                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                              Assigned on Briefs April 10, 2000

          DOUGLAS ROBERT DuBOIS v. ROSEMARY ANN DuBOIS

                      Appeal from the Chancery Court for Coffee County
                         No. 98-314    John W. Rollins, Chancellor



                     No. M1999-00330-COA-R3-CV - Filed April 23, 2001


Plaintiff/Appellant, Douglas Robert DuBois, and Defendant/Appellee, Rosemary Ann DuBois, are
parents of two minor children, Caitlin Michel DuBois and Thomas Jackson DuBois. The Decree of
Divorce was entered on November 5, 1998, following two days of trial that occurred on the 8th and
9th of October 1998. Both parties filed T.R.C.P. Rule 59 motions to alter or amend the final decree
which, in effect, sought a redetermination by the trial judge of almost everything in issue. All of
these motions were heard on May 12, 1999, after which, on June 15, 1999, the trial judge entered
an order determinative of these Rule 59 motions. From this order, Plaintiff, Douglas Robert DuBois,
appeals. We affirm the trial judge.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S. and
PATRICIA J. COTTRELL , J., joined.

Jeffrey L. Levy, Nashville, Tennessee, for the appellant, Douglas Robert DuBois.

Robert Todd Jackson, Nashville, Tennessee, for the appellee, Rosemary Ann DuBois.

                                              OPINION

        Douglas Robert DuBois and Rosemary Ann DuBois were married April 14, 1985 and are the
parents of two minor children, Caitlin Michel DuBois born in 1985 and Thomas Jackson DuBois
born in 1997.

        Douglas Robert DuBois (‘Plaintiff’), filed suit for divorce in Coffee County, Tennessee on
August 10, 1998 alleging that his wife had engaged in an adulterous relationship with a co-worker
and had neglected the minor children of the parties and alleging further that she went into fits of rage,
striking Plaintiff on numerous occasions, and otherwise showed callous disregard for the welfare of
the minor children of the parties. He prayed for an absolute divorce, custody of both minor children,
an equitable distribution of marital properties, and child support. He also asked the court to issue
a temporary restraining order restraining the defendant from interfering with his peaceful custody
of the minor children pending a hearing in the case. An ex parte restraining order was apparently
issued on August 10, 1998, though same does not appear in the record. On August 21, 1998,
Rosemary Ann DuBois (‘Defendant’), filed a petition seeking custody pendente lite, support
pendente lite, and dismissal of the ex parte restraining order, which had apparently restrained her
“from interfering with the plaintiff’s peaceful custody of the minor children of the parties, subject
to the defendant’s reasonable visitation and from interfering with plaintiff’s exclusive use of the
marital home.” She went on to allege in her petition:

                The restraining order went on to restrain the defendant from “coming about
        the residence,” the plaintiff, or the minor children, wherever they may be, except that
        which is necessary for reasonable visitation rights;” those rights were not set out.
        Though the complaint in its prayer asked a date be set and that notice be served on
        the defendant of a hearing on the issue of support, custody and plaintiff’s exclusive
        use of the residence, no notice was served on the defendant as normally is done when
        a temporary order of this nature is issued.

                Implicit in the allegations and prayer of the complaint is the assumption that
        the plaintiff and the children will be residing in the marital home in Tullahoma,
        Tennessee, a few miles from defendant’s employment as a chemist at Jack Daniels
        in Lynchburg, Tennessee. Defendant would show that the plaintiff has not lived in
        the marital home since the filing of the complaint and in fact has advised her that he
        will not even make the house payment and that she will have to do so. He has been
        residing with the children in Mt. Juliet, Tennessee, with his parents.

Her petition also sought custody of the minor children because of what she alleges to be Plaintiff’s
addiction to alcohol and drugs. She further alleged that he suffered from certain mental disorders.

