                 IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE

            _________________________________________________

CARA ANNETTE HOLLIS,            )
                                )    Williamson Chancery No. 24097
     Plaintiff/Appellee         )
                                )    Appeal No. 01A01-9704-CH-00178
vs.                             )
                                )
FREEMAN HARDIN HOLLIS,          )
                                )
     Defendant/Appellant        )
_____________________________________________________________________


        APPEAL FROM THE CHANCERY COURT OF WILLIAMSON COUNTY
                       AT FRANKLIN, TENNESSEE
           THE HONORABLE HENRY DENMARK BELL, CHANCELLOR




CAROL L. SOLOMAN, Nashville, Tennessee
                                                    FILED
Attorney for Defendant/Appellant                     February 13, 1998

                                                    Cecil W. Crowson
VIRGINIA LEE STORY, Franklin, Tennessee            Appellate Court Clerk
Attorney for Plaintiff/Appellee



OPINION FILED:

AFFIRMED



                                          DAVID R. FARMER, J.



W. FRANK CRAWFORD, P.J.,W.S. (Concurs)

ALAN E. HIGHERS, J. (Concurs)
       This divorce case involves the dissolution of the twenty-one year marriage of Cara

Annette Hollis (Wife) and Freeman Hardin Hollis (Husband). The trial court entered a final

decree declaring the parties divorced pursuant to T.C.A. § 36-4-129(b). 1 Husband has

appealed from the final decree, challenging the trial court's decisions regarding child

custody and alimony. For reasons as hereinafter stated, we affirm.



       The parties married in June, 1975. Their union produced three sons: Nathan,

Timothy and Joseph who, at the time of trial (December 1996), were ages eighteen, fifteen

and thirteen, respectively. Wife was forty at the time of trial and in good health. She has

an eleventh grade education. Both before and after the marriage, she held various

minimum wage positions (mostly in sales). She became a full-time homemaker after the

birth of their first child, remaining so throughout the majority of the marriage. She

periodically undertook work outside the home, such as babysitting, and the position of

nanny for three years, when her children became of school age. She began her current

occupation of cleaning houses in 1991. She estimates monthly earnings of $600.00. She

identified total monthly expenses for herself and the children of $3,143.56. This figure

includes the first and second monthly mortgage payments on the marital home, which the

parties valued at $55,000.00 with an approximate equity of between $21,000.00 and

$26,000.00. Wife requested that the parties share joint custody of the children, with she

receiving primary physical custody. She asked to be allowed to remain in the marital home

until the youngest child turns eighteen or graduates from high school.



       Husband was forty-four at the time of trial. He has been a federal government

employee, working as a supply technician for the Department of Defense, for

approximately twenty years. He earns additional income as a member of the National

Guard and supervising parties held at the Armory. Husband testified that during the

marriage his employment required out-of-town travel and overnight stays "off and on." For


              1
               36-4-12 9. Stipu lated g roun ds an d/or de fense s - Gran t of divo rce. -
              ...
              (b) The court may, upon such stipulations or upon proof, grant a divorce to the
              party who was less at fault or, if either or both parties are entitled to a divorce,
              declare the parties to be divorc ed, rathe r than aw arding a d ivorce to e ither party
              alone.

                                                     2
the past two years, his work has required him to be away from the home approximately two

weeks out of each month. Husband stated, however, that he has since trained a new

employee which will drastically reduce his out-of-town travel to only two or three nights per

month. He requested that he be awarded the marital home and sole custody of both minor

children. He explained that when out-of-town travel is necessary, the younger children

would be supervised by their oldest brother. He and his eldest son, who attends school

and works part-time, have a good relationship.



      Wife stated that Husband's employment during the marriage required overnight

travel "quite often." She explained that when he is "on the road," he is away from home

Monday through Thursday or Friday as well as once a month for National Guard drills,

when he is away the entire weekend. Wife stated that sometimes Husband would be away

all night when monitoring a party held at the Armory.



      Husband's 1995 federal income tax return indicates annual earnings of $40,414.00.

Husband's 1996 earnings statement through September reflects compensation of

$31,174.00. He receives an additional $219.00 per month for National Guard duties and

approximately $1,500.00 annually for monitoring parties at the Armory.



      Upon hearing the evidence, the trial court entered a final decree as follows: In

addition to declaring the parties divorced, the trial court awarded the marital residence and

its accompanying indebtedness to Wife and ordered her to pay her own attorney's fees and

marital debt of approximately $6,000.00. Husband was awarded his pension, which the

parties valued at approximately $26,500.00, and ordered to pay all remaining marital

indebtedness incurred by either party prior to the hearing date, or approximately $8,000.00.

