Travis G. Bumbalough v. Rachel M. Hall

07/07/2023

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 3, 2023 Session

TRAVIS G. BUMBALOUGH v. RACHEL M. HALL

Appeal from the Putnam County Juvenile Court

No. 2021-PAT-12 Steven D. Qualls, Judge

___________________________________

No. M2022-01003-COA-R3-CV

___________________________________

This appeal arises from a petition to establish parentage and a parenting plan pursuant to

Tennessee Code Annotated § 36–2–311 for a child born out of wedlock. In finding that the

statutory best interest factors set forth in Tennessee Code Annotated § 36-6-106(a) favored

the father, the trial court designated the father as the primary residential parent of the

parties’ minor child and ruled that the child would live with the father in Tennessee during

the school year and spend the majority of the summers and holidays with Mother in Texas.

The mother appeals. We affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the court, in which CARMA

DENNIS MCGEE and JEFFREY USMAN, JJ., joined.

John David Haines, for the appellant Rachel Marie (Hall) Morris.1

Michael Robert Giaimo, for the appellee Travis Glenn Bumbalough.

OPINION

FACTS AND PROCEDURAL BACKGROUND

Lucas—a minor child—was born to Rachel Marie (Hall) Morris (“Mother”) and

Travis Glenn Bumbalough (“Father”) in October 2016. Although Mother and Father were

1

At the time of filing, the Appellant’s surname was “Hall.” She subsequently married and took

the name “Morris.”

1

never married, Father was present during the birth, even “cutting the cord” and signed a

Voluntary Acknowledgment of Paternity at the hospital.

Immediately after Lucas’s birth, Mother, Father, and Lucas lived with Mother’s

parents in Gallatin, Tennessee, where they remained for one month after which they

relocated to Cookeville, Tennessee, where they resided with Father’s parents for the next

two years. During this time, Father worked and Mother stayed home with Lucas. During

this time, Mother experienced the “baby blues.” While this did not affect Mother’s ability

to parent Lucas, Father’s extended family members often came to the parties’ home to

assist Mother in caring for Lucas. Additionally, Father and Lucas’s paternal grandmother,

Sheila Bumbalough, would frequently come home from work to assist Mother with Lucas

during their lunch breaks.2

In April 2019, Mother and Father bought a home together in Gallatin, Tennessee, at

which time Mother began working at a nursing home in the area. They resided together for

the first three and one-half years of Lucas’s life; however, in October 2019, Mother ended

their relationship. After their separation, Father stayed in their residence while Mother

moved in with her parents in Gallatin. After the breakup the parties shared virtually equal

time with Lucas.

Mother then became romantically involved with Randall Morris—the administrator

of the nursing home facility where she worked. Thereafter, staff from the nursing home

complained that Mr. Morris was treating Mother favorably due to their romantic

involvement, and the nursing home opened up an investigation into their relationship.

Although there were no adverse findings, both Mother and Mr. Morris resigned from their

respective positions at the nursing home and began new jobs in Tennessee. A few months

later, however, they both resigned from their new positions.

In February 2020, Mother and Mr. Morris were engaged. After their engagement,

Mr. Morris accepted a six-figure job offer in Texas. On February 18, 2020, Mother sent

Father an email informing him that she was unilaterally changing the fifty-fifty custody

schedule, wherein Father would only have seven days per month with Lucas. In her email,

Mother stated that Lucas was regressing due to his back and forth movement between

households. She further stated that Lucas was not sleeping well, forgetting how to count

numbers, misbehaving at school and speaking gibberish. As the trial court noted in its final

order, Father strongly objected to this change and insisted that he had not witnessed any of

this behavior from Lucas.

Mother and Mr. Morris relocated from Tennessee to Comal, Texas in March 2020

because Mr. Morris had accepted a job there; however, Father was unaware of Mother’s

move until he received a letter from Mother on April 9, 2020. Although Mother belatedly

2

The parties dispute the frequency of these visits on Father’s part.

2

informed Father of her move to Texas, she had cancelled her previous cell phone service

and did not provide her new cell phone number or a mailing address for Father to contact

her or to speak with Lucas.3 As a result, nine days passed before Father was able to

communicate with Lucas.

Mother testified that the move to Texas was due to the fact that her employment as

a nurse put her on the front lines during COVID, and that relocating to Texas would allow

her to work from home, stay in a home owned by Mr. Morris’s family, and pay very little

rent. Mother also testified that the move would allow Mr. Morris to work in a job where he

was insulated from COVID. Mother and Mr. Morris were married in April 2020.

On April 6, 2020, Father initiated this action by filing a petition to establish paternity

and residential parenting for Lucas before the Circuit Court of Sumner County. In May of

2020, the Circuit Court for Sumner County entered an order establishing paternity and

granting a temporary fifty-fifty visitation arrangement whereby Lucas would fly back and

forth between Texas and Tennessee and would alternate spending twenty-eight days with

each parent. In June of 2020, after Father returned to Cookeville, the Sumner County

Circuit Court entered an order transferring this case to the Juvenile Court for Putnam

County.4

Shortly thereafter, the Juvenile Court for Putnam County (hereinafter “the trial

court”) held a final hearing on the amended petition and modified the schedule to have

Lucas spend forty-two-day periods with each parent. That arrangement remained in place

until this matter came on for trial in June 2022.

In January 2021, Mother and Mr. Morris had a child together. Mother testified that

Lucas and his half-brother have a close, loving relationship. Additionally, Mother testified

that Lucas has built relationships in Texas with Mother’s in-laws, as well as Mr. Morris’s

parents. However, Lucas also has a strong bond with his family in Tennessee. Virtually all

of Father’s extended family lives in Cookeville, Tennessee, and Lucas has spent a large

portion of his young life with Father’s family. Throughout Lucas’s life, Father’s family has

gotten together several times a week to share meals, and Lucas’s paternal grandparents take

Lucas to the beach multiple times per year. Lucas is particularly close with his paternal

grandmother, Sheila Bumbalough, and his great aunt, Barbara Roberts.