        A hearing on these motions was set for September 1, 1998, together with a motion by
Plaintiff for the trial court to hear the testimony of the twelve year old daughter of the parties, Caitlin
Michel DuBois. Plaintiff filed a response to the August 21, 1998 petition of Defendant wherein he
stated in part:

                Plaintiff denies the allegations contained in paragraph 4 of the Petition, and
        would state that on the date the Complaint for Divorce and Restraining Order were
        filed and presented to the Court, at the direction of counsel, Plaintiff had the children
        in his physical custody. It was Plaintiff’s intention at the time of filing to remain in
        the residence. CAITLIN MICHEL DuBOIS, minor daughter of the parties, had
        conversation with Defendant on August 10th and 11th and it was after these
        conversations when Caitlin advised Plaintiff of her desire to attend school at Mt.
        Juliet, Tennessee. She made her feelings known that she did not want to stay in
        Tullahoma. Plaintiff discussed living in Mt. Juliet with his parents and they agreed
        to assist him in caring for the children during his rotating shift work, leaving neither


                                                   -2-
       child without adult supervision at any time. Plaintiff decided at that time that it
       would be in the best interest of the children to move to Mt. Juliet and enrolled his
       daughter in school there on August 19, 1998, and she began going to school on
       August 24, 1998. Plaintiff would further state that he cancelled the automatic draft
       of the house payment from coming out of his bank account, but he advised Defendant
       that he would assist in the payment of the marital debts. Plaintiff advised Defendant
       that she was free to have visitation with the minor children at the residence, and
       delivered the children to Defendant and Defendant and the minor children remained
       at the residence from August 21, 1998 through August 23, 1998. Plaintiff advised
       Defendant that she could continue in use of the residence, he would so advise his
       attorney, and for her to contact her attorney so that the attorneys could make
       arrangements for her continued use of the residence.

He further admitted that he was previously diagnosed with bipolar disorder and previously had an
alcohol and drug problem but was presently free of such maladies.

      On September 1st and 2nd, 1998, the trial judge patiently listened to two days of
unimpressive testimony, primarily by the parties, at the conclusion of which he observed:

             THE COURT: I’m not real impressed with either one of these people, either
       one of your clients, for entirely different reasons. I think Mr. DuBois is
       manipulative, and I think he’s manipulated his wife and also possibly these children.

               And I’m not addressing the affair other than how it applies and how it impacts
       on the children. As I said before, I don’t need to sit in moral judgment on the
       activities of those that appear before me. I’ve got enough trouble looking after
       myself. As far as I’m concerned that’s a situation between her and herself and
       whoever else and that sort of thing, and the only impact it has on this Court is how
       it may or may not affect grounds for divorce. I think she used exceedingly poor
       judgment in arranging her relationships with this other man, not the relationship as
       much as how she did it. That troubles me.

              I’m going to leave these children where they are for the time being. And then
       in October I’m going to take another hard look at it, and it may very well be I’m
       going to give this lady custody of her children back. I don’t know.

      Following the September 1st and 2nd 1998 hearing, the trial court entered an order on
September 14, 1998 providing for temporary custody and other relief with the court ordering that:

               Plaintiff, DOUGLAS ROBERT DuBOIS, shall have temporary custody of the
       minor children of the parties, CAITLIN MICHEL DuBOIS and THOMAS
       JACKSON DuBOIS, pending the final hearing of this matter, subject to visitation
       rights of Defendant.


                                                -3-
       Defendant, ROSEMARY ANN DuBOIS, shall have visitation with the minor
children, pending the final hearing as follows:

        a.     Friday, September 4, 1998, at 5:00 p.m., through Monday, September
7, 1998, at 5:00 p.m.. Thereafter, every other weekend, from 5:00 p.m. on Friday,
until 5:00 p.m. on Sunday.

        b.     One evening per week, during the week Defendant does not have
weekend visitation, in the Smyrna/Murfreesboro area at the residence of Defendant’s
father, from 4:00 p.m. until 9:00 p.m.

       c.     In addition, Plaintiff shall have visitation with the minor child,
THOMAS JACKSON DuBOIS, on Thursday, September 3, 1998, with Defendant
being responsible for transportation.

        d.     Plaintiff shall provide transportation of the children to and from the
marital residence in Tullahoma and/or the Smyrna/Murfreesboro area.

       e.     Plaintiff, DOUGLAS ROBERT DuBOIS, shall allow the children to
communicate with Defendant, ROSEMARY ANN DuBOIS, by telephone at all
reasonable times.

       3.      Plaintiff shall insure that the minor daughter, CAITLIN MICHEL
DuBOIS, is not in the company of the young man identified at the hearing and not
engaged in any type of relationship except obvious social situations with other people
around.

       4.      Neither party shall have companions of the opposite sex around the
children during period of visitation and/or custody under inappropriate circumstances
pending the final hearing of this cause.