Wife was awarded custody of Joseph and Husband custody of Timothy. As to custody, the

court held, “[t]hat Joseph and Timothy will be together for the entire summer school

vacation with Wife having visitation/custody for the first half and Husband having

visitation/custody the second half. That Timothy and Joseph will also be together on all

school holidays with the parties having custody/visitation on alternating holiday periods,



                                            3
including weekends during the school year." The court ordered Husband to pay child

support of $323.00 per month based on the court's findings that Husband has a gross

earning capacity of "approximately $3,500.00 per month" and that Wife's gross earning

capacity is "approximately $1,300.00 per month, assuming a forty hour week as a house

cleaner." Husband was to continue providing health insurance for both minor children and

pay two-thirds of their uncovered medical expenses. Finally, Husband was ordered to pay

Wife $620.00 per month as alimony in futuro.



       Husband identifies the issues on appeal as follows:



       I.     Whether the Chancellor abused his discretion in separating the
              two brothers, who were close in age, without any evidence that
              such separation would be in the children's best interest.

       II.    Whether the Chancellor abused his discretion in failing to award
              custody of the two minor children to the father based upon a
              comparative fitness analysis and the children's preference.

       III.   Whether the Chancellor abused his discretion in awarding
              alimony in futuro to the wife where the wife is relatively young,
              in good health, and where financial rehabilitation is feasible.

       IV.    Whether the husband should be awarded his attorney's fee on
              appeal incurred on behalf of the children.



Wife has raised the similar issue of whether she should be awarded her attorney's fees

incurred in this appeal.



       Husband's first two issues address the awarding of custody and will be considered

together. Husband contends that the trial court erred in dividing custody of the two minor

children. He asserts that the record reflects both young men's preferences to reside with

their father. He also notes the undisputed acrimonious relationship currently existing

between the eldest child and Wife which, according to Husband, will "severely handicap []"

the youngest child's relationship with his oldest brother if the custody award is allowed to

stand. Finally, Husband insists that there was no showing that the younger child's best

interests are served by custodial placement with the Wife or that the best interest of either

of the two minor children are served by physically separating them. It is asserted that the


                                             4
potential damage which may result from such separation is not minimized by the court's

"well-meaning gesture" requiring the two young men to spend vacations and holidays

together.



       Our review of the trial court's decision regarding custody is de novo on the record

with a presumption that the trial court's findings of fact are correct unless the evidence

preponderates otherwise. E.g., Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. App. 1996);

Rule 13(d) T.R.A.P. The Gaskill court's discussion of child custody decisions merits

repeating here:



       [C]ustody and visitation arrangements are among the most important
       decisions confronting a trial court in a divorce case. The needs of the
       children are paramount; while the desires of the parents are secondary.
       Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn.1986). Custody should never be
       used to punish or reward the parents, Turner v. Turner, 919 S.W.2d 340, 346
       (Tenn.Ct.App.1995); Long v. Long, 488 S.W.2d 729, 733 (Tenn.Ct.App.
       1972), but rather should promote children's best interests by placing them in
       an environment that will best serve their physical and emotional needs. See
       Luke v. Luke, 651 S.W.2d 219, 221 (Tenn.1983).

               No hard and fast rules exist for determining which custody and
       visitation arrangement will best serve a child's need. Taylor v. Taylor, 849
       S.W.2d 319, 327 (Tenn.1993); Dantzler v. Dantzler, 665 S.W.2d 385, 387
       (Tenn.Ct.App. 1983). The inquiry is factually driven and requires the courts
       to carefully weigh numerous considerations. Nichols v. Nichols, 792 S.W.2d
       713, 716 (Tenn. 1990); Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn.1988).
       Among these considerations are:

              the age, habits, mental and emotional make-up of the child and
              those parties competing for custody; the education and
              experience of those seeking to raise the child; their character
              and propensities as evidenced by their past conduct; the
              financial and physical circumstances available in the home of
              each party seeking custody and the special requirements of the
              child; the availability and extent of thirty-party support; the
              associations and influences to which the child is most likely to
              be exposed in the alternatives afforded, both positive and
              negative; and where is the greater likelihood of an environment
              for the child of love, warmth, stability, support, consistency, care
              and concern, and physical and spiritual nurture.

       Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.Ct.App.1983); see also Tenn. Code
       Ann. § 36-6-106(Supp.1995).

Gaskill, 936 S.W.2d at 630.



       The record reflects that the parties have remained in the same household up until



                                             5
the time of the divorce hearing. The record further reveals much friction among these

family members once the divorce proceedings ensued, with the exception of Joseph whom

it appears has remained for the most part neutral. Arguments were not uncommon and

Husband recalled instances of Wife's verbal abuse toward him with the children present.

There were also instances where Wife would leave the home (no longer than overnight) to

go to a nearby friend's home, according to Wife, because of the stresses and pressures

felt in the home during this time. Both parties confessed to extramarital affairs.



