Madeline Lee Williams v. Joshua Dwain Williams

Nashville, TN - Divorce lawyer represented appellee with seeking attorney's fees and costs.

The plaintiff, Madeline Lee Williams ("Wife”), and the defendant, Joshua Dwain

Williams ("Husband”), were married on September 6, 2014, and separated on May 27,

2019. The parties have one daughter ("the Child”), who was born in May 2018. Wife filed

04/07/2022

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a complaint for divorce in the Bradley County Circuit Court ("trial court”) on July 1, 2019.

In her complaint, Wife sought a divorce based upon Husband's inappropriate marital

conduct and, alternatively, the parties' irreconcilable differences. Wife included a

proposed temporary parenting plan, requesting that she be designated primary residential

parent, that the Child reside with her at all times, and that Husband's co-parenting time be

supervised. On July 15, 2019, Husband filed an answer and counter-complaint in which

he also alleged inappropriate marital conduct, opposed Wife's proposed temporary

parenting plan, and requested that the parties share co-parenting time equally.

On July 15, 2019, Wife filed a petition in the Bradley County General Sessions

Court ("general sessions court”) for an order of protection against Husband, alleging that

he had been arrested on July 14, 2019, for domestic assault against Wife while in the

presence of the Child.1 As a result, the general sessions court entered an ex parte order of

protection against Husband on the same day. On July 19, 2019, Husband filed a motion in

the trial court seeking a restraining order against Wife. In his petition, Husband alleged

that Wife had initiated arguments; attacked him verbally; and recorded, filmed, and

harassed him throughout the pendency of the divorce. With respect to the July 14, 2019

incident, Husband averred that Wife or her mother had called and made false allegations

to the police, resulting in his arrest. Husband requested an order to prevent Wife from

coming within one hundred feet of him or making false allegations against him.

On July 30, 2019, Wife filed a request to voluntarily dismiss the order of protection.

Following a hearing in the trial court on July 30, 2019, the trial court entered an order on

August 8, 2019, announcing that the parties had entered into a mutual restraining order.

The court also ordered that Husband would have supervised co-parenting time up to three

times per week, to be supervised by Solomon Family Solutions.

The trial court conducted another hearing on August 15, 2019, with respect to the

parties' opposing temporary parenting plans. As a result, the trial court entered a temporary

parenting plan order ("Temporary Parenting Plan”) on October 2, 2019, providing the

following instructions, inter alia, to the parties:

[Husband] shall not consume alcohol while the child is in his care

during his co-parenting time set forth below, nor shall he consume alcohol

prior to picking the child up for his co-parenting time.

The Court believes [Husband] has an alcohol problem and based upon

[Husband's] testimony that he will attend Celebrate Recovery, the Court



1 Although the record is unclear as to whether Wife filed the petition for an order of protection in the trial

court or the general sessions court, Wife states in her appellate brief that she filed the petition in the general

sessions court and that the general sessions court issued the ex parte order of protection. It appears,

however, that the trial court ultimately dismissed the order of protection and entered a mutual restraining

order.

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hereby Orders [Husband] to attend Celebrate Recovery. [Husband] shall also

contact and work with the Employee Assistance Program that is offered

through his place of employment to get whatever treatment is available to

him through their program in addition to participating in the Celebrate

Recovery program.

The child shall reside with the [Wife] at all times except during the

[Husband's] co-parenting time set forth below.

[Husband] testified that he gets off work between 5:00 p.m. or 5:30

p.m. Therefore, [Husband] will have co-parenting time with the child every

Monday, Wednesday and Friday with his co-parenting time beginning when

he gets off from work between 5:00 p.m. and 5:30 p.m. and continue until

7:00 p.m. when he returns the child to [Wife]. Given that there is a No

Contact Order in place between the [Wife] and [Husband], the child will be

picked up from daycare during the weekdays, if she is still in daycare

between 5:00 p.m. and 5:30 p.m., when [Husband] gets off work and shall

return the child to the maternal grandparents' home at the conclusion of his

co-parenting time. If the child is not in daycare when [Husband] gets off

work between 5:00 p.m. and 5:30 p.m., then he will pick up the child at the

maternal grandparents' home.

[Husband] shall also have one day during each weekend beginning at

9:00 a.m. and continuing until 7:00 p.m. One weekend, [Husband] will have

the child Saturday from 9:00 a.m. until 7:00 p.m. and the following weekend,

[Husband] will have the child on Sunday from 9:00 a.m. until 7:00 p.m. and

shall take the child to the church that the parties have always attended on the

Sundays that he has the child.

(Paragraph numbering omitted.) The order also provided that any inconsistencies between

the order and the transcript of the court's memorandum opinion would be construed in

favor of the memorandum opinion.

Thereafter, Husband filed a motion for holiday co-parenting time and to set a trial

date. Husband averred that Wife would not allow him to pick up the Child earlier than

5:00 p.m. even on days when he left work early, and he requested clarification on this point.

On December 20, 2019, Wife filed a motion for civil contempt and to restrict

Husband's co-parenting time. Wife alleged that Husband had intentionally violated the

Temporary Parenting Plan by consuming alcohol prior to retrieving the Child. Wife

specifically claimed that Husband had consumed alcohol the night before and into the early

hours of one of his visitation days. Wife also averred that Husband had purchased alcohol

while the Child was in his care although she was unable to verify whether he had consumed

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the alcohol while the Child was with him. In addition, Wife alleged that Husband had

failed to consistently participate in Celebrate Recovery or his employee assistance program

and that he had failed to take the Child to church on Sundays.

After the first day of trial conducted in March 2020, Husband filed a motion on

April 17, 2020, requesting that the trial court clarify the Temporary Parenting Plan and

grant him additional co-parenting time. Husband noted that while the plan provided that

his co-parenting time would begin between 5:00 p.m. and 5:30 p.m., the transcript of the

bench opinion provided that Husband could pick up the Child after leaving work. Husband

additionally requested overnight visitation on weekends and various holidays. In doing so,

Husband noted that Solomon Family Solutions had raised no issues concerning his

parenting, that Husband's parenting time had been restricted for nearly a year, and that

Wife had failed to present proof that he had consumed alcohol while parenting the Child.

