                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                                                                         FILED
WILLIAM THOMAS WINCHESTER, )                                               April 28, 1999
                           )
     Plaintiff/Appellant,  )                 Chester Circuit No. 4186    Cecil Crowson, Jr.
                           )                                            Appellate Court Clerk
v.                         )
                           )                 Appeal No. 02A01-9802-CV-00046
GLENDA RACHELLE WINCHESTER )
(COLLIER),                 )
                           )
     Defendant/Appellee.   )




              APPEAL FROM THE CIRCUIT COURT OF CHESTER COUNTY
                         AT HENDERSON, TENNESSEE


                          THE HONORABLE WHIT LAFON, JUDGE


For the Plaintiff/Appellant:          For the Defendant/Appellee:

William T. Winchester, Pro Se         C. David Jones
Memphis, Tennessee                    Huntingdon, Tennessee




                                      AFFIRMED IN PART, REVERSED
                                      IN PART AND REMANDED



                                      HOLLY KIRBY LILLARD, J.



CONCURS:

W. FRANK CRAWFORD, P.J., W.S.

ALAN E. HIGHERS, J.
                                               OPINION

         This is the second appeal in this child custody case. In the first trial, the trial court awarded

the parties joint custody of their minor child. Both parties appealed, each arguing for sole custody.

This Court reversed the award of joint custody and remanded the case to the trial court for an award

of sole custody to either the mother or father. On remand, the trial court awarded sole custody to

the mother, and ordered the father to pay child support. The father now appeals the custody award

to the mother and the award of child support. We affirm the award of custody, reverse the award of

child support and remand for recalculation of child support.

         Since the trial court on remand considered the proceedings in the first trial, we must review

the evidence in the first trial as well as the proceedings on remand. Glenda Rachelle Winchester

Collier (“Mother”) and William Thomas Winchester (“Father”) were married on February 14, 1994.

They separated before the birth of their daughter Maggie, born on October 24, 1994. Both parties

sought sole custody of Maggie. Prior to the first trial, the trial court appointed a guardian ad litem

for Maggie to aid in the custody determination. The trial court also ordered a psychological

evaluation of Mother by Dr. Elias King Bond, to determine her fitness as a parent. Prior to trial,

Father was evaluated by Dr. Lynn Zager.

         At the first trial, Father was represented by counsel and Mother was not. Father testified, and

presented evidence and several witnesses and cross-examined Mother. Mother testified but did not

cross-examine Father or present evidence or witnesses on her behalf. Throughout all of these

proceedings, the relationship between the parties has been consistently acrimonious.

         At the first trial, Father complained of Mother’s failure to convey medical information to him

about Maggie’s health, asserting that Mother did not inform him when the child was hospitalized

for three days and that, on another occasion, Mother failed to inform him that Maggie had some

medicine in her bag that needed to be refrigerated. Father testified that although Maggie had asthma

and several doctors have prohibited her exposure to smoke, Mother continued to smoke around

Maggie, worsening Maggie’s respiratory ailments. Several medical records were introduced

diagnosing Maggie’s asthma and including physicians’ admonitions against Maggie’s exposure to

smoke.

         In the first trial, Father argued that Mother had an unstable employment record, holding nine

jobs in the three year period before trial. He asserted that Mother let her second oldest child

overdose on medicine while the child was sitting in Mother’s lap in the hospital emergency room.
He also maintained that Mother had sexual relations with her boyfriend while Maggie was in the

home, in violation of the trial court’s orders. Father characterized Mother as untruthful, asserting

that she listed three children on her public housing application when only two children lived with

her, and that she made contradictory statements about her smoking habits. Father testified that

Mother had a history of obstructing visitation with her children’s fathers. He stated that sometimes

when he would pick up Maggie for visitation there would be a note on the door with directions to

a babysitter’s house where Maggie was staying at the time.

       The psychologist who had evaluated Father, Dr. Lynn Zager, testified that he was free of

significant mental illness and concluded that he would be a fit parent. Father’s sister and aunt

testified about the loving relationship between Maggie and Father and of Father’s extensive family

support. Father testified about his love for Maggie and his involvement in her daily activities. He

emphasized the court-ordered psychological examination of Mother, which indicated a histrionic

personality disorder, with passive-aggressive and dependent features.

       At the first trial, Mother testified that, when she was pregnant with the parties’ child, Father

dragged her down the stairs by her feet. Father denied this. Mother asserted that Father repeatedly

threw her out of the house, verbally abused her, and threatened her with physical abuse. Mother also

accused Father of stalking her after they separated. Mother filed a police report indicating that

Father repeatedly drove by her home. Father admitted to conducting surveillance on Mother and

hiring a private detective to gather more information. Mother denied smoking around Maggie or

allowing her boyfriend to spend the night while Maggie was present.

