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Wilson v. Wilson6/20/2000
A divorce decree granted both parents joint custody of their young child. When the child reached school age, the mother and father were living in different towns, and they both filed petitions to be granted primary custody. The trial court granted primary custody to the father, with reasonable visitation for the mother. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Affirmed and Remanded
Cantrell, P.J., M.S., delivered the opinion of the court, in which Cain and Cottrell, JJ. joined.
OPINION
I.
Justin Foster Wilson was born on September 14, 1994. His parents, Jeremy and Jennifer Wilson divorced fifteen months later. The divorce decree, filed on December 11, 1995 in the General Sessions Court for Warren County, granted the divorce to Jeremy Wilson on the ground of inappropriate marital conduct. Both parties were awarded joint custody of Justin, with physical custody to alternate on a weekly basis. No child support was ordered. The joint custody arrangement worked fairly well, although for most of the time, the parties found it advantageous to alternate custody every two or three days rather than weekly.
After the divorce, Jeremy Wilson continued to live in the log home he and his father had built on land adjoining his parents' property in McMinnville. Jennifer moved into an apartment in McMinnville, and then purchased a house near her parents' home in the Centertown community in Warren County. She subsequently sold the Centertown house and moved to Tullahoma. On September 12, 1998, Jennifer married Elliott Ladd. Mr. Ladd's 16-year-old son and 8-year-old daughter from a previous marriage lived with him in a 4 bedroom house in Tullahoma. Jennifer moved into the house at the time of her marriage.
As Justin approached the age of five, the question arose as to whether he should go to school in McMinnville or Tullahoma. On March 3, 1999, Jennifer Ladd filed a petition to modify custody, in which she asserted that it was in Justin's manifest best interest that she be granted absolute custody and that Justin be enrolled in a school near her. On April 5, 1999, Jeremy Wilson filed an answer and counter-petition for custody.
After a full evidentiary hearing on August 11, 1999, the trial court granted custody to the father, subject to reasonable visitation by the mother. The mother was also ordered to pay child support. This appeal followed.
II.
The sole issue raised on appeal is whether the trial court erred in granting primary custody of Justin to his father. The trial judge admitted that it was difficult to decide between the competing claims of the parents, but he ultimately found that it was in the child's best interest to be placed in his father's custody. Our review of this finding of fact is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Rule 13(d), Tenn. R. App. P.
Fortunately for our review, there is very little dispute as to the pertinent facts, but only as to the relative weight those facts were entitled to in the court's best interest analysis. Tenn. Code. Ann. ยง 36-6-106 sets out the factors for the court to consider in determining the best interest of a child in matters of custody:
(1) The love, affection and emotional ties existing between the parents and child;
(2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(3) The importance of continuity
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