                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    JULY 9, 2001 Session

                          WENDY KING v. TIMOTHY KING

                  Direct Appeal from the Circuit Court for Warren County
                      No. 9805; The Honorable Charles Haston, Judge



                  No. M2000-00424-COA-R3-CV - Filed September 11, 2001


This appeal arises from a divorce and custody dispute. The trial court awarded custody of the
parties’ four minor children to the father, and the court awarded the mother liberal visitation. The
mother appeals the decision of the court below. For the following reasons, we affirm in part, reverse
in part, and remand to the trial court for further proceedings consistent with this opinion.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,
                            Reversed in Part and Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD, J., joined.

Robert W. Newman, John P. Partin, McMinnville, TN, for Appellant

Keith S. Smart, McMinnville, TN, for Appellee

                                            OPINION

                                  Facts and Procedural History

       The parties in this case are Wendy King (Mother), and Timothy King (Father). The parties
were married on July 21, 1987, and they separated in June of 1998. There were four minor children
born of the marriage.

        During the numerous divorce and custody hearings, the trial court heard evidence that was
damaging to both parties. For example, the court heard testimony about Mother’s obsessive use of
the internet. Mother corresponded regularly with several internet pen pals and internet lovers, and
once she described herself as a “porn star” to one of her internet acquaintances. Sometimes, men
Mother met over the internet would travel to her home for extended visits. Also, Mother traveled
to various states to meet men she had met over the internet, and she admitted to having sexual
relations with two men she had met over the internet. While Mother was away visiting with her
internet lovers, Father would stay home and take care of the children.

        There was also testimony that was very damaging to Father. For instance, Father fired a
pistol in the home to imitate the act of suicide. Additionally, Father made a video of himself
masturbating while his infant child was present in another room in the home. While Father also
admits to engaging in unscrupulous behavior on the internet, he denies having extramarital affairs
with any of his internet acquaintances.

        On December 15, 1998, the trial court granted temporary legal custody of the parties’ four
minor children to the Department of Children’s Services with temporary physical custody to remain
with Mother. On June 8, 1999, the parties were granted a divorce on the grounds of inappropriate
marital conduct. On November 24, 1999, the court ordered that physical custody of the children be
removed from Mother and be placed with the paternal grandparents, Cecil and Evelyn King. Finally,
on January 28, 2000, the trial court awarded physical and legal custody to Father, and the court
granted liberal visitation to Mother. The court also ordered Mother to pay $30.00 per week in child
support.

          Mother appeals the decision of the trial court, and presents the following issues for our
review:

I.        Whether the trial court erred in considering evidence previously excluded as inadmissible
          hearsay.
II.       Whether the weight of the evidence preponderates against the decision of the trial court.

Additionally, Father presents the following two issues for our review:

I.        Whether this court should uphold the trial court’s ruling since Mother failed to provide a full
          transcript or statement of the evidence.
II.       Whether the trial court erred in awarding child support which deviated more than ten percent
          from the Guideline amounts without a written statement of the reasons for such deviation.


                                          Standard of Review

        Our review of the trial court's custody decision is governed by Rule 13(d) of the Tennessee
Rules of Appellate Procedure. See Ruyle v. Ruyle, 928 S.W.2d 439, 441 (Tenn. Ct. App. 1996);
Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993). Rule 13(d) requires this court, in
conducting a de novo review of the record, to presume that the trial court's factual findings are
correct, unless the evidence in the record preponderates otherwise. See TENN. R. APP . P. 13(d). In
applying this standard of review, we are mindful that "[t]rial courts are vested with wide discretion
in matters of child custody" and that "the appellate courts will not interfere except upon a showing
of erroneous exercise of that discretion." Koch, 874 S.W.2d at 575. Because "[c]ustody and


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visitation determinations often hinge on subtle factors, including the parents' demeanor and
credibility" during the proceedings, appellate courts "are reluctant to second-guess a trial court's
decisions." Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). The courts' paramount
concern in a custody case is the welfare and best interest of the parties' minor children. See Ruyle,
928 S.W.2d at 441; Koch, 874 S.W.2d at 575. This determination necessarily turns on the particular
facts of each case.

