In Re Noah J.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
March 11, 2015 Session

IN RE: NOAH J.

Direct Appeal from the Juvenile Court for Shelby County
No. Z8480 Dan H. Michael, Special Judge

No. W2014-01778-COA-R3-JV – Filed March 23, 2015

This appeal involves a dispute between unmarried parents regarding a parenting schedule
for their young son. Following a hearing before a juvenile court magistrate, an order was
entered providing that the parents would have joint custody, with the designation of
primary residential parent alternating each year. Mother requested a rehearing before the
juvenile court judge. Several months later, the matter was reheard before another
magistrate, who was appointed by the juvenile court judge to hear the matter as substitute
judge. The magistrate sitting as substitute judge entered an order naming Mother primary
residential parent and limiting Father to only supervised visitation. Father was ordered to
pay all of Mother‟s attorney‟s fees. Due to the lack of written findings, we vacate the
final order and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated and
Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Margaret A. Reid and Elizabeth W. Fyke, Memphis, Tennessee, for the appellant,
William J.

Aubrey L. Brown, Jr., Memphis, Tennessee, for the appellee, Emily W.

OPINION

I. FACTS & PROCEDURAL HISTORY

Emily W. (“Mother”) and William J. (“Father”) began dating in June 2012, when
Mother was 20 years old and Father was 29. Mother became pregnant soon after the
relationship began. She moved into Father‟s apartment in November 2012. Mother gave
birth to the parties‟ son, Noah, in May 2013. Father signed a voluntary acknowledgment
of paternity and is listed as the child‟s father on the birth certificate.

Mother and Father had a volatile relationship. Both parties accuse the other of
physical violence but deny being physically violent themselves. The police were called
to the parties‟ apartment on numerous occasions. After a particularly heated argument in
August 2013, Father moved out of the apartment and into his parents‟ home. Noah was
about three months old at the time. Father filed a petition for custody and visitation on
August 29, 2013, in the Juvenile Court of Shelby County. Father sought to be named
primary residential parent but, in the alternative, requested joint and equal parenting time
for the parties. Mother filed a response and counter-petition, asking the court to limit
Father to supervised “non-overnight” visitation due to his history of alcohol abuse and
also due to Mother‟s claims of domestic violence during the parties‟ relationship.

The matter was heard on or about February 5, 2014, by Juvenile Court Magistrate
Harold W. Horne. After the hearing, Magistrate Horne entered written findings
recommending that Mother and Father have “joint custody” of Noah, with Mother being
named primary residential parent in even years and Father being named primary
residential parent in odd years. During the years when either parent was designated as
alternate residential parent, he or she would have parenting time with Noah during the
first, third, and fifth weekends of each month, on certain holidays, and for two fifteen-day
periods during the summer. The designation of primary residential parent was to change
each year on August 1. Mother was designated primary residential parent as of the date
of the order. Magistrate Horne recommended that each party be responsible for his or her
own attorney‟s fees. These findings and recommendations were confirmed and entered
by the Juvenile Court Judge as an order of the Juvenile Court on or about February 24,
2014.

Mother timely filed a request for rehearing before the Juvenile Court Judge. 1 The
Juvenile Court Judge appointed another Juvenile Court Magistrate, Dan H. Michael, to
rehear the matter as “substitute judge” and “special judge” pursuant to Tennessee Code
Annotated section 17-2-122(b). The rehearing occurred on June 26, 2014. By that time,
the parties had been operating under Magistrate Horne‟s parenting schedule for over four
months, with Mother having primary residential parenting responsibilities and Father
having parenting time every other weekend and for one extended period during early
June.

Father was 31 at the time of the rehearing in June 2014. Father owned his own
business and also worked two part-time jobs. Father was residing with his parents but
1
Tennessee Code Annotated section 37-1-107(e) and Tennessee Rule of Juvenile Procedure 4(c)(1) permit
any party to request a rehearing before a juvenile court judge of certain matters heard by a magistrate.
2
continued to pay the rent for the apartment where Mother lived with Noah, in addition to
the utilities for the apartment and the cost of Noah‟s health insurance. He also gave
Mother additional cash for Noah‟s support. Noah was thirteen months old at the time of
the rehearing.