       The Guardian Ad Litem’s report prepared for the first trial recommended that the parties have

joint custody in decisions regarding Maggie, but that Mother have principle physical custody, with

liberal visitation to Father. The Guardian Ad Litem stated:

               From what I have observed, the natural mother is somewhat immature and
       does not appear to understand the importance of her actions as they affect her
       position with the Court in regard to the custody issue pending. On the other hand,
       William Winchester is very intense and all consumed with this case and has left no
       stone unturned.

Joint physical custody was not recommended because of the animosity between the parties. The

Guardian found the public housing that Mother lived in to be “adequate for the children and Ms.

Winchester.” The Guardian also considered Dr. Bond’s psychological evaluation of Mother.

Although Dr. Bond’s report stated that Mother “could very well have a personality disorder,” he


                                                  2
concluded that “[b]ased on these interviews and the information that I have at hand, I do not see

sufficient reason to consider her unfit or incapable or retaining custody of their child, as it presently

remains.”

        After the first trial, the trial court awarded the parties joint custody of Maggie, ordering that

she spend alternate weeks with each parent. Both Father and Mother appealed to this Court. On

appeal, both parties agreed that the trial court erred in awarding joint custody of Maggie to both

parents. Each sought sole custody.

        On appeal, this Court concluded that the trial court erred in awarding the parties joint custody

of Maggie, in view of the animosity between the parents. We found that the record did not contain

sufficient information for the appellate court to make an award of sole custody and remanded the

case to the trial court for further findings of fact regarding custody and for an award of sole custody

to either Mother or Father, with reasonable visitation to the noncustodial parent.

        Prior to the second trial, Father attempted to suppress the Guardian Ad Litem’s report that

was prepared for the first trial, stating that it contained inaccuracies and incorrectly relied on the

tender years doctrine. This motion was denied. Father also filed a motion to recuse and change

venue. The recusal motion alleged that the trial court infringed Father’s First Amendment right of

free speech and had an alleged conflict of interest with the guardian ad litem from the first trial. The

motion explained that the conflict was because “the Guardian Ad Litem has a working relationship

with the Juvenile Court, has tried Juvenile Court cases, and thus has a professional interest with all

trial courts in this judicial district.” Father also reported the trial court judge to the disciplinary

board. The trial court denied Father’s motion to recuse and change venue.

        In the second trial, the trial court limited the testimony and proof to those incidents that

occurred after the first trial, over Father’s objection. The trial court stated that it would consider the

record in the first trial regarding incidents prior to the parties’ divorce.

        In the second trial, Father testified that, on one occasion after the initial custody award,

Mother refused to let him visit with the child for scheduled visitation. He also alleged that on one




                                                    3
occasion Mother failed to show up at a designated time and place to exchange the child for visitation;

there was conflicting testimony as to when this occurred.

       Father also claimed that Mother’s lack of stability in her personal life affects the child. For

example, Father noted that Mother had held at least four jobs since the first trial, that Mother

obtained her current job just one month before trial, after working only one month at her previous

job, that Mother lived in a public housing project, that Mother did not have custody of one of her

other children by a different father, and that Mother had bounced several checks. He alleged several

instances of perjury by Mother, such as her denial of ever smoking around Maggie, her denial of

losing custody of her eldest child, and her denial that she had lived on Windsor Street in Memphis.

       In his testimony, Father emphasized family support from his parents, sister, and aunts. He

noted his apartment in Memphis with a pond and other amenities for Maggie, and his access to the

University of Memphis Day Care Center, which he asserted has excellent educational programs.

Father also pointed out his advanced education: a bachelor’s degree in physics and a master’s degree

in education. Father testified that he was attending law school. Father also stated that he regularly

attends church and has had Maggie baptized.

       At the second trial, Mother introduced evidence indicating that Father has had several

encounters with the local police department. An investigator with the Huntingdon Police

Department, Steve McClure (“McClure”), testified that he had a confrontation with Father when

Mother failed to show up for a custody exchange. McClure stated that Father came into city hall

ranting and raving because his ex-wife failed to meet him for a custody exchange. McClure stated

that he probably would have arrested Father if his mother had not been accompanying him. Father

had another confrontation with the Huntingdon Police when they were called at a different custody

exchange. Father stated that a police officer approached him and asked Father if he was wearing his

body microphone. When Father answered in the affirmative, the officer allegedly grabbed the

microphone out of Father’s jacket. Father wrote a letter to the police department demanding a

formal apology. In that letter, Father stated that he had a legal right to be at Wife’s home and to tape

record the events and that “I have tape recorded every encounter with my ex-wife over the past year

in order to protect myself from her lies.”




