Kate Marie Belardo v. Hector Belardo, Jr.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 25, 2013 Session

Kate Marie Belardo v. Hector Belardo, Jr.

Appeal from the Chancery Court for Williamson County
No. 36512 Derek K. Smith, Judge

No. M2012-02598-COA-R3-CV - Filed November 1, 2013

This case concerns custody and alimony decisions relative to a divorce. Discerning no
error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed
and Remanded.

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S., and D AVID R. F ARMER, J., joined.

Mark T. Freeman, Nashville, Tennessee, for the appellant, Hector Belardo, Jr.

Keith H. Solomon, Brentwood, Tennessee, for the appellee, Kate Marie Belardo.

OPINION

The parties, Kate Marie Belardo (“Mother”) and Hector Belardo, Jr. (“Father”) were
married in 2007 and have one child together, born in 2008. The parties separated on July 30,
2009, and Mother filed a Complaint for Divorce on August 11, 2009. Included in the
Complaint was a request by Wife for an ex parte restraining order, preventing Father from
having unsupervised time with the child. On August 12, 2009, the trial court denied Mother’s
request for an ex parte restraining order, finding that there was no evidence that Father posed
a substantial or significant threat of harm to the child. On October 29, 2009, the parties
agreed to a temporary parenting plan in which Father was awarded parenting time with the
child two days a week for several hours. However, Father was not awarded any overnight
visitation with the child. On May 27, 2011, Father filed a Motion for an Emergency
Restraining Order, preventing Mother from having any unsupervised time with the child.
Specifically, Father cited the fact that prior to trial, he had learned that Mother had been
hospitalized several times due to her unstable mental state, see further discussion below.
Father maintained that Mother’s visitation should be supervised throughout the trial on this
cause.

Based on allegations that Father was physically and sexually abusing the child, on
November 17, 2011, Mother filed a Petition for a Temporary Order of Protection to restrict
Father’s parenting time. Mother alleged that the child told her that Father wrestled with the
child and the wrestling became sexual in nature. Mother took the child to the hospital for an
exam and reported the allegations to the Department of Children’s Services. The results of
the various examinations were inconclusive and Father denied the allegations. On the same
day, the trial court denied Mother’s request for an Emergency Order of Protection and set the
matter for a full hearing. In response to Mother’s allegations, on November 18, 2011, Father
filed a Motion for Contempt and for another Restraining Order against Mother based on her
allegations. Father asked that the trial court enter an order requiring Mother to produce the
child for visitation. Father’s motion was later resolved by an agreed order of the parties, as
discussed below.

Mother filed a notice of dismissal of her Petition for an Order of Protection on
December 8, 2011. The trial court thereafter dismissed Mother’s Petition on December 15,
2011. Mother, however, filed another request for an Order of Protection on January 31, 2012,
alleging again that Father was physically and sexually abusing the child. The trial court
denied the request on February 13, 2012, finding that there was “no evidence to support
[M]other’s allegations that [F]ather had physically or sexually abused the minor child in any
way.” At the time of trial, Mother had withdrawn all allegations against Father and did not
seek any restrictions on his visitation. During this time, on November 29, 2011, the trial court
entered an agreed order evidencing the parties’ agreement resolving all pending issues with
regard to the parenting time of each party, in which the parties agreed to share equal
parenting time with the child pending a final hearing.

The trial was held on July 2, 2012. At trial, Mother testified that due to her young age
(she was 20 at the time of the marriage; Father was 38), Father was able to manipulate and
control her through religion. Mother testified that although the parties attended her preferred
church, Strong Tower Church (“the Church”), throughout the marriage, Father would often
cite religion to justify his controlling nature. For example, Mother testified that she felt like
a trophy wife during the marriage and that Father made her maintain a gym schedule and diet
in order to return to her pre-pregnancy weight. To this end, Mother testified that Father once
gave her a card that cited a biblical passage about the wife being the lesser vessel than the

Page -2-
husband. Attached to the card was a certificate for a two-hour workout session with Father.
Father did not deny giving Mother the certificate, but did deny sending Mother cards with
biblical passages in an effort to control Mother. Mother testified to two other incidents in
which Father became upset because Mother was consuming food that was apparently off-
limits, including chewing gum and diet soda. Father did not deny that he told Mother that she
should not chew gum or drink diet soda, but contended that the parties had agreed that such
items were unhealthy. Mother further testified that Father was very controlling about the
cleanliness of the parties’ home, once telling Mother’s older son to keep his head down when
walking throughout the home to look for crumbs and becoming upset when Mother walked
on the grass at their home. Father denied that he was in any way controlling, or that he ever
manipulated Mother, through religion or other means. To support his contention that he did
not have controlling tendencies, Father called a work colleague, who testified that Father had
never exhibited controlling tendencies at work. Instead, the colleague testified that Father
was friendly, helpful, and well-liked by those with whom he worked.

Mother testified that Father continued his controlling actions after the separation,
including trying to give her gifts through the child’s preschool teacher, as well as sending her
numerous text messages about reconciliation. The record includes several text messages from
Father, entered into evidence without objection, in which Father asked Mother to pray for
forgiveness with him in order to reconcile. The text messages also show that Mother asked
Father to attend a session with Mother’s psychologist, but Father never agreed. The text
messages further show that Mother and Father could not agree on a counselor for the child,
who was three years old at the time of trial. With regard to this incident, Mother testified that
when she was seeking a counselor for the child, Father recommended several counselors.
Mother testified that the catalyst for the counseling was her concern over Father’s possible
abuse, and the fact that the child has some trouble with acting violent toward his older
brother.1 When Mother called the counselors, however, the ones recommended by Father
were marital counselors, rather than child counselors. Mother testified that she had taken the
child to counseling and that he seemed to be doing well. Otherwise, Mother testified that the
child is extremely intelligent for his age, can speak several languages, and loves to cook.
Another example Mother gave of Father’s controlling nature is that he refused to take the
child to swimming lessons during his parenting time because that would “take away from his
time” with the child.

