Karthik Rajendran v. Mary Florence Rajendran

09/16/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 7, 2020 Session

KARTHIK RAJENDRAN v. MARY FLORENCE RAJENDRAN

Appeal from the Circuit Court for Sumner County

No. 2017-CV-600 Joe Thompson, Judge

___________________________________

No. M2019-00265-COA-R3-CV

___________________________________

Mother appeals the trial court’s decision to award the parties equal parenting time and to

allow the parties to make major educational decisions jointly. We reverse the trial court’s

decision to order alternating weekly parenting time and vacate the trial court’s decision

regarding major educational decisions.

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

Part; Vacated in Part; and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD

B. GOLDIN and KENNY ARMSTRONG, JJ., joined.

M. Allen Ehmling, Gallatin, Tennessee, for the appellant, Mary Florence Rajendran.

Brandon R. Meredith, Gallatin, Tennessee, for the appellee, Karthik Rajendran.

OPINION

BACKGROUND

Plaintiff/Appellee Karthik Rajendran (“Father”) and Defendant/Appellant Mary

Florence Rajendran (“Mother”) were married in May 2013 and had a daughter in February

2015. Father filed a complaint for divorce in Sumner County Circuit Court (“the trial

court”) on June 24, 2017. As the litigation progressed, both parties sought to be named

primary residential parent to their daughter. The trial court entered an agreed order setting

a pendente lite parenting schedule where Father would receive parenting time from

Thursday night to Sunday night three weeks per month.1 The issue of parenting time was

1

This plan allowed Father only 108 parenting days per year, compared to 257 for Mother.

not resolved during mediation and was set to be determined at trial. Both parties filed

proposed parenting plans before trial.

The trial court heard testimony on the matter on December 13, 2018. Only the

parties testified, both of whom requested to be named primary residential parent and to be

given sole decision-making authority over major educational decisions.2 Mother asked that

Father be awarded visitation consistent with the temporary parenting plan; Father asked

that the parties be granted equal parenting time.

Several issues concerning the child were discussed at trial, including the parties’

residences, educational plans, and visitation issues. At the time of trial, Father was renting

a home in Millersville, Tennessee.3 Father began living in the home in November 2018.

Father testified, however, that it was his preference to return to Williamson County, where

his job, his church, and even better schools were located. Nonetheless, Father later testified

that in lieu of returning to Williamson County, he was “willing” to purchase a home in

Hendersonville, Tennessee, due to its excellent schools. Father testified that he wanted to

move the child to a different daycare because it had a better facility and curriculum and

would increase her chances of being admitted into a magnet school.

Mother began residing in her current home in Gallatin, Tennessee, in November

2018. The home was purchased by Mother’s parents and would be gifted to Mother

following the divorce. Mother’s parents and extended family live in Virginia. Mother

denied that she had any intention of moving to be closer to her family, despite Father’s

belief otherwise. However, Mother testified that her family visits Tennessee often, with

the child’s maternal grandmother sometimes staying for months at a time. As such, the

child is able to maintain a close relationship with Mother’s extended family.

Although Mother was a stay-at-home parent during the marriage, by the time of

trial, Mother was working full time in the local high school as a French teacher. Father,

however, took issue with the local school district compared to the schools that he was

considering. In contrast, Mother testified that the child’s current daycare had a good

curriculum and that there were several options for education once the child reached

kindergarten age where she lived, including public, magnet, and private schools. Mother

testified that she disagreed with Father’s choice of daycare, which she said she learned

about only the day before trial. Mother testified, however, that she had previously visited

the proposed daycare and that she had concerns about the child attending there due to how

loud part of the school where the children spend a significant amount of time was.

Issues related to the temporary parenting plan were also discussed at trial. Father

2

Both parties agreed that some of the other decisions could be made jointly; only the trial court’s

ruling with regard to educational decisions is at issue in this appeal.

3

Father testified that although his address is Goodlettsville, he lives in Millersville.

-2-

admitted that while he had previously asked to have visitation with the child on Fridays

because he could work from home, he later decided to place the child in daycare on those

days. Although Mother asked to drive to Father’s residence to get the child on those days,

Father ultimately denied her that opportunity, believing that it would be held against him

later. Father also testified that it was appropriate for him to place the child in daycare

because Mother had allowed the child to attend a Mother’s Day Out program even when

she was not working.4 Father testified to another incident in which Mother asked that he

come to her driveway to pick up the child because she had car trouble. Father asked police

to accompany him to Mother’s home. When Father was unable to obtain a police escort,

he refused to pick up the child.

Father testified that his “paranoi[a]” that caused these incidents was the result of

Mother’s own bad conduct in taking out an order of protection against him in Virginia.

