

monthly expenses (including the mortgage related to the Marital Residence) in the amount

of $6,827.61, yielding a claimed deficit of $6,327.00. Wife testified that she was employed

by a non-profit company that paid her for work that she could perform from home. She

explained that she had experienced difficulty in finding employment because she had been

a stay-at-home parent during the marriage who was responsible for most of the Children’s

care. Wife included that Husband had served in the miliary during the entirety of the

marriage and was often away from home for long periods of time, leaving her solely

responsible for the care of the Children, one of whom had been medically fragile as an

infant.

Husband presented his military pay records, which support the trial court’s finding

that his gross income at the time of trial was approximately $12,025.84 monthly. Husband

also presented a proposed division of assets and liabilities wherein he suggested that Wife

be granted sole ownership of the Marital Residence and that he be granted ownership of

the parties’ parcel of unimproved real property. With respect to the marital residence,

Husband specified that he wanted Wife to retain the equity and be responsible for the

mortgage, stating, “I’m perfectly fine if . . . the loan stays in my name for interest.”

The GAL also provided a statement at the close of trial. In relevant part, the GAL

stated that although it was clear that Wife had been the Children’s primary caregiver

throughout the marriage, Husband was at a point in his military career when he could

devote more time to the Children and should be afforded an opportunity to enjoy more

residential co-parenting time than he had previously been given. The GAL emphasized

that both parents loved the Children and were responsible, attentive parents. The GAL

acknowledged a recent incident to which Wife had testified when Husband had slapped the

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eldest child (age fourteen at the time of trial) at the dinner table. Husband testified that this

was an isolated incident and not the way he typically disciplined the Children. The GAL

stated that the eldest child was now feeling as though he had a good relationship with

Husband but was afraid that if he spent more time with his father, the relationship would

change somehow. However, the GAL articulated: “I don’t know that I’ve seen anything

that would make me think that that would happen.”

The trial court entered a final decree of divorce and permanent parenting plan order

(“PPP”) on January 4, 2024. The court granted Wife’s complaint for divorce on the ground

of Husband’s inappropriate marital conduct. Regarding Husband’s conduct, the court

found:

[Wife] presented testimony and evidence regarding [Husband’s]

inappropriate relationship outside the marriage, [Husband’s] inappropriate

conduct with [Wife], and [Husband’s] questionable treatment of the children,

including disciplining in anger, and intentionally slamming car brakes

causing [a] child’s face to crash into the dash/vent.

[Wife] testified that the “final straw” in the marriage took place when

[Husband] slapped one of the children in the head at the dinner table. This

event took place after other events previous thereto from [Husband] towards

the children[:] spanking Owen in anger, and backing a child into a wall in

an intimidating and angry manner.

The Court finds [Wife’s] testimony and exhibits[1] to be credible and

therefore, by preponderance of the evidence, an award of Divorce is awarded

to [Wife] on the grounds of inappropriate marital conduct.

(Paragraph numbering omitted.)

The trial court then considered the facts presented in light of the statutory factors

concerning custody and co-parenting. In doing so, the court declined to adopt either party’s

proposed parenting plan in full. Although the parties were afforded joint decision-making

authority, the court designated Wife as the primary residential parent with 221 days of

annual co-parenting time compared to Husband’s 144 days. For Husband’s parenting time,

the court maintained the existing schedule of alternate Thursday through Sunday evenings

during the academic year. However, the court adopted a “week on/week off parenting

schedule during the children’s summer vacation with exchanges taking place on Sunday at

6:00 p.m.” The court also included the following special provisions in the PPP:

Wife presented photographs of two of the parties’ children, which showed some amount of redness on

one child’s face and redness on another child’s side. Wife testified that Husband’s actions caused the

redness shown in the photographs.

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1. [Paternal Grandmother] is to not be unsupervised with the minor

children for any reason.

2. If [Husband] will be gone for longer than twenty four (24) hours due

to educational or military training purposes, the children shall be in the

care of [Wife].

3. The family shall attend family counseling together, with the [eldest]

minor child, Aiden, receiving individual counseling as well.

In making its custody determination, the trial court addressed the statutory best

interest factors provided in Tennessee Code Annotated § 36-6-106(a) and found that the

applicable factors favored either Wife or both parties equally. The court also rendered the

following findings of fact in support of the PPP:

Before the Court addressed the custody determination, the Court

reiterated the importance of consistency in the minor children’s lives and

noted that a balance must be achieved to account for stability and consistency

while also allowing for the children to improve their relationship with

[Husband].