        5.      Plaintiff shall be responsible for payment of one-half of the mortgage
owing to First Tennessee Mortgage in the amount of $482.72 per month, one-half of
the Jack Daniel’s Credit Union debt in the amount of $206.89 per month, and all of
the car payment in favor of Jack Daniel’s Credit Union, pending the final hearing of
this matter.

       6.       Defendant shall have use of the marital residence pending the final
hearing of this cause.

       7.     Plaintiff shall, as quickly as possible, return to his treating physician,
Dr. Scott E. Ruder, for evaluation regarding his bi-polar condition and Dr. Ruder
shall submit, directly to the Court with copies to counsel, a report regarding


                                          -4-
       Plaintiff’s condition and his opinion regarding the discontinuation of medication by
       Plaintiff.

               8.      All other matters are reserved pending final hearing of this cause.

        From the very outset of the case as clearly evidenced by the September 1 and 2 hearings on
temporary custody and temporary use of the marital home and other preliminary matters, the trial
court saw that it was dealing not so much with a Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App. 1983)
“comparative fitness” problem, as with a “comparative unfitness” choice between two people with
less than satisfactory parenting abilities. Defendant, Mrs. DuBois, had engaged in an extensive,
adulterous affair with a co-worker while leaving her 13 year old daughter, Caitlin, to babysit the 18
month old Thomas Jackson DuBois. Mrs. DuBois worked at Jack Daniel Distilleries in Moore
County while Mr. DuBois worked at Bridgestone, and the parties resided in Tullahoma. Mr. DuBois
had a long history of alcohol and drug abuse, and many episodes of physical violence occurred
between the parties which were known to the children. Upon discovering the illicit affair between
Mrs. DuBois and her paramour, Mr. DuBois procured an ex parte Order of Custody, dispossessing
Mrs. DuBois of the marital home. Hardly before the ink was dry on the ex parte order, Mr. DuBois
took both children and moved in with his parents in Mt. Juliet, thus vacating the marital home that
he had successfully enjoined Mrs. DuBois from entering.

        Mrs. DuBois, likewise, had some history of drug abuse while Mr. DuBois suffered from
manic depressive/bi-polar characteristics. Caitlin preferred to live with her father and his parents
in Mt. Juliet.

       The custody and visitation situation remained under the temporary order until the October
8th and 9th, 1998 alleged “final” hearing.

        In large measure, the October hearing was simply a reiteration of the September hearing with
each party attacking the behavior, character and parental ability of the other. Plaintiff testified that
his work at the Bridgestone Warren County facility resulted in earnings of $52,000 annually, and the
record showed that Defendant earned approximately the same at her employment at Jack Daniel’s
Distillery. Plaintiff testified at length to his prior use of, and addiction to, alcohol and drugs
including marijuana, cocaine, speed and mushrooms. He testified that he grew marijuana in his
apartment outside of Murfreesboro in 1985 and in 1992. He testified that following an accident in
1994 he entered drug and alcohol rehab which was successful. He moved from Tullahoma to Mt.
Juliet because his daughter, Caitlin, wanted to make the move and he wanted, and needed, the help
of his parents in caring for the children. He proposed to keep custody of both children with his
parents in Mt. Juliet to allow his parents and sisters to take care of the children during their after
school activities when he was unavailable. The general testimony of Plaintiff indicated that he
wanted to keep the children away from their mother as much as possible and even feared abuse of
the smaller child, though he had no evidence that such had occurred.




                                                  -5-
       At the conclusion of this second two day hearing on October 9, 1998, the trial judge reiterated
much of his dissatisfaction with both parties, and on November 5, 1998, entered what was called a
“Final Decree of Divorce.” Aside from dissolving the marriage, the final decree provided:

               IT IS, FURTHER, ORDERED, ADJUDGED, AND DECREED by the Court
       as follows:

               1.      The parties shall have joint custody of their two minor children, with
       Plaintiff having primary physical custody.

              2.     Defendant shall have visitation with the parties’ minor son, THOMAS
       JACKSON DuBOIS, every weekend from 8:00 a.m. Friday or after work on Friday,
       at the option of the Defendant depending on Defendant’s work schedule, until
       Sunday at 5:00 p.m.