Father testified that the order caused him to lose contact with the child for approximately

one and one-half months. Father was arrested in Virginia after he admittedly violated the

order by having a friend contact Mother. Mother, however, later returned to the marital

home and dismissed the charge, as the charge threatened Father’s employment. Still,

Mother sought a second order of protection in Tennessee, which prevented Father from

seeing the child for seventeen days. Following a hearing, a permanent order of protection

was denied by the Tennessee court.

Mother also claimed that despite having phone calls with the child twice per week,

Father missed some twenty calls and often used his time to speak with Mother, rather than

the child. According to Mother, Father micromanaged her care of the child in an effort to

manipulate her and stay in contact.5 Other times, Mother claimed that Father refused to

discuss issues that arose during his own parenting time, including one incident where

Father would not explain why the child’s hair had been cut. Mother also testified that the

child is sometimes “very distressed” and “very clingy” upon returning to her from visits

with Father. Indeed, Mother testified that although Father had been given a chance to

develop a relationship with the child during the pendency of the divorce, she did not believe

he had done so. Mother therefore testified that the current plan in which she was given

substantially more time with the child was in the child’s best interest and should be

implemented permanently. Mother admitted, however, that the child was capable of

adapting if another plan was implemented.

Despite Mother’s claim that Father was using the child to manipulate her into

reconciling, Mother admitted that Father had not asked her to reconcile in the nine months

4

Mother testified that the parties agreed to the child’s enrollment in the program in order to expose

the child to other children and a school environment. The daycare where Father placed the child on his

Fridays was not the same program.

5

For example, Father told the child during one call to throw away her Halloween candy because it

was not safe. Other examples included Father allegedly demanding that the child be fed at a certain time or

that she be clothed in only certain fabrics.

-3-

prior to the trial. Mother further admitted that she had changed the child’s daycare without

prior notice to Father. Father testified that during his parenting time, he would allow

Mother to call the child every day and to see the child during his parenting time if there

were events or celebrations in which the child should be included. Both parties testified

that they regularly attended their respective church with the child and that the child was a

happy, healthy young girl. Mother testified extensively about her typical routine with the

child, her current home, and the child’s personality.

Father testified that he wanted the opportunity to take the child to India to visit with

his family for two weeks per year. Because of the distance, expense, and his parents’ health

issues, Father’s family cannot easily visit Father in the United States. Consequently, the

child has never physically met her extended family on Father’s side; they are able to

regularly Skype with the child. Mother testified that she was fearful that Father would take

the child and never return. Father admitted that India is not a party to the Hague Convention

and that he owned a home in India which he continued to build after his marriage, but

testified that he would never deprive the child of her Mother by absconding to India with

the child and never returning.

The trial court entered a final decree of divorce on January 11, 2019, that designated

Mother as the primary residential parent. From the entry of the order until June 30, 2019,

Mother was awarded substantially more time with the child. Beginning July 1, 2019,

however, each parent was awarded 182.5 days with the child on an alternating weekly

basis. The trial court further ordered that the parties would make all major decisions

jointly, including major educational decisions. The trial court ruled, however, that the child

would remain in her current daycare until the parties agree otherwise and that Father would

not be allowed to take the child to visit India.

Mother timely filed a notice of appeal on February 11, 2019, the same day that

Father filed a motion to alter or amend the permanent parenting plan. Therein, Father asked

for the trial court to allow him to enroll the child in a different daycare on his weeks with

the child. Father also asked that the parenting plan be modified to give him visitation on

certain Hindu and American holidays.6 The trial court largely denied Father’s motion,

except for granting Father parenting time during Diwali. After the record was filed in this

Court, we entered a show cause order on June 6, 2019, ordering that the parties obtain a

final judgment resolving a claim for alimony. A final judgment was entered on June 24,

2019.

ISSUES PRESENTED

Mother raises the following issues, which are taken from her appellate brief:

6

Father testified during trial that he converted to Christianity and attended a Christian church with

the child.

-4-

1. The Trial Court erred in its ruling that the facts and proof in this case

warranted equal parenting time and that this was in the best interest of the

minor child.

2. The Trial Court erred in its ruling that the parties should have joint

decision-making authority with regard to educational decisions.

STANDARD OF REVIEW

It is well settled that, in matters of child custody, visitation, and related issues, trial

courts are given broad discretion; consequently, appellate courts are reluctant to second-

guess a trial court’s determinations regarding these important domestic matters. See

Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013); Harwell v. Harwell, 612

S.W.2d 182, 185 (Tenn. Ct. App. 1980). “It is not the function of appellate courts to tweak

a [residential parenting schedule] in the hopes of achieving a more reasonable result than

the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). As explained

in Richards on Tennessee Family Law:

Appellate courts correct errors. When no error in the trial court’s ruling is

evident from the record, the trial court’s ruling must stand. This maxim has

special significance in cases reviewed under

the abuse of discretion standard. The abuse of discretion standard

recognizes that the trial court is in a better position than the appellate court

to make certain judgments. The abuse of discretion standard does not require

a trial court to render an ideal order, even in matters involving visitation, to

withstand reversal. Reversal should not result simply because the appellate

court found a “better” resolution.

