        IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                                 AT JACKSON
            _______________________________________________________

                                    )
CHERYL ANN CUPPLES,                 )     Chester Equity No. 8278
                                    )
   Plaintiff/Appellant.             )
                                    )
VS.                                 )     App. No. 02A01-9408-CH-00193
                                    )
LUTHER WAYNE CUPPLES,               )
                                    )
   Defendant/Appellee.              )
                                    )
______________________________________________________________________________

From the Chancery Court of Chester County at Henderson.
Honorable Joe C. Morris, Chancellor



Lloyd R. Tatum,
TATUM AND TATUM, Henderson, Tennessee
Attorney for Plaintiff/Appellant.



Mary Jo Middlebrooks,
MIDDLEBROOKS & GRAY, P.A., Jackson, Tennessee
Attorney for Defendant/Appellee.



OPINION FILED:

AFFIRMED AND REMANDED


                                          FARMER, J.



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

McLEMORE, Sp. J. : (Concurs)
This divorce action involves dissolution of the 25 year marriage between Appellant, Cheryl Ann

Cupples ("Wife"), and Appellee, Luther Wayne Cupples ("Husband"). Wife filed for divorce in

September 1992, citing irreconcilable differences and inappropriate marital conduct. Husband

counterclaimed for divorce alleging inappropriate marital conduct. Both parties sought custody of

their minor son, Jonathan, age 10 at the time of trial.1 On appeal, Wife cites as error the trial court's

award of an absolute divorce and custody of the child to Husband, its failure to award her alimony

and its division of the marital estate. For reasons hereinafter expressed, we affirm.



                  The evidence presented at trial includes the following: Husband is 47 and Wife is

44. Both have a twelfth grade education. Wife has maintained "a steady stream of jobs outside the

home" since graduation. She currently works as manager of an apartment complex earning a

monthly net income of $520. She is also provided a two bedroom apartment which rents for $225

per month. Her past employment has primarily consisted of secretarial and managerial positions

paying minimum wage. Husband has been employed with Freed-Hardeman University for

approximately 18 years and currently earns an average gross monthly income of $1,904.06. He has

also worked as an electrician and possesses some carpentry and plumbing skills.



                   Wife testified that she was forced to flee the marital home in August 1992 due to

Husband's verbal and physical abuse. She described incidents of Husband cursing, pushing and

hitting her. Husband stated that Wife began to withdraw from the family approximately four years

prior to the divorce proceedings. He suspected problems in the marriage when she began talking on

the phone sometimes until 10:00 at night and "all the time" during weekends. He stated that the

major difficulty in the marriage involved Wife's lying and her unexplained absences from the home

which began during the last couple of years of the marriage. According to Husband, these absences

could last anywhere from several hours to several days and, if he inquired about Wife's whereabouts,

she either lied to him or simply provided no explanation. Husband complained that Wife spent no

time with him or their son. When questioned, on cross-examination, "[h]ave you ever left the

household and ever stayed out at night when no one knew where you were, . . . ?", Wife responded,

"[y]es, I have." Husband denied ever physically abusing Wife. He admitted cursing her, but stated



        1
            Another child born of the marriage was an adult at the time of trial.
that his arguing in such manner mostly occurred after Wife began leaving the marital home without

explanation. He believed this behavior on his part "wrong," but denied that it was the reason for the

breakup of the marriage. He admitted to an extramarital relationship after the parties separated.



                   Mozel Blakely, Wife's aunt, also testified that on occasion other family members

would inquire from her as to Wife's whereabouts, insisting that Wife told them that she would be

spending the night with her aunt. Ms. Blakely stated, "[t]he whole family didn't know where she

was. Just in a mad rage she'd take off and leave and didn't anybody know where she was." Ms.

Blakely stated that this happened many times, disturbing everyone on the weekend and that Wife

never stayed the night with her.