The Court finds that the children find stability and consistency with

[Wife] and it is therefore in the children’s best interest for [Wife] to be

awarded Primary Residential Parent.

Though the Court does not adopt either part[y’s] Proposed Parenting

Plan, the Court finds that the parties shall continue exercising the school time

schedule they have been exercising per the Temporary Parenting Plan.

However, during the children’s summer break, the parties shall exercise a

week on/week off visitation schedule.

The Court finds that this will provide the children with consistency

and stability and, due to the fact that [Husband] often pulls the children out

of school early on his scheduled visitation days, this is in the best interest of

the children.

The Court further finds that [Wife] has always been extremely

invested in the schooling and education of the children and this will enable

her to remain so by continuing to provide them with structure and stability.

(Paragraph numbering omitted.)

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In its final decree, the trial court set forth what it found to be an equitable

distribution of the marital estate. Overall, the court awarded to Wife $303,260.00 in marital

assets while awarding to Husband $274,097.10 in marital assets. The court also awarded

to Wife her marital share of the husband’s military retirement while noting that Husband

had been in the military for the entire duration of the marriage. The court awarded the

Marital Residence to Wife and the parties’ parcel of unimproved real property to Husband.

The court directed that Wife would be responsible for paying the mortgage debt related to

the Marital Residence from her own funds. However, the court directed that Wife “will

not be required to refinance the home in her own name until all of the children reach the

age of eighteen.”

As to spousal support, the trial court awarded to Wife transitional alimony in the

amount of $5,000.00 per month for a period of six years, noting that when Husband retires

from the military, the amount of transitional alimony “would be offset by the amount of

retirement to be received by Wife.” However, the court specified that the $5,000.00 would

be “a global amount that shall include [Husband’s] monthly child support obligation.”

Pursuant to the child support guidelines, Husband’s monthly child support obligation was

set at $1,992.00. Therefore, the transitional alimony award amounted to $3,008.00 per

month.2 The court also awarded to Wife $350.00 monthly to cover her health insurance,

to be terminated upon her obtaining employment in the future that offers health insurance.

In making its alimony determination, the trial court referenced the statutory factors

provided in Tennessee Code Annotated § 36-5-121(i) and stated the following:

The Court further took into account the major factors in Tennessee

Code Annotated § 36-5-121(i), and finds that the Husband’s significantly

greater earning capacity, additional resources available to him, and his

education level, which was made possible by the fact that [Wife] stayed at

home with the children, has resulted in [Wife’s] requiring time to secure and

improve her earning capacity to a reasonable level to support herself and four

(4) children.

The Court finds the most notable factor in Tennessee Code Annotated

§ 36-5-121(i), to be Factor six (6), which is the extent to which it would be

undesirable for a party to seek employment outside of the home because such

party will be custodian of the children. The Court finds that [Wife] is serving

as primary residential parent, while also engaging in a work from home job.

Though [Husband] is critical of her present earnings, the Court finds that

See, e.g., Jones v. Jones, No. E2019-00037-COA-R3-CV, 2019 WL 5692293, at *6 (Tenn. Ct. App. Nov.

4, 2019) (concluding that a provision in the parties’ marital dissolution agreement that a total amount of

funds would represent “both [the husband’s] alimony and child support obligations” was permissible

because “neither the child support award nor the alimony award was ‘capped,’ and either award could be

modified upon a proper showing”).

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[Husband’s] own testimony reflects the acknowledgement that someone will

need to be more available to the children. Therefore, the Court noted that

“you can’t criticize someone for accommodating children’s schedules and

staying out of the workforce for almost 15 years, while also recognizing that

these children need care.”

Accordingly, the previously outlined marital asset division and

transitional alimony award is appropriate in this case due to the fact [Wife]

is considerably economically disadvantaged in comparison to [Husband] and

is in need of financial assistance in adjusting to the economic consequences

of the divorce.

Based on [Wife’s] Income and Expense Statement, which the Court

finds to be reasonable and appropriate, the Court finds that the amount of

$5,000.00 is just enough to cover [Wife’s] monthly expenses and [Husband]

is capable of paying that amount.

(Paragraph numbering omitted.)

