Megan Arndts Woody v. Jeremy Brice Woody

03/08/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 1, 2021

MEGAN ARNDTS WOODY v. JEREMY BRICE WOODY

Appeal from the General Sessions (Domestic Relations) Court for Meigs County

No. D-1741 Casey Mark Stokes, Judge

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No. E2020-01200-COA-R3-CV

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In this divorce case, a father appeals the trial court’s reduction of his parenting time after

the parties had co-parented equally by agreement, and then nearly equally under a

temporary court order. He also appeals the award of alimony. We reverse the residential

parenting schedule portion of the parenting plan entered by the trial court and remand for

the imposition of a plan that better maximizes both parents’ time with the child. Regarding

alimony, because the trial court did not make the required findings, its judgment on that

issue is vacated.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions (Domestic

Relations) Court Reversed in Part and Vacated in Part.

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

FRIERSON, II and W. NEAL MCBRAYER, JJ., joined.

Cecilia S. Petersen and David L. Valone, Knoxville, Tennessee, for the appellant, Jeremy

Brice Woody.

Matthew C. Rogers, Athens, Tennessee, for the appellee, Megan Arndts Woody.

OPINION

FACTS/PROCEDURAL HISTORY

Jeremy Brice Woody (“Father”) and Megan Arndst Woody (“Mother”) were

married in October 2015 and separated in October 2017. They have one minor child,

Harper, born in May 2017. Mother filed a complaint for divorce in the Domestic Relations

Court of Meigs County (“the trial court”) on January 28, 2019. Therein, Mother requested,

inter alia, to be designated Harper’s primary residential parent, that the trial court adopt

her proposed permanent parenting plan, and that she be awarded alimony. In her proposed

parenting plan, Mother sought 285 days of annual residential parenting time and requested

that Father receive 80 days per year. She also requested, inter alia, that Father be given

visitation every other weekend, and that she be granted the power to make all major

decisions regarding Harper. In his answer and counter-complaint, Father argued, inter alia,

that the parties should be awarded equal parenting time, and requested that the trial court

adopt his proposed temporary parenting plan, which proposed, in part, that Mother be

designated the primary residential parent, but that they each be allocated 182.5 days of

parenting time per year and have joint authority to make major decisions regarding Harper.

His plan also proposed a “two-two-three” schedule: Mother would have Harper for two

days, then he would have Harper for two days, and they would alternate weekends,

including partial Fridays. From the time the parties separated up until June 19, 2019, they

co-parented Harper equally (day-on, day-off) by their agreement, without a court order.

A hearing occurred in the trial court on June 19, 2019 to determine a temporary

parenting plan, including a temporary residential parenting schedule, pending the final

divorce hearing. Both parents testified.1 The parties each stated that they communicated

with each other daily regarding Harper, they had agreed on Harper’s daycare (though

according to Mother, she is the one who researched and picked it), and they each liked the

daycare. Mother teaches eighth grade math, coaches softball at a middle school, and lives

in the home the parties shared during their marriage.2 Father is an occupational therapist

and has been living with his parents since he and Mother separated.

One of the parties’ main disagreements involved whether they tried to keep Harper

from each other. According to Mother, Father would go out of his way to drop Harper off

at daycare before work on his parenting days during the summer, when Mother did not

have to work and he could have instead dropped Harper off at Mother’s house on his way

to work. However, Mother also testified that she estimated that Father’s home was about

five minutes from the daycare and fifteen minutes from her house, and his commute to

work was about forty or forty-five minutes. She testified additionally that he had two

possible routes he could take to work (which Father confirmed), only one of which passed

by her house. Nevertheless, she repeatedly acknowledged that Harper was doing well at

daycare.

Father testified that he thought the socialization Harper received at daycare was

beneficial, based on his professional training and experience, some of which involved early

childhood development. He further testified that there was nothing stopping Mother from

picking Harper up from the daycare after he dropped Harper off. He denied ever refusing

to take Harper to Mother’s house, and said that when Mother asked him to bring Harper to

her house instead of daycare, he told her that he thought it was in Harper’s best interest to

1

Father brought witnesses, including someone from Harper’s daycare, but the trial court stated, “I

don’t know if I need to hear from them or not.” Those witnesses ultimately did not testify.

2

Because of our holding with respect to alimony, infra, and because child support is not at issue in

this appeal, we will not detail the parties’ testimony regarding their finances.

-2-

have the socialization that daycare provided, but that if Mother wanted to take Harper

somewhere special, he approved of that. Father also acknowledged telling Mother that his

lawyer had recommended that course of action. Additionally, according to Father, Mother

sometimes used the daycare during the summer of 2018, though probably not as much as

it was currently being used. He also testified that the head of the daycare told him that

Harper was excelling above her age level.

Mother further testified about how Father would sometimes leave Harper with his

family members while he went to football games or other outings, or sometimes took

Harper with him. Father explained that he would take Harper to community events like

basketball games (but not football games because they occur at later times) because he

thinks community is important, and has been going to those sorts of gatherings since he

was a kid. Although Mother said that she had no problem with Father going to those types

of things, nor with his parents watching Harper, she expressed that she would rather have

Harper while Father goes out. She also testified about a specific occurrence when Father

took time off work to go to a high school basketball tournament in Murfreesboro. She said

that Harper woke with a fever the morning of the tournament, and Father took Harper to

his work and then to the tournament; but when Harper slept through a game and was not

feeling well, “he brought her home that night because he was afraid she was going to get

sick. And then he did take her to the doctor the following morning.”

Moreover, Mother stated that when Father took Harper to games and outings, they

would not get home until around 8:00 or 9:00 PM, and then he would take Harper to

daycare the next morning between 6:30 and 6:45 AM (the daycare opened at 6:30 AM).

She took issue with that type of inconsistent schedule and Harper staying up late and getting

up early. Yet, when asked what kind of regimen Harper had when she was with Father,

Mother essentially testified that she did not know. At a later hearing, she also admitted that

she could not say Harper had never been up past 8:00 PM while in her own care, and that

at least once Harper was up until 9:00 PM under her care. Additionally, when later asked

about Father dropping off the child at daycare early in the morning and what time he left

for work when they were married, Mother equivocated somewhat and admitted that he had

always gotten up early.

As for her, Mother stated that she had to be at work at 7:30 or 8:00 AM, depending

on the day, and the earliest she had dropped Harper off at daycare was 6:45 AM—but if

she had to be at work at 8:00 AM, she would drop Harper off between 7:30 and 8:00 AM.

She also said that when Harper was with her, Harper had a consistent schedule with a set

nap time, bath time, and bed time, and consistent meals. She said that she “d[id] think that

[Father] trie[d] to get [Harper] naps, but a lot of times her nap[s] seem[ed] to be in the car

to and from places.” According to Mother, “a lot of times” this would result in Harper

being “really tired” and “sleep[ing] anywhere from two and a half to three hours” while

Mother had her. At a later hearing, she reiterated her concerns about Harper’s lack of

-3-

routine with Father, stating that when she would Facetime and communicate with Father,

more often than not, he and Harper would still be out at 6:00 or 6:30 PM.

Mother’s softball season lasts for approximately six or seven weeks, from August

to September. She testified that when she would coach softball, she would bring Harper to

the field and her parents would help during the games, which could end late in the evening.

At a later hearing, Mother explained that if she was going to arrive home late from softball,

one of her family members would watch Harper at her house, and Harper would be in bed

“or very near bed when [Mother] got [home].” Mother acknowledged that she had not

offered to instead have Father watch Harper during softball, and, according to Mother,

Father had not asked to. Her practice of not asking Father to watch Harper during softball

continued through the time of the final trial.

Furthermore, Mother asserted that she primarily took Harper to doctor’s visits, and

that she did not remember Father offering to take time off work to take Harper to the doctor,

though she could remember him offering to take Harper if Mother made the appointment

for 4:00 PM or 4:30 PM. She explained her understanding that he had a flexible work

schedule that would have allowed him to leave work if Harper was sick, but he would not

offer to do so. Father, on the other hand, testified that he had never refused to take Harper

to the doctor, and that he had changed his work schedule to do so. And when asked if he

had ever taken Harper to the doctor before 4:00 PM, he stated that he believed he had.

Mother and Father agree, however, that Mother takes Harper to most of her routine

wellness checks, which Father said Mother primarily schedules for after school, but that

Mother had only taken Harper to the doctor for a sick visit one more time than Father.

Mother also testified that Father has a pornography addiction, to which she

attributed their separation. She stated that when she and Father first separated, she thought

they were going to be able to make the marriage work, until Father told her that he thought

they needed a divorce. Mother was at times inconsistent in her testimony about whether

Father sought help for his purported “addiction.” Mother first claimed that Father refused

help, which led to the separation. Mother later admitted that Father had sought counseling

for the issue.

Mother also admitted that she had no proof or reason to believe that Harper had been

exposed to pornography, later also agreeing that she has no proof that pornography has had

any negative effect on Harper’s care. Father confirmed this, testifying that Harper had

never been exposed to pornography. He further testified at a later hearing that he has never

accessed pornography when he has had Harper. Regarding the pornography issue, the trial

court asked Mother if she had concerns, to which she answered:

I think I do just in general. I have read and studied a lot. Like I said, I went

to counseling myself on that, and I realized that it’s an addiction. And a lot

of things I’ve read and people I’ve talked to with similar experiences, it’s a

-4-

very real fear that she will be exposed to it. And I’m not saying on purpose,

let me make that clear. I don’t think he would necessarily ever purposely try

to put her in that situation but it is happening with other [sic] and she is at the

age [two years and one month] where she can almost work my phone better

than I can. So yes, I think there’s a real fear that there will be some exposure

there of some sort.

