FILED
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE March 23, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
DUSTIN ROBERT SUNTHEIMER, )
)
Plaintiff/Appellee ) Appeal No.
) M1999-00248-COA-R3-CV
vs. )
)
MARIA ESTHER SUNTHEIMER, ) Rutherford County Chancery
) No. 97DR-358
Defendant/Appellant )
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CHANCERY COURT
FOR RUTHERFORD COUNTY
THE HONORABLE ROBERT CORLEW PRESIDING
DARRELL L. SCARLETT
MURFREESBORO, TENNESSEE
ATTORNEY FOR DEFENDANT/APPELLANT
STEVEN A. STINSON
MURFREESBORO, TENNESSEE
ATTORNEY FOR PLAINTIFF/APPELLEE
AFFIRMED AND REMANDED
PATRICIA J. COTTRELL, JUDGE
CONCUR:
CANTRELL, P.J.
KOCH, J.
OPINION
This is an appeal from an award of custody upon the parents’ divorce.
The trial court awarded sole custody of the minor child to Dustin Robert
Suntheimer (“Father”) with limited visitation to Maria Esther Suntheimer
(“Mother”). We affirm the award of custody to Father.
I.
The parties married in June 1994. At the birth of the child on
November 4, 1996, Mother was living in Miami and Father in Murfreesboro,
Tennessee. Father went to Miami for the birth of the child, returned to
Tennessee, and went back for the holidays. Mother and the child were
supported by Mother’s mother, who resides in Colombia.
Mother left the child with a nanny in January 1997 and flew to
Colombia for medical treatment. The trip was extended because Mother
required surgery. Father flew to Miami to retrieve the child and take him to
Mother in Colombia. Father’s passport had been confiscated, however, and so
he brought the child to Tennessee. Father had Mother served with the divorce
complaint and a restraining order while she was in the hospital in Colombia.
Mother moved to Tennessee in May 1997 after her recuperation and
sought visitation with her son. She and Father, through their attorneys,
worked out an agreed order providing for Mother’s supervised visitation with
the child. Mother’s only reason for being in Tennessee was to be near her
son. Even Father’s family, while criticizing Mother’s parenting skills,
admitted that she loved the child. However, she missed some visits and was
often late to pick him up. Father became very rigid in his schedule, not
allowing Mother to have the child if she was late, even by a minimal amount
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of time.
Evidence of the parties’ mutual antipathy was overwhelming at trial.
Each criticized the other’s family. Each expressed fears that the other or
someone in the family would abscond with the child. Each made threats
against the other. Each charged the other with assault.
Both parties admitted to past drug use, and both claimed not to have
used any illegal drugs since the birth of the child. Both agreed at trial to
submit to drug tests; Father tested negative in both tests, Mother tested
positive for cocaine in the hair follicle test, showing past use, although there
was no indication how long ago that drug use had occurred. There was
testimony that Mother had been seen smoking marijuana and using cocaine
while she lived in Murfreesboro.
Mother had moved four times while in Murfreesboro. She babysat on
occasion, but otherwise did not work; her mother supported her. She was
arrested at some point on bad check charges, but her mother paid the debt. At
the time of the trial, Father was a full-time honor student at Middle Tennessee
State University, residing with his father and sister. He admitted to two prior
felony convictions for bad checks. Father, his father and his stepmother had
previous encounters with the criminal justice system.
Following two days of testimony, the trial court granted the divorce to
Father on the ground of Mother’s inappropriate marital conduct. The court
found the parties’ “lack of a spirit of cooperation with each other, and a basic
lack of respect each for the other as a parent of the minor child have
contributed to the problems which they now suffer.” Regarding custody of
the child, the court found “the love, affection, and emotional ties are strong ...
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with both parents, with the mother perhaps having the stronger ties with the
child.” The court found Father more stable and more disposed to provide
materially for the child than Mother, and that continuity of placement favored
the father. The court expressed reservations about the character and behavior
of others who resided in or frequented the homes of both parties. The court
was also concerned that both parties had used illegal drugs in the past, and
that Mother’s use had been recent enough to show up in the hair follicle test.
The court found Mother to have shown “irresponsibility in her financial
matters, her job status, her changes of residences, and her brushes with the
criminal courts.” The court observed a videotape introduced into evidence
and found Father to have shown “a disparaging attitude toward [Mother]
which is a negative factor in consideration of the custody issue.”
The court remarked that the custody decision was a difficult one, but
found that the best interest of the child was served by remaining in the
custody of Father. Child support and restricted visitation were set for Mother.
Mother appeals the custody determination.
II.
Our courts make no more important decisions than those involving the
custody of children. When called upon to order a custody arrangement, a
court must consider many factors and make a custody determination based on
the best interest of the child. See Tenn. Code Ann. § 36-6-106 (Supp. 1999).