The trial court conducted the second day of trial on July 14, 2020, after a delay

caused by the COVID-19 pandemic. On August 5, 2020, the trial court entered an interim

order, which does not appear in the record. On October 6, 2020, Wife filed a motion to

reconsider or alter or amend a post-trial interim order. Wife's main contention was that

the Child would be traveling back and forth between the parents' homes too frequently,

and she offered another proposed schedule to minimize the frequency of exchanges.

On November 10, 2020, the trial court entered an order finding Husband not guilty

of civil contempt. The court credited Husband's testimony that he had participated in

Celebrate Recovery and taken the Child to church on Sundays. With respect to Husband's

alleged drinking on days of visitation, the court reviewed the testimony presented at trial.

During trial, Kyle Tippens testified that he had witnessed Husband drink a forty-ounce and

a twenty-ounce beer at Champy's restaurant at noon on Monday, December 9, 2019.

Private investigator Robert E. Bonnett testified via deposition to witnessing Husband drink

a forty-ounce beer at lunch on Friday, November 22, 2019, and a twelve-ounce beer at

lunch on Friday, December 6, 2019. Kay Baker, another private investigator, testified that

she had witnessed Husband purchase beer during his lunch hour on March 4, 2020.

Husband had scheduled visits with the Child after work on all of these dates. The court

also noted that Husband had denied drinking on these days and that Wife's mother testified

that she did not observe any evidence of alcohol consumption by Husband when he picked

up or dropped off the Child for visits.

The trial court concluded that the Temporary Parenting Plan was "not sufficiently

specific and objectively clear enough to be the basis for a finding of civil contempt” against

Husband for drinking on his lunch hour and at other times alleged. The court further

determined that its order did not clearly prohibit Husband from drinking on his lunch hour.

On the same day, the trial court entered its final order and judgment of divorce. In

its final order, the trial court declared the parties divorced pursuant to Tennessee Code

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Annotated § 36-4-129. With respect to each party's allegations against the other and the

impact of such allegations on the permanent parenting plan, the court determined that

Husband's testimony was credible and that he did not commit domestic abuse against Wife

on July 14, 2019. This finding was largely based on the court's review of the tape Wife

had recorded of the July 14, 2019 incident. However, the court did find that Wife had

punched Husband in the head three times on one occasion, that this constituted

inappropriate marital conduct, and that this finding required the court to limit the time the

permanent parenting plan would have otherwise provided Wife. The court noted that Wife

did not deny that this incident had occurred.

The trial court granted to Husband 130 days of co-parenting time annually with the

Child. Specifically, the court determined:

[Husband] shall have parenting time every Monday and Friday from

5:00 p.m. to 7:00 p.m.

[Husband] shall have overnight parenting time every Wednesday

from 6:00 p.m. to Thursday at 6:00 p.m.

[Husband] shall have a 48-hour period of parenting time from Friday

at 6:00 p.m. to Sunday at 6:00 p.m. every other weekend.

The parties shall split fall and spring breaks and split the two weeks

before and after Christmas day through New Years.

The parties shall have equal summertime days from the last week of

May through the first week of August.

The parties may exchange the child as frequently as every 2 days

during fall and spring breaks, summer, and Christmas equal time except each

parent shall have one seven day period to do a summer vacation with the

child.

[Husband] shall perform the transportation as he has been doing.

The parties or their agent shall arrive at exchanges at least 15 minutes

before the scheduled visit or return of the child in order to perform the blood

alcohol test(s) of [Husband] required by this order.

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Counsel shall prepare a Permanent Parenting Plan with the above

schedule with a child support worksheet attached setting child support as

ordered herein.

(Paragraph numbering omitted.)

In addition, the trial court ordered Husband to refrain from drinking "to excess”

around the Child and to continue to see an alcohol abuse doctor and attend Celebrate

Recovery. In order to ensure Husband's compliance, the court ordered Husband to obtain

a breathalyzer application on his cellular telephone or other device that would measure his

blood alcohol level to use at exchanges of the Child. According to the order, if Husband

were to test below .08%, he would be allowed to test again thirty minutes later. If, on the

second test, Husband's blood alcohol level had decreased, he would be allowed to continue

with the visit. If Husband were to test at or above .08%, his parenting time would be

suspended.

With respect to property distribution, the trial court determined that gifts received

from the parties' family members had been transmuted into marital property. Wife

requested that the court apply the principles of Batson v. Batson, 769 S.W.2d 849 (Tenn.

Ct. App. 1988), regarding short-term marriages to the property distribution and award her

a greater share of the proceeds from the sale of the marital residence as compensation for

the separate funds she brought into the marriage. The court declined to apply Batson and

awarded Husband a greater share of the proceeds from the sale of the marital residence.

On December 8, 2020, Husband filed a motion to alter or amend the trial court's

judgment, arguing that it contained extreme restrictions on Husband's ability to consume

alcohol and provided no end date to the restrictions. Husband also argued that the trial

court was required to limit Wife's co-parenting time after the court determined that she had

committed domestic abuse against him. Husband argued that he should have received fifty

percent co-parenting time rather than thirty-six percent. In addition, Husband sought

clarity concerning the holiday co-parenting schedule and requested that he not be required

to provide transportation for every exchange of the Child.

On January 21, 2021, the trial court conducted a hearing to address Husband's

motion to alter or amend the judgment as well as Wife's motion to reconsider or alter or

amend the post-trial interim order that had been filed in September 2020. In an order

entered on March 31, 2021, the court denied Wife's motion, finding that the final order and

judgment of divorce addressed the issues she had raised in her motion. The court also

denied Husband's motion, finding that the requirement that Husband utilize the

breathalyzer before visitation would remain in effect until Husband filed a petition

indicating successful completion of treatment as prescribed by the final order.