On June 22, 2022, the trial court held a final hearing on Father’s Amended Petition

to Establish Paternity and Residential Parenting for Lucas. After weighing the statutory

best interest factors set forth in Tennessee Code Annotated § 36-6-106, the trial court

3

Mother testified that she chose to obtain a Texas phone number. She also testified that the house

they moved to in Texas was not registered with the post office. Thus, she had to use a Post Office Box

number for written correspondence until a street address was assigned.

4

The case was transferred to Putnam County where Father had just moved because both parents

had left Sumner County and Father was the only parent residing in Tennessee at the time.

3

entered a final order designating Father as the primary residential parent, granting Father

custody of Lucas in Tennessee during the school year, and granting Mother custody in

Texas during school breaks. The trial court also vested Father with decision making

authority for educational decisions and set child support based upon the parties’ roughly

equal annual incomes.

In its analysis, the trial court found that most statutory factors weighed equally for

the parties or were not relevant; however, other factors favored Father. The court was

primarily influenced by the fact that the parties lived in Tennessee when they met, that

Lucas was born in Tennessee, that Tennessee was the home of the parties for several years,

and the strong family relationships and community ties that Lucas has in Tennessee as

opposed to Texas. Additionally, the court expressed concerns about Mother’s willingness

to facilitate and encourage a close and continuing parent-child relationship between Lucas

and Father. The trial court’s best interest findings include the following:

As to each parent’s past and potential for future performance of parenting

responsibilities, including the willingness and ability of each of the parent to

facilitate and encourage a close and continuing parent-child relationship

between the child and both of the child’s parents, the Court has no question

that either parent will continue exceptional parenting abilities while Lucas is

in his or her care. The Court is confident from the evidence of Father’s text

messages to the Mother and his lengthy testimony that he will encourage

Lucas to have a good relationship with his Mother. The Court has concerns

about the Mother’s reciprocity in that encouragement. Mother’s demeanor

regarding this issue and others was very flat and matter of fact. Mother even

testified that she believes that “my relationship as a mother is more important

than his as a father.” The Court also finds that Mother was not encouraging

of the Father/son relationship when she abruptly left Tennessee and moved

to Texas without even telling the Father. Lucas went nine days without being

able to speak to his father. Even though the Mother had the legal right to

move to Texas, the way she did it as it pertained to the child and his

relationship with his father, who was exercising 50% parenting time, was not

in the child’s best interest. Encouraging and facilitating a future parent and

child relationship clearly favors the Father.

After finding that both “parents are quite capable of providing Lucas with food,

clothing, medical care, education and any other necessary care that he may need,” and that

they have “been equal caregivers of Lucas since his birth,” and that “both parents have a

strong love and affection for Lucas as he does with his parents,” the court went on to find:

Taking into account the emotional needs and developmental level of Lucas,

the Court was impressed with the testimony of Tammy Fontenot, who has

been the owner of London Bridge Daycare for 25 years. Mrs. Fontenot

4

testified that Lucas is developmentally ready for kindergarten without

reservation. She testified that Lucas is a very smart and loving child, has an

excellent relationship with his classmates, 12 of which he started daycare

with as a baby. Mrs. Fontenot was clear that in February of 2020, that Lucas

was not “regressing” as testified to by the Mother. He had no sleep issues at

daycare, he was not forgetting his numbers, nor was he speaking “gibberish”,

pushing kids at school or acting out in any way. Her testimony was just the

opposite of what Mother claimed in her email to Father about the

“regression”. Father also testified that there was no regression as referenced

by the Mother. In fact, Mother testified that now Lucas is extremely loving,

outgoing, developmentally on target, kind, shares with others and is obedient.

Mother also testified that Father helped develop these characteristics in

Lucas, all while splitting time with parents who live 1,500 miles apart. This

Court finds that Mothers claim of the regression is unfounded and this was

part of the plan by Mother to minimize Fathers equal time in her quest to

leave for Texas with her fiancé.

. . . .

The issue of the child’s interactions and interrelationship with siblings, other

relatives and step-relatives, and mentors as well as the child involvement

with the child’s physical surroundings, school, or other significant activities

weighs heavy on this Court. Lucas has a 16-month-old half sibling in Texas

that he undoubtedly loves. Due to the young ages of the parties there is very

good likelihood that he will have more half siblings from either of both

parents. Lucas also has a step-father that appears to care for him very much.

Mother testified that Lucas has step-grandparents, step aunts and uncles and

step-cousins that live near them In Texas. There are no other blood relatives

living near them. Her parents now live in Florida and visit infrequently.

