                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON

PAMELA JUNE (HUTCHINSON) SWEAT v. JAMES RETERS SWEAT, III

              An Appeal from the General Sessions Court for McNairy County
                     No. 05-6418   The Honorable Bob Gray, Judge



                   No. W1999-00158-COA-R3-CV - Decided April 13, 2000


This is a child custody case. Pamela June Hutchinson Sweat (Wife) filed for divorce against James
Reters Sweat, III (Husband) in the General Sessions Court of McNairy County. After a non-jury
trial, the court awarded joint custody of the parties two minor sons but made no determination of
child support. Wife has appealed.

Tenn. R. App. P. 3, Appeal as of right; Judgment of the General Sessions Court affirmed and
remanded

CRAWFORD, P.J., W.S., delivered the opinion of the court, in which J. HIGHERS, and J.
FARMER, joined.

Middlebrooks & Gray, Jackson, For Appellant

Terry Abernathy, Selmer, For Appellee

                                             OPINION

JUDGE CRAWFORD delivered the opinion of the court.

       Wife filed for a divorce on July 9, 1998. At the time of trial, Wife was thirty-three years old,
and Husband was forty-three years old. The parties have two sons, James Reters Sweat IV (Rete)
and Bailey Hutchinson Sweat, who were ages eight and three at the time of trial. Parties had been
married for eight years but separated for over one year. Husband had moved to Florida to work and
upon return to Tennessee did not reunite with Wife.

       Husband answered Wife’s complaint and filed a motion for temporary custody on August 14,
1998. The court conducted a hearing on September 3, 1998 and entered an order for temporary
custody, visitation, and child support which reads in pertinent part:

               IT IS FURTHER ORDERED that the minor children shall reside in
               the home of the Defendant/Father, with the Plaintiff/Mother to care
               for the children at the home of the Defendant/Father from 8:00
               o’clock a.m. until 5:00 o’clock p.m., Monday through Friday, and

               IT IS FURTHER ORDERED that the children shall stay with the
               Plaintiff/Mother every other weekend from 5:00 o’clock p.m. on
               Friday until 5:00 o’clock p.m. on Sunday, beginning on August 28,
               1998, and on alternate weekends thereafter,...

        A second hearing was held on March 15, 1999. Wife testified that the older child had
developed discipline problems and had been in therapy to treat adjustment difficulties. Wife testified
to Husband’s foul language in children’s presence, keeping loaded guns in the house, and
inconsistent parenting. Husband offered the testimonies of Floyd Ward and Bill Wagoner
regarding his fitness as a parent and as a good citizen. The court found that the parties should be
awarded joint custody and instructed them to reach an agreement regarding what would be best for
the children on a day to day basis and to notify the court of the agreement within thirty (30) days.
On April 19, 1999, an order was entered granting the parties a divorce and reserving the custody
issue.

        On May 3, 1999, a final hearing was conducted. Both Wife and Husband testified to an
altercation that occurred in April of 1999. Wife claims to have been assaulted by Husband, and
Husband claims that Wife “tackled him.” In chambers, the court heard the testimony of two minor
children, Brooke Bingham, a seven year old neighbor girl, and Rete Sweat, the parties’ eldest son,
regarding the altercation. Both children stated that Husband threw a toy truck at Wife.

         Larry Griffin of the McNairy County Sheriff’s Department testified that he responded to a
dispatch regarding the altercation. Exhibit 1 is a copy of an arrest report showing Husband was
arrested as a result of the April 20, 1999 incident. Griffin testified that he interviewed both parties
after the incident, Wife at her home and Husband at his home. Griffin observed that both parties had
apparent physical injury. Wife had abrasions to her hand, elbow, and face, and her clothes were dirty,
and Husband had an abrasion on one arm. Griffin testified that the reason that Husband was arrested
was because this altercation had taken place at Wife’s home. According to Wife’s testimony,
Husband filed a report with “human resources” alleging drug use by Wife. After an investigation,
the file was closed.

       At the close of proof, the court continued criminal charges and stated that a protective order
for each party would be in place for a period of one year. An order concerning the minor children
was entered on May 14, 1999, which states in pertinent part:

               That these parties shall share the joint custody of their minor children,
               to wit: James Reters Sweat, IV, born June 25, 1991, and Bailey
               Hutchinson Sweat, born July 29, 1996.

               IT IS FURTHER ORDERED that the minor children shall reside
               primarily with their father during the school year, and the minor
               children shall reside primarily with their mother during the summer

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               vacation months.

               IT IS FURTHER ORDERED that the standard visitation rules of the
               Twenty-Fifth Judicial Circuit shall be applicable, and the mother shall
               have visitation rights and privileges with her minor children in
               accordance with these standard visitation rules during the school year,
               and the father shall have visitation rights and privileges with his
               minor children in accordance with these standard visitation rules
               during the summer vacation months.

        It is from this order that Wife appeals. Wife presents one issue for review as stated in her
brief: “[w]hether the trial court erred in its custody award?”

        Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm absent error of law. Tenn. R. App. P.
13 (d). This presumption applies to child custody cases. Hass v. Knighton, 676 S.W.2d 554, 555
(Tenn. 1984).

         Trial courts are vested with wide discretion in the matter of child custody, and the appellate
courts should not interfere except where there is a showing of erroneous exercise of that discretion.
Mimms v. Mimms, 780 S.W.2d 739 (Tenn. Ct. App. 1989). “The determination of custody and
visitation rests within the sound discretion of the Trial Judge who is in a superior position to judge
the credibility and competency of the parents as custodians.” Gray v. Gray, 885 S.W.2d 353, 354 -
355 ( Tenn. Ct. App. 1994); see also Scarbrough v. Scarbrough, 752 S.W.2d 94 (Tenn. Ct. App
1988). In child custody cases, the best interest and welfare of the children are the most significant
concerns, and the determination of the children’s best interest must turn on the facts of each case.
Holloway v. Bradley, 190 Tenn. 565, 230 S.W.2d 1003 (1950). In Bah v. Bah, 668 S.W.2d 663
(Tenn. Ct. App. 1983), the Middle Section of this Court set forth guidelines for making the
determination of best interest:

                       We adopt what we believe is a common sense approach to
               custody, one 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. Mollish v. Mollish, 494 S.W.2d 145, 151 (Tenn.
               Ct. App. 1972). There are literally thousands of things that must be
               taken into consideration in the lives of young children, Smith v.
               Smith, 188 Tenn. 430, 437, 220 S.W.2d 627, 630 (1949), and these
               factors must be reviewed on a comparative approach...

Id. at 666. T.C.A. § 36-6-106 (Supp. 1999) provides factors to be considered in custody
determinations:

               (1) The love, affection and emotional ties existing between the

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              parents and child;
              (2) The disposition of the parents to provide the child with food,
              clothing, medical care, education and other necessary care and the
              degree to which a parent has been the primary care giver;
              (3) The importance of continuity in the child’s life and the length of
              time the child has lived in a stable, satisfactory environment;
              provided that where there is a finding, under, § 36-6-106(8), of child
              abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual
              abuse, as defined in § 37-1-602, by one (1) parent, and that a non-
              perpetrating parent has relocated in order to flee the perpetrating
               parent, that such relocation shall not weigh against an award of
               custody;
               (4) The stability of the family unit of the parents;
               (5) The mental and physical health of the parents;
               (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
               request. The preferences 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; provided, that where there are
               allegations that one (1) parent has committed child abuse, [as defined
               in § 39-15-401 or § 39-15-402], or child sexual abuse, [as defined in
               § 37-1-602], against a family member, the court shall consider all
               evidence relevant to the physical and emotional safety of the child,
               and determine, by a clear preponderance of the evidence, whether
               such abuse has occurred. The court shall include in its decision a
               written finding of all evidence, and all findings of facts connected
               hereto. In addition, the court shall, where appropriate, refer any
               issues of abuse to the juvenile court for further proceedings;
               (9) The character and behavior of any other person who resides in or frequents the home of a pare
               (10) Each parent’s past and potential for future performance of
               parenting responsibilities, including the willingness and ability of
each of the parents to facilitate and encourage a close and continuing parent-child relationship
between the child and the other parent, consistent with the best interest of the child.

        Most of the statutory factors in this case are not in dispute. The record reflects that the two
children are loved by both parents, and both parents provide them with necessities. The altercation
between the parents in April does provide evidence of physical and emotional abuse of one parent
to the other, however, both parties appear to have contributed to this incident. Both parents are
concerned with the welfare of their children, and both fall short of perfection. However, as the Court
articulated in Edward v. Edward, 501 S.W. 2d 283, 290 (Tenn. Ct. App. 1973), in addressing a
parent’s fitness for custodial responsibility “[n]o human being is deemed perfect, hence no human
can be deemed a perfectly fit custodian.” Id. at 291. The behavior of both parents appears to have

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been at times inappropriate; however, upon review of the record, we cannot fault one party more than
the other.

        T.C.A. § 36-6-101(a)(2) (1998) states that “neither a preference nor a presumption for or
against joint custody, joint physical custody or sole custody is established, but the court shall have
the widest discretion to order a custodial arrangement that is in the best interest of the child.” In
affirming the trial court’s award of joint custody, this Court recently stated:

                       In Tennessee, the term “joint custody” has no established
               definition. See Martin v. Martin, No. 03A01-9708-GS-00323, 1998
               WL 135613, at *2 (Tenn. Ct. App. Mar. 26, 1998)(noting that trial
               court defined joint custody as “equal input by both parties as to
               decision making for the children’s general welfare, health, education,
               and extra-curricular activities”); Gray v. Gray, 885 S.W. 2d 353, 356
               (Tenn. Ct. App. 1994) (defining “joint custody” broadly as “shared
               custody and shared responsibility for support”). Trial courts are not
               limited by a narrow definition of joint custody and may outline each
               party’s responsibilities concerning care of the children. Schwalb v.
               Langlois, No. 01A01-9304-CV-00152, 1993 WL 415766, at *2
               (Tenn Ct. App. Oct.13, 1993).