Furthermore, the court declined to modify the permanent parenting plan order, emphasizing

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that Wife had historically performed the majority of the parenting responsibilities. Wife

timely appealed.

II. Issues Presented

Wife has raised the following issues for our review, which we have restated slightly:

1. Whether the trial court erred in declaring the parties divorced pursuant

to Tennessee Code Annotated § 36-4-129 rather than awarding a

divorce to Wife based on Husband's inappropriate marital conduct.

2. Whether the trial court erred in rejecting Wife's proposed permanent

parenting plan.

3. Whether the trial court erred in considering transmutation and

commingling in its distribution of martial property instead of placing

the parties in the position each would have been in had the marriage

not taken place given the marriage's short duration.

4. Whether the trial court erred in failing to award attorney's fees to

Wife.

Husband has raised an additional issue, restated slightly as follows:

5. Whether this Court should award Husband damages, including his

reasonable attorney's fees and costs, for defending against Wife's

purportedly frivolous appeal.

III. Standard of Review

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

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

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

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

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

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

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

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

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

2002).

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In a case involving the proper classification and distribution of assets incident to a

divorce, our Supreme Court has explained the applicable standard of appellate review as

follows:

This Court gives great weight to the decisions of the trial court in

dividing marital assets and "we are disinclined to disturb the trial court's

decision unless the distribution lacks proper evidentiary support or results in

some error of law or misapplication of statutory requirements and

procedures.” Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App.

1996). As such, when dealing with the trial court's findings of fact, we

review the record de novo with a presumption of correctness, and we must

honor those findings unless there is evidence which preponderates to the

contrary. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854

S.W.2d 87, 91 (Tenn. 1993). Because trial courts are in a far better position

than this Court to observe the demeanor of the witnesses, the weight, faith,

and credit to be given witnesses' testimony lies in the first instance with the

trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991).

Consequently, where issues of credibility and weight of testimony are

involved, this Court will accord considerable deference to the trial court's

factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007)

(citing Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915

(Tenn. 1999)). The trial court's conclusions of law, however, are accorded

no presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d

741, 744-45 (Tenn. 2002).

Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). See Manis v. Manis, 49 S.W.3d 295, 306

(Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of marital

property "ordinarily defer to the trial judge's decision unless it is inconsistent with the

factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance of the

evidence.”).

This Court reviews a trial court's determination of an appropriate parenting plan

according to an abuse of discretion standard. "[C]ustody and visitation arrangements are

among the most important decisions confronting a trial court in a divorce case. The needs

of the children are paramount; while the desires of the parents are secondary.” Gaskill v.

Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996). As to our review of the trial court's

decision concerning attorney's fees in a divorce action, this Court has stated:

Our review of an award of attorney's fees is guided by the principle that "'the

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

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

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

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

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"Reversal of the trial court's decision [regarding] attorney fees at the trial

level should occur 'only when the trial court applies an incorrect legal

standard, reaches a decision that is illogical, bases its decision on a clearly

erroneous assessment of the evidence, or employs reasoning that causes an

injustice to the complaining party.'” Church v. Church, 346 S.W.3d 474,

487 (Tenn. Ct. App. 2010).

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

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

IV. Declaration of Divorce

Pursuant to Tennessee Code Annotated § 36-4-129

The trial court determined that Husband and Wife had each proven grounds for

divorce against the other, finding that Wife presented sufficient evidence that Husband had

abused alcohol and engaged in inappropriate contact with other women and that Husband

presented sufficient evidence that Wife had exhibited a "controlling and abusive

confrontation with him to the point that she punched him in the head three times.”

Inasmuch as the court found that both Husband and Wife were guilty of inappropriate

marital conduct under Tennessee Code Annotated § 36-4-101(a)(11), the court declared

the parties divorced pursuant to Tennessee Code Annotated § 36-4-129. Wife contests the

trial court's finding that she punched Husband in the head and thereby argues that the court

erred in determining that Husband had proven that she was guilty of inappropriate marital

conduct. Instead, she contends that her actions were, in reality, a "frustrated physical effort

by this tiny woman to wake up this 6' 6'' 300 lb. drunken man from his stupor.” We

conclude that the trial court did not err by the finding that Wife was also guilty of

inappropriate marital conduct and declaring the parties divorced pursuant to Tennessee

Code Annotated § 36-4-129.

Tennessee Code Annotated § 36-4-129(b) (2021) provides:

The court may, upon stipulation to or proof of any ground of divorce

pursuant to § 36-4-101, grant a divorce to the party who was less at fault or,

if either or both parties are entitled to a divorce or if a divorce is to be granted

on the grounds of irreconcilable differences, declare the parties to be

divorced, rather than awarding a divorce to either party alone.

This provision allows trial courts to declare the parties divorced in the event that both

parties demonstrate grounds, rather than awarding one party the divorce. Wife contends

that the trial court erred in declaring the parties divorced pursuant to Tennessee Code

Annotated § 36-4-129(b) because she alone proved grounds for divorce.

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The pivotal question is whether Husband sufficiently proved that Wife had

committed inappropriate marital conduct. Tennessee Code Annotated § 36-4-101(a)(11)

(2021) provides: "The husband or wife is guilty of such cruel and inhuman treatment or

conduct towards the spouse as renders cohabitation unsafe and improper, which may also

be referred to in pleadings as inappropriate marital conduct.” Thus, a party may establish

inappropriate marital conduct when "either or both of the parties [have] engaged in a course

of conduct which (1) caused pain, anguish or distress to the other party and (2) rendered

continued cohabitation 'improper,' 'unendurable,' 'intolerable,' or 'unacceptable.'”

Chaffin v. Ellis, 211 S.W.3d 264, 289 (Tenn. Ct. App. 2006) (quoting Eldridge v. Eldridge,

137 S.W.3d 1, 24 (Tenn. Ct. App. 2002)).

The trial court credited Husband's testimony that Wife punched him in the head

three times on one occasion. Husband explained that he left the marital home one night

and went to a friend's home as the result of an argument between the two parties.

