Johnson v. Johnson

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 22, 2004 Session

BRENT G. JOHNSON v. KIMBERLY S. JOHNSON

Appeal from the Chancery Court for Union County
No. 3935 Billy Joe White, Chancellor

No. E2003-01962-COA-R3-CV - FILED NOVEMBER 9, 2004

Brent G. Johnson (“Father”) and Kimberly S. Johnson (“Mother”) were married with their only child,
a daughter, being born in October of 2000. The child was born with a rare metabolic disorder
resulting in developmental delays, among other things. The parties separated shortly after their
daughter was born. Mother then moved to West Virginia with the parties’ daughter. Father filed for
divorce and Mother counterclaimed also seeking a divorce. Both parties sought to be designated as
the primary residential parent of their young daughter. At a hearing to determine temporary custody,
the parties reached an agreement whereby Mother would return to Tennessee within three months
and Mother would be designated as the primary residential parent pending the trial. The Trial Court
entered an order setting forth this accord and establishing Father’s visitation schedule pending
Mother’s return. Mother reneged on her agreement, refused to return to Tennessee, and then set
about to systematically and intentionally prevent Father from having any meaningful co-parenting
time. The Trial Court later entered a final judgment designating Mother as the primary residential
parent, but requiring Mother to return with the child to Tennessee and to stop interfering with
Father’s co-parenting time. Mother appeals claiming the Trial Court was without authority to order
her to return to Tennessee. The Trial Court’s order designating Mother as the primary residential
parent is affirmed if Mother voluntarily returns to Tennessee. If Mother chooses not to return, the
Trial Court’s judgment designating Mother as the primary residential parent is vacated, and the Trial
Court is instructed to determine which parent then should be designated as the primary residential
parent consistent with the best interest of the minor child, with the understanding that should primary
residential custody remain with Mother in West Virginia, Mother will continue to do her best to
prevent Father from having any meaningful relationship with his daughter.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part and Reversed in Part; Case Remanded

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, J., joined.
Johnny V. Dunaway, LaFollette, Tennessee, for the Appellant Kimberly S. Johnson.

D. Vance Martin, Knoxville, Tennessee, for the Appellee Brent G. Johnson.

OPINION

Background

Mother and Father were married on May 28, 1995. The parties lived in Union
County, Tennessee, when their daughter was born on October 23, 2000, but the parties separated two
months later. The parties’ daughter was born with a rare metabolic disorder known as Galactosemia.
The child has a variant form of Galactosemia which is less severe, but which nevertheless has
resulted in her exhibiting developmental delays in speech and motor skills, as well as social and
emotional delays.

In February of 2001, Father filed a complaint in the Union County Chancery Court
seeking a divorce from Mother. Father still lived in Union County when the complaint was filed,
but Mother recently had moved to West Virginia and had taken the young child with her. Mother
answered the complaint and filed a counterclaim asserting that she was entitled to a divorce. Father
and Mother each sought to be designated the primary residential parent of their young daughter.

A hearing was held in May of 2001 and the Trial Court entered an Order in July
memorializing its findings from that hearing. In relevant part, the Order provides as follows:

[I]t duly appeared to the Court that temporary custody of the parties’
minor child should be placed with the Mother, that the Father should
have co-parenting time with the child under one of two arrangements
that were presented to counsel and the parties, with the hope that the
parties could, after discussion, decide upon an arrangement for co-
parenting, and absent an agreement, the Court would decree an
arrangement. Whereupon, the parties discussed the options outlined
by the Court and reached an accord concerning which of the options
under which they would proceed, and it is therefore ORDERED,
ADJUDGED, and DECREED as follows:

1. The Mother is hereby granted custody of the parties’ child
… pending the trial of this cause;

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 2. The Mother shall have a period of three months from the
date of the hearing to make arrangements to obtain employment and
resume her residence in Tennessee.

The Trial Court then established Father’s co-parenting time which the Trial Court noted would
provide Father the opportunity to educate himself regarding treatment of the child’s medical
condition. Upon Mother’s return to Tennessee, Father would begin exercising standard co-parenting
time.

Less than a mother after the above Order was entered, Father filed a Petition for
Contempt claiming that Mother was refusing to allow him co-parenting time in violation of the July
2001 Order. Six days after Father filed the Petition for Contempt and one day before the deadline
agreed to by Mother for her return to Tennessee, Mother filed a motion asking the Trial Court to
reconsider its previous Order requiring her to move back to Tennessee. According to Mother:

[At the May 16 hearing,] this Court instructed [Mother] to
seek employment, temporary living arrangements, and child care
arrangements in Tennessee. [Mother] has not been able to comply
with this directive and does not have the economic ability to relocate.

