                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON


JOEL R. SUMMERS,

            Plaintiff/Appellee,
                                      )
                                      )                            FILED
                                      ) Carroll Chancery No. 96-DR-123
                                      )                             October 14, 1998
VS.                                   ) Appeal No. 02A01-9709-CH-00230
                                      )
                                                                   Cecil Crowson, Jr.
LISA CAROL SUMMERS,               )                                Appellate C ourt Clerk
                                      )
            Defendant/Appellant.      )


        APPEAL FROM THE CHANCERY COURT OF CARROLL COUNTY
                    AT HUNTINGDON, TENNESSEE
             THE HONORABLE WALTON WEST, CHANCELLOR




C. DAVID JONES
THE JONES LAW FIRM
Huntingdon, Tennessee
Attorney for Appellant


STEVEN L. WEST
WEST & WEST ATTORNEYS
McKenzie, Tennessee
Attorney for Appellee




AFFIRMED




                                                        ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.



      Defendant, Lisa Carol Summers, (hereinafter referred to as “Wife” or “Ms.
Summers”) appeals the trial court’s order granting divorce to both parties, awarding

custody of the minor child, Joseph, to Plaintiff, Joel Russell Summers (hereinafter referred

to as “Husband” or “Mr. Summers”), awarding the marital residence to Husband, valuing

the marital residence at $130,000.00, and awarding Husband a lien against one half of the

child support arrearage Wife might collect for her two children from a previous marriage.



                            I. Factual and Procedural History



       The parties were married in 1984. Wife had two children from a previous marriage,

a son, age 18 at the time of trial, and a daughter, age 15 at the time of trial. One child was

born of the marriage, a son, born August 1992.



       During the parties’ marriage, Wife attended college beginning in 1986. She

graduated in 1990. During the process of Wife’s obtaining a college degree, Husband

assisted in supporting his wife and rearing of her two children.



       Husband complains that serious problems began between the parties in January of

1996. He objected to his wife staying away from home overnight on what he considered

a frequent basis. He insists that Wife did not consult him about these business and

personal trips nor did she ask him to accompany her. He further contends that his wife

would not reveal the location where she was staying on these trips, providing him only with

a beeper number of the woman traveling with her. He maintains that Wife pursued her

own interests while he stayed at home with the children.



       Additionally, Husband complained that Wife frequented drag races wearing “tight

tops” and “tight shorts” which he considered inappropriate attire. He further objected to

Wife’s intentions to get a tattoo and complained that Wife was dressing like a teenager and

paying unusual attention to tanning, running, and walking.

       Husband testified that when Wife was taking up night classes, she would often

return home during the early morning hours even though her classes were finished at 9:00



                                              2
p.m. He further alleged that Wife had a “hickey” on her neck upon arriving home after one

of her business trips to Murfreesboro, Tennessee.



       Wife denied all of the above alleged acts or conduct on her part.



       Husband admitted asking his wife if she was having an affair with one man and

questioning her about an affair with another man and with another woman. In January

1996, Wife moved out of the house due to the parties’ arguing and stayed gone for five

days. Wife’s son from a previous marriage remained in the home of the Husband during

that time period. Wife returned to the marital home for the sake of her daughter from a

previous marriage and for the sake of the parties’ son. Thereafter, there was not much of

a relationship between the parties.



       As mentioned above, Wife began taking night classes in Jackson, Tennessee, in

April of 1995. This lasted for several months. Wife testified that she left immediately after

the classes were over and went directly home.



       Wife works in the computer industry. Her job has required that she travel overnight

for various projects and assignments. She testified that in the summer of 1995 her

husband became agitated due to her trips and because she would bring work home with

her due to her increased responsibility. In July 1995, Wife had to be away from home for

approximately one week due to a job assignment. Thereafter, in September of 1995, she

had to again be away from home for approximately one week, and she says her husband

became “irate” because she was having to stay away from home.



       Wife stated that Husband is envious of her job. She also indicated that Husband

preferred staying home rather than taking trips. During the course of her business

assignments, she has been to California, Las Vegas, and on five or six occasions to New

York. Trips to Mexico may be in her future with her present employer.