According to Husband, when he did not return home, Wife drove to the friend's house to

bring Husband home. Husband stated that after returning to the marital home, he lay down

on the couch, and Wife hit him in the head three times. The court found that Wife did not

deny that this incident had occurred, and Wife has not denied her actions in her appellate

brief.

As this Court has previously noted, "[w]hether a party should be awarded a divorce

on grounds of inappropriate marital conduct is usually determined by a trial court's

assessment of witness credibility.” Dixon Tatum v. Tatum, No. E2013-02462-COA-R3-

CV, 2014 WL 12893281, at *4 (Tenn. Ct. App. Oct. 28, 2014). Moreover, "[i]n a case

where the resolution of the issues depends upon the truthfulness of witnesses, the trial judge

who has the opportunity to observe the witnesses in their manner and demeanor while

testifying is in a far better position than this Court to decide those issues.” Fann v. Fann,

No. W2000-02431-COA-R3-CV, 2001 WL 394858, at *2 (Tenn. Ct. App. Apr. 18, 2001).

In the present case, the trial court credited Husband's testimony that Wife had hit

him. Absent clear and convincing evidence, we will not second-guess the court's

credibility determination. See Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.

1999) ("[A]ppellate courts will not re-evaluate a trial judge's assessment of witness

credibility absent clear and convincing evidence to the contrary.”). Furthermore, this Court

has previously upheld a trial court's finding of inappropriate marital conduct when a wife

slapped her husband. See Dixon Tatum, 2014 WL 12893281, at *4 ("While the conduct

complained of occurred over the course of one day, we cannot discount the fact that Wife

unnecessarily introduced a level of physical violence into the admittedly heated

discussion.”).

Therefore, we conclude that the evidence preponderates in favor of the trial court's

finding that Wife had engaged in inappropriate marital conduct. Because the court found

that both Wife and Husband had engaged in inappropriate marital conduct, we discern no

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error in the court's declaration of divorce pursuant to Tennessee Code Annotated § 36-4-

129.

V. Permanent Parenting Plan Order

Wife argues that by enacting the permanent parenting plan, the trial court "bent over

backwards to adopt a plan” in Husband's best interest rather than the Child's best interest,

awarded Husband more "child awake time,” devised a parenting plan with too many

exchanges, failed to sufficiently weigh Husband's history of alcohol abuse, and erred in

failing to adopt Wife's proposed permanent parenting plan. The court awarded Wife 235

co-parenting days and Husband 130 co-parenting days in its permanent parenting plan,

providing that the Child is to reside with Husband every Monday and Friday from 5:00

p.m. to 7:00 p.m., every Wednesday from 6:00 p.m. to Thursday at 6:00 p.m., and alternate

weekends. In response to the evidence concerning Husband's alcohol abuse, the court

ordered Husband to perform a breathalyzer test every time he picked up the Child for coparenting time. The court also ordered Husband to continue alcohol recovery treatment

and prohibited him from drinking "to excess” during his co-parenting time. Upon a

thorough review of the record, we conclude that the court did not abuse its discretion in

rejecting Wife's proposed permanent parenting plan. However, given Husband's troubling

history of alcohol abuse, we modify the trial court's permanent parenting plan order to

prohibit Husband from consuming alcohol while parenting the Child.

With respect to the standard of review for parenting plans, our High Court has

explained:

This Court has previously emphasized the limited scope of review to

be employed by an appellate court in reviewing a trial court's factual

determinations in matters involving child custody and parenting plan

developments. Armbrister [v. Armbrister], 414 S.W.3d [685] at 692-93

[(Tenn. 2013)] (stating that the appropriate standard of "review of the trial

court's factual findings is de novo upon the record, accompanied by a

presumption of the correctness of the findings, unless the preponderance of

the evidence is otherwise”).

* * *

Indeed, trial courts are in a better position to observe the witnesses and assess

their credibility; therefore, trial courts enjoy broad discretion in formulating

parenting plans. Id. at 693 (citing Massey-Holt v. Holt, 255 S.W.3d 603, 607

(Tenn. Ct. App. 2007)). "Thus, determining the details of parenting plans is

'peculiarly within the broad discretion of the trial judge.'” Id. (quoting

Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)). Appellate courts

should not overturn a trial court's decision merely because reasonable minds

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could reach a different conclusion. Eldridge v. Eldridge, 42 S.W.3d 82, 85

(Tenn. 2001).

On appeal, we review a trial court's decision regarding parenting

schedules for an abuse of discretion. Armbrister, 414 S.W.3d at 693 (citing

Eldridge, 42 S.W.3d at 88). This Court stated, "'An abuse of discretion

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

an illogical result, resolves the case on a clearly erroneous assessment of the

evidence, or relies on reasoning that causes an injustice.'” Id. (quoting

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011)); see also Kelly

v. Kelly, 445 S.W.3d 685, 691-92 (Tenn. 2014) (applying same standard

announced in Armbrister—a case involving modification of a residential

parenting schedule—to a trial court's initial primary residential parenting

designation). "Appellate courts should reverse custody decisions 'only when

the trial court's ruling falls outside the spectrum of rulings that might

reasonably result from an application of the correct legal standards to the

evidence.'” Kelly, 445 S.W.3d at 696 (quoting Armbrister, 414 S.W.3d at

693); see Eldridge, 42 S.W.3d at 88.

C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017).

In its final order, the trial court began its analysis relative to parenting by

considering Tennessee Code Annotated § 36-6-406. See Armbrister v. Armbrister, 414

S.W.3d 685, 696 (Tenn. 2013) ("Before forging a residential schedule, a court must first

determine whether either parent has engaged in any of the misconduct specified in

Tennessee Code Annotated section 36-6-406 . . . .”). The version of Tennessee Code

Annotated § 36-6-406(a) (2017) in effect when the instant action was filed provided:

2

The permanent parenting plan and the mechanism for approval of the

permanent parenting plan shall not utilize dispute resolution, and a parent's

residential time as provided in the permanent parenting plan or temporary



2 Effective June 11, 2020, the General Assembly has amended Tennessee Code Annotated § 36-6-406(a) to

substitute the following language in the opening paragraph:

The permanent parenting plan and the mechanism for approval of the permanent parenting

plan shall not utilize dispute resolution, and a parent's residential time as provided in the

permanent parenting plan or temporary parenting plan shall be limited if the limitation is

found to be in the best interest of the minor child and if the court determines, based upon a

prior order or other reliable evidence, that a parent has engaged in any of the following

conduct:

See 2020 Tenn. Pub. Acts, Ch. 693, § 1 (S.B. 2733). However, because the divorce complaint in this case

was filed prior to the effective date of the amendment, the prior version of the statute is applicable here.

