                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON


BEVERLY FAY MELTON,

             Plaintiff/Appellee,
                                       )
                                       )
                                       ) Weakley Chancery No. 14238
                                                                   FILED
                                       )                           July 2, 1997
VS.                                    ) Appeal No. 02A01-9701-CH-00022
                                       )                        Cecil Crowson, Jr.
DANNY JOE MELTON,                      )                        Appellate C ourt Clerk
                                       )
             Defendant/Appellant.      )


         APPEAL FROM THE CHANCERY COURT OF WEAKLEY COUNTY
                       AT DRESDEN, TENNESSEE
              THE HONORABLE W. MICHAEL MALOAN, JUDGE




WILLIAM R. NEESE
Dresden, Tennessee
Attorney for Appellant



JAMES H. BRADBERRY
JAMES H. BRADBERRY & ASSOCIATES
Dresden, Tennessee
Attorney for Appellee




AFFIRMED



                                                          ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
    In this divorce action, Danny Joe Melton (hereinafter, “Husband” or “Mr. Melton”)
appeals the trial court’s determination regarding the division of the marital estate, custody

of the parties’ minor child, and the award of certain farm equipment to his former father-in-

law.



       Danny Joe Melton and Beverly Fay Melton (hereinafter, “Wife” or “Mrs. Melton”)

were married in June, 1972. During the marriage, the couple lived in Gleason, Tennessee.

The union produced two children. The older child has reached the age of majority, and the

younger, born in 1981, is a minor. Mrs. Melton is a teacher in the Weakley County school

system, and Mr. Melton derived most of his income during the marriage from farming and

from auto racing-related businesses. Throughout the marriage, Vernon Dunn, Mrs.

Melton’s father, contributed financially to the Meltons. In fact, Dunn set up Mr. Melton in

a farming operation by giving him 111 acres of farm land and a tractor, and Mr. Melton

helped Dunn farm his own land and also participated with him in a number of ventures.

It is undisputed that financial woes plagued the Meltons during their marriage, and even

resulted in the couple’s seeking bankruptcy protection in 1987.



       Mr. Melton became involved in the auto racing business and eventually bought an

$18,000 racing car and a $15,000 motor. In 1995, rumors surfaced around the community

that Mr. Melton was involved in an extramarital affair. Ultimately, the Meltons separated

in August, 1995. Mrs. Melton filed a complaint for divorce in the Weakley County Chancery

Court in September 1995, charging Mr. Melton with adultery and inappropriate marital

conduct. Subsequently, Mr. Melton filed an answer and counter complaint. On April 3,

1996, Vernon Dunn filed an intervening petition against the Meltons in which he sought an

order requiring the Meltons to vacate all properties owned by Dunn, to return all equipment

owned by Dunn as well as seeking a judgment for all monies and benefits that Dunn had

provided to the couple since 1985.



       Following a trial held on April 26, 1996, and June 28, 1996, the trial court entered

orders on July 12, 1996, August 2, 1996, and August 26, 1996. In its ruling, the trial court

granted a divorce to Mrs. Melton on the grounds of inappropriate marital conduct but found



                                             2
that there had been no proof of an extramarital affair. The trial court awarded the parties

joint custody of the minor child, with the mother having custody during the school year, and

the father having custody during the summer months. The trial court granted each parent

liberal visitation during the non-custodial period. Additionally, both parents were ordered

to pay child support to the other during the non-custodial period. The trial court awarded

all real property to Mrs. Melton and divided the personal property between the parties. Mr.

Melton was ordered to vacate the shop building adjacent to the house that he used for his

racing business, and the court ordered Mrs. Melton to pay Mr. Melton $20,000 as costs of

relocating his racing business. The trial court awarded Vernon Dunn possession of a John

Deere 4440 tractor, combine, planter and bush hog, but dismissed Dunn’s other claims.

The trial court directed that Mr. Melton and Mrs. Melton were each responsible for the

debts following the property received by each. Mr. Melton timely filed a notice of appeal

on September 10, 1996, and the cause is properly before this Court for consideration.



       Since this case was tried by the court sitting without a jury, we review the case de

novo upon the record with a presumption of correctness of the findings of fact by the trial

court. Unless the evidence preponderates against the findings, we must affirm, absent

error of law. Rule 13 (d) T.R.A.P.



