                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
______________________________________________________________________________

BRIAN PATRICK GRANT,                      Shelby Circuit No. 145922 R.D.
                                                C.A. No. 02A01-9603-CV-00053
        Plaintiff,
                                                 Hon. Wyeth Chandler, Judge
v.

TONYA RENEE’ FORTUNE GRANT,                                           FILED
        Defendant.                                                      April 16, 1997

STUART BREAKSTONE, Law Office of Don Owens, Memphis, Attorney for Plaintiff.Jr.
                                                         Cecil Crowson,
                                                                      Appellate C ourt Clerk

LINDA L. HOLMES, The Wagerman Law Firm, Memphis, Attorney for Defendant.

REVERSED IN PART AND AFFIRMED IN PART

Opinion filed:
______________________________________________________________________________

TOMLIN, Sr. J.

        This a domestic relations case wherein child custody is the principal issue. Brian

Patrick Grant (hereafter “Husband”) filed suit for divorce in the Circuit Court of Shelby

County against Tonya Renee’ Fortune Grant (hereafter “Wife”) alleging that Wife was

guilty of inappropriate marital conduct. Wife filed a counter-complaint against

Husband seeking a divorce on the sam e grounds. Following a bench trial, the court

awarded both parties a divorce on the grounds of inappropriate marital conduct, and

awarded the parties joint custody of their minor child with Wife designated as the

primary custodial parent. The court also set the child support for Husband, established

a visitation schedule of Husband and divided the parties’ marital assets.

        On appeal Husband has raised one issue, namely: W hether the trial court was in

error in awarding the parties’ joint custody of the child and in failing to award Husband

sole custody. Wife has raised three issues on appeal: W hether the trial court erred in

(1) establishing a “floating” visitation schedule in accordance with H usband’s

employment schedule; (2) in setting Husband’s child support payment at 15% of his net

incom e, and (3) in awarding Husband $9,000.00 of the parties’ equity in the marital

residence. For the reasons hereinafter stated, we reverse in part and affirm in

part.

        The facts are not in dispute. The parties were married in December, 1988.
Their only child, a daughter, was born in March 1991. The parties separated in

April 1994 only nine days after moving into their new marital residence, as a

result of Wife’s admission that she was having an affair with her employer. At the

time the parties purchased their new residence neither party had discussed

plans for divorce. Husband’s moving out shortly after they had moved into their

new home was also prompted in part by the discovery of a diamond ring in the

back seat of Wife’s car. Upon informing Wife of his discovery, Wife announced

that she had been having an affair with Mr. William Adair, her then current

employer, who had purchased the ring for her. Husband filed his complaint for

divorce shortly thereafter.

      Several months later, Husband filed a petition seeking to have the trial

court enter a temporary restraining order prohibiting Wife from allowing any non-

related males to visit the home in which she and the child lived after 10P.M. The

court entered such an order. The following month, Husband filed a Petition for

Contempt asserting that Wife had violated the previous order of the court.

Following a hearing the court dismissed the contempt petition, but issued a stern

warning to Wife that she faced the loss of temporary custody of her child if she

violated the order again. Just a few days prior to the divorce hearing Husband

filed a second petition for contempt, alleging another violation of the trial

court’s prior order.

      Following a bench trial, the court entered a decree of divorce and gave

Wife temporary custody of the parties’ child pending a final adjudication on the

issues of child support, child custody, visitation rights and division of marital

property. Subsequently, the trial court determined that both parties were fit and

proper persons for custody of their daughter and awarded joint custody, with

Wife serving as the primary custodial parent. Husband was ordered to pay

$235.00 per month in child support, which equaled 15% of his net income and in

addition, was awarded $9,000.00 of the parties’ equity in the marital residence.

Husband’s second contempt petition was dismissed however, the trial court

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ordered Wife to prevent her current boyfriend from visiting Wife when the

parties’ child was present. The court also set out explicit instructions concerning

Husband’s visitation rights.

                               I. The Custody Issue.

      Because they are closely interrelated, we will dispose of both Husband’s

and Wife’s issues at the same time as they relate to the matter of custody. As

noted, the trial court, apparently with some reluctance, gave the parties joint

custody of their child, with Wife being designated as the primary custodian. This

court has long held that joint custody by divorced parents of children of the

marriage is not looked upon with favor. This is not simply a bias of the court, but

is a view developed as a result of years of dealing with cases of this type. We

must always keep in mind that in custody issues the welfare of the child is

paramount. Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983). As this court said in

Bah, the best interest of the child is the alpha and the omega, the polestar of

our concern. Id. at 665. Joint custody of children by divorced parents can only

work when the parties have maintained some semblance of respect for one

another, where the dissolution of the marriage has resulted in an improved

relationship involving all the parties. This court observed the following in Dodd v.