               3.      Defendant shall have visitation with the parties’ minor daughter,
       CAITLIN MICHEL DuBOIS, every other weekend following the schedule
       established in the Order entered on September 14, 1998, from 5:00 p.m. Friday until
       5:00 p.m. Sunday, plus one evening per week in the Smyrna, Tennessee, area at the
       residence of Defendant’s father, from 4:00 p.m. to 9:00 p.m.

              4.    The exchange of the children for visitation shall take place at the
       home of Defendant’s father in Smyrna, Tennessee, unless the parties agree to the
       contrary.

               5.       Defendant, ROSEMARY ANN DuBOIS, SSN: [Redacted] , shall
       pay sixty percent (60%) of the child support for one child, based upon her income of
       Fifty Seven Thousand Five Hundred Fifty-Two and 00/100 ($57,552.00) per year, for
       the support of the parties’ minor child, CAITLIN MICHEL DuBOIS, which is Four
       Hundred Thirty Eight Dollars and 00/100 ($438.00) per month, to be paid twice a
       month at the rate of Two Hundred Nineteen and 00/100 ($219.00) per pay period, to
       be paid by the wage assignment through Defendant’s employment at Jack Daniels
       Distillery, P. O. Box 199, Lynchburg, Tennessee, 37352. This is a deviation from the
       State of Tennessee Department of Human Services Child Support Guidelines, but is
       allowed due to the additional time over and above that anticipated by the Guidelines
       that Defendant, ROSEMARY ANN DuBOIS, will exercise visitation with the
       youngest child of the parties, THOMAS JACKSON DuBOIS.

              6.       The Court finds that Plaintiff, DOUGLAS ROBERT DuBOIS, is
       responsible to Defendant, ROSEMARY ANN DuBOIS, for the value of her missing
       jewelry in the amount of Six Thousand Dollars ($6,000./00), and the court awards to
       Defendant a Judgment against Plaintiff in the amount of Six Thousand Dollars and
       00/100 ($6,000.00).


                                                 -6-
               [7.]    All [other] issues before the court are reserved.

               [8.]    In the event the parties are unable to amicably resolve their rights to
       the personal property, real estate, and debts, within two (2) weeks form the date of
       entry of this Final Decree of Divorce, the Court will, upon Motion of either party,
       resolve those differences by an Order for the sale of said property and allocation of
       responsibility for any remaining debt.

        Nobody was satisfied with this “Final Decree of Divorce” and on the same day it was entered,
November 5, 1998, Plaintiff filed his Motion to Alter or Amend Final Decree pursuant to Rule 59
of the Tennessee Rules of Civil Procedure. This motion objected to practically every adjudication
made in the final decree, in particular the provisions relative to visitation with the children by
Defendant.

       On November 6, 1998, Defendant filed her Motion to Alter or Amend objecting to certain
provisions of the visitation schedule and child support.

        Finally, the case came on for a third hearing on May 12, 1999, and when counsel had
concluded extensive opening statements complaining about practically everything in the purported
final decree, the court observed: “You know, gentlemen, with all these issues we might just be better
off to cancel this divorce and start all over again.”

        The difficulty on this appeal is that each party wants the November 5th, 1998 Final Decree
of Divorce to be final for res judicata purposes in those portions thereof that are favorable to the
position of such party but subject to alteration in all unfavorable respects. As example, Plaintiff
wishes for the custody adjudication of the November 5th order, by which he was awarded physical
custody of both children, to be res judicata, but at the same time wishes to attack the portion of the
decree finding him responsible to the defendant for $6,000 because of the “disappearance” of her
jewelry.

       Defendant, on the other hand, asserts the finality of the November 5th, 1998 decree for res
judicata purposes on the jewelry issue but non-res judicata on the custody issue.

       In these respects, both parties are in error, as the November 5th, 1998, Final Decree of
Divorce is res judicata as to no issue in the case. Both parties filed Rule 59 T.R.C.P. motions,
subsequent to the November 5, 1998 Final Decree of Divorce and disposition of these motions was
the subject of the extensive May 12, 1999 third hearing. In the present posture of the case, the
consideration by the trial court and the standard by which we consider the case on appeal, is set forth
in Young v. Young, 1998 WL 730188 (Tenn. Ct. App. 1998).