Additionally, the trial court expressly found that Wife was not voluntarily

underemployed, stating the following in its findings of fact:

The Court finds that [Wife] is not voluntarily underemployed pursuant

to the regulations with the most significant reason being that [Wife] was in

seven (7) duty stations for the past eleven (11) years for the benefit of

[Husband’s] career. She has been out of the work force raising four children.

[Wife’s] employment history includes being a childcare provider for

five (5) months, employment with the Family Readiness Group for three (3)

months, and employment as a medical support person for three (3) months.

However, the Court notes that [Wife] has worked as a stay at home Mother

for many years.

Accordingly, the Court finds that [Wife] is at a significant

disadvantage in earning potential and potential employment, despite her

degree, by virtue of being out of the workforce. Additionally, even after

[Wife] obtains work, she will have to account for childcare expenses and

time off from work to care for the children.

For the foregoing reasons, the Court finds that [Wife] is not willfully

or voluntarily underemployed.

(Paragraph numbering omitted.)

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Prior to entry of the final decree, Wife’s counsel filed an affidavit of reasonable

attorney’s fees. In the final decree, the court awarded to Wife $10,127.00 in attorney’s

fees as alimony in solido, reiterating that Wife was “the economically disadvantaged

spouse.” Husband timely appealed.

II. Issues Presented

Husband presents the following issues for this Court’s review, which we have

restated slightly:

1. Whether the trial court abused its discretion by entering a PPP that

provided Husband with less than fifty percent residential co-parenting

time.

2. Whether the trial court erred in awarding to Wife attorney’s fees as

alimony in solido.

3. Whether the trial court erred in setting a six-year time period for the

award to Wife of transitional alimony.

4. Whether the trial court erred by declining to set a date earlier than the

youngest child’s eighteenth birthday by which Wife must refinance

the debt on the marital residence.

5. Whether the trial court erred by requiring that Paternal Grandmother

be supervised when with the Children.

Wife presents the following additional issue:

6. Whether Wife should be awarded her reasonable attorney’s fees on

appeal.

III. Standard of Review

We review a non-jury case de novo upon the record with a presumption of

correctness as to the findings of fact unless the preponderance of the evidence is otherwise.

See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). We

review questions of law de novo with no presumption of correctness. Bowden, 27 S.W.3d

at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re

Estate of Haskins, 224 S.W.3d 675, 678 (Tenn. Ct. App. 2006). In addition, the trial court’s

determinations regarding witness credibility are entitled to great weight on appeal and shall

not be disturbed absent clear and convincing evidence to the contrary. See Morrison v.

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Allen, 338 S.W.3d 417, 426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.

2002).

This Court reviews a trial court’s determination of an appropriate permanent

parenting plan order according to an abuse of discretion standard. Kelly v. Kelly, 445

S.W.3d 685, 692 (Tenn. 2014). As our Supreme Court stated in Kelly:

Because decisions regarding parenting arrangements are factually

driven and require careful consideration of numerous factors, trial judges,

who have the opportunity to observe the witnesses and make credibility

determinations, are better positioned to evaluate the facts than appellate

judges. Armbrister v. Armbrister, 414 S.W.3d [685,] 693 [(Tenn. 2013)].

Determining the details of parenting plans is “peculiarly within the broad

discretion of the trial judge.” Armbrister v. Armbrister, 414 S.W.3d at 693

(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.” Armbrister v. Armbrister, 414 S.W.3d at 693 (quoting Eldridge v.

Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001)).

. . . 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 v. Armbrister,

414 S.W.3d at 693 (quoting Eldridge v. Eldridge, 42 S.W.3d at 88).

Id. at 692.

Similarly, regarding awards of spousal support, our Supreme Court has “repeatedly

. . . observ[ed] that trial courts have broad discretion to determine whether spousal support

is needed and, if so, the nature, amount, and duration of the award.” Gonsewski v.

Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). The Court has further explained:

[A] trial court’s decision regarding spousal support is factually driven and

involves the careful balancing of many factors. Kinard v. Kinard, 986

S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also Burlew [v. Burlew], 40

S.W.3d [465,] 470 [(Tenn. 2004)]; Robertson v. Robertson, 76 S.W.3d 337,

340-41 (Tenn. 2002). As a result, “[a]ppellate courts are generally

disinclined to second-guess a trial judge’s spousal support decision.”

Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an appellate court in

reviewing an award of spousal support is to determine whether the trial court

applied the correct legal standard and reached a decision that is not clearly

unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006).

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Appellate courts decline to second-guess a trial court’s decision absent an

abuse of discretion. Robertson, 76 S.W.3d at 343. An abuse of discretion

occurs when the trial court causes an injustice by applying 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.

Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011);

Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010). This standard

does not permit an appellate court to substitute its judgment for that of the

trial court, but “‘reflects an awareness that the decision being reviewed

involved a choice among several acceptable alternatives,’ and thus ‘envisions

a less rigorous review of the lower court’s decision and a decreased

likelihood that the decision will be reversed on appeal.’” Henderson, 318

S.W.3d at 335 (quoting Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524

(Tenn. 2010)). Consequently, when reviewing a discretionary decision by

the trial court, such as an alimony determination, the appellate court should

presume that the decision is correct and should review the evidence in the

light most favorable to the decision. Wright, 337 S.W.3d at 176; Henderson,

318 S.W.3d at 335.

Id. at 105-06 (footnotes omitted).

This Court also reviews a trial court’s decision concerning attorney’s fees in a

divorce action pursuant to an abuse of discretion standard. As this Court has stated:

Our review of an award of attorney’s fees is guided by the principle that “‘the

allowance of attorney’s fees is largely in the discretion of the trial court, and

the appellate court will not interfere except upon a clear showing of abuse of

that discretion.’” Mimms v. Mimms, 234 S.W.3d 634, 641 (Tenn. Ct. App.

2007) (quoting Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005)).

Hernandez v. Hernandez, No. E2012-02056-COA-R3-CV, 2013 WL 5436752, at *8

(Tenn. Ct. App. Sept. 27, 2013).

IV. Permanent Parenting Plan Issues

A. Co-Parenting Schedule

Husband posits that the trial court erred by failing to maximize his time with the

Children when the court fashioned the parties’ PPP. In support, Husband relies upon the

statute governing parenting and custody decisions, Tennessee Code Annotated § 36-6-

106(a), which states that “the court shall order a custody arrangement that permits both

parents to enjoy the maximum participation possible in the life of the child[ren.]” Husband

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thus asserts that the trial court should have adopted an alternating-week, 50/50 co-parenting

schedule in order to maximize his participation in the Children’s lives.3

The full text of Tennessee Code Annotated § 36-6-106(a) (West March 18, 2022, to

April 23, 2024), as it existed at the time this divorce action was filed, provides:

In a suit for annulment, divorce, separate maintenance, or in any other

proceeding requiring the court to make a custody determination regarding a

minor child, the determination shall be made on the basis of the best interest

of the child. In taking into account the child’s best interest, the court shall

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. The court shall

consider all relevant factors, including the following, where applicable:

(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;

Husband did not raise an issue regarding the trial court’s designation of Wife as primary residential parent.

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(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. . . .

(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;

(15) Any other factors deemed relevant by the court; and

(16) Whether a parent has failed to pay court-ordered child support for a

period of three (3) years or more.

Husband asserts that the trial court erred in its analysis of and weight given to the

applicable statutory factors. By contrast, Wife contends that the trial court appropriately

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analyzed and weighed the relevant factors, and she urges that this Court should not “tweak”

the trial court’s co-parenting schedule pursuant to the abuse of discretion standard of

review. Upon our thorough review of the facts and the applicable statutory factors, we

agree with Wife.

The trial court, in its final order, made significant factual findings related to the

statutory factors that the court found relevant. For example, with reference to the first

factor, the trial court noted that Wife had been the primary caregiver for the Children

throughout their lives and had “performed the majority of parenting responsibilities.” The

evidence supports this finding. Wife had primarily been a stay-at-home mother during the

marriage and had performed the lion’s share of parental responsibilities with respect to the

Children’s daily needs while Husband was working, training, or sometimes deployed for

long stretches of time. Therefore, as the trial court correctly noted, the Children were

largely dependent on Wife for their emotional and developmental needs.

The trial court also found that although the Children’s relationship with Husband

had been improving, there had been “events that have occurred that have caused a distance

between them.” The evidence also supports this finding. Wife presented evidence that the

Children had reported fear of Husband due to his anger and harsh discipline in the past but

that this had improved somewhat since the parties’ separation because Husband had been

able to spend weekends with the Children without the presence of tension and conflict with

Wife. The trial court determined that overall, the first factor favored Wife. The evidence

supports this determination.