       Since Wife’s filing for divorce, Husband agrees that he has taken a more active role

with the children and household chores and, in Wife's words, he "suddenly started doing

everything." Wife testified that she had a good relationship with all of her children prior to

the time she filed for divorce. Wife admitted that her relationship with her two eldest sons

had since become "strained." She attributed this to Husband's attempts to "involve" the

children in the divorce and "sway" their positions. She stated that Husband did not

encourage the children to be respectful of both parents. Husband's testimony was to the

contrary.



       Timothy testified that he desired to reside with Husband. Joseph did not testify.

Timothy stated that, prior to the divorce filing, Wife primarily escorted him to his various

activities, but since that time, his father had played a more active role in these events.

Timothy stated that during the marriage, his father "did the best he could . . . whenever he

was there." Timothy acknowledged Joseph's love for his mother and agreed that they were

"pretty close." Husband testified that he has a good relationship with all three of his

children.



       In contending that he is the better fit parent to care for his two minor sons, Husband

notes Wife's absences from the home, her verbal abuse and, according to him, her

"emotional inability to control her life and perform her parental obligations" at the present

time. In his favor, Husband points to the fact that he has changed both his household

routine and job requirements in order to best parent his children "in the face of divorce."



                                             6
On appeal, Wife does not disagree with the trial court's divided custody award, noting that

the two children will continue to reside in the same community, attend the same school

system and have similar activities within the community.



       The trial court's decision necessarily implies a finding that both parties are "fit"

custodians since each was awarded custody of one child. The record supports this

determination. As to the divided custody arrangement, Husband correctly cites to W.

Walton Garrett, Tennessee Divorce, Alimony and Child Custody § 24-15 (1997) in

proposing that "[t]here is a strong presumption that the welfare of the children will be best

served by keeping the children together." This presumption, however, must be viewed in

light of the particular facts and circumstances surrounding each child custody case. The

record indicates that prior to the divorce proceedings, Wife was the primary caretaker of

these children and that their relationships with each other were good. Upon a thorough

review of the record, we find no indication that Joseph possesses any hostilities toward his

mother (or father for that matter). The current custody arrangement allows Joseph to

continue to reside in the home that he has always known and to be cared for by his primary

caretaker. It is the hope of this court that Joseph and his mother will continue to pursue a

healthy relationship. Clearly, animosity is present in Timothy's relationship with his mother.

He expressed a strong desire to reside with his father and at the age of fifteen, his desires

merit consideration. An award of custody of Timothy to W ife under these circumstances,

we believe, quite possibly could have a detrimental effect upon the presently healthy

relationship between Wife and Joseph. Timothy and his father share a healthy

relationship. Husband's testimony convinces the court that his employment now requires

less travel. This fact, accompanied by the fact that the eldest son continues to reside with

Husband as well, leads this court to conclude that custody of Timothy was properly

awarded to Husband and that such is in his best interest.



       Husband's next issue concerns the award of alimony in futuro to Wife. He contends

that the record supports a finding of Wife's ability to be economically rehabilitated. T.C.A.

§ 36-5-101(d) identifies various factors for the trial court to include in its consideration of



                                              7
whether alimony, of any kind, is appropriate. Of these, the fundamental concerns are need

and the ability to pay. Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. App. 1993). The record

clearly establishes that Husband's earning capacity is superior to that of Wife. Granted,

she is of relatively young age and healthy. However, she has spent the majority of her

marriage being a homemaker and caretaker of her children, as well as others. She does

not possess a high school degree or its equivalency. Her income as a housekeeper, even

if employed full-time, as calculated by the trial court, is $1,300.00 per month. Her needs

alone were established in excess of $2,000.00 per month. The record, too, establishes

Husband's ability to pay. Husband has not argued his inability in this regard. He merely

contends that an award of alimony in futuro is contrary to the express language of the

alimony statute which requires first a showing that the economically disadvantaged spouse

cannot be rehabilitated. We are satisfied that the record supports the trial court's award of

alimony in futuro to Wife at $620.00 per month.



      Both parties have requested that they be awarded their attorney's fees incurred in

this appeal. Based on our decision, we deny Husband's request, but find it appropriate to

grant Wife's request. The issues in this case primarily concern custody of the parties'

children. We have affirmed the awarding of custody as determined by the trial court. The

court in Sherrod v. Wix, 849 S.W.2d 780 (Tenn. App. 1992), holds that "requiring parents

who precipitate custody or support proceedings to underwrite the costs if their claims are

ultimately found to be unwarranted is appropriate as a matter of policy." Sherrod, 849

S.W.2d at 785.



      It results that the judgment of the trial court is affirmed and this cause remanded for

further hearing to determine the appropriate amount of attorney's fees to be awarded Wife

on appeal. Costs are assessed against the appellant, for which execution may issue, if

necessary.



                                                  ________________________________
                                                  FARMER, J.

CONCUR:

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_________________________________
CRAWFORD, P.J.W.S.



_________________________________
HIGHERS, J.




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