See, e.g., In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).

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parenting plan shall be limited if it is determined by the court, based upon a

prior order or other reliable evidence, that a parent has engaged in any of the

following conduct:

(1) Willful abandonment that continues for an extended period of time or

substantial refusal to perform parenting responsibilities; or

(2) Physical or sexual abuse or a pattern of emotional abuse of the parent,

child or of another person living with that child as defined in § 36-3-

601.

Tennessee Code Annotated § 36-3-601 (2021) provides the following definition of

"abuse” in relevant part:

(1) "Abuse” means inflicting, or attempting to inflict, physical injury on

an adult or minor by other than accidental means, placing an adult or

minor in fear of physical harm, physical restraint, malicious damage

to the personal property of the abused party . . . .

The trial court determined that Husband's actions neither constituted abuse nor

required the court to limit Husband's parenting time. In the court's estimation, "the

evidence d[id] not sustain [Wife's] contention that [Husband] inflicted or attempted to

inflict physical injury upon [Wife] or intended or attempted to place [Wife] in fear of

restraint or fear of physical harm or that she in fact feared restraint or physical harm in the

incident.” However, the court determined that the incident in which Wife struck Husband

in the head three times did constitute abuse under Tennessee Code Annotated § 36-3-601

and that this required the court to limit co-parenting time that it would have otherwise

provided to Wife.

The trial court's conclusion with respect to these two incidents was based on the

court's credibility findings. The court found that Husband's account of the July 14, 2019

incident was credible and supported by Wife's tape recording of the incident. The court

also appears to have credited Husband's testimony concerning the incident in which Wife

struck him while also noting that Wife did not deny the incident. We emphasize that we

will not dismiss a trial court's credibility determination "absent clear and convincing

evidence to the contrary.” See Wells, 9 S.W.3d at 783. Wife has not presented clear and

convincing evidence to contradict the court's credibility findings. We therefore conclude

that the trial court did not err in determining that Wife's co-parenting time should be

restricted pursuant to Tennessee Code Annotated § 36-6-406(a).

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The trial court next evaluated whether Tennessee Code Annotated § 36-6-406(d)

applied to either parent. Tennessee Code Annotated § 36-6-406(d) (2021) provides, in

pertinent part:

A parent's involvement or conduct may have an adverse effect on the child's

best interest, and the court may preclude or limit any provisions of a

parenting plan, if any of the following limiting factors are found to exist after

a hearing:

* * *

(3) An impairment resulting from drug, alcohol, or other substance

abuse that interferes with the performance of parenting

responsibilities;

* * *

(5) The abusive use of conflict by the parent that creates the danger

of damage to the child's psychological development;

* * *

(8) Such other factors or conduct as the court expressly finds

adverse to the best interests of the child.

The court found that subsection (5) applied to Wife's conduct and that subsections (3) and

(8) "may or may not apply to [Husband's] conduct.” The court did not specify whether it

utilized these discretionary factors to limit Husband's or Wife's co-parenting time.

The trial court also based its custody determination on the Child's best interest as

required by Tennessee Code Annotated § 36-6-106(a). See Tenn. Code Ann. § 36-6-106(a)

(2021) ("In a suit for annulment, divorce, separate maintenance, or in any other proceeding

requiring the court to make a custody determination regarding a minor child, the

determination shall be made on the basis of the best interest of the child.”). In considering

a child's best interest, a trial court should devise an arrangement that "permits both parents

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

factors set out in this subsection (a), the location of the residences of the parents, the child's

need for stability and all other relevant factors.” See Tenn. Code Ann. § 36-6-106(a).

These factors include:

(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;

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(2) Each parent's or caregiver's past and potential for future performance

of parenting responsibilities, including the willingness and ability of

each of the parents and caregivers to facilitate and encourage a close

and continuing parent-child relationship between the child and both

of the child's parents, consistent with the best interest of the child. In

determining the willingness of each of the parents and caregivers to

facilitate and encourage a close and continuing parent-child

relationship between the child and both of the child's parents, the

court shall consider the likelihood of each parent and caregiver to

honor and facilitate court ordered parenting arrangements and rights,

and the court shall further consider any history of either parent or any

caregiver denying parenting time to either parent in violation of a

court order;

(3) Refusal to attend a court ordered parent education seminar may be

considered by the court as a lack of good faith effort in these

proceedings;

(4) The disposition of each parent to provide the child with food, clothing,

medical care, education and other necessary care;

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

as the parent who has taken the greater responsibility for performing

parental responsibilities;

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

and the child;

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

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

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

examination of a party under Rule 35 of the Tennessee Rules of Civil

Procedure and, if necessary for the conduct of the proceedings, order

the disclosure of confidential mental health information of a party

under § 33-3-105(3). The court order required by § 33-3-105(3) must

contain a qualified protective order that limits the dissemination of

confidential protected mental health information to the purpose of the

litigation pending before the court and provides for the return or

destruction of the confidential protected mental health information at

the conclusion of the proceedings;

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

relatives and step-relatives, and mentors, as well as the child's

involvement with the child's physical surroundings, school, or other

significant activities;

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

the child has lived in a stable, satisfactory environment;

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

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

any issues of abuse to juvenile court for further proceedings;

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

frequents the home of a parent and such person's interactions with the

child;

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

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

request. The preference of older children should normally be given

greater weight than those of younger children;

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

accommodations consistent with those schedules; and

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

In the case at bar, we determine that the trial court considered each of these factors in

crafting a permanent parenting plan in which both parents would enjoy maximum

participation with the Child consistent with the Child's best interest.