                                             3
       Wife denies any affairs with co-workers but acknowledges that fact that there were

rumors at her place of employment concerning a co-worker and herself. In addition to the

above, Husband inspected Wife’s underwear, and based on these inspections, made

certain accusations about wife’s sexual involvement with another person. Wife testified that

these accusations made her “feel awful.” She was hurt by the fact that her husband would

examine her underwear with these suspicions.



       Dustin Vaughn, the eldest son of Mrs. Summers, testified that he and Mr. Summers

had a good relationship and that Mr. Summers had always treated him good and helped

to provide for him as well as his sister. He also testified that during the twelve years that

Mr. Summers helped to care for him that he had not had any contact with his biological

father, and that his biological father had not provided any support for him. Dustin also

testified that Mr. Summers was a “good” dad and got along with Joseph (the minor son of

the parties) “great.”



       Dustin also testified that there was one occasion that there was a party at Mrs.

Summers’ home after the separation where there were kids at the party under the age of

twenty-one who were drinking alcoholic beverages. Dustin stated that he had not asked

his mother permission to have a drinking party but that his mother had said to him on prior

occasions that she would rather have him and his friends drink at her home where they

would not be out driving. Dustin indicated that some of those who had been at Mrs.

Summers’ house drove their cars home. Dustin also indicated that at the time he lived at

Mr. Summers’ home when friends came over there was never any drinking in the home of

Mr. Summers.



       Dustin testified that Mr. Summers was the individual who primarily took care of the

discipline in the home. He testified that Mr. and Mrs. Summers shared the housework at

the time they lived together.



       Dustin testified that he felt welcome to go visit with Mr. Summers and to go see him



                                             4
and that he could go over to see Joseph any time he wanted to. He also testified that he

worked two jobs and that when he was not working he did other things that eighteen year

olds do such as “tour the strip,” go to his girlfriend’s house, and call his friends on his car

phone. He sees Joseph around his other schedule.



       The minor daughter of Mrs. Summers, Emily, testified that she and Mr. Summers

got along “ok” and even though he was her step-dad that he treated her like a “dad” would.

She testified that Mr. Summers was a good father to Joseph. She testified that Mr.

Summers did cooking cleaning and “stuff like that.” She also testified that she felt

comfortable in calling Mr. Summers if she needed anything and that she would feel

comfortable going to his house to visit with the minor child Joseph, although she would

prefer to have Joseph live with her at her house.



       Jessica Ward, friend of Emily Summers, testified that pursuant to conversations with

Emily, she felt that Emily wanted Joseph to live with Mr. Summers in that she did not want

to have to be responsible for Joseph. Emily denied any such statements to, or

conversations with, Jessica.



       There was testimony from Joseph’s day care teacher that Joseph and Mr. Summers

had a good relationship and that Joseph always wanted to give his dad a hug. Linda

Summers, sister-in-law of Mr. Summers, testified that in her opinion it would be in Joseph’s

best interest to be with his father. It was her opinion that Mr. Summers had pretty much

raised the child and was always there for Joseph and had made accommodations for the

child. She testified that she and her husband were willing to watch Joseph at Mr. Summers

home on those occasions when he might be called into work at night.

       Cindy Summers, sister of Mr. Summers, testified that she is a teacher at Bethel

College, where she teaches sociology and has a degree in education with preschool and

elementary certification, with a graduate degree in social work. She testified that when Mr.

Summers and his son Joseph are together that Joseph is calm, that he listens, that he

interacts well with the people he is with, that he shares and is calm and peaceful, and is



                                              5
very pleasant to be around. She also testified that in her observations of Joseph when he

is around his mother, Joseph would scream and be very loud, unsettled and attention

seeking with a lot of acting out behaviors. She testified that Mr. Summers had been

Joseph’s caretaker all of Joseph’s life and that Mr. Summers also raised Mrs. Summers’

other two children. She indicated the child would be better off with Mr. Summers in that he

was the stabilizer and is a very positive force in the child’s life and puts the child first.



       Terry King, sister of Mrs. Summers, testified that the parties took care of Joseph 50-

50. She testified that Mrs. Summers is a good and responsible mother, that Mrs. Summers

loves Joseph dearly, and that she and Joseph have a very good relationship.



