       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                               FILED
                                                October 28, 1998

MICHAEL ALLEN LANCE,                )         Cecil W. Crowson
                                    )        Appellate Court Clerk
      Plaintiff/Appellant,          )    Sumner Circuit
                                    )    No. 16685-C
VS.                                 )
                                    )    Appeal No.
TINA GAYLE LANCE,                   )    01A01-9801-CV-00036
                                    )
      Defendant/Appellee.           )




                    APPEAL FROM THE CIRCUIT COURT
                         FOR SUMNER COUNTY
                       AT GALLATIN, TENNESSEE

               THE HONORABLE THOMAS GOODALL, JUDGE




For Plaintiff/Appellant:                 For Defendant/Appellee:

Clark Lee Shaw                           F. Dulin Kelly
Nashville, Tennessee                     Andy L. Allman
                                         Clinton L. Kelly
                                         Hendersonville, Tennessee




             AFFIRMED IN PART; MODIFIED IN PART;
                       AND REMANDED




                                    WILLIAM C. KOCH, JR., JUDGE
                                      OPINION


       This appeal involves the custody o f a five-year-o ld-girl. After thre e and one -half
years of marriag e, the father filed a divorce p etition in the C ircuit Court fo r Sumn er Coun ty
requesting custody of the parties’ only child. The mother did not contest the divorce but
sought custody of the parties’ child. Following a bench trial, the trial court declared the
parties divorced and awarded custody to the mother. The father asserts on this appeal that
he should have be en award ed the divo rce and tha t he is com paratively m ore fit than the
mother to have custody. We affirm the award of custody to the mother but remand the case
with directions to modify the judgme nt to award the divorce to the father on the ground of
inappr opriate m arital con duct.


                                                I.


       Tina Gayle Lance and Michae l Allen Lance m et in April 1992 w hile working at
Opryland, U.S.A. Ms. Lance was seventeen, and M r. Lance was twenty-three years old.
They became romantically involved, and on August 20, 1993, M s. Lance gave birth to their
daughter, Kayla Michelle Lance. The parties changed living arrangements quite often
following the birth of the child, but finally, in February 1994, they moved into their own
apartment in Madison.


       The parties were married in July 1994. Ms. Lance w as their daughter’s primary
caregiver but also worked full-time. Mr. Lance also worked full-time and attended classes
at Voluntee r State Community College where he was enrolled in the nursing program. When
he was not working or attending classes, much of his time was spent studying. Both the
maternal and paternal grandparents assisted with babysitting. In June 1995, the parties
purcha sed a ho me in W hite Ho use w ith finan cial assis tance fr om M r. Lanc e’s pare nts.


       Ms. Lance’s p arents mo ved back to Louisian a in November 1995. After visiting her
parents twice in January and February 1997, Ms. Lance informed Mr. Lance that she wished
to move back to Louisiana with the parties’ daughter. Ms. Lance’s attitude about Mr. Lance
and her marria ge chang ed dram atically wh en she retur ned from an extend ed visit to
Louisiana in March 1997. Instead of returning to her home, she moved in with girlfriends
and inform ed M r. Lanc e that sh e desire d to m ove to L ouisian a perm anently . Mr. Lance
became suspicious about Ms. Lance’s conduct when their phone bill revealed that she was
making frequent telephon e calls to a form er boyfrien d in Louis iana. Ms. L ance finally




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admitted to Mr. La nce that she was hav ing sexua l relations in L ouisiana w ith her old
boyfriend.


        The parties’ marriage deteriorated rapidly. On April 1, 1997, Mr. Lance filed a
petition for divorce in the Circuit Court for Sumner County and obtained a temporary
restraining order preventing Ms. Lance from taking their daughter to Louisiana prior to the
trial. The trial court dissolved the order on Ma y 9, 1997 wh en it gave Ms. La nce temporary
custody. Ms. Lance admitted in her answer that she had engaged in inappropriate marital
conduct but requested custody of her daughter. Follow ing a bench trial, the trial court
declared the parties divorced in accord ance with Ten n. Code An n. § 36-4-129(b) (19 96), 1
awarded custody of the parties’ daughter to Ms. Lance, and determ ined that the child’s
interests would be served best by permitting Ms. Lance and the child to move to Louisiana.
Ms. Lance and Kayla have moved to Louisiana, where Ms. Lance works as a secretary at her
uncle’s real estate office. They live rent-free in a home owned by her parents. Mr. Lance
continues to reside in the Nashville area and works at Vanderbilt Hospital as a nurse
assistan t.


                                                    II.


        Mr. Lance’s prim ary issue on this app eal invo lves the custod y decis ion. He asserts
that the evidence does not support the trial court’s findin g that Ms . Lance is co mparativ ely
more fit to be the custodial parent.           We have determined that the evidence does not
prepon derate a gainst th e court’ s concl usion.


