          IN T H E C O U R T O F A P PE A L S O F T E N N E S S E E
                            A T N A S H V IL L E
                                                                    F IL E D
                                                                      Ma rch 30, 2000

A N G E L A J OA N W A G N E R ,             )                      C e c il C ro w s o n , J r.
                                             )                    A p p e l la t e C o u rt C le rk
       Plaintif f/A ppellant,                )
                                             )      A ppeal N o.
                                             )      M 1999-01045-C O A -R 3-C V
V S.                                         )
                                             )      R utherford C hancery
                                             )      N o. 98DR -570
R O D N E Y K E IT H W A G N E R ,           )
                                             )
       D efendant/A ppellee.                 )


                A P PE A L E D F R O M T H E C H A N C E R Y C O U R T
                           OF RUTHERFORD C OUN TY
                                          AT
                        MU RFREESBORO, TENN ESSEE

       T H E H O N O R A B L E R O B E R T E . C O R L E W , III, C H A N C E L L O R


JON S. JABL ONSK I
2400 C restmoor Road, S uite 315
N ashv ille, Tennessee 37215
       A ttorney for Plaintiff /A ppellant

FRA NK M. FLY
P. O . Box 398
M urfreesboro, Tennessee 37133-0398
       A ttorney f or Def endant/A ppellee




                          A F F IR M E D A N D R E M A N D E D




                                                    BEN H. CA NTREL L,
                                                    P R E S ID IN G J U D G E , M .S .

C O N C U R:
K OCH, J.
COTTREL L, J.
                                  O P IN IO N



               T he trial court granted the parties a div orce, ordered joint custody

of the parties’ minor son, and div ided the marital property . O n appeal, M s.

W agne r contends that the trial court’s aw ard of joint custody on an alternating

w eek basis w as improper, that the division of marital property w as inequitable,

and that the trial court’s order requiring her to bear one-half of the child’s

medical insurance w as improper. W e disagree and aff irm the trial court’s

jud g me nt.



                                          I.



               R odney W agner, an employ ee of D igital E quipment C orporation,

and A ngela W agner w ere married in A ugust of 1990. In O ctober of 1990, after

tw elv e and one-half y ears of employ ment w ith D igital E quipment C orporation,

M r. W agner w as off ered a termination package consisting of back pay f or

accumulated “sick time,” “v acation time,” and salary based on length of

employ ment. M r. W agner accepted the off er and subsequently started his own

bus ine ss, L an C onn ect s.



               T he parties’ marriage produced one son, C hristopher T ay lor

W agner, w ho w as born in 1993. The testimony in this case indicates that w hile

the parties were married, M s. W agner w as the primary caretaker of the child.

A lthough M s. W agner testified that M r. W agner had no inv olv ement in h is so n’ s

life, other testimony indicated that M r. W agner’s inv olv ement in his son’s life


                                         -2-
w as lim ite d du e to his ef f orts t o st art hi s ow n bu sin ess . T he child w as diagnosed

w ith att ent ion def ici t hy perac tiv ity dis order.



                T he parties separated in 199 8. A t this time, the parties agreed to a

temporary arrangem ent of joint custody on an alternating w eek basis. D uring

this agreed joint custody arrangem ent, M r. W agner had the child put on

medication for attention deficit hy peractivity disorder. The child’ s teachers

testified that after the child began taking the medication they noticed an

im me dia te d if f erenc e in his beh av ior, at ten tio n sp an, a nd f ocu s.



                In M ay of 1998, M s. W agner filed a complaint for absolute div orce

citing irreconcilable diff erences, inappropriate marital condu ct, and cruel and

inhuman treatment.           M r. W agner answe red the complaint denying these

all eg ati ons and pray ing f or dis mi ssa l of the com pla int .



                A fter a hearing, the trial court awarded M s. W agner a div orce on the

grounds of inappropriate marital conduct. The parties were awarded joint

custody of their son on an alternating w eek basis. M r. W agner w as designated

the primary cu stodial parent w ith full and sole responsibility f or making non-

emergency health care, school, and religious decisions concerning the child. M r.

W agner w as ordered to pay child support of $728.00 per month, a sum equal to

10.5% of his monthly income. The trial court further ordered that the parties be

equally responsible for payment of the costs of m edical insurance for the child.




