                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   August 30, 2001 Session



       JAMES ROGER NELSON v. VICTORIA KAY GOAD NELSON

                      Appeal from the Chancery Court for Morgan County
         No. 00-129     Michael A. Davis, Judge, by Designation and by Interchange

                                  FILED OCTOBER 23, 2001

                                 No. E2000-02873-COA-R3-CV



James Roger Nelson (“Husband”) filed a Complaint for Absolute Divorce (“Complaint”) against
Victoria Kay Goad Nelson (“Wife”). Wife filed an Answer and a Counter-Complaint for divorce.
Wife admitted to Husband she had been and still was involved in an extramarital affair with a co-
worker. Before trial, Husband obtained a temporary restraining order against Wife, and Wife
obtained an Order of Protection against Husband. Wife testified Husband had subjected her to
verbal and physical abuse in front of their minor children. Wife also testified Husband had
threatened her with a gun while their children were at home with them. The Trial Court granted both
parties a divorce, divided the parties’ property, and awarded custody of the children to Husband. The
Trial Court based its custody decision upon Wife’s extramarital affair and the fact that Husband, at
the time of trial, had the more stable home environment. The Trial Court failed, however, to address
Wife’s allegations that she was abused by Husband. Wife appeals the custody award and portions
of the Trial Court’s property division. We vacate, in part, and affirm, in part, and remand.


           Tenn. R. App. P. 3; Judgment of the Chancery Court Vacated, in part,
                          and Affirmed, in part; Case Remanded.


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS , J., joined.

Joe R. Judkins, Wartburg, Tennessee, for the Appellant, Victoria Kay Goad Nelson.

James W. Brooks, Jr., Wartburg, Tennessee, for the Appellee, James Roger Nelson.
                                             OPINION

                                            Background


               Husband and Wife, both age twenty-seven, were married nearly six years and have
two young children (“Children”), whose ages were approximately six and four at the time of trial.
In July 2000, Husband filed a Complaint for Absolute Divorce in which he alleged the divorce
grounds of adultery, inappropriate marital conduct, and irreconcilable differences. In his Complaint,
Husband sought a temporary restraining order to limit Wife’s contact with him and their Children.
The Trial Court granted Husband’s request for a temporary restraining order. Wife filed an Answer
and a Counter-Complaint for divorce on the grounds of inappropriate marital conduct and
irreconcilable differences. Wife obtained an ex parte Order of Protection after being served with
Husband’s Complaint.

                 Husband and Wife lived during their marriage in a mobile home located less than one
mile from the homes of Husband’s parents and grandparents. The Children have lived at this address
their entire lives. The proof in the record shows that prior to the parties’ separation in July 2000,
Wife primarily cared for the Children, while Husband had minimal childcare responsibilities.
Husband testified Wife was a good mother before she became employed outside the home in 1999.
In Husband’s opinion, when Wife took an outside job, she was not at home to care for the Children
“like she should have been.” Once Wife began her job in 1999, Husband’s parents and grandparents
participated in the care and babysitting of the Children.

                 After the parties separated in July 2000, Wife moved out of the parties’ home, moved
twice, and by the time of trial, was living in a duplex in a nearby town. Wife testified her duplex had
a yard for the Children to use for playing but that none of their toys were at her house. Wife asked
Husband for some of the Children’s toys. Husband refused this request. By contrast, the parties’
mobile home is located on a large lot where the Children have a trampoline and swing set. Wife
also testified that, after the parties’ separation, she experienced difficulty in obtaining Husband’s
cooperation with her visitation. Moreover, Wife testified Husband attempted to use the Children as
a bargaining tool with Wife. Wife testified Husband offered to return the Children to her if Wife
agreed to have sex with him. Wife also testified Husband agreed that Wife could have custody of
the Children if she changed her work schedule from second to first shift. Wife agreed to this last
offer and, a week before trial, changed her work schedule.

                Husband is self-employed as a trucker and a logger. The parties jointly ran the
operation as Wife took care of the business’ bookkeeping and record keeping. The proof in the
record shows the parties purchased a Peterbilt tractor for Husband and rented the trailer from
Husband’s father to use in this business. Husband sometimes worked more than seventy hours per
week, but by trial, Husband had reduced his work hours to between forty and fifty hours per week
so he could care for the Children. Husband testified his work schedule varied since sometimes he
has to leave for work at 5 a.m., while at other times, he does not leave until 9 a.m. Wife testified,


                                                 -2-
however, that Husband had not actually reduced his hours. Wife recently had contacted Husband
on his mobile phone late at night, and Husband was still working. Wife testified that since the
parties’ separation, Husband’s parents were the ones really keeping the Children due to Husband’s
work schedule.

                Wife is employed in a manufacturing facility in nearby Oak Ridge, Tennessee. Wife
began to work outside the home in 1999 because, according to Wife, the parties were having
difficulty paying their bills. Initially, Wife worked the second shift. Wife testified she worked
evenings because Husband and his family wanted her to be with the Children during the day. A few
days before trial, Wife changed her schedule to work the first shift, 7:30 a.m. until 4:30 p.m. Wife
testified she had made arrangements for a baby-sitter for the times the Children are not in preschool
and school.

               The record shows that Husband reported to the Trial Court that his average net
monthly income was $840 per month.1 At trial, Husband admitted he did not earn enough money
to meet his minimum monthly bills. In contrast, Wife testified her average net monthly income was
$1,400 per month. Wife carries health and dental insurance for the Children through her
employment.

