Nashville, TN - Divorce lawyer represented Plaintiff with appealing from the trial court's entry of a permanent parenting plan.

Jennifer Kay McCormack ("Mother”) and Brian Patrick Henry ("Father”) briefly

dated before Mother became pregnant with the Child at issue. The parties ended their

relationship shortly after conception, citing a disagreement concerning Mother's nutrition

while pregnant. Father returned to New York, where he was employed, while Mother

remained in Tennessee. Mother eventually ceased all contact with Father and blocked all

forms of communication. The Child was born in September 2017. Father contacted the

maternal grandmother, who encouraged Mother to facilitate a relationship between the

Child and Father. Mother agreed and invited Father to meet the Child in Tennessee.

Father first met the Child on October 14, 2017, at a local restaurant. The parties

devised a plan for Father to establish a relationship with the Child. Father returned to New

York to settle his affairs and then came to live in Tennessee. He rented a trailer from the

maternal grandparents for a short period of time before ultimately finding his own

residence. He assisted Mother with the day-to-day care of the Child. This arrangement

continued for a few months until the parties had yet another disagreement in December

2017. Mother again refused contact with Father following this disagreement.

On January 2, 2018, Father filed, inter alia, a petition to establish paternity and to

enter a permanent parenting plan. A flurry of litigation ensued. The court granted Father

temporary co-parenting time during the pendency of the litigation. In an attempt to assuage

Mother's concerns, Father submitted breathalyzer results to her prior to his co-parenting

time with the Child. Mother explained to the court that she was concerned about his

sobriety, while Father raised questions concerning Mother's mental stability. The court

added the breathalyzer requirement to its order but also instructed Father to submit to an

alcohol and drug assessment and Mother to submit to a mental health assessment. Upon

receiving the results of both assessments, the court rescinded the breathalyzer requirement.

Despite the exhaustive litigation between the parties, the two parents submitted to

mediation and eventually agreed to equal co-parenting time, alternating weekly with a twohour visitation on Wednesdays for the party not currently exercising his or her weekly time.

However, the parties could not come to an agreement concerning the designation of the

primary residential parent, along with a few other matters not pertinent to this appeal.



1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it

shall be designated "MEMORANDUM OPINION”, shall not be published, and shall not

be cited or relied on for any reason in any unrelated case.

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The matter proceeded to hearing on November 1, 2018, where it was established

that the relationship between the parties remained acrimonious, at best. They had

disagreements concerning the scheduling of the Wednesday visitation and the general

exchange of the Child, that even led one babysitter to cease her employment for the parties.

Each parent then maintained a separate babysitter and fought often concerning the

exchange of the Child and his general well-being. The court advised the parties, at

numerous points throughout the hearing and the litigation in general, to work together for

the good of the Child. Despite this, neither party would even admit that the other loved

and cared for the Child, each maintaining their own superior care and love for the Child.

Following the hearing, the court designated the Father as the primary residential

parent, citing Mother's past withholding of the Child from Father and questioning her

ability to work together and encourage his relationship with the Child.

This appeal followed the resolution of exhaustive post-trial motions filed by the

parties. The sole and dispositive issue on appeal is whether the trial court abused its

discretion in its designation of Father as the Child's primary residential parent.

In non-jury cases such as this one, we review the trial court's factual findings de

novo upon the record, affording them a presumption of correctness unless the evidence

preponderates otherwise. See Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414

S.W.3d 685, 692 (Tenn. 2013). We review questions of law de novo, affording the trial

court's decision no presumption of correctness. Armbrister, 414 S.W.3d at 692 (citing

Mills v. Fulmarque, 360 S.W.3d 362, 366 (Tenn. 2012)).

Trial courts have "broad discretion in formulating parenting plans” because they

"are in a better position to observe the witnesses and assess their credibility.” C.W.H. v.

L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017) (citing Armbrister, 414 S.W.3d at 693). "A trial

court's broad discretion on custody matters extends to the question of which parent should

be named primary residential parent.” Grissom v. Grissom, 586 S.W.3d 387, 391 (Tenn.

Ct. App. 2019). On appeal, we review a trial court's decision regarding the details of a

residential parenting schedule for an abuse of discretion. Armbrister, 414 S.W.3d at 693

(citing Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001)). "An abuse of discretion

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

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

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

2011). "A trial court abuses its discretion in establishing a residential parenting schedule

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

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

in the record.'” Armbrister, 414 S.W.3d at 693 (quoting Eldridge, 42 S.W.3d at 88).