                                        Law and Analysis

        First, we will address the custody issue. We note that Father urges us to uphold the trial
court’s ruling because Mother has failed to provide the full transcript or statement of the evidence
as required by Rule 24(a) of the Tennessee Rules of Appellate Procedure. Specifically, Mother
failed to include a transcript of the May 11, 1999, trial at which the divorce was granted. Father
argues that evidence of Mother’s lack of parental fitness was introduced at this hearing. Therefore,
Father argues that we should uphold the trial court’s ruling since we do not have this portion of the
transcript. Notwithstanding this fact, we do have a substantial record, and we can properly determine
the case based upon the record before us. Father could have designated other parts of the record if
he wished to do so. See Rule 24(a), Tennessee Rules of Appellate Procedure.

        We now turn to Mother’s assertion that the trial court erred in considering evidence
previously excluded as inadmissible hearsay. This argument arises from four anonymous letters that
were sent to the Department of Children’s Services. The four letters contained serious allegations
against Mother. Specifically, one of the letters alleged that Mother had made death threats toward
herself and the children. The four anonymous letters then became the basis for a “client assessment”
conducted by a mental health center of one of the minor children. The assessment was very
damaging to Mother. Dr. Joseph D. LeBarbera also reviewed the anonymous letters in preparation
of his custody evaluation that he prepared for the court. This report was also unfavorable to Mother.
Mother’s counsel objected to the mental health center’s report and the report by Dr. LeBarbera based
upon the hearsay contained in the anonymous letters. The trial judge sustained the objection and
stated that he would “disregard” both reports. In the trial judge’s final custody order, he stated the
following: “[t]here have been several hearings, numerous exhibits, documents, and written expert
opinions offered over the past months and the Court has considered all of them.” From this
statement by the trial judge, Mother argues that the hearsay reports that were previously excluded
by the judge were relied upon by the judge in his ultimate decision as to custody. We disagree. The
record clearly reflects that the trial judge disallowed the reports at issue. In ruling on Mother’s
objection to the reports, the trial judge stated “[I]’ll disregard it.” We do not accept Mother’s
invitation to read into the judge’s blanket statement that he considered all the evidence, when the
judge clearly disallowed the reports that were based upon the anonymous letters. Therefore, this
issue is without merit.

         Next, Mother argues that the weight of the evidence preponderates against the decision of
the trial court. We note that in making its custody decision, the trial court is required to engage in



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a “comparative fitness” analysis. See Gaskill, 936 S.W.2d at 630. This factually driven inquiry
requires the court to carefully weigh, inter alia, the following considerations:

               (1) The love, affection and emotional ties existing between the
               parents and child;
               (2) The disposition of the parents to provide the child with food,
               clothing, medical care, education and other necessary care and the
               degree to which a parent has been the primary caregiver;
               (3) The importance of continuity in a child’s life and the length of
               time the child has lived in a stable, satisfactory environment. . . .;
               (4) The stability of the family unit of the parents;
               (5) The mental and physical health of the parents;
               (6) The home, school and community record of the child;
               (7) The reasonable preference of the child if twelve (12) years of age
               or older. . . .
               (8) Evidence of physical or emotional abuse to the child, to the other
               parent or to any other person; . . . .
               (9) The character and behavior of any other person who resides in or
               frequents the home of a parent and such person’s interactions with the
               child; and
               (10) Each parent’s past and potential or future performance of
               parenting responsibilities, including the willingness and ability of
               each of the parents to facilitate and encourage a close and continuing
               parent-child relationship between the child and the other parent,
               consistent with the best interest of the child.

TENN. CODE ANN . § 36-6-106 (Supp 2000). The trial court heard testimony from many parties to
determine what custody arrangement would be in the children’s best interests. In deciding that
placing custody with Father was in the children’s best interest, the trial judge stated the following:

                       Though the mother still maintains a relationship with a man
               she met through the Internet under curious circumstances, she insists
               the arrangement is permanent. However, there remains great doubt
               that her situation is resolved sufficiently to establish the kind of home
               and environment these children so desperately need . . . In all, the
               mother’s future is unsettled and unresolved, whereas the father’s -
               and hence the Children’s - appear more determined and secure.