According to Mother, she had surgery in or around December 2017, and she and

Father agreed for Father to have Harper during some of her recovery. Mother agreed that

before the court became involved, she and Father worked together on Harper’s schedule,

accommodating each other if they needed to deviate from the day-on, day-off schedule.

She also stated that she had been trying to accommodate Father’s schedule, even if he

arrived earlier to pick Harper up than he initially estimated, because she “want[ed] to do

what is best for [Harper], and fussing between [her and Father] is not what is best for

[Harper].” Yet, Mother testified that their equal co-parenting arrangement was not in

Harper’s best interest.

In addition, Mother testified that she thought Harper “need[ed] to” have contact with

Father while in Mother’s care, and thus agreed that she “d[id not] have any problem with

contacting [Father], updat[ing] [Father], let[ting] him facetime or anything that he want[ed]

to do as far as that sort of thing.” Moreover, she testified that she would expect the same

of Father when Harper was in his care. She also agreed that she would not have a problem

with Father spending extra time with Harper as long as it was discussed beforehand. When

asked if she would promote a good relationship between Harper and Father, she answered,

“Absolutely. Absolutely.”

Father testified that he kept a diary from October until mid-April 2017, documenting

the days he had Harper and times he picked her up and dropped her off. He started another

diary after Mother filed for divorce, which he was still keeping at the time of the hearing

and included a log of times he and Mother communicated about when they put Harper

down for naps and bed. These diaries were introduced in evidence.

According to Father’s testimony, when Harper was born, Mother took the rest of the

school year (approximately one week) off, and Father took a week off from work. He

further testified that Mother primarily cared for Harper after she was born while Father

worked, up until softball season, which started at the end of July. At that point, he said that

Mother’s sister took care of Harper during the day, and he would take Harper to the softball

games after he got home. Father stated that he would then take Harper home from the

games and give her a bottle, bath, and get her ready for bed, or sometimes wait for Mother

to give her a bath. According to Father, this lasted from when Harper was three months old

to five months old, and at the end of that softball season, Mother asked Father to stop

coming to the games.

-5-

Father also testified that while he and Mother were still cohabitating but apparently

after they separated, Mother would at times go out late at night, sometimes not returning

until the next morning. Mother later explained that she would go for drives after putting

Harper to bed because she was having anxiety attacks related to her marital issues and felt

pressured by Father’s “guilt trips” related to sex (detailed further, infra). Sometimes she

would spend the night at other places, and sometimes she would return after she thought

Father was asleep. She asserted that “[she] would always make sure that [she] took care of

Harper first” but acknowledged that she felt comfortable leaving Harper in Father’s care

while she was gone. She agreed that “even after all of that is when [her] family invited

[Father] on [] family trips,” and said that she had been struggling with whether fixing the

marriage, which “ideally [] is what [she] would have wanted,” was best for Harper.

Father further testified extensively about the schedule he maintains with Harper,

including meal and bed times.3 Regarding Father’s employment, he explained that he

typically worked between thirty-eight and forty-two hours weekly, on an hourly schedule.

He indicated that his work schedule was relatively flexible and the earliest he had to be at

work was 9:00 AM. He said that his round-trip commute increased by fifteen minutes each

way after he and Mother separated, such that it had become one hour and twenty minutes.

Otherwise, Father testified that besides his and Mother’s disagreement regarding

how much parenting time he should receive, they had been able to work everything out

relating to Harper. One apparent example is that he said that he had not objected when

Mother had wanted to keep Harper for more days than planned for a beach trip. In addition,

he stated that he did not have any reason for limiting either his or Mother’s time with

Harper, and that fifty-fifty time was what they had agreed on and was working for Harper.

At the end of the June 19, 2019 hearing, the trial court made the following oral

ruling, in pertinent part:

I think I can make a ruling on this case without going into a bunch of

witnesses. Sounds like you’ve been working together somewhat pretty well.

That’s good news considering you have a child. There will be eighteen years

of that. This is just a temporary ruling though. I know it’s on the docket for

August and it sounds like it’s working out pretty soon.

Since [Mother] is off this summer I’m going to give her standard,

we’re going to do standard visitation. [Father] will have – what we can do is

we’ll do every weekend for [Father], and [Mother] will have the child

through the week. . . . And of course this thing will probably be resolved here

two or three months, so I think that’s what we need to do right now.

3

According to Father’s diary of January 2019 until June 2019, he would sometimes lay Harper

down later than his testimony indicated.

-6-

A written order on the temporary hearing was filed on September 2, 2019, which

included the following findings, in relevant part:

1. The parties have been attempting to work together to maximize each

other’s time due to the fact that they have been regularly exchanging the child

since the parties’ separation.

2. It is appropriate for [] Father to exercise weekend visitation each week,

from Friday at 6:00 pm to Monday morning, due to the fact that [] Mother is

an educator and that her work schedule allows for her to co-parent through

the week during the summer.

3. [T]his matter is set for Final Hearing on September 4, 2019.

4. [] Mother shall be named the Temporary Primary Residential parent.

* * *

8. The Court hereby reserves [] Mother’s request for retrospective and

prospective alimony[.]

9. Either party can elect one full week to take the child for vacation between

now and the end of summer if they so desire. The opposing party and/or their

attorney’s office shall be informed of a detailed itinerary for trips pendente

lite.

10. [] Father shall pick up and receive the child at 6:00 pm on Friday and

return the child to [] Mother’s home on Monday morning prior to going to

work, until further order of the Court.

11. The parties shall work together to accommodate equal make up parenting

time pursuant to the requested and heretofore ordered vacation time[.]

Both the parties and the trial court agree that this temporary plan amounted to nearly equal

parenting time for Mother and Father.

On September 27, 2019, Mother filed a revised proposed permanent parenting plan

in the trial court which, in pertinent part, suggested that she have 221 days per year, Father

have 144 days, and she have authority to make major educational decisions for the child.

The plan also proposed that the remaining major decisions regarding Harper be made

jointly, but that Mother, “as the primary residential parent, shall have final say on all major

decisions regarding the child.”

-7-

A final hearing occurred in the trial court on January 22, 2020. Mother and Father

testified again, along with Tanya Orean, the owner and director of Harper’s daycare;

Charles Griffin, the pastor at Father’s church; Michelle Houston, Father’s work supervisor

of six years; and Diana Woody, Father’s mother. Much of the parties’ testimony essentially

reiterated their testimony from the June 2019 hearing and has already been discussed. Thus,

we will only discuss testimony from this hearing to the extent that it presents new

information.

Ms. Orean generally testified that Harper is well-adjusted, the parents are both doing

a good job, and the parties do not complain about each other’s parenting. Ms. Houston

discussed the flexibility in Father’s work schedule and how he would be able to

accommodate his proposed parenting schedule. Ms. Houston also testified that Harper is

attached to Father and well-adjusted. Father’s mother testified that both parents are good

parents but claimed that Mother was “not as present” with Harper “toward the end.”

Mr. Griffin testified that Father attends his church regularly with Harper and has

observed nothing of concern with regard to Father’s parenting. When questioned about

Father’s pornography habit, Mr. Griffin testified that he would probably recommend pastor

counseling for such an issue. Mr. Griffin refused to comment on whether he had

participated in counseling with Father, however, due to the clergy privilege;4 but he

testified that he had never seen anything that would raise a suspicion of child sexual abuse

with regard to Father or Harper.

Mother testified that Father’s pornography issue was the proverbial last straw in the

marriage. According to Mother, she did not know about the issue until after the marriage,

and only sought to learn the extent of Father’s viewing habits after the separation.

According to Mother, Father was then watching pornography “at least a couple times a

week,” which according to Father, was an improvement. However, Mother opined that

Father’s continued viewing of pornography a couple times per week proved that the issue

was unresolved. Yet, she admitted that she declined Father’s request to go to couples’

counseling, preferring that the parties seek counseling individually first. According to

Mother, Father did not view the pornography as a major issue. She again said that he did

not seek counseling or help, but later conceded that he had eventually attended counseling.

Father testified that the counseling was in part related to pornography and in part to cope

with the difficulties of having to move back in with his parents and raise a child with them.5

Father neither admitted nor denied that he had a pornography “addiction.” He

admitted, however, that it was an issue he needed to work on. According to Mother, after

4

See Tenn. Code Ann. § 24-1-206 (explaining that clergy members shall not be required to disclose

confidential information during testimony).

5

Father’s testimony was not necessarily a model of clarity, either. For example, he stated that he

and Mother did go to counseling, but also that Mother declined his many requests to go to counseling.

-8-

Father “confessed” his issue, “it was a lot of trying to get [her] to have sex with him.” She

said that he would leave Bible verses for her “that were saying what a Christian wife should

do. . . . [T]hey were very much directed toward how and why [she] needed to forgive him

and what [she] needed to do to fulfill [her] wifely duties.” She felt that the Bible verses

“were ways to try to manipulate [her.]” Yet, later, Mother repeatedly offered that she “d[id

not] know [Father’s] intent behind [leaving the Bible verses].”

Her lawyer asked, “[w]ere there times when he was physically aggressive towards

you, sexually or violent?” She answered, “He had never been necessarily violent toward

me. There was one major incident, it was right after I had Harper [in May]. It was July 6th.”

