                   IN THE COURT OF APPEALS OF TENNESSEE,
                                AT JACKSON

             _______________________________________________________

                                    )
JOHANNA TRAVIS,                     )     Tipton County Chancery Court
                                    )     No. 14,862


VS.
   Plaintiff/Appellee.              )
                                    )
                                    )     C.A. No. 02A01-9707-CH-00163
                                                                         FILED
                                    )
                                                                         July 29, 1998
MARTIN L. TRAVIS,                   )
                                    )
                                                                       Cecil Crowson, Jr.
   Defendant/Appellant.             )                                  Appellate C ourt Clerk
                                    )
______________________________________________________________________________

From the Chancery Court of Tipton County at Covington.
Honorable J. Steven Stafford, Chancellor



J. Thomas Caldwell, Ripley, Tennessee
Attorney for Defendant/Appellant.


Cyburn H. Sullivan, Covington, Tennessee
James H. Bradley, Covington, Tennessee
Attorney for Plaintiff/Appellee.



OPINION FILED:

REMANDED


                                           FARMER, J.

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




                                             1
             This is a divorce case. The parties, Martin L. Travis (Husband) and Johanna Travis

(Wife), married in February 1984, separated in September 1995 and were divorced by final decree

entered in June 1997. Three children were born of the marriage: Joshua Daniel, born April 19, 1985,

Alexandria Faith, born August 18, 1987, and Nicholas Hunter, born January 3, 1993. Husband has

appealed from the final decree, challenging the correctness of the trial court’s decision to award sole

custody of the children to Wife. He has also raised additional issues relating to the children.



         Husband and Wife were childhood sweethearts, having met when they were ages 7 and 6,

respectively. They attended high school together and were members of the same church where they

participated in various youth related activities. They married at ages 19 and 20. There were problems

throughout the marriage. Both parties testified to verbal abuse and physical altercations, sometimes

in the children’s presence. It was Husband’s testimony that the physical abuse was initiated by Wife

and that he responded only in self-defense. Wife described Husband as domineering and controlling.

Husband testified that for the first seven or eight years, his priorities were somewhat amiss with his

attention focused primarily on his work as opposed to his wife and children. After an accident

resulting in the loss of his job, however, he stated that he was in a position to spend more time with

the children and was consequently made aware of the importance of family and has since shifted his

priorities. Husband is in the printing business and at the time of trial was employed as an estimator

for a printing firm in Jackson, Mississippi, earning approximately $45,000 annually. Wife was the

primary caretaker of the children during the marriage and for a time also operated an in-home day

care, caring for up to 25 children.



            Neither party has resided in the marital home, located in Covington, since May 1996.

Wife testified that she moved to Bartlett after the couple’s separation when her day care business

began to dwindle and she was caring for only three or four children. At the time of trial, Wife

operated an in-home day care from her residence in Bartlett, caring for four children and earning

between $300 and $350 per week. She currently dates a Bartlett police officer, Mr. Frank Lemmons.




                                               The testimony was undisputed that much animosity

                                                  2
exists between Lemmons and Husband which, the record indicates, has affected the children, most

particularly the eldest, Joshua. The trial court conducted an in chambers conference with Joshua

who indicated a preference that his custody be awarded to Husband. Husband testified that he would

be willing to relocate to Tipton County if so ordered by the court in order to obtain custody of the

children. The children have a relationship with both their maternal and paternal grandparents all of

whom live in the Covington area, as well as other cousins, aunts and uncles.



                                              The trial court was presented with the deposition

testimonies of three clinical psychologists, one who interviewed the children and Wife and

recommended that custody be placed with Wife, one who interviewed the children and Husband and

recommended that custody be awarded Husband and the final who offered no recommendation to

the court but who testified as Joshua’s individual therapist regarding the impact of the divorce on

him. There was conflicting testimony among the psychological experts as to whether Wife’s

relationship with Lemmons had negatively impacted the children.



