                                             FILED
                                               July 29, 1998
LORRI LISA CAPPS,             )
                                            Cecil W. Crowson
                              )            Appellate Court Clerk
     Plaintiff/Appellant,     )      Appeal No.
                              )      01-A-01-9710-CV-00606
v.                            )
                              )      Wilson Circuit
DAVID WAYNE CAPPS,            )      No. 1566
                              )
     Defendant/Appellee.      )
                              )


                 COURT OF APPEALS OF TENNESSEE

     APPEAL FROM THE CIRCUIT COURT FOR WILSON COUNTY
                  AT LEBANON, TENNESSEE

             THE HONORABLE BOBBY CAPERS, JUDGE




ANTHONY E. HAGAN
107 ½ S. Cumberland
Lebanon, Tennessee 37087
     ATTORNEY FOR PLAINTIFF/APPELLANT




CONNIE REGULI
353 Wimpole Drive
Nashville, Tennessee 37211
     ATTORNEY FOR DEFENDANT/APPELLEE




                     AFFIRMED AND REMANDED




                                      WILLIAM B. CAIN, JUDGE
                                           OPINION

            The only issue on appeal in this divorce case is whether or not the trial court erred
in awarding custody of the seven year old daughter of the parties to the husband rather than to
the wife.


            David Wayne Capps and Lorri Lisa Barrett Capps married in Wilson County,
Tennessee, February 14, 1982. David Capps is now age forty and Lorri Capps is age 38. The
only child of the marriage, Heather Grace Capps, was born April 27, 1990 and these parties
separated on February 21, 1997.


            There is little factual dispute in the case. David Capps worked full-time as a
machinist for Wright Industries and Lorri Capps worked part-time and was the primary care
giver for the parties' minor child. Thus, David was the primary bread winner for the family,
and Lorri was the primary homemaker for the family.


            In February, 1997, Lorri met and became greatly enamored with one Johnny Bailey,
who had moved to Wilson County three months earlier from California. Bailey had custody
of his own two children by a previous marriage and voluntarily paid support for a third child
in California born out of wedlock. Bailey had a history of marijuana possession in California.


            Upon filing her complaint for divorce on February 27, 1997, Lorri essentially moved
into the house with Bailey, his children and his disabled father and unemployed brother. From
the time of the divorce complaint Heather remained either with her father or in the home of her
maternal grandmother, Sharon Richards.


            Lorri Capps makes it quite clear in her testimony that she sees nothing wrong with
her live-in relationship with Johnny Bailey and his minor children and intends to continue
same. Her principal complaint on appeal is that she is being punished for having an affair and
is for that reason alone being denied custody of Heather. The record in this case does not
support such an assertion.


            Appellant insists that all of the evidence in the record shows her to be a caring and
loving mother. Apparently she believes the burden to rest upon Mr. Capps to prove that she
is an "unfit parent". This court has said in a similar context:
               [13] A parent seeking custody is no longer required to prove that the
            other parent is unfit in order to be awarded custody. Griffin v. Stone,
            834 S.W.2d 300, 305 (Tenn.Ct.App.1992); Harris v. Harris, 832
            S.W.2d 352, 353 (Tenn.Ct.App.1992); Bah v. Bah, 668 S.W.2d at 667.
             Thus, the trial court's decision to focus almost exclusively on Ms.
            Gaskill's fitness was erroneous. In custody and visitation cases such as
            this one, the evidence should have been reviewed to determine both


                                               -2-
           parties' fitness as a comparative matter. Thus, although the evidence
           may not have shown that Ms. Gaskill was an unfit mother, it may, and
           in this case does, indicate she is comparatively less fit than Mr. Gaskill
           to have custody of the parties' daughter. Because the trial court
           misapplied the comparative fitness analysis, we must now proceed with
           our own examination of the evidence giving due consideration to the
           trial court's findings of fact.


Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996).


           It is clear from this record that the trial judge properly made a "comparative fitness"
analysis of the entire case and correctly applied the law to the facts.


           This court has said:
              So that there will be no misunderstanding in the future, we hold that
           it is not necessary to find that a mother is unfit in order to award
           custody of a minor child to the father, or for that matter another third
           party when it is in the child's best interests. All the relevant
           circumstances of the case, including those specifically enumerated
           herein, should be considered, and principal responsibility for rearing a
           minor should be placed with the person most fit to do so.

              [4] We believe that is precisely what the trial judge did here and why
           custody was awarded to the father. The trial court made no finding that
           the mother was unfit and, based on this transcript, we think such a
           conclusion would have been unjustified. However, we think the trial
           judge was satisfied that for now the child's best interests would be
           served in the custody of the father, with liberal visitation to the mother.
           Without question the trial judge was concerned, as are we, with the
           environment in which young Mr. Bah would be placed and the
           deleterious influences to which he might be exposed in the home of the
           mother of Mrs. Bah. No doubt the trial court believed strongly that
           there was a difference in the maturity and emotional stability of the
           mother and the father. Of course, that court is in a far superior position
           to assess these qualities than this court because of the ability to view the
           witnesses and assess their demeanor, mannerisms and other visual and
           audio characteristics not apparent in the transcript. However, insofar as
           these qualities can be assessed based upon past conduct, the record
           indicates the father to be the most stable and emotionally mature parent
           at this time.


Bah v. Bah, 668 S.W.2d 663, 667 (Tenn. Ct. App. 1983).



           The record in this case does not show Mrs. Capps to be an unfit parent but the law
does not require such a showing. Both parents may be found to be fit custodial parents but the
very purpose of the "comparative fitness" analysis is not to choose between the lesser of two
evils, but rather to determine which parent can serve the best interest of the child. The trial
court has made its decision and our review of that decision is limited by long settled rules.




                                               -3-
               [2] Our de novo review of the trial court's custody and visitation
           decrees is tempered by the well-established principle that a trial court
           has wide discretion in matters of custody and visitation. Suttles v.
           Suttles, 748 S.W.2d 427, 429 (Tenn.1988); Marmino v. Marmino, 34
           Tenn.App. 352, 238 S.W.2d 105, 107 (1950); Grant v. Grant, 39
           Tenn.App. 539, 286 S.W.2d 349, 350 (1954). The various general
           principles regarding a trial court's prerogatives in these matters and our
           review of same is well stated in Suttles:

                Although we recognize that the general rule is that "the
                details of custody and visitation with children are peculiarly
                within the broad discretion of the trial judge," Edwards v.
                Edwards, 501 S.W.2d 283, 291 (Tenn.App.1973), and that
                the trial court's decision will not ordinarily be reversed
                absent some abuse of that discretion, "in reviewing child
                custody and visitation cases, we must remember that the
                welfare of the child has always been the paramount
                consideration" for the courts. Luke v. Luke, 651 S.W.2d
                219, 221 (Tenn.1983). In addition, the right of the
                noncustodial parent to reasonable visitation is clearly
                favored. E.g., Weaver v. Weaver, 37 Tenn.App. 195,
                202-203, 261 S.W.2d 145, 148 (1953).
           748 S.W.2d at 429.

Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. App. 1996).


           The evidence in this case supports the decision of the trial court and certainly does
not preponderate against the trial court action in awarding custody of Heather to her father.


           The judgment of the trial court is in all respects affirmed, and the case is remanded
for such further proceedings as may be necessary.


           Costs of this cause are taxed against the appellant.




                                                      _____________________________
                                                      WILLIAM B. CAIN, JUDGE




CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE


__________________________________

                                              -4-
WILLIAM C. KOCH, JR., JUDGE




                              -5-
