Durham v. Durham

• Court: Court of Appeals of Tennessee
• Decided: December 14, 1998
• Docket: 01A01-9803-CV-00129
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE FILED December 14, 1998

Cecil W. Crowson ERIC KYLE DURHAM, ) Appellate Court Clerk ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9803-CV-00129 VS. ) ) Marion Circuit ) No. 11990 MISTY DAWN DURHAM, ) ) Defendant/Appellant. )

APPEALED FROM THE CIRCUIT COURT OF MARION COUNTY AT JASPER, TENNESSEE

THE HONORABLE BUDDY D. PERRY, JUDGE

HANK HILL HANK HILL & ASSOCIATES, ATTORNEYS, P.C. 701 Cherry Street, Suite 200 Chattanooga, Tennessee 37402 Attorney for Plaintiff/Appellee

PHILLIP A. NOBLETT NELSON, McMAHAN & NOBLETT 400 Pioneer Bank Building Chattanooga, Tennessee 37402 Attorney for Defendant/Appellant

AFFIRMED AND REMANDED

BEN H. CANTRELL PRESIDING JUDGE, M.S.

CONCUR: CAIN, J. TODD, J. MEMORANDUM OPINION1

The only issue raised in this appeal is whether the trial judge’s award of

custody to the father can stand without “appropriate findings of facts in accordance

with Tenn. Code Ann. § 36-6-106.” We affirm the lower court’s order.

I.

In a December 12, 1997 decree, the Circuit Court of Marion County

granted the appellant, Eric Kyle Durham, a divorce and awarded him the care,

custody, and control of his minor child, Brittany Nicole Durham.

The issue raised on appeal by the appellant is:

WHETHER THE TRIAL COURT PROPERLY DETERMINED THE ‘‘BEST INTERESTS’’ OF BRITTANY DURHAM WHEN IT GRANTED CUSTODY TO THE FATHER ERIC DURHAM WITHOUT APPROPRIATE FINDINGS OF FACTS IN ACCORDANCE WITH T.C.A. § 36-6-106?

A reference to Tenn. Code Ann. § 36-6-106 does not reveal a

requirement that the court make specific findings of facts in custody cases. The

statute does require that a custody determination be made on the basis of what is in

the best interests of the child, and in making that determination, the court should

consider all relevant factors. The statute then goes on to enumerate ten factors that

the court should consider “where applicable.”

1 Rule 10(b) of the Rules of the Court of Appeals reads as follows:

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a form al opin ion w ould h ave n o pre ced entia l value . W hen a cas e is de cided by memorandum opinion it shall be designated “MEMORAN DUM OPINION,” shall not be published, and s hall not be cited or relied on for any reason in a subsequent unrelated case.

-2- Although the appellant does not refer to Rule 52.01, Tenn. R. Civ. Proc.,

that rule requires the trial judge, in a case tried without a jury, to make findings of facts

when a party requests such findings before the entry of judgment. The record,

however, does not reveal that such a request was made in this case.

II.

The appellant does not argue that the evidence preponderates against

the trial judge’s implicit finding that the best interests of the child will be served by

placing her with her father. See Rule 13(d), Tenn. R. App. Proc.; Bah v. Bah, 668

S.W.2d 663 (Tenn. App. 1983). We have, however, examined the record and are

satisfied that the mother’s conduct during her separation, her continuing liason with

the father of her second child, and her apparent lack of candor in court are factors that

bear on how well the child’s interests would be served in her custody.

The judgment of the court below is afirmed and the cause is remanded

to the Circuit Court of Marion County for any further proceedings that may become

necessary. Tax the costs on appeal to the appellant.

_____________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:

_____________________________ WILLIAM B. CAIN, JUDGE

_____________________________ HENRY F. TODD, JUDGE

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