According to Mother, after her doctor cleared her for sexual activity, Father would

repeatedly “guilt trip” her, so “after a little over a week” Mother “agree[d] to have sex with

him[.]” Mother testified, inter alia,6 that at some point she told Father to stop and he paused

briefly before continuing. When she asked him the next day why he had not stopped, she

said that “he told [her] that he didn’t know [she] meant to really stop.” She said that she

did not remember Father apologizing, but she was “also not saying that he didn’t.” Mother

testified that this event was traumatic, and said, “I don’t know what to call it because I

don’t want to call it rape because I did agree to it, but when I told him to stop, given the

fact that I was still healing and he didn’t.” Mother agreed that Father continued making

repeated sexual advances toward her after that incident even though she told him to stop.

She stated that she eventually went to therapy because of this incident, and acknowledged

having tried medication for her anxiety. She agreed that she has not had anxiety since

Father moved out, at which time she stopped taking the medication.

As for Father’s testimony regarding this incident, he said that he had

“misunderstood. And then was apologetic and concerned . . . the next day.” Additionally,

he agreed that there had been no physical violence between him and Mother. He expressed

that he had been unaware of the marital issues until around Fall of 2017, including that he

did not know what was causing Mother anxiety, though he said that he had asked her if

there was anything he could do.

When asked why she agreed to have an equal co-parenting arrangement with Father

before a court became involved, Mother said that the main reason was that she did not think

it was going to last long, and that the separation was supposed to be brief. She also said, “I

was not willing to go long without seeing [Harper].” She agreed that the trial court’s order

after the temporary hearing “made sense to [her] at the time” because “she was off [work]

during the summer.” As to the plan still being in effect at the time of the current hearing,

Mother stated that it was working well for her to have Harper during the week because “it’s

good for [Harper] to have a routine,” but she complained that she therefore had “no

weekend time with [Harper] at all.” She essentially claimed that Father was generally

6

The testimony regarding the details of this event was fairly graphic. We have thoroughly reviewed

the entirety of the proof on this issue, but we decline to reproduce it here.

-9-

unwilling to work with her on swapping their time after the temporary order was in effect,

even if he wanted to take some of her time (except in at least one instance, where they

eventually came to an agreement). However, she acknowledged that Father had given her

the weekend before fall break, and that Father therefore did not see Harper for ten days,

except for about an hour. As for Thanksgiving and Christmas of 2019, Mother alleged,

inter alia, that she had given Father an hour and a half on both Thanksgiving Day and

Christmas Day, and Father did not give her time in return. According to Father, Harper did

not get to see or spend time with his entire family on Thanksgiving, in part because forty

minutes of the one and a half hours was taken up by travel time.7

Additionally, Mother testified that she picked Harper up (presumably from daycare)

on Fridays and spent the intervening hours with Harper before Father came to get Harper—

instead of Father picking Harper up from daycare, as he had apparently done before the

temporary order went into effect. She said that she did this because she wanted to have as

much time with Harper as possible before Father picked Harper up, and the temporary

order said that he was to pick Harper up on Fridays at 6:00 PM. She nevertheless agreed

that each parent should be able to have Harper on days when they are off work and the

other parent is at work, even if it is technically the other parent’s day. Confusingly, when

Mother’s lawyer asked her why she thought equal co-parenting time is or is not in Harper’s

best interest, she said,

Oh, I definitely think this is in her best interest. I think she needs a steady

routine. I think she needs – she needs time, weekend time with both parents.

I’m not trying to keep her from him at all, or him from her at all. But I think

that she needs the steady routine that she has when she’s with me. . . . [T]hat’s

critical when she’s young. And not to mention that she is a girl. I think that’s

about it.

It appears, however, that she was referencing her proposed parenting plan (which proposed

that Father have 144 days with Harper each year, not equal time).

When Mother’s lawyer asked Mother how Harper is doing and if she is “developing

and doing good,” Mother stated that Harper is “[g]reat. She’s doing great.” She testified

that her parents, sister, and both of her grandmothers help her take care of Harper. She said

that Harper “does not normally respond very well on Friday afternoons to have to go with

[Father],” so she tries to encourage Harper to be excited to see Father, and Father usually

brings Harper a toy and/or drink to make the transition easier. She said, “I don’t want

[Harper] to view [Father] in any sort of negative way. . . . [S]he doesn’t need to know the

problems between [Mother and Father].”

7

Mother stated that she drove Harper part of the way, and therefore not all of the travel time cut

into Father’s time. Father disputed this, instead saying that Mother transported Harper on Christmas, not

Thanksgiving.

- 10 -

She acknowledged agreeing to the equal co-parenting schedule when she already

knew about all of the grounds she claimed for divorce. She agreed that she had stayed with

Father, become pregnant, and had Harper after Father informed her regarding his

pornography viewing. She also agreed that at no point did she stop Father from seeing

Harper, because “[she is] not trying to keep him from seeing Harper.” Father and Mother

both essentially agreed that, overall, they have been able to get along and communicate,

have had no major disagreements regarding Harper, and have been basically sharing

parenting responsibilities equally, at least since the separation.

Mother also admitted that Father had properly cared for Harper during his parenting

time, and Father agreed that he and Mother have equal ability to perform parenting

responsibilities. Mother further conceded, inter alia, that they both have love and affection

for Harper; neither has denigrated the other as a parent; the continuity of Harper’s life was

being “maintained”; and there is no proof of any emotional or physical abuse of Harper by

either party. She acknowledged that despite Father agreeing with her regarding where

Harper would eventually attend elementary school, she still wanted sole control over

decisions about Harper’s education. She again expressed her belief that daycare is good for

Harper, reasoning that it provides Harper social interaction, develops her education, and

“there’s a Bible aspect to it” that Mother thinks “is great for [Harper] to be involved in.”

Mother also “like[s] the interaction with the teachers, . . . [and the] immune system

development.”

Father additionally testified, inter alia, that he thought his proposed two-two-three

schedule with alternating weekends would be better than the day-on, day-off schedule,

because it would give Harper more continuity and full weekends with each parent. He

expressed a willingness to be flexible in not adhering rigidly to his proposed parenting

plan, and agreed that he would continue being able to make his employment schedule work

with his proposed parenting plan. He also said that he wants Harper to go on all of the

vacations Mother takes with Mother’s family. When asked about Mother’s willingness and

ability to promote the parent/child relationship, Father expressed concerns that she seemed

to want to drastically limit his custody only after the divorce proceedings commenced—

whereas they had been doing well sharing equal custody before the temporary court order

was entered.

The trial court issued an oral ruling at the conclusion of the January 2020 hearing.

In relevant part, the trial court found as follows:

I’m going to grant [Mother] a divorce on inappropriate marital conduct due

to the pornography situation. I think since – with that in mind I think the

husband needs to pay her legal fees. And I think there needs to be a little bit

of alimony for a short period of time. I think the alimony should be five

hundred dollars a month for two years. That will kind of help with the

situation of divorce.

- 11 -

Let’s go to the child part. I’m going to grant a traditional custody visitation

situation. Every other weekend for [Father], every Thursday evening for

[Father] because of the age of the child and her being a little girl, I think that

would be good, especially for the next few years. . . .

As far as holidays I think we should adopt the traditional holiday schedule

where you alternate or share. . . . Two weeks in the summer for [Father] I

think is what [is traditional]. . . . Court costs, that’s going to run with attorney

fees, [Father] can pay that also.

Father’s counsel then asked for a stay under Rule 62 of the Tennessee Rules of Civil

Procedure of the attorney fees and alimony until this Court makes a ruling, which the trial

court denied. Mother’s counsel then stated, “I’ll draw the order.”

The trial court filed a written order on September 2, 2020, granting Mother a divorce

on grounds of inappropriate marital conduct and dividing the parties’ assets. The trial

court’s alimony ruling was as follows: “The Court hereby indicated that a little alimony for

a short period of time should be awarded and hereby orders that [Father] pay transitional

alimony in the amount of $500.00 per month for a period of two (2) years.” With respect

to custody of Harper, the trial court’s order stated: “The Court indicated that it was going

to grant traditional custody of this case and situation every other weekend for [] Father

every Thursday evening because of the age and gender of the child and the attached

Parenting Plan is adopted by the Court.” It named Mother the primary residential parent,

giving her 245 days of parenting time and Father 120 days per year. It also appears to have

granted the parties joint decision-making authority.8

Father filed a notice of appeal in this Court on September 3, 2020. On September

16, 2020, Mother filed a motion to alter or amend the trial court’s final judgment to add

findings of fact and conclusions of law regarding the co-parenting factors in Tennessee

Code Annotated section 36-6-106. The trial court denied Mother’s motion to alter or amend

on the basis that it did not have subject matter jurisdiction. This Court filed an order on

December 1, 2020, explaining that the trial court’s September 2, 2020 order did not meet

the finality requirements of Rule 58 of the Tennessee Rules of Civil Procedure, and that

the trial court had incorrectly determined that it lacked subject matter jurisdiction to

adjudicate the motion to alter or amend. Both parties submitted proposed findings of fact

and conclusions of law to the trial court.9

8

Parts of the copy of the parenting plan in the record are difficult to read.

9

Mother’s motion to alter or amend was first heard on October 7, 2020. There appears to have been

another hearing in the trial court on April 7, 2021. There are no transcripts of these hearings in the record.