Father admitted that he had a long history of alcohol abuse during his 20s. He
pled guilty to five DUI charges between 2003 and 2009 and pled guilty to domestic
assault in 2010. Father testified that he hit “rock bottom” when he was incarcerated in
January 2010, and, upon his release, he began a year-long drug court program that
included drug and alcohol testing, intensive outpatient rehabilitation, participation in
alcohol and drug treatment groups, and Alcoholics Anonymous meetings. Father
completed the drug court program in May 2011. It was not until June 2012 that Father
began his relationship with Mother, and Noah was born in May 2013. At the June 2014
rehearing, Father testified that he occasionally consumes alcohol in connection with his
work in the restaurant business. However, he claimed that he had not been intoxicated
since completing the drug court program three years earlier, in 2011. Father‟s employer
for two years testified that Father was a “model employee” as a restaurant manager. He
testified that Father had never failed a drug screen and that he had never seen Father
intoxicated, even when vendors brought alcohol to the restaurant for sampling.

Father testified that Mother was using his history of alcohol abuse to “label” him
as a drunk when that was absolutely no longer the case. He noted that his vehicle was
equipped with an ignition interlock device that does not allow him to start the vehicle if
he has consumed alcohol. He voluntarily kept the apparatus on his vehicle even after the
restriction on his driver‟s license was lifted. He claimed that he did so in order to provide
“rigid evidence” that he is no longer drinking. Father testified that Mother became
belligerent at two visitation exchanges (after he filed his petition for custody) and
accused him of being drunk at the exchanges. After the second incident, Father went
directly to a police station and requested a Breathalyzer test. The officer was unable to
administer the test under such circumstances but did testify at the rehearing that Father
did not appear to be intoxicated or impaired. While the custody litigation was pending,
Father voluntarily submitted to routine alcohol and drug testing at a local screening
facility and passed two hair follicle drug screens and nineteen alcohol screens. Each drug
screen was capable of detecting the presence of substances for the past 90 days, and each
alcohol screen covered a three to four day period. Father also completed a ten-week
program of parenting classes at the Exchange Club. In sum, Father claimed that he was
“absolutely reformed from what [he] used to be” so that he could have shared custody of
his son. Father‟s parents also testified that Father had become a sober man and a
“recovered” alcoholic. Father‟s mother testified that Mother had lied to them in the past

3
by accusing Father of drinking when he was not.2 Father testified that Mother was
physically abusive during the parties‟ relationship, and his father testified that he had
witnessed Mother hitting Father with her fists during an argument.

Mother testified that Father was lying about not being intoxicated since he
completed the drug court program in May 2011. She testified that Father routinely came
home visibly drunk when they lived together. Two of Mother‟s friends from high school
testified that they saw Father drinking heavily and doing drugs at the Bonnaroo Music
Festival in the summer of 2012, which was before Father began dating Mother, but after
his completion of the drug court program. (Mother admitted that she also drank and did
drugs at Bonnaroo.) Another witness, who previously dated Father‟s brother, testified
that she had seen Father drinking “a few beers” on four different occasions in 2012 or
early 2013, before Noah‟s birth.

Mother testified that Father‟s drinking problem “may have been a little less” after
Noah was born, but she said “it was definitely still an issue.” She admitted Father had
never harmed Noah but said Father did leave Noah crying in his swing on two occasions
when Father was drinking. One of Mother‟s friends testified that she saw Father drunk at
the apartment he shared with Mother on July 4, 2013, after Noah‟s birth. Mother testified
that she accused Father of drinking at the visitation exchange because she could smell
alcohol “coming out of his pores” as if he was hungover. She testified that Father knows
how to “cheat” drug and alcohol screens by using a urine sample from another person,
because he had provided clean samples for co-workers in the past.

Regarding the allegation of domestic violence, Mother testified that Father slapped
her about five times during the parties‟ relationship, and that he also pinned her against a
door during an argument. However, Mother admitted to throwing a chair leg and putting
a hole in the door of their apartment.

Additional witnesses testified as well, but it is not necessary to recount their
testimony for purposes of this opinion. The magistrate sitting as special judge entered an
order granting “custody” to Mother and providing that Father would have only supervised
visitation. Father was ordered to pay all of Mother‟s attorney‟s fees, which totaled
$35,640.49. Father timely filed a notice of appeal.