                       The father, with all his shortcomings, has nonetheless
               cooperated with the Court through the DCS. He has maintained
               gainful and steady employment, is presently living in a home near the
               paternal grandparents where the children have close and substantial
               care. Their educational needs are being fully met in their school and,


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                   generally, the father has in most respects made an earnest and good
                   faith effort to gain control of his life with the views of becoming an
                   involved and nurturing father.

We once again note that since “[c]ustody and visitation determinations often hinge on subtle factors,
including the parents’ demeanor and credibility” during the proceedings, appellate courts “are
reluctant to second guess a trial court’s decisions.” Gaskill, 936 S.W.2d at 631. In the instant case,
we agree with the trial court’s award of custody to Father. While the record does contain damaging
evidence about both parties, we agree with the trial court that Father has made the best effort to gain
control of his life and put his children first. It is also evident from the court’s ruling that the trial
judge was concerned with continuity in the children’s lives. Stability and continuity are of the
utmost importance in custody cases. See id. at 630. Although continuity does not trump all other
factors, see id. at 630, “it remains an important consideration.” Grover v. Grover, No. 01A01-9804-
CH-00197, 1999 WL 257653, at *5 (Tenn. Ct. App. Apr. 30, 1999). Due to the foregoing, we affirm
the decision of the trial court to grant custody of the minor children to Father.

        Now, we turn to Father’s child support issue. Father argues that the trial court erred in
awarding child support which deviated more than ten percent from the child support guideline’s
amount without a written statement of the reasons for such deviation. In the final order, the trial
court ordered that “[t]he mother will pay child support in the amount of $30.00 per week. . . .” It is
apparent from the record that Mother is employed as a school teacher earning approximately
$26,000.00 per year. With four children, the amount of $30.00 per week in child support as ordered
by the trial judge is clearly a downward deviation from the presumptive guideline amount of 46%
of the obligor’s income. See TENN. COMP. R. & REGS. Tit. 10, Ch. 1240-2-4-.03(5). Statutory
authority provides for a rebuttable presumption that the percentage amount of child support provided
in the guidelines is the correct amount. However, “[the guidelines] are subject to deviation upward
or downward when the assumptions on which they are based do not pertain to a particular situation.”
Nash v. Mulle, 846 S.W.2d 803, 805 (Tenn. 1993). In order to justify a deviation from this amount,
however, the trial court must make written findings outlining the reasons for the deviation. These
reasons must show that the deviation is either in the best interest of the children; that the child
support guidelines would be unjust or inappropriate; or needed to maintain equity between the
parties. See TENN. CODE ANN . § 36-5-101(e)(1) (Supp. 2000).1 We are unable to locate any written


        1
            Section 36-5-1 01(e)(1) of the T ennessee Co de provides:
                  In making its determination concerning the amount of support of any minor child
                  or children of the parties, the court shall apply as a rebuttab le presum ption the c hild
                  support guidelines as provided in this subsection. If the court finds that evidence
                  is sufficient to re but this presum ption, the c ourt shall make a written finding that
                  the application of the child support guidelines would be unjust or in approp riate in
                  that particular case, in order to provide for the best interest of the child(ren) or the
                  equity be tween th e parties. Findings that the applica tion of the g uidelines w ould
                  be unju st or inapp ropriate sh all state the amount of support that would have been
                   ordered under the child support guidelines and a justification for the variance from
                   the guidelines.

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findings in the record articulating the reasons that the trial judge chose to deviate downward from
the child support guidelines. As a result, we reverse and remand this issue to the trial court for
further proceedings consistent with this opinion.

                                           Conclusion

        For the aforementioned reasons, we affirm in part, reverse in part, and remand this case to
the trial court for further proceedings consistent with this opinion. Costs on appeal are taxed to
Mother, for which execution may issue if necessary.




                                                     ___________________________________
                                                     ALAN E. HIGHERS, JUDGE




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