Mother’s mental state was a point of contention at trial. According to Mother, she
was sexually assaulted as a teenager, which led her to abuse alcohol and drugs. Mother,
however, was able to take control of her issues for some time, eventually graduating from
nursing school and obtaining a job. Sometime after the parties’ son was born, however,

1
Mother has a son from a previous relationship.

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Mother’s mental issues reemerged. Both Mother and Father testified that Mother became
very depressed, suffered from mood swings, and would often react in anger. Father testified
that he believed that Mother was suffering from post-partum depression. Accordingly, the
parties went to Mother’s ob-gyn, who prescribed Mother an anti-depressant. However, when
the issues that had emerged between the parties did not dissipate, the parties turned to their
Church for guidance. The Church referred the parties to the Refuge Center counseling center,
and the parties agreed to participate in that program.

The counseling initially consisted of a one hour intake session with both parties and
then each party had a separate one hour session. The purpose of the initial three sessions was
to determine if the parties’ issues could be treated with couples’ counseling or if the parties
first needed individual counseling. Kyle Turner, the psychologist that performed both the
initial intake and Father’s individual session, testified at trial. Although Mr. Turner had
earned his Masters in Counseling at the time of the events at issue, he was still in training to
become a fully licensed mental health service provider. Mr. Turner testified that after
meeting with both Mother and Father together, and Father individually, he recommended that
Father receive individual counseling due to his power and control issues. Specifically, Mr.
Turner stated that Father exhibited the following classic signs of power and control issues:
blaming, minimizing, denying, veiled threats, and principles of entitlement to exert power
and control, such as using male privilege. Due to this diagnosis, Father was referred to
individual counseling.2 Because the parties were initially referred to counseling through
Mother’s Church, which paid for some of the treatment, the counseling center sent a letter
to church leaders, stating that Father was referred to individual counseling due to his
purported power and control issues. Mr. Turner could not produce any form in which Father
authorized any of the information regarding the counseling to be sent to the Church.

After the letter was sent, Mother decided to separate from Father. The Church
apparently supported this decision and presented Father with a “separation agreement,”
which outlined that Father was only to have minimal visitation with the parties’ son. Father,
in his testimony, blamed the Church for the demise of the marriage, alleging that the Church
had forced Mother to leave Father while she was in a vulnerable mental state. Mother denied
that the Church forced her to do anything and stated that she left Father when the counseling
allowed her to see that she was allowing herself to be controlled and manipulated by Father.

At the time Mother moved from the marital home in the summer of 2009, she moved
in with her parents. During this time, however, Mother’s mental state continued to

2
According to the record, Father did take part in some individual counseling with another
counselor—approximately seven additional sessions. However, the therapy was terminated at Father’s
request and the other counselor was not called to testify in this case.

Page -4-
deteriorate. It was undisputed that Mother was hospitalized ten times for mental issues during
the marriage and throughout the pendency of the divorce, attempted suicide on at least two
occasions, and received electroconvulsive therapy. During these hospitalizations, the parties’
child stayed with Mother’s parents. Mother and her own father both admitted that they did
not inform Father that Mother was hospitalized. Instead, Mother’s father told Father that
Mother was fine or that Mother was on vacation.

Mother took short-term disability leave from her employer in the spring of 2010
because she was unable to maintain her present job, which required extensive travel and work
from home in addition to regular full time hours. When the disability ran out, Mother took
leave pursuant to the Family Medical Leave Act. Subsequently, in May of 2011, Mother was
approved for disability through the Social Security Administration. Mother testified that she
is hoping to enroll in a state program to improve her work skills and that she plans to change
careers to some occupation less stressful than nursing.

In January of 2011, Mother began seeing a new counselor for behavioral therapy, Dr.
Eboni Webb, a licensed psychologist. Mother was referred to Dr. Webb through Strong
Tower Church, of which Dr. Webb is also a member. Dr. Webb testified via video
deposition at trial. According to Dr. Webb, Mother has a current diagnosis of bipolar
disorder, post-traumatic stress disorder, major depressive disorder, and borderline personality
disorder. Mother takes a number of medications prescribed by a psychiatrist.3 While she was
Dr. Webb’s patient, in the summer of 2011, Mother decided to move to her own apartment
with the children. Mother’s parents objected to Mother taking the children from their home,
even threatening to call the Department of Children’s Services. Eventually, Mother and her
parents decided that Mother would move to the apartment on her own, and that the children
would gradually transition to the apartment. However, Mother testified that shortly after
moving to the apartment, she became anxious and began to have thoughts of self-harm.
Accordingly, she called Dr. Webb. Through the counsel of Dr. Webb, Mother agreed to be
admitted to the hospital for observation. Mother was released from the hospital and
completed her move to her own apartment around September of 2011. The children fully
moved to live with Mother in January of 2012.

According to both Mother and Dr. Webb, there were no instances, between January
2012 and the date of trial, where Mother experienced thoughts of self harm. Instead, Dr.
Webb testified that Mother’s mental health had improved greatly through counseling and the
administration of medication. Dr. Webb testified that Mother had already completed one
phase of her treatment and that her counseling sessions had been decreased from several
times a week to only one time per week. Dr. Webb further testified that Mother is med-

3
Mother’s psychiatrist did not testify at trial.

Page -5-
compliant and that she always appears on time for her sessions. Specifically, Dr. Webb
opined that Mother is making appropriate decisions to ensure her health and the health of her
children, and that she did not believe that Mother was a danger to the children. Dr. Webb
further opined that Mother appears to be able to maintain living on her own with the children,
and that she believes that Mother could maintain full time employment in a less stressful
field. There is no evidence in the record that Mother ever put the children in danger or left
them unsupervised.