                                               -3-
               T he court aw arded the marital home to M s. W agner and the parties’

ow nership of f if ty perce nt o f the sto ck i n L an C onn ect s to M r. W ag ner. T he trial

court designated as m artial property $40,245 of M r. W agner’s IR A account,

$2,860 of M r. W ag ner’s checking account w ith N ations B ank, $9,019 of M r.

W agner’s 401K account, $1,300 of M r. W agner’s F irst A merican C hecking

A ccount, and $368 of M r. W agner’s account with E ducator’s C redit U nion. The

court then aw arded M s. W agner half of M r. W agner’s IR A account and M r.

W agner the rest of the marital property in the accounts. T his appeal follow ed.



               T he issues M s. W agner has raised on appeal are (1) w hether the trial

judge erred in his custody determination; (2) w hether the div ision of m arital

property w as equitable; and (3) w hether the trial court erred in ordering M s.

W agner to bear one-half of the expense of the child’s m edical insurance.



                              II. C ustody A rrangement



               M s. W agner contends in her brief on appeal that the trial court’s

aw ard of joint custody on an alternating w eek basis w as improper. In addition,

M s. W agner argues that it w as error for the trial court to grant M r. W agner the

authority to make non-emergency health care, school, and religious decisions

w ith regard to the child. W e note that the proper standard of appellate rev iew in

child custody cases is de nov o upon the record w ith a presumption of correctness

of the trial cou rt’ s f ind ing s. See H ass v. K nighton, 676 S.W .2d 554, 555 (T enn.

1984). B y w ay of statute, courts hav e the authority to aw ard child custody in a

div orce proceeding “to either of the parties to the suit or to both parties in the


                                             -4-
instance of joint custody or shared parenting, or to some suitable person, as the

w elfare and interest of the child or children may demand . . . .” T enn. C ode A nn.

§ 36-6-101(a)(S upp. 1999). This custody determination must be based first and

foremost on the best interest of the child or children and can involv e

consideration of a multitude of f actors that can affect the child’s best interest.

S e e N ichols v. Nichols, 792 S.W .2d 713, 716 (T enn. 1990); R og er o v . P itt, 759

S .W .2d 109, 112 (T enn. 1988); Bah v. Bah, 668 S .W .2d 663, 666 (T enn. C t. A pp.

1983). In addition, w e must accord the determination of the trial court great

deference on appeal because the trial court had the opportunity to observ e the

manner and demeanor of the w itnesses at trial w hile our rev iew is limited to the

w ritten record. J ones v. J ones, N o. 01-A -01-9601-C V 00038 , S umner C ounty

(T enn. C t. A pp. filed S eptember 11, 1996, at N ashv ille) (citing Town of A lamo

v. F orcum-J ames C o., 327 S.W .2d 47 (1959)).



              T his C ourt has prev iously adopted the doctrine of comparativ e

fitness to determine the most suitable custodian for children of tender y ears. W e

stated

              F itness for custodial responsibilities is largely a
              comparative matter. N o human being is deemed perfect,
              hence no human can be deemed a perfectly fit custodian.
              N ecessarily , therefore, the courts must determine w hich
              of tw o or more available custodians is more or less fit
              than others . . . . T o the extent the ‘tender years’ doctrine
              has continued efficacy it is simply one of m any factors to
              be considered in determining custody , not an uny ielding
              rule of law . The only rigid principle is and must be that
              the best interests of the child are paramount in any
              custody determination.

Bah v. Bah, 668 S.W .2d at 666 (citations omitted).




                                         -5-
              In the present case, the trial judge m ade detailed finding s of f act

regarding the issue of custody . T he trial judge found that, although the bond

betw een M s. W agner and the child w as slightly greater than that between M r.

W agner and the child, M r. W agner w as more stable. The trial court based this

finding on M s. W agner’s history of im pulsiv e actions and expenditures

ev idenced by the record. The trial court further noted that M s. W agner continues

to suff er from psy chological problems for w hich she takes medication on a daily

basis. T he trial court pointed out M s. W agn er’s confrontational and exclusiv e

demeanor in court regarding issues of custody w hereas M r. W agner appeared

much more amenable to a continuation of an appropriate relationship w ith each

parent. In a ddi tio n, the trial court noted that continued joint custody w as an

app ropriat e pe rman ent sol uti on.