               We turn first to the proper standard of review for this case. Ms. Young
       asserts that we should treat this case as an appeal from an order changing custody.
       Therefore, she insists that the trial court’s decision to award custody of the parties’


                                                 -7-
daughter to Mr. Young can be upheld only if there was a material change in
circumstances occurring between April 21, 1997, when the trial court entered its
initial custody, and June 26, 1997, when the trial court entered its order granting Mr.
Young’s motion to alter or amend. We disagree that this is a change of custody case.

        A court’s decision with regard to custody and visitation, once made and
implemented, is res judicata upon the facts in existence or reasonably foreseeable
when the decision is made. See Young v. Smith, 193 Tenn. 480, 485, 246 S.W.2d 93,
95 (1952); In re Parsons, 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995). Thus, the
courts will not change an existing custody or visitation arrangement unless the party
seeking the change can demonstrate the existence of a change in circumstances
materially affecting the child’s interests that could not have reasonably been foreseen
when the custody or visitation agreement was ordered. However, the doctrine of res
judicata does not apply when the judgment sought to be given res judicata effect is
not final. See Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn.
1995); Galbreath v. Harris, 811 S.W.2d 88, 90 (Tenn. Ct. App. 1990); Lee v. Hall,
790 S.W.2d 293, 294 (Tenn. Ct. App. 1990). The trial court’s April 21, 1997 order
granting custody to Ms. Young never became final.

        A judgment adjudicating all the claims between all the parties becomes final
thirty days after entry unless one of the parties files a timely Tenn. R. Civ. P. 59
motion. Before a judgment becomes final, the trial court may alter or amend it either
on its own motion or at the request of one of the parties. See Jerkins v. McKinney,
533 S.W.2d 275, 280 (Tenn. 1976); Newport Hous. Auth., Inc. v. Hartsell, 533
S.W.2d 317, 320 (Tenn. Ct. App. 1975); Moore v. Standard Life & Accident Ins. Co.,
504 S.W.2d 373, 375 (Tenn. Ct. App. 1972). Thus, as long as its judgment has not
become final, the trial court m[a]y change its mind after reconsidering the proof and
the applicable law. See Waste Management, Inc. of Tenn. v. South Cent. Bell Tel.
Co., No. 01A01-9504-CV-00182, 1997 WL 71811, at * 2 (Tenn. Ct. App. Feb. 21,
1997) (No Tenn. R. App. P. 11 application filed); Dowling v. Fawver, C.A. No. 715,
1987 WL 20190, at * 6 (Tenn. Ct. App. Nov. 25, 1987) (No Tenn. R. App. P. 11
application filed).

        The trial court’s April 21, 1997 order granting Ms. Young custody of the
parties’ daughter never became final because both parties filed Tenn. R. Civ. P. 59.04
motions within thirty days after its entry. Thus, the trial court was free to change its
mind about its initial custody decision based on the proof received during the original
divorce trial and the proof adduced at the hearing on the parties’ Tenn. R. Civ. P.
motion. Because the April 21, 1997 order was not final, it did not preclude the court
from considering the custody issue without first finding that there had been a material
change in circumstances between the original divorce hearing and the hearing on the
parties’ Tenn. R. Civ. P. 59.04 motions. Accordingly, we will review the trial court’s
custody decision as an initial custody order.


                                          -8-
Young, 1998 WL 730188 at * 3.

        The first issue on appeal is: “1. Whether the trial court was in error in modifying custody of
the parties’ minor son when there had been no negative change of circumstance between the hearing
on merits of the divorce and the hearing on Motions to Alter and Amend the court’s final decree.”


     This issue is resolved by Young v. Young, 1998 WL 730188 (Tenn. Ct. App. 1998) since the
November 5th, 1998 decree was not a final decree.

       The next issue asserted is: “2. Whether even considered de novo, the trial court erred in
placing physical custody of Caitlin with Mr. DuBois and physical custody of Jackson with Mrs.
DuBois.”

       In this respect, in the final judgment in the case entered June 15, 1999, following the final
hearing of May 12, 1999, the trial court held:

              IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED by the
       Court that:

              1.     The parties shall have joint custody of the minor children, CAITLIN
       MICHEL DuBOIS and THOMAS JACKSON DuBOIS, with Plaintiff, DOUGLAS
       ROBERT DuBOIS, having primary physical custody of the parties’ minor daughter,
       CAITLIN MICHEL DuBOIS, and Defendant, ROSEMARY ANN DuBOIS, having
       primary physical custody of the parties’ minor son, THOMAS JACKSON DuBOIS.