Mother takes issue with the trial court's application of the best interest analysis in

designating Father as the primary residential parent. In setting the residential schedule, the

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trial court is directed to conduct a best interest analysis based upon the factors found in

Tennessee Code Annotated section 36-6-106(a)(1)–(15). Tenn. Code Ann. § 36-6-404.

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;

(2) Each parent's past and potential for future performance of parenting

responsibilities, including the willingness and ability of each of the parents .

. . to facilitate and encourage a close and continuing parent-child relationship

between the child and both of the child's parents, consistent with the best

interest of the child. In determining the willingness of each of the parents . .

. to facilitate and encourage a close and continuing parent-child relationship

between the child and both of the child's parents, the court shall consider the

likelihood of each parent . . . to honor and facilitate court ordered parenting

arrangements and rights, and the court shall further consider any history of

either parent . . . 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;

(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;

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(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 . . .;

(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)(1)–(15) (emphasis added).

2 Although the court was

obligated to consider the applicable statutory factors, "the statute does not require a trial

court, when issuing a memorandum opinion or final judgment, to list every applicable

factor along with its conclusion as to how that particular factor impacted the overall

custody determination.” Burnett v. Burnett, No. E2002-01614-COA-R3-CV, 2003 WL

21782290, at *6 (Tenn. Ct. App. July 23, 2003).

The record reflects that the trial court listed each factor and found each equally

weighted or inapplicable, with the exception of its concerns related to the parties' ability

to work together. The court ultimately found that Mother's past withholding of the Child

was the "determining factor” in its designation of Father as the primary residential parent

pursuant to Tennessee Code Annotated section 36-6-106(a)(2).

Mother claims that this was error because her alleged withholding of the Child was

not in violation of a court order as contemplated by Section 36-6-106(a)(2). She explains

that her actions occurred before Father even established his paternity and the parenting plan

was established. Father argues that the court may consider Mother's past refusal to

facilitate a relationship in making its determination, regardless of whether it occurred prior

to the filing of the petition and the entry of a parenting plan.



2 Effective March 18, 2022, the General Assembly has amended Tennessee Code Annotated § 36-

1-113(i) by adding a new subdivision for the court's consideration, requiring the court to consider 16

factors. See 2022 Tenn. Pub. Acts, Ch. 671 § 1 (H.B. 1866). However, because the petition in this case

was filed before the effective date of the amendment, the statutory best interest factors provided in the prior

version of the statute apply here. See, e.g., In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).

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We find the trial court's application of Factor 2 troublesome when the statute itself

directs consideration of the likelihood of each parent to adhere to court ordered parenting

arrangements and any violation of a court order concerning those arrangements. The

record reflects that Mother adhered to the parenting plan once entered and has not violated

a court order. The court's application of this factor was error.

In so holding, we must also acknowledge that Tennessee Code Annotated section

36-6-102(a)(15) permits consideration of any factor deemed relevant by the trial court,

which may include Mother's past behavior prior to the entry of a court ordered parenting

plan. However, given the court's stated reliance upon Factor 2 alone as the "determining

factor” and the lack of additional findings of fact, save for the general concern related to

the parties' ability to work together, we must hold that the trial court's decision "falls

outside the spectrum of rulings that might reasonably result from an application of the

correct legal standards to the evidence in the record.” Eldridge, 42 S.W.3d at 88.

We vacate the ruling and remand this matter to the trial court to issue sufficient

findings of fact and conclusions of law based upon a proper application of the

aforementioned statutory factors. We recognize that time has marched on during this

litigation. The trial court may, in its discretion, consider additional evidence to ensure that

the parenting plan is based on the Child's and the parties' current circumstances. See, e.g.,

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

(Tenn. Ct. App. Mar. 13, 2014). All other issues are pretermitted by this court's

determination.

For the reasons stated above, we vacate the decision of the trial court. The case is remanded for entry of findings of fact and any such further proceedings that may be necessary. Costs of the appeal are taxed one-half to the appellant, Jennifer Kay

McCormack, and one-half to the appellee, Brian Patrick Henry.