                                              The final decree indicates the parties stipulated that

grounds for divorce existed and that both parties were granted a divorce pursuant to statute. As

heretofore noted, the trial court awarded custody of the children to Wife, with Husband receiving

“standard visitation privileges as previously agreed by the parties.” Husband was ordered to pay

monthly child support. The decree instructed that Wife was to avoid any contact between Lemmons

and Husband regarding the children; that any discussions involving the children’s welfare were to

be conducted between the parties; and that all discipline of any type to the children was to be

administered by the parties only. Finally, the decree ordered the parties to continue Joshua’s

counseling sessions with Dr. Allen Battle “on an as needed basis until such time as Dr. Battle

discharges Joshua or until the court orders otherwise.”



                                              In a memorandum opinion, the trial court made the

following factual findings as they relate to child custody:



                                              Wife is

                                                 3
current
l        y
d a t i ng
a man
named
Frank
Lemm
ons. . .
. She
admits
that she
i        s
having
sexual
relatio
ns with
M r .
Lemm
ons but
denies
doing
anythin
g
inappr
opriate
in the
presen
ce of
t h e
childre
n. The
Husba
n        d
claims
that the
Wife is
attempt
ing to
have
M r .
Lemm
o n s
take his
place
in the
lives of
t h e
childre
n. The
Wife
denies
this.
T h e
Husba
nd and
M r .
Lemm
o n s
have

    4
h a d
ver bal
confro
ntation
s in the
presen
ce of
t h e
childre
n.

Frank
Lemm
o n s
testifie
d on
beh a lf
o      f
Wife.
H      e
stated
that he
loved
t h e
Wife
and he
and the
Wife
h a d
done
nothing
inappr
opriate
in the
presen
ce of
t h e
childre
n. He
a l s o
denied
spendi
ng the
night at
t h e
Wife’s
home
while
t h e
childre
n were
present
.

M r .
Lemm
o n s
denied
that he

   5
h a d
done
anythin
g to
impair
t h e
childre
n ’ s
relatio
nship
w i t h
t h e
Husba
nd. He
claims
to do a
lot of
things
w i t h
t h e
childre
n. He
a l s o
testifie
d that
he will
always
dislike
t h e
Husba
nd and
does
n o t
believe
that he
w i l l
ever be
able to
resolve
t h a t
proble
m.

Upon
request
of the
Husba
nd, the
Court
intervi
ewed
t h e
parties’
oldest
child,
Joshua,
in the
presen
ce of

   6
t h e
parties’
attorne
y s .
T h e
Court
found
Joshua
to be a
v e r y
intellig
e n t
child
w h o
loved
b o t h
h i s
parents
. He is
extrem
e l y
concer
n e d
w i t h
t h i s
divorce
and the
adverse
affect
that it
has had
on him
and his
sibling
s. He
a l s o
stated
that his
grades
have
gone
down
since
t h e
filing
of the
divorce
.
Joshua
testifie
d that it
would
be his
prefere
nce to
l i v e
w i t h
h i s
father.

   7
T h e
Wife
testifie
d that
t h e
parties
cannot
discuss
anythin
g
civilly
and are
unable
t      o
agree
on any
issues.
T h is
h a s
resulte
d in the
parties
experie
ncing
great
difficul
t      y
regardi
ng the
childre
n since
their
separat
ion.



Based upon the evidence before it, the court concluded:



T h e
Court
i      s
trouble
d with
various
aspects
of both
parties’
lives.
Howev
er, it
has no
doubt
t h a t
b o t h
parties
l o v e

   8
t h e
childre
n and
in their
o w n
way,
s e e k
what
t h e y
believe
to be
best for
t h e
childre
n.

T h e
Husba
nd has
admitte
d that
t h e
Wife is
a good
mother.
Howev
er, his
concer
n, as
well as
t h e
concer
n of the
C ourt ,
involve
s the
Wife’s
relatio
nship
w i t h
M r .
Lemm
o n s .
Additi
onally,
t h e
Court
i      s
trouble
d with
t h e
lack of
success
t h a t
Joshua
h a s
experie
nced in
h i s

   9
school
work
since
t h e
separat
ion.