In child custody cases, the welfare and best interest of the child are the
paramount concern, and the determination of the child’s best interest must
turn on the particular facts of each case. See Akins v. Akins, 805 S.W.2d 377,
378 (Tenn. Ct. App. 1990) (citing Holloway v. Bradley, 190 Tenn. 565, 570-
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72, 230 S.W.2d 1003, 1006 (1950)). Where, as here, both parents seek
custody, this court has held that the child’s best interest is to be determined by
using an analysis of the comparative fitness of each parent. See Bah v. Bah,
668 S.W.2d 663 (Tenn. Ct. App. 1983).
Because the determination of where a child’s best interest lies is the
result of the consideration of a number of factors in the context of a specific
factual situation, see Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn.
Ct. App. 1997), it is particularly fact-driven. See Rogero v. Pitt, 759 S.W.2d
109, 112 (Tenn. 1988). Such decisions often hinge on the trial court’s
assessment of the demeanor and credibility of the parents and other witnesses.
See Adelsperger, 970 S.W.2d at 485; Gilliam v. Gilliam, 776 S.W.2d 81, 84
(Tenn. Ct. App. 1988). Consequently, appellate courts are reluctant to
second-guess a trial court’s determination regarding custody and visitation.
See Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn. Ct. App. 1997)
(quoting Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. Ct. App. 1996)).
Accordingly, this court will decline to disturb the custody decision of
the trial court herein unless that decision is based on a material error of law or
the evidence preponderates against it. See Adelsperger, 970 S.W.2d at 485;
see also Tenn. R. App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555
(Tenn. 1984).
Both parents have factors weighing in their favor as well as factors
weighing against them. Mother obviously loves her son, but the evidence
does not preponderate against the trial court’s finding that her irresponsibility
with visitation and other matters, as well as the evidence of recent drug use,
weigh heavily against her. Father is working hard to build a stable life for his
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son and has provided such a home. Continuity and stability in the child’s
placement are important, and the award of custody to Father furthers those
goals. Having reviewed the record, we cannot say that the evidence
preponderates against the award of custody to Father.
III.
However, we note with great concern the potential effect on the child of
Father’s extreme hostility toward Mother, evidenced at least in part by the
videotape introduced into evidence. We believe the trial court charitably
understated Father’s actions by simply describing him as having a
“disparaging attitude” toward Mother. Father is seen on the videotape telling
the child, “Your mother lied again,” calling Mother’s friend a profane name,
and on more than one occasion attempting to provoke Mother, even while the
child was present.
The most perplexing act shown on the tape, however, was when Father
showed the clock and noted that the time was 8:45 a.m., the latest time Mother
should have picked up the child. Father and his father made a point of saying
that Father had an exam at the university that day and would have to make
other arrangements for child care. Seconds later, Mother was seen in the
driveway. The doorbell rang at 8:46. Mother was turned away as the child
screamed, “Mama, Mama.” Father’s need to punish Mother by imposing his
rigid schedule upon her obviously outweighed his own inconvenience,
Mother’s right to visitation, and any concern for the child’s desire to see
Mother. These actions cause this Court great concern about Father’s
willingness to encourage a close relationship between his child and the boy’s
mother, which is clearly in the child’s best interest.
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The state legislature and our courts have spoken very strongly on the
need for each parent to maintain a relationship with the child. See, e.g.,
Wilson v. Wilson, 987 S.W.2d 555, 564 (Tenn. Ct. App. 1999) (quoting
Pizzillo v. Pizzillo, 884 S.W.2d 749, 755 (Tenn. Ct. App. 1994)) (“A child’s
interests are well-served by a custody and visitation arrangement that
promotes the development of relationships with both the custodial and non-
custodial parent.”); Griffin v. Stone, 834 S.W.2d 300, 305 (Tenn. Ct. App.
1992) (each parent has an obligation to love, nurture and care for the children
and the parties must cooperate for the good of the children); Tenn. Code Ann.
§ 36-6-106(10). Indeed, the state legislature has codified the expectation of a
relationship with both parents. In Tenn. Code Ann. § 36-6-106(10) (Supp.
1999) the legislature listed 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, as a factor to be considered when
awarding custody.
We understand that Mother is not blameless as to the hostilities. Thus,
our cautionary remarks apply equally to Mother. We have addressed our
admonitions primarily to Father, however, because of his greater access to and
control over the child as the custodial parent.
IV.
For the reasons stated above, we affirm the order of the trial court. This
case is remanded to the trial court for such further proceedings as may be
necessary. Costs are taxed to the appellant.
_____________________________
PATRICIA J. COTTRELL, JUDGE
CONCUR:
_______________________________
BEN H. CANTRELL, P.J., M.S.
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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