Mothers testimony was that her parents have visited three to four times ln

that last 2.25 years. The Court finds that Lucas has an extraordinary

relationship with his relatives in Tennessee, specifically in Cookeville. The

paternal grandmother, Sheila Bumbalough, testified that her son, the Father,

was an only child and Lucas is their only grandchild. The family lives on a

small farm where the Father grew up. Grandmother and her sister share a

swimming pool between their homes that Lucas loves. The families

constantly get together and share meals several times per week. The

grandparents also take the Father and Lucas to the beach at least two times

per year. Mrs. Bumbalough’s love for Lucas was very evident in her

emotional testimony. His great aunt, Barbara Roberts, also testified that she

has been a big part of Lucas life since he was born. Lucas comes to her house

often, which is at the Cookeville Country Club. She and her husband spend

quality time with Lucas and he loves riding her husband motorized cart,

5

playing golf and swimming at the pool. Lucas nicknamed her “Darling” at

an early age. Her love for Lucas was very evident. Lucas and his Cookeville

family have deep, deep roots and the love they have for him and the

relationships they share are overflowing. Lucas has spent the majority of his

young life in Cookeville. The Father testified that Lucas knows many people

in town upon seeing them because of their history here and their love for

Lucas. The Court was very impressed by such obvious love, care and

involvement this family has in Lucas’s life. Although Lucas has just

graduated from London Bridge Daycare, the Court was impressed by the

testimony of Mrs. Fontenot. Even she has a personal love for Lucas, one of

79 of her students. She said he is a model student and his classmates miss

him when he’s gone for six weeks and ask about him. She has discussed with

the Father about Lucas attending Park View Elementary school and it being

a good fit for Lucas. This statutory factor clearly weighs heavily in the

Fathers favor and is a significant best interest factor for the Courts

consideration in this case.

Having considered the above factors, as well as other factors the court found to favor

both parents equally, the court reasoned:

The Court has thoroughly considered the testimony and the evidence

presented in this case. The Court, after applying the statutory factors in TCA

§ 36-6-106, finds that both parents would be equally fit for raising Lucas as

the primary residential parent. However, even though the statutory factors

are close to equal for the parents in most areas, the factors slightly favor the

Father. Therefore, the Court designates the Father, Travis Bumbalough, as

the primary residential parent of Lucas, said designation being in the best

interest of the child. The Courts strongest considerations were the family

relationships and community ties that Lucas has in Tennessee as opposed to

Texas. The Court also considered the fact that the parties lived In Tennessee

when they met, Lucas was born in Tennessee and Tennessee was the home

of the parties for several years. The Court was also swayed by the testimony

of the Mother and feels that she would not facilitate and encourage a close

and continuing relationship with the Father. On the contrary, the Court was

compelled by not only by the testimony of the Father but his past actions and

texts messages that he will undoubtedly encourage and facilitate a close

relationship with Lucas and the Mother.

Based on the above and other findings, the court ruled that Lucas would live with

Father in Tennessee during the school year and spend the majority of the summers and

holidays with Mother, including Spring and Fall school breaks. Further, the court ordered,

“Father shall make the educational decisions, both parties will make non-emergency health

care decisions and extracurricular decisions when Lucas is in his or her respective care,

6

and both will make religious upbringing decisions for Lucas and they will equally divide

any uncovered medical expenses.” The court also set child support and ordered counsel to

draft a Permanent Parenting Plan consistent with its rulings.

This appeal followed.

ISSUES

Mother raises one issue for our consideration, stated as follows:

Whether the trial court erred by designating a father with no prior custody

order the Primary Residential Parent of a minor child born out of wedlock

where the Mother relocated from Tennessee to Texas when Child was

approximately three and one-half years old.

STANDARD OF REVIEW

Decisions regarding parenting arrangements are factually driven and require careful

consideration of numerous factors. Holloway v. Bradley, 230 S.W.2d 1003, 1006 (Tenn.

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

therefore better positioned to evaluate the facts than appellate judges. Rousos v. Boren, No.

M2013-01568-COA-R3-CV, 2014 WL 4217415, at *11 (Tenn. Ct. App. Aug. 26, 2014);

Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus, decisions

regarding parenting plans are “peculiarly within the broad discretion of the trial judge.”

Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).

Discretionary decisions are reviewed under the “abuse of discretion” standard of

review. See Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). The abuse of

discretion standard does not permit reviewing courts to substitute their discretion for the

trial court. Id. Nevertheless, the abuse of discretion standard of review does not immunize

a lower court’s decision from meaningful appellate scrutiny:

Discretionary decisions must take the applicable law and the relevant facts

into account. An abuse of discretion occurs when a court strays beyond the

applicable legal standards or when it fails to properly consider the factors

customarily used to guide the particular discretionary decision. A court

abuses its discretion when it causes an injustice to the party challenging the

decision by (1) applying an incorrect legal standard, (2) reaching an illogical

or unreasonable decision, or (3) basing its decision on a clearly erroneous

assessment of the evidence.

7

Id. (citations omitted). Discretionary decisions require “a conscientious judgment,

consistent with the facts, that takes into account the applicable law.” White v. Beeks, 469

S.W.3d 517, 527 (Tenn. 2015) (citing Lee Med., Inc., 312 S.W.3d at 524).

Thus, we will review the trial court’s decision to designate Father as the primary

residential parent and determine, where applicable, whether there is a factual basis for the

decision in the record, whether the court properly identified and applied the correct legal

principles, and whether the decision is within the range of acceptable alternative

dispositions.5 See Lee Med., Inc., 312 S.W.3d at 524.

When “[a]pplying this framework, we look first at whether the factual basis for the

trial court’s decision is supported by evidence in the record.” Harmon v. Hickman Cmty.

Healthcare Servs., Inc., 594 S.W.3d 297, 306 (Tenn. 2020). We “review the underlying

factual findings using the preponderance of the evidence standard contained in Tenn. R.

App. P. 13(d).” Lee Med., Inc., 312 S.W.3d at 525. We then look at whether the trial court

identified and applied the correct legal principles relevant to its decision. See Harmon, 594

S.W.3d at 306. Our review of the trial court’s legal determinations is “de novo without any

presumption of correctness.” Lee Med., Inc., 312 S.W.3d at 525. Finally, we look at

“whether the [trial] court’s decision was in the range of acceptable alternative

dispositions.” Id. When doing so, we are mindful of the inherent limitations in the abuse

of discretion standard:

[B]ecause, by their very nature, discretionary decisions involve a choice

among acceptable alternatives, reviewing courts will not second-guess a trial

court’s exercise of its discretion simply because the trial court chose an

alternative that the appellate courts would not have chosen. Accordingly, if

the reviewing court determines that reasonable minds can disagree with the

propriety of the decision, the decision should be affirmed.