II. ISSUES PRESENTED

Father raises the following issues on appeal:

2
Mother admitted that she lied about Noah‟s paternity by telling an ex-boyfriend that he was the father
“trying to get back at him.”
4
 1. Did the trial court err in granting full custody to Mother;

2. Did the trial court err in ordering only supervised visitation for Father;

3. Did the trial court err by failing to make specific findings of fact; and

4. Did the trial court err in awarding Mother attorney‟s fees.

For the following reasons, we vacate the decision of the juvenile court and remand for
further proceedings.

III. STANDARD OF REVIEW

Appellate courts review a trial court‟s decision on a parenting arrangement for
abuse of discretion, keeping the following principles in mind:

Because decisions regarding parenting arrangements are factually
driven and require careful consideration of numerous factors, Holloway v.
Bradley, 190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit,
948 S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have the
opportunity to observe the witnesses and make credibility determinations,
are better positioned to evaluate the facts than appellate judges. Massey-
Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus,
determining the details of parenting plans is “peculiarly within the broad
discretion of the trial judge.” Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.
1988) (quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App.
1973)). “It is not the function of appellate courts to tweak a [residential
parenting schedule] in the hopes of achieving a more reasonable result than
the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). A
trial court‟s decision regarding the details of a residential parenting
schedule should not be reversed absent an abuse of discretion. Id. “An
abuse of discretion occurs when the trial court ... appl[ies] an incorrect legal
standard, reaches an illogical result, resolves the case on a clearly erroneous
assessment of the evidence, or relies on reasoning that causes an injustice.”
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court
abuses its discretion in establishing a residential parenting schedule “only
when the trial court‟s ruling falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal standards to the
evidence found in the record.” Eldridge, 42 S.W.3d at 88.

5
Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013). The abuse of discretion
standard “does not permit an appellate court to substitute its judgment for that of the trial
court, but „reflects an awareness that the decision being reviewed involved a choice
among several acceptable alternatives[.]‟” Gonsewski, 350 S.W.3d at 105 (quoting
Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)).

IV. DISCUSSION

We begin with Father‟s argument that the trial court erred by failing to make
specific findings of fact to support its decision. After reciting the procedural history of
the case, the juvenile court‟s order simply stated, “upon proof introduced and the entire
record, the Special Judge finds that the Petition for Custody and Visitation filed in this
Court on August 29, 2013 should be sustained.” The order provided that Mother was
awarded “custody” of the child and that Father would have “supervised visitation
privileges” on the first, third, and fifth weekends of the month in addition to certain
holidays and summer visitation.3 The order did not reference any factors that guided the
court‟s decision, and the court did not make any written findings. The court‟s order
awarding attorney‟s fees simply stated that the award was based on “the entire record in
the cause, and all of the factors set forth in Rule 1.5 of the Rules of Professional Conduct
as set forth in Rule 8 of the Rules of the Supreme Court of the State of Tennessee.”

“In bench trials, trial courts must make findings of fact and conclusions of law to
support their rulings.” Hardin v. Hardin, No. W2012-00273-COA-R3-CV, 2012 WL
6727533, at *3 (Tenn. Ct. App. Dec. 27, 2012). Tennessee Rule of Civil Procedure 52.01
states, in pertinent part:

In all actions tried upon the facts without a jury, the court shall find the
facts specially and shall state separately its conclusions of law and direct
the entry of the appropriate judgment.4
3
The order provided that the parties had “permission to change this visitation order without the
participation of the Court” if both parents agreed and the revised schedule was put in writing and signed
by both parents.
4
Rule 1(b) of the Rules of Juvenile Procedure provides that:

The Tennessee Rules of Civil Procedure shall govern all cases involving the termination
of parental rights, paternity cases, guardianship and mental health commitment cases
6
“Simply stating the trial court‟s decision, without more, does not fulfill this mandate.”
Barnes v. Barnes, No. M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 (Tenn. Ct.
App. Oct. 24, 2012).