       Dorothy Coleman, mother of Mrs. Summers, testified that Joseph interacts with his

mother, brother and sister and is very happy with them. She testified that he receives love

and affection and that he is also disciplined and is being taught the difference between

right and wrong.



       There was also testimony of the work schedules and work commitments of both

Husband and Wife. Husband works as a mortician at a funeral home. His job

responsibilities include picking up bodies from the local hospitals and embalming them at

the funeral home. During the marriage he was frequently “on call” and therefore could be

called away on work at any time of the night. Mr. Summers testified that if he was awarded

custody of Joseph, his work schedule would change so that he would only be on call one

night each week and on alternating weekends. He also testified that his brother and his

brother’s wife would watch Joseph at his home for any hours that he was called away for

work so that his son would not have to be awakened from his sleep. He testified that if he

was awarded custody of Joseph, there would not really be any change in his son’s

schedule.



       There was much testimony on the business trips which were taken by Mrs.

Summers. Mrs. Summers testified that she will not be traveling for business in the future.



                                               6
Kathy Mann, work supervisor of Mrs. Summers, testified that overnight stays at some of

the stores were necessary and that it is a continuing part of Mrs. Summers’ job and she will

be required to do that in the future. She later testified that another employee will be the one

normally going on the trips to the outlet stores, but Mrs. Summers will have to go if it is

involved with the plant and Ms. Mann is unable to go. There was testimony that Mrs.

Summers would attend a seminar or conference once a year. Mrs. Summers may also

have to go to Mexico for a week to train the employees there.



       In the Memorandum Opinion, the trial court held there was sufficient evidence to

grant a divorce to both parties. On the custody issue, the trial court noted that both parents

have contributed significantly to the rearing and upbringing of their son. The trial court also

noted that it is apparent that both parents love their son very much and have developed

a positive relationship with him. The trial court stated that both parents are suitable and

proper parents to have custody of their child. The court then found that Mr. Summers may

be in a position to provide a more stable home environment in the future and for remaining

in the area with family members considering his type of employment as compared to Mrs.

Summers, primarily due to her travel requirements and relocation possibilities. The trial

court awarded custody to Mr. Summers with Mrs. Summers being allowed liberal visitation.



       The marital residence consists of a house and a 128-acre farm. Mr. Summers gave

his opinion that the fair market value of the property was $115,000. He testified that this

value was a higher value than the value placed upon the home for tax purposes, and that

he considered the price that others had indicated they would be willing to pay for the

property. Mrs. Summers wished to put on appraisal testimony that the house was worth

$144,000. However, the Chancellor had told the attorneys to put on all their proof as it

related to the property issues at the February 1997 phase of the trial and would not allow

this appraisal testimony at the later hearing date. Mrs. Summers then testified that the

property was worth $144,000 in her opinion. The trial court valued the property at

$130,000, awarded the marital residence to Mr. Summers and ordered that he pay Mrs.

Summers her half interest in the equity within sixty (60) days from entry of the judgment.



                                              7
       There was also testimony in the case regarding child support due to Mrs. Summers

from her previous Husband for the support of Mrs. Summers two children, Dustin and

Emily. There was a child support order which required the father of these children to pay

the sum of $200.00 per month as support. He did not make any payments during the

course of this marriage between Mr. and Mrs. Summers. There was testimony that Mr.

Summers supported them financially and assisted in their rearing as a father would do. The

trial court awarded Mr. Summers a lien on one half of any future recovery of this past due

child support by Mrs. Summers.

       This appeal by Mrs. Summers followed.



                                         II. Divorce



       Findings of facts are reviewed de novo with a presumption of correctness. Wife

contends that the trial court should have granted the divorce solely to her. Tennessee

Code Annotated §36-4-129(b) gives the Chancellor authority to grant the divorce to both

parties if upon the proof both parties are entitled to a divorce. Every intendment is in favor

of the correctness of the decree of the trial court. Farrar v. Farrar, 553 S.W.2d 741, 743

(Tenn. 1977).