Father disagreed. At trial, he sought to restrict Mother’s time with the child to only
supervised visitation, citing Mother’s hospitalizations. When asked by the trial court who
Father would be comfortable supervising the visits, Father’s only suggestion was himself.
Father also blamed Mother’s allegations against him on what he perceived to be her distorted
memory of the events prior to the marriage. Dr. Webb confirmed that electroconvulsive
therapy can cause loss of memory. In fact, Dr. Webb testified that Mother once stated that
she could not remember why she had left Father. Mother also admitted that she had lost some
memories as a result of the treatment, but stated that she had vivid and clear memories of
most incidents, which she confirmed from her journal entries made during the time at issue.4

After the parties separated, Father testified that Mother did not inform Father of her
ongoing hospitalizations or offer to allow Father to keep the child. Mother testified, in
contrast, that she tried to keep Father up to date about her whereabouts, but that she did not
like to hear Father’s opinions about her medical care. Mother’s parents cared for the child
during this time and, according to Father, objected to Mother moving out of the parents’
home, for fear that the children would not receive adequate care. Mother testified that with
her parent’s approval, she “slowly moved” her children to their new home until the children
were living solely in Mother’s apartment in January 2012. Mother testified that around this
time, she noticed bruising on the parties’ child that made her suspect child abuse. Prior to
trial, the trial court denied all requests to limit Father’s visitation based on the suspected child
abuse. However, in her brief, Mother does not dispute the trial court’s conclusion that no
abuse occurred. According to Mother, her only income is her Social Security benefits in the
amount of $2,280.00 per month. In contrast, Father earns approximately $7,500.00 per month
through his employment as a nurse.

At the conclusion of the trial, the trial court named Mother the primary residential
parent and ordered Father to pay child support. Mother was awarded 183 days with the child
and Father was awarded 182 days, taking into account Father’s work schedule. No restriction
was placed on Mother’s ability to take the child to the Church. Mother was awarded alimony

4
Mother’s journal was not entered as an exhibit at trial and, therefore, is not contained in the
record on appeal.

Page -6-
in solido in the amount of $12,000.00 to pay attorney’s fees. The trial court also required
Father to pay Mother’s COBRA payments for one year or until Mother obtained insurance
through a job, whichever came first. Father filed a Motion to Alter or Amend the Judgment,
which was denied on December 5, 2012. The trial court entered an Amended Final Order on
December 5, 2012, containing detailed findings of fact and conclusions of law, as discussed
in detail below.

II. Statement of the Issues

Father appeals, raising the following issues:

1. Whether the trial court erred in naming Mother primary
residential parent of the child?
2. Whether the trial court erred in ruling that Mother be
allowed to take the minor child to Strong Tower Church,
considering Father’s objections?
3. Whether the trial court erred in awarding alimony in
solido to Mother in the amount of $12,000.00 for
attorney’s fees.
4. Whether the trial court erred in awarding Mother alimony
for purposes of covering her COBRA benefits for a year?

III. Primary Residential Parent

The first issue in this case is whether the trial court erred in naming Mother primary
residential parent. Because this case was tried by the court sitting without a jury, we review
the case de novo upon the record with a presumption of correctness of the findings of fact
by the trial court. Tenn. R. App. P. 13(d). In applying the de novo standard, 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.” Hyde v. Amanda Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905,
at *3 (Tenn. Ct. App. Oct.12, 2010) (citing Johnson v. Johnson, 169 S.W.3d 640, 645
(Tenn. Ct. App. 2004)). Because “[c]ustody and visitation determinations often hinge on
subtle factors, including the parents' demeanor and credibility during . . . proceedings,”
appellate courts “are reluctant to second-guess a trial court's decisions.” Hyde, 2010 WL
4024905, at *3 (citing Johnson, 169 S.W.3d at 645). Accordingly, appellate courts review
a trial court's decision regarding which parent to name as the primary residential parent for
an abuse of discretion. See Fulbright v. Fulbright, 64 S.W.3d 359, 365 (Tenn. Ct. App.
2001) (citation omitted); see also Porter v. Porter, No. M2012-00148-COA-R3-CV, 2013
WL 313838, at *14 (Tenn. Ct. App. 2013) (Kirby, J., concurring) (declining to reverse the

Page -7-
trial court’s ruling only because of the “high standard” required under abuse of discretion
review). “[A] trial court’s decision regarding custody or visitation should be set aside only
when it ‘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.’” Curtis v. Hill, 215
S.W.3d 836, 839 (Tenn. Ct. App. 2006) (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 88
(Tenn. 2001)). Thus, it is not within the province of appellate courts to tweak a parenting
plan in hopes of achieving a better result than the trial court. See Eldridge, 42 S.W.3d at 88.
As our Supreme Court has explained,

When no error in the trial court's ruling is evident from the
record, the trial court's ruling must stand. This maxim has
special significance in cases reviewed under the abuse of
discretion standard. The abuse of discretion standard recognizes
that the trial court is in a better position than the appellate court
to make certain judgments. The abuse of discretion standard
does not require a trial court to render an ideal order, even in
matters involving [parental responsibilities], to withstand
reversal. Reversal should not result simply because the appellate
court found a “better” resolution. See State v. Franklin, 714
S.W.2d 252, 258 (Tenn. 1986) (“appellate court should not
redetermine in retrospect and on a cold record how the case
could have been better tried”); cf. State v. Pappas, 754 S.W.2d
620, 625 (Tenn. Crim. App. 1987) (affirming trial court's ruling
under abuse of discretion standard while noting that action
contrary to action taken by the trial court was the better
practice); Bradford v. Bradford, 51 Tenn. App. 101, 364
S.W.2d 509, 512–13 (1962) (same). An abuse of discretion can
be found 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. See, e.g., State ex. rel Vaughn v. Kaatrude, 21
S.W.3d 244, 248 (Tenn. Ct. App. 2000).