                                                   4
       In a letter to the Director of Public Safety of Huntingdon, Father accused the police

department of staking out his apartment and following him on several occasions. He threatened that

“any further harrassment [sic] by any member of your department will result in civil litigation and

federal intervention; as a disabled federal officer, I guarantee it.”

       Mother testified at the second trial as well. She denied that she smoked around Maggie or

that she exposed her to smoky environments. Mother denied that Maggie has asthma. Mother also

denied that her boyfriend stayed the night at her home or that they had engaged in sexual activities

while Maggie was in the house. Mother testified that Father had continually harassed her by driving

by her family members’ houses, taking photographs and videotapes of Mother and her relatives, and

taping phone conversations with her without her knowledge. Lori Cole, Mother’s cousin and

Maggie’s former babysitter, filed a complaint with the local police department alleging that Father

was stalking and videotaping her and her husband. In response, Father filed a lawsuit against the

Coles for defamation, slander, and filing a false police report. In her testimony, Mother noted that

Father’s lawsuit was dismissed with a warning of Rule 11 sanctions. Mother also maintained that

Father perjured himself in his lawsuit against the Guardian Ad Litem by claiming indigency when

Father owned a $50,000 house on which he was receiving rental payments.

        Mother testified that she had a stable job that paid $408 a week, had recently purchased a

reliable automobile, was in the process of buying a house, and had the full support of her family,

including her mother, who cared for Maggie while Mother was at work. Mother observed that

Maggie’s older half-sister loves and misses Maggie when she is gone and asserted that it would not

be in Maggie’s best interest to separate her from her older sister.

        Prior to the first trial, Father paid $200 per month in child support. Neither party paid child

support during the two year period in which the parties exercised joint custody. Father is now a full

time law student who receives $20,000 per year in student loans and $440 per month in rental

income on his house. At the first trial, Father was receiving $454 per month in Veteran’s Disability

payments. There was no evidence presented at the second trial indicating that he no longer received

the disability payments.

        After the second trial, the trial court issued an order, stating in pertinent part:

               Visitation privileges set out by Chancellor Morris have reasonably been
        complied with by both parties and the families of both parties have been and are very
        supportive of each party.


                                                   5
                The Court finds there is still friction between the parties. The proof shows
       that [Father] has secretly taped conversations between the parties and has taken
       pictures from a distance, all of which is annoying to the other party. The Court finds
       that [Father] did complain that [Mother] smoked in the presence of the minor child,
       which complaint is denied by [Mother].
                The Court finds that the Defendant, Glenda Rachelle Winchester (Collier),
       is employed with Proctor and Gamble at an annual salary of $24,000.00 and is
       purchasing a house that will be adequate for her and her two minor children
                The Court finds that the Plaintiff, William Thomas Winchester, lives in an
       apartment in Memphis that is adequate for him and his minor daughter.
                The Court finds that each party has adequate back-up in their care of their
       minor child, Maggie.
                The Court finds that [Mother] is the mother of another daughter born to her
       in a prior marriage who is approximately two years older than the minor child of the
       parties.
                The Court finds that said sisters are very close and have lived together more
       or less since Maggie was born.
                10. The Court finds that it would be in the best interests of the minor child,
       Maggie, that she be placed in the custody of the Defendant Glenda Rachelle
       Winchester (Collier), with right of liberal visitation to Plaintiff William Thomas
       Winchester.
                IT IS, THEREFORE, ORDERED, by the Court that:
                1. Custody of the minor child shall be placed with the Defendant, Glenda
       Rachelle Winchester (Collier), with the right of reasonable visitation granted to the
       Plaintiff, William Thomas Winchester.
                2. Plaintiff, William Thomas Winchester shall pay the sum of $300.00 per
       month as child support, plus Clerk’s fees, through the Clerk’s office. Payment shall
       be made in bi-monthly payments on the 1st and 15th of each month.

From this order, Father now appeals.

       On appeal, Father argues that it was error for the trial court to prohibit him from arguing or

testifying about facts introduced at the first trial or which happened before the divorce was granted.

Father contends that this had the effect of preventing him from impeaching Mother’s testimony that

she did not smoke around the child. Father contends that the trial court failed to conduct a

comparative fitness analysis. Father also argues that it was error for the trial court to consider the

Guardian Ad Litem’s report despite its inaccuracies and its reliance on the tender years doctrine.

Father maintains that the evidence preponderates against the trial court’s award of custody to

Mother. Father also contends that the trial court’s determination of child support was arbitrary and

inappropriate because the trial court did not hear any evidence on Father’s income. Finally, Father

argues that the trial judge erred and abused his discretion by failing to recuse himself and forcing

Father to reveal facts concerning his complaint against the trial judge.

       In child custody cases, appellate review is de novo upon the record with a presumption of the

correctness of the trial court’s findings of fact. See Tenn. R. App. P. 13(d); see also Hass v.

Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. App.



                                                  6
1993). Of course, the child’s best interest is the primary consideration in custody cases. See Bah

v. Bah, 668 S.W.2d 663, 665 (Tenn. App. 1983). A comparative fitness analysis is used to decide

which parent should be awarded custody. See Ruyle v. Ruyle, 928 S.W.2d 439, 442 (Tenn. App.

1996).

         The first issue for our consideration is whether the trial court erred in limiting Father’s

testimony and proof to those incidents that occurred after the parties’ divorce was final. The trial

court repeatedly quoted the appellate court’s instruction that the case was remanded for further

findings of fact. See Winchester, 1997 WL 61508, at *4. The trial court stated:

         [T]he Court of Appeals has used the term, “conduct further findings and facts.” So,
         anything new--and if this is not new, why then there is no necessity--I’m asking you-
         -not asking you, but I am advising you, that you have the right to introduce any new
         facts. And, that’s what I’m concerned with. I’m not concerned, as such, about the
         divorce. What I’m concerned with is to develop further facts, which would then be
         submitted to my recommendation to the Court of Appeals.

The trial court stated further:

         What you want to do is argue--I’ve read three or four times, what the Court of
         Appeals has instructed. And, I’ve asked that you stay with it. Now, one more time.
         This is it. Remand the court, the trial court, to conduct further findings of fact,
         concerning each party’s comparative fitness. Now, when you say further, you mean
         something new. What’s old is in this record.

Although the trial court limited the parties from introducing evidence that was already in the record,

the trial court explained that it would review and consider the record of the first trial. The trial court

stated, “Just what’s happened, now, since the legal record, as far as I’m concerned, because I have

those and I’m going to read what was said and make a consideration.” On direct examination, when

Father attempted to question Mother about the contempt petitions that he filed in the first trial, the

trial court responded, “I’ll read the record on that; you don’t need to reintroduce it.”

         The trial court is afforded wide discretion in the admission or rejection of evidence, and its

actions will be reversed on appeal only where there is a showing of an abuse of discretion. See Otis

v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992); Davis v. Hall, 920 S.W.2d

213, 217 (Tenn. App. 1995). The trial court’s statements indicate clearly that the trial judge

considered in its decision information contained in the record from the first trial. At the first trial,

Father had full opportunity to develop any facts or evidence. We find no abuse of discretion in the




                                                    7
trial court’s decision to refuse to hear testimony about events already reflected in the record. The

trial court’s decision on this issue is affirmed.

        Father’s next issue on appeal is that the trial court failed to compare the fitness of the parties

but, instead, improperly applied the abolished tender years doctrine by requiring Father to prove that

Mother was unfit. The tender years doctrine was originally established in Weaver v. Weaver, 37

Tenn. App. 195, 261 S.W.2d 145 (1953). The court held in that case, “A mother, except in

extraordinary circumstances, should be with her child of tender years. . . . Normally, such a child

will not be taken away from its mother unless it is demonstrated that to leave the child with its

mother would jeopardize its welfare, both in a physical and in a moral sense.” Id. at 202, 261

S.W.2d at 148. When the comparative fitness doctrine was adopted in Bah v. Bah, 668 S.W.2d 663,

667 (Tenn. App. 1983), the tender years doctrine became only a factor in the analysis. The Bah

court stated that,

        To the extent the “tender years” doctrine has continued efficacy it is simply one of
        many factors to be considered in determining custody. . . . [I]t is not necessary to
        find that a mother is unfit in order to award custody of a minor child to the father, or
        for that matter another third party when it is in the child’s best interests.

Id. at 666-67. In 1997, the state legislature amended Tennessee Code Annotated § 36-6-101(d) to

state that “It is the legislative intent that the gender of the party seeking custody shall not give rise

to a presumption of parental fitness or cause a presumption or constitute a factor in favor or against

the award of custody to such party.” Tenn. Code Ann. § 36-6-101(d) (Supp. 1998).1

        Father lists several instances in which he asserts that the trial court stated that the issue before

it was whether Mother was fit or unfit. For example, the trial judge told Father, “[W]e’re talking

here whether she’s a fit mother or not.” Father also notes the trial court’s admonition that Father was

to introduce proof showing that “since the divorce was granted, that this woman has been an unfit

mother or a fit mother.” Father fails to note the trial court’s statement that “the question is, is her




        1
                This section previously read:

                (d)    It is the legislative intent that the gender of the party seeking custody
        shall not give rise to a presumption of parental fitness or cause a presumption in
        favor or against the award of custody to such party; provided, that in the case of a
        child of tender years, the gender of the parent may be considered by the court as a
        factor in determining custody after an examination of the fitness of each party
        seeking custody.

Tenn. Code Ann. § 36-6-101(d) (1996).