       The trial court found that there was insufficient evidence presented for the court to

conclude that Mrs. Summers was not faithful. However, the trial court found that

circumstances existed which would have justified Mr. Summers questioning the fidelity of

his wife. The Court then stated that Mr. Summers was not understanding of the nature of

his wife’s job which necessitated frequent travel. Mr. Summers made accusations about

his wife’s conduct which often were not based on fact. The trial court found that both

parties contributed to the dissolution to the extent that both should be granted the divorce.



       There was testimony that Wife took several overnight trips without Husband.

Husband was never invited along on these trips. There was testimony that Wife drank and

went out to dance clubs during some of these overnight trips. Wife returned from one



                                              8
overnight trip with a bruise on her neck that resembled a “hickey.” Husband testified that

Wife would act differently toward him upon her return from these trips. There was

testimony that rumors were circulating at Wife’s job regarding Wife and a co-worker.

Sexual relations between the parties became almost nonexistent, and Wife frequently did

not sleep in the same bed as Husband. There was testimony that Wife frequented drag

racing events, where Husband stated she would wear tight tops and tight shorts which he

thought were inappropriate attire.



       While there was no direct proof that Wife was unfaithful, there was equally

insufficient evidence to conclude that she was not unfaithful. The trial judge in this case

had to base his judgment and findings upon oral testimony. The trial judge thus had to

assess the credibility of the parties. While many of the facts in this case were disputed by

the parties, such findings on review must be regarded as conclusive unless other real

evidence compels a contrary conclusion. McReynolds v. Cherokee Ins. Co., 815 S.W.2d

208, 210 (Tenn. App. 1991); Airline Constr., Inc. v. Barr, 807 S.W.2d 247, 264 (Tenn. App.

1990). The trial court found that circumstances existed which would have justified Mr.

Summers’ questioning the fidelity of his wife. We hold that the evidence does not

preponderate against this finding and the Trial Court did not err in granting a divorce to

both parties.



                               III. Custody of Minor Child



       The parties have a son who was near age five at the time of the divorce. The trial

court awarded custody to Husband. Wife contends that the trial court erred in this

determination of custody.



       In child custody cases, appellate review is de novo upon the record, with a

presumption of correctness of the trial court’s factual findings. Tenn. R. App. P. 13(d); Hass

v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). The paramount concern in child custody

cases is the welfare and best interest of the child. Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct.



                                              9
App. 1983). The goal of every custody proceeding is to place the child in an environment

that will best serve his or her physical and emotional needs. Lentz v. Lentz, 717 S.W.2d

876, 877 (Tenn. 1986). In determining where the best interest of the child lies when

awarding custody, the court considers many factors. A nonexclusive list of such factors can

be found in Bah v. Bah at 666.

              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 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 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 in the alternatives afforded,
              both positive and negative; 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.

       As a general rule it is not good to separate minor children. Terry v. Terry, 361

S.W.2d 500, 504 (Tenn. Ct. App. 1960). In the case at hand, Husband was awarded

custody of the parties’ five year old son. Wife had two children by a previous marriage that

remained in her custody. The children, a girl and a boy, were ages 15 and 18 respectively

at the time of the divorce. The trial court cited a case in which the court held that where

children were of different sexes, and where there was an age difference of six (6) years,

it was not as important for the two children to remain together in the same custodial

domicile as it would have been if they were much closer in age and were of the same sex.

Cease v. Cease, Slip Opinion, (Ct. App. M.S., Nov. 1981).



       In the case of Dodd v. Dodd, 737 S.W.2d 286 (Tenn. Ct. App. 1987), the parties had

three minor children and the court awarded custody of one daughter to the Husband and

the other two daughters to the Wife. The Guardian Ad Litem was of the opinion that the

younger two sisters were closer to each other than to the older sister. While their

respective ages were not mentioned, the GAL commented that “considering the

comparative ages of the children, this is understandable.” Id. at 291. The court in Dodd

stated that it must consider the welfare and best interests of these children as individuals,


                                             10
not as a group of three. Id. The court found that while both parents were fit parents, it was

in the best interest of the eldest child to be placed in the custody of her father. The court

found that the younger two daughters, being closer in age, enjoy a close relationship, and

should be kept together in the custody of the mother. Id.