- 12 -

The trial court filed a final order incorporating findings on May 13, 2021. Therein,

the trial court made findings of fact and conclusions of law with respect to custody of

Harper, in addition to the previous findings from the September 2, 2020 order. These

findings will be discussed in detail as relevant, infra. The court found that four factors

under section 36-6-106(a) equally favored Mother and Father; three factors were

inapplicable; and seven factors favored Mother, to varying degrees. The trial court then

concluded that “the Permanent Parenting Plan filed with the Final Judgment on September

2, 2020 is in the best interest of the child.” The trial court’s May 13, 2021 order still did

not comply with Rule 58, however. Therefore, finally, on June 2, 2021, the trial court

entered a Rule 58-compliant final order, incorporating its findings from the May 13, 2021

order and granting Mother’s motion to alter or amend. Father appealed.

ISSUES PRESENTED

Father raises the following issues, which we have slightly reworded:

1. Did the trial court err in not entering Father’s Proposed Permanent Parenting Plan?

2. Did the trial court, by adopting Mother’s Proposed Findings of Fact and Conclusions of

Law, fail to exercise its own independent judgment?

3. Did the trial court, in adopting Mother’s Proposed Permanent Parenting Plan, fail to

maximize each parent’s co-parenting time as required by Tennessee Code Annotated

section 36-6-106(a)?

4. Should this Court reverse the trial court and adopt Father’s Parenting Plan in the best

interests of Harper?

5. Did the court err in basing its award of alimony on the fact it would “help” Mother,

rather than analyzing the statutory factors in Tennessee Code Annotated section 36-5-121?

STANDARDS OF REVIEW

As this Court has previously explained,

[t]rial courts have broad discretion to fashion parenting plans that best serve

the interests of the children They must, however, base their decisions on the

evidence presented to them and upon the proper application of the relevant

principles of law. While we are reluctant to second-guess a trial court’s

decisions regarding a parenting plan, we will not hesitate to do so if we

conclude that the trial court’s decision is not supported by the evidence, that

the trial court’s decision rests on an error of law, or that the child’s interests

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will be best served by another parenting arrangement.

Shofner v. Shofner, 181 S.W.3d 703, 716 (Tenn. Ct. App. 2004) (internal citations

omitted).

Similarly, “[t]rial courts are afforded broad discretion in decisions regarding the

nature, duration, and amount of alimony; therefore, but for an abuse of discretion, the trial

court’s award of alimony will normally be upheld on appeal.” Barnes v. Barnes, No.

M2011-01824-COA-R3-CV, 2012 WL 5266382, at *4 (Tenn. Ct. App. Oct. 24, 2012).

“It is our job in reviewing for an abuse of discretion to see that the trial court’s order

is made with due regard for controlling law and based on the facts proven in the case.”

Maupin v. Maupin, 420 S.W.3d 761, 770 (Tenn. Ct. App. 2013) (citation omitted). “Thus,

if the evidence preponderates against the trial court’s findings of fact upon which it bases

it determination, or simply focuses on facts which should not really matter while ignoring

those that really do matter, the court may be found to have abused its discretion.” Id.

DISCUSSION

A. PARENTING PLAN

i.

At the outset, we note that Father does not appear to appeal the designation of

Mother as Harper’s primary residential parent.10 Therefore, we will focus our analysis on

the residential parenting schedule. We begin by addressing Father’s argument that the trial

court failed to exercise its independent judgment by improperly parroting, in large part,

Mother’s proposed findings and conclusions, which are largely unsupported by the record.

As reflected in the trial court’s oral and written orders from the January 22, 2020 hearing,

Father is correct that the trial court initially appears to have only considered the “tender

years” doctrine and Harper’s gender in making its custody determination; in its oral ruling,

the trial court stated that it was “grant[ing] a traditional custody visitation situation . . .

because of the age of the child and her being a little girl,” which the trial court “th[ought]

10

According to Father’s counsel, the reason he designated Mother as primary residential parent in

his proposed parenting plan is that the applicable statute, at the time he submitted his plan, dictated that

only one parent could be the primary residential parent, whereas it changed in July 2019 so that both parents

can be. See Tenn. Code Ann. § 36-6-410(b) (“Notwithstanding any law to the contrary, when the child is

scheduled to reside an equal amount of time with both parents, the parents may agree to a designation as

joint primary residential parents or to waive the designation of a primary residential parent. In the absence

of an agreement between the parties, a single primary residential parent must be designated; provided, that

this designation shall not affect either parent’s rights and responsibilities under the parenting plan.”)

(effective July 1, 2019). Nevertheless, he does not challenge Mother’s designation as primary residential

parent on appeal, so we will not disturb it.

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[] would be good, especially for the next few years.” This oral ruling was reflected in the

trial court’s written order, which again stated that the court made its custody determination

“because of the age and gender of the child.” It was not until this Court advised the trial

court of its subject matter jurisdiction to rule on Mother’s motion to alter or amend, and

after the parties submitted their proposed findings and conclusions, that the trial court

added more reasoning for its decision regarding visitation.

Mother is correct that Tennessee does not recognize a “tender years” doctrine. See

Gooding v. Gooding, 477 S.W.3d 774, 778 (Tenn. Ct. App. 2015) (citations omitted) (“The

tender years doctrine is a presumption that young children should remain in their mother’s

custody. Tennessee law no longer recognizes this presumption, and use of it is error.”). Nor

is gender a determinative factor in custody determinations. See Tenn. Code Ann. § 36-6-

101(d) (“It is the legislative intent that the gender of the party seeking custody shall not

give rise to a presumption of parental fitness or cause a presumption or constitute a factor

in favor or against the award of custody to such party.”). Therefore, the trial court’s reliance

on Harper’s young age and gender in deciding the details of the parenting plan was error.

However, the trial court did ultimately add findings of fact and conclusions of law in its

May 13, 2021 order. The first question is whether those findings and conclusions are a

product of the trial court’s independent judgment.

“[A] court’s decisions must be, and must appear to be, the result of the exercise of

the trial court’s own judgment[.]” Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 312–

13 (Tenn. 2014) (citations omitted). Our highest court has expressed concern “about the

practice of courts adopting verbatim findings of fact, conclusions of law, opinions, and

orders prepared by counsel for the prevailing party. ” Id. at 314 (citation omitted). Further,

“[a] trial court’s verbatim adoption of verbiage submitted by the prevailing party detracts

from the appearance of a hardworking, independent judge and does little to enhance the

reputation of the judiciary.” Id. at 315 (footnote omitted). Consequently, in a trial court’s

order, “the findings and conclusions must accurately reflect the decision of the trial court.

Second, the record must not create doubt that the decision represents the trial court’s own

deliberations and decision.” Id. at 316 (citations omitted). “Accordingly, reviewing courts

have declined to accept findings, conclusions, or orders when the record provides no insight

into the trial court’s decision-making process, or when the record ‘casts doubt’ on whether

the trial court ‘conducted its own independent review, or that the opinion is the product of

its own judgment.’” Id. (citations omitted).

Here, the trial court did not provide the parties with guidance for preparing their

proposed findings and conclusions, and the only reasoning it had given for its decisions

was, as explained above, Harper’s age and gender. Yet, the trial court largely adopted

Mother’s proposed findings and conclusions, including a significant number of them

verbatim. Moreover, as will be discussed infra, we agree with Father that the record does

not entirely support all of Mother’s, and, indeed, the trial court’s, findings and conclusions,

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and they are unjustifiably skewed in Mother’s favor. Therefore, the question of whether

the trial court sufficiently exercised its independent judgment here is close.

However, this Court has previously determined that if a trial court alters a party-

prepared order, that order can pass muster under Lakeside. See Vaughn v. DMC-Memphis,

LLC, No. W2019-00886-COA-R3-CV, 2021 WL 274761, at *6 (Tenn. Ct. App. Jan. 27,

2021) (“[T]he written order ultimately entered by the trial court contains two paragraphs

that were not included in the proposed order. . . . [T]hese alterations confirm that the order

entered was not a verbatim copy of what was submitted by [one of the parties], but was the

trial court’s own independent judgment.”). Here, the trial court added a limited number of

findings to its final order that were not taken from Mother’s proposed order, and made

other limited edits, including omitting some of Mother’s proposed findings and rearranging

others. Therefore, although “[t]he manner in which the trial court entered its final judgment

in this case comes perilously close to violating [Lakeside],” F & M Mktg. Servs., Inc. v.

Christenberry Trucking & Farm, Inc., No. E2015-00266-COA-R3-CV, 2015 WL

6122872, at *7 (Tenn. Ct. App. Oct. 19, 2015), we will proceed to consider the merits of

this appeal. See id. Additionally, we are mindful that this case has been ongoing for several

years at this point, and proceeding to the merits will afford the parties and Harper

resolution. See Huggins v. McKee, 500 S.W.3d 360, 366–67 (Tenn. Ct. App. 2016)

(exercising the Court’s discretion to decide the appeal’s merits even though the trial court’s

practice was “not fully compliant with the letter and spirit of [Lakeside], . . .[i]n the interest

of providing the parties to this case a final resolution of the issues.”).

ii.

We will now proceed to consider Father’s arguments regarding the propriety of the

residential parenting schedule adopted by the trial court. “[T]he fault a parent bears for the

breakup of the marriage is not relevant for the purposes of a custody determination, except

insofar as that parent’s conduct bears on his or her fitness for parental responsibilities.”

Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004 WL 2346000, at *8 n.5

(Tenn. Ct. App. Oct. 15, 2004) (citing Mimms v. Mimms, 780 S.W.2d 739, 745 (Tenn. Ct.

App. 1989)). Therefore, in creating parenting plans, “[t]he needs of the children are

paramount; the desires of the parents are secondary.” Shofner, 181 S.W.3d at 715–16

(citation omitted). “Parenting plans should never be used to punish or reward the parents

for their human frailties or past mis-steps, but rather they should be used to advance the

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

and emotional needs.” Id. at 716 (citations omitted).

“Tennessee courts must [] fashion custody arrangements so as to give each parent

the maximum amount of time possible with the child, in accordance with the child’s best

interests.” Rountree v. Rountree, 369 S.W.3d 122, 129 (Tenn. Ct. App. 2012); see also

Tenn. Code Ann. § 36-6-401 (“The general assembly recognizes the fundamental

importance of the parent-child relationship to the welfare of the child, and the relationship

- 16 -

between the child and each parent should be fostered unless inconsistent with the child’s

best interests.”). A “trial court must consider the factors listed in Tennessee Code

Annotated section 36-6-106(a)(1)–(15) to ascertain the best interest of the child, in

determining a residential schedule and naming a primary residential parent.” Sullivan v.

Sullivan, No. M2018-01776-COA-R3-CV, 2019 WL 4899760, at *4 (Tenn. Ct. App. Oct.

4, 2019) (footnote omitted).11 Section 36-6-106(a) “reflects a public policy in favor of

allowing the child ample time with both parents, which is a paramount consideration in all

Tennessee parenting plan decisions.” Rountree, 369 S.W.3d at 136 n.3. Specifically,

section 36-6-106(a) directs courts to “order a custody arrangement that permits both

parents to enjoy the maximum participation possible in the life of the child consistent with

. . . the location of the residences of the parents, the child’s need for stability,” and the

following factors, 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;

11

See also Tenn. Code Ann. § 36-6-404(b) (stating that courts should consider the factors in section

36-6-106(a) when designing a residential parenting schedule unless certain factors in section 36-6-406 are

dispositive). Neither party has raised a specific issue as to the factors in section 36-6-406, so we will not

tax the length of this Opinion with further consideration of those factors.

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(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.

The preference of older children should normally be given greater weight

than those of younger children;

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

accommodations consistent with those schedules; and

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

Tenn. Code Ann. § 36-6-106(a).

“The best interest determination is a fact-sensitive inquiry” that “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.” Drucker v. Daley, No. M2019-

01264-COA-R3-JV, 2020 WL 6946621, at *12 (Tenn. Ct. App. Nov. 25, 2020) (internal

quotation marks and citation omitted). Instead, “[t]he relevancy and weight to be given

each factor depends on the unique facts of each case.” Id. (internal quotation marks and

citation omitted).

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Father argues that his proposed parenting plan (of co-equal parenting time) is in

Harper’s best interest and should therefore be adopted. Father also argues that the trial court

erred by failing to maximize each party’s parenting time. We will address these in turn.

Starting with best interest, the trial court here ultimately “made findings concerning

several of the statutory factors.” In re Lennon R., No. M2018-00541-COA-R3-JV, 2019

WL 2226007, at *5 (Tenn. Ct. App. May 23, 2019). We will devote our analysis to the best

interest factors that the trial court found favored Mother, “review[ing] each of th[ose]

factors . . . against the record to determine whether the trial court erred in fashioning the

Parenting Plan.” Id.

First, the trial court found that factor one favors Mother, stating as follows:

This factor weighs heavily in favor of [] Mother. The proof at trial was that

[] Mother had performed the majority of parenting responsibilities relating to

the daily needs of the child both during the marriage, pre-separation, post-

separation, and under the Temporary Orders of this Court. At the temporary

hearing, significant co-parenting time between the minor child and [] Father

was awarded. The Court awarded significant co-parenting time in an attempt

to decipher, among other things, how [] Father would perform with

significant co-parenting time during the summer break.

The Court finds that [] Father does have a loving relationship with the child

however, [] Father was granted significant Pendente Lite co-parenting time

over several months and the Mother remained primarily responsible for the

daily needs and caretaking of the child.

Although [] Father technically exercised his co-parenting time, [] Father

would take the child to daycare, even on his days off. The Court was

disappointed in [] Father’s failing to take advantage of spending time with

the child on his off days. Further, the Father was unable to articulate activities

and responsibilities that were completed when he had the opportunity to co-

parent equally.

Therefore, this factor weighs heavily in favor of the Mother.

See Tenn. Code Ann. § 36-6-106(a)(1) (involving the strength of the parents’ relationship

with the children and which parent has performed most of the parenting duties).

The evidence does not completely support these findings. The trial court’s finding

that Father took Harper to daycare even on his days off of work is somewhat misleading.

From our review of the record, there is no evidence that Father did this during his

designated parenting time. Instead, it appears that this finding is based on Mother’s

testimony that Father took a week off of work for Christmas, during which Mother had to

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work, and asked Mother if he could keep Harper on Monday and Tuesday of that week.

Mother testified that she told Father she was okay with that if she could receive some of

his designated parenting time in return, since she would be giving him two of her days. She

said that Father would not agree to that, so he took Harper to daycare the Monday of his

week off and then he did not see Harper for the rest of that week. Certainly, this testimony

suggests that Father was unwilling to work with Mother to some degree. However, it also

reveals that Mother was engaging in the same type of rigid, uncooperative behavior that

she has accused Father of: she kept Father from seeing Harper on her parenting days even

though she had to work and he did not. This is precisely what Mother accused Father of

doing when they were co-parenting day-on, day-off by agreement, and he would allegedly

go out of his way to drop Harper off at daycare instead of Mother’s house. Mother’s

behavior in this respect is all the more confounding considering that she agreed during her

testimony that one parent should be able to have Harper if it is the other parent’s day but

that parent has to work.

Additionally, the record does not support the trial court’s finding that “Father was

unable to articulate activities and responsibilities that were completed when he had the

opportunity to co-parent equally.” In fact, Father explained in detail Harper’s routine when

she was in his care, and gave plenty of examples of activities they do together, including

going to sporting events, church, and the zoo. Indeed, it was Mother’s testimony that Father

almost takes the child to do too many activities and therefore does not keep a consistent

schedule.

Perhaps most importantly, however, the parties essentially agree that they have

exercised equal parenting responsibility, at least since the separation. Additionally, even

during the marriage, Father’s testimony, which Mother does not appear to dispute, was that

while Mother primarily cared for Harper for about two months after her birth, Mother’s

softball season resumed thereafter, during which time Father became more involved. Then,

Mother had surgery in December 2017, and Father took over the primary parenting

responsibilities for at least part of the time she was recovering. Mother did testify that she

took Harper to more doctor’s visits and was more willing to do so than Father, including

taking off work when Harper is sick. The proof showed that Mother took Harper to more

well visits than Father, but only to one additional sick visit. Additionally, Mother testified

that she researched and picked the daycare, though Father agreed to it. Thus, the record

does not support concluding that this factor weighs heavily in Mother’s favor. Rather, given

Mother’s slightly greater involvement in caring for Harper immediately after she was born,

Harper’s medical care, and researching the daycare, this factor slightly favors Mother. See

Brown v. Brown, 571 S.W.3d 711, 723 (Tenn. Ct. App. 2018) (concluding that even though

the father worked immediately after the child was born, eventually getting two weeks of

paternity leave, “[M]other’s care for the child during these early months d[id] not, by itself,

make mother the primary caregiver”); cf. Cummings v. Cummings, No. M2003-00086-

COA-R3-CV, 2004 WL 2346000, at *9 (Tenn. Ct. App., filed Oct. 15, 2004) (emphasis

added) (explaining that mother was clearly the primary caregiver, stating, “[she] was

- 20 -

overwhelmingly responsible for the daily needs of the child up until” the parties co-parented

on an alternating-week basis during the pendency of the divorce).

Regarding factor two, the trial court stated as follows:

The Court finds that the parties do attempt to communicate regarding the

child and promote a relationship with the other party.

Mother testified that [] Father would not allow her co-parenting time during

Father’s co-parenting time even if she was off from work and the child was

in daycare.

[] Mother further testified that the child did not stay with Father while she

coached softball, however, she also testified that the Father never requested

the child stay with him.

[] Father used the temporary orders of the Court and technicalities of the

order as a weapon instead of working with Mother. Father’s unwillingness

to work with Mother on her days off show a propensity for [] Father not to

work with the Mother in future.

The child has bonded with both parents. The Court believes that this bond

can be attributed to the Mother’s consistent desire and actions that have led

to the child’s bonding with both parents despite [] Father’s shortcomings.

The Court heard proof at trial that the Mother had been physically, sexually,

and mentally abused by [] Father, including, an allegation of marital rape.

The Court credits and finds that the Mother has gone above and beyond with

the child by facilitating and promoting a good and healthy relationship with

[] Father and not attempting to turn the child against [] Father emotionally.

Therefore, this factor weighs heavily in favor of the Mother.

See Tenn. Code Ann. § 36-6-106(a)(2) (involving the parents’ past and potential for future

performance of parenting duties and their willingness to encourage the children’s

relationships with each parent).