                                                     8
ability to be a proper parent, and yours, too.” At another point, the trial court asked Father why it

should award custody to him rather than to Mother. Father points to no statement in the record

indicating the trial court’s award of custody to Mother was based on its gender preference.

Moreover, the custody order indicates clearly that the trial court performed an appropriate

comparative fitness evaluation of the parties:

                Visitation privileges set out by Chancellor Morris have reasonably been
       complied with by both parties and the families of both parties have been and are very
       supportive of each party.
                The Court finds there is still friction between the parties. The proof shows
       that [Father] has secretly taped conversations between the parties and has taken
       pictures from a distance, all of which is annoying to the other party. The Court finds
       that [Father] did complain that [Mother] smoked in the presence of the minor child,
       which complaint is denied by [Mother].
                The Court finds that [Mother] is employed with Proctor and Gamble at an
       annual salary of $24,000.00 and is purchasing a house that will be adequate for her
       and her two minor children.
                The Court finds that [Father] lives in an apartment in Memphis that is
       adequate for him and his minor daughter.
                The Court finds that each party has adequate back-up in their care of their
       minor child, Maggie.
                The Court finds that [Mother] is the mother of another daughter born to her
       in a prior marriage who is approximately two years older than the minor child of
       parties.
                The Court finds that said sisters are very close and have lived together more
       or less since Maggie was born.
                The Court finds that it would be in the best interests of the minor child,
       Maggie, that she be placed in the custody of [Mother] with right of liberal visitation
       to [Father].

While the trial court did not discuss separately each factor listed in Tennessee Code Annotated § 36-

6-106, from the record and the final order, it is clear that the trial judge conducted an appropriate

comparative fitness analysis. We find this issue on appeal is without merit.

       Father also argues that the Guardian Ad Litem’s report was erroneously utilized by the trial

court because it relied upon the tender years doctrine. However, on the topic of the tender years

doctrine, the Report states:

               The Tennessee Courts have historically recognized the “tender years
       doctrine” since the case of Weaver v. Weaver, 261 S.W.2d 145 (Tenn. App. 1953),
       in which the Court ruled “a mother, except in extraordinary circumstances, should
       be with her child of tender years.”
               This has been the case until recently in which the Court has found that in the
       case of Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983) “that the tender years
       doctrine is only a factor to be considered in the overall determination in what is in
       the best interest of the child.” It appears that the Courts are moving toward a more
       modern approach to the custody issue in finding that the best interest of the child is
       the paramount issue with tender years being a factor along with the warmth,
       consistence, and continuity of the relationship between parent and child and not the
       sex of the parent. Edwards v. Edwards, 501 S.W.2d 283 (Tenn. App. 1973).



                                                 9
As noted above, the custody order by the trial court does not indicate that the trial judge relied on

the tender years doctrine. We find no abuse of discretion by the trial court in utilizing the Guardian

Ad Litem’s report in its decision on custody.

       Father contends on appeal that the evidence preponderated against the trial court’s decision

to award custody to Mother, based on a comparative fitness analysis. He argues that Mother is

emotionally unstable and has an unsettled lifestyle, changing employment frequently. He maintains

that Mother obstructed his visitation with Maggie, and that she smokes in Maggie’s presence and

denies that Maggie has asthma. Father notes that Mother lives in a public housing project, while he

lives in an family-oriented apartment complex in Memphis while attending school, and points out

that he is highly educated. Father notes that Mother has three children, and that her mother has

custody of her oldest daughter. He alleges incidents indicating dishonesty, such as an arrest for

writing bad checks and lack of truthfulness in responding to discovery inquiries about subjects such

as drug use, prior marriages, smoking around the parties’ child, and overdosing another child with

medication.

       When the resolution of the issues in a case depends upon the truthfulness of witnesses, the

trial judge who has the opportunity to observe the witnesses in their manner and demeanor while

testifying is in a far better position than this Court to decide those issues. See McCaleb v. Saturn

Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. App.

1997). The weight, faith, and credit to be given to any witness’s testimony lies in the first instance

with the trier of fact, and the credibility accorded will be given great weight by the appellate court.

See Whitaker, 957 S.W.2d at 837; see also In re Estate of Walton v. Young, 950 S.W.2d 956, 959

(Tenn. 1997). This is especially true for custody decisions, which are factually driven and require

the careful consideration of numerous factors. See Adelsperger v. Adelsperger, 970 S.W.2d 482,

484 (Tenn. App. 1997) (citing Scarbrough v. Scarbrough, 752 S.W.2d 94, 96 (Tenn. App. 1988);

Holloway v. Bradley, 190 Tenn. 565, 571, 230 S.W.2d 1003, 1006 (1950)). “Since [child custody]

decisions often hinge on the parties' credibility, appellate courts are reluctant to second-guess trial

judges who have observed the witnesses and assessed their credibility.” Adelsperger, 970 S.W.2d

at 485 (citing Gilliam v. Gilliam, 776 S.W.2d 81, 84 (Tenn. App. 1988)).