               T he trial court’s aw ard of decision making authority to M r. W agner

w as based on the court’s determination that M r. W agner w as better able to deal

w ith others including school personnel, doctors, church associates, neighbors,

and business associates. The trial court then noted that M s. W agner has little

church association, a confrontational relationship w ith school personnel, and

long “mad spells” w here she stops interacting w ith others w ho take positions for

w hic h sh e do es n ot c are. T hes e f ind ing s are s upp orted by the record.



               In light of the foregoing, it is the opinion of this court that it is in the

best interest of the child that he be giv en the opportunity to m aintain w arm and

close relationships with both parents in the form of joint custody. In addition,




                                            -6-
the trial court’s aw ard of decision-making authority to M r. W agner w as

appropriate in light of the ev idence in the record.



                     III. Division of the M arital Property



             M s. W agner next contends that trial court’s div ision of marital

property w as not equitable. S pecifically , M s. W agner argues that the trial court

erroneously classified marital property as separate property.         W e disagree.

T enn. C ode A nn. § 36-4-121 defines marital and separate property :

             (b)(1)(A ) “M arital property” m eans all real and personal
             property, both tangible and intang ible, acquired by either
             or both spouses during the course of the marriage up to
             the date of the f inal div orce hearing and ow ned by either
             or both spouses as of the date of f iling of a complaint f o r
             div orce, excep t in the case of fraudulent convey ance in
             anticipation of f iling, and including any property to w hich
             a right w as acquired up to the date of the f inal div orce
             hearing, and v alued as of a date as near as reasonably
             possible to the final div orce hearing date.

             (B ) “M arital property” includes incom e from, and any
             increase in v alue during the marriage of , property
             determined to be separate property in accordance w ith
             subdiv ision (b)(2) if each party substantially contributed
             to its preserv ation and appreciation and the v alue of
             v ested pension, retirement or other fringe benefit rights
             accrued during the period of the m arriage.
             ...

             (2) “S eparate property ” means:
             (A ) A ll real and personal property ow ned by a spouse
             before marriage;
             (B ) Property acquired in exchang e for property acquired
             before the marriage;
             (C ) Income from and appreciation of property ow ned by
             a spouse before marriage ex cept w hen characterized as
             marital property under subdiv ision (b)(1); and
             (D ) Property acquired by a spouse at any time by gif t,
             bequest, dev ise or descent.

T enn. C ode A nn. § 36-4-121(b)(1)(A )-(B ); (b)(2).

                                        -7-
              M s. W agner first takes issue with the trial court’s classification of

the majority of M r. W agner’s termination package as separate property . M s.

W ag ner asserts that the entire package w as marital property and should hav e

been div ided equally. W e note that the termination package consisted of salary

f o r M r. W agner’ s accumulated sick time, vacation time, and length of

employ ment.        A f ter receiv ing the m oney from this packag e, M r. W agner

deposited the funds into an account with M errill L y nch and then transferred the

funds to an account w ith E ducator’s C redit U nion. M r. W agner had w orked for

D igital E quipment C orporation for over tw elv e y ears prior to his marriage to M s.

W agner. M r. W agner w orked for D igital E quipment C orporation for only f our

months w hile he was m arried to M s. W agner. A s such, the v ast majority of M r.

W agner’s accumulated sick pay and v acation pay amassed prior to his marriage

to M s. W ag ner.



              T he T ennessee S upreme C ourt has previously held that marital

property includes retirement benefits, both v ested and unv ested, which accrue

during the ma rriag e. C ohen v. C ohen, 937 S .W .2d 8 23, 8 30 (T enn . 199 6). T he

C ourt further held that

              1. O nly the portion of retirement benefits accrued during
              the marriage are marital property subject to equitable
              div ision.

              2. R etirement benefits accrued during the m arriage are
              marital property subject to equitable div ision ev en though
              the non-employ ee spouse did not contribute to the
              increase in their v alue.

              3. T he v alue of retirement benefits must be determined at
              a date as near as possible to the date of the div orce.