                   Wife admitted making two withdrawals in July 1992 of approximately $19,000 from

the couple's savings account and taking certain items of personalty with her when departing the

home. Husband testified that he did not know the funds were being withdrawn. Wife stated that her

living expenses since the separation have totalled $27,457.99 and that Husband did not provide any

funds for these expenses, other than child support.2



                   Wife stated that she was the primary caretaker of Jonathan during the marriage. She

purchased his clothing, made certain he received medical attention when needed and was the primary

disciplinarian. She complained that Husband rarely disciplined Jonathan and, on the few occasions

he did, it was handled poorly by cursing the child. Both parties attended parent/teacher conferences

at Jonathan's school and participated in certain school activities involving their son. Wife testified

that Husband transported Jonathan to and from school "once or twice a week." She stated that all

three attended church, although Husband failed to go at times, and that she taught some Bible

classes. Wife believes that she is more fit to care for Jonathan because "a ten-year-old child should

live with his mother." She also believes that Husband's cursing and failure to discipline his son

negatively influences him. She expressed a dislike for Husband's attempts to "buy" his son and

claimed that Husband had spoken badly about Wife to Jonathan. In professing love for her son, she

acknowledged Husband's love for him also. Wife admitted cursing in the child's presence.


         2
             Wife was awarded temporary custody and child support in the amount of $306.39 per
month.
               Husband believes himself more fit to care for Jonathan, citing the inadequate amount

of time spent by Wife with her son. Husband stated that, since the separation, Wife often times

leaves Jonathan with someone else or has someone else pick him up from school. He testified that

during the marriage Wife sometimes refused to take care of Jonathan when it was necessary for

Husband to work on the weekends and, thus, Jonathan would accompany his father to the work site.

Also, Husband has considered the many activities that he and his son partake, including hunting,

fishing and baseball. Husband has, in the past, coached his son's baseball team. Husband denied

ever verbally or physically abusing Jonathan. He declared, "I can give [Jonathan] a good home. I

can stay with him. . . I can take care of him, for I don't think he's being taken care of with [Wife]."

On cross examination, however, Husband agreed that Wife has been a good mother to her son.



               The trial court heard additional testimony relating to the custody issue from various

friends and family members. Wife's sister and two aunts testified that they believe Husband the

better parent to care for Jonathan. Melton Sewell, president of Freed-Hardeman, testified that

Husband is "a devoted father" and that "[he] loves his son." Dee Letty Shires testified that Wife and

her son have a "good relationship" and that Wife is a "good mother." She described an incident

when children were playing baseball in the Cupples' backyard and Husband became very upset,

cursing and telling everyone to leave. Husband refuted this testimony. The trial court also

conducted an in chambers conference with Jonathan regarding his choice for custody upon Husband's

"Motion for Expression of Child Custody Preference."



               The marital real estate, consisting of 26 acres, was purchased at various times during

the marriage from Wife's parents or her father, after her mother's death. The marital home was

constructed on a portion of this property. Wife requested that she be awarded this realty because she

"was born and raised on this property" and had "lived there for forty-four years." The road on which

the marital realty is located is named McGill, her maiden name. Her grandparents lived on adjoining

property. She identified certain other property, which is surrounded by the marital realty, as her

father's home prior to his death. This property was devised to Wife by her father in his will.



               The final decree awarded an absolute divorce and custody of Jonathan to Husband,

with Wife receiving liberal visitation. Wife was ordered to pay child support in the amount of
$120.96 per month. Husband received the marital residence and accompanying acreage, with an

agreed value of $76,800. Each party received his or her IRA, valued at $1,104 and $5,700,

respectively. Husband was awarded the furniture remaining in the home, approximately $30,500

from his pension and various other items of personalty valued between $5,000 and $9,000. Husband

was ordered to assume paying two debts totalling $7,600. Wife was awarded the savings account

in the approximate amount of $22,000 which she closed, a 1985 Blazer, valued at approximately

$5,000, the household furnishings in her possession and the remaining balance of Husband's pension,

approximately $61,000. She was also awarded $3,000 in attorney's fees.