       In the case at hand, the parties’ son is age five and his half-sister is age 15. There

was testimony, although disputed, that the half-sister Emily, while loving her half-brother,

did not want to have to be responsible for him. There was testimony from Emily that she

felt comfortable in calling Mr. Summers if she needed anything and that she would feel

comfortable going to his house to visit with the minor child Joseph.



       Wife also contends that the trial court should have considered, in the case of this

child of tender years, the gender of the parent, namely, the mother, as a factor in

determining custody of the child. At the time this case was heard, Tenn. Code Ann.§36-6-

101(d) read as follows:

              It is the legislative intent that the gender of the party seeking
              custody shall not give rise to a presumption of parental fitness
              or cause a presumption in favor or against the award of
              custody to such party; provided, that in the case of a child of
              tender years, the gender of the parent may be considered by
              the court as a factor in determining custody after an
              examination of the fitness of each party seeking custody.

In July of 1997, the statute was amended inserting the language “or constitute a factor” and

deleting any reference to the former language constituting the “tender years doctrine” thus

eliminating any gender-based preference. However, even under the Statute as it read at

the time of trial, no presumption of parental fitness existed in favor of the mother. There

is no evidence in the record that the trial court did or did not consider tender years as a

factor in making its determination. However, the statute reads that such a factor may be

considered by the court. Therefore, even if the trial court did not choose to consider this

as a factor, this Court finds no error with such action.



       The various factors to consider in custody decisions are set out in Tenn.Code Ann.

§36-6-106. After applying the factors to the present case, the trial court was unable to



                                             11
ascertain any real distinctions between the parties as relates to their parenting abilities and

the best interest of the child. The trial court did find that during the course of the marriage

that Mr. Summers had to assume more individual responsibility for his son and step-

children on various occasions due to business and personal trips taken by Mrs. Summers

and that he was a competent parent during these times. The trial court then stated that Mr.

Summers may be in a position to provide a more stable home environment in the future

and for remaining in the area with family members considering his type of employment as

compared to Mrs. Summers, primarily due to her travel requirements and relocation

possibilities. The trial court ultimately awarded custody to Mr. Summers.



       The factual findings of the trial court are entitled to a presumption of correctness.

Trial Courts are vested with wide discretion in matters of child custody and the appellate

courts will not interfere except upon a showing of erroneous exercise of that discretion.

Koch v. Koch, 874 S.W.2d 571 (Tenn. Ct. App. 1993). There were many disputed facts in

this case which called the credibility of the witnesses into account. Based upon the

foregoing standards of review, and upon careful consideration of the record, this Court

finds that the evidence does not preponderate against the trial court’s ruling and affirms

the award of custody to Husband.



                                   IV. Marital Residence



       The trial court awarded the real property to Husband and ordered him to pay to Wife

her one half interest in the equity within sixty (60) days from the entry of the judgment. Wife

argues that the trial court should have ordered the property sold or, alternatively, valued

the property at $144,000.00.



       Property division is reviewed de novo with a presumption of correctness. Allowing

the party granted custody to remain in the marital residence is common in property

divisions. Tennessee Code Annotated §36-4-121(d) states, “The court may award the

family home and household effects, or the right to live therein and use the household



                                              12
effects for a reasonable period, to either party, but shall give special consideration to a

spouse having physical custody of a child or children of the marriage.” As this Court has

affirmed the award of custody of the minor child to Husband, this Court also affirms the trial

court’s holding allowing Husband to retain the marital residence.



       The trial court found the value of the real property to be the sum of $130,000.00.

The Husband testified that in his opinion the real property was worth $115,000.00. Wife

testified that the real property was worth $144,000.00. The trial judge apparently split the

difference to arrive at the value of $130,000.00. Wife argues that the testimony of the

appraiser should have been allowed to establish the value at $144,000.00.



       This case was tried to the judge on several different dates. At the hearing on March

19, 1997, Wife tried to offer into evidence the appraisal which was done on the house.