                                           -8-
Id. at 8 30. A lth oug h th e C ourt w as ref erring to ret irem ent ben ef its , w e find the

reasoning and holding applicable in the case at bar as the package receiv ed by

M r. W agner w as analogous to a retirement benefit package.



               In the present case, the termination package benef its accrued almost

entirely before the parties w ere married. A fter the parties w ere married and M r.

W agner receiv ed the package, M s. W agner did nothing to substantially

contribute to its preserv ation or appreciation. Therefore, we cannot f ind that the

trial court erred in finding that only $368.00 of the $25,368.00 in the E ducator’s

C redit U nion A ccount w as marital property .



               M s. W agner next contends that the trial court erred in finding that

only $2,860.00 of M r. W ag ner’ s N ati ons B ank acc oun t w as m arita l prop erty . A t

the time the parties w ere married, M r. W agner had an account w ith F irst

A merican w ith a balance of $13,477.00. A fter the marriage, M r. W ag ner took

$12,000.00 from that account and opened another account with F irst A merican

as “doing business as” L an C onnects account. A f ter th e pa rties sep arate d, M r.

W agner transferred this account to N ations B ank. W hen the account w as opened

at N ations B ank, it had a balance of $30,102.45. How ev er, at the time of the

div orce hearing, the account had a balance of only $16,337.00. T he trial court

correctly determined that $13,477.00 of this account w as M r. W agner’s separate

property. S e e T enn. C ode A nn. § 36-4-121(b)(2)(A ). In add iti on, w e note that

marital property must be “v alued as of a date as near as reasonably pos sible to

the final div orce hearing da te.”          Tenn. C ode A nn. § 36-4-121(b)(1)(A ).

T herefore, the trial court correctly utilized the v alue of the account as of the date


                                             -9-
of the div orce hearing, $16,337.00, for purposes of determining the amount of

marital property in the account. T he trial court correctly determined that only

$2,8 60.0 0 of the account w as marital property and thus subject to equitable

div isi on.



                              IV . M edical Insurance



              M s. W agner next contends that the trial court erred in requiring her

to bear one-half of the ex pense of the medical insurance for the child. W e note

initially that this C ourt has prev iously held that the C hild S upport G uidelines

              require the obligor parent to pay f or the children’s
              medical insurance in addition to whatev er other child
              support mig ht be required. T he courts hav e little
              discretion w ith regard to this obligation and may only
              depart from the g uideline’s requirements if they make
              w ritten, specific finding s concerning w hy it w ould be
              unjust or inappropriate to require a particular obligor
              paren t to pay f or the chi ldren ’ s m edi cal ins uranc e.

C arden v. Card en, N o. 01-A -01-9502-C H 00042, C off ee C ounty (T enn. C t. A pp.

filed N ov ember 22, 1995, at N ashv ille) (citing T enn. C omp. R . & R egs. r. 1240-

2-4 -.04 (1)(a)). H ow ev er, in the present case, the parties enjoy joint custody of

the child and neither party falls w ithin the definition of an “obligor” as set out

in the g uid eli nes . S e e T enn. C omp. R . & R egs. r. 1240-2-4-.03(1). In fact, the

guidelines state that they are “designed to apply to situations w here children are

liv ing primarily w ith one parent . . . . In situations w here ov ernight time is

div ided more equally betw een the parents, the courts w ill hav e to make a case-

by -case determination . . . .” T en n. C om p. R . & R eg s. r. 1240-2-4-.02(6). In the

case at bar, w e find that the handling of the m atter of health insurance for this

minor child w as w ithin the discretion o f the trial cou rt. See D ill v. Dill, N o.

                                         -10-
02A 01-9810-G S -00272, H ardin C ounty (T enn. C t. A pp. file d A ugust 2, 1999,

at Jackson). In light of the foregoing , the trial court did not abuse its discretion

in ordering the parties to equally share the cost of the child’ s medical insurance.



                T he judgment of the court below is a f f irmed and the cause remanded

to the C hancery C ourt of R utherford C ounty for any further proceeding s

necessary. T ax the costs on appeal to the appellant, A ngela J oan W agner.




                                                 BEN H. CA NTREL L,
                                                 P R E S ID IN G J U D G E , M .S .

C O N C U R:




W I L L IA M C . K O C H , J R ., J U D G E




P A T R I C IA J . C O T T R E L L , J U D G E