Harmon, 594 S.W.3d at 306 (quoting State v. McCaleb, 582 S.W.3d 179, 186 (Tenn.

2019)).

5

In Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010), the Tennessee Supreme Court

provided a framework for determining whether a trial court properly exercised its discretion:

[R]eviewing courts should review a [trial] court’s discretionary decision to determine (1)

whether the factual basis for the decision is properly supported by evidence in the record,

(2) whether the [trial] court properly identified and applied the most appropriate legal

principles applicable to the decision, and (3) whether the [trial] court’s decision was within

the range of acceptable alternative dispositions.

Id. at 524.

8

ANALYSIS

“The procedure for establishing parentage and custody for a child born out of

wedlock is governed by Tenn. Code Ann. § 36–2–311.” Graham v. Vaughn, No. M2012-

01982-COA-R3CV, 2014 WL 356975, at *2 (Tenn. Ct. App. Jan. 30, 2014). “Once the

parentage of the child is established, parental access is to be determined pursuant to Chapter

6 of Title 36.” Id. (citing Tenn. Code Ann. § 36–2–311(a)(10)).

In any Tennessee proceeding “where the custody of a minor child or minor children

is a question,” Tenn. Code Ann. § 36-6-101(a)(1), the court must “make a custody

determination,” Armbrister, 414 S.W.3d at 693. “By statute as well as case law, the welfare

and best interests of the child are the paramount concern in custody, visitation, and

residential placement determinations, and the goal of any such decision is to place the child

in an environment that will best serve his or her needs.” Burden v. Burden, 250 S.W.3d

899, 908 (Tenn. Ct. App. 2007) (quoting Cummings v. Cummings, No. M2003-00086-

COA-R3-CV, 2004 WL 2346000, at *5 (Tenn. Ct. App. Oct. 15, 2004)).

In doing so, the trial court must determine which of the parents is comparatively

more fit to have primary residential responsibility of the child. See Grissom v. Grissom,

586 S.W.3d 387, 392 (Tenn. Ct. App. 2019) (quoting Chaffin v. Ellis, 211 S.W.3d 264, 286

(Tenn. Ct. App. 2006)) (“In choosing which parent to designate as the primary residential

parent for the child, the court must conduct a ‘comparative fitness’ analysis, requiring the

court to determine which of the available parents would be comparatively more fit than the

other.”). In engaging in this analysis, the court must consider the relevant factors set out in

Tennessee Code Annotated § 36-6-106(a). Chaffin, 211 S.W.3d at 286 (footnote omitted).

When the petition was filed in this case, the statute identified the following fifteen

6

factors to be considered by the court in determining child custody:

(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;

6

Father’s petition was filed in March 2020. The General Assembly amended the statute effective

March 18, 2022, by adding a sixteenth factor. See 2022 Tenn. Laws Pub. Ch. 671 (H.B. 1866), eff. March

18, 2022. Courts consider the factors in effect at the time the petition was filed. See C.W.H. v. L.A.S., 538

S.W.3d 488, 497–98 (Tenn. 2017) (noting that statutes are presumed to operate prospectively and not

retroactively, unless the statute is procedural in nature). Nevertheless, the sixteenth factor, “[w]hether a

parent has failed to pay court-ordered child support for a period of three (3) years or more,” is inapplicable

to the facts of this case. Tenn. Code. Ann. § 36-6-106(a)(16).

9

(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…;

(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…;

(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…;

(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.

10

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.

Tenn. Code Ann. § 36-6-106(a).

Mother’s one issue has several subparts in that she challenges the trial court’s

findings of fact concerning several of the best interest factors. Her principal contentions

are that the trial court erred in finding that best interest factors (2) and (9) clearly favored

Father and, in this regard, she contends that the trial court erred as a matter of law by

separating Lucas from his half-sibling based on her assertion that there is a “well settled

preference of courts in this state to place half-siblings together.” Furthermore, she contends

that the trial court’s findings concerning factor (7) are not supported by the record, and that

these findings erroneously “influenced the trial court’s analysis under factor (2).” Mother

also contends that factors (1), (5), (8), and (10) favor her while the trial court erroneously

found they favored neither parent. Mother does not challenge the trial court’s analysis of

factors (4), (6), (11), (12), and (14), and agrees that factors (3) and (13) do not apply to the

facts of this case. We will discuss the relevant factors in turn.

Factor (9): We begin our discussion by addressing Mother’s primary contention

that the trial court misapplied the law in determining that best interest factor (9) favored

Father. Factor (9) concerns 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.” Tenn. Code Ann. §

36-6-106(a)(9). In its analysis of this factor, the trial court discussed Lucas’s relationship

with his half-sibling, stating:

The issue of [Lucas’s] interactions and interrelationship with siblings, other

relatives and step-relatives, and mentors as well as [Lucas’s] involvement

with [Lucas’s] physical surroundings, school, or other significant activities

weighs heavy on this Court. Lucas has a 16-month half sibling in Texas that

he undoubtedly loves. Due to the young age of the parties there is a very good

likelihood that he will have more half siblings from either or both parents.

The trial court then discussed in detail Lucas’s familial relationships in Texas and

Tennessee. Based on the deep roots that Father’s family has in Cookeville and Lucas’s

11

“extraordinary relationship with his relatives in Tennessee, specifically in Cookeville”, the

court found that best interest factor (9) “clearly weighs heavily in Father’s favor.”

In her brief, Mother suggests that this conclusion was in error because, she contends,

there is a “well settled preference of courts in this state to place half-siblings together.” We

note, however, that Mother cites no authority to support this contention and we have found

no authority that supports Mother’s half-sibling argument.

