                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                          August 3, 2004 Session

             TINA MARIE WENINGER v. JERRY CRAIG WENINGER

                    Direct Appeal from the Chancery Court for Stewart County
                           No. 02-11-046    Leonard W. Martin, Judge



                      No. M2003-02018-COA-R3-CV - Filed September 9, 2004


This appeal arises from a divorce action. The trial court awarded primary residential custody to
mother and standard visitation to father. We affirm.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and HOLLY
M. KIRBY , J., joined.

Markley Runyon Gill, Erin, Tennessee, for the appellant, Jerry Craig Weninger.

Larry B. Watson, Clarksville, Tennessee, for the appellee, Tina Marie Weninger.

                                       MEMORANDUM OPINION1

        This appeal arises from a divorce action in which the trial court awarded primary residential
custody of the parties’ two minor children, born 1998 and 2001, to the Mother, Tina Marie Weninger
(“Mother”). Father, Jerry Craig Weninger (“Father”) was awarded standard visitation. The grounds
for divorce were stipulated, and the only issues before this Court are:

       (1)        Whether the trial court erred in awarding primary residential custody to
                  Mother.


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

                This 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 formal opinion would have
       no precedential value. W hen a case is decided by memorandum opinion it shall be designated
       "M EM ORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
        (2)     Whether the trial court erred in awarding Father standard visitation.

        The trial court made no findings of fact. The final decree of divorce simply states the parties’
agreement as to property and awards custody to Mother and visitation to Father. Thus, we review
the record in this case de novo to determine whether the preponderance of the evidence supports the
trial court’s judgment. Lee v. Lee, 66 S.W.3d 837, 843 (Tenn. Ct. App. 2001).

         Upon review of the record and after having heard oral argument in this Court, we cannot say
the trial court erred in its determination. The gist of Father’s argument is that Mother is unfit to have
custody of the children because she had an extramarital affair, exposed the children to it, and violated
a pre-divorce court order enjoining her from bringing the children into her paramour’s company.
Mother concedes that she had an extramarital relationship and that she was found in contempt for
violating a court order restraining her from permitting the children to be in the company of her
paramour. However, she argues that she has been the primary care-taker of the children and that,
because Father leaves for work between 4:30 and 5:30 A.M., finishes work between 3:00 and 4:00
P.M., and goes to bed at 8:00, he simply is not available to care for the children. As a result, when
the children are with Father, Father’s parents are, in fact, the care-takers. She further asserts that
Father’s parents have greatly contributed to the acrimony between the parties, and that even when
Father was unemployed and Mother was employed outside the home, the children were left in the
care of Father’s parents.

        The record supports Mother’s assertion that she is the primary care-taker of the children and
that Father’s parents, and not Father, care for the children while they are at Father’s home. Father
simply has failed to carry his burden of demonstrating that he is the more fit parent and that the trial
court erred in its determination. Accordingly, we affirm the award of primary residential custody
to Mother.

       We also affirm the visitation award to Father. It is not disputed that Father moved from
Stewart County to Houston County after the parties were separated, and that there is a drive of
approximately fifty minutes between the parties’ residences. In light of this distance, Father’s work
schedule, and the practical difficulties of visitation in this case, we cannot say the trial court erred
by awarding Father standard visitation.

       In light of the foregoing, the judgment of the trial court is affirmed. Costs of this appeal are
taxed to the Appellant, Jerry Craig Weninger, and his surety, for which execution may issue if
necessary.



                                                        ___________________________________
                                                        DAVID R. FARMER, JUDGE




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