Dodd, 737 S.W.2d 286 (Tenn. App. 1987).



      [W]e feel constrained to address the institution of joint custody.
      Notwithstanding the fact that joint custody of minor children is
      permitted by statute, we have found it necessary to reverse a large
      number of such decrees during the past several years. The
      experience of this Court has been that joint custody rarely, if ever,
      works--for the children. There needs to be one residence, one
      haven in all the storms of life, including those storms whipped up by
      the winds of divorce. There needs to be one parent with primary
      control and responsibility for the upbringing of the parties’ children,
      whenever possible. Custody, in reality, means responsibility for the
      care, nurture and development of the mental, emotional and
      physical needs of the child. The custodial parent should expect
      and receive cooperation and assistance from the non-custodial
      parent in every respect to serve the best interests of their child or
      children.

      In contested divorces, when feelings are usually heated and

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      emotions run high, it would appear to this Court that joint custody
      would not serve the best interests of the child. Even when the
      circumstances of the case would suggest joint custody, for it to be
      successful would require a harmonious and cooperative
      relationship between both parents.

Id. at 289-290.


      In reviewing this record it would be an understatement to suggest that ill

feelings existed between Husband and Wife. During the course of this marriage

Wife had affairs with at least two men, the first affair precipitating Husband’s

moving out the marital home. Several witnesses testified as to Wife’s consistent

use of foul language toward Husband in the presence of their child, along with

physical and verbal abuse. By the same token, the record also reveals that

Husband had an affair all of his own, and on top of this Wife complained of

physical abuse and neglect.

      The record indicates that the trial court was awarding joint custody as a

temporary measure to see if it might not work. However, the court’s lack of

confidence in both parties’ ability to work together is reflected by an order of

the court that designated Wife’s mother as a de facto referee in making

decisions regarding the daughter in the event that Husband and Wife were

unable to resolve an issue between themselves. The record reveals extreme

tension and discord existing between the parties. Accordingly, we have no

hesitation in reversing the trial court’s order awarding joint custody.

      It is a more difficult decision for this court to ascertain which parent should

be awarded sole custody of the child, with the other parent having reasonable

visitation. The Bah court adopted the doctrine of “comparative fitness”, which

incorporates what can best be described as a totality of the circumstances test.

See Bah at 666.

      In Bah we also held that the tender years doctrine, which had previously

created a rebuttable presumption that the mother should receive custody of a

small child “of tender years”, was hereafter only a factor—but only one factor of


                                          4
among many—to be considered in the overall determination of what is in the

child’s best interests. The Bah court set forth the following guidelines to direct the

court in resolving a child custody decision:



      To arrive at the point of deciding with whom to place a child in
      preparation for a caring and productive adult life requires
      consideration of many relevant factors, including but certainly not
      limited to [1] the age, habits, mental and emotional make-up of the
      child and those parties competing for custody; [2] the education
      and experience of those seeking to raise the child; [3] their
      character and propensities as evidenced by their past conduct; [4]
      the financial and physical circumstances available in the home of
      each party seeking custody and the special requirements of the
      child; [5] the availability and extent of third party support; [6] the
      associations and influences to which the child is most likely to be
      exposed in the alternatives afforded, both positive and negative; [7]
      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. (Brackets added).

Id. at 665-6.


       It now befalls our responsibility to make a comparative analysis of the

parental skills of the parties in question, each vying for custody of their child. It

appears that both Husband and Wife earn sufficient salaries to insure an

adequately comfortable lifestyle for the child. We observe, and rightly so, the

concerns raised by Husband over Wife’s recent indication that she

contemplated marrying her current boyfriend, Lance Bancroft. Specifically,

Husband questioned the ability of Wife to successfully raise their daughter in

such a marriage when Bancroft would bring another small child to live with the

family, his blind seven year old son who requires substantial care and attention.

While this is a valid concern, of greater concern for this court is the apparent

character and dependability of Mr. Bancroft, who willfully and openly violated

the trial court’s temporary injunction prohibiting Wife from allowing non-relative

male visitors to spend the night at her home when the parties’ daughter was

present. Evidence was presented at trial to the effect that Bancroft repeatedly

spent the night with Wife during the pendency of the trial court’s order


                                           5
prohibiting same.