Further, it is not in the best interest of the parties’ minor child
to relocate from West Virginia back to Tennessee.

Mother also filed a response to the Petition for Contempt, generally denying that she engaged in any
contemptuous behavior or that she interfered with Father’s co-parenting time. Father later filed
another Petition for Contempt based on Mother’s failure to return to Tennessee within the time frame
as agreed to by the parties and as previously ordered by the Trial Court.

A hearing was held on the various pending motions and the Trial Court entered an
Order on March 12, 2002, setting forth its findings and conclusions. Due to the nature of some of
the Trial Court’s findings, we will quote at length from this Order:

1. This case is the same situation as on May 16, 2001. The
court has made a mistake in hearing this matter any further. The
Order of May 16 is, in all respects, confirmed. (For the record, this
matter gets down to what the Court faced then, that ninety-nine times
out of a hundred if a Mother moves out of the State of Tennessee, the
Court approves it, it being ordinarily to the best interest of the child,
and in most cases it is.)

2. In this case we’ve had a terrible experience with visitation.
There has been a concerted effort by Mother to stop and interfere with
Father’s visitation. There has been no meaningful visitation, no

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meaningful co-parenting in this matter. There’s been no meaningful
effort to comply with this Order of May 16, and had there been a
meaningful visitation type situation, at least some co-parenting at a
distance, this Court would have considered other alternatives. The
Court would have considered that back in May. There’s a lot of good
reasons why Mother should not have been back in Knoxville, should
not have to be in Knoxville. But not only did the Court have half a
day or more of proof in May, the Court has about the same proof
today that visitation is totally impossible under the circumstances of
her being in West Virginia.

3. This child certainly is in special circumstances. This lady
is an overprotective, if anything, Mother. That’s not necessarily
bad.…. She’s a good Mother.… But it’s harmful to a child to alienate
it from its Father and from his family in most situations. The Court
finds that this child has not been given any chance to be with [her]
Father. It is insulting to go to a home of an in-law where – this young
lady lived with the grandparents in this case for some period of
time.… They go to her home and they find this note shushing them.
“Mother and baby are taking an afternoon nap. We will call you
when we wake up.” That’s not so bad except these people just
traveled five hours for visitation, and then there’s not a call made.
But then another note, “Please leave purse, bags, weapons, mace, and
all recording equipment in your vehicle. Please remove your shoes
before entering.” The Court would not enter under those
circumstances, but I guess the Father has to if he wants to visit his
child.… [There] will never be a meaningful relationship with this
Father and this child under the circumstances as they now exist.…
[T]he Mother in this case has pushed this matter almost to the point
of challenging this Court and saying, “We don’t care what you say
and we don’t care what you think. This is what I’m going to do.”
And the Court doesn’t like to be challenged. The Court feels very
challenged in this matter. That all these preparations have been not
to come to Tennessee, not to give the father any information on how
to feed and take care of this child. The Court personally thinks it
would be a crime almost for this child to be taken away from its
mother, but sometimes crimes have to be committed. This Mother
should be in custody of this child, but there are other principals (sic)
involved also. This Father has a right to some near equal co-
parenting time, and it has been denied and denied intentionally, and
the Court’s going to do something about it.

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The Trial Court then reaffirmed its previous order requiring Mother to return to Tennessee and set
forth Father’s co-parenting time pending Mother’s return.

After the March 2002 order was entered, Father filed several more motions claiming
Mother still was refusing to relocate to Tennessee and was continuing to interfere with his ability
to exercise co-parenting time with his child. A final hearing was conducted in April of 2003. The
Trial Court admitted into evidence a psychological evaluation which had been prepared by Dr. Vey
Michael Nordquist, but refused to allow Mother to introduce any other additional evidence on
parenting issues. According to the Trial Court, it already had heard enough on these issues at the
previous hearings. In its Final Judgment, the Trial Court addressed the various matters typically
presented in divorce proceedings, such as distribution of the marital property and the like. With
regard to custody of the minor child, the Trial Court designated Mother as the primary residential
parent, ordered Mother to relocate to Tennessee within 60 days of its judgment becoming final, and
set forth Father’s co-parenting schedule.