                                                  10
       Some of the facts involved in comparing the fitness of the parents in this case are either

undisputed or do not depend on a credibility determination. It is undisputed that Maggie loves both

parents and has emotional ties to both. Both parents have living arrangements that are suitable for

raising Maggie. Mother’s multiple marriages are undisputed, as is the fact that Mother’s mother

retains custody of her oldest daughter. Without question Father is highly educated. It is undisputed

that Mother is employed and Father is not, while he is in school All of these facts are relevant to

the custody determination and do not involve a credibility determination by the trial court.

       However, a number of facts are disputed and require the trial court to assess the demeanor

and credibility of the parties and the witnesses. Father insists that Mother and her boyfriend smoke

in Maggie’s presence, which would exacerbate Maggie’s respiratory conditions. Mother denies this.

Mother alleges that Father dragged her down the stairs by her feet while she was pregnant, and that

he was controlling and verbally abusive. Father denies this. Father alleges that Mother and her

boyfriend slept together while Maggie was in her home, which Mother denies.

       The parties’ temperaments and emotional characteristics have been described by witnesses.

The psychiatrist who evaluated Mother, Dr. Elias King Bond, described Mother as possibly having

“a personality disorder, probably best characterized as a mixed diagnostic picture, with histrionic

and passive/aggressive and dependent features.” However, he did not find her to be an unfit parent.

Based on his evaluation, as well as his conversations with Father, he stated that he saw no reason not

to continue the arrangement whereby Mother retained custody of Maggie and Father continued to

have reasonable visitation.

       The Guardian Ad Litem described Mother as intelligent and noted her efforts to improve

herself by completing her education to get a job to support herself and her children. She also

described Mother as “somewhat immature” and observed that she did not seem “to understand the

importance of her actions as they affect her position . . . in regard to the custody issue . . . .” The

observations regarding Mother are corroborated by the undisputed facts of her multiple marriages

and the loss of custody of her oldest daughter.

       The psychiatrist who examined Father, Dr. Lynn Zager, described him as “sensitive” and

“caring” and “free of any significant or severe mental illness.” The Guardian Ad Litem stated that

Father was concerned for his daughter “almost to the point of obsession.” She described Father as

“very intense and all consumed with this case and has left no stone unturned.” Mother described


                                                  11
Father as “controlling” and testified that he had followed her, had conducted surveillance on her

home and on her friends and family members, had taped telephone conversations with her and

members of her family, and taken photographs of Mother and her friends and family. Father

acknowledges much of this behavior, and it is corroborated by police reports. Father was described

by a police detective as “very very combative.”

       Thus, in this case, there are a number of disputed facts requiring the trial court to determine

credibility. In addition, the facts regarding the parties’ temperaments and emotional characteristics,

crucial to a custody determination, must be determined by the trial court in view of the parties’

demeanor in the courtroom and their conduct during the course of the litigation:

       Custody and visitation determinations often hinge on subtle factors, including the
       parents’ demeanor and credibility during the divorce proceedings themselves.
       Accordingly, appellate courts are reluctant to second-guess a trial court’s decisions.

Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. App. 1996).

       In addition, the trial court relied on the fact that Maggie and her half-sisters “are very close

and have lived together more or less since Maggie was born.” While living with Mother, Maggie’s

maternal grandmother cares for Maggie and her older sisters, providing an opportunity for all three

sisters to spend time together. The Guardian Ad Litem described Mother’s mother as “a very

concerned grandmother who appears to want the very best for her granddaughter.” Father does not

dispute this. “Generally speaking, siblings, following a divorce, have a right to spend their minority

together in the absence of proof of potential harm to one of them or other extenuating

circumstances.” Gracey v. Gracey, No. 03A01-9511-CV-00419, 1996 Tenn. App. LEXIS 240, at

*7 (1996). Clearly it was appropriate for the trial court to take into account the benefits to Maggie

of maintaining her relationship with her sisters.

       Both parents in this case love Maggie and have significant strengths and weaknesses.

Viewing the record as a whole and deferring to the trial court’s ability to assess the credibility and

demeanor of the witnesses, we cannot say that the evidence preponderates against the trial court’s

decision to award custody of Maggie to Mother. The award of custody to Mother is affirmed.

       Father also argues on appeal that the trial court’s award of child support was arbitrary

because the trial court did not hear any evidence on Father’s income and failed to make a written

finding justifying deviation from the child support guidelines. Mother contends that because Father

basically has no income, the trial court set child support at a reasonable amount.