Eldridge, 42 S.W.3d at 88. The trial court's discretion, however, is not unbounded. Hogue,
147 S.W.3d at 251 (citation omitted). The court must base its decision upon proof and apply
the appropriate legal principles. Id. (citation omitted).

“By statute as well as case law, the welfare and best interests of the child are the
paramount concern in custody, visitation, and residential placement determinations, and the
goal of any such decision is to place the child in an environment that will best serve his or

Page -8-
her needs.” Burden v. Burden, 250 S.W.3d 899, 908 (Tenn. Ct. App. 2007) (quoting
Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004 WL 2346000, at *5 (Tenn.
Ct. App. Oct. 15, 2004)). “In choosing which parent to designate as the primary residential
parent for the child, the court must conduct a ‘comparative fitness’ analysis, requiring the
court to determine which of the available parents would be comparatively more fit than the
other.” Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006) (citing Bah v. Bah, 668
S.W.2d 663, 666 (Tenn. 1983)). “In engaging in this analysis, the court must consider the
factors set out in Tennessee Code Annotated § 36-6-106(a).” Ellis, 211 S.W.3d at 286
(footnote omitted). While “there is no statutory requirement that the court list every
applicable factor along with its conclusion as to how that particular factor impacted the
overall custody determination,” the statute nevertheless “requires the trial court to consider
all the applicable factors.”5 Murray v. Murray, No. M2009-01576-COA-R3-CV, 2010 WL
3852218, at *8 (Tenn. Ct. App. Sept.28, 2010). Moreover, this Court has encouraged trial
courts to “be as precise as possible in making child custody findings” in order to facilitate
meaningful appellate review. In re Elaina M., No. M2010-01880-COA-R3-JV, 2011 WL
5071901, at *8 (Tenn. Ct. App. Oct. 25, 2011).

Accordingly, we will consider each applicable factor contained in Tennessee Code
Annotated Section 36-6-106(a), along with the trial court’s findings and the evidence
contained in the record.

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

The trial court found that both parents “adore [the child]” and that the factor applied equally
to both parents. The trial court specifically found that Mother’s prior allegations of abuse of
the child by Father were unfounded. On appeal, the parties do not dispute the finding that this
factor favors neither parent.

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

The trial court found that this factor also applies equally. Father disputes this finding because

5
This Court has previously expressed concern that the case law holding that trial judges need not
articulate the factors pursuant to Tennessee Code Annotated Section 36-6-106(a) appears to conflict with
the intent of Tennessee Rule of Civil Procedure 52.01. See In re Elaina M., No. M2010-01880-COA-R3-
JV, 2011 WL 5071901, at *8 n.13 (Tenn. Ct. App. Oct. 25, 2011).

Page -9-
he asserts that Mother did not care for the child during her ten hospitalizations, whereas he
cared for the child during his time with the child. However, Mother’s father’s testimony
shows that even when Mother was unable to care for the child independently of her parents’
help, she did spend substantial amounts of time with the child. Indeed, Mother’s father
testified that even when Mother was living separately from the child between August 2011
and January 2011, Mother still endeavored to spend as much time as possible with the child,
including nights and weekends, and took primary responsibility for the child while she was
with him. Father and Mother both testified that even when Mother lived separately from the
child, she was his primary custodian, responsible for feeding, clothing, and putting the child
to bed the majority of the time. Furthermore, for approximately five months prior to trial,
Mother and the child were living independently from her parents. Accordingly, we cannot
conclude that the evidence preponderates against the trial court’s finding that this factor
weighs equally in favor of both parties.
(3) The importance of continuity in the child's life and the length
of time the child has lived in a stable, satisfactory environment;

The trial court found that the issue of continuity weighed equally in favor of both parties.
Father disputes this finding, however, and asserts that Mother’s hospitalizations and move
from the marital home, to her parents, and finally to her own apartment evidence a lack of
stability. We agree that Mother’s multiple hospitalizations show a lack of stability on
Mother’s part prior to September 2011. However, since September of 2011 to the time of
trial, Mother’s life has been very stable. In addition, Mother’s action in slowly transitioning
the child from her parents’ home to her own apartment shows that Mother is concerned with
maintaining as much continuity as possible for the children. In all divorces, there will be
some change to which a child must adjust, and Mother’s actions show that she endeavored
to cause as little instability through that change as possible. Accordingly, the evidence does
not preponderate against the trial court’s finding that this factor weighs in favor of neither
party.

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

Father argues that the trial court erred in finding this factor in favor of Mother. The trial court
found that this factor weighs in favor of Mother “tremendously” because of the support that
Mother receives as compared to Father. Specifically, the trial court found that the child’s
care, when each parent must be away from the child, was important in deciding this factor.
Mother and her Father both testified that Mother’s parents are willing and able to care for the
child when Mother must be away from the child. Indeed, nothing in the record suggests that
the child’s maternal grandparents have anything but a close and loving relationship with the
child and that they are available to help with child care. In contrast, Father testified that if he
were forced to be away from the child during his parenting time (an event that would occur

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far more often under Father’s proposed parenting plan, which limited Mother’s visitation
substantially), Father would rely only on two friends to care for the child. These friends were
not called to testify and very little evidence was adduced regarding their fitness to care for
the child. Father did not testify about any other family members or caretakers who would be
able to care for the child in his absence. Under these circumstances, we cannot conclude that
the trial court’s conclusion that Mother’s family unit is more stable than Father’s was
erroneous.