Eight days after the Final Judgment was entered, Father filed another Petition for
Contempt claiming Mother denied him visitation on the weekend of July 4, 2003. Father further
claimed Mother was denying him telephone contact with the child. Father filed yet another Petition
for Contempt after Mother allegedly denied him visitation on the weekend of July 18, 2003, as well
as his summer visitation which was to take place in August. A hearing was held on Father’s motions
and the Trial Court entered an Order giving Father additional visitation with his child to make up
for the time that was missed in July through September.

Mother appeals raising the following two issues which we quote from her brief:

I. Did the Trial Court err by entering an Order compelling
Appellant to move back to Tennessee from West Virginia simply to
make it easier for Appellee to have visitation, where such a move is
not in the best interest of the minor child?

II. Did the Trial Court err by refusing to receive testimony from
Appellant’s witnesses at the trial on the merits of this case, conducted
April 22, 2003, as evidenced by the offer of proof, which testimony
had not been heard previously and which had a direct bearing on the
welfare of the minor child?

Discussion

The factual findings of the Trial Court are accorded a presumption of correctness, and
we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County

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Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). In applying this standard of review, we are mindful
that "[t]rial courts are vested with wide discretion in matters of child custody" and that "the appellate
courts will not interfere except upon a showing of erroneous exercise of that discretion." Koch v.
Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993). Because "[c]ustody and visitation
determinations often hinge on subtle factors, including the parents' demeanor and credibility during
the divorce proceedings themselves," appellate courts "are reluctant to second-guess a trial court's
decisions." Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). The courts' paramount
concern in a custody case is the welfare and best interest of the parties' minor children. Ruyle v.
Ruyle, 928 S.W.2d 439, 441 (Tenn. Ct. App. 1996); Koch, 874 S.W.2d at 575. This determination
necessarily turns on the particular facts of each case. Koch, 874 S.W.2d at 575.

Tenn. Code Ann. § 36-6-106(a) requires a trial court to consider all relevant factors
when making a custody determination, including but not limited to:

(1) The love, affection and emotional ties existing between the
parents and child;

(2) The disposition of the parents to provide the child with food,
clothing, medical care, education and other necessary care and the
degree to which a parent has been the primary caregiver;

(3) The importance of continuity in the child's life and the length of
time the child has lived in a stable, satisfactory environment;
provided, that where there is a finding, under § 36-6-106(8), of child
abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual
abuse, as defined in § 37-1-602, by one (1) parent, and that a
non-perpetrating parent has relocated in order to flee the perpetrating
parent, that such relocation shall not weigh against an award of
custody;

(4) The stability of the family unit of the parents;

(5) The mental and physical health of the parents;

(6) The home, school and community record of the child;

(7) 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 preferences of older children should normally be given
greater weight than those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other
parent or to any other person; provided, that where there are

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 allegations that one (1) parent has committed child abuse, [as defined
in § 39-15-401 or § 39-15-402], or child sexual abuse, [as defined in
§ 37-1-602], against a family member, the court shall consider all
evidence relevant to the physical and emotional safety of the child,
and determine, by a clear preponderance of the evidence, whether
such abuse has occurred. The court shall include in its decision a
written finding of all evidence, and all findings of facts connected
thereto. In addition, the court shall, where appropriate, refer any
issues of abuse to the juvenile court for further proceedings;

(9) 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; and

(10) 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 the other parent,
consistent with the best interest of the child.

In addition to the foregoing, Tenn. Code Ann. § 36-6-101(d) establishes "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."

Mother argues on appeal that the Trial Court was without authority to require her to
return to Tennessee. Very recently, the Middle Section of this Court released its opinion in
Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004 Tenn. App. LEXIS 676 (Tenn. Ct.
App. Oct. 15, 2004).1 In Cummings, we addressed the propriety of a trial court’s injunction
prohibiting the mother from moving outside of Williamson County absent the express consent of the
father. In vacating the injunction, we stated we could find “no basis in law for the trial court's
injunction preventing an adult citizen from living where she may choose.” Id., at * 46. We went on
to add that to the extent the injunction was in response to a concern about the mother relocating in
the future, that situation was governed by the parental relocation statute, Tenn. Code Ann.
§ 36-6-108. Even that statute, however, was “not designed to give the courts the authority to dictate
where divorced parents must live, but only to protect the visitation rights of non-custodial parents
in situations where the custodial parent wishes to relocate to another state or more than 100 miles
from the residence of the non-custodial parent.” Id., at ** 46, 47. We agree with Mother that the

1
The time in which to file a Rule 11 appeal to the Tennessee Supreme Court in Cummings had not yet expired
when our Opinion in the present case was released.