                                                    12
       Our review of a child support order is de novo on the record. The trial court’s factual

findings are presumed correct, “unless the preponderance of the evidence is otherwise.” Tenn. R.

App. P. 13(d). No presumption of correctness attaches to the trial court’s conclusions of law. See

Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

       The record before us clearly reflects Father’s income at the time of trial consisting of $440

per month in rental income and $20,000 per year in student loans. Father apparently continues to

receive the $454 per month in Veteran’s Disability Payments that he was receiving at the first trial.

While the trial court did not expressly state the income on which he based the award of child support,

the record reflects that the court clearly heard evidence about Father’s loan and rental income.

Father did not dispute this income at trial.

       We must first determine whether Father’s student loans are considered income for purposes

of determining child support. Tennessee’s child support guidelines broadly define gross income:

               Gross income shall include all income from any source (before taxes and
       other deductions), whether earned or unearned, and includes but is not limited to, the
       following: wages, salaries, commissions, bonuses, overtime payments, dividends,
       severance pay, pensions, interest, trust income, annuities, capital gains, benefits
       received from the Social Security Administration, i.e., Title II Social Security
       benefits, workers compensation benefits whether temporary or permanent, judgments
       recovered for personal injuries, unemployment insurance benefits, gifts, prizes,
       lottery winnings, alimony or maintenance, and income from self-employment.

See Tenn. Comp. R. & Regs. Rule 1240-2-4-.03(3)(a) (1994). Student loans are not included in the

definition, nor is their status addressed in any Tennessee case law. Therefore, caselaw from other

jurisdictions must be considered. The California Court of Appeals held that educational loan

proceeds, including amounts over that required for books and tuition, are not income under the

state’s Family Code definition of income, which is similar to the Tennessee definition.2 See Rocha

v. Rocha, 80 Cal. Rptr. 2d 376, 377 (Cal. Ct. App. 1998). The Rocha court reasoned that student

loans, with an expectation of repayment, differed substantively from the sources of income listed in


       2
               The California Family Code defines income for child support purposes as:

       (a) The annual gross income of each parent means income from whatever source
       derived . . . and includes, but is not limited to, the following:
       (1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends,
       pensions, interest, trust income, annuities, workers’ compensation benefits,
       unemployment insurance benefits, disability insurance benefits, social security
       benefits, and spousal support actually received from a person not a party to the
       proceeding to establish a child support order under this article.

Rocha, 80 Cal. Rptr. 2d at 376-77 (quoting Cal. Fam. Code § 4058).

                                                 13
the code definition that had “no expectation of repayment or reimbursement.” Id. Several other

jurisdictions have also held that educational loans are not income for child support purposes. In In

re Marriage of Syverson, 931 P.2d 691, 698 (Mont. 1997), the Supreme Court of Montana found

that educational loans that must be repaid are not considered income for child support purposes, but

educational loans that need not be repaid are income if they are intended to subsidize the borrower’s

living expenses. In Thibadeau v. Thibadeau, 441 N.W.2d 281, 285 (Wis. Ct. App. 1989), the

Wisconsin Court of Appeals held that educational loans and grants were not income for purposes

of setting child support. Finally, in Milligan v. Addison, 582 So. 2d 769, 769 (Fla. App. 1991), 3

the Florida Court of Appeals held that educational loans cannot be considered income because of

their repayment provisions.

       At least one jurisdiction has reached a different conclusion. In Gilbertson v. Graff, 477

N.W.2d 771, 774 (Minn. Ct. App. 1991), the Minnesota court held that educational loan proceeds

over the amount required for books and tuition are considered income. The Minnesota court

emphasized that the money exceeding tuition and book expenses was dedicated to personal living

expenses and not to educational needs and that, if the parties had remained married, they would have

counted on receiving the excess proceeds. See id. The Minnesota court also reasoned that the state’s

statutory definition of income as “any form of periodic payment to an individual,” clearly included

excess student loan proceeds which “are a periodic and reliable source of income.” Id.

       The Tennessee definition of income as quoted above differs substantially from that of

Minnesota and, therefore, the reasoning of the Minnesota court is less persuasive. As noted above,

Tennessee’s definition of income is substantially similar to that of California. As in California, the

Tennessee definition of income lists sources of gross income for which there is no expectation of

repayment. For an educational loan, normally, there is an expectation that the funds will be repaid.




       3
              Milligan was overruled on other grounds by Overbey v. Overbey, 698 So.2d 811,
815 (Fla. 1997).

                                                 14
Therefore, we hold that educational loans with an expectation of repayment are not considered

“income” for purposes of determining child support under the Tennessee Child Support Guidelines.

        In this case, there is no dispute that Father receives approximately $20,000 per year in

educational loans. The proceeds from these loans are not considered income for child support

purposes unless there is no expectation of repayment.