Janet L. Richards, Richards on Tennessee Family Law § 9-2 (2d ed. 2004)

(quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). “An abuse of discretion

occurs when the trial court . . . appl[ies] an incorrect legal standard, reaches an illogical

result, resolves the case on a clearly erroneous assessment of the evidence, or relies on

reasoning that causes an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn.

2011). “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 685, 693 (Tenn. 2013) (quoting

Eldridge, 42 S.W.3d at 88).

DISCUSSION

This appeal involves two decisions by the trial court relative to the parties’ minor

-5-

child: (1) the equal parenting schedule; and (2) joint educational decisions. Mother argues

that both decisions were an abuse of discretion. The parenting schedule is governed by

Tennessee Code Annotated section 36-6-106:

(a) In a suit for . . . divorce, . . . 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;

(5) The degree to which a parent has been the primary caregiver, defined as

the parent who has taken the greater responsibility for performing parental

responsibilities;

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

the child;

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

(8) The moral, physical, mental and emotional fitness of each parent as it

relates to their ability to parent the child. The court may order an examination

of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if

necessary for the conduct of the proceedings, order the disclosure of

confidential mental health information of a party under § 33-3-105(3). The

-6-

court order required by § 33-3-105(3) must contain a qualified protective

order that limits the dissemination of confidential protected mental health

information to the purpose of the litigation pending before the court and

provides for the return or destruction of the confidential protected mental

health information at the conclusion of the proceedings;

(9) The child’s interaction and interrelationships with siblings, other relatives

and step-relatives, and mentors, as well as the child’s involvement with the

child’s physical surroundings, school, or other significant activities;

(10) The importance of continuity in the child’s life and the length of time

the child has lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the other parent

or to any other person. The court shall, where appropriate, refer any issues of

abuse to juvenile court for further proceedings;

(12) The character and behavior of any other person who resides in or

frequents the home of a parent and such person’s interactions with the child;

(13) The reasonable preference of the child if twelve (12) years of age or

older. The court may hear the preference of a younger child upon request.

The preference of older children should normally be given greater weight

than those of younger children;

(14) Each parent’s employment schedule, and the court may make

accommodations consistent with those schedules; and

(15) Any other factors deemed relevant by the court.

See also Tenn. Code Ann. § 36-6-404 (stating that the same factors should be used to

determine a residential schedule unless certain factors under Tennessee Code Annotated

section 36-6-406, which are not applicable here, are dispositive).

The trial court made oral findings as to each of the above factors that it incorporated

into its written order. Therein, the trial court ruled that five factors were not applicable,7

six factors were equal,8 and three factors favored Mother,9 although the trial court gave

some of these factors little weight. Mother asserts, however, that more factors favor her

and/or should have been given more weight by the trial court. We will therefore consider

7

These included factor three (3) regarding the refusal to attend a court ordered parent education

seminar, factor seven (7) regarding the emotional needs of the children, factor eleven (11) regarding

physical or emotional abuse, factor twelve (12) regarding the character of others residing in the home, and

factor thirteen (13) regarding the child’s preference.

8

These included factor one (1) regarding the strength and nature of the relationship between the

parent and the child, factor two (2) regarding the past and potential performance of responsibilities, factor

four (4) regarding the disposition of the parent to provide necessary care, factor six (6) regarding the love

and affection between the parent and child, factor eight (8) regarding the moral, physical, and mental fitness

of the parent, and factor fourteen (14) regarding the parents’ schedules.

9

These included factor five (5) regarding which parent was the primary caregiver, factor nine (9)

regarding the child’s interactions with relatives, and factor ten (10) regarding continuity.

-7-

each of the disputed factors in turn.10

Mother first asserts that the trial court erred in finding that factor one (1) was equal.

This factor considers the “[t]he 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)(1). With regard to this factor, the trial court specifically ruled that “even though the

mother has had more time, I do think the father has been able to take care of [the child’s]

daily needs when he’s had her. So I find that to be an equal factor.” Mother takes issue

with this finding, as the evidence demonstrated that she was the child’s primary caregiver

both prior to the divorce and following the parties’ separation. Moreover, Mother contends

that Father presented no evidence to show that he had a strong relationship with the child.

Indeed, the evidence indicated that Father chose to miss some of his time with the child,

by missing scheduled Skype calls and placing the child in daycare when he had specifically

promised to keep the child at home. Finally, Mother testified without dispute that the child

was sometimes upset following visits with Father and clingy toward Mother.