On the
other
hand,
t h e
Court
i      s
concer
n e d
w i t h
t h e
control
that the
Husba
n      d
seems
to want
t      o
assert
in all
issues.
T h e
Court
is also
concer
ned by
t h e
allegati
ons of
physic
a      l
abuse
a n d
w i t h
t h e
Husba
n d ’ s
inexpli
cable
behavi
o      r
exhibit
e      d
toward
t h e
Wife
during
various
argume
nts.

T h e
Court

  10
                                              does
                                              n o t
                                              believe
                                              that the
                                              childre
                                              n
                                              should
                                              b      e
                                              separat
                                              ed but
                                              t h a t
                                              t h e y
                                              should
                                              remain
                                              togethe
                                              r. The
                                              Court
                                              a l s o
                                              does
                                              n o t
                                              believe
                                              that it
                                              would
                                              be in
                                              t h e
                                              childre
                                              n’s best
                                              interest
                                              s     to
                                              move
                                              t      o
                                              Jackso
                                              n       ,
                                              Missis
                                              sippi.



                                              After entry of the decree, Husband filed a motion for

additional findings requesting that the court enter an order allowing him to take two of the children

as dependents for income tax purposes and requiring the parties to share travel expenses relating to

visitation by instructing that they exchange the children at a convenient location halfway between

Jackson, Mississippi and Covington. The trial court subsequently denied Husband’s request for a

sharing of travel expenses, but ordered that he be allowed to take the youngest child as a dependent

for income tax purposes.

                                              Husband presents the following issues on appeal:



                                              I. The
                                              Court
                                              erred in

                                                 11
                                              awardi
                                              n      g
                                              custody
                                              of the
                                              parties[
                                              ’] three
                                              childre
                                              n to the
                                              wife.

                                              II. The
                                              Court
                                              erred in
                                              failing
                                              t      o
                                              require
                                              t h e
                                              parties
                                              t      o
                                              jointly
                                              share
                                              t h e
                                              childre
                                              n ’ s
                                              transpo
                                              rtation
                                              expens
                                              es.

                                              I I I .
                                              T h e
                                              Court
                                              erred in
                                              failing
                                              t      o
                                              allow
                                              t h e
                                              Husba
                                              nd two
                                              (2) of
                                              t h e
                                              childre
                                              n as
                                              depend
                                              ents for
                                              income
                                              t a x
                                              purpos
                                              es.



                                              We first address the issue of child custody. Our

primary concern is the best interests of the Travis children. The standard of review is in accordance

with Rule 13(d) T.R.A.P. which provides for a de novo review accompanied by a presumption of

correctness of the trial court’s findings of fact, unless the evidence preponderates otherwise. E.g.,

                                                12
Whitaker v. Whitaker, 957 S.W.2d 834, 838 (Tenn. App. 1997).



                                            We are guided in our decision by certain guidelines

previously established by case law as well as those factors set forth by statute. These aides in

making our determination were addressed by the court in Whitaker as follows:



                                            In child
                                            custody
                                            a n d
                                            visitati
                                            o      n
                                            cases,
                                            t h e
                                            welfare
                                            a n d
                                            b e s t
                                            interest
                                            s of a
                                            child
                                            are the
                                            paramo
                                            u n t
                                            consid
                                            eration
                                            s and
                                            t h e
                                            rights,
                                            desires,
                                            a n d
                                            interest
                                            s of the
                                            parents
                                            become
                                            second
                                            a r y .
                                            Neely
                                            v       .
                                            Neely,
                                            7 3 7
                                            S.W.2d
                                            5 3 9 ,
                                            5 4 2
                                            (Tenn.
                                            App.19
                                            87). In
                                            Bah v.
                                            Bah,
                                            6 6 8
                                            S.W.2d
                                            6 6 3
                                            (Tenn.
                                            App.19
                                            83), the

                                              13
Court
establis
h e d
some
guideli
nes for
making
t h e
determ
ination
of best
interest
:

W      e
adopt
what
w      e
believe
is     a
commo
n sense
approa
ch to
custod
y, one
which
we will
call the
doctrin
e of
“comp
arative
fitness.
” The
paramo
u n t
concer
n in
child
custody
cases is
t h e
welfare
a n d
b e s t
interest
of the
child.
Mollis
h     v.
Mollis
h, 494
S.W.2d
1 4 5 ,
1 5 1
(Tenn.
App.19
7 2 ) .