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Trial Court was without authority to order her to move back to Tennessee. However, resolution of
this appeal remains far from over.2

It is important to emphasize exactly what the Trial Court ultimately held, i.e., that it
was in the child’s best interest for two events to occur. Specifically, (1) that Mother be designated
as the primary residential parent; and (2) that Mother return to Tennessee with the child. With regard
to the first aspect of the Trial Court’s ruling, Mother, obviously, agrees with the Trial Court’s
conclusion that it was in the best interest of the child for her to be designated the primary residential
parent. On appeal, Father does not challenge this aspect of the Trial Court’s ruling and does not
argue that he should have been designated the primary residential parent if Mother relocates to
Tennessee. Unfortunately, the two aspects of the Trial Court’s ruling are intertwined and cannot
effectively be separated at this point because the Trial Court did not state what would be in the
child’s best interest if Mother refuses to relocate to Tennessee.

Mother argues that even if the Trial Court could require her to relocate to Tennessee,
such a move would not be in the child’s best interest. At trial, Mother went to great lengths arguing
the medical care her daughter was receiving in West Virginia was superior to that which is available
in the East Tennessee area. Father disagrees and argues that the medical care providers in East
Tennessee certainly are able to address his daughter’s special needs.

One of the child’s treating physicians is Dr. Ann Lambernedis, a pediatrician with a
medical practice in Scott Depot, West Virginia. Dr. Lambernedis has been treating the parties’ child
since February of 2001. According to Dr. Lambernedis’ deposition testimony, she did “not have any
reservations that there are adequate people [in East Tennessee], medical physicians as well as
therapists who can provide the same care.” (emphasis added). When asked if there was any reason
why Mother could not return to East Tennessee and adequately care for the child with the present
medical community, Dr. Lambernedis responded: “From a medical standpoint, I don’t see a
problem.” Dr. Lambernedis further testified that she did not have any reason to believe that Father
could not get “up to speed” on matters such as the restrictions in the child’s diet or the monitoring
and scheduling processes.

In discussions with Mother’s counsel following opening arguments, the Trial Court
stated that the medical proof established proper medical care was available both in Knoxville and
Oak Ridge. Mother’s counsel responded that “[o]bviously, there are good programs available in
Tennessee, but we have folks [in West Virginia] that have been working with her on a daily
basis….”

2
This does not mean that M other could not have been held in contempt for refusing to obey the Trial Court’s
order that she relocate to Tennessee. See, e.g., Frye v. Frye, 80 S.W .3d 15, 18-19 (Tenn. Ct. App. 2002) (“[I]n State
v. Jones, 726 S.W .2d 515 (Tenn. 1987), our Supreme Court reaffirmed the principle that with proper jurisdiction, ‘even
though the trial judge’s order is erroneous and is reversed on appeal, an adjudication of contempt for failure to obey that
order will be sustained.’ Id. at 517.”).

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 We are confident that if the Trial Court had any reservations about the quality of
medical care available to the child in East Tennessee, it would not have required Mother to relocate.
In our opinion, when the Trial Court required Mother to relocate to Tennessee, albeit incorrectly, it
implicitly agreed with Father regarding the quality of medical care available to the child in East
Tennessee. We have reviewed the medical related proof contained in the record and conclude that
the preponderance of the evidence does not weigh against the Trial Court’s conclusion that the
medical care available to the child in the East Tennessee area is such that the parties’ daughter can
receive appropriate medical care here. We reach this conclusion even after considering the proof
which Mother claims was excluded improperly by the Trial Court. Therefore, even if the Trial Court
erred when excluding this medical related evidence, we hold that any such error was harmless.

Mother also claims that she does not have the financial ability to move to Tennessee.
Mother is a graduate of Marshall University in Huntington, West Virginia. Mother worked for
various pharmaceutical companies for over thirteen years. Mother earned an annual salary in excess
of $90,000 at her most recent job prior to moving to West Virginia. At the time of trial, Mother was
working at home on a part-time basis earning $6.25 per hour.