Father argues that the trial court was correct in its assessment of this factor, as

Mother seeks to use the temporary parenting plan, in which she was awarded more time

with the child, against him. According to Father, Mother’s position conflicts with

Tennessee Code Annotated section 36-6-406(e), which provides that “[i]n entering a

permanent parenting plan, the court shall not draw any presumptions from the temporary

parenting plan.” Father’s argument, however, ignores the reality that Mother was the

child’s primary caregiver well before the entry of the temporary parenting plan. Cf. Brown

v. Brown, 571 S.W.3d 711, 723 (Tenn. Ct. App. 2018), perm. app. denied (Tenn. Jan. 18,

2019) (“The trial court erred by only considering the parties’ division of parenting

responsibilities since the temporary parenting plan took effect; the court should have taken

a more holistic approach.”). Indeed, Father admitted in his testimony that Mother was “the

parent” to the child during the marriage while he worked. This factor therefore favors

Mother.

Mother also takes issue with factor six (6), concerning “[t]he love, affection, and

emotional ties existing between each parent and the child[.]” Tenn. Code Ann. § 36-6-

106(a)(6). The trial court made no factual findings concerning its ruling other than that this

factor was equal. Mother points to her own testimony that she enjoys a close and loving

relationship with the child, as well as her detailed testimony of the activities that she

pursues with the child. In contrast, Mother points out that Father offered no testimony

about his love, affection, or care for the child, outside of his testimony concerning his

church and his intentions regarding the child’s education. Father asserts that even though

he did not testify that he was close with the child or even that he loved the child, his strong

10

We will not tax the length of this opinion with the trial court’s findings as to the factors that are

not in dispute on appeal.

-8-

relationship with the child was evident from his other testimony. In particular, Father points

to his testimony that he wants the child to have the “best” life possible and the best

educational opportunities. Father also points to his testimony that the child enjoyed church

and had made friends there. Father further notes that Mother presented no evidence that he

did not love or care for the child.

This factor is a close question, and we are unfortunately without the benefit of any

specific findings from the trial court to inform our decision. It is true that Father’s testimony

was not specific with regard to his relationship with the child. Moreover, it appears that

Father sometimes declined to spend time with the child when given the opportunity.

Mother also testified without dispute that the child is sometimes distressed when returning

to her care, often becoming “clingy” toward Mother. On the whole, we must therefore

conclude that this factor indeed favors Mother, although not substantially, given that there

really was no dispute that Father does have love and affection for the child.

Mother next contends that the trial court erred in finding that factor nine (9) did not

weigh heavily in favor of Mother. Again, factor nine considers “[th]e 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)(1). With regard to this factor, the

trial court found in favor of Mother due to her role as primary caregiver, but ruled that the

factor was not dispositive. We agree that this factor favors Mother on the basis of more

than just her role as the child’s primary caregiver. The evidence presented was that

although Mother’s family lives in another state, they frequently visit and the child is quite

close to them. Father’s family, on the other hand, is generally unable to visit from India

due to the expense and health issues; as a result, the child has a closer relationship with

Mother’s family. Mother also testified extensively about the activities that the child pursues

in her care. Father offered no similar testimony other than taking the child to his church.

On the whole, we agree with the trial court that this factor favors Mother. Although we

also agree that this factor is not dispositive, we must conclude that it is not irrelevant to the

analysis.

Finally, Mother contends that factor ten (10), concerning continuity, weighs heavily

in her favor. Tenn. Code Ann. § 36-6-106(a)(10). The trial court found that this factor

favored Mother as she had been the primary caregiver, but only “very slightly[.]” Mother

contends that this factor indeed weighs in her favor and that it should be given considerable

weight. In support, Mother notes that she has been the child’s primary caregiver for her

entire life. Father argues again that it was only the temporary parenting plan that gave

Mother substantially more time with the child; however, Mother served as the primary

caregiver of the child even during the parties’ marriage. Father also asserts that the plan

giving Mother more time with the child was only a product of the circumstances at that

time because Mother was then a stay-at-home parent. Because Mother is now working,

Father asserts that there is no need to award her more time with the children. We agree that

-9-

the parties’ work schedules are a relevant factor in the determination. Work schedules,

however, are considered under a different factor, which the trial court found to be equal

between the parties. This factor simply asks about “the importance of continuity in the

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

environment[.]” The evidence shows that Mother has been the child’s primary caregiver

for her entire life. It is true that Mother has recently moved to a new home; however, the

move was necessary for purposes of the divorce. Mother’s family owns this home, and

Mother has full-time employment that indicates that she will remain in Gallatin long-term.

Nothing in the record indicates that Mother’s life in Gallatin is subject to upheaval in the

near future.

The testimony regarding Father’s future stability was less clear. At trial, Father

initially testified that he wanted to move back to Williamson County, where his job is and

where he believes the schools are better. Later, he stated that he would remain in Sumner

County if required, but would move to another city where the schools were allegedly better.