  14
There
a r e
literally
thousa
nds of
things
t h a t
must
b       e
taken
i n t o
consid
eration
in the
lives of
young
childre
n        ,
Smith
v        .
Smith,
1 8 8
Tenn.
4 3 0 ,
4 3 7 ,
2 2 0
S.W.2d
6 2 7 ,
6 3 0
(1949),
a n d
these
factors
must
b       e
review
ed on a
compar
ative
approa
ch:

Fitness
f o r
custodi
a      l
respon
sibiliti
es is
largely
a
compar
ative
matter.
N     o
human
being
i      s
deemed

   15
perfect,
hence
n        o
human
can be
deemed
a
perfect
ly fit
custodi
a n .
Necess
a r i l y,
therefo
re, the
courts
must
determ
i n e
which
of two
o        r
more
availab
l        e
custodi
ans is
more
or less
fit than
others.

Edwar
ds v.
Edwar
ds, 501
S.W.2d
2 8 3 ,
290-91
(Tenn.
App.19
7 3 )
(empha
s i s
supplie
d).

Bah,
6 6 8
S.W.2d
at 666.

T h e
trial
court
must
a l s o
consid
er the

   16
factors
as set
forth in
T.C.A.
§ 36-6-
1 0 6
(1996):

36-6-
1 0 6 .
Child
custod
y. -- In
a suit
f o r
annulm
e n t ,
divorce
,
separat
e
mainte
nance,
or in
a n y
other
procee
d i n g
requiri
ng the
court to
make a
custody
determ
ination
regardi
ng a
minor
child,
such
determ
ination
shall be
made
upon
t h e
basis of
the best
interest
of the
child.
T h e
court
shall
consid
er all
relevan
t
factors

  17
includi
ng the
followi
n     g
where
applica
ble:

(1) The
love,
affecti
on and
emotio
nal ties
existin
g
betwee
n the
parents
a n d
child;
(2) The
disposi
tion of
t h e
parents
t        o
provide
t h e
child
w i t h
food,
clothin
g         ,
medica
l care,
educati
on and
other
necess
a r y
c a r e
and the
degree
t        o
which
a
p a r e nt
h a s
been
t h e
primar
y
caregiv
er;
(3) The
import
ance of
continu

   18
ity in
t h e
child’s
life and
t h e
l engt h
of time
t h e
child
h a s
lived in
a
stable,
satisfac
t o r y
enviro
nment;
(4) The
stabilit
y of the
family
unit of
t h e
parents
;
(5) The
mental
a n d
physic
a       l
health
of the
parents
;
(6) The
home,
school
a n d
commu
n i t y
record
of the
child;
(7) The
reason
a b l e
prefere
nce of
t h e
child if
twelve
( 1 2 )
years
of age
o       r
older.
T h e
court
m a y

  19
h e a r
t h e
prefere
nce of
a
younge
r child
upon
request
. The
prefere
nces of
older
childre
n
should
normal
ly be
given
greater
weight
t h a n
those
o      f
younge
r
childre
n;
( 8 )
Eviden
ce of
physic
al or
emotio
n a l
abuse
to the
child,
to the
other
par e nt
or t o
a n y
other
person;
and
(9) The
charact
er and
behavi
or of
a n y
other
person
w h o
resides
i n or
freque
nts the

  20
                                               home
                                               of a
                                               p a r e nt
                                               a n d
                                               such
                                               person’
                                               s
                                               interact
                                               i o n s
                                               w i t h
                                               t h e
                                               child.



Whitaker, 957 S.W.2d at 837-38.



