# Barnhill v. Barnhill > Court of Appeals of Tennessee · July 17, 1991 · 826 S.W.2d 443 URL: https://www.frixlaw.com/law-library/cases/9775898 ## Case - **Full name:** Sherri Lee BARNHILL, Plaintiff/Counter Defendant/Appellant, v. James Howell BARNHILL, Defendant/Counter Plaintiff/Appellee - **Court:** Court of Appeals of Tennessee - **Decided:** July 17, 1991 - **Citations:** 826 S.W.2d 443; 1991 Tenn. App. LEXIS 561 - **Precedential status:** Published - **Opinion:** Dissent by Tomlin - **Judges:** Farmer, Tomlin, Crawford - **Cited by:** 206 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9775898 ## How later opinions describe it (automated extraction) - holding that, where spouse acquired real property with separate funds but registered property in names of both spouses as joint tenants, presumption arose that spouse made gift to marital estate - finding 18 acre tract of land that husband inherited and registered in the names of both Husband and Wife was marital property because husband failed to show he intended it to be separate - affirming trial court’s decision to award parties joint custody, with primary custody to father, where record revealed that father had been children’s primary caregiver during latter course of parties’ marriage - holding that appellant waives issue for purposes of appellate review by failing to raise such issue at trial court level - holding that, where appellant failed to make appropriate objection at trial court level, issue was waived on appeal ## Opinion text TOMLIN, Presiding Judge, Western Section, dissenting. I respectfully dissent from that portion of the majority opinion affirming the trial court’s action in awarding the parties joint custody of their two minor children. The language of the trial court’s decree awarding custody may be found in the majority opinion. In short, the decree provides that Father is to have custody of the children during the school year, and Mother is to have them during the summer months when they are not enrolled in school. Nonetheless, the order provides that during the school year Mother is to have “custody” of the children every weekend from Friday afternoon to Sunday evening, except for every other Sunday when Father is to have the children. The order further specifies that Father is to have “primary custody” of the children during the school week. However, insofar as the children’s “participation in school, church and other extracurricular activities ... such as Scouts and athletic programs,” Mother is to have supervision and custody of the children. In this writer’s opinion, the potential for conflict between the joint custodial parents is substantial. This conflict will only inure to the detriment of the children. While acknowledging that through Dodd v. Dodd, 737 S.W.2d 286 (Tenn.App.1987) this Court has spoken strongly against joint custody, I fear that under the facts of this case the majority has failed to give full recognition of the depth of the thrust of Dodd . Therein this Court stated: Notwithstanding the fact that joint custody of minor children is permitted by statute, we have found it necessary to reverse a large number of such decrees during the past several years. The experience of this Court has been that joint custody rarely, if ever, works — for the children. There needs to be one residence, one haven in all the storms of life, including those storms whipped up by the winds of divorce. There needs to be one parent with primary control and responsibility for the upbringing of the parties’ children, whenever possible. Custody, in reality, means responsibility for the care, nurture and development of the mental, emotional and physical needs of the child. The custodial parent should expect and receive cooperation and assistance from the non-custodial parent in every respect to serve the best interests of their child or children. *459 In contested divorces, when feelings are usually heated and emotions run high, it would appear to this Court that joint custody would not serve the best interests of the child. Even when the circumstances of the case would suggest joint custody, for it to be successful would require a harmonious and cooperative relationship between both parents. Id. at 289-90 . Under the terms of the trial court’s order, Father has “primary custody” during the five-day school week for approximately nine months, but the baton passes to Mother every weekend. Furthermore, the order provides that Mother will have the “supervision and custody” of the children’s involvement in extra-curricular activities of school, church, athletics, and Scouts during the school week. If there were no conflicts between the parties previously, they now have been built in by virtue of the trial court's decree. This relief was undoubtedly fashioned as a result of the testimony of the parties to the effect that Father believed that the work ethic should take predominance over the children’s lives as opposed to their involvement in extra-curricular activities. Joint custody calls for mutuality of decision-making regarding the children. The majority opinion seeks to soften the blow of joint custody to some degree by tempering the visitation rights of the parties, particularly in allowing Father visitation every other weekend rather than letting Mother have visitation every weekend. Notwithstanding this, Father and Mother still are faced with the built-in conflict to which we have already alluded in that under the majority opinion Mother will have the “supervision and custody” of the children’s extra-curricular activities involving school, church, athletics, and Scouts during the school week. As noted in the majority opinion, the record in this case clearly establishes that Father has been and should be considered the better parent of the children. The majority opinion notes without contradiction that although Father and Mother shared the responsibilities of raising the children when the children were younger, as they grew older the responsibility shifted more and more to Father. The majority opinion notes also that the parties’ minister, along with a former friend of both parties, testified that in their respective opinions Father was the better parent. It is significant to note that the majority opinion observed that “[wjife’s mother testified that Husband was a good father and that when she would call or come by the parties’ home Husband would routinely be the one there taking care of the children.” In child-custody matters, the welfare of the children involved is the polestar. As Judge Conner said in Bah v. Bah, 668 S.W.2d 663, 665 (Tenn.App.1983), “[i]t is the ... alpha and omega.” Not only does the decree regarding custody as fashioned by the trial court work against the welfare of the children, but the evidence preponderates against a finding of joint custody and actually preponderates in favor of custody to Father. Accordingly, I would award absolute and complete custody and control of the children to Father. I otherwise concur in the balance of the majority opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775898. Public record. Not legal advice.