Generally speaking, Tennessee courts have held that it is not appropriate to separate

siblings by a custody order. Baggett v. Baggett, 512 S.W.2d 292, 293–94 (Tenn. Ct. App.

1973); Richardson v. Richardson, No. W2000-02374-COA-R3-CV, 2001 WL 687074, at

*5 (Tenn. Ct. App. June 14, 2001) (citing In re S.B., No. M1999-00140-COA-R3-CV, 2000

WL 575934, at *5 (Tenn. Ct. App. May 12, 2000)). However, while there is a presumption

against separating siblings, this principle must give way to other considerations if the best

interest of a child so dictates. Id.; Strickland v. Strickland, No. M2012-00603-COA-R3-

CV, 2012 WL 6697296, at *14 (Tenn. Ct. App. Dec. 21, 2012) (“As this court has

recognized on several occasions, a parenting schedule that separates siblings is

discouraged; however, the best interests of the child should be the foremost

consideration.”). Indeed, it is well established that the preference for siblings to remain

together is not a controlling factor. In re S.B., No. M1999-00140-COA-R3-CV, 2000 WL

575934, at *5 (Tenn. Ct. App. May 12, 2000). Rather, sibling relationships are “simply a

factor for the court to consider in determining the best interest of the child.” Id; see In

the Matter of M.W.A., 980 S.W.2d 620, 623 (Tenn. Ct. App. 1998) (keeping siblings

together was only one of the three factors the court used in determining the children’s best

interest).

In the case at bar, the trial court applied the appropriate statutory factor, and, citing

to the facts in the record, found that Lucas’s familial relationships in Tennessee were “a

significant best interest factor for the court’s consideration in this case.” Moreover,

Mother’s contention that all half-siblings must be placed together in a custody arrangement

is unworkable. For example, if one of the parents was to marry three times or both parents

married twice and have multiple children with each new spouse, it would be plainly

unworkable for the courts to fashion a custody arrangement that allowed each child to

remain with all of their half-siblings. Thus, we find no merit to Mother’s contention that

the trial court erred, as a matter of law, by separating Lucas from his half-sibling.

As for the trial court’s findings of fact concerning factor (9), which pertains to the

child’s interactions and interrelationship with siblings, other relatives and step-relatives,

and mentors as well as the child involvement with the child’s physical surroundings,

school, or other significant activities – the court made extensive findings which we quoted

12

earlier in this opinion. In pertinent part, the trial court found that Lucas has a step-father

that appears to care for him very much as well as step-grandparents, step aunts and uncles

and step-cousins that live near them in Texas; however, there are no other blood relatives

living in Texas and Mother’s parents live in Florida and visit infrequently. By contrast, the

court found that Lucas has an extraordinary relationship with his relatives in Tennessee,

specifically in Cookeville where Father grew up and where his extended family constantly

gets together and share meals several times per week. The court specifically noted that

Sheila Bumbalough’s love for Lucas was very evident from her emotional testimony.

Further, his great aunt, Barbara Roberts, has been a big part of Lucas’s life since he was

born and Lucas visits her house often where she and her husband spend quality time with

Lucas. Further, the court found that Lucas and his Cookeville family have deep roots and

the love they have for him and the relationships they share are overflowing. Based on these

and other findings of fact, the court found that this statutory factor clearly weighed heavily

in the Fathers favor and that it was a significant best interest factor for the court’s

consideration in this case.

Having reviewed the record, we find the evidence preponderates in favor of the trial

court’s finding as to factor (9).

Factors (1) and (5): Best interest factors (1) and (5) both consider the extent of each

party’s parenting involvement. See Tenn. Code Ann. § 36-6-106(a)(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”); Tenn. Code Ann. § 36-6-106(a)(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”). Thus, we will consider them in tandem.

With respect to factor (1), the trial court found that “Lucas has a very good

relationship with his Father and Mother”, and that while “both parents shared equally in

the parenting responsibilities while the parties were together”, Mother “may have spent

51% of the time with Lucas for a very short time while Father was working outside the

home earning a living.” As for factor (5), the trial court found that “the parties have been

equal caregivers of Lucas since his birth”, although Mother “may have spent 51% of the

time with Lucas during short periods of time while the Father was working.” However, the

court also found that “Father took responsibilities for Lucas as soon as he came home from

work and all other times” and “both parents were involved in Lucas[‘s] medical care”, with

Mother taking Lucas to the appointment and Father meeting them there on almost every

occasion.

13

Mother argues that she has performed the majority of parenting responsibilities

because she has been a stay at home mom periodically throughout Lucas’s life while Father

worked, and because she had custody of Lucas for approximately 75% of February and

March of 2020. Mother also claims that she took greater responsibility for performing

parental responsibilities because she spent fifty-one percent of the time with Lucas and

“was present at every doctor appointment, for the full duration of the appointment, with

Father arriving later on “almost every occasion.”

As to Mother’s first argument, this court has noted that a mother’s care for a child

during the early months of a child’s life does not, by itself, make the mother the primary

caregiver. Brown v. Brown, 571 S.W.3d 711, 723 (Tenn. Ct. App. 2018). Thus, although

Mother stayed home with Lucas immediately after his birth, and the parties dispute the

frequency with which Father returned home during lunch to help care for Lucas during this

time, Mother’s care for Lucas during this period alone does not make her the primary

caregiver. Moreover, and significantly, the reason that Mother had custody of Lucas for

seventy-five percent of February and March 2020 was because she unilaterally changed

the parties’ custody schedule against Father’s strong objection and moved to Texas with

Lucas without notice to Father.