                                               As heretofore noted, the record before us indicates that

the two oldest Travis children, Alexandria and Joshua, ages 9 and 12 respectively, at the time of trial,

were both interviewed by clinical psychologists regarding the impact their parents’ divorce has had

on them. From the psychological reports, as well as the testimonies of the parties, we conclude that

Alexandria is coping sufficiently with her parents’ estrangement, due in some degree to the fact that

her older brother serves as sort of a “buffer” between her and the family situation. Dr. Battle

testified that Alexandria is “doing quite well” and is not exhibiting any psychological problems other

than those normally expected of any child whose parents are in the throes of a divorce. Nor does the

record reflect any unusual or significant adjustment problems for the youngest child, although he was

not interviewed psychologically due to his age. The record, however, does suggest that Joshua has

been severely impacted by the divorce and has endured much emotional turmoil as a result. There

was testimony in the record that Mother’s employment in the Covington area, running a children’s

day-care, was no longer feasible after the parties’ separation because children were taken out of the

day care. However, instead of seeking employment in the area in which the children had grown up

and the area in which their extended family was located, Mother moved the children to the Bartlett

area, near Mr. Lemons, and remained unemployed for a significant period of time. There is nothing

in the record indicating that this move was in the best interest of the children; indeed, the record

indicates that the move created more turmoil for children already caught between two parents in

conflict. The record also indicates that Mr. Lemmons disciplined the children by “whipping” them.

On the other hand, Dr. Stacey L. Dixon testified that Alexandria divulged to her that her father


                                                  21
“doesn’t give me my asthma medicine” and “when I cough it drives him crazy and he slaps me on

my face.” She also told Dr. Dixon that her father does not take her to the doctor when she is sick

when she is with him. We do not find the evidence to preponderate against the trial court’s grant of

custody of Alexandria and Nicholas to mother.



                                              Dr. Battle, Joshua’s therapist, testified that Joshua

exhibited “extreme concern about the anger that exists between mother and father. . . . anxiety and

sadness that is evoked by the disruption of his home and his family. . . . grave concern about his

mother having an affair with another man. . . . [and] the desire to live with his father while at the

same time he feels frustrated in doing so and fearful that he won’t [be] able too.” Dr. Battle

continued:



                                              I      n
                                              Joshua
                                              I just
                                              see him
                                              i      n
                                              essence
                                              in     a
                                              state of
                                              transiti
                                              on. In
                                              other
                                              words,
                                              he has
                                              n o t
                                              solidifi
                                              ed into
                                              anythin
                                              g. It is
                                              simply
                                              sort of
                                              psycho
                                              logical
                                              upheav
                                              al, as
                                              though
                                              o n e
                                              had a
                                              contain
                                              e r of
                                              water
                                              i      n
                                              which
                                              the dirt
                                              h a s
                                              settled

                                                 22
out of
t h e
bottom
so you
have
clear
water
at the
top and
dirt at
t h e
bottom,
a n d
s omeo
n        e
c o m es
in with
a stick
a n d
stirs
t h e
whole
thing
up and
t h e n
everyth
ing is
j u s t
t op s y-
t u r v y,
b u t
there is
n        o
resoluti
on in
Joshua
’s mind
at this
point
except
insofar
as he
decided
as of
the last
time I
s a w
h i m
a n d
even
indeed
before
t h e n
that he
would
rather
l i v e
w i t h
h i s

   23
                                                 father
                                                 becaus
                                                 e that
                                                 would
                                                 b     e
                                                 more in
                                                 keepin
                                                 g with
                                                 t h e
                                                 goals
                                                 and the
                                                 values
                                                 that he
                                                 h a s
                                                 been
                                                 taught.



Dr. Battle believed Joshua had been “psychologically disturbed,” but believed any damage done

could be healed with further therapy. He believed Alexandria had faired better during this family

trauma due to her age and the fact that Joshua, her older brother, had created a certain degree of

security for her. Dr. Battle did not find Joshua to exhibit any “deep psychopathology” and believed

his disorder environmentally produced. He concluded that Joshua had “sufficient intelligence, grasp

of the situation and of himself to be eminently capable to make an informed decision. And I find

that his reasons for living with his father are not silly, trivial, childish reasons that might be given

by a child for the benefit of their own gratification . . . .” When questioned as to the effect on Joshua

if custody was divided and he was raised apart from his two siblings, Battle responded, “[o]ne does

not like to have that division of siblings under conditions where everything else is equal.” Battle said

this was particularly the case if the children were to be raised hundreds of miles apart.