We have held that “the General Assembly‟s decision to require findings of fact
and conclusions of law is „not a mere technicality.‟” Hardin, 2012 WL 6727533, at *3
(quoting In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct.
App. May 15, 2009)). Findings and conclusions serve the important purposes of
facilitating appellate review and promoting the just and speedy resolution of appeals. Id.
Without sufficient findings and conclusions, “„this court is left to wonder on what basis
the court reached its ultimate decision.‟” Id. (quoting In re K.H., 2009 WL 1362314, at
*8).

There is no bright-line test by which to assess the sufficiency of factual
findings, but “the findings of fact must include as much of the subsidiary
facts as is necessary to disclose to the reviewing court the steps by which
the trial court reached its ultimate conclusion on each factual issue.”

Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013) (quoting 9C Federal Practice &
Procedure § 2579, at 328).

Our task on appeal in this case is to determine whether the trial court abused its
discretion in fashioning this particular parenting arrangement. Again, “[a]n 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.” Gonsewski, 350 S.W.3d
at 105 (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011);
Henderson, 318 S.W.3d at 335). Unfortunately, we cannot determine whether the trial
court applied an incorrect legal standard or relied on reasoning that caused an injustice
because we do not know what legal standard the court applied, or what reasoning it
employed. See Halliday v. Halliday, No. M2011-01892-COA-R3-CV, 2012 WL
7170479, at *12 (Tenn. Ct. App. Dec. 6, 2012), perm. app. denied (Tenn. Apr. 11, 2013)
(explaining that “this Court cannot determine whether the trial court abused its
discretion” in the absence of factual findings by the trial court); see also In re Connor

involving children, and child custody proceedings under T.C.A. §§ 36–6–101, et seq.,
36–6–201, et seq., and 37–1–104(a)(2) and (f)[.]

Because custody is at issue in this case, the Rules of Civil Procedure govern the proceedings in the
Juvenile Court.
7
S.L., No. W2012-00587-COA-R3-JV, 2012 WL 5462839, at *4 (Tenn. Ct. App. Nov. 8,
2012) (“findings of fact are particularly important in cases involving the custody and
parenting schedule of children,” and without such findings “we are unable to afford
appropriate deference to the trial court‟s decision”). “„Discretionary choices are not left
to a court‟s inclination, but to its judgment; and its judgment is to be guided by sound
legal principles.‟” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007) (quoting Martha S.
Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 J. App.
Prac. & Process 47, 58 (2000)). Thus, an abuse of discretion will be found “when the
trial court . . . fails to properly consider the factors on that issue given by the higher
courts to guide the discretionary determination.” Id.

We recognize that, at the conclusion of the testimony, the magistrate sitting as
substitute judge addressed Father and told him that he did not find his testimony credible.
He said, “You may be a dry drunk, but you‟re not sober.” Nevertheless, the magistrate‟s
oral comments about Father‟s sobriety are no substitute for specific written factual
findings and conclusions of law to justify the court‟s parenting arrangement and to
comply with the mandates of Rule 52.01. It is well settled that a trial court “speaks
through its order, not through the transcript.” In re Adoption of E.N.R., 42 S.W.3d 26, 31
(Tenn. 2001).

“One remedy appellate courts typically apply when a trial court‟s factual findings
fail to satisfy the Rule 52.01 requirement is to remand the case to the trial court with
directions to issue sufficient findings and conclusions.” Lovlace, 418 S.W.3d at 36. In
the case before us, Mother asks this Court to independently review the record and
determine whether the trial court‟s parenting arrangement is appropriate, rather than
remanding the case, in order to save the parties time and money. We decline to do so in
this case. “The importance of Rule 52.01 findings of fact and conclusions of law cannot
be underscored enough, particularly in a fact-intensive matter such as a case in which the
parenting arrangement is at issue.” Williams v. Singler, No. W2012-01253-COA-R3-JV,
2013 WL 3927934, at *9 (Tenn. Ct. App. July 31, 2013). As noted above, trial judges
“are better positioned to evaluate the facts” in cases involving parenting arrangements,
which “are factually driven and require careful consideration of numerous factors.”
Armbrister, 414 S.W.3d at 693. A decision regarding a parenting arrangement “often
hinges on subtle factors such as the [parties‟] demeanor and credibility during the trial
proceedings.” Battleson v. Battleson, 223 S.W.3d 278, 282 (Tenn. Ct. App. 2006).
Unlike appellate judges, trial judges have the opportunity to observe the witnesses and
make credibility determinations. Armbrister, 414 S.W.3d at 693 (citing Massey–Holt,
255 S.W.3d at 607). Accordingly, “determining the details of parenting plans is
peculiarly within the broad discretion of the trial judge.” Id. (citation omitted). The facts
of this case are hotly disputed, and credibility is likely to weigh heavily on any decision