The trial court ruled, however, that no party would be allowed to move out of Sumner

County without a significant uphill battle. While there is no indication that Father will not

abide by the trial court’s ruling that he remain in Sumner County, a move still appears to

be in Father’s future. As such, the evidence was far less convincing that Father’s life will

not be subject to future upheaval. All of the facts considered, we must conclude that this

factor weighs in favor of Mother.

On the whole, then, five factors favor Mother, zero factors favor Father, and four

factors are equal. Unlike the trial court, however, we cannot conclude that the factors that

favor Mother should be given little weight. Here, even prior to the separation, Mother was,

by Father’s admission, “the parent” of the child. This fact, along with considerations of

stability and continuity, heavily weigh in Mother’s favor. In contrast, the love and affection

toward each parent, though slightly favoring Mother, holds little weight in Mother’s favor.

The fact that Mother has the most factors weighted in her favor does not end our

inquiry, however. Rather, this court has explained:

Ascertaining a child’s best interests does not call for a rote examination of

each of [the relevant] factors and then a determination of whether the sum of

the factors tips in favor of or against the parent. The relevancy and weight to

be given each factor depends on the unique facts of each case. Thus,

depending upon the circumstances of a particular child and a particular

parent, the consideration of one factor may very well dictate the outcome of

the analysis.

Solima v. Solima, No. M2014-01452-COA-R3-CV, 2015 WL 4594134, at *4 (Tenn. Ct.

App. July 30, 2015) (quoting In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)).

- 10 -

Moreover, section 36-6-106(a) does not limit consideration to only the enumerated

factors. Rather, courts may consider “[a]ny other factors deemed relevant by the court.”

Tenn. Code Ann. § 36-6-106(a)(15). The trial court made a multitude of additional oral

findings at the conclusion of trial that inform our analysis on this issue:

[Y]ou each have to trust the other. And I know there’s a lot of water behind

you that makes it difficult for either one of you to trust the other.

How we got here today, and if you dwell on everything that happened

up until today, you’ll never be able to co-parent [the child] as well as if you

just say today is day one. If you think about how you got here you’re going

to focus on how you met. How your personalities clashed with each other.

How you see the world differently. How you can’t agree on the time of day.

And that’s what will be forefront in your mind.

But the reality is, [the child] . . . will be best served by having a close

relationship with both of you. You both have to work on trusting the other to

do what’s best for her.

* * *

I’ve certainly seen enough to lead me to believe that the two of you owe it to

your daughter to try to reestablish trust with each other as co-parents, not as

husband and wife.

* * *

I think y’all should put that part of your life behind you. Figure out how you

can trust each other not as husband and wife, but as [the child’s] mom and

dad. And that has to start somewhere.

Somebody has to be willing to take the first step to trust. It doesn’t

have to be a big step but just a little step. But if each of you will try to build

a little bit of trust with the other over small issues, then you can build trust

over bigger issues and then your daughter will benefit from it.

The trial court gave specific directions to the parties concerning how they could

communicate, i.e., only as necessary regarding the child.11 Thus, the trial court found that

the parties currently had a lack of trust,12 could not agree on many things, and needed

11

The trial court’s specific comment on this issue was as follows:

When the two of you -- and this came up only with respect to you, [Father] -- when

you’re talking to your daughter, when she’s with her mother, you’re not to use those

conversations to talk to her mother. Period end of story. . . .

I expect the communications between the two of you from now on be either, A,

solely about [the child]. And you’ve agreed that we can limit those, I think, to text and e-

mails, have we not? I think that will probably be the best thing. Or if it’s about something

other than [the child], you contact your attorneys. All right? . . . I’m hoping that doesn’t

happen. I’m hoping that we can move past that.

12

Indeed, the trial court specifically noted during trial that based on earlier proceedings, it was

- 11 -

direction to effectively communicate.

Previously, this Court explained the necessary amount of cooperation that is

inherent in an equal parenting arrangement:

Joint custody arrangements are appropriate in certain limited

circumstances. However, while authorized by statute, joint custody

arrangements are generally disfavored by the courts of this state due to the

realization that such rarely serves the best interest of the child.

The statute does not require that joint custody be awarded only when

the parents are on friendly terms, however, in order for a joint custody

arrangement to serve the best interest of the child, it requires a “harmonious

and cooperative relationship between both parents.” “While we have stopped

short of rejecting this type of custody arrangement outright, divided or split

custody should only be ordered when there is specific, direct proof that the

child’s interest will be served best by dividing custody between the parents.”