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

Mother’s mental health was the largest point of contention at trial. With regard to this factor,
the trial court found that while Mother had “mental problems” during the pendency of the
divorce, based on Dr. Webb’s testimony, “Mother’s depression and suicidal tendencies had
been in remission since September 2011; so the Court finds that Mother has her problems,
but she has them under control.” Implicitly, the trial court found that this factor favored
neither party. Father disagrees, and argues that because of Mother’s ten hospitalizations prior
to the divorce trial, this factor should weigh in his favor. We agree with the trial court.
Mother’s therapist, a licensed psychologist, testified without dispute that Mother was doing
everything in her power to work through her mental issues. Mother takes all prescribed
medications and attends all required therapy sessions. Although one counselor testified that
Father had his own mental issues, in the form of power and control issues, Father, in contrast
to Mother’s diligent efforts to improve her mental health, refused to continue individual
counseling to combat these issues. Further, at the time of trial, Mother had not had an
incident of suicidal thoughts since the previous summer. Finally, nothing in the record
suggests that Mother’s issues prevented her from properly caring for the child since she, her
older son, and the child moved into an apartment together in January 2011, approximately
five months prior to trial. The trial court, in its discretion, found that Mother’s admitted
mental issues, coupled with her continued treatment and improvement, should not weigh
against her in determining which parent should be named primary residential parent.

The parties cite no cases in which a parties’ mental health issues, if appropriately
treated, were found to weigh in favor of naming the other parent primary residential parent.
For example, in In re Alexandra J.D., No. E2009-00459-COA-R3-JV, 2010 WL 5093862
(Tenn. Ct. App. Dec. 10, 2010), this Court concluded that the evidence did not preponderate
against the trial court’s finding that the mental health factor weighed in father’s favor when
the evidence showed that mother had an “extended history of behavioral health issues
including the mother's admission that she has been diagnosed as being bipolar, anxiety
disorder and depression and anxiety or panic attacks.” Id. at *5. The Court noted, however,
that the trial court relied, at least in part, on the fact that mother was not seeking treatment
for her disorders. Id. In contrast, in this case, the evidence shows that Mother is seeking

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treatment and that the treatment has been largely successful in combating Mother’s issues.
In another somewhat analogous case, Kellett v. Stuart, 206 S.W.3d 8 (Tenn. Ct. App. 2006),
this Court affirmed a trial court’s determination that mother’s bipolar disorder, and
consequent hospitalization, did not constitute a material change in circumstances affecting
the best interests of the child. Id. at 16–17. According to the Court, the trial court specifically
found that mother’s disorder and resulting hospitalizations “pose[d] no threat whatsoever to
the children and that they thrived while in [mother’s] custody and care.” Id. at 16. The Court
of Appeals concluded that the evidence in the record did not preponderate against this finding, and
accordingly, affirmed the trial court’s refusal to change custody to father. Id. Likewise in this
case, there is simply no evidence that the child has been negatively effected by Mother’s
disorders. In addition, the evidence shows that due to Mother’s consistent treatment, she is
no longer experiencing symptoms that make her unable to appropriately parent the child.

From our research, we note several cases from our Sister States in which evidence
that a parent suffered from mental issues was likewise not determinative in the courts’
custody decisions. In these cases, the courts considered evidence that showed that the parent
with the mental issues had sought or was seeking treatment, which had partially or
completely ameliorated the parent’s symptoms. See, e.g., Hall v. Hall, 598 So 2d 960, (Ala.
Ct. App. 1992) (awarding primary custody to mother despite evidence that she had suicidal
tendencies, when the evidence showed that mother sought appropriate treatment and had not
had an episode in several years); Turberville v. Turberville, 617 So 2d 284 (Ala. Ct. App.
1992) (concluding that the trial court did not err in awarding custody to mother, when the
evidence showed that she had recovered from her illness and was fully capable of seeing to
the well-being of the child); Voelker v. Voelker, 520 N.W.2d 903 (S.D. 1994) (affirming the
award of custody to mother, who was still seeking treatment for depression and a suicide
attempt, when the evidence showed that father also had mental issues, but he was not seeking
treatment to combat them, unlike mother); Timmons v Timmons, 605 So 2d 1162 (La. Ct.
App. 1992) (affirming award of custody to mother, who had diagnosed mental illness and
was hospitalized during the pendency of the divorce, when mother was the primary custodian
of the child and father only reluctantly participated in counseling); Garrett v. Garrett, 527
N.W.2d 213 (Neb. Ct. App. 1995) (affirming award of custody to mother, where she, unlike
father, sought treatment and medication to combat her mental issues). Likewise in this case,
Mother has sought consistent and diligent treatment to combat her mental issues. In addition,
Dr. Webb testified without dispute that Mother’s current issues should not effect her ability
to maintain employment or parent the child. Under these circumstances, we decline to
conclude that the evidence in the record preponderates against the trial court’s finding that
this factor weighs in favor of neither party.

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

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The trial court found that this factor does not weigh in favor of either parent. Neither party
disputes that finding on appeal.

(7)(A) The reasonable preference of the child, if twelve (12)
years of age or older;

The child, due to his young age, did not express a preference. Accordingly, this factor favors
neither party.

