                      IN THE COURT OF APPEALS OF TENNESSEE

                                    AT KNOXVILLE
                                                                            FILED
                                                                           January 27, 2000

                                                                          Cecil Crowson, Jr.
                                E1998-00664-COA-R3-CV                    Appellate Court Clerk

TOMMY LEE WHITE,                             ) C/A NO. 03A01-9812-CV-00412
                                             )
                Appellee,                    ) SEVIER CIRCU IT
                                             )
vs.                                          ) HON. B EN W. H OOPE R, II,
                                             ) JUDGE
CAROLDENE WHITE,                             )
                                             ) AFFIRMED IN PART, VACATED
                Appellan t.                  ) IN PART, AND REMANDED




JAMES L. GASS , OGLE, GASS & R ICHARDSO N, Sevierville, for Appellee.

DAV ID W. W EBB, S evierville, for A ppellant.



                                       O P I N IO N


                                                           Franks, J.



                In this divorce action, the Trial Judge awarded joint custody of the eight

year old son to the parties, and as part of the property division the husband was

awarded a $11,500.00 lien on the wife’s home, which she had owned at the time of

the marriage.

                The wife has appealed and raises these issues:

                I.      Whether the trial court erred in awarding joint custody to the
                        Parties, for the following reasons:

                        1.     The process by which the trial court arrived at the decision
                               to award joint custody to the Parties included an interview
                               with the child, alone in chambers, over the objection of
                               one of the Parties and contrary to law;

                        2.     The ruling of the trial court did not comply with the
                               provisions of T.C.A . 36-6-106(2) (3) (8) (10),

                II.     Whether the trial court erred in awarding Mr. White an
                        $11,500.00 lien on Ms. White’s separate property, for the
                        following reasons:

                        1.     The evidence did not support the trial court’s findings of
                               fact and conclusions of law that Mr. White made a
                               substantial contribution to Ms. White’s home that
                               preserved and appreciated the home’s value.
                        2.     It was error for the court to disreg ard the Appellant’s
                               interest in the Appellee’s retirement account in dividing
                               the m arita l property.

               On the issue of joint custody, we vacate the Trial Court’s award of joint

custody, and remand for a new trial on the issue of custody, because we do not have a

complete record of the evidence heard by the Trial Judge.

               The reco rd establishes that the Trial Ju dge intervie wed the e ight year old

child in chambers, over the objection of the mother, and the substance of that

intervie w is no t before us throu gh no f ault of th e appe llant.

               In the case of Rutherford v. Rutherford, 971 S.W.2d 955 (Tenn. Ct. App.

1997), we said:

                        We observed in Gaskill v. G askill, 936 S.W.2d 626 (Tenn. App.
               1996):

                        Custody an d visitation de termination s often hing e on subtle
                        factors, . . . . Appellate Courts are reluctant to second-guess a
                        trial court’s decision. Trial courts must be able to exercise broad
                        discretion in these matters, but they still must base their decisions
                        on proof, and upon the appropriate qualifications of the
                        applicable principles of law . (Citations omitted).

               We reemphasize the foregoing, in that the Trial Judge must base her
               decisions u pon the pr oof, but in d ischarging our duties a s appellate
               judges, we must be able to review all of the proof heard and considered
               by the Trial Judge.

                      The Trial Judge has discretion to interview children apart from
               the cou rtroom setting if he con siders it is in the be st interes t of the c hild.
               However, if he elects to follow this procedure, he must examine the
               child “in the presence of attorneys for each side and in the presence of
               the cou rt reporte r”. Newb urger v . Newb urger, 10 Tenn. App. 555, 566
               (1930), and in order to have a complete record on appeal, a transcript of
               such evidence must be filed.

               The mother also insists that the property settlement was not equitable.

               The Trial Judge’s determination comes to us with a presumption of

correct ness, un less the e videnc e prepo nderate s again st the Tr ial Cou rt’s find ing.

T.R.A.P. Rule 13(d), and the Trial Court has broad discretion in dividing the marital

estate. Lloyd v. Lloyd, 860 S .W.2d 409 (T enn. C t. App. 1 993).

               The parties were married in 1985, and the wife owned the marital

residen ce prior to the m arriage , which was fr ee of a ny debt w hen the parties m arried.

Various loans were obtained against the property during the marriage, and the last

loan, in the amount of $5,000.00 in 1995, was for windows in the house, with some of

the funds being used to pay off a credit card debt. At the time of trial, the balance of

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the loan w as $3,727 .58 which was bein g paid by the w ife. Both p arties were in

agreement that the marital residence had been improved during the marriage, and had

substantially increased in value. The wife testified that her parents had paid for many

of the imp rovemen ts in the appro ximate am ount of $ 23,000.00 . The imp rovemen ts to

the home during the marriage included adding a bathroom, utility room, car port and

workroom. The husband testified that he had hung sheet rock, painted and made other

improvements and repairs.

               The evidence does not preponderate against the Trial Court’s finding

that the husband had made substantial contributions to improving and preserving the

home, and that the increase in value during the marriage was properly classified as

marital p roperty. See T.C.A. §36-4-1 21(b)(1)(B).

               The Trial Judge determined that the home had a value of $50,000.00 at

the time of the marriage, an d at the time of the divorce had a value of $1 00,000.00. In

finding that the husband had made a substantial contribution to the improvements, he

took into account the $23,000.00 that the parents of the wife had contributed to the

improvements, and other improvements paid for by the wife. After allowing for these

credits, he found that the marital property interest to be divided between the parties

was in the amount of $23,000.00, and divided this equally between the parties by

establishing a lien on the property in the amount of $11,500.00. The evidence does

not preponderate against his findings of values on this property and the allocation of

assets in the divis ion of m arital pro perty. T.R .A.P. R ule 13( d).

               We affirm the judgment of the Trial Court as to the property division but

vaca te his Ord er on custody.

               The cause will be remanded to the Trial Court to conduct a new trial on

the issue of custody and support of the child.

               The cost of the appeal is assessed one-half to each party, and the cause

remanded.




                                              __________________________
                                              Herschel P. Franks, J.


                                               3
CONCUR:




___________________________
Charles D. Susano, Jr., J.




___________________________
D. Michael Swiney, J.




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