Regarding factor two, the trial court determined that this factor weighed equally

between the parties. The court found that each parent had tried to encourage the Children’s

respective relationships with the other parent. The court further found that despite

Husband’s “immature parenting choices,” his relationship with the Children was

improving. The evidence at trial demonstrated that the parties had worked well together

during the pendente lite co-parenting with Wife accommodating Husband’s requests for

additional time when she could. The parties shared in the responsibilities of transporting

the Children to and from school and their extra-curricular activities, and each parent had

manifested willingness to adjust his or her schedule in order to facilitate the Children’s

needs. Accordingly, this factor does appear to weigh equally in favor of Wife and Husband.

Factor three concerns whether either parent had refused to attend a court-ordered

seminar. Because no evidence of this was presented at trial, we agree with the trial court

that this factor weighs equally or is neutral in this case. With respect to factor four, the

court found that the parties were equally able to provide the Children with food, clothing,

medical and other care and meet their educational needs. Based on the evidence presented,

we agree that this factor weighs evenly.

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The trial court found that factor five weighed in Wife’s favor, respecting the degree

to which she had been primary caregiver and had taken on a greater responsibility for

parenting the Children. The evidence supports the trial court’s determination concerning

this factor. Wife testified and Husband did not dispute that she had been the primary

caregiver for the Children during the marriage. Although Husband had been involved to

some degree, the proof was clear that Wife had performed the majority of daily

responsibilities with regard to the Children, including her provision of round-the-clock care

for one child who was medically fragile in his younger years.

Respecting factors six, seven, and eight, the trial court found that these factors

weighed equally in the analysis because the evidence established that (1) both parents

clearly loved the Children, (2) both parents were capable of addressing the Children’s

emotional and developmental needs, and (3) both parents had demonstrated fitness to

parent. Upon our thorough review of the evidence, we agree that these factors should

weigh equally. Although the court found factor nine—the child’s interaction with others

and involvement with school and other activities—to be inapplicable, we find that it is

applicable but should weigh evenly here because both parents had demonstrated a concern

for encouraging the Children’s educational and extracurricular pursuits and neither parent

had discouraged the Children’s relationships with other relatives.

Factor ten concerns continuity and the length of time the Children have lived in a

stable and satisfactory environment. The trial court determined that this factor weighed in

Wife’s favor, and we agree with that determination. The evidence clearly demonstrated

that Wife had been the Children’s primary caregiver and a stabilizing force in their lives

while Husband’s employment often required that he be absent from the home for long

periods of time. We also agree with the trial court’s determination that factors eleven and

twelve are inapplicable here.

The trial court found that factor thirteen, regarding a child’s preference, should

weigh equally. We note that the Children did not testify and that little evidence was

presented regarding their preferences. Accordingly, the trial court did not err in finding

that this factor weighed equally or was neutral. With respect to factor fourteen and the

parents’ employment schedules, by the time of trial, Wife was working a part-time schedule

from home, which allowed her a great deal of flexibility in attending to the Children’s

needs. Husband also maintained some flexibility in his schedule but worked more hours

than Wife. We therefore agree with the trial court that this factor favored Wife. The court

found the remaining factors to be inapplicable.

Viewing the weight of the evidence and the applicable statutory factors, although

several of the factors weighed equally in this matter, there were certain factors that weighed

heavily in Wife’s favor by reason of Wife’s performance of a substantial share of the

parenting responsibilities for the Children throughout their lives. Wife presented evidence

that for the majority of the Children’s lives, she had been the primary parent who provided

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for the Children’s daily needs, such as food, clothing, transportation, education, medical

care, and emotional support. Although Husband had been involved with the Children, he

had also served in the military throughout the marriage, an occupation that had placed

enormous demands upon his time. Husband clearly loves the Children, and the parties had

co-parented well together pending trial. However, we agree with the trial court that the

evidence favored Wife, who during the marriage had performed most of the parenting

responsibilities and had provided continuity and security for the Children.

