                  IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT NASHVILLE
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                                                                        FILED
                                                                          Dec. 16, 1996

                                                                        Cecil Crowson, Jr.
                                                                          Appellate Court Clerk

KENNETH DALE NANCE,                            )
                                               )        HENRY CHANCERY
     Plaintiff\Appellant                       )
v.                                             )
                                               )
TINA LOUISE NANCE,                             )        Appeal No. 02A01-9603-CH-00042
                                               )
     Defendant\Appellee                        )




        APPEAL FROM THE CHANCERY COURT OF HENRY COUNTY
                      AT PARIS, TENNESSEE
            THE HONORABLE WALTON WEST, CHANCELLOR




W. BROWN HAWLEY, II                            THOMAS V. VENTIMIGLIA
TERESA McCAIG MARSHALL                         117 East Wood Street
308 W. Washington St.                          Paris, TN 38242
Paris, TN 38242                                Attorney for Appellee
Attorneys for Appellant




AFFIRMED

                                               WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

ALAN E. HIGHERS, JUDGE

HOLLY LILLARD, JUDGE
                                         OPINION
         Custody of the five-year old son of these parties was awarded to his mother,

the propriety of which the appellant-father questions. Our review of the findings of

the trial court is de novo upon the record of the trial court, accompanied by a

presumption of the correctness of the finding, unless the preponderance of the

evidence is otherwise. TENN. CODE ANN . § 50-6-225(3)(2). Stone v. City of

McMinnville, 896 S.W.2d 584 (Tenn. 1991). We cannot substitute our judgment for

that of the trial judge, and we are not positioned to evaluate the credibility of the

parties or their witnesses. Walls v. Magnolia Truck Lines, 622 S.W.2d 526 (Tenn.

1981).

         The mother was 17 and pregnant when she and the appellant, ten years

older, were married. Their post-marriage years have been unhappy ones,

exacerbated beyond description here by the mother’s confessed adultery with

Derrick Poole, to whom she is now married, and by whom she became pregnant

while yet married to the appellant.

         Numerous witnesses, including family members, testified about the respective

habits, conduct, and character of the parties. We do not believe it would be

profitable to memorialize this testimony because much of it was advocative except

for the admitted gross misconduct of the appellee. The thrust of the evidence

revealed an abundance of mutual fault, but the lascivious conduct of the mother

eventually destroyed the marriage.

         Her then-paramour, now husband, Derrick Poole, came under close scrutiny

respecting his affinity for recreational drug use. The five-year old son related to an

experienced officer the observation of Poole apparently manufacturing crack

cocaine. The testimony of the officer was disallowed because hearsay, and the

appellant complains of this fact, more or less on practical, common-sense grounds.

But to allow the officer to derive an opinion based on his conversation with the boy

obviously cannot be allowed and we need not belabor the point. There was other

evidence offered in substantial derogation of Poole’s character, all of which the

Chancellor made plain that he fully considered.



                                            2
The Chancellor filed an excellent opinion, a portion of which we reproduce:



“The goal of every custody proceeding is to place the ch ild in an env ironm ent that will best
serve his or her phy sical and em otion al needs. Lentz v. Len tz, 717 S.W.2d 876, 877 (Tenn.
198 6); Bah v. B ah, 668 S.W.2d 663, 665-666 (Tenn. Ct. App. 1983). The proceeding is not
for the purp ose of rewarding or punishing a parent for past conduct but rather to promote the
child’s best interests. Suth erlan d v. Sutherland , 831 S.W .2d 2 83, 2 86 (Ten n. Ct. App. 19 91);
Barnhill v. Ba rnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App. 199 1). Thu s, the ch ild’s interests
are paramo unt, Luke v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983), and the p arents’ interests are
secondary. Griffin v. Stone, 834 S.W .2d 3 00, 3 02 (Ten n. Ct. A pp. 1 982 ); Neely v. Neely, 737
S.W.2d 539 , 542 (Ten n. Ct. App. 19 87). ‘The goal of facilitating the ch ild’s be st interests is
certain ly a noble one, but the notio n that courts can ever kno w w ith any certainty w hat w ill
truly be in a given child’s best interest is perhaps unrealistic.’ Tay lor v. Taylor, 849 S.W.2d
319 , 326 (Ten n. 19 93).