Darvarmanesh v. Gharacholou, No. M2004-00262-COA-R3-CV, 2005 WL 1684050, at

*8 (Tenn. Ct. App. July 19, 2005) (citations omitted); see also In re Emma E., No. M2008-

02212-COA-R3-JV, 2010 WL 565630, at *6 (Tenn. Ct. App. Feb. 17, 2010) (applying

Darvarmanesh to the question of whether an equal parenting arrangement should have

been awarded); Zabaski v. Zabaski, No. M2001-02013-COA-R3-CV, 2002 WL 31769116

(Tenn. Ct. App. Dec.11, 2002) (finding joint custody appropriate where the record revealed

the parents were able to communicate effectively regarding their son, they shared parenting

and household duties while married, and one of the parties suggested a joint custody

arrangement); Martin v. Martin, No. 03A01-9708-GS-00323, 1998 WL 135613 (Tenn. Ct.

App. Mar. 26, 1998) (affirming the trial court’s award of joint custody due to the fact that

the parents had previously agreed to a joint custody arrangement); Gray v. Gray, 885

S.W.2d 353, 354-55 (Tenn. Ct. App. 1994) (finding that the evidence demonstrated that

both parents were very active in the child’s life and there was no apparent animosity

between the parties).

Since the decision in Darvarmanesh, some important changes to Tennessee law

occurred. In particular, Tennessee Code Annotated section 36-6-106(a) now provides that

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.

aware of what the “parties have done to each other to create an environment of distrust” and that “there’s

enough blame to go around.”

- 12 -

This Court, however, has indicated that this provision “does not mandate that the trial court

establish a parenting schedule that provides equal parenting time[.]” Gooding v. Gooding,

477 S.W.3d 774, 784 n.7 (Tenn. Ct. App. 2015). Rather,

The plain language of [s]ection 36-6-106(a) directs courts to order custody

arrangements that allow each parent to enjoy the maximum possible

participation in the child’s life only to the extent that doing so is consistent

with the child’s best interests. Indeed, the General Assembly has expressly

declared that in any proceeding involving custody or visitation of a minor

child, the overarching “standard by which the court determines and allocates

the parties’ parental responsibilities” is “the best interests of the child.” Tenn.

Code Ann. § 36-6-401(a) (2014)[.]

Flynn v. Stephenson, No. E2019-00095-COA-R3-JV, 2019 WL 4072105, at *7 (Tenn. Ct.

App. Aug. 29, 2019) (quoting In re Cannon H., No. W2015-01947-COA-R3-JV, 2016

WL 5819218, at *6 (Tenn. Ct. App. Oct. 5, 2016)). Indeed, despite the additional language

added to section 36-6-106(a), another section of our child custody and visitation statutory

scheme continues to provide that “neither a preference nor a presumption for or against

joint legal custody, joint physical custody or sole custody is established, 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)(i). As such, the maximum participation

“aspirational goal” cannot be read as a preference for equal parenting time that significantly

alters this Court’s prior decisions on this issue. Gooding v. Gooding, 477 S.W.3d 774, 778

(Tenn. Ct. App. 2015).

The same considerations that led the Court in Darvarmanesh to conclude that an

equal parenting arrangement was not appropriate are present in this case. Specifically, there

is continuing animosity between the parties and a marked lack of trust. Father continues to

believe that Mother will remove the child to another state, despite the fact that she has

planted strong roots in Tennessee. And Mother continues to believe that Father will

abscond with the child to India, where she has no legal recourse, even though Father insists

that he has no plans to permanently move there. Cf. Darvarmanesh, 2005 WL 1684050, at

*8 (noting that one consideration that weighed against joint parenting was the father’s

concern that the wife took the child overseas and would not communicate with the father).

Father even admitted that following Mother’s actions related to the orders of protection, he

could not trust Mother “ever again.” Father later testified that he would like to try to build

trust but that he did not “know if” he could get over Mother’s actions.

Father has also shown an unwillingness to be accommodating to Mother’s requests

for flexibility and cooperation in the parenting arrangement. See Dodd v. Dodd, 737

S.W.2d 286, 289–90 (Tenn. Ct. App. 1987) (“The custodial parent should expect and

receive cooperation and assistance from the non-custodial parent in every respect to serve

- 13 -

the best interests of their child or children.”). For example, Father ultimately refused to

allow Mother to pick the child up during his scheduled time after he placed the child in

daycare contrary to his stated intentions. Another time, Father refused to pick the child up

from Mother’s home without a police escort when Mother told him that she was having car

trouble. Although Father insists that such precautions were reasonable given Mother’s

decision to take out the order of protection in Virginia, we are unable to evaluate the

reasonableness of his actions without more evidence concerning the facts that led to the

order, particularly given Father’s own admission that he willfully violated the order.13 The

fact alone that Father feels the need to take substantial steps to avoid confrontation weighs

against a joint parenting arrangement. See id. (noting that the mother made substantial

effort to avoid confrontation). Mother also testified to her concerns over Father’s efforts to

control the child, through the timing of her meals to the cotton content of her underwear

while in Mother’s custody. See id. (noting the father’s concern that the mother’s family

was controlling).