8
on an appropriate parenting plan. Resolving these issues is a task for the trial court.5 See
Kathryne B.F. v. Michael B., No. W2013-01757-COA-R3-CV, 2014 WL 992110, at *7
(Tenn. Ct. App. Mar. 13, 2014) (“The determination of custody of a child is a very fact
specific inquiry, and that inquiry is within the purview of the trial court, not the appellate
court.”).

The trial court‟s order does not indicate how or why it reached its decision on this
particular parenting arrangement or this award of attorney‟s fees. Because the trial court
did not make any findings to explain its decision, we cannot discern whether the trial
court abused its discretion with regard to these issues. We therefore vacate the trial
court‟s order and remand for entry of an order addressing these issues in compliance with
Rule 52.01. See Kathryne B.F., 2014 WL 992110, at *8 (remanding for specific findings
concerning the trial court‟s decision on attorney‟s fees); In re Connor S.L., 2012 WL
5462839, at *4 (remanding for factual findings to justify a particular parenting schedule);
Cf. Spigner v. Spigner, No. E2013-02696-COA-R3-CV, 2014 WL 6882280, at *10
(Tenn. Ct. App. Dec. 8, 2014) (concluding that the trial court‟s failure to articulate any
factors considered in its decision with regard to a parenting plan required this Court to
vacate the decision and remand for the entry of an order that specifically addressed the
best interest of the child and articulated the factors relied on by the trial court in reaching
its decision).

This opinion should not be construed as preventing the parties from putting on
additional evidence regarding the child custody issue on remand, including how the
parties‟ circumstances have changed since the entry of the July 30, 2014 order.

[W]hen a trial court is directed to reconsider an issue on remand that
involves the circumstances of children and their parents, „the trial court
should endeavor to ascertain and give effect to the parties‟ actual
circumstances, which will necessarily change over the course of time, e.g.,
people remarry, have more children, [etc.].

Kathryne B.F., 2014 WL 992110, at *7 (quoting In re C.W., 420 S .W.3d 13, 22 (Tenn.
Ct. App. 2013)); see also Spigner, 2014 WL 6882280, at *12. In light of the passage of
time and the nature of this case, the trial court may, in its discretion, consider additional
evidence to ensure that any custody order is based on the parties‟ actual circumstances.
Kathryne B.F., 2014 WL 992110, at *7. We recognize that “„[e]vents and lives have not
stood still while this custody dispute has been in the courts.‟” Barnes, 2012 WL

5
In order to save time and money, parties who receive an order that fails to comply with Rule 52.01 have
the option of seeking correction of that deficiency in the trial court by filing a motion under Rule 52.02
“to amend or make additional findings of fact, whether or not an alteration of the judgment would be
required if the motion is granted.” Tenn. R. Civ. P. 59.01.
9
5266382, at *9 (quoting Wall v. Wall, No. W2010-01069-COA-R3-CV, 2011 WL
2732269, at *26 ( Tenn. Ct. App. July 14, 2011)).

Pending entry of the trial court‟s order on remand, we reinstate the provisions of
the February 24, 2014 order entered by Magistrate Horne and approved by the juvenile
court judge. Specifically, Mother and Father shall have joint custody of Noah, with the
designation of primary residential parent alternating each year on August 1. Mother shall
be designated primary residential parent upon entry of this opinion, and Father shall have
residential parenting time as set forth in the February 24, 2014 order. The juvenile
court‟s award of attorney‟s fees is likewise vacated.

V. CONCLUSION

For the aforementioned reasons, the decision of the juvenile court is hereby
vacated and remanded for further proceedings. Costs of this appeal are taxed one-half to
the appellee, Emily W., and one-half to the appellant, William J., and his surety, for
which execution may issue if necessary.

_________________________________
BRANDON O. GIBSON, JUDGE

10