Facts: The parties separated after 18 years of marriage. Mother was stay-at-home parent and the primary caregiver to the parties’ two children throughout the marriage. Mother moved out of the marital residence in Virginia and relocated to Chattanooga with the parties’ daughter. Thereafter, Father relocated to Nashville with the parties’ son.

At trial, Mother sought custody of Son. Son expressed his preference to remain with Father. The trial court heard proof from a counselor at Son’s high school who testified by telephone. The counselor testified about Son’s disciplinary problems at school. The counselor also asserted that she was a “proponent of kids being with their mom and their siblings” and that “[i]n most cases I think being with mom and siblings . . . seems to be most beneficial.”

The trial court found that Father was more of a buddy to his son than a Father. He did not make the hard choices to disallow Son from social activities when his grades were not good. He did not apparently take seriously the “pranks” which the school deemed “severe.” Son was not further disciplined by Father other than what the school did for inappropriate behavior. The trial court found that Father lacked judgment in some of his responses to his son. The trial court further found that it was in Son’s best interest to remain in the same home with his sister, who is two years younger.

The trial court awarded custody of Son to Mother. Father appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

After noting the highly deferential standard of review and the statutory factors that must be considered in the best interest determination, the Court reasoned:

First, insofar as the Trial Court relied on the testimony of the [school] counselor, and it is clear that the Trial Court did so, we believe this was in error. First, we observe that [the counselor] testified via telephone. As we have noted regarding the determination of witness credibility, “[A trial court] has a distinct advantage over us: it sees the witnesses in person. Unlike an appellate court-which is limited to a “cold” transcript of the evidence and exhibits-the trial court is in a position to observe the demeanor of the witnesses as they testify.” Here, the Trial Court lacked the ability to view [the counselor] testify, thus reducing its ability to weigh her credibility as a witness, and we, therefore, are free to make our own credibility determination as to [the counselor]. There were several weaknesses to [the counselor’s] testimony. For example, [the counselor] did not even know that [Son] was involved in Young Life, a Christian youth organization. Perhaps most undermining of all to her credibility, [the counselor] admitted that she was “a proponent” of children going with their mothers, thus exhibiting a clear bias in the matter.

On the other hand, there is [Son’s] unequivocal testimony that he wishes to remain in Nashville. There was considerable evidence presented concerning [Son’s] positive bond and relationship with his father….

The Trial Court, in its findings regarding [Son], stated that “The Court is very concerned that upon learning that his Wife was to take the children and return back to Chattanooga with them . . . it was Father’s position that the Mother had blind-sided him with the divorce. He swept in to keep [Son] in [Virginia].” We are puzzled by the Trial Court’s reasoning on this point. [Father’s] ‘swooping’ in to keep [Son] is no more offensive or less understandable than [Mother’s] efforts to keep [Son] with her. It would hardly be a superior alternative were [Father] to have been indifferent to keeping [Son].

We find that the evidence clearly preponderates against the Trial Court’s best interest finding as to [Son]. We reverse the Trial Court in its award of custody of [Son] to [Mother]. On remand, the Trial Court is instructed to enter a new Permanent Parenting Plan designating [Father] as the primary residential parent of [Son].

Dissent: Judge Susano dissented from the majority opinion, writing:

The majority concludes that, since [the counselor] testified by phone, the majority was “free to make [its] own credibility determination as to” her testimony. I agree that, when a witness testifies by way of a non-video deposition, or affidavit, an appellate court is free to assess credibility anew. In such a case, neither the trial court nor the appellate court, observes or hears the testimony. That is not exactly what we are dealing with in this case. Here, the trial court had the advantage of hearing the witness. What was the tone of her voice? What about the inflection in her voice? Did she sound calm and sure or was she argumentative in her approach? Did she sound as if she was unbiased or did she sound like an advocate? Furthermore, the main portion of her testimony was about bad grades and egregious conduct at school, about which there doesn’t appear to be a great deal of dispute. I also do not believe her factual testimony should be discarded because she believes minor children should be with their mother. I suppose, but obviously do not know for sure, that many people, both men and women, feel the same way. This “bias” alone does not mean that a witness has been untruthful.

As to the second point — [Son’s] desire to stay with his father — this point is not, under the circumstances of this case, very meaningful. A young man [Son’s] age could be expected to side with a father who does not seem to discipline when appropriate, is frequently away from the home in connection with his employment, and apparently does not fully understand his son’s history of bad grades and inappropriate conduct.

Finally, as to the trial court’s criticism of the father’s “swooping in to keep [Son],” that criticism, it seems to me, is appropriate when one expresses the conduct in a somewhat different, but also correct, way: father stepped in and prevented these siblings from being parented in the same residence.

One last thought. Even assuming the validity of these three points, I do not believe that they alone can justify a finding that the evidence preponderates against the trial court’s custody determination. Again, on this issue, I find no abuse of discretion on the part of the trial court.

In the final analysis, the trial court’s decision effects a reuniting of siblings, who are undisputably close, in the household of their primary caregiver for most of their lives — a mother against whom, and with respect to whose parenting skills, nary a negative word can be found in the record.

K.O.’s Comment: Like Judge Susano, I am surprised by this outcome considering the standard of review. The majority notes that the abuse of discretion standard of review “does not permit reviewing courts to second-guess the court below or to substitute their discretion for the lower court’s.” A court abuses its discretion when it (1) applies an incorrect legal standard, (2) reaches an illogical or unreasonable decision, or (3) bases its decision on a clearly erroneous assessment of the evidence. After noting all of this, it appears to me that the majority proceeded to second-guess the trial court’s decision because there appears to be plenty of evidence to support the trial court’s ruling. If the trial court’s ruling was based on a “clearly erroneous assessment of the evidence,” then the Court of Appeals should say so. Without more, it sure looks to me like the Court substituted its discretion for the trial court’s.

UPDATE: On December 12, 2013, the Tennessee Supreme Court granted permission to appeal in this case. My gut says we’re going to see a reversal on the grounds stated in my commentary above. Stay tuned….

Kelly v. Kelly (Tennessee Court of Appeals, Eastern Section, August 6, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.