                                                    A.


        Decisions involving the custody o f children are factually driven and require the
careful consideration of nume rous co nsidera tions. See Nichols v. Nichols, 792 S.W.2d 713,
716 (Tenn. 19 90); 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 circ umstanc es available in the hom e of each p arty
                seeking custody and the special requirements of the child; the
                availability and extent of third-party support; the associations


        1
        Prior to a 1998 amendment not applicable to this case, Tenn. Code Ann. § 36-4-129(b)
provided: “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 of the parties are entitled to a divorce, declare the parties to be
divorced, rather than awarding a divorce to either party alone.”

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               and influences to which the child is mo st likely to be e xposed in
               the alternatives aff orded, both positive and negative; and where
               is the greater likelihood of an environment for the child of love,
               warmth, stability, suppo rt, consistency, care and concern, and
               physical and spiritual nurture.

Bah v. Bah, 668 S.W .2d 663, 66 6 (Tenn. C t. App. 198 3); see also Tenn. Code Ann. § 36-6-
106 (Supp. 1998). Since there are no hard and fast rules for determining which custody and
visitation arrang emen t will bes t serve a child’s n eeds, see Taylor v. Taylor , 849 S.W.2d 319,
327 (Tenn. 1993); Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. Ct. App. 1983), custody
and visitation decisions are invariably dictated by the unique facts of each case.


       The ana lytical frame work for making original custo dy decision s requires the courts
to examin e the paren ts compe ting for custo dy to determ ine which of them is c ompara tively
more fit to be the child’s custod ian. See In re Parsons, 914 S.W .2d 889, 89 3 (Tenn. C t. App.
1995); Bah v. Bah, 668 S.W.2d at 666. The courts understand that each parent has his or her
own vices and virtues. See Ga skill v. Gaskill, 936 S.W.2d 62 6, 630 (Tenn. C t. App. 1996).
Acc ordingly, they do not base their custody decisions on which parent is “perfect,” see Bah
v. Bah, 668 S.W.2d at 666; Edwards v. Edwards, 501 S.W.2d 283, 290-91 (Tenn. Ct. App.
1973), or on which parent has been made out to be com pletely un fit. See Griffin v. Stone,
834 S.W.2d 300, 305 (Tenn. Ct. App. 1 992); Harris v. Harris, 832 S.W.2d 352, 353 (Tenn.
Ct. App. 1992). Rather, custody decisions require the courts to determine which of the
available custodial alternatives appears to be best calculated to meet the child’s needs.


       Custody and visitation determinations often hinge on subtle factors, including the
parents’ demeanor and credib ility during the divorce pro ceedings th emselve s. Trial courts
must be able to ex ercise broad discretion in these matters, as long as their decisions are based
on the evidence and on an appropriate applicatio n of the applica ble prin ciples o f law. See
D v. K, 917 S .W.2d 682, 68 5 (Ten n. Ct. App. 1995). Accord ingly, appellate courts are
reluctant to seco nd-gu ess a trial c ourt’s d ecision s, see Gask ill v. Gaskill, 936 S.W.2d at 631,
and we review these decisions de novo on the record with a presumption that the trial court’s
findings of fact a re corre ct unles s the ev idence prepon derates otherw ise. See Nichols v.
Nichols, 792 S.W .2d at 716; Doles v. Doles, 848 S.W.2d 6 56, 661 (Tenn. C t. App. 1992).




                                                 B.


       The pivotal question with regard to the trial court’s custody decision is whether the
evidence prepond erates again st its conclusio n that Ms . Lance is co mparative ly more fit than


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Mr. Lance to be their daughter’s custodian. Mr. Lance asserts that the trial court’s decision
stemmed more fro m the trial cou rt’s concern that he fathered a child out-of-wedlock than
from the current fitness of the parties. He also asserts that the evidence demonstrates that he
is more stable and responsible than Ms. Lance and, therefore, that he would be a better
custodial pa rent.


       The trial court’s comments from the bench leave little doubt that it disapproved of the
facts that “this father was 24 years of age when he got this 17-year-old girl pregnant” and that
the child was born out of wedlock. It is difficult to tell from the record what role these
factors played in the trial court’s ultimate custody decision. However, we need not specu late
about these questions on appeal because we must review the record de novo and because our
appraisal of comparative fitness need not follow that of the trial court. U nder the fa cts of this
case, we have dete rmined tha t the age diff erence in th e parties and the fact that th eir child
was born bef ore they were married are of only minor weight in the comparative fitness
analysis.