         In Bev ins v. B evins, 383 S.W.2d 780 (1964), the court observed:

         The real matter to be considered is w hat is the best thing to do w ith these
         children that they may be left in a home where they are nurtured,
         appreciated and where the environment is such that is conducive not only to
         the physical welfare of the child, but to its emotional and moral welfare, and
         where it can have the instructio ns fro m th ose w ho h ave control ov er it to
         inspire it to activities so as to develop a personality prepared for a life of
         service, and to successfully comp ete in the society which the ch ild faces
         wh en an adult.

         383 S.W.2d at 783.

          The paramo unt conc ern in child custody cases is the welfare and best interest of the
child. Bah v. B ah, 668 S.W.2d 663 (Tenn. App. 19 83). In determ ining w here the b est interest
of a child lies when awarding cu stody, the court considers many factors of which a
nonexclusive list is found in the Bah opinion, 668 S.W.2d at 666. Those factors include: (1)
the age, habits, mental and emotional makeup of the child and those parties competing for
custody; (2) the education and ex perience of those seeking to raise the child; (3) their character
and propen sities as ev idenced by th eir past conduc t; (4) the financ ial and physical
circumstances available in the home of each party seeking cu stody and the special
requ irem ents of the child; (5) the availability and extent of third party support; (6) the
associations and influences to which the ch ild is most likely to be exposed in the alternatives
afforded, both positive and negative; and (7) 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.

         In Bah v. B ah, 668 S.W.2d 663, 666 (Tenn. App. 1983), the court stated:

         This court believes that the so-called “tender years doctrine” is a factor --
         but only one factor -- to be considered in the overall determination of what
         is in the best interests of the child.

         We adopt what w e believe is a co mm on sen se approach to custody, on[e]
         which we will call the doctrine of “comparative fitness.” The paramount
         concern in child custody cases is the welfare and best interest of the child.
         M ollish v. Mollish, 494 S.W.2d 145, 151 (Tenn. App. 1972. There are
         literally thousands of things that must be taken into consideration in the lives
         of young children, Smith v. Smith, 220 S.W .2d 62 7, 630 (1949), and these
         factors must be reviewed on a comparative approach: “Fitness for custodial
         responsibilities is largely a comparative matter. No human being is deemed
         perfect, hence no human can be deemed a perfectly fit custodian.
         Necessarily, therefore, the courts must determine wh ich of two or m ore
         available custodians is more or less fit than others.” (Citations omitted).

         To the extent the “tender years” doctrine has continued efficacy it is simply
         one of many factors to be considered in determining custody, not an
         unyielding rule of law. T he only rig id prin ciple is and m ust be that the b est
         interests of the child are paramount in any custody detrmination.

                                           ..........



                                                 3
         Times have c hang ed. M any m others now work, either by necessity or
         choice, and no longer assume the primary nurturing role for small children.
         W e believe the “presumption of tender years” expoused [sic] in Weaver
         [261 S.W.2d 1 45, 148 (T enn. 1953 )] is no substitute for an individualized
         investigation involving custody in eve ry case. Such factors as the warmth,
         consistency, and continuity of the relation ship b etween parent and child and
         not the sex of the parent actually govern a child’s best interest. These things
         can be prov ided by the father as well as the mother.

668 S.W.2d at 666.

          T.C.A. § 36-6 -101 (d) perm its the courts to conside r the “tende r years doctrine” in
examining questions o f custo dy. Taylor v. Taylor, 849 S.W .2d 319, 325 (Tenn. 199 3). “The
legislative history of the provision in subsection (d ) indic ates that it was intended to codify
case law’s ‘tend er years do ctrine’,”. Id. at 325, footnote 6. W eaver v. W eaver, 261 S.W.2d
145, 148, (1953), sets forth the ten der y ears d octrin e in the se term s: “A mo ther, ex cept in
extaordinary circum stances, shou ld be with her child o f tend er years. No rmally, such a c hild
will not be tak en aw ay fro m its m other unless it is dem onstrated that to leave the ch ild with its
mother would jeopardize its welfare, both in a physical and in a moral sense.” However, the
tender years doc trine is not controlling but is simply an element to be considered b y the court
in determ ining custody. She lby v. S helby, 696 S.W .2d 360, 361 (Tenn. Ap p. 1985).