                                                 During the in chambers conference, Joshua informed

the court that he did not like the school that he transferred to in Bartlett as well as the one he attended

in Covington and that he didn’t “know if it’s just because of this divorce, I’ve been making Fs, and

its not great.” When asked whether he looked out for his little brother and sister, he replied “I keep

them in the corner of my eye all the time.” He stated that if he “had a choice,” he would “probably

want [he and his siblings] to live with [his] dad. . . . I would just like that better, I would think.”

When asked if there was “[a]ny particular reason” for his choice, Joshua explained that “some of it

is Frank.” He stated, “every time my dad drops us off, [at his mother’s, after visiting], [Frank’s] got


                                                   24
to carry on something.” Joshua said that Frank was always calling his dad bad names. He related

an incident where Husband had returned the children to Wife’s house after visiting. Lemmons was

present and “started calling [his] dad names.” He continued, “[m]y sister threw down her shoes and

jumped in my dad’s arms, and my brother was clinging on to his legs until my mom came out there,

and she told my dad to let go. . . . My sister wouldn’t let go. It was just hard.” Joshua said he

sometimes worried about his mother and father and was “always” concerned about his brother and

sister and felt as though he had to take care of them. Joshua said that Lemmons disciplined him and

his siblings by spanking them. He preferred it when Lemmons was not present at his mom’s home.



                                                 We recognize that divided custody arrangements

generally do not serve the best interests of the children and that, if at all possible, decisions regarding

custody should be made so as to avoid this particular result for children who deserve no less than

other children whose parents remain united. As stated in W. Walton Garrett, Tennessee Divorce,

Alimony and Child Custody § 24-15 (1997), “[t]here is a strong presumption that the welfare of the

children will be best served by keeping the children together.” This presumption, however, is to be

“viewed in light of the particular facts and circumstances surrounding each child custody case.”

Hollis v. Hollis, No. 01A01-9704-CH-00178, 1998 WL 57537 (Tenn. App. Feb. 13, 1998).



                                                 We are cognizant of the fact that Joshua’s preference

is not binding, but is one of the factors to be considered in a custody determination. Smith v. Smith,

No. 01A01-9511-CH-00536, 1996 WL 526921 (Tenn. App. Sept. 18, 1996); Hardin v. Hardin, No.

03A01-9711-GS-00507, (Tenn. App. May 19, 1998). Given the relationship between Joshua and

Mr. Lemmons and between Joshua and his father, we find it to be a particularly significant factor in

this case. Having reviewed this record, we find that there is strong evidence in favor of Father being

awarded custody of Joshua. However, our careful review of the chancellor’s discussion with Joshua

convinces us that Joshua’s expressed preference to live with his father was based on Joshua’s

assumption that custody of all the children would be awarded to father. As previously discussed, the

children are very close and Joshua feels protective toward his younger siblings. We do not believe

he envisioned them being separated. Therefore, we conclude that this case should be remanded to

allow Joshua to express to the trial court whether his preference would be the same if he and his

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siblings are separated. The record before us does not contain evidence of the effect of split custody

on the children and whether or not it would be in their best interest. Therefore, we are of the opinion

that this case be remanded to the trial court to conduct a further hearing on the issue of custody

pursuant to T.C.A. § 27-3-128 and to consider all factors concerning custody of these children. The

trial court shall also make any further determinations concerning child support, visitation and the

allocation of tax deductions as the circumstances require.



                                               We commend the trial court for including in the final

decree that Wife is to avoid any contact between Mr. Frank Lemmons and Husband regarding the

children and that all discipline of any type to the children be administered only by Husband or Wife.



                                               In view of our remand, the second issue presented by

Husband is pretermitted. Costs of this appeal are taxed to Mr. Travis.


____________________________________
                                                                                       FARMER, J.


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


______________________________
LILLARD, J. (Concurs)




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