Mother’s argument that she has taken the greater responsibility for performing

parental responsibilities is also unconvincing. In Brown v. Brown, this court found that

Tennessee Code Annotated § 36-6-106(a) factors (1) and (5) favored the mother in that

case because the mother was primarily responsible for the parties’ child for fifty-eight

percent of the time. Id. Here, by contrast, Mother states that she was primarily responsible

for Lucas fifty-one percent of the time. The trial court did not consider a one-percent

difference in parenting involvement to be substantial enough to find that Mother performed

the majority of parenting responsibilities and the evidence in the record preponderates in

favor of the trial court’s finding as to factors (1) and (5).

Factors (2) and (7): Tennessee Code Annotated § 36-6-106(a)(2) concerns “[e]ach

parent’s . . . past and potential for 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”. A trial court is to consider in this analysis “the likelihood of each parent . . . to

honor and facilitate court ordered parenting arrangements . . . and . . . any history of either

parent . . . denying parenting time to either parent in violation of a court order.” Id. Factor

(7) focuses on the emotional needs and developmental level of the child. See Tenn. Code

Ann. § 36-6-106(a)(7).

Mother presents multiple arguments in regard to the trial court’s analysis of factor

(2). First, Mother claims that the trial court allowed its analysis of this factor to be

influenced by its analysis of factor (7). Namely, Mother argues that the trial court held

Mother’s relocation to Texas against her, effectively “punishing” her, by concluding that

14

her email to Father concerning Lucas’s regression was a fabrication and part of a larger

plan to limit Father’s time with Lucas.

Parenting plans should never be used to punish or reward the parents for their human

frailties or past mis-steps. Earls v. Earls, 42 S.W.3d 877, 885 (Tenn. Ct. App. 2000);

Turner v. Turner, 919 S.W.2d 340, 346 (Tenn. Ct. App. 1995); Long v. Long, 488 S.W.2d

729, 733 (Tenn. Ct. App. 1972). Instead, parenting plans should be used to advance the

children’s best interests by placing them in an environment that best serves their physical

and emotional needs. Luke v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983). Shofner v. Shofner,

181 S.W.3d 703, 716 (Tenn. Ct. App. 2004).

Because Mother claims that the trial court allowed its analysis of factor (2) to be

influenced by its analysis of factor (7), we begin with a discussion of the trial court’s

findings concerning factor (7), which concerns the emotional needs and developmental

level of the child.

As for factor (7), the trial court found that this factor weighed in favor of Father.

Citing the deposition testimony of London Bridge director Tammy Fontenot, in which she

testified that Lucas was doing well developmentally and was ready for kindergarten, the

court found that Lucas had not been “regressing” as testified to by Mother. Rather, the

court posited that “Mother’s claim of regression is unfounded” and that “this was part of

the plan by Mother to minimize Father’s equal time in her quest to leave for Texas with

her fiancé.” Mother notes that, in its final order, the trial court stated, “Mrs. Fontenot was

clear that in February of 2020, Lucas was not ‘regressing’ as testified to by Mother.”

Mother argues that Mrs. Fontenot did not testify to that fact.7 Instead, Mother insists that

the record indicates that Lucas was not enrolled in London Bridge from late 2018 to May

2020.

Here, the trial court’s conclusion that Mother’s claim of regression was

“unfounded” was based, in part, on the court’s implicit finding as to Mother’s credibility.

We afford considerable deference to this finding. As to Mrs. Fontenot’s deposition

testimony, because this is documentary evidence, we will draw our own conclusions with

regard to the weight and credibility of her testimony. See Excel Polymers, LLC v. Broyles,

302 S.W.3d 268, 271 (Tenn. 2009); Bohanan v. City of Knoxville, 136 S.W.3d 621, 624

(Tenn. 2004). Mrs. Fontenot testified that Lucas had been attending the London Bridge

school since 2017, but that there was a break in 2018, when Lucas was about two. Lucas

7

Mother asks that this Court to take judicial notice of the fact that Lucas would have been two

years old in October of 2018. Ms. Fontenot’s exact testimony was that she “had Lucas prior” and in response

to a question that she had Lucas “until two years old” Mrs. Fontenot’s response was “[s]omething on that

time frame”.

15

started back up in the program in 2020 and would attend for six-week periods at a time

when Father had custody of him. Mrs. Fontenot testified that she could not remember the

month that Lucas had started back up, but that she had shut down the school for five (5)

weeks from the end of March to May due to the pandemic. However, she stated that this

was “before Lucas started.” Thus, the trial court’s statement that, “Mrs. Fontenot was clear

that in February of 2020, Lucas was not ‘regressing’ as testified to by Mother” does not

appear to be supported by the record. (Emphasis added). Despite the confusion as to the

date, we find that the trial court properly considered Mrs. Fontenot’s testimony in

determining the emotional needs and development of Lucas. Mrs. Fontenot testified

generally that, during the time that Lucas attended London Bridge school, Lucas “always

behaved well” and that he was on target developmentally. This is on par with Mother’s

testimony that, as of now, Lucas is “extremely loving, outgoing, developmentally on target,

kind, and shares with others.”

Having reviewed the record, we find the evidence preponderates in favor of the trial

court’s overall finding concerning factor (7).

We now turn our attention to factor (2). Here, it is clear that the trial court’s main

consideration in evaluating factor (2) was Lucas’s bests interest and the record does not

indicate that the trial court was punishing Mother for moving to Texas. Rather, it is readily

apparent that the trial court was evaluating Mother’s likelihood of reciprocity in

encouraging a close parent child relationship between Father and Lucas. The secretive

manner in which Mother moved to Texas did not reflect a willingness to encourage their

relationship. Neither did Mother’s testimony wherein she directly stated that her

relationship with Lucas was more important than Father’s relationship with Lucas. The

trial court’s logic was clear as to this factor, and there is nothing in the record to indicate

that this decision was based on a desire to punish Mother. Instead, it is apparent that the

finding was factually based on the court’s assessment of Mother’s unilateral actions and

communications.