Our analysis of factor one largely applies here. A fair reading of the evidence does

not lead to the conclusion that Father weaponized the court orders or was uniquely

unwilling to cooperate with Mother. Mother complains about not getting time in return for

an hour and a half on Christmas and Thanksgiving Days. Yet, she also testified at the final

hearing that she received the weekend before fall break with Harper, and she does not

dispute that this resulted in Father only seeing Harper for roughly one hour in a ten-day

period. Moreover, according to Mother’s own testimony, she insisted on adhering strictly

- 21 -

to the trial court’s temporary plan—whereby Father had to pick Harper up from her at 6:00

PM on Fridays, rather than from daycare as he had been doing, which apparently limited

his time with Harper. This, combined with our above analysis under factor one, leads us to

conclude that the trial court erred in determining that Father weaponized the trial court’s

orders and was uniquely unwilling to work with Mother on her days off. Rather, the record

demonstrates that to the extent the parties have been unwilling to cooperate or been

inflexible, they are equally culpable.

We next consider the trial court’s finding with regard to the “abuse” suffered by

Mother and the trial court’s finding that Father’s bond with Harper is therefore attributed

to Mother’s herculean efforts to facilitate and promote it. We must make several

observations as to this finding.

First, the trial court’s findings here are somewhat unclear. The trial court

specifically finds that it “heard proof” of physical, sexual, and mental abuse by Father

against Mother. The language employed by the trial court could certainly be clearer, as the

order merely states what proof was presented, not that the trial court found that such abuse

actually occurred. See Rosebrough v. Caldwell, No. W2018-01168-COA-R3-CV, 2019

WL 6898218, at *4 (Tenn. Ct. App. Dec. 18, 2019) (holding that an extensive trial court

order was nevertheless deficient where it largely consisted of “conclusory statements

regarding the evidence presented and not specific findings of fact as required”); see also

In re S.S.-G., No. M2015-00055-COA-R3-PT, 2015 WL 7259499, at *12 (Tenn. Ct. App.

Nov. 16, 2015) (“[T]he court must go beyond mere summation [of the evidence] by linking

the evidence to its clearly stated findings of fact and conclusions of law.”). Moreover, the

court explicitly found that factor eleven in the best interest analysis, dealing with evidence

of abuse to the other parent, is not applicable in this case, suggesting that the trial court

found that no abuse occurred against Mother. See Tenn. Code Ann. Tenn. § 36-6-

106(a)(11) (emphasis added) (“Evidence of physical or emotional abuse to the child, to the

other parent or to any other person. . . .”). But, we also read orders for what is both

explicitly stated and clearly implied. See Morgan Keegan & Co. v. Smythe, 401 S.W.3d

595, 608 (Tenn. 2013) (“[W]hen construing orders and judgments, effect must be given to

that which is clearly implied, as well as to that which is expressly stated.”). So perhaps the

trial court’s order should be read as finding that such abuse did occur.

To the extent that the trial court’s order should be read as finding that abuse

occurred, the basis for this finding is not specified. From our review of the record, we

conclude that the finding regarding physical and sexual abuse must refer to the incident in

which Mother felt pressured to have sex, and initially consented to having sex, soon after

being cleared for sexual activity by her doctor, and withdrew consent during the act; Father,

however, ultimately did not stop. Like the trial court, we are troubled by Father’s conduct

toward Mother as it relates to this incident. Mother’s testimony, which the trial court clearly

credited, shows that this not entirely consensual encounter was particularly traumatic for

Mother. We therefore cannot condone Father’s behavior.

- 22 -

But the proof also shows that Mother herself did not allege that this incident

constituted “marital rape,” as characterized by the trial court. Nor did she in any way

characterize it as “violent.” Moreover, this was a single, isolated incident in which Father

used poor judgment. Mother made clear that there were no other incidents in which

physical force or physical coercion was used against her in any manner whatsoever. And

Mother thereafter chose to remain in the relationship with Father. In fact, even after the

separation, Mother continued to seek reconciliation with Father.

In less fraught circumstances, we have often held that single incidents of poor

behavior should not be used as dispositive factors in parenting decisions, as no parent is

perfect. In particular, in the context of a finding of a material change in circumstances, we

have explained that we are typically “disinclined to allow a single incident to serve as the

basis for changing a primary residential parent designation” because

[a]n apparently isolated episode of poor judgment . . . is insufficient to

establish a material change of circumstance. If that were the case, no parent

ever would be able to maintain custody of his or her children as parents are

inherently human and fallible. A parent is not required to be perfect or error

free in his/her parenting in order to avoid there being a material change of

circumstances.

Skowronski v. Wade, No. M2014-01501-COA-R3-CV, 2015 WL 6509296, at *6 (Tenn.

Ct. App. Oct. 27, 2015) (quoting Beckham v. Beckham, No. M2007-02863-COA-R3-CV,

2009 WL 690692, at *12 (Tenn. Ct. App. Mar. 13, 2009)).

The trial court’s finding of mental abuse has even less support in the record. Once

again, the trial court’s order does not specify what conduct on the part of Father constituted

mental abuse. As such, we are essentially left to guess as to what conduct this finding

relates to. See In re Joseph H., No. M2014-01765-COA-R3-JV, 2015 WL 5032066, at *2

(Tenn. Ct. App. Aug. 25, 2015) (quotation marks and citation omitted) (“[I]n the absence

of findings of fact and conclusions of law [as mandated by Rule 52.01 of the Tennessee

Rules of Civil Procedure], this court is left to wonder on what basis the court reached its

ultimate decision.”). As we perceive it, this finding likely relates to Mother’s testimony

about the Bible verses left for her around the house and Father pressuring her to have sex.12

But once again, the trial court characterizes this conduct differently than Mother, as she

admitted that she was unclear as to the motivation for Father’s conduct. As such, it is

something of a stretch to label this particular conduct mental abuse.

From our meticulous review of the record, it would take multiple such inferential

leaps to arrive at the conclusion that Father abused Mother. If the trial court indeed drew

12

Perhaps the trial court based its finding regarding sexual abuse on this conduct, as well, but,

again, its reasoning as to the findings with respect to abuse is profoundly unclear.

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such inferences from the testimony, including based on its credibility determinations, it

should have explained as much. See Van Tran v. State, 6 S.W.3d 257, 271 (Tenn. 1999),

abrogated on other grounds by State v. Irick, 320 S.W.3d 284 (Tenn. 2010) (citation

omitted) (“[I]n the written findings of fact, the trial court shall set out any undisputed facts

[and] explain its assessment of the credibility of the various expert witnesses and their

conflicting opinions[.]”); Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn.

1991) (declining to defer to the trial court’s finding that the plaintiff’s testimony was not

credible because the trial court set forth no reasons for such a finding and the record did

not otherwise demonstrate a basis for this finding); In re Lennon R., 2019 WL 2226007,

at *4 (“[T]he better practice would have been for the trial court to explain the reasons for

its credibility finding[.]”); Small v. Small, No. M2009-00248-COA-R3-CV, 2010 WL

334637, at *23 (Tenn. Ct. App. Jan. 28, 2010) (“We are particularly concerned with the

court’s seemingly cavalier treatment of . . . witnesses called on behalf of Husband, whose

testimony the court disregarded without substantial explanation[.]”).

So it appears that the trial court may have found that factor two heavily favors

Mother based in large part on a single instance of, admittedly, very poor conduct on

Father’s part. But the trial court’s order does not indicate how this conduct in any way

affected Harper or either parent-child relationship. See Cummings, 2004 WL 2346000, at

*8 n.5 (citing Mimms, 780 S.W.2d at 745). Certainly, the proof shows that Harper is bright,

well-adjusted, bonded to both parents, and each parent generally attempts to facilitate her

relationship and bond with the other. Moreover, while Mother shares no blame whatsoever

with regard to the incident involving her withdrawing consent, Mother admittedly hoped

to keep the relationship alive even following Father’s conduct. Thus, the proof suggests

that she did not have qualms about Father’s ability to parent notwithstanding this single

incident, as her testimony also demonstrates. Indeed, Mother agreed to an equal parenting

arrangement with Father when they separated. But the trial court’s finding essentially

discounts Father’s role in the child’s life, which for over two years was largely equal to

Mother’s. On the whole, we cannot agree that this incident is evidence that Father cannot

or will not facilitate a close and loving relationship between Harper and Mother. Instead,

the evidence shows that the parties have been able to effectively co-parent, notwithstanding

a few instances of intractable behavior on the part of both parents. Given this long history

of effective co-parenting and the strong bond that both parties undisputedly share with the

child, we must conclude that this factor is equal.

On factor five, the trial court’s findings were as follows:

The Court acknowledges that [] Father does care for the child. However, the

Mother has been the primary caregiver as it pertains to the minor child.

While [] Father has, on occasion, taken the child to scheduled doctor

appointments during his coparenting time, the Mother has performed the

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greater responsibility for performing parenting tasks. Therefore, Mother has

been the primary caregiver for the minor child.

This factor weighs in [] Mother’s favor.

See Tenn. Code Ann. § 36-6-106(a)(5) (involving which parent has been the primary

caregiver). Our same analysis under factor one applies here: Mother is slightly more of a

primary caregiver to Harper. Thus, this factor weighs slightly in her favor.

As to factor seven, the trial court found:

This factor weighs in favor of [] Mother. The minor child is young and, as

all children, needs a routine. [] Mother testified as to the specific routine and

care she provides for the child. [] Father’s schedule varied greatly for the

child. Due to the child’s age and need for a consistent routine, this factor

weighs slightly in favor of [] Mother.