Husband’s attorney objected on the grounds that this matter should have been discussed

at the previous hearing (February 1997), and it was agreed and understood that only the

parties and possibly Mr. Drewry would be testifying at the present hearing. The trial judge

stated the following:

              I’ve already indicated to you all by phone conference, and we
              can address it later, and I’ll state it for the record now-- that I
              told you all then to put on all your proof as relates to the
              property issues, and it was clearly understood that I was going
              to continue the matter today for matters of custody and
              testimony between the parties as relates to property and -- and
              then to, as I’ve indicated to you, to come in after the fact now
              and start wanting to have appraisals or other testimony, in my
              opinion, is not an appropriate procedure, and I’ve already
              indicated that to you by phone and I’m not going to allow the
              appraisal today for the purposes of this hearing. Not that I’d
              consider the appraisal -- I don’t even know what it is. It’s just a
              matter as I indicated to you, Mr. Jones and Mr. West, a matter
              procedurally that was not the understanding that we had. And
              there was no just cause given to the Court as to why it could
              not have been done prior to the last hearing when the matter
              was set for trial. And had there been some reason given, the
              Court certainly might have considered it. But as I recall, there
              was no reason given. And again, I emphasize that when I set
              a case for trial, I expect it to be ready to go for trial as far as all
              elements of proof are concerned and not be taking testimony
              and -- after the trial has started under these circumstances.


       One of the most important functions of a trial judge is to control the admission of the



                                               13
evidence. Trial judges have broad discretion over the admissibility of evidence, Otis v.

Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.1992); Witter v. Nesbit, 878

S.W.2d 116, 122 (Tenn. Ct. App.1993), and the order of the proof. Morris v. Swaney, 54

Tenn. (7 Heisk.) 591, 595 (1872); Long v. Tomlin, 22 Tenn. App. 607, 623, 125 S.W.2d

171, 181 (1938). The matter of establishing the order of proof is within the Trial Court's

sound discretion and will be reversed only when the trial judge has abused that discretion

and where it can be demonstrated that the error has affected the substantial rights of one

or both parties. Tenn. R. Evid. 103(a); Castelli v. Lien, 910 S.W.2d 420 (Tenn. Ct.

App.1995); Bowers v. Bowers, 956 S.W.2d 496, 499 (Tenn. Ct. App. 1997).



       Both parties were given the opportunity to present evidence on the value of the

home at the February 5, 1997 hearing in this matter. Both parties were aware that the

matter was set for trial on February 5, 1997 and both parties called witnesses at this

hearing. Neither party had an appraisal as of the February trial date. The trial lasted longer

than one day and the Judge expressed that the next hearing would be for the purpose of

hearing testimony from the parties. The trial judge stated that had just cause been given

to the Court as to why the appraisal could not have been done prior to the last hearing

when the matter was set for trial, he certainly might have allowed the testimony. However,

no reason was given by Wife. Both parties put on evidence as to their opinion of the value

of the property. This Court finds that the trial judge did not abuse his discretion and the

value of the property shall stand at $130,000.00.



       Wife argues that the farm has lost money over the past three years and that the

property should be sold at auction, where it would bring a fair market price. Wife testified

that according to the parties’ income tax returns, the property had lost more than twenty

thousand dollars over three years. On cross examination, it was brought out that the farm

loss as reflected on the parties’ income tax returns may have been the product of

depreciation and other allowable deductions. However, as this Court has affirmed the

value placed upon the property by the trial court, the issue of whether the farm is losing

money is largely irrelevant. The trial court valued the property at $130,000.00, subtracted



                                             14
the debt on the property of $28,000.00 and found the net equity to be $102,000.00. The

trial court ordered the Husband to pay to the Wife her one half interest ($51,000.00) in the

property. Therefore, Wife will receive her one half interest in the property as it was valued

at the time of divorce. Whether the farm loses money or gains money in the future has no

bearing upon the amount awarded to Wife.



       This Court affirms the judgment of the trial court awarding the marital residence to

Husband, with payment owing to Wife of her one half interest in the property. This Court

further affirms the findings of the trial court as they relate to the value of the marital

residence.




                      V. Lien on Future Child Support Recovery



       During the marriage Husband helped provide for the support of the two minor

children of Wife by a former marriage. This fact was not disputed at trial. The former

husband of Wife failed to pay any child support to her during the course of the parties’

marriage and an arrearage accumulated during the marriage in the amount of $28,000.00.