      Although the trial court dismissed Husband’s second petition for

contempt, there was testimony offered by Husband through a hired private

investigator who testified that he saw Bancroft leave Wife’s home on two

separate occasions after spending all night there. The investigator also testified

that the daughter was present at the home at that time. Wife denied that such

liaisons had taken place.

      Recognizing that a choice must be made, this court albeit reluctantly,

awards Wife the privilege of having sole custody of the parties’ minor child. In

so doing we specifically say to both Husband and Wife, in particular to Wife, that

the record in this case causes this court concern, for it shows that neither party

may be deemed fit to retain custody of this child over a long period of time.

       Such incidents as foul language and marital infidelity, coupled with

emotional abuse and bitter infighting, require this court to consider and make

mention of a third option: the service of a foster home, which perhaps might

provide the child a more harmonious as well as safe atmosphere in which to

grow up.

       Therefore, we respectfully direct the trial court upon remand to establish

contact with the appropriate division of the Tennessee Department of Human

Services (“TDHS”) and either by agreement or appropriate order provide that

TDHS will monitor the home life and stability of the child on a quarterly basis

during the next three years after the entry of the final decree and to report to

the court its findings.

                            II. Visitation and Other Issues.

       The current visitation schedule fashioned by the trial court provides that

the child be picked up the night before Husband’s “off day” and returned to

Wife on the morning when Husband returns to work. This arrangement is

cumbersome at best and has no stability in that the visitation times change

frequently due to Husband’s fluctuating employment schedule. We

                                           6
recommend that except for holidays and certain vacation periods, Husband’s

visitation rights be limited to weekend visits, but, as stated, he shall have liberal

visitation rights so as to include a proportionate number of holidays and

vacation times. We direct that the parties be given an opportunity to fashion a

visitation schedule. In the event that they cannot, then it shall be left to the

judgment of the trial court on remand to do so.

        Wife further contends that the trial court erred in awarding child support

payments to Wife equaling 15% of his net income, rather than 21% as provided

by the guidelines. Having awarded the parties joint custody, but making Wife

the primary physical custodian, the court stated: “. . . Ordinarily he would pay 21

percent. I’m going to put it 15 percent, whatever it is. . . because he’s going to

have a little extra time. He got a little more than usual.”

        In light of the fact that Wife now has full custody of the child, and thus

more financial responsibilities, we are of the opinion that child support payments

should be increased to 21% of Husband’s net income.

        Lastly, Wife contends that the trial court erred in awarding Husband

$9,000.00 of the $35,000.00 considered as equity in the marital residence. Her

claim of error rests on two grounds. First, because Husband removed $8,000.00

from their daughter’s savings account when he moved out of the marital

residence. Second, that the sum of $30,000.00, used for the down payment on

the home, was a gift to her by William Adair, her employer (and then lover). In

her brief, Wife states that “Brian Grant has been unjustly enriched by the Trial

Court. It is reprehensible that he would ask for one/half of Wife’s lover’s gifts to

her.”

        Husband on the other hand contends that $30,000.00 was part of Wife’s

bonus that was paid to her at a company Christmas party. Be that as it may,

regardless of its source and the real motives behind it, when the $30,000.00 was

used to pay part of the purchase price, and title to the property was taken in the

names of both the parties’, the funds were transmuted into marital property.

                                           7
The trial court did not err in this division of the equity in the marital residence.

      In their respective Conclusions, both Husband and Wife asked this court to

award each of them attorney fees on appeal, to be established by the trial

court upon remand. Considering the circumstances of this case in whole, we

are of the opinion that each party should bear his or her attorney fees on

appeal.

      Accordingly, the trial court’s judgment granting the parties joint custody

with Wife being the primary custodial parent is reversed. Wife is awarded sole

custody of the parties’ minor child, with Husband to have liberal visitation rights.

The trial court’s judgment fixing child support is modified by increasing mother’s

support to 21% of Husband’s net income. The trial court’s judgment pertaining to

the division of marital property is affirmed. The Tennessee Department of Human

Services is ordered and directed to become involved in this case to the extent

and in the manner set out heretofore in this opinion.

This case is remanded to the Circuit Court of Shelby County for further

proceedings not inconsistent with this opinion. Costs in this cause on appeal are

taxed 3/4 to Husband and 1/4 to Wife, for which execution may issue if

necessary.


                                         ________________________________________
                                         TOMLIN, Sr. J.



                                         ________________________________________
                                         CRAWFORD, P. J. W. S. (CONCURS)



                                         ________________________________________
                                         FARMER, J.              (CONCURS)




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