See Tenn. Code Ann. § 36-6-106(a)(7) (regarding the child’s emotional needs and

developmental level). It appears that Father’s schedule may indeed vary more than

Mother’s, to the extent that he takes Harper to more and later outings. However, just

because divorced parents have different parenting styles does not mean one is necessarily

better. See, e.g., Gratton v. Gratton, No. M2004-01964-COA-R3-CV, 2006 WL 794883,

at *5 (Tenn. Ct. App. Mar. 28, 2006) (“The evidence showed that both parents have a

warm, attentive and loving relationship with the child. To be sure, their parenting styles

are different, but we cannot conclude based on the evidence that Father’s parenting is

superior[.]”). Nor did the trial court explain how Father’s routine, or lack thereof,

negatively affected Harper. The only evidence to that effect, besides Mother’s conclusory

opinion that Father’s lack of routine is not good for Harper, was Mother’s testimony that

Harper is often tired upon returning from Father’s care. However, Father introduced logs

he kept of his daily activities with Harper in evidence, spanning from the time the parties

separated through April 2017, and then again from the time Mother filed for divorce until

June 2019. The latter set of those logs indicates that Father parented Harper with a certain

level of structure, including roughly consistent bedtimes. Moreover, Mother admitted at

the first hearing that she did not really know Father’s routine, despite her speculation that

he lacked one. She also acknowledged that the continuity of Harper’s life is being

maintained, that Father has been properly caring for Harper, and that she could not say that

Harper was never up past 8:00 PM in her care. Therefore, Mother’s irresolute testimony is

insufficient to discredit the evidence Father provided of how he parents Harper with some

general structure and consistency, albeit perhaps not up to Mother’s subjective standards.

Thus, this factor is equal.

The trial court’s findings regarding factor eight are as follows:

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This factor weighs heavily in favor of [] Mother.

[] Father admittedly had issues with pornography. [] Mother also testified as

to instances of unwanted and unsolicited advances to [] Mother during the

course of the marriage. [] Father further showed a lack of maturity and fitness

by taking the child to his work place and a ballgame while the child was sick.

Further, [] Father’s use of the ordered co-parenting plan as a weapon and to

spite [] Mother affects his ability to co-parent equally.

See Tenn. Code Ann. § 36-6-106(a)(8) (involving each parent’s moral, physical, mental

and emotional fitness of each parent as it relates to their parenting abilities). As previously

discussed, the trial court’s finding as to Father’s weaponization of the temporary parenting

plan is not supported by the evidence presented. We will therefore not repeat our

conclusions and analysis as to that issue. While we cannot say the trial court is wrong to

question Father’s decision to take Harper out when she was sick, it was also a singular

instance, where, per Mother, he ultimately took her home, apparently earlier than planned,

and to the doctor.

As to the issues regarding pornography and sex, again, there was no evidence that

Harper has been affected by those in any way. In fact, the undisputed testimony regarding

Father’s pornography usage was that it has had no effect on Harper whatsoever. This factor

relates to a parent’s fitness “as it relates to their ability to parent the child.” Id. (emphasis

added). In a similar case, this Court was called upon to review a trial court’s restriction of

a father’s parenting rights under a parenting plan because it had “concerns re: Father’s

penchant for pornography” and other sexual activity. See Petty v. Petty, No. E2004-01421-

COA-R3-CV, 2005 WL 1183149, at *1 (Tenn. Ct. App. May 19, 2005). We explained that

“[i]n Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999), the Tennessee Supreme Court

acknowledged that ‘sexual indiscretion does not, by itself, disqualify a parent from being

awarded custody, but it may be a relevant factor if it involves the neglect of the child.’” Id.

at *5 (citation omitted). In Petty, as in the case-at-bar, “no proof [was] presented . . . that

any of the activities ascribed to [the f]ather ha[d] affected his relationship with his children

or that his children ha[d] been, or w[ould] be, exposed to any material which has been

designated ‘pornographic.’” Id. Also as in this case, to whatever extent the father in Petty

engaged “in the activities objected to, he d[id] so outside of the presence of his children

and there [wa]s no proof that his children [we]re ever exposed to any of these activities.

Nor [wa]s there proof that any of these activities affect[ed] [his] relationship with his

children in any way whatsoever.” Id. Therefore, this Court modified the trial court’s

judgment to reverse the restrictions it placed on the father’s parenting rights. Id. at *1; see

also id. at *5 (“[N]o expert proof was submitted by [the m]other to support the trial court’s

statement that the activities engaged in by [the f]ather ‘can be addictive . . . .’ and we do

not find this to be a proper matter for judicial notice.”). Thus, the same conclusion follows

here: because the proof was undisputed that Father’s pornography habit and the issues

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involving Mother and Father’s sexual relationship had no effect whatsoever on Harper, the

trial court was in error in relying on these matters as proof of a lack of moral or mental

fitness as it relates to his parenting Harper. Removing this consideration, we must conclude

that this factor actually weighs equally in each party’s favor.

As to factor ten, that trial court found the following:

This factor weighs slightly in favor of [] Mother.

[] Mother resides in the marital home and the only home the child has known.

[] Father does have a satisfactory living environment however, as previously

stated, he has a lack of consistent routine with the minor child.

See Tenn. Code Ann. § 36-6-106(a)(10) (involving the importance of continuity and how

long the child has lived in a stable environment). Our previous analysis regarding Harper’s

routine applies here. Additionally, the trial court’s finding that Mother’s home is “the only

home the child has known” is, simply, incorrect. Harper has lived with Father at his

parents’ house during his parenting time, which has been substantial. The trial court also

offers no explanation for why Mother’s home is more stable, when it expressly found that

Father’s living environment is satisfactory. An inevitability of divorce is that children will

have to live in more than one home. That is not adequate reason to limit parenting time.

See Krulewicz v. Krulewicz, No. M2021-00190-COA-R3-CV, 2022 WL 287811, at *11

(Tenn. Ct. App. Feb. 1, 2022) (“[U]nfortunately some disruption in children’s lives is

inevitable in divorce.”); Taylor v. Taylor, 849 S.W.2d 319, 330 (Tenn. 1993) (citation

omitted) (“Adjustments and accommodations must be made as a result of the divorce, the

whole point of which was to permit each parent to go his or her own way. Within reason,

both parties must be permitted to do so, and the child’s best interests must be served within

that context.”). Therefore, because there is no evidence that Father’s home is unstable, this

factor is equal.

The trial court made the following findings on factor fourteen:

This factor weighs in favor of [] Mother.

[] Father’s work schedule is flexible. [] Mother’s work schedule is somewhat

more stringent as a teacher but is accommodating for child rearing.

This factor could weigh in favor of both parties, except that [] Father

demanded a stringent early drop off daycare schedule despite his testimony

about being allowed to be flexible with his work schedule for co-parenting.

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During the time that the Court awarded [] Father a trial period of significant

and almost equal parenting time [] Father continued with the status quo of

waking the child early for daycare. The Court finds that [] Father did not use

or take advantage of the flexibility in his work schedule that he testified he

was allotted.

Therefore, this factor weighs in favor of [] Mother, although [] Father had

the ability to utilize flexibility in his work schedule, he did not.

See Tenn. Code Ann. § 36-6-106(a)(14) (involving the parents’ employment schedules).

Again, we reiterate that a parent’s choice to have a slightly different schedule for a

child than the other parent does not necessarily mean that one schedule is superior. See

Gratton, 2006 WL 794883, at *5. Further, Mother testified that Father had always waked

early. Thus, it appears that his choice to drop Harper off at daycare early, even if earlier

than necessary for him to arrive at work on time, does not indicate a significant deviation

from his usual schedule. Moreover, Mother did not testify regarding specific times she

wakes Harper versus when Father wakes Harper —she only took issue with the drop off

times. From our review of some of the daycare sign-in sheets,13 it appears that Mother

would generally drop Harper off between approximately 7:15 and 7:45 AM, and Father

would generally drop her off around 6:30 AM, although on a few occasions each parent

deviated slightly from those times. This seems to basically line up with the parties’

testimony. There may be some validity to Mother’s preference for a later drop off. But

there is no clear evidence in the record that Father’s early drop off schedule inflicted harm

on Harper, including any testimony from Ms. Orean that would indicate Harper was

suffering in any way when she would arrive early at daycare. Again, the main concern in

fashioning parenting schedules is the child’s welfare. See Shofner, 181 S.W.3d at 715–16.

Rather, the general undisputed testimony is that Father’s work schedule is flexible enough

to allow him to take care of Harper. Therefore, this factor is equal.

Finally, the trial court stated that it deemed no other factors relevant, despite the

allowance in section 36-6-106(15) to consider other relevant factors. However, as

explained supra, the trial court considered Harper’s age, erroneously relying on the tender

years doctrine. The trial court also relied on Harper’s gender in an impermissibly

conclusory manner, as explained supra.

We therefore agree with Father that the trial court erred in much of its best interest

analysis. In light of our consideration of the best interest factors and the statutory

instruction to maximize each parent’s time, we also conclude that the trial court erred by

failing to maximize Father’s parenting time. “[T]hese parents, like all parents, have their

own strengths and weaknesses.” Shofner, 181 S.W.3d at 716 (citing Gaskill v. Gaskill, 936

13

Some of these are illegible due to poor copy quality.

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S.W.2d 626, 630(Tenn. Ct. App. 1996)). “It would be unrealistic to measure them against

the standard of perfection because, in reality, this standard is unattainable.” Id. As our

analysis of the best interest factors demonstrates, while each parent has drawbacks, “we

have not found evidence indicating that either parent is unfit.” Id. at 717. “No evidence

was introduced that put Father’s parenting skills at issue, and no evidence was introduced

to indicate that Mother was a better parent.” Gooding, 477 S.W.3d at 784.