Mother, however, was not without some blame. For example, Father testified that

Mother transferred the child to a different daycare without his input and without prior

notice. And of course, Mother did take out the order of protection on Father, only to return

to the marital home thereafter. Mother also made no allegations regarding threats, stalking,

or other harmful contact during the trial that would have supported an order of protection;

her only complaints against Father dealt with his alleged controlling nature and

manipulation.

Father argues, however, that other caselaw demonstrates that the trial court’s

decision to fashion an equal parenting arrangement was not an abuse of discretion, citing

Woolbright v. Woolbright, No. M2016-02420-COA-R3-CV, 2018 WL 934815 (Tenn. Ct.

App. Feb. 16, 2018). In Woolbright, the trial court found that four factors weighed in favor

of the father, five factors were equal between the parties, and one factor weighed slightly

against the father, i.e., in favor of the mother. The trial court ordered an equal parenting

arrangement, which the father disputed on appeal. Id. at *7. We ultimately held that the

trial court did not abuse its discretion in this arrangement, as we noted that the majority of

the factors weighed equally and that the particular circumstances of the case indicated that

equal parenting time was in the child’s best interest.

13

The only evidence concerning the order was that Mother obtained an order of protection in

Virginia that prevented Father from seeing the child for one and one-half months. Mother then returned to

the marital home with Father. Mother’s later attempt to obtain a second order of protection in Tennessee

was not successful, although it did prevent Father from seeing the child for more than seventeen days.

According to Mother, she “explained to [the Tennessee] Judge what happened and he saw it in a different

way.” Although Father’s counsel insinuated that Mother lacked credibility in seeking the order of

protection, the trial court cut off that line of questioning after noting that it was aware of the earlier

proceedings and that there was “enough blame to go around[.]” As such, the transcript does little to

illuminate the circumstances that led to the order of protection.

- 14 -

Respectfully, Woolbright is not analogous to the present situation. For one, the

majority of the factors in this case are not equal, but favor Mother. Indeed, not a single

factor actually favors Father alone in this case. Even more importantly, however, the trial

court in Woolbright specifically found that the parents shared the daily hands-on parenting

of the child. That is simply not true in this case. Even prior to the parties’ separation, the

proof shows that Mother was the primary caregiver of the child. Moreover, although the

opinion in Woolbright discusses two instances in which the parties did not show a

willingness to facilitate the relationship of the other parent with the child, there is no

discussion in Woolbright of any serious lack of trust between the parties, allegations that

one parent was controlling, or that the parties were unable to be flexible and cooperative

in parenting the child. These facts are present, however, in this case, and are highly relevant

to the determination of whether an equal parenting arrangement is in the child’s best

interest.

On the whole, it appears that the parties’ continuing lack of trust and inability to

cooperate are barriers to the joint parenting arrangement ordered by the trial court.

Moreover, even Father’s own motion to alter or amend illustrates the problems that are

inherent in the trial court’s decision. Here, the trial court specifically ruled that the parties

would keep the child enrolled in her current daycare. Father, however, sought to enroll the

child in a different daycare where he lives only on the weeks of his visitation, citing the

distance and travel time required for Father to take the child to the ordered daycare in

Gallatin. Father’s proposed arrangement, however, would result in the child attending two

different daycares on an alternating weekly basis. While this arrangement may have been

more convenient for Father, the constant upheaval for such a small child is certainly not in

the child’s best interest, and the trial court rightly rejected Father’s request.

Still, Father’s request demonstrates two important facts. First, the request indicates

that Father disagrees with both the trial court and Mother as to the daycare chosen for the

child and wishes to have control over that aspect of the child’s life when the child is in his

custody, despite the trial court’s clear order otherwise. Second, Father’s request is

essentially an admission that the joint parenting will create inconvenience for the parties

due to the distance between their respective homes. A significant distance between parents

is a factor that can support a finding that an equal parenting arrangement is not in a child’s

best interest. See Poole v. Kinslow, No. M2018-00324-COA-R3-CV, 2019 WL 5721834,

at *6 (Tenn. Ct. App. Nov. 5, 2019) (considering this fact, along with the mother’s role as

the primary residential parent, in denying the father’s request for equal parenting time).

Thus, Father’s own motion to alter or amend illustrates that an equal parenting arrangement

is not in the child’s best interest in this particular case. Rather, the evidence presented and

the factors contained in section 36-6-106(a) favor awarding Mother more visitation than

Father. The trial court’s judgment is therefore reversed, and this matter is remanded for the

entry of a parenting plan in which Mother is named the primary residential parent and

Father is awarded liberal, though not equal, visitation.