The trial court awarded Husband a lien on one-half of any future recovery of this

$28,000.00 by Wife. Wife alleges that the trial court erred in this award and that such

award would grant a stepparent a windfall profit by taking support away from stepchildren

in case the relationship sours.



       Husband testified that he voluntarily provided love and support to his step-children.

He asserts that Wife would be granted a windfall profit if she were allowed to collect

support in its entirety for the twelve-year period in which Husband had supported the family

in whole or in part. Husband maintains that this asset should remain equally divided among

the parties.


                                             15
      The trial court stated that Mrs. Summers’ prior divorce judgment with her former

husband and father of her two children was and is an executable and enforceable

judgment for child support. The trial judge cited Redmond v. Grunow, 898 S.W.2d 229, 231

(Tenn. 1995) which supports that conclusion. The trial court held that the arrearage

accumulated during the marriage of Husband and Wife is deemed to be an asset in the

form of a judgment acquired by Wife during the marriage.



      This appears to be a case of first impression in Tennessee. Tennessee Code

Annotated §36-5-101 states in pertinent part:

                (a) (5) Any order for child support shall be a judgment entitled
                to be enforced as any other judgment of a court of this state
                and shall be entitled to full faith and credit in this state and in
                any other state. Such judgment shall not be subject to
                modification as to any time period or any amounts due prior to
                the date that an action for modification is filed and notice of the
                action has been mailed to the last known address of the
                opposing parties. If the full amount of child support is not paid
                by the date upon which the ordered support is due, the unpaid
                amount is in arrears and shall become a judgment for the
                unpaid amounts and shall accrue interest from the date of the
                arrearage at the rate of twelve percent (12%) per annum. All
                interest which accumulates on arrearages shall be considered
                child support. Computation of interest shall not be the
                responsibility of the clerk.

Thus, when support is not paid by the date it is due, it is automatically converted into a

judgment for such arrearage by operation of law.



      The judgment in Wife’s prior divorce ordered the father of the children to pay the

sum of $200 per month as child support. Each month that support was not paid by the

father of the children, the amount of arrears became an enforceable judgment. The parties

were married while this arrearage accrued and the judgments became enforceable.

Therefore, such arrearage was an asset in the form of a judgment acquired by Wife during

the marriage.



      This Court is mindful that child support is for the primary purpose of supporting the

child. However, the award of the trial court does not take present or future support away

from the two children. The award is designed to reimburse Husband for past support of the



                                                16
children in the event there is a recovery of such support. There was evidence presented

that Husband stepped in and took the place of the father of these children and provided

the support which was not forthcoming from the father. The trial court awarded Father

reimbursement of that support only in the event that Wife recovers such support from the

father of the children.



       In the case of Hoyle v. Wilson, 746 S.W.2d 665 (Tenn. 1988) the Tennessee

Supreme Court stated that the child support obligee does not have to show that arrearages

would be used for the benefit of the children. The Court reaffirmed the existing law that no

such showing is ordinarily required because enforcement of arrearages constitutes a form

of reimbursement for the obligee’s assumption of the entire duty of support during the

period covered by the arrearages. Id. at 677. In the case at hand, Husband and Wife

assumed the entire duty of support of Wife’s two minor children throughout the duration

of their marriage. Both parties are equally entitled to reimbursement for their assumption

of such duty if there is a recovery of such arrearage.



       In the case at hand there was uncontroverted evidence that Husband supported the

children of the Wife during the marriage and that the children did not lead a lesser lifestyle

due to the non-support of the father. If this were a case where the stepparent did not

provide adequate support to the stepchildren or the support provided by the stepparent

was not comparable to the support which was due by the obligor parent, the stepparent

might not be so entitled to share in the recovery of arrearages. This Court does not

address that issue. Nor does this Court address the issue of whether a stepparent would

be entitled to maintain his or her own cause of action against the obligor parent for

recovery of arrearages. Those issues are not before this Court at this time and we

accordingly do not express any opinion on such issues.



       We hold that the trial court did not err in granting Husband a lien on one-half of any

future recovery of the $28,000.00 recovered by Wife.




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                                    VI. Conclusion



      The trial court’s judgment is hereby affirmed. Costs of this appeal are taxed to Wife,

for which execution may issue if necessary.




                                                        HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.




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