(8) Evidence of physical or emotional abuse to the child, to the
other parent or to any other person;

The trial court found that this factor weighs in favor of Mother, stating:

[T]he Court does believe that Father has engaged in some
unintentional emotional abuse, dealing with soft drinks, whether
Mother could drink them when she was pregnant, and that
Mother could not walk on the grass; there was also testimony
that Father was a bit obsessed with cleaning up the house; based
on the demeanor of Mother, the Court believes there has been
some unintentional abuse and that Mother exaggerated it some
and Father diminished it some, but based upon the testimony of
the parties and their demeanor, the Court is satisfied that this
factor weighs in favor of Mother.

The trial court’s determination of this factor is based, in part, on his assessment of both
Mother’s and Father’s credibility. The trial court's findings on credibility, whether express
or implicit, are entitled to great deference on appeal. See Taylor v. McKinnie, No.
W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct. App. Aug. 5, 2008). If the
trial court’s factual determinations are based on its assessment of witness credibility, this
Court will not reevaluate that assessment absent clear and convincing evidence to the
contrary.” Franklin County Bd. Of Educ. v. Crabtree, 337 S.W.3d 808, 811 (Tenn. Ct. App.
2010) (citing Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002)).

Father disputes the trial court’s credibility findings by pointing to evidence that
Mother had some memory loss due to the electroconvulsive therapy that she underwent
subsequent to the separation. Mother does not dispute that she had some memory loss due
to the therapy, but contends that she has clear memories of the incidents that she described
in her testimony, and that these memories are corroborated by her personal journal from that
time. Indeed, Dr. Webb testified that the electroconvulsive therapy causes memory lapses,

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but did not testify that the memories that Mother can recall were in any way distorted by the
therapy. Father did not deny many of the allegations against him at trial, but instead, argued
that Mother had blown his actions out of proportion or that he was only joking. Under these
circumstances, we cannot conclude that the trial court abused its discretion in crediting
Mother’s testimony regarding the unintentional emotional abuse, and therefore, affirm the
trial court’s finding that this factor weighs in favor of Mother.

(9) The character and behavior of any other person who resides
in or frequents the home of a parent or caregiver and the
person's interactions with the child;

The trial court also concluded that this factor weighed in favor of Mother. Specifically, the
trial court found that “the maternal grandparents . . . are able to frequent the home of the
minor child and [Mother], and the Court finds that they are good individuals and positive
individuals to make a positive impact on [the child’s] life.” Father argues that the trial court
misapplied this factor because the factor only involves “a situation where there is a person
living in a residence or [that] frequents the residence of the minor child that in some way
could pose a threat to that minor child.” However, Father cites no authority for this narrow
interpretation. Nothing in the statute limits the trial court from considering the positive
impact of those people who live with or are frequently around the child. In addition, the
statute at issue specifically contemplates that the trial court may consider all relevant factors.
Accordingly, the trial court did not err in finding this factor in favor of Mother.

(10) 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.

The trial court found that this factor weighed in favor of neither party. Father argues that the
trial court erred in finding that this factor did not weigh in his favor because of Mother’s past

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action in seeking several restraining orders against Father. Father argues that these facts show
that Mother has not “encourage[d] a close and continuing parent-child relationship between
the child” and Father. We agree that Mother’s past actions may have interfered with Father’s
ability to parent his child. However, we agree with the trial court that this fact does not
necessitate a finding that this factor weighs in favor of Father. Father also filed a motion
seeking to limit Mother’s time with the child. By the time of trial, however, Mother had
withdrawn her concerns about Father’s parenting and had proposed that Father have
substantially equal time with the child. The trial court even remarked that Mother “truly,
sincerely in her heart, wants [F]ather to have a tremendous, positive and active relationship
with [the child.]” Again, this determination is based on an assessment of Mother’s credibility,
which is entitled to great deference on appeal.

In contrast, during trial, Father sought to severely limit Mother’s time with the child,
despite the fact that there was simply no evidence presented that the child was in any danger
from having unsupervised visitation with Mother. Further, Father testified that he would only
be comfortable if Mother has supervised visitation with the child and if he were the person
to supervise the visits. From the totality of the evidence, it appears that both parties have
acted, at different times during the pendency of the divorce, to discourage the other parents’
relationship with the child. Accordingly, we agree with the trial court that this factor favors
neither party.

After a review of the relevant factors, we note that factors 1, 2, 3, 5, 6, and 10 weigh
in favor of neither party. Factors 4, 8, and 9 weigh in favor of Mother. No factors weigh
solely in favor of Father. This Court has held, however, that:

Ascertaining a child's best interests does not call for a rote
examination of each of [the relevant] factors and then a
determination of whether the sum of the factors tips in favor of
[one parent or the other]. The relevancy and weight to be given
each factor depends on the unique facts of each case. Thus,
depending upon the circumstances of a particular child and [his
or her parents], the consideration of one factor may very well
dictate the outcome of the analysis.

Allen v. Allen, No. W2012-00541-COA-R3CV, 2013 WL 1324917, at *9 (Tenn. Ct. App.
April 3, 2013) (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005) (applying
the above doctrine in a termination of parental rights case)). After reviewing the evidence in
the record, we cannot conclude that the trial court abused its discretion in naming Mother
primary residential parent of the child. While the bulk of the record involves allegations
against the parties, we note that very little of the testimony at trial concerned how the parties’

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issues actually affected the best interests of the child. The record reflects that the child is
intelligent and happy; however, the record also shows that the child has exhibited some
violent tendencies toward his brother. The record reflects that Mother took appropriate action
to contend with this issue, including taking the child to counseling. The text messages in the
record reflect that Father was less than helpful in acting to obtain an appropriate psychologist
for the child. We recognize that Mother has serious mental issues, which require ongoing
treatment. However, Mother has stabilized due to considerable diligence and persistence on
her part. As previously discussed, this Court must review the trial court’s decision regarding
custody and visitation under the abuse of discretion standard. Johnson, 169 S.W.3d at 645.
Under this standard, we must view the trial court’s decision in the light most favorable to it,
and uphold the trial court's ruling “as long as reasonable minds could disagree about its
correctness.” Gonsewski, 350 S.W.3d at 105–06; Caldwell v. Hill, 250 S.W.3d 865, 869
(Tenn. Ct. App. 2007). Thus, “we are not permitted to substitute our judgment for that of the
trial court.” Caldwell, 250 S.W.3d at 869. Under these circumstances, we cannot conclude
that the trial court abused its discretion in naming Mother the primary residential parent.

