J. STEVEN STAFFORD, J.
This case concerns custody and alimony decisions relative to a divorce. Discerning no error, we affirm.
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 fora 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 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.
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, 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.
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 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.
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-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.
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 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.
Father appeals, raising the following issues:
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."
"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 needs."
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.
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.
The trial court found that this factor also applies equally. Father disputes this finding because 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.
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.
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 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.
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
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.,
The trial court found that this factor does not weigh in favor of either parent. Neither party disputes that finding on appeal.
The child, due to his young age, did not express a preference. Accordingly, this factor favors neither party.
The trial court found that this factor weighs in favor of Mother, stating:
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
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, 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.
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.
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 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:
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.,
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.,
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.
With respect to the award of attorney's fees in divorce cases, our Supreme Court has stated:
Father first argues that the trial court failed to properly evaluate whether the requested fee was reasonable, citing
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.
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
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:
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.
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.
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
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.