        Father’s other income, consisting of his rental income and disability payments, clearly fall

within the definition of gross income listed in the child support guidelines. The record in this case

does not indicate the income on which the trial court based its award of $300 per month in child

support, nor does it contain a written finding justifying a deviation from the child support guidelines,

as required under Tennessee Code Annotated § 36-5-101(e)(1). The guidelines would appear to

require someone with Father’s gross income (assuming the student loans are excluded) to pay

substantially less child support than $300 per month. Therefore, we remand the cause to the trial

court for factual findings as to Father’s income. The trial court may, in its discretion, hear additional

evidence; for example, the trial court could consider evidence indicating that repayment is not

expected for Father’s student loans. The trial court may then recalculate the amount of child support

based on Father’s rental income, his disability payments and any other appropriate income. A

deviation from the guidelines should be accompanied by the appropriate written findings justifying

the deviation.

        Father also contends on appeal that the trial judge abused his discretion in failing to recuse

himself and forcing Father to reveal facts about a pending complaint against the trial judge. Father

alleges that the trial court was biased against Father because of his political activism in an advocacy

group regarding child custody. Father contends that the trial court instructed him not to write any

more letters to the editor of the local newspaper, and that this instruction interfered with his first

amendment rights. Father also argues that the trial judge had a conflict of interest regarding the

former Guardian Ad Litem on the case. At a pre-trial hearing on November 10, 1997, Father

objected to a discovery request that he reveal the names of individuals he had reported to the legal

disciplinary board. At the hearing, the following exchange took place:

        THE COURT: All right. Have you reported any judge to the disciplinary board?
        MR. WINCHESTER: Yes, your Honor.
        THE COURT: Who was that?
        MR. WINCHESTER: Your Honor.
        THE COURT: And what grounds did you present to them; if you recall?


                                                   15
       MR. WINCHESTER: It was basically that you were attempting to fringe [sic] upon
       my first amendment rights of free speech, that you had a conflict of interest with the
       former guardian ad litem from this case --
       THE COURT: That I had a --
       MR. WINCHESTER: An apparent conflict of interest.
       THE COURT: What was the apparent conflict of interest?
       MR. WINCHESTER: That the guardian ad litem’s relationship to the court system
       and her use by the Court which resulted in the former chancellor in this case recusing
       himself has the same effect upon your Honor, and as a result you prevented me from
       presenting my motion to suppress the guardian ad litem reported at the previous
       hearing.
       THE COURT: All right. Mr. Winchester, do you have any evidence that I’ve done
       anything at all, even contacted this woman, in any manner other than to tell you that
       I have read the report that had been filed by her, which had been ordered by Judge
       Morris?
       MR. WINCHESTER: No, your Honor.
       THE COURT: You have no proof that I’ve approached her or done anything with
       her, have you?
       MR. WINCHESTER: No, your Honor.
       THE COURT: And you’re just saying that the fact that you reported me to the
       disciplinary board was the fact that I’m a judge and I’m in the system and being in
       the system I then would be biased to you?
       MR. WINCHESTER: Well, that was a side issue in the complaint, your Honor.

       In Tennessee, the decision of recusal is a matter within the judge’s discretion. See Wiseman

v. Spaulding, 573 S.W.2d 490, 493 (Tenn. App. 1978). The Code of Judicial Conduct provides that

a judge should recuse himself when his impartiality may be questioned, including situations where

“he has a personal bias or prejudice concerning a party.” Code of Judicial Conduct, Canon

3(c)(1)(a) (1996); see also State v. Cash, 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993); Lackey

v. State, 578 S.W.2d 101, 104 (Tenn. Crim. App. 1978). The record in this case does not establish

that the trial judge abused his discretion by declining to recuse himself. The decision of the trial

judge is affirmed on this issue.

       In sum, we find no error in the trial court’s decision to limit testimony and evidence

concerning events that occurred subsequent to the first trial and which were already reflected in that

record. Our review of the record indicates that the trial court adequately compared the fitness of the

parties and did not err in refusing to suppress the Guardian Ad Litem’s report. Based on undisputed

facts as well as the trial court’s determination of credibility and assessment of the parties’ demeanor,

we affirm the award of custody to Mother. We reverse the trial court’s award of $300 per month in

child support and remand for further factual findings and recalculation of the amount, in accordance

with this Opinion. We find no abuse of discretion in the trial court judge’s refusal to recuse himself.




                                                  16
       The decision of the trial court is affirmed in part, reversed in part and remanded. Costs are

taxed to Appellant and Appellee equally, for which execution may issue if necessary.




                                     HOLLY KIRBY LILLARD, J.

CONCUR:



W. FRANK CRAWFORD, P. J., W.S.



ALAN E. HIGHERS, J.




                                                17