IV. Mother’s Church

Father next argues that the trial court erred in failing to place any restrictions on
Mother’s ability to take the child to her Church. Father contends that the Church was the
catalyst for the demise of the parties’ marriage and believes that the Church will have a
negative impact on the child’s view of Father. Mother, on the other hand, agreed not to have
the child baptized in the Church or to make the child a full member of the Church, but
wanted to continue to take the child to the Church on Sundays. Father’s schedule causes him
to work on Sundays, and Mother’s proposed parenting plan, largely adopted by the trial court,
awarded parenting time to Mother on Sundays. From our review of Father’s brief, however,
the section of his brief pertaining to this issue contains no citations to the record, nor any
authority to support his position that the trial court erred in allowing Mother to take the child
to the Church. This Court has repeatedly held that the failure to include citation to the record
or to appropriate supporting authority in the argument section of the brief is a waiver of the
issue on appeal. See, e.g., Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000) ("Courts
have routinely held that the failure to make appropriate references to the record and to cite
relevant authority in the argument section of the brief as required by Rule 27(a)(7) constitutes
a waiver of the issue."); Owen v. Long Tire, L.L.C., No. W2011-01227-COA-R3-CV, 2011
WL 6777014, at *4 (Tenn. Ct. App. Dec. 22, 2011) (“This Court is under no duty to verify
unsupported allegations in a party's brief, or for that matter consider issues raised but not
argued in their brief.”). Thus, this issue is waived.

V. Alimony

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 The Tennessee Supreme Court has consistently recognized that trial courts in
Tennessee have broad discretion to determine whether spousal support is needed and, if so,
to determine the nature, amount, and duration of the award. See, e.g., Gonsewski v.
Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011); Bratton v. Bratton, 136 S.W.3d 595, 605
(Tenn. 2004); Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree,
16 S.W.3d 356, 360 (Tenn. 2000). Because a trial court’s “decision regarding spousal support
is factually driven and involves the careful balancing of many factors,” Gonsewski, 350
S.W.3d at 105 (footnote omitted), the role of an appellate court is not to second guess the
trial court or to substitute its judgment for that of the trial court, but to determine whether the
trial court abused its discretion in awarding, or refusing to award, spousal support. Id.; White
v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999) (“If a discretionary decision
is within a range of acceptable alternatives, we will not substitute our judgment for that of
the trial court simply because we may have chosen a different alternative.”). “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. (citing Wright ex rel.
Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d
328, 335 (Tenn. 2010)). In determining whether the trial court abused its discretion, an
appellate court “should presume that the [trial court's] decision is correct and should review
the evidence in the light most favorable to the decision.” Gonsewski, 350 S.W.3d at 105–06;
see also Tenn. R. App. P. 13(d) (“[R]eview of findings of fact by the trial court in civil
actions shall be de novo upon the record of the trial court, accompanied by a presumption of
the correctness of the finding [s], unless the preponderance of the evidence is otherwise.”).

Tennessee recognizes four distinct types of spousal support: (1) alimony in futuro, (2)
alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. Tenn. Code Ann.
§ 36-5-121(d)(1) (2010 & Supp. 2012). Alimony in futuro is a form of long-term support.
An award of alimony in futuro is appropriate when the economically disadvantaged spouse
cannot achieve self-sufficiency and economic rehabilitation is not feasible. Gonsewski, 350
S.W.3d at 107. Alimony in solido, another form of long-term support, is typically awarded
to adjust the distribution of the marital estate and, as such, is generally not modifiable and
does not terminate upon death or remarriage. Id. at 108. By contrast, rehabilitative alimony
is short-term support that enables a disadvantaged spouse to obtain education or training
necessary to become self-reliant following a divorce. Id. Where economic rehabilitation is
unnecessary, transitional alimony may be awarded. Transitional alimony assists the
disadvantaged spouse with the “transition to the status of a single person.” Id. at 109 (internal
quotation marks omitted). In this case, we are concerned only with alimony in solido. We
begin with the award of alimony in solido for Mother's attorney’s fees.

A. Attorney’s fees

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 With respect to the award of attorney's fees in divorce cases, our Supreme Court has
stated:

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, 350 S.W.3d at 113 (citations omitted).

Father first argues that the trial court failed to properly evaluate whether the requested
fee was reasonable, citing First Peoples Bank of Tenn. v. Hill, 340 S.W.3d 398 (Tenn. Ct.
App. 2010). In First Peoples, this Court concluded that all requests for attorneys fees are
governed by the ethical rules regarding fees, which require that requested fees be reasonable.
See id. at 409 (citing Tenn. R. Sup. Ct. 8, RPC 1.5 (“A lawyer's fee and charges for expenses
shall be reasonable.”)). The Court in First Peoples vacated the award of attorney's fees,
concluding that nothing in the record suggested that the trial court considered the
reasonableness of the fee in light of the appropriate factors. Father argues that this Court
should likewise vacate the award of attorney’s fees and remand to the trial court for
consideration of the fee's reasonableness.