- 15 -

We note, however, that “[e]vents and lives have not stood still while this custody

dispute has been in the courts.” Wall v. Wall, No. W2010-01069-COA-R3-CV, 2011 WL

2732269, at *26 (Tenn. Ct. App. July 14, 2011) (quoting Gorski v. Ragains, No. 01A01-

9710-GS-00597, 1999 WL 511451, at *4 (Tenn. Ct. App. July 21, 1999)). Accordingly,

when a trial court is directed to reconsider an issue on remand that involves

the circumstances of children and their parents, “the trial court should

endeavor to ascertain and give effect to the parties’ actual circumstances,

which will necessarily change over the course of time, e.g., people remarry,

have more children, insurance premiums rise and fall, and child care needs

change.” Accordingly, the trial court may, in its discretion, consider such

additional evidence to insure that any custody order is based on “the parties’

actual circumstances.”

Kathryne B.F. v. Michael B., No. W2013-01757-COA-R3-CV, 2014 WL 992110, at *7

(Tenn. Ct. App. Mar. 13, 2014) (internal citations omitted) (quoting In re C.W., 420

S.W.3d 13, 22 (Tenn. Ct. App. 2013)). In the interim, we reinstate the temporary parenting

plan that the parties were following during the pendency of the divorce proceedings. See

id. (“In the interim, we reinstate the custody arrangement ordered by the trial court during

the pendency of the divorce proceedings.”).

One additional issue was raised by Mother in this appeal: the trial court’s decision

to order the parties to jointly make all major educational decisions.14 As noted above,

however, the parties have a serious lack of trust and sometimes an inability to cooperate.

These issues have led us to reverse the trial court’s decision to order equal parenting time

and remand for the entry of a new parenting plan. Similar concerns are relevant in

determining whether the parents can make joint major educational decisions. See Coley v.

Coley, No. M2007-00655-COA-R3-CV, 2008 WL 5206297, at *7 (Tenn. Ct. App. Dec.

12, 2008) (“Despite their inability to agree, the court gave the parties equal decision-

making authority, including decisions involving the children’s education and their

extracurricular activities. We find this decision inconsistent with the trial court’s specific

findings that the parties were unable to agree on a number of matters regarding their

children.”). Indeed, the cooperation of the parties is a factor that must be considered in

allocating decision-making authority. Under Tennessee Code Annotated section 36-6-

407(c), the court shall consider the following criteria in allocating decision-making

authority:

14

Mother also asks for attorney’s fees incurred on appeal in a single sentence in the body

of her brief. This request was neither designated as an issue nor supported by relevant legal

authority. Therefore, it is waived. See, e.g., In re Samuel P., No. W2016-01665-COA-R3-JV,

2018 WL 1046784, at *21 n.13 (Tenn. Ct. App. Feb. 23, 2018) (waiving a request for appellate

attorney’s fees where the party did not cite any basis for the award or designate the claim as an

issue on appeal).

- 16 -

(1) The existence of a limitation under § 36-6-406;

(2) The history of participation of each parent in decision making in each of

the following areas: physical care, emotional stability, intellectual and moral

development, health, education, extracurricular activities, and religion; and

whether each parent attended a court-ordered parent education seminar;

(3) Whether the parents have demonstrated the ability and desire to cooperate

with one another in decision making regarding the child in each of the

following areas: physical care, emotional stability, intellectual and moral

development, health, education, extracurricular activities, and religion; and

(4) The parents’ geographic proximity to one another, to the extent that it

affects their ability to make timely mutual decisions.

See also In re Grace N., No. M2014-00803-COA-R3-JV, 2015 WL 2358630, at *12 (Tenn.

Ct. App. May 14, 2015) (holding that the statutory factors did not support joint decision-

making because one party was historically the primary caregiver of the child and the trial

court found that the parties were not able to effectively communicate). The trial court,

however, did not make any findings specifically addressing this statute. Rather, the trial

court simply found that the parties “have not shown to me that you cannot make decisions

together. And I believe you can.”15 In light of our decision to remand the parenting plan

issue, we believe that the best course of action is to vacate the decision of the trial court

and remand for reconsideration in light of this Court’s opinion, the changed parenting plan,

section 36-6-407(c), and any changed circumstances that the trial court, in its discretion,

chooses to entertain. If the trial court nevertheless finds that joint education decisions

remain in the best interest of the child, the trial court is directed to make specific findings

of fact in support of that decision.

CONCLUSION

The judgment of the Sumner County Circuit Court is reversed in part, vacated in

part, and remanded for further proceedings consistent with this Opinion. Costs of this

appeal are taxed to Appellee Karthik Rajendran, for which execution may issue if

necessary.

S/J. Steven Stafford

J. STEVEN STAFFORD, JUDGE

15

The trial court made this finding prior to its findings detailed earlier in this Opinion regarding

the parties’ lack of trust and inability to agree “on the time of day.”

- 17 -