               2.      Plaintiff, DOUGLAS ROBERT DuBOIS, shall have visitation with
       the parties’ minor son, THOMAS JACKSON DuBOIS, every other weekend
       beginning at 8:00 a.m. on Friday morning until 5:00 p.m. on Sunday evening, with
       Plaintiff being responsible for picking up and returning the minor child to the
       residence of Defendant in Tullahoma, Tennessee, for the next six (6) months. After
       the expiration of six (6) months, said exchange shall take place at Exit 89 off
       Interstate 24, Rutherford County, Tennessee, at the Citgo gas station. Said visitation
       shall coincide with the weekends Plaintiff is not working in accordance with his work
       schedule.

                3.     Defendant, ROSEMARY ANN DuBOIS, shall have visitation with
       the parties’ minor daughter, CAITLIN MICHEL DuBOIS, every other weekend from
       6:00 p.m. on Fridays until 5:00 p.m. on Sundays. Exchange for this visitation shall
       take place Exit 89 off Interstate 24, Rutherford County, Tennessee, at the Citgo gas
       station.




                                                 -9-
         4.     In view of the split physical custody of the parties’ minor children, the
visitation of the children shall coincide so that the children shall be together each
weekend of visitation.

       5.     Each party shall have all rights and privileges set forth in Tenn. Code
Ann. § 36-6-101(a)(3) as follows:

       a.     The right to unimpeded telephone conversations with the child at least
twice a week at reasonable times and for reasonable durations;

       b.     The right to send mail to the child which the other parent shall not
open or censor;

        c.      The right to receive notice and relevant information as soon as
practicable but within twenty-four (24) hours of any event of hospitalization, major
illness or death of the child;

        d.      The right to receive directly from the child’s school upon written
request which includes a current mailing address and upon payment of reasonable
costs of duplicating, copies of the child’s report cars, attendance records, names of
teachers, class schedules, standardized test scores and any other records customarily
made available to parents;

        e.      The right to receive copies of the child’s medical records directly from
the child’s doctor or other health care provider upon written request which contains
a current mailing address and upon payment of reasonable costs of duplication;

       f.      The right to be free of unwarranted derogatory remarks made about
him or her to his or her family by the other parent to or in the presence of the child.

        6.      No child support shall be paid by either party.

First of all:

        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.
Trial courts must be able to exercise broad discretion in these matters, but they still
must base their decisions on the proof and upon the appropriate application of the
applicable principles of law. D v. K, 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995).
Thus, we review these decisions de novo on the record with a presumption that the
trial court’s findings of fact are correct unless the evidence preponderates otherwise.



                                          -10-
       Nichols v. Nichols, 792 S.W.2d at 716; Doles v. Doles, 848 S.W.2d 656, 661 (Tenn.
       Ct. App. 1992).

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

       This June 15th decree of the trial court is a final judgment wherein the trial court properly
considered all of the evidence from all three of the separate hearings and then made its final decision
on custody.

        The predicate for this final decision was expressed by the trial court at the end of the May
12th, 1999 hearing:

               THE COURT: I’ll tell you what I’m going to do. These folks are not doing
       any better now than they were before they got this divorce and I’m not going - - I’m
       just going to tell you the way it is. If they can bend it, they can bend it, but they’re
       going to have to do it in the spirit of cooperation.

              The memorandum agreement that’s Exhibit 2 is a division of the personal
       property in this marriage as found by Jan Walden. I’m going to leave legal custody
       the same, but I’m giving Mr. DuBois physical custody of the daughter and Ms.
       DuBois physical custody of her son.

              Visitation will be every other weekend with Mr. DuBois with his son
       commencing Friday morning at 8:00 o’clock and stopping Sunday afternoon at 5:00.
       On the alternate - - and in light of the history of the testimony, Mr. DuBois is going
       to have to come down here and pick his son up and bring him back for the next six
       months.

               On the alternating weekend the wife is having visitation with her daughter.
       They are to meet at Exit 89 at the Citgo gas station and make that exchange the same
       schedule, 8:00 o’clock - - well, Friday afternoon after, say, 5:00 o’clock until Sunday
       afternoon at 5:00 o’clock.
                                                 ....
               MR. ROGERS: If your Honor please, will you recite again what the visitation
       rights are?