The trial court determined that the first factor weighed in favor of Wife, finding that

she had performed the majority of parenting responsibilities relating to the Child's daily

needs. The court also concluded that the second factor weighed in favor of Wife, noting

that Husband's potential for future performance of parenting responsibilities "depends

upon his not drinking alcohol to excess around the child, not drinking and driving, and

avoiding intoxication.” Concerning the fifth factor, the court determined that Wife had

been the primary caregiver, referencing Husband's past reliance on Wife's care for the

Child on occasions when he would become intoxicated during the marriage. With respect

to the tenth factor, the court found that the Child had always resided with Wife and, as

such, this factor weighed in her favor as well.

The trial court determined that the seventh and eleventh factors weighed in favor of

Husband. Concerning the seventh factor, the court found that the Child "needs healthy

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'sober' parents who do not argue or engage in domestic abuse” and that Husband's drinking

did not justify or excuse Wife's striking him. In concluding that the eleventh factor

weighed in Husband's favor, the court again referenced Wife's domestic abuse against

Husband. The trial court concluded that the fourth, sixth, eighth, ninth, and fourteenth

factors weighed equally in favor of the parties and that the third, twelfth, thirteenth, and

fifteenth were inapplicable. The court also noted:

In spite of [Wife's] domestic violence and [Husband's] drinking, the child's

relationship with both parents is such that the Court wants to preserve each

parent's time with her and provide each parent opportunity to be with her at

important times for her such as her attendance at church and to provide the

child with full access to each parent's extended family.

Wife does not specifically challenge the trial court's findings or conclusions with

respect to these best interest factors. Rather, Wife appears to argue that the court should

have adopted her parenting plan due to Husband's history of alcohol abuse. Wife cites two

prior opinions of this Court in support of her argument. Wife first relies on Smithson v.

Smithson, No. M2006-00269-COA-R3-CV, 2006 WL 3827321, at *5 (Tenn. Ct. App. Dec.

28, 2006), wherein the trial court did not award the husband any significant co-parenting

time based on his "admitted long-standing addiction to alcohol and drugs.” This Court

affirmed the trial court's decision, finding "no basis in the record to second guess the trial

court's judgment.” Id. at *6. Wife also relies on Rogers v. Rogers, No. E2002-02300-

COA-R3-CV, 2003 WL 21673678, at *4 (Tenn. Ct. App. July 14, 2003), wherein the trial

court adopted the parenting plan proposed by the husband, who had "admitted that his

drinking was a serious problem in the marriage.” Id. The husband's proposed parenting

plan provided for supervised visitation with the husband during which time he was required

to "be sober” and "not consume alcoholic beverages during his parenting time” for the first

six months of visitation. Id. This Court concluded that the latter condition should not have

been limited to the first six months of visitation due to the "substantial evidence of the

husband's problems with alcohol.” Id.

Upon review, we determine that the case at bar is factually distinguishable from

Smithson. In Smithson, the husband had admitted his "long-standing addiction to alcohol

and drugs,” had previously pled guilty to driving under the influence, and had "on previous

occasions received treatment for his addictions and relapsed into active alcohol and drug

use.” Smithson, 2006 WL 3827321, at *5. In contrast, in the present case, the trial court

found that Wife's claim that Husband was an alcoholic was unsupported by the evidence.

Furthermore, the evidence in the record supports the court's finding that Husband had not

consumed alcohol around the Child during his co-parenting time since the parties had

separated on May 27, 2019—more than a year before the conclusion of trial.

In contrast to the husband in Smithson, the trial court herein made the following

findings of fact with respect to Husband's alcohol consumption:

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[H]e's a hard-working person. He hasn't had alcohol interrupt his work as

far as any testimony I've heard. He hasn't had any public intoxication

charges, any DUI's. The drinking became a problem between two

individuals in this relationship, one of whom did quit drinking and wanted

the other to.

* * *

Drinking is also a privilege that people have so long as they don't get drunk.

There is no evidence that this man's ever been, quote, drunk, with this child

being under his supervision alone. There's just no evidence. And to say you

can't drink is . . . an extreme measure for a court to take against someone's

otherwise freedom of choice.

Although the evidence supports Wife's contention that Husband has a history of alcohol

abuse, we cannot conclude that the trial court erred by declining to limit Husband's coparenting time to fifty-two days of supervised visits annually.

Nevertheless, Wife did present substantial evidence of Husband's alcohol abuse,

and this evidence is reflected in the trial court's findings of fact. The same findings of fact

that support the court's decision to require Husband to utilize a breathalyzer test before

each exchange and continue alcohol abuse treatment also demonstrate that Husband should

not be permitted to consume alcohol during his co-parenting time. Although the court

credited Husband's testimony over Wife's with respect to Husband's drinking habits, the

court credited other testimony that evinced Husband's alcohol abuse. For example, the

trial court found that Husband had acknowledged to his alcohol abuse treatment provider,

Dr. Cavins, that he had abused alcohol in the past. The court also found that Husband had

testified to drinking five days per week. The court further credited Wife's mother's

testimony concerning Husband's excessive use of alcohol during the marriage and Wife's

testimony that she called her parents on four or five occasions to the marital residence in

response to Husband's intoxication.

In addition, Mr. Tippens testified to witnessing Husband drink sixty ounces of beer

within a thirty-minute time period while Husband was on his lunch break on December 9,

2019, a day when Husband had a scheduled visit with the Child after work. The court

appeared to credit Mr. Tippens's testimony, although the court could not determine

whether Husband actually received the Child for a visit that day.

