                                                   FILED
                                                     August 5, 1998
YVETTE MICHEL PORTER CAIRA            )
                                                   Cecil W. Crowson
                                      )           Appellate Court Clerk
        Plaintiff/Appellant,          )
                                      )     Appeal No.
v.                                    )     01-A-01-9709-CH-00508
                                      )     01-A-01-9801-CH-00055
RONALD STEPHEN CAIRA                  )     Montgomery Chancery
                                      )     No. 95-77-275
        Defendant/Appellee.           )




                 COURT OF APPEALS OF TENNESSEE


           APPEAL FROM THE CHANCERY COURT FOR

                       MONTGOMERY COUNTY

                    AT CLARKSVILLE, TENNESSEE


     THE HONORABLE CAROL A. CATALANO, CHANCELLOR




GREGORY D. SMITH
One Public Square, Suite 321
Clarksville, Tennessee 37040
           ATTORNEY FOR THE PLAINTIFF/APPELLANT




MARK A. RASSAS
Suite 104, Glenn Building
Clarksville, Tennessee 37040
           ATTORNEY FOR THE DEFENDANT/APPELLEE




                     AFFIRMED AND REMANDED
                                                    WILLIAM B. CAIN, JUDGE

                                  OPINION

          This case is before us on appeal from the trial court’s decree of divorce
and grant of child custody and support to the Appellee, Ronald Steven Caira. In
bringing this appeal, Appellant raises two issues for consideration.


                 1. Whether the trial court erred in failing to
                 award primary custody of the minor children of
                 this marriage with Defendant/Appellee.
                 2. Whether the trial court made an equitable
                 property distribution of the debts, assets and
                 retirement proceeds of this marriage.

          Since this case was tried without a jury, we presume the trial court to
be correct in its factual findings unless the evidence preponderates against them.
Tenn.R.App.P. 13(d) Both parties recognize in their briefs that wide discretion
is accorded the trial court regarding divorce and custody matters. See Whitaker
v. Whitaker, 957 S.W.2d 834, 836-37 (Tenn.Ct.App. 1997) perm app. denied
1997, cert. denied, 118 S.Ct. 1316, 140 L.Ed.2d 480 (Mar 23, 1998). We are
unpersuaded that the record below preponderates against the chancellor’s
findings with regard to custody and property distribution.


          With regard to the child custody issue, Appellant makes much of the
trial court’s comments regarding her fitness as a mother. The true benchmark for
awarding child custody is the comparative fitness of the parties in view of the
criteria set out in our state code, Tenn. Code Ann. § 36-6-106 (1996). See
generally Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). The
record below and the briefs before this court contain no showing that the trial
court abused its discretion in finding the Father more fit a parent than the
Mother. Appellant also argues that since the record contains evidence of an
affair on the part of the Mother, that the chancellor per force used this fact as the
sole reason for awarding custody to Mr. Caira. There is no finding in the record

                                         2
determining the mother to be unfit because of this or any other reason. The court
simply states,


                 3. That even though the Plaintiff was the
                 bookkeeper of the family, showing discipline
                 in financial matters, this was off set by lack of
                 discipline in her personal life, and the Court
                 believes that the emotional stability of the
                 Defendant is better or more even than that of
                 the Plaintiff, and that the Defendant should be
                 awarded custody of the minor children, subject
                 to the previous visitation agreement insofar as
                 possible.

We find it interesting that Appellant makes no argument that this finding is
against the preponderance of the evidence or amounts to abuse of discretion.
Without such a showing, this court must affirm the actions of the lower court.


          As for the issue regarding distribution of marital property, it is well
settled in this jurisdiction that trial courts have wide discretion in dividing
marital property. See e.g. Wade v. Wade, 897 S.W.2d 702, 715 (Tenn.Ct.App.
1994). Appellant alleges in her brief that while the trial court assessed Mr.
Caira’s income at $25,380, his tax returns showed an income plus or minus
$72,000. Appellant attempts to show abuse of discretion by showing that Mr.
Caira's tax forms indicate reimbursements for expenses incurred.              What
Appellant fails to show is a preponderance of the evidence against the finding of
the trial judge. Appellee replies correctly: "The court specifically stated that all
proof relative to the parties' income, property, retirement plans and debts was
considered, and the award to Mrs. Caira reflected this." Before this court may
delve into a redistribution of the marital estate, a clear showing must be made by
the appellant of some abuse of discretion at the trial level. Otherwise, the office
of the appeal usurps the trial court's superior opportunity to weigh factual issues
with appellate second-guessing.


          In his reply brief, Appellee raises only one issue, to wit, whether the
trial court erred in ordering a downward deviation in child support from 32% to
22%. The trial divorce decree below reads in pertinent part,


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           6. That because of the time that the Plaintiff spends with the
           minor children, there should be a deviation from the Child
           Support Guidelines requiring the Plaintiff to pay as child
           support to the Defendant, the sum of 22% of her net income.

           This deviation is in keeping with the plain meaning of Tenn. Comp. R.
& Regs r. 1240-2-4-.04(2)(b)1994. When such an order falls well within the
contemplation of the Child Support Guidelines, we can find no abuse of the
discretion of the trial court in this award.


           For the reasons and under the authorities cited above, we affirm the
trial court in all respects and remand this case for further proceedings not
inconsistent with this opinion. Costs of this appeal are taxed equally against the
parties.




                                             _____________________________
                                             WILLIAM B. CAIN, JUDGE



CONCUR:


__________________________________
BEN H. CANTRELL, JUDGE


__________________________________
WILLIAM C. KOCH, JR., JUDGE




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