              THE COURT: Yes, sir. Mr. DuBois will have visitation with his son every
       other weekend starting Friday until Sunday. And it can be at 8:00 o’clock Friday
       morning if he wants it until 5:00 o’clock on Sunday. On the alternate weekend Ms.
       DuBois will have visitation - -

               MR. PARSONS: (Interposing) What time on Sunday, Judge? I’m sorry.



                                                 -11-
                THE COURT: 5:00 o’clock, 8:00 to 5:00. That’s with her son he is to have.
       She is to have visitation with her daughter every other weekend. And I guess we
       need to set it like at Friday at 6:00 o’clock so it doesn’t interfere with school until
       Sunday at 5:00 o’clock. And they’re to meet at Exit 89 for that exchange for the next
       six - - for the next six months because, frankly, I believe Ms. DuBois when she talks
       about his tardiness.

               If he wants to visit his son, he’s got to come to Tullahoma and get him and
       bring him back for the next six months on time. And if any more of this stuff either
       way goes, folks, I’m going to stop visitation, period.

               It’s not fair to your children. I don’t care whether it inconveniences you or
       not. It really doesn’t matter. I really flat don’t care. But the children need to have
       a reasonable expectation of when they’re going to see Mom and when they’re going
       to see Dad, and you might as well get ready for it. Anything else?

               MR. ROGERS: About the other visitation rights, if your Honor please - -

               THE COURT: I’m not - - I’m setting - - I’m not setting vacation. I’m not
       setting birthdays. I’m not setting summer vacation. If these people will get
       reasonable, I’ll listen to it by letter, but this is it, every other weekend.

         The evidence taken as a whole showed an adulterous relationship between Mrs. DuBois and
a co-worker known to her 13 year old daughter that was in disregard of her parental obligations to
both the daughter and the 18 month old son. This showing provided ample grounds for the award
of the divorce to the Plaintiff and no complaint is made by him as to the granting of the divorce. The
record then shows a pattern of conduct by Plaintiff designed to separate both of the children from
their mother. He immediately moved to Mt. Juliet with the two children, acting under an ex parte
custody order. After the September and October hearings, the trial court tried to make the best of
the situation continuing primary physical custody with Plaintiff. The testimony at the May 12th
hearing displays a pattern of conduct by Plaintiff designed to obstruct visitation between Defendant
and her children, particularly visitation with the younger child. He was repeatedly late in delivering
the child to the Defendant at the appointed meeting place, and sometimes failed to produce the child
at all. Custody should never be used to punish or reward the parents, Turner v. Turner, 919 S.W.2d
340, 346 (Tenn. Ct. App. 1995), and the needs of the children are always paramount, with the desires
of the parents’ being secondary. Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn. 1986).

       The evidence does not preponderate against the decision of the trial judge as to custody of
the two children, and his judgment will not be disturbed on appeal. Rice v. Rice, 983 S.W.2d 680
(Tenn. Ct. App. 1998).




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       The final two issues on appeal are: “3. The trial court erred in failing to divide the parties’
retirement funds equitably” and “4. The court erred in granting Mrs. DuBois a judgment for her
jewelry that purportedly was missing.”

        As to the 401K pension accounts, any objection to the disposition by the trial court is
foreclosed by the record of the October 8th, 1998 hearing, where the record discloses the appellee’s
assertion “I would prefer that he keep his 401K, and I keep mine.”

               THE COURT: Is that an issue?

               MR. ROGERS: (The appellant’s counsel). No, it’s not, if your Honor please,
       that’s what we’re proposing.

               THE COURT: Okay.

        Further, there is no provision in the law that a single marital property asset must be
distributed equitably, so long as the totality of the marital property is subject to an equitable
distribution. In this respect, Plaintiff/Appellant does not complain.

       Relative to the $6,000 judgment granted to Defendant for the loss of her jewelry, this
involves purely a credibility issue. The trial court simply did not believe the testimony of Plaintiff
and did believe the testimony of Defendant. The evidence does not preponderate against the
judgment of the trial court.

        The judgment of the trial court is in all respects affirmed, and the case is remanded for such
further proceedings as may be necessary. Costs of the cause are assessed against Appellant.



                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




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