                                           ISSUES



       Mr. Melton has raised the following issues on appeal:

       I. Did the trial court make an equitable division of the parties’ marital property
       in awarding the wife approximately seventy percent of its value?

       II. Did the trial court err in effectively naming the wife as primary custodial
       parent?

       III. Did the trial court err in awarding Vernon Dunn the tractor and planter?




                                   PROPERTY DIVISION




                                               3
       On appeal, Mr. Melton asserts that the trial court erred in making a property division.

We find that this issue is without merit.



       Trial courts have broad discretion in dividing the marital estate upon divorce.

Kincaid v. Kincaid, 912 S.W.2d 140, 142 (Tenn. App. 1995). In Batson v. Batson, 769

S.W.2d 849 (Tenn. App. 1988), this Court addressed the equitable division of marital

property:

              Tenn. Code Ann. § 36-4-121(a) provides that marital property
              should be divided equitably without regard to fault. It gives a
              trial court wide discretion in adjusting and adjudicating the
              parties’ rights and interests in all jointly owned property. Fisher
              v. Fisher, 648 S.W.2d 244 (Tenn. 1983).



       This Court customarily gives great weight to decisions of the trial court in dividing

marital estates, and we are disinclined to disturb the trial court’s decision unless the

distribution lacks proper evidentiary support or results from some error of law or

misapplication of statutory requirements and procedures. Wade v. Wade, 797 S.W.2d

559, 604 (Tenn. App. 1990). The trial court’s distribution need not be equal to be

equitable. It is not achieved by a mechanical application of the statutory factors, but rather

by considering and weighing the most relevant factors in light of the unique facts of each

case. Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. App. 1988).



       Upon review of the facts of this case, it appears to the Court that the division of

marital property was equitable. Each party has presented their own figures regarding the

valuation of the marital estate to support their respective positions, and it is not surprising

that there is a great disparity between them. The Chancellor decreed that the debts

followed the property to which they were attached. For purposes of this analysis, we will

accept the Husband’s valuation and distribution schedule. See Carrier v. Carrier, No.

02A01-9608-CH-00180 (Tenn. App. May 2, 1997). With this in mind, we conclude that the

trial court divided the marital property as follows:

              Wife                                        Husband

Asset             Value      Asset                Value
50 acre farm & home $149,000.00    Farm Equip. less award

                                              4
67 acre farm              71,000.00        to Mr. Dunn                  $ 3,850.00
14 acre farm              13,852.00        Bus. parts & equip.           44,255.00
Total Real Estate        233,852.00        1969 truck, 1984 truck &
                                           Polaris 4-wheeler              9,000.00
Home furnishings     $ 8,585.00            1994 Chevrolet truck          18,000.00
Lawn Mowers             1,000.00           Firearms & misc.               1,000.00
1990 Chevrolet Lumina 5,450.00             Cash awarded in decree        20,000.00
Wife’s pension         27,345.78
Cash on hand            2,500.00
Total Personal       $ 44,880.78                                        $96,105.00
Property
Real Estate Debt     ($76,333.00)
Auto Debt            ($12,800.00)                                      ($14,000.00)

TOTAL ASSETS    $278,732.78                                             $96,105.00
TOTAL DEBT        (89,133.00)                                            (14,000.00)
CASH TO HUSBAND (20,000.00)
NET DISTRIBUTION 169,599.78                                              82,105.00



       Mr. Melton asserts that the property division was inherently inequitable because the

court awarded Mrs. Melton assets valued at nearly two times that awarded to him.

However, Mr. Melton fails to recognize that Mrs. Melton has been saddled with debt

obligations equal to nearly six and one-half times the debt that was assessed to him, and

he had not credited her with the $20,000.00 cash payment that the trial court ordered her

to make to him. Furthermore, Mr. Melton has overlooked the fact that he has received a

windfall by being relieved of further liability for approximately 87% of the marital debts. In

fact, he was responsible for creating approximately $14,000.00 in debt secured by the 14

acre farm in order to enter the racing business by purchasing a car. Mr. Melton

subsequently sold the racing car for a loss, purchased another and sold the second, also

for a loss. Other than his testimony, no evidence was presented regarding the disposition

of the proceeds of these sales, though it is clear that the proceeds were not applied to the

reduction of the original debt. In effect, Mrs. Melton must pay for her husband’s entry into