Morgan Bussey, a friend of Wife, testified that in January 2019, Husband had taken

the Child on a drive during a baby shower that Wife hosted for Ms. Bussey. According to

Ms. Bussey, Husband smelled like alcohol when he returned. Ms. Bussey also noticed that

Husband had driven in the front yard, leaving tire marks through the grass. The trial court

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made somewhat conflicting findings of fact concerning Ms. Bussey's testimony. The court

credited her testimony that she smelled "something like alcohol on his person” but did not

credit her testimony that Husband had driven through his yard as a result of his alcohol

consumption. The court further noted that Ms. Bussey did not observe Husband to be

intoxicated. However, the court also made the following findings with respect to

Husband's alcohol consumption:

The Court finds that [Husband's] intoxication at times when the child

was present observed by wife and her mother (although they or others present

were supervising and caring for the child) is not consistent with good

judgment by [Husband]. It was not good judgment for him to drink and drive

with his child as his wife and Ms. Bussey said occurred January of 2019

while he had sole supervision of the child during a baby shower at the parties'

home and he drove around with the child for two hours.

Although the court did not appear to find that Husband had been intoxicated during this

event, the court did find that he had been drinking while also driving with the Child present

in the vehicle. This incident, in conjunction with other evidence presented of Husband's

alcohol abuse, demonstrates that the court should have restricted Husband from consuming

alcohol during his co-parenting time in order to ensure the safety of the Child. See Rogers,

2003 WL 21673678, at *4 (modifying the trial court's parenting plan order to eliminate the

order's provision allowing the husband to consume alcohol during his co-parenting time

after the first six months of visitation due to the "substantial evidence of the husband's

problems with alcohol.”).

Inasmuch as Husband has exhibited a history of alcohol abuse, such that the trial

court fashioned a permanent parenting plan order in which Husband would be required to

perform a breathalyzer test at every exchange and continue to seek treatment from an

alcohol abuse treatment professional, we conclude that the trial court erred by permitting

Husband to consume alcohol during his co-parenting time. We therefore modify page fiftysix of the court's final order and judgment of divorce to provide that Husband shall not

consume any alcohol during his co-parenting time in substitution of the court's provision

that Husband "not abuse alcohol around the child by drinking to excess (at or over the legal

limit of .08%) around the child.”

Lastly, Wife contends that the trial court erred by granting Husband more "child

awake time” than Wife and argues that the schedule provides for too many exchanges.

However, Wife fails to explain how the court's co-parenting schedule amounts to an abuse

of discretion or anything more than a point upon which reasonable minds could disagree.

Wife also fails to make any reference to the best interest factors outlined in Tennessee Code

Annotated § 36-6-106(a) or argue that the court misapplied any of these factors. We note

that the focus of the parenting plan is the best interest of the Child rather than that of the

parent and that "[i]t is not the function of appellate courts to tweak a visitation order in the

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hopes of achieving a more reasonable result than the trial court.” See Eldridge v. Eldridge,

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

The trial court carefully weighed the statutory best interest factors and arrived at the

reasonable conclusion that the Child would benefit from seeing both parents frequently.

The permanent parenting plan order is the product of this analysis and the court's

conclusion. We note that "[w]hen no error in the trial court's ruling is evident from the

record, the trial court's ruling must stand.” Id. Despite Wife's protestations, the court

granted her a total of 235 co-parenting days, over one hundred more co-parenting days than

Husband, and we discern no error in the manner in which the court scheduled Husband's

and Wife's co-parenting days.

Upon thorough review of the record and consideration of Wife's arguments, we

conclude that the trial court did not err in rejecting Wife's proposed permanent parenting

plan. Having determined that the trial court erred by allowing Husband to consume alcohol

while parenting the Child, however, we modify the trial court's permanent parenting plan

order to prohibit Husband's consumption of alcohol during his co-parenting time.

VI. Classification and Distribution of Marital Estate

With regard to the trial court's classification and division of the parties' property,

Wife argues that the trial court erred in its distribution of marital property by failing to

place the parties in the position they would have been in had the marriage never occurred,

pursuant to Batson, and by failing to award her a higher proportion of the proceeds from

the sale of the marital residence. Wife posits that because she contributed more separate

assets to the accumulation of marital assets, she should have received $42,675.99 more

than Husband from the marital residence sale proceeds. The trial court rejected Wife's

argument in its final order, instead concluding that Wife's separate assets had become

marital property by transmutation. Upon careful review, we determine that Wife has

waived this issue by failing to comply with Tennessee Court of Appeals Rule 7.

Rule 7 provides in pertinent part:

(a) In any domestic relations appeal in which either party takes issue with

the classification of property or debt or with the manner in which the

trial court divided or allocated the marital property or debt, the brief

of the party raising the issue shall contain, in the statement of facts or

in an appendix, a table in a form substantially similar to the form

attached hereto. This table shall list all property and debts considered

by the trial court, including: (1) all separate property, (2) all marital

property, and (3) all separate and marital debts.

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(b) Each entry in the table must include a citation to the record where each

party's evidence regarding the classification or valuation of the

property or debt can be found and a citation to the record where the

trial court's decision regarding the classification, valuation, division,

or allocation of the property or debt can be found.

(c) If counsel disagrees with any entry in the opposing counsel's table,

counsel must include in his or her brief, or in a reply brief if the issue

was raised by opposing counsel after counsel filed his or her initial

brief, a similar table containing counsel's version of the facts.

Thus, "in all cases where a party takes issue with the classification and division of marital

property, the party must include in its brief a chart displaying the property values proposed

by both parties, the value assigned by the trial court, and the party to whom the trial court

awarded the property.” Akard v. Akard, No. E2013-00818-COA-R3-CV, 2014 WL

6640294, at *4 (Tenn. Ct. App. Nov. 25, 2014).

Concerning the omission of a Rule 7 table, this Court has previously explained:

[I]t is essential that the parties comply with Rule 7 in order to aid this Court

in reviewing the trial court's decision. The table required by Rule 7, allows

this Court to easily and correctly determine the valuation and distribution of

the marital estate as ordered by the trial court. Further, the Rule 7 table,

allows this Court to ascertain the contentions of each party as to the correct

valuations and proper distribution, as well as the evidence in the record which

the party believes supports its contention. Consequently, a table, in full

compliance with Rule 7, is vital as this Court must consider the entire

distribution of property in order to determine whether the trial court erred.