Husband urges this Court to vacate the trial court’s co-parenting schedule and

instead adopt an equal, week-on/week-off schedule based on the evidence demonstrating,

inter alia, his involvement with the Children and the GAL’s suggestion that he be granted

more co-parenting time. However, we determine that the trial court properly considered

and appropriately weighed the evidence presented in relation to the statutory factors. The

trial court did grant Husband more co-parenting time than what he had received prior to

trial by instituting an alternating-week schedule during the summer instead of alternate

weekends.

As this Court has previously recognized, “crafting a specific parenting schedule

remains within the discretion of the trial court,” and the trial court is not required to

“establish a parenting schedule that provides equal parenting time” to each parent. See

Gooding v. Gooding, 477 S.W.3d 774, 784 n.7 (Tenn. Ct. App. 2015). Indeed, the

legislature has made clear that the statutory scheme concerning parenting plans establishes

“neither a preference nor a presumption for or against joint legal custody, joint physical

custody, or sole custody . . . but the court shall have the widest discretion to order a custody

arrangement that is in the best interest of the child.” Tenn. Code Ann. § 36-6-

101(a)(2)(A)(1) (West July 1, 2021, to current).

Moreover, we reiterate that it is not this Court’s province to “tweak” a trial court’s

co-parenting schedule with the hope of achieving a better result. See Kelly, 445 S.W.3d at

692. Instead, this Court should uphold the trial court’s parenting plan unless “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.” See id. In

this case, the trial court’s factual findings are supported by the evidence, and its analysis

of the statutory factors in relation to the facts found is appropriate. We therefore affirm

the trial court’s co-parenting schedule set forth in the PPP.

B. Restrictions Concerning Paternal Grandmother

Husband’s second issue related to the PPP concerns the PPP’s provision stating that

his mother shall not be allowed to “be unsupervised with the minor children for any

reason.” Husband argues that the trial court failed to provide a reason for this directive in

the final order. We note, however, that Wife testified during trial regarding an incident

that occurred when the youngest child was two years old. Wife recounted an incident when

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Paternal Grandmother had allowed the youngest child to nearly drown in a swimming pool

while in Paternal Grandmother’s care. Wife first documented this incident in her response

to Husband’s motion for temporary parenting plan, filed in November 2022, wherein Wife

stated:

[Paternal Grandmother] often drinks in excess and once let one of the minor

children drown in a swimming pool while she was intoxicated and swimming

with the minor children. [Paternal Grandmother] was too intoxicated to

render aid to the minor child and instead, the Mother found the child floating

in the pool and subsequently rendered aid. Not only was [Paternal

Grandmother] too intoxicated to help in this situation, she was too inebriated

to move as she only sat and watched the entire traumatic and dangerous

situation unfold.

Accordingly, Wife sought a provision in the temporary parenting plan stating that Paternal

Grandmother could not be left unsupervised while in the presence of the Children. When

the trial court subsequently entered an order concerning pendente lite visitation, the court

granted Wife’s request by including a provision directing that Paternal Grandmother must

be supervised while with the Children.

At trial, Wife testified regarding the near-drowning incident and explained that her

concerns about Paternal Grandmother’s supervision remained even though the youngest

child was six years of age by the time of trial. Husband did not dispute Wife’s testimony,

and the trial court clearly credited it when the court included in the PPP the provision

directing that Paternal Grandmother’s interactions with the Children be supervised. We

therefore conclude that this provision had a valid basis and was supported by the evidence

adduced during trial. We find Husband’s postulate concerning this provision unavailing.

V. Propriety of Alimony Award

A. Length of Transitional Alimony Award

Husband next takes issue with the length of the trial court’s award of transitional

alimony to Wife. Husband argues that the trial court improperly evaluated the statutory

alimony factors and failed to provide a basis for its award. He urges that the length of the

six-year award was excessive.

Tennessee’s statutory scheme recognizes four types of spousal support: (1) alimony

in futuro, also known as periodic alimony; (2) alimony in solido, also known as lump-sum

alimony; (3) rehabilitative alimony; and (4) transitional alimony. Tenn. Code Ann. § 36-

5-121(d) (West March 31, 2022, to current); Mayfield v. Mayfield, 395 S.W.3d 108, 115

(Tenn. 2012). The statute indicates a legislative preference favoring short-term spousal

support, rehabilitative and transitional alimony, over the long-term types of support,

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alimony in futuro and alimony in solido. See Tenn. Code Ann. § 36-5-121(d)(2)-(3);

Mayfield, 395 S.W.3d at 115; Riggs v. Riggs, 250 S.W.3d 453, 456 (Tenn. Ct. App. 2007).