We agree that reasonableness is the touchstone inquiry for a request of attorney’s fees.
However, we disagree that our only option is to vacate and remand the fee in this case. The
party seeking attorney's fees has the burden of proving what constitutes a reasonable fee and
should be in a position to tender the necessary proof. Wilson Mgmt. Co. v. Star Distribs. Co.,
745 S.W.2d 870, 873 (Tenn.1988). As Justice (then Judge) Koch has explained for this
Court:

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 [The party seeking attorney's fees] has the burden to make out
a prima facie claim for his request for reasonable attorney's fees.
Ordinarily, the party requesting attorney's fees carries this
burden by presenting the affidavit of the lawyer who performed
the work. Parties opposing a request for attorney's fees should
be afforded a fair opportunity to cross-examine the requesting
party's lawyer or to present proof of its own.

Hosier v. Crye-Leike Commercial, Inc., 2001 WL 799740, at *6 (Tenn. Ct. App. July 17,
2001) (internal citations omitted). Mother’s attorney filed an affidavit in the trial court noting
that he had performed work for Mother at a rate of $275.00 per hour and that his total bill
was $18,700.00. Father made no objection to Mother’s attorney’s affidavit, did not question
Mother’s attorney, and did not present his own proof regarding the reasonableness of the fee.
Mother testified that she had paid approximately $4,000.00 in attorney’s fees by the time of
trial, leaving a $14,700.00 balance remaining. However, the trial court only awarded Mother
$12,000.00 in attorney’s fees, suggesting that the trial court did consider the reasonableness
of the requested fee. Under these circumstances, we decline to conclude that the trial court
abused its discretion in awarding Mother a portion of her attorney’s fees as alimony in solido.

Father also argues that the trial court erred in awarding Mother attorney’s fees based
on “the applicable factors.” However, again this portion of Father’s brief contains no
authority and no citation to the record. Under these circumstances, Father’s argument
regarding the applicable factors is waived. See Bean, 40 S.W.3d at 55. Even assuming
arguendo that this issue was not waived, however, we conclude that the trial court did not
err in awarding Mother $12,000.00 in attorney’s fees.

Decisions regarding the type, length, and amount of alimony turn upon the unique
facts of each case and careful consideration of many factors, including, but not limited to, the
statutory factors contained in Tennessee Code Annotated Section 36-5-121(i). The pertinent
factors include:

(1) The relative earning capacity, obligations, needs, and
financial resources of each party, including income from
pension, profit sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability
and opportunity of each party to secure such education and
training, and the necessity of a party to secure further education
and training to improve such party's earning capacity to a
reasonable level;
(3) The duration of the marriage;

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 (4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not
limited to, physical disability or incapacity due to a chronic
debilitating disease;
(6) The extent to which it would be undesirable for a party to
seek employment outside the home, because such party will be
custodian of a minor child of the marriage;
(7) The separate assets of each party, both real and personal,
tangible and intangible;
(8) The provisions made with regard to the marital property as
defined in § 36-4-121;
(9) The standard of living of the parties established during the
marriage;
(10) The extent to which each party has made such tangible and
intangible contributions to the marriage as monetary and
homemaker contributions, and tangible and intangible
contributions by a party to the education, training or increased
earning power of the other party;
(11) The relative fault of the parties, in cases where the court, in
its discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each
party, as are necessary to consider the equities between the
parties.

Tenn. Code Ann. § 36-5-121(i). The two most important factors, however, are the
disadvantaged spouse’s need and the obligor spouse’s ability to pay. Gonsewski, 350 S.W.3d
at 109–10.

Father points out that the parties were only married for five years and argues that the
demise of the marriage was the fault of Mother, rather than himself.6 Father further argues
that Mother received a back payment of Social Security Disability benefits, from which she
could have paid attorney fees. In this case, however, Mother’s actual income and earning
capacity are both substantially lower than Father’s. Further, in dividing the marital property,
Mother received various household goods and her own vehicle. In contrast, Father received

6
Father asserts that the trial court found Father guilty of inappropriate marital conduct as a
ground for divorce. This assertion is not supported in the record. Instead, the trial court declared the
parties divorced pursuant to Tennessee Code Annotated Section 36-4-129(b). Accordingly, there is no
indication that the trial court considered the fault of the parties in deciding to award Mother alimony in
solido.

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the marital home and the entirety of his investment and retirement accounts that accrued
during the marriage. Under these circumstances, we cannot conclude that the trial court
abused its discretion in awarding Mother alimony in solido in the form of her attorney’s fees.

B. Cobra Insurance Payments

Father next argues that the trial court erred in awarding Mother alimony in solido in
the form of Cobra Insurance payments for one year, or until Mother was able to gain
insurance through her employer. Again, however, Father fails to cite any authority for his
contention that the trial court erred, nor does this section of his brief contain any citations to
the record. Accordingly, this issue is likewise waived. See Bean, 40 S.W.3d at 55. Further
from our review of the record, we see no abuse of discretion in the trial court’s decision. As
previously discussed, Mother’s income and earning capacity are substantially lower than
Father’s. In addition, Mother testified that it was very important for her to maintain insurance
because of rate increases due to her pre-existing conditions that could occur if there was ever
a lapse in coverage. Further, when asked about Cobra payments at trial, Father testified that
he wanted to help Mother in any way he could. Under these circumstances, the trial court did
not err in awarding Cobra Insurance payments to Mother for one year, or until she could
obtain insurance through her employer, whichever should occur first.

V. Conclusion

The judgment of the Chancery Court of Williamson County is affirmed and this cause
is remanded to the trial court for all further proceedings as may be necessary and are
consistent with this Opinion. Costs of this appeal are taxed to Appellant, Hector Belardo, Jr.,
and his surety.

_________________________________
J. STEVEN STAFFORD, JUDGE

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