Second, Mother claims that the trial court ignored inconsistencies in Father’s

testimony and spoke about Father in “a broad positive manner” while not affording Mother

the same degree of deference. Although the trial court did not make any explicit credibility

findings in its final order, “in some cases, we may assume that the trial court found one

party more credible than another due to the trial court’s decision”. Kerst v. Upper

Cumberland Rental and Sales, LLC, No. M2014-00894-COA-R3-CV, 2015 WL 1416171,

at *3 (Tenn. Ct. App. Mar. 25, 2015). That is obviously the case here.

When it comes to live, in-court witnesses, appellate courts should afford trial courts

considerable deference when reviewing issues that hinge on the witnesses’ credibility

because trial courts are “uniquely positioned to observe the demeanor and conduct of

16

witnesses.” State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000). “[A]ppellate courts will not

re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing

evidence to the contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.

1999); see also Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d 352,

360 (Tenn. 2011). In order for evidence to be clear and convincing, it must eliminate any

“serious or substantial doubt about the correctness of the conclusions drawn from the

evidence.” State v. Sexton, 368 S.W.3d 371, 404 (Tenn. 2012). Whether the evidence is

clear and convincing is a question of law that appellate courts review de novo without a

presumption of correctness. Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 515 (Tenn.

2013).

Here, the final order reflects an implicit credibility finding in Father’s favor. While

Mother argues that inconsistencies in Father’s testimony present clear and convincing

evidence that Father is not a credible witness, she has failed to identify evidence which we

find clear or convincing. To the contrary, we find the evidence preponderates in favor of

the trial court’s implicit finding. See State v. Binette, 33 S.W.3d at 217 (We extend a high

degree of deference to trial courts’ credibility determinations, and we will not overturn

such determinations absent clear and convincing evidence to the contrary).

We also note that the trial court’s findings on this issue are based in part on

documentary evidence, and appellate courts are not required to give similar deference to a

trial court’s findings of fact based on documentary evidence such as depositions,

transcripts, or video recordings. Kelly v. Kelly, 445 S.W.3d 685, 693 (Tenn. 2014). When

findings are based on documentary evidence, an appellate court’s ability to assess

credibility and to weigh the evidence is the same as the trial court. Id. Accordingly, when

factual findings are based on documentary evidence, an appellate court may draw its own

conclusions with regard to the weight and credibility to be afforded that documentary

evidence. Id.

In her appellate brief, Mother relies on Exhibits 1 and 3 as serving to undermine

Father’s oral testimony that he did not see any regressing behaviors from Lucas. In Exhibit

1, Father was upset that Mother would insinuate that he was responsible for any regression.

In Exhibit 3, Father stated that he did not know why the parties could not go back to their

original fifty-fifty schedule. To this, Mother responded “Lucas still needs the schedule that

he is currently on. There are still regressions I am working with him on very routinely”, to

which Father replied, “I can work with him just as much as you can.” Father does not

contradict his oral testimony in these exhibits. Rather, it is clear that Father was merely

attempting to work with Mother and find a way to get back to the parties original parenting

plan. We are unpersuaded by Mother’ reliance on these two exhibits as was the trial court.

Third, Mother argues that the trial court erred in finding for Father on factor (2)

because there is no evidence that Mother’s tone of voice or opinions of her role in Lucas’s

life have negatively impacted Lucas. Factor (2) does not evaluate whether or not a parent’s

demeanor, tone of voice, or opinions negatively affect a child. Instead, it considers whether

17

a parent will be willing to facilitate a close parent child relationship between the child and

the other parent. Mother’s testimony regarding her role in Lucas’s life as opposed to

Father’s and whether she would likely work with Father to facilitate a close relationship

between Lucas and Father reveals Mother’s reluctance to foster a compatible co-parenting

relationship, as found by the trial court. Thus, the trial court properly took these facts into

consideration in its evaluation of factor (2).

Mother also argues that her two-year compliance with the court’s parenting order is

the best evidence of her willingness to co-parent, and that the text messages which the trial

court found favorable to Father likewise paint Mother in a favorable light. As to her

compliance with the parenting plan, Mother cites the portion of Tennessee Code Annotated

§ 36-6-106(a)(2) that directs trial courts to consider “any history of either parent or any

caregiver denying parenting time to either parent in violation of a court order” in its

evaluation of factor (2). Here, both parties complied with the parenting order. Even if the

trial court had considered Mother’s past compliance with the parenting order in their

evaluation of factor (2), it would have found that this fact also weighed equally in Father’s

favor. Similarly, even if the trial court had found that the text messages that it found

favorable to Father also reflected positively on Mother, this finding would not have tipped

the scale in Mother’s favor.

Having reviewed the record, we find the evidence preponderates in favor of the trial

court’s finding concerning factor (2) as well as factor (7). Furthermore, we find no merit

to Mother’s contention that the trial court erroneously allowed its analysis of factor (2) to

be influenced by its analysis of factor (7).

Factor (4): The trial court found that factor (4) weighed equally for the parties, since

both parents are capable of providing Lucas with food, clothing, medical care, education,

and any other necessities that he may need. See Tenn. Code Ann. § 36-6-106(a)(4) (“The

disposition of each parent to provide the child with food, clothing, medical care, education

and other necessary care”). Additionally, the court found that both parents are involved in

Lucas’s pre-K education. Mother does not dispute this and the evidence in the record

preponderates in favor of this finding.

Factor (6): With respect to factor (6), the trial court found that “both parents have

a strong love and affection for Lucas as he does with his parents.” See Tenn. Code Ann. §

36-6-106(a)(6) (“The love, affection, and emotional ties existing between each parent and

the child”). Mother does not dispute this and the evidence in the record preponderates in

favor of this finding.