         In the instant case, the parties’ child is five (5) years old, one of many factors the
Court is considering pursuant to Tennessee Law.

          Sexual infidelity or indiscretion does not ipso fa cto disqualify a parent from being
awarded custody; how ever, when the parent’s sexual activities or indiscretion involve neglect
of the m inor child, such neglect m ay be con sidered in relation to the best interest of the minor
child. Suth erlan d v. Sutherland , 831 S.W .2d 283, 268 [286] (Tenn . App. 199 1).

          There are various factors to consider in custody decisions as set out in
          T.C.A. § 36-6-105:

                    Section 36-6-105 Ch ild Custody. In a suit for annulment, divorce,
          separate maintenance, or in any other proceeding req uiring the co urt to
          make a custody determination regarding a minor child, such determination
          shall be made upon the basis of the best interest of the ch ild. Th e cou rt shall
          consider all relevant factors including the following where applicable:

                   (1) The love, affec tion and emo tional ties existing between the
          parents and child;

                   (2) The disposition of the parents to provide the child with food,
          clothing, medical care, education and o ther necessary care and the degree
          to which a paren t has been the primary careg iver;

                    (3) The importance of continuity in the child’s life and the len gth
          of tim e the child h as lived in a stab le, satisfactory environme nt;

                    (4) Th e stability of the fam ily unit of the parents;

                    (5) Th e me ntal and p hysical health of the pa rents;

                    (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. The court may hear the preference of a younger child upon
          requ est. The preference of older children should normally be given greater
          weight than those of younger children;

                   (8) Evidence of physical or emotional abuse to the child, to the
          other parent or to any other person; and

                   (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.




                                                  4
                                               CONCLUSION

                It is apparent that bo th parties love their child and th at the child loves bo th paren ts.
     It is further apparent that both parents are fit an d comp etent p arents to have cu stody of their
     child.
                The Cou rt finds that during the course of the parties’ marriage the mother was the
     primary caretaker of the child although it appears the father has also contributed significantly
     to the rearing of the child. It is evident from the testimony that both pa rties hav e certain
     negative traits but also have some very positive traits. Unfortunately, the parties have
     themselves elected to disso lve their ma rriage and this election results in the fact that, under the
     circum stances, one parent will of necessity be required to be the primary custodian of the child.
     The Court finds that the father has an ong oing proclivity to indu lge in alcoh ol to ex cess. His
     present wo rk sch edu le preven ts access to the child in the afterno on and even ings. W hile
     acknowledging the acts of infidelity of the mother, her conduct does not appear to have
     resulted in any neglect of the parties’ child. Considering all of the factors contained in the
     legal authorities hereinabove cited, and considering the respective environments in which the
     child will be reared, the Court is of the opinion that the best interest of the child will be served
     by placement with the mother.”




      We are unable to find that the evidence preponderates against the

judgment, which is affirmed at the cost of the appellant. The case is remanded for

all appropriate purposes.




                                                        William H. Inman, Senior Judge

CONCUR:



______________________________
Alan E. Highers, Judge



______________________________
Holly Lillard, Judge




                                                        5
                  IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT NASHVILLE
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KENNETH DALE NANCE,                              )
                                                 )        HENRY CHANCERY
       Plaintiff/Appellant                       )
v.                                               )
                                                 )
TINA LOUISE NANCE,                               )        Appeal No. 02A01-9603-CH-00042
                                                 )
       Defendant/Appellee                        )



________________________________________________________________

                                        JUDGMENT

________________________________________________________________



       This cause came on to be regularly heard and considered by this Court, and

for the reasons stated in the Opinion of this Court, of even date, it is Ordered:



       1. The judgment of the trial court is affirmed.

       2. Costs of this appeal are taxed against the appellant for which execution

may issue if necessary.

       3. The case is remanded for all appropriate purposes.



       ENTER:



                                                 William H. Inman, Senior Judge



                                                 _________________________________
                                                 Alan E. Highers, Judge



                                                 _________________________________
                                                 Holly Lillard, Judge