Burlew v. Burlew, No. 02A01-9807-CH-00186, 1999 WL 545749 **7 (Tenn. Ct. App. July 23,
1999).

        In Burlew, supra, this Court found that the evidence did not preponderate against the trial
court’s award of joint custody. It also found the trial court’s order confusing, because the
designation of the primary custodian changed during the year, creating uncertainty as to how the
parents should resolve disputes on long-term decisions. Id. at **8. There was no indication in the
record that the trial court intended for the parties to bring such decisions to court. Id. In addressing
this uncertainty, this Court stated that the designation by the trial court of which party had primary
custody and which had secondary custody should create “a definite allocation of duties and
responsibilities between them.” Id. (quoting Schwalb, at *2). This Court stated the best alternative
to resolve the uncertainty appeared to be clarification of the trial court’s ruling, and held that since
husband was designated as the primary custodian during Christmas holidays and the summer
vacation, he shall have the decision making responsibility of the primary custodian for short-term
decisions limited to that time. Id. As to long-term decisions, wife would remain the primary
custodian. Id. In addition the parties remained obligated to confer on major decisions and to make
a genuine effort to reach an agreement. Id.

        In the instant case, we cannot say that the evidence preponderates against the trial court’s
award of joint custody with a designation of primary care alternating between Wife and Husband,
and with visitation rights and privileges in accordance with the standard rules for the non-custodial
parent. Husband has been an attentive father. It is in the best interest of the parties’ minor children
for him to continue as the primary caretaker during the school year. However, it is essential that

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Wife have an active role in the children’s emotional and physical development. It appears that Wife
and Husband care for their children despite episodes of inappropriate behavior by both parties. We
feel that the trial court’s custodial arrangement is in the children’s best interest. These arrangements
provide “continuity of placement”, a consideration stressed by factors two and three of the statute,
by maintaining the schedule to which the minor children have become accustomed. See Burlew,
supra.

        Joint custody is suitable to fit the present situation, however, the trial court’s order requires
clarification as to which party will have the primary responsibility for child rearing decisions. In
accordance with our decision in Burlew, supra ,Wife’s designation as the primary custodian during
the summer months pertains to short-term decisions limited to that period of time. Husband’s
designation as primary custodian during the school year applies to long-term decisions. The parties
remain obligated to make a sincere effort to reach an agreement on child rearing decisions.

       In addition to Wife’s issue regarding custody, she requests that the case be remanded for a
determination of child support. Wife also requests attorney’s fees and expenses for appeal.

        As to the issue of child support, § T.C.A. 36-5-101 (e)(1) (Supp. 1999) states:

                         In making its determination concerning the amount of support
                of any minor child or children of the parties, the court shall apply as
                a rebuttable presumption the child support guidelines as provided in
                this subsection. If the court finds that evidence is sufficient to rebut
                this presumption, the court shall make a written finding that the
                application of the child support guidelines would be unjust or
                inappropriate in that particular case, in order to provide for the best
                interest of the child(ren) or the equity between the parties. Findings
                that the application of the guidelines would be unjust or inappropriate
                shall state the amount of support that would have been ordered under
                the child support guidelines and a justification for the variance from
                the guidelines.

       In Anderson v. Anderson, 988 S.W. 2d 675 (Tenn. Ct. App. 1998) the Middle Section of
the Tennessee Court of Appeals stated in pertinent part:

                        Once the parent’s income has been determined, the guidelines
                require the courts to calculate the required amount of support using
                the percentages provided in the guidelines. See Tenn. Comp. R. &
                Regs. r. 1240-2-4-.03(5). In most circumstances, the result of these
                calculations becomes the obligor parent’s child support obligation.
                However, a court may deviate from the guidelines if it makes
                detailed, written findings explaining why the application of the
                guidelines would be inappropriate and how deviating from the
                guidelines would be in the child’s best interests. See Tenn. Comp.

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               R. & Regs. r. 1240-2-4-.02(7), -.04(2) (1994).

Id. at 680 - 81. Unless the trial court finds reasons for deviating from the child support guidelines,
it should set child support obligations according to the guidelines. Id. at 681.

        It appears that the court below did not comply with the quoted statute in departing from the
mandatory guidelines. Therefore, the case is remanded for a determination of an award of child
support in conformity with the guidelines, or an adequate explanation of not doing so supported by
specific findings of facts.

        The order of the trial court concerning custody is affirmed, and the case is remanded for
further proceedings consistent with this Opinion. Parties are to pay their own attorneys fees for
appeal. Costs of appeal are assessed equally between the parties, Pamela June Hutchinson Sweat
and James Reters Sweat, III.




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