the racing business. This is not a new scenario. Throughout the marriage, Mrs. Melton

held a full time teaching position and even taught on nights and weekends. It is evident

that Mrs. Melton contributed substantially more to the financial aspect of the marriage than

did Mr. Melton, whose losing business ventures resulted in dissipation of the marital estate

and ultimately bankruptcy in spite of contributions by Vernon Dunn, gifts of free land, and

soil bank payments. The wife is land rich, but cash poor with only minuscule liquid assets

with which to pay the $89,000.00 in debt on her annual teacher’s salary of some

                                              5
$29,000.00. Accordingly, we find that the property division did not result in an inequitable

distribution to Mr. Melton.



       From our review of the record and giving the Husband the benefit of his proffered

evidence, we find that the evidence does not preponderate against the trial court’s findings

as to the division of the property. Accordingly, the trial court’s determinations regarding

property division will not be disturbed on appeal.



       Mr. Melton next challenges the trial court’s determination regarding custody of the

parties’ minor child. The trial court awarded the parties joint custody of their 14 year-old

son. Specifically, the court granted custody of the child to Mrs. Melton during the school

year and to Mr. Melton during the summer months. The trial court also awarded liberal

visitation to the non-custodial parent. On appeal, husband asserts that the trial court

awarded the wife custody for 42 weeks per year and to him for a mere 10 weeks per year.

Further, husband asserts that the trial court disregarded the expressed desire of the minor

son regarding his living arrangements.



       In order to make a determination concerning the custody of children, the trial court

must look to the particular facts of each case. Scarbrough v. Scarbrough, 752 S.W.2d 94,

96 (Tenn. App. 1988). Factors to consider include, but are not limited to the following:

              Age, habits, mental and emotional makeup of the child and
              those parties competing for custody; 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 third party support; The
              associations and influences to which the child is most likely to
              be exposed and the alternatives afforded, both positive and
              negative; and where is the 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. App. 1983).



       During the course of these proceedings, the trial court had an opportunity to observe

personalities, responsibilities, demeanor, credibility and suitability of each parent to serve


                                              6
as the custodial parent. While the child expressed a desire to live with his father, he also

stated to the trial court during an in camera examination:

              Q: Okay. Well, since your mom and dad separated, I believe
              back in August or September of last year, tell me where you
              have been living during that period of time?

              A: My mom’s.

              Q: Okay, How has that been working out?

              A: Pretty good.



       This Court is of the opinion that the findings of the trial court should be given great

weight as they relate to issues surrounding child custody. “Absent some compelling reason

otherwise, considerable weight must be given to the judgment of a Trial Court in a divorce

proceeding in respect to credibility and suitability” of the parties as custodians. Bush v.

Bush, 684 S.W.2d 89, 95 (Tenn. App. 1984). The trial courts are vested with a wide

discretion in matters of child custody, and the reviewing courts will not interfere except

upon a showing of erroneous exercise of that discretion. Grant v. Grant, 286 S.W.2d 349,

350 (Tenn. 1954). The trial court enjoys a substantial advantage in having the opportunity

to see, hear and evaluate the parents’ suitability as custodians. Mimms v. Mimms, 780

S.W.2d 739, 745 (Tenn. App. 1989). As this Court noted in Bah v. Bah, 668 S.W.2d 663:

              This Court will, however, give great weight to the decision of
              the trial court because the judge saw the witnesses face-to-
              face and heard them testify; this rule being based upon the
              assumption that the trial judge did not act arbitrarily or willfully
              but with the regard to what is right and equitable, considering
              first the child’s best interest as directed by his reason and
              conscience towards the child’s welfare.

Id. at 665, citing, Riddick v. Riddick, 497 S.W.2d 740 (Tenn. App. 1973).