When the Trial Court issued its final judgment, it also distributed the marital property
and its ruling in this regard is not challenged on appeal. The Trial Court ordered the marital
residence and a 1995 Malibu boat be sold at public auction. The Trial Court awarded Mother a lien
in the amount of $43,504.30 against the proceeds from the sale. Any remaining money was to be
divided equally by the parties. The marital residence and the boat eventually were sold at public
auction for a combined total of $247,500. Although not entirely clear from the record, the
outstanding balance on the mortgage for the house was between $192,000 and $195,000. There was
no indebtedness on the boat. The sale price for the house and boat certainly appears to this Court
to be sufficient to cover Mother’s lien of $43,504.30, even after deducting the expenses incurred in
auctioning these items. The point being, $43,504.30 will go far if Mother does decide to move to
Tennessee. Further, we find no support in the record for Mother’s position that her financial
situation would be any better in West Virginia than it would be in Tennessee.

On remand, Mother shall have fifteen (15) days from the date this Opinion becomes
final in which to notify the Trial Court whether she voluntarily will return with the child to the East
Tennessee area. If Mother indicates that she is going to return, her relocation must be completed
within sixty (60) days from the date this Opinion becomes final. Assuming Mother has relocated
within this time frame, then the Trial Court’s judgment designating Mother as the primary residential
parent is affirmed.

Because we have reversed that portion of the Trial Court’s judgment which ordered
Mother to return to Tennessee, we must discuss what is to happen on remand if Mother chooses to
remain in West Virginia or does not accomplish her relocation in a timely manner under this
Opinion. If either of these situations occur, then the portion of the Trial Court’s judgment which
designated Mother as the primary residential parent is vacated. The Trial Court then must conduct
additional proceedings as may be required in order to determine what is in the best interest of the

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minor child in accordance with Tenn. Code Ann. §36-6-106(a), with the understanding that Mother
will remain in West Virginia and cannot be ordered to return to Tennessee.

The Trial Court obviously was frustrated with Mother’s repeated and effective
attempts at denying Father co-parenting time. The Trial Court even went so far as to find that Father
never would have a meaningful relationship with his child if Mother remains in West Virginia. The
proof in the record overwhelmingly supports this finding. Mother has repeatedly refused to allow
Father co-parenting time in direct defiance of the Trial Court’s various orders. There is nothing
whatsoever to suggest to this Court that Mother’s behavior will change. In fact, Dr. Nordquist stated
the following in his report:

There also is no doubt that [Mother] harbors very hostile feelings
toward [Father] and is not capable right now of supporting his role as
[the child’s] parent. Nothing that I or the Court may say will change
her views about [Father]. She has no insight into the contribution she
is making to alienating [the child] from her father. If left unchecked,
[Mother] will do serious harm to the father-child relationship once
[the child] has the cognitive awareness to know how [Mother] feels.

In light of the foregoing, when determining on remand what is in the child’s best
interest if Mother does not move back to Tennessee, the Trial Court properly may accept that Father
will be prevented from having any meaningful relationship with his daughter if Mother remains in
West Virginia and is designated the primary residential parent. The Trial Court need not hear any
additional proof on this particular point since we are hereby affirming that finding. This should not
be taken as an implicit directive by this Court either to or not to designate Father as the primary
residential parent. Tenn. Code Ann. § 36-6-106(a)(10) instructs a trial court to consider “the
willingness and ability of each of the parents to facilitate and encourage a close and continuing
parent-child relationship between the child and the other parent, consistent with the best interest of
the child,” but this is not the only relevant factor to be considered.

We previously affirmed in this Opinion the Trial Court’s finding that proper medical
resources are available in East Tennessee to treat the parties’ daughter, a conclusion we reached even
when considering the medical related evidence excluded by the Trial Court. Because we have
affirmed the Trial Court’s finding on this issue, the Trial Court need not entertain any further proof
on the quality of medical care in West Virginia v. East Tennessee.

An important issue raised by Mother which we have yet to address is her argument
that the child has become accustomed to her health care providers in West Virginia and, therefore,
it now is not in the best interest of the child to return to Tennessee. We fully understand that such
a move may be a difficult adjustment for this child. However, based on the record before us we are
confident that such an adjustment can be made. Mother informed the Trial Court at the hearing in
May of 2001 that she voluntarily would return to Tennessee, and this “accord” was incorporated into
the Trial Court’s order. When she later refused to return, she violated both her agreement and the

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Trial Court’s order. Had she returned to Tennessee when she originally agreed to do so, she and the
child would have been here for over three years and would have developed relationships and become
well adjusted to the health care providers here. Of course, this never happened because Mother
changed her mind and ignored both her agreement and the Trial Court’s order. If further proceedings
are necessary on remand, the fact that the child may or even will have some difficulty in adjusting
to a move to East Tennessee cannot be held against Father since this difficulty has come about in the
first place solely because Mother reneged on her initial agreement and refused to comply with the
Trial Court’s orders. In short, Mother will not be allowed to refuse to comply with the Trial Court’s
orders which were based on her initial agreement to return to Tennessee and then use the resulting
situation to argue the child’s best interest mandates that she wins. Therefore, further proof on this
issue likewise is unnecessary.