Here, the trial court’s parenting plan is “notably lop-sided.” Barnes, 2012 WL

5266382, at *8. “We recognize that, in some instances, such a parenting schedule may be

necessary to fit the child’s needs, which are paramount.” Id. However, the evidence is clear

that each party is a good parent and has a good relationship with Harper, whatever their

personal or relational issues may be. Moreover, the parties shared equal time by agreement

for twenty months before the court entered its temporary order, which then afforded the

parties almost equal time for roughly seven months. Yet, the trial court ultimately limited

Father’s time to 120 days, giving Mother 245 days. While courts “shall not draw any

presumptions from [a] temporary parenting plan,” Tenn. Code Ann. § 36-6-406(e), when

a temporary parenting plan is in place for a long time, courts may consider that when

determining the details of a permanent plan. See Gorski v. Ragains, No. 01A01-9710-GS-

00597, 1999 WL 511451, at *6 (Tenn. Ct. App. July 21, 1999) (quoting King v. King, No.

01-A-019110PB00370, 1992 WL 301303, at *2 (Tenn. Ct. App. Oct. 23, 1992))

(discussing, in a change of custody case, how the Court could not ignore that the children

had been with one parent for an “extended period” under a temporary parenting plan, and

how “temporary custody, when permitted to continue over a long period, creates a ‘new

status quo’”); see also Shofner, 181 S.W.3d at 718 (citations omitted) (“The fact that the

parenting plan at issue in this case has been in place since September 2002 has influenced

our analysis of the issues in this case. Children have the best opportunity to thrive when

they live in stable environments.”).

Additionally, the fact that the trial court ultimately adopted a parenting plan that

afforded Father fewer parenting days than Mother proposed “is noteworthy.” Barnes, 2012

WL 5266382, at *8; see also id. (citing Greer v. Greer, No. W2009-01587-COA-R3-CV,

2010 WL 3852321, at *7 (Tenn. Ct. App. Sept. 30, 2010)) (“While the trial court is not

bound by a parenting arrangement on which the parties have agreed, it may legitimately

take such an agreement into account.”). “For reasons unexplained by the record, the trial

court did not make findings to . . . state why a substantial reduction in [Father’s] parenting

time from [Mother’s] plan was in [Harper’s] best interests.” McDaniel v. McDaniel, No.

M2012-01892-COA-R3-CV, 2013 WL 3958388, at *3 (Tenn. Ct. App. July 29, 2013).

“With the restrictions on Father’s parenting time, it cannot be said that he is able to

enjoy the ‘maximum participation possible’ in his child’s life.” In re Grace N., No.

M2014-00803-COA-R3-JV, 2015 WL 2358630, at *5 (Tenn. Ct. App. May 14, 2015). And

in light of our analysis of the best interest factors, the fact that Mother was willing to afford

Father more days than the trial court ultimately ordered, and the parties successfully

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parented essentially equally for an extended period, the trial court did not have a justifiable

reason for thusly restricting Father’s parenting time. “Considering the above, we are unable

to conclude that the parenting schedule adopted by the trial court is in the best interests of

the children.” McDaniel, 2013 WL 3958388, at *4. Therefore, and in light of “the fact that

the General Assembly has established the aspirational goal for the courts to maximize each

parent’s participation in the life of the child,” see Tenn. Code Ann. § 36-6-106(a), “we

reverse and remand with instructions for the trial court to establish a parenting schedule

that maximizes each parent’s participation in the life of the child.” Gooding, 477 S.W.3d

at 784.

“[W]e are cognizant that ‘[i]t 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.’” In re Lennon R., 2019 WL 2226007, at *14 (citing Armbrister v. Armbrister,

414 S.W.3d 685, 693 (Tenn. 2013) (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn.

2001))). However, “we conclude that the trial court abused its discretion because it reached

an illogical conclusion when it awarded [Father] only [Thursday and] every other weekend

with” Harper. Id. “As discussed above, the evidence does not support such a custody

arrangement. It is clear that such an arrangement would not be in [Harper’s] best interest.

Due to [her] bond with both parents, significantly truncating her time with either would

likely cause [Harper] distress.” Id. Accordingly, on remand, the trial court should “fashion

a more equal parenting schedule between the parties” in light of the concerns raised in this

Opinion. Id. (citing Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (quoting Armbrister,

414 S.W.3d at 693)).

B. ALIMONY

As our supreme court has explained, “in determining whether to award spousal

support and, if so, determining the nature, amount, length, and manner of payment, courts

consider several factors,” which are outlined in Tennessee Code Annotated section 36-5-

121(i). Gonsewski v. Gonsewski, 350 S.W.3d 99, 109–10 (Tenn. 2011). “Although each

of these factors must be considered when relevant to the parties’ circumstances, ‘the two

that are considered the most important are the disadvantaged spouse’s need and the obligor

spouse’s ability to pay.’” Id. at 110 (citations omitted). “Carefully adhering to the statutory

framework for awarding spousal support, both in terms of awarding the correct type of

support and for an appropriate amount and time, fulfills not only the statutory directives

but also alimony’s fundamental purpose of eliminating spousal dependency where

possible.” Id.

Additionally, under Rule 52.01 of the Tennessee Rules of Civil Procedure, “[i]n all

actions tried upon the facts without a jury, the court shall find the facts specially and shall

state separately its conclusions of law and direct the entry of the appropriate judgment.”

“The underlying rationale for this mandate is that it facilitates appellate review by

‘affording a reviewing court a clear understanding of the basis of a trial court’s decision,’

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and in the absence of findings of fact and conclusions of law, ‘this court is left to wonder

on what basis the court reached its ultimate decision.’” Gooding, 477 S.W.3d at 782

(citations omitted). “Simply stating the trial court’s decision, without more”—as the trial

court did here—“does not fulfill [Rule 52.01’s] mandate.” Barnes, 2012 WL 5266382, at

*8.

Unfortunately, the entirety of the trial court’s ruling on alimony in this case was as

follows: “The Court hereby indicated that a little alimony for a short period of time should

be awarded and hereby orders that [Father] pay transitional alimony in the amount of

$500.00 per month for a period of two (2) years.” Even after amending its orders multiple

times, the trial court did not expound upon this determination. Therefore, it appears that

the trial court did not properly consider the above alimony factors. It also failed to comply

with Rule 52.01 by “[s]imply stating [its alimony] decision, without more.” Id.

Consequently, we vacate the trial court’s award of alimony to Mother and remand

for the trial court to engage in the proper analysis and considerations regarding alimony,

and to enter an order that properly explains its alimony decision. See, e.g., Brainerd v.

Brainerd, No. M2015-00362-COA-R3-CV, 2016 WL 6996365, at *6 (Tenn. Ct. App. Nov.

30, 2016) (citing Donaldson v. Donaldson, No. M2015-01035-COA-R3-CV, 2016 WL

3662305, at *4 (Tenn. Ct. App. June 30, 2016) (vacating and remanding an alimony award

when trial court made insufficient findings with respect to need)) (“[W]e vacate the award

of [] alimony and remand for reconsideration of the type, duration and amount of alimony,

if any, to be awarded and for the entry of sufficient findings of fact and conclusions of

law.”).14

C. ATTORNEY’S FEES ON APPEAL

Each party requests attorney’s fees incurred on appeal in the argument sections of

their briefs. “Under Tennessee Code Annotated section 36-5-103(c), ‘[a] prevailing party

may recover reasonable attorney’s fees’ in suits involving changes in child custody. Tenn.

Code Ann. § 36-5-103(c).” In re Lennon R., 2019 WL 2226007, at *15. “[I]t is left to this

Court’s sound discretion whether to award such fees.” Id. (citation omitted). However,

neither party specifically designates appellate attorney’s fees as an issue presented on

14

Father does not outright ask this Court to remand this case to a different trial judge, but suggests

that to remand to the original trial judge would be problematic. However, recusal of the trial judge was not

designated as an issue on appeal, nor was a recusal motion ever filed. See Kinard v. Kinard, 986 S.W.2d

220, 228 (Tenn. Ct. App. 1998) (citations omitted) (“[R]ecusal motions must be filed promptly after the

facts forming the basis for the motion become known, and the failure to assert them in a timely manner

results in a waiver of a party’s right to question a judge’s impartiality.”). Moreover, the vague insinuations

in Father’s brief are not sufficient to warrant disqualification of the trial judge on remand. See Biggs v.

Town of Nolensville, No. M2021-00397-COA-R3-CV, 2022 WL 41117, at *5 (Tenn. Ct. App. Jan. 5, 2022)

(rejecting an appellant’s argument that the matter should be reassigned on remand because the trial court’s

adverse rulings were not sufficient to justify disqualification).

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appeal. “[A]n issue may be deemed waived when it is argued in the brief but is not

designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).” Hodge v. Craig, 382

S.W.3d 325, 335 (Tenn. 2012). Therefore, we conclude that each party has waived this

issue.

CONCLUSION

The judgment of the Domestic Relations Court of Meigs County is reversed in part

and vacated in part. This cause is remanded for further proceedings consistent with this

Opinion. Costs of this appeal are assessed to Appellee Megan Arndst Woody, for which

execution may issue if necessary.

S/ J. Steven Stafford

J. STEVEN STAFFORD, JUDGE

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