Moreover, this Court is under no duty to minutely search the record for

evidence that the trial court's valuations may be incorrect or that the

distribution may be improper.

Kanski v. Kanski, No. M2017-01913-COA-R3-CV, 2018 WL 5435402, at *6 (Tenn. Ct.

App. Oct. 29, 2018) (quoting Harden v. Harden, No. M2009-01302-COA-R3-CV, 2010

WL 2612688, at *8 (Tenn. Ct. App. June 30, 2010)) (internal citations omitted in Kanski).

As previously noted, Wife failed to include a Rule 7 table within her appellate brief.

Although "this Court may 'suspend the requirements of Rule 7 for 'good cause,'” Kanski,

2018 WL 5435402, at *6 (quoting Hopwood v. Hopwood, No. M2015-01010-COA-R3-

CV, 2016 WL 3537467, at *7 (Tenn. Ct. App. June 23, 2016)) (in turn quoting Tenn. R.

Ct. App. 1(b)), we discern no good cause for such a suspension in this case. See, e.g.,

Kanski, 2018 WL 5435402 at *6 (finding "no such cause under the facts of this case” to

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suspend the requirements of Rule 7). We therefore deem Wife's issue with respect to the

trial court's manner of property distribution to be waived.

VII. Attorney's Fees at Trial

Wife contends that the trial court erred by failing to award her attorney's fees for

the "necessary prosecution to prove conduct to determine grounds for divorce or especially,

to implement a Parenting Plan in the child's best interest,” which she argues was required

due to Husband's "denials and refusals to help remedy the situation with parenting based

upon his extreme alcohol abuse.” The court declined to award Wife attorney's fees in part

due to Wife's ability to pay her own attorney's fees and the evidence that sustained

Husband's ground for divorce. Upon careful review, we conclude that the trial court did

not err in declining to award Wife's attorney's fees.

Our Supreme Court has previously observed concerning an award of attorney's fees

in a divorce action:

It is well-settled that an award of attorney's fees in a divorce case

constitutes alimony in solido. The decision whether to award attorney's fees

is within the sound discretion of the trial court. As with any alimony award,

in deciding whether to award attorney's fees as alimony in solido, the trial

court should consider the factors enumerated in Tennessee Code Annotated

section 36-5-121(i). A spouse with adequate property and income is not

entitled to an award of alimony to pay attorney's fees and expenses. Such

awards are appropriate only when the spouse seeking them lacks sufficient

funds to pay his or her own legal expenses, or the spouse would be required

to deplete his or her resources in order to pay them. Thus, where the spouse

seeking such an award has demonstrated that he or she is financially unable

to procure counsel, and where the other spouse has the ability to pay, the

court may properly grant an award of attorney's fees as alimony.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011) (internal citations omitted).

With respect to a trial court's spousal support decision, this Court declines to "secondguess a trial court's decision absent an abuse of discretion.” Id. at 105. "An abuse of

discretion occurs when the trial court causes an injustice by applying an incorrect legal

standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of

the evidence, or relies on reasoning that causes an injustice.” Id.

In the case at bar, we discern no abuse of discretion. In its final order, the trial court

determined:

The Court declines to award Wife her attorney fees. Such an award

must be treated as alimony under, Tenn. Code Ann. § 36-5-121(i).

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Considering the age of the parties, (28); their relatively unequal earning

capacities (Wife's is greater than husband's by thirty thousand dollars

($30,000.00) per year); their needs that are relatively equal and financial

resources (including the Court's division of their marital property which is

greater for Wife by sixteen thousand, seven [hundred] thirty-six dollars and

sixty cents ($16,736.60)); the marital equities between the parties in light of

the six year duration of the marriage; the parties' equal standard of living

during the marriage and after divorce; and declining to consider the relative

fault of each of the parties, having found each to have sustained their

grounds, the Court denies Wife's request for her attorney fees under the

statute.

The Court finds that wife is able to pay her own attorney and that

husband also sustained his grounds for divorce.

On appeal, Wife neither challenges these findings nor asserts that she lacks

sufficient funds to pay her legal expenses. Additionally, we have affirmed the trial court's

determination that both Husband and Wife had sustained their alleged grounds of divorce.

Thus, we discern no error in the trial court's declination to consider the relative fault of the

parties.

We conclude that the trial court did not abuse its discretion by declining to award

Wife attorney's fees at trial.

VIII. Attorney's Fees on Appeal

Husband contends that he should be awarded reasonable attorney's fees and costs,

pursuant to Tennessee Code Annotated § 27-1-122, given the allegedly frivolous nature of

Wife's appeal. Tennessee Code Annotated § 27-1-122 (2017) provides:

When it appears to any reviewing court that the appeal from any court

of record was frivolous or taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just damages against the

appellant, which may include, but need not be limited to, costs, interest on

the judgment, and expenses incurred by the appellee as a result of the appeal.

This Court has previously explained:

Parties should not be forced to bear the cost and vexation of baseless

appeals. Accordingly, in 1975, the Tennessee General Assembly enacted

Tenn. Code Ann. § 27-1-122 to enable appellate courts to award damages

against parties whose appeals are frivolous or are brought solely for the

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purpose of delay. Determining whether to award these damages is a

discretionary decision.

A frivolous appeal is one that is devoid of merit or one that has no

reasonable chance of succeeding.

Young v. Barrow, 130 S.W.3d 59, 66-67 (Tenn. Ct. App. 2003) (internal citations omitted).

We determine that Wife's appeal was not so devoid of merit as to be deemed

frivolous. Therefore, we exercise our discretion to deny Husband's request for attorney's

fees and costs on appeal.

For the foregoing reasons, we affirm the trial court’s judgment with the modification that Husband shall be prohibited from consuming alcohol while he is parenting the Child.



We decline to award attorney’s fees on appeal to Husband. Costs on appeal are taxed to the appellant, Madeline Lee Williams. This case is remanded to the trial court for enforcement of the judgment and collection of costs assessed below.