The child has certain daily routines which are required due to her medical condition.
Father has had difficulty learning these routines because Mother has systematically set about to
exclude Father from this child’s life. If the Trial Court finds on remand that Father still is not “up
to speed” on these matters and to the extent this can be attributed to Mother’s preventing Father’s
court ordered co-parenting time, the Trial Court is instructed not to hold this fact against Father.

As noted previously, Mother made an offer of proof after the Trial Court refused to
hear additional testimony from various witnesses. The result we have reached so far has resulted in
our affirming the exclusion of much of this evidence, except for the testimony of Kim Reagan, Susan
Miller, and Sherri Lott. The offer of proof was detailed and Father’s counsel was given the
opportunity to cross-examine these three witnesses. After our review of this testimony, we hold the
Trial Court shall consider the testimony of these three witnesses and give it whatever weight it deems
appropriate if further proceedings are required on remand.

This has been a very difficult and frustrating case for the Trial Court. The obvious
intent behind ordering Mother to return to Tennessee was so Mother could remain the primary
residential parent and, at the same time, Father could have the opportunity to play an important role
in his child’s life, something Mother consistently has denied to him. If Mother chooses not to return
to Tennessee with the child, the Trial Court on remand will have a most difficult decision to make.
Quite simply, the ball now is back in Mother’s court. She can ensure her designation as the primary
residential parent by returning to Tennessee with the child. Or, she can remain in West Virginia and
run the risk of having Father designated as the primary residential parent. While we are certain
Mother will deem having to make this choice unfair or wrong, the fact is that she is fully responsible
for the situation, due in large part to her successful efforts at excluding Father from this child’s life.

There already have been several hearings where proof was taken as well as a full trial.
We have tried to limit the issues on remand in hopes that this matter can proceed quickly to a final
resolution. It is in no one’s best interest for custody determinations to linger in the court system for
years. We hope the Trial Court will be able to expedite this matter so a resolution can be reached
in the near future. If further proceedings are necessary, we believe it is likely that another appeal will
be filed, regardless of the Trial Court’s ultimate custody determination. Therefore, if the Trial Court

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must decide what is in the best interest of the child vis-a-vis Mother living in West Virginia v. Father
in Tennessee, then the Trial Court is instructed to be as detailed as possible in its final order,
including but not limited to listing each of the factors it relied on in reaching its conclusion and the
weight given to that particular factor, etc. There is one final point which must be mentioned. The
Trial Court’s frustration with Mother is understandable given her calculated defiance of numerous
court orders, and it is clear that the effect of her actions, i.e., excluding Father from the child’s life,
is an entirely relevant consideration in determining the best interest of the child. However,
designating Father as the primary residential parent is not appropriate simply to punish Mother for
violating the court orders regarding visitation. See, e.g., Roache v. Bourisaw, No. M2000-02651-
COA-R3-CV, 2001 Tenn. App. LEXIS 756, at ** 18, 19 (Tenn. Ct. App. Oct. 20, 2001), no appl.
perm appeal filed (A “[c]hange of custody is not appropriate as a method to punish a parent for
failing to comply with court orders regarding visitation.”).3

Conclusion

The judgment of the Trial Court is affirmed in part and reversed in part, and this cause
is remanded to the Trial Court for further proceedings as may be required, if any, consistent with this
Opinion and for collection of the costs below. Costs on appeal are assessed against the Appellant,
Kimberly S. Johnson, and her surety.

___________________________________
D. MICHAEL SWINEY, JUDGE

3
In Roache, we went on to add that “a custodial parent's actions which interfere with the relationship between
the child and non-custodial parent may constitute a material change of circumstances” for purposes of changing custody
after a final custody order has been entered. 2001 Tenn. App. LEXIS 756, at ** 18, 19. W hile what is involved here
is an initial custody determination rather than a change of custody determination, the principle remains the same.

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