Rehabilitative alimony “‘is designed to increase an economically disadvantaged spouse’s

capacity for self-sufficiency.’” See Mayfield, 395 S.W.3d at 115 (quoting Gonsewski, 350

S.W.3d at 109). By contrast, transitional alimony, awarded by the trial court in this matter,

“is appropriate when a court finds that rehabilitation is not required but that the

economically disadvantaged spouse needs financial assistance in adjusting to the economic

consequences of the divorce.” See Gonsewski, 350 S.W.3d at 109 (citing Tenn. Code Ann.

§ 36-5-121(d)(4), (g)(1); Riggs, 250 S.W.3d at 456 n.5).

Tennessee Code Annotated § 36-5-121(i) (West March 31, 2022, to current)

provides the following factors to be considered, as relevant, when determining whether an

award of spousal support is appropriate, and if so, “the nature, amount, length of term, and

manner of payment” to be awarded:

(1) The relative earning capacity, obligations, needs, and financial

resources of each party, including income from pension, profit sharing

or retirement plans and all other sources;

(2) The relative education and training of each party, the ability and

opportunity of each party to secure such education and training, and

the necessity of a party to secure further education and training to

improve such party’s earnings capacity to a reasonable level;

(3) The duration of the marriage;

(4) The age and mental condition of each party;

(5) The physical condition of each party, including, but not limited to,

physical disability or incapacity due to a chronic debilitating disease;

(6) The extent to which it would be undesirable for a party to seek

employment outside the home, because such party will be custodian

of a minor child of the marriage;

(7) The separate assets of each party, both real and personal, tangible and

intangible;

(8) The provisions made with regard to the marital property, as defined in

§ 36-4-121;

(9) The standard of living of the parties established during the marriage;

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(10) The extent to which each party has made such tangible and intangible

contributions to the marriage as monetary and homemaker

contributions, and tangible and intangible contributions by a party to

the education, training or increased earning power of the other party;

(11) The relative fault of the parties, in cases where the court, in its

discretion, deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to each party, as

are necessary to consider the equities between the parties.

As our Supreme Court has elucidated, “[a]lthough each of these factors must be

considered when relevant to the parties’ circumstances, ‘the two that are considered the

most important are the disadvantaged spouse’s need and the obligor spouse’s ability to

pay.’” Gonsewski, 350 S.W.3d at 110 (quoting Riggs, 250 S.W.3d at 457). Moreover, this

Court has confirmed that when “considering these two factors, the primary consideration

is the disadvantaged spouse’s need.” Murdock v. Murdock, No. W2019-00979-COA-R3-

CV, 2022 WL 611024, at *14 (Tenn. Ct. App. Mar. 2, 2022). It is well settled that “trial

courts in Tennessee have broad discretion to determine whether spousal support is needed

and, if so, to determine the nature, amount, and duration of the award.” Mayfield, 395

S.W.3d at 114; see also Fickle v. Fickle, 287 S.W.3d 723, 736 (Tenn. Ct. App. 2008).

Here, the trial court made the following specific findings of fact and conclusions of

law concerning Wife’s request for spousal support:

In consideration of the testimony and evidence and the factors

included in Tennessee Code Annotated § 36-5-121 (c), the Trial Court found

that the parties have been married for fifteen (15) years, the parties worked

together to achieve their marital assets, both parties are physically and

mentally fit, and neither party has health issues that would hinder

employment. The Court further finds that each contributed to the

preservation and appreciation of each asset and neither testified to any tax

consequences.

The Court further finds that because [Wife] stayed at home with the

children, [Husband] was able to maximize his training and education

opportunities, which lends to the fact that [Husband] has a much greater

earning capacity than that of [Wife]. Therefore, [Wife] is the economically

disadvantaged spouse. This accounts for why [Wife] is receiving a slightly

larger portion of the marital assets.

Therefore, an award of transitional alimony in the amount of

$5,000.00 is appropriate in this case. The amount of $5,000.00 is a global

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amount which shall include the child support obligation owed by [Husband].

When [Husband] retires from the United States Military, this amount shall

be offset by the amount of retirement to be received by [Wife].

[Wife] will receive the transitional alimony/support in the amount of

$5,000.00 for a period of six (6) years.

***