               Wife presents the following issues on appeal:



                        I. Whether the trial court erred in awarding custody of the
               parties' minor child to Husband.

                      II. Whether the trial court erred in awarding an absolute
               divorce to Husband.

                      III. Whether the trial court erred in failing to award alimony
               to Wife.

                      IV. Whether the trial court erred in its division of marital
               property.



               Wife's first issue concerns the trial court's custody award. The "Order for Absolute

Divorce" indicates that the court's decision to award custody to Husband was "[b]ased on all of the

testimony, including that of the family members, . . . . " Wife argues that the testimonies of her

relatives, on which the trial court "relied heavily," reveal a lack of any real personal knowledge on

their part regarding the relative fitness of the parties and do not support an award of custody to

Husband. Indeed, all three of Wife's relatives testified that they were infrequent visitors to the

parties' home during the marriage. Their limited encounters with the family, however, including

those with father and son since the separation led them to conclude that Husband was the better

custodial parent for Jonathan.



               Wife's argument appears directed at the apparent weight given these testimonies by

the trial court. The weight, faith and credit to be given to any witness' testimony lies in the first

instance with the trier of fact and the credibility accorded will be given great weight on appeal. Leek
v. Powell, 884 S.W.2d 118, 120 (Tenn. App. 1994). The trial court's judgment expressly states that

the testimonies of all witnesses were considered, including that of the parents and child, when

awarding custody to Husband. Having reviewed the entire record in this case in accordance with

Rule 13(d) T.R.A.P., we cannot say that the evidence preponderates against the trial court's findings

regarding custody of this child.



                Wife additionally challenges the trial court's custody decision based on the fact that

her son was not placed under oath when testifying as to his preference before the trial judge. Prior

to amendment in 1994, T.C.A. § 36-6-102(a) and (b) read as follows:



                In a suit for annulment, divorce or separate maintenance, where the
                custody of a minor child or minor children fourteen (14) years of age
                or older is a question, the court shall, upon the sworn motion by either
                party that such child or children has expressed a desire to make his or
                their custody preference known to the court, and prior to the award of
                care, custody and control of such child or children, seek the
                preference of such child or children relative to the parent with whom
                he or they desire to live. The court, in its discretion, may receive the
                testimony of such child or children out of the presence of the parties
                to such action. The preference of such child or children shall not be
                binding upon the court but shall be a factor the court shall consider in
                determining which parent, if either, should be awarded care, custody
                and control of such child or children.
                        (b) If the child or children in question is under fourteen (14)
                years of age, the court, using the same procedure as is set out in
                subsection (a), may consider the preference of the child or children
                relative to the parent with whom he or they desire to live.



Wife relies upon Rule 603 of the Tennessee Rules of Evidence and the Tennessee Court of Criminal

Appeal's decision, Hewlett v. State, 517 S.W.2d 760 (Tenn. Crim. App. 1974), to argue her position.

Rule 603 provides that "[b]efore testifying, every witness shall be required to declare that the witness

will testify truthfully by oath or affirmation, administered in a form calculated to awaken the

witness's conscience and impress the witness's mind with a duty to do so." An issue in Hewlett was

whether the trial court erred in failing to grant defense counsel's motion for a mistrial after the trial

court inadvertently received a witness's unsworn testimony. After discovery by counsel, the witness

took oath that his prior testimony was truthful. Hewlett found the trial court's hearing of such

testimony insufficient grounds for reversal and, in quoting 98 C.J.S. Witnesses, § 320, reasoned as

follows:
               "The admission of unsworn testimony in a case is a mere irregularity
               which violates no constitutional provision, and does not [affect] the
               jurisdiction of the tribunal, and if unsworn testimony is received in
               evidence without objection, it may be considered the same as any
               other evidence in the case."



Hewlett, 517 S.W.2d at 766-67 (alteration added). The record before us does not reflect that counsel

objected to the taking of the child's unsworn testimony at the trial level. A party may not save an

infirmity in the proceedings as an "ace in the hole" to be used in case of an adverse decision or

suppressed in event of a favorable decision. Harwell v. Walton, 820 S.W.2d 116, 120 (Tenn. App.

1991). We conclude that Wife has waived this argument on appeal.