       The true test for the award of custody is to arrive at the point of deciding with whom

to place the child in preparation for a caring and productive adult life. Bah at 665-66. It is

noted by this Court in Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. App. 1993), that the

welfare and best interest of the child is of paramount concern in custody cases. See also,

Mollish v. Mollish, 494 S.W.2d 145, 151 (Tenn. App. 1972).               Fitness for custodial

responsibilities is a comparative matter that the trial court is required to make. See, Bah



                                               7
v. Bah, 668 S.W.2d at 666. Nowhere is the presumption of correctness of the trial court’s

conclusions more applicable than in matters of child custody where the surrounding

testimony is complex and involved and frequently filled with disputes and acrimony. See,

Nicks v. Nicks, 369 S.W.2d 909, 912 (Tenn. App. 1962). As noted by the Tennessee

Supreme Court in Cecil v. State ex. rel. Cecil, 237 S.W.2d 558, 559 (Tenn. 1951):

              In cases involving child custody, the decision of the Trial Judge
              who saw and heard the witnesses, is to be given great weight,
              if not controlling effect, and we will interfere only where we find
              a palpable abuse of discretion, or a judgment against the great
              weight of the evidence.

Id. at 559.



       Upon examination of the transcript and record in this cause it is apparent that the

Chancellor gave great consideration to the comparative fitness of Mr. Melton and Mrs.

Melton to serve as custodial parents. The Chancellor concluded that both parents were

suitable to serve as custodial parents, and each parent was granted liberal visitation during

the non-custodial period. Mrs. Melton is a teacher in the Weakley County school system,

and is in the best position to oversee the child and his studies. Similarly, the child’s interest

in racing is best served by Mr. Melton during the time that he has custody in the summer.

The Chancellor’s decision in regard child custody is presumed to be correct and should be

upheld on appeal because the evidence presented to this Court does not preponderate

against the trial court’s findings.




                                 TRACTOR AND PLANTER



       At the conclusion of the proof in this cause, the trial court awarded Vernon Dunn the

John Deere 4440 tractor and a planter that had been used by Mr. Melton. On appeal, Mr.

Melton asserts that Dunn failed to present adequate proof to support his claims of

ownership of the equipment and that Dunn failed to provide Mr. Melton with adequate

notice concerning the termination of the land lease arrangement. We find this issue to be


                                               8
without merit.



       At the March 1996, hearing, the trial court found that Dunn was the owner of the

tractor, but the trial court permitted further evidence on this issue to be presented at trial.

At trial, Vernon Dunn presented a 1979 check in the amount of $22,000, which stated in

the memo section, “For 4440 John Deere with warranty expiring March, 1979.” Mr. Melton

maintains that the tractor is his as evidenced by a $10,500.00 check written to Dunn from

the proceeds of the sale of Melton’s Case tractor that were to be applied toward the

purchase of the John Deere tractor in dispute. Conversely, Dunn maintains that the

Melton’s check was to cover losses sustained by the men in the commodities market.

Dunn produced numerous other checks that he had written for repairs and tractor parts.

Also, Dunn produced copies of his IRS tax return depreciation schedules for 1979-1986,

which all noted a John Deere 4440 tractor.



       In addition to the tractor, Dunn asserts ownership over a planter in Melton’s

possession. Melton asserts that Dunn produced no evidence of his ownership of the

planter in question. Dunn admits that he had no documents evidencing his title to that

implement. However, Dunn did submit IRS tax return depreciation schedules for 1980-

1986 which indicated that a planter was being depreciated. Mr. Melton failed to produce

any evidence or documents which indicated that he had any interest in said planter.

Accordingly, we do not find that the Chancellor erred in awarding possession of the tractor

and planter to Mr. Dunn.



       Finally, Mr. Melton asserts that Dunn failed to give him adequate notice of the

termination of the farm lease. The common law requires six months’ notice prior to the

termination of a lease for a tenant holding over from year to year. Buchanan v. Johnson,

595 S.W.2d 827, 831 (Tenn. App. 1979); see also, Smith v. Holt, 193 S.W.2d 100, 102

(Tenn. App. 1945). In the instant case, Mr. Melton presented no proof regarding the terms

of the agreement with Vernon Dunn, so it is not known whether Mr. Melton was a contract

tenant or a hold-over tenant. Dunn wrote Mr. Melton a letter directing him to cease all



                                              9
operations upon and benefit from Dunn’s land as of December 31, 1995, and Mr. Melton

testified that he received said letter in September 1995. Such notice would be quite

sufficient for a lease beginning in the spring. Upon consideration of the evidence proffered,

we find that Dunn gave Melton adequate notice so as to warrant termination of the lease.



       For the reasons stated herein, the judgment of the trial court is affirmed. Costs are

adjudged against Husband.




                                                         HIGHERS, J.



CONCUR:




FARMER, J.




LILLARD, J.




                                             10