       Mr. Lance’s assertion that he is the more stable and matu re parent stem s from his
belief that Ms. Lance’s infatu ation with her high school boyfriend and her desire to move
back to Louisiana signals her immaturity and lack of commitment to her child. While her
conduct certainly evin ces a lack o f comm itment to he r marriage , it does not ne cessarily
follow that she is any less com mitted to her daugh ter.


       This court has never condoned extramarital affairs. See Sutherland v. Sutherland, 831
S.W.2d 283, 286 (Tenn . Ct. App. 1991). Sexual misconduct may be an indication of parental
fitness, and accordingly, the courts may consider it when undertaking their comparative
fitness analys is. See Barn hill v. Barnh ill, 826 S.W.2d 4 43, 453 (Tenn. C t. App. 1991);
Edwards v. Edwards, 501 S.W .2d at 291. H oweve r, courts declin e to use custody decisions
to punish parents for sexual m isconduc t alone with out som e proof that th e conduc t is
adversely affectin g the ch ildren. See Varley v. Varley, 934 S.W.2d 659, 666-667 (Tenn. C t.
App. 1996); Sutherland v. Sutherland, 831 S .W.2d at 286; Mimms v. Mimms, 780 S.W.2d
739, 74 5 (Ten n. Ct. A pp. 198 9).


       Based on the facts of this case, we find no basis for concluding that Ms. La nce’s
inapprop riate affair with her former boyfriend warrants reversing the trial court’s custody
decision. There is no indication that Ms. Lan ce is engag ing in inapp ropriate, intim ate
conduct in her daughter’s presence or that her daughter has been emotionally or
psychologically harmed by Ms. Lance’s relationship with her former boyfriend. Nor does
the record contain any p roof that Ms. Lanc e’s infatuation with her form er boyfriend has


                                               -5-
caused her to neglect her daughter’s needs. Thus, Ms. Lance’s meretricious relationship, by
itself, is not enough to tip the scales against awarding her custody.


       Weighed a gainst Ms. Lanc e’s relationship with her former boyfriend is the fact that
Ms. Lance h as taken prim ary respon sibility for meeting th e child’s nee ds during th e early
years of her life. While Mr. Lance was an attentive parent to the extent that his schedule
permitted, it was Ms. Lance who had the responsibility to feed, bathe, and clothe the child.
Ms. Lance has been the consistent parent figure to the child ever since she was born. The
child has been living with M s. Lance in New Orleans since 1997. In light of the importance
of continuity and stability in a young child’s life, see Taylor v. Taylor, 849 S.W.2d at 328;
Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn. Ct. App. 1991), we are disinclined to alter
the present cus tody arrang ement an d require the child to leave her moth er to return to
Nashville.


                                               III.


       Mr. Lance also takes issue with the trial court’s decision to declare the parties
divorced because of a desire to shield the parties’ child from the knowledge that Ms. Lance
had committed adultery. We assert that the decision was wrong for two reasons. First, Ms.
Lance admitted committing adultery, and second, because it is unrealistic to expect that
ignoring the plain evidence of adultery will shield the child from learning, if she does not
already know, that her mother’s affair with a former boyfriend caused her parents’ marriage
to end. We agree that Mr. Lance should have been awarded the divorce.


       Tenn. Code Ann. § 36-4-129(b) permits a trial court to declare the parties divorced,
rather than awarding the divorce to one of the parties, if either or both of the parties prove
that they are entitled to a divorce. While we generally avoid revisiting a trial court’s decision
concerning to whom a divorce should be g ranted, this case presents a rare occasion requiring
us to intercede. Based on our de novo review of the record, we find overwhelming evidence
that Ms. Lance comm itted adultery. However, we find little evidence substantiating Ms.
Lance’s claim that she is entitled to a divorce from Mr. Lance.


       Similarly, we hav e conclud ed the trial cou rt’s desire to shie ld the parties’ ch ild from
knowledge of her mother’s miscond uct, while w ell-motivate d, is misdirec ted. The ch ild is
now five years old. If she does not already know why her parents separated and divorced,
she will certainly know soon enough even if she never sees the divorce decree. Accordingly,
we find that the trial court erred by declaring the parties divorced and that the evidence
preponderates in favor of concluding that Mr. Lance is entitled to the divorce on the ground
of inap propria te mari tal cond uct.

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                                              IV.


       We affirm the judgment awarding Ms. Lance custody of the parties’ daughter and
remand the case w ith directions that the trial court amend th e divorce decree to sho w that Mr.
Lance was awarded a divorce on the ground of inappropriate marital conduct. We tax the
costs of this appeal in equal proportion to Michael Allen Lance and his surety, and to Tina
Gayle Lance for wh ich exe cution, if necess ary, m ay issue .



                                            ____________________________
                                            WILLIAM C. KOCH, JR., JUDGE
CONCUR:


_________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M. S.


_________________________________
WILLIAM B. CAIN, JUDGE




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