Factors (8) and (10): As for factor (8), the court found that “each parent is morally,

physically, and emotionally fit to parent Lucas.” See Tenn. Code Ann. § 36-6-106(a)(8)

(“The moral, physical, mental and emotional fitness of each parent as it relates to their

ability to parent the child…”). The court expressed concern that Father had moved a

18

girlfriend into the home where he and Lucas were residing; however, that relationship had

ended. Moreover, the court dealt with this issue by ordering that “Father shall not have any

paramours overnight in the home while Lucas is present.”

As for factor (10), the trial court found that the six-week parenting schedule,

although “somewhat stable and satisfactory”, will no longer be workable for Lucas as he

begins public school. See Tenn. Code Ann. § 36-6-106(a)(10) (“The importance of

continuity in the child’s life and the length of time the child has lived in a stable,

satisfactory environment.”). Thus, the court stated that “Lucas will require a more stable

schedule where he will spend the school year with one parent and the majority of the

summers and holidays with the other parent.”

Mother argues that the trial court should have weighed factors (8) and (10) in her

favor because Father’s decision to introduce a girlfriend to Lucas so rapidly calls into

question Father’s emotional fitness and indicates an inclination to place his romantic

desires above what is best for Lucas. Mother, however, concedes that this failed

relationship does not approach the level of calling into question Father’s overall fitness to

parent. Similarly, the trial court did not find that Father’s previous relationship made him

unfit to parent Lucas. Instead, while the court expressed “concern” that Father moved a

girlfriend into the home where he and Lucas resided, it noted that the relationship had

ended and ordered that Father not cohabitate in the future.

The courts of this state have held that a court should not judge a parent by a standard

of perfection. Shofner v. Shofner, 181 S.W.3d 703, 716 (Tenn. Ct. App. 2004); Morgan v.

Morgan, No. E2011-00164-COA-R3CV, 2012 WL 1939792, at *10 (Tenn. Ct. App. May

30, 2012). Here, the record demonstrates that Father has made Lucas a priority in his life.

Additionally, Lucas has spent the majority of his life in Cookeville, and has significant

family and community ties there. A single failed relationship is not sufficient to indicate

that Father is emotionally unfit to parent Lucas or that his home is an unstable environment

in which to raise Lucas. Thus, we find that the evidence in the record preponderates in

favor of the trial court’s finding as to factors (8) and (10).

Factor (11): As for factor (11), the trial court found “no evidence of physical or

emotional abuse to Lucas and there were no credible suggestions of any abuses.” See Tenn.

Code Ann. § 36-6-106(a)(11) (“Evidence of physical or emotional abuse to the child, to

the other parent or to any other person…”). Mother does not dispute this and the evidence

in the record preponderates in favor of this finding.

Factor (12): In regard to factor (12), the trial court had “no concerns about anyone

living in or frequenting the home of either party” as Father now “lives in his home with

Lucas only”, and Mother “lives in her home with her husband, their baby, and Lucas.” See

Tenn. Code Ann. § 36-6-106(a)(12) (“The character and behavior of any other person who

19

resides in or frequents the home of a parent and such person’s interactions with the child”).

Mother does not dispute this and the evidence in the record preponderates in favor of this

finding.

Factor (14): Finally, in considering factor (14), the court noted that both parents

work Monday through Friday and have flexible schedules with weekends and most

holidays off. See Tenn. Code Ann. § 36-6-106(a)(14) (“Each parent’s employment

schedule, and the court may make accommodations consistent with those schedules”). The

trial court found that both parents would be able to drop Lucas off at school and pick him

up. Additionally, both Mother and Father have family that could assist them in picking up

Lucas from school if needed. Mother does not dispute this and the evidence in the record

preponderates in favor of this finding.

As noted above, we find the evidence preponderates in favor of the trial court’s

findings of fact concerning each of the best interest factors discussed above. Although the

trial court found that more factors are favorable to Father, “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 [best interest] analysis.” Solima, 2015 WL

4594134, at *4; see also Paschedag v. Paschedag, No. M2016-00864-COA-R3-CV, 2017

WL 2365014, at *5 (Tenn. Ct. App. May 31, 2017) (noting that custody litigation should

not be decided “by simply tallying up wins and losses.”).

As it concerns residential placement determinations, “the goal of any such decision

is to place the child in an environment that will best serve his or her needs.” Burden v.

Burden, 250 S.W.3d 899, 908 (Tenn. Ct. App. 2007) (quoting Cummings v. Cummings,

No. M2003–00086–COA–R3–CV, 2004 WL 2346000, at *5 (Tenn. Ct. App. Oct. 15,

2004)). In doing so, the trial court must determine which of the parents is comparatively

more fit to have primary residential responsibility of the child. See Grissom, 586 S.W.3d

at 392.

In determining that Father was better suited to function as Lucas’s primary

residential parent and that Lucas should reside with Father in Tennessee during the school

year, the trial court focused on four factors with two of the factors being given the strongest

consideration, those being the family relationships and community ties that Lucas has in

Tennessee as opposed to Texas. The trial court also considered the fact that Lucas was born

in Tennessee and Tennessee was the home of the parties for several years. The trial court

was also swayed by the testimony of Mother and her actions, which indicated that she

would not facilitate and encourage a close and continuing relationship with Father, while

the trial court found that Father would undoubtedly encourage and facilitate a close

relationship with Lucas and the Mother.

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

20

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). Accordingly, we

affirm the trial court’s decision designating Father as the primary residential parent and

adopting Father’s proposed permanent parenting plan, as modified by the trial court.

IN CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed in all respects.

Costs of appeal are assessed against the appellant, Rachel M. (Hall) Morris.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

21