               Wife next questions the trial court's award of an absolute divorce to Husband, arguing

that the evidence clearly reveals that the precipitating factor in the breakup of the marriage was

Husband's physical and verbal abuse. As to this issue, the final decree reads:



               In this cause, the Court is of the opinion that Mr. Cupples should be
               granted an absolute divorce from Ms. Cupples, based on the
               testimony of her unexplained absences from the home, which
               amounts to inappropriate marital conduct. The activities of Ms.
               Cupples caused the separation of the parties and the dissolution of the
               marriage. The Court recognized that Mr. Cupples did have an
               adulterous relationship long after the parties had separated, which was
               not a factor in this unfortunate divorce case.



               The record presents conflicting testimony as to the reason behind Wife's departure

from the marital home. Wife asserts that she left due to Husband's abuse. Husband admits using

inappropriate language with Wife, but denies any physical abuse. He further testified that the verbal

abuse was prompted by Wife's unexplained absences from the home and unwillingness to associate

with Husband and child. Obviously, a credibility issue is presented and from the decision rendered,

it is clear that the trial judge accredited Husband's testimony. The trial court's findings of fact

dependent upon the credibility of witnesses are entitled to great weight by this Court. See Gilliam

v. Gilliam, 776 S.W.2d 81, 84 (Tenn. App. 1988). We conclude that a preponderance of the

evidence supports the trial court's award of an absolute divorce to Husband.



               As to the division of marital property, Wife first challenges the trial court's
consideration of the couple's savings account, in the approximate amount of $22,000, when dividing

the estate. She argues that these funds were used to defray her necessary living expenses after the

couple's separation and should not have been considered when dividing the estate because they no

longer existed at the conclusion of trial. It is undisputed that these funds represented the couple's

joint savings over a 25 year period. The fact that Wife chose to withdraw the funds prior to trial and

deplete this asset within a fifteen month period does not affect its classification as marital property,

subject to division. Furthermore, Wife's position that the entire funds were utilized as necessary

living expenses is not supported by the record. During the time period of the couple's separation,

Wife's net earnings, including the apartment rental value, totalled $745. Husband provided child

support in the amount of $306.39 per month, for a total of approximately $1,050. Wife's financial

affidavit lists her monthly living expenses at an additional $300, but is admittedly based on Wife's

projected living expenses if she were awarded the marital home and custody. She testified that she

could live "some cheaper" by residing in her apartment. We find no error by the trial court in

considering this asset when dividing the marital property. Wife also questions the amount awarded,

arguing that she only withdrew approximately $18,000. If there be any miscalculation by the trial

court in this regard, we do not find it to render the court's division inequitable.



                Wife further argues that an equitable distribution requires that she be awarded the

marital home and 26 acres because it is her ancestral property. The record establishes that this real

estate was purchased during the couple's marriage and that both parties physically assisted in the

construction of the residence. We note that in dividing the marital estate, T.C.A. § 36-4-121(d)

provides that courts "shall give special consideration to a spouse having physical custody of a child

. . . of the marriage" when making an award of the family home. Certainly this was considered by

the trial court when awarding the marital residence to Husband. We appreciate the sentimental

attachment that Wife has for this property, but point out that our decision in no way prohibits her

from residing in the immediate area, and on McGill Road if she chooses, due to her ownership of

the property devised under her father's will. We conclude that no error was committed by the trial

court in this regard.
               Finally, we address Wife's issue regarding the trial court's failure to award alimony.3

Need and ability to pay are the cornerstones for awarding alimony. Fault is also to be considered.

Gilliam, 776 S.W.2d at 86. Wife has requested alimony in the amount of $500 per month. We are

satisfied that when considering all relevant factors, including the parties' attainment of the same

education level, Wife's possession of some marketable job skills and the marital assets awarded

Wife, no error was committed by the trial court in failing to award additional alimony.



               The judgment of the trial court is affirmed and this cause remanded for any further

proceedings herewith consistent. Costs are taxed to Cheryl Ann Cupples, for which execution may

issue if necessary.



                                                      ________________________________
                                                      FARMER, J.



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



______________________________
McLEMORE, Sp. J. (Concurs)




       3
         The record establishes that the trial court awarded attorney's fees to Wife, which we treat
as alimony. See Gilliam, 776 S.W.2d at 86. Thus, we consider this issue in respect to the trial
court's failure to award any additional alimony.