                Wife did not deny at trial that she was involved in an extramarital affair with one of
her co-workers, Daniel Ledbetter. Ledbetter also was married with children. Prior to filing his
Complaint, Husband discovered a check Wife had written for a hotel room charge and confronted
her with it. Wife telephoned Ledbetter while the parties were on vacation with the Children in July
2000. Husband testified he sought a temporary restraining order in his Complaint because of his
concerns about the Children being around Wife’s paramour. The proof in the record shows that
Ledbetter had been around the Children on one occasion at a movie theater, a meeting which Wife
testified was unplanned. Wife testified Ledbetter stayed with her at least two nights a week. Wife
testified she knew her affair with Ledbetter affected the Children and that the Children would not
be around Ledbetter, at least for awhile.

                 In addition, the parties frequently disagreed about their finances. Wife testified
Husband was extremely stingy and unreasonable about spending money for the Children’s health
care, for their and the Children’s clothing, and for their home. Wife testified that because of the cost
involved, Husband questioned the reasons for sending their then-three-year old Child to the dentist
for two cavities. Husband, however, testified Wife had no concept of money and that her spending
was out of control. The proof in the record shows Wife admitted she had not been honest with
Husband regarding her spending and their finances. Wife, without telling Husband, used a check
to withdraw $500 from their trucking business’ checking account. Wife testified she did so because
the parties were having difficulty meeting their household expenses since Husband failed to deposit
enough of his earnings into their joint account. Wife testified Husband deposited the bulk of his


            1
                Wife testified, however, that before trial, H usband to ld her he would hide his true income from her and her
attorney.

                                                              -3-
earnings into the trucking business’ account. In addition, Wife obtained three credit cards in
Husband’s name without his authorization. Wife also traded a vehicle titled in Husband’s name for
another vehicle without Husband’s agreement. Wife apparently signed Husband’s name on the title
without his authorization. Wife testified she was not forthcoming with Husband about these matters
because she was afraid of his reaction.

                The parties’ relationship was tumultuous, especially once Husband discovered Wife’s
affair with Ledbetter. Wife testified that before and during their marriage, Husband was quick-
tempered and had abused her both verbally and physically. Wife testified Husband went into fits
of rage several times per week during their marriage. Husband berated Wife about her weight and
her family. Wife recounted incidents in which Husband kicked, hit, and pulled her hair in front of
the Children. Wife also testified Husband pointed a gun in her face and stated he would kill her
before he would allow her to leave him. This alleged incident occurred at 4:00 a.m. when the
Children were home. In addition, Wife testified that in July 2000, Husband took Wife’s car keys
from her so she could not leave their home. Husband also caused a disturbance at her place of
employment. Husband did not deny taking Wife’s car keys and claimed he went to her workplace
so he could talk Wife into coming home to their family. Husband denied threatening to kill Wife,
but testified Wife threatened to burn down their mobile home. Wife admitted making this threat,
but testified she did so only because Husband had taken her Children away from her with the
temporary restraining order.

                Husband had been given some land by his grandparents a few months prior to the
parties’ marriage. The parties’ mobile home was on this property. Water, utility and septic service
were installed on Husband’s real property before the parties were married. A porch for their mobile
home was constructed after the parties married.

                The Trial Court heard testimony in September 2000, and entered a Final Decree the
following month. In its Final Decree, the Trial Court granted both parties a divorce; awarded
custody of the Children to Husband with visitation to Wife; and ordered Wife to pay approximately
$460 per month in child support and to maintain health and dental insurance for the benefit of the
Children. The Trial Court found that the real property was not marital property because Husband
obtained the lot and made improvements to the property, such as the installation of water, utility and
septic service, prior to the parties’ marriage.

               The Trial Court made very few findings of fact from the bench and incorporated them
by reference into the Final Decree. The Trial Court held that its decision to grant custody of the
Children to Husband was based upon (1) Wife’s “inappropriate relationship” with Ledbetter; and (2)
Husband having the more “stable home at this point in time” as the Children’s home, toys and
extended family were there. Wife appeals.2




       2
           For simplicity’s sake, we use round dollar numbers in this opinion.

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                                            Discussion

               On appeal and although not stated exactly as such, Wife raises the following issues:
1) the Trial Court erred in granting custody of the Children to Husband instead of Wife; 2) if this
Court reverses the Trial Court’s decision to grant custody to Husband, Husband should be ordered
to provide medical insurance for the benefit of the Children; and 3) the Trial Court erred in its
division of property. Husband raises no further issues on appeal.

                Our review is de novo upon the record, accompanied by a presumption of correctness
of the findings of fact of the Trial Court, unless the preponderance of the evidence is otherwise.
Tenn. Rule App. P. 13(d); Alexander v. Inman, 974 S.W.2d 689, 692 (Tenn. 1998). A Trial Court’s
conclusions of law are subject to a de novo review with no presumption of correctness. Ganzevoort
v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

                 Since the custody of the Children is the predominant issue in this appeal, we will
address it first. In child custody determinations, courts “should promote children’s best interests by
placing them in an environment that will best serve their physical and emotional needs.” Gaskill v.
Gaskill, 936 S.W. 2d 626, 630 (Tenn. Ct. App. 1996). A number of factors are to be considered by
the court in determining child custody, and these factors are outlined in Tenn. Code Ann. § 36-6-
106(a), in pertinent part, as follows:

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

               (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;

                                            ******
               (8) Evidence of physical or emotional abuse to the child, to the other
               parent or to any other person. . . . The court shall include in its
               decision a written finding of all evidence, and all findings of facts
               connected thereto . . . .



                                                 -5-
               (9) The character and behavior of any other person who resides in or
               frequents the home of a parent and such person’s interactions with the
               child; and

               (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.

                Trial courts have broad discretion in making custody determinations, but courts still
must apply the applicable principles of law. Gaskill v. Gaskill, 936 S.W.2d at 631. In deciding
custody matters, trial courts take into account a number of factors, “including the parents’ demeanor
and credibility during the divorce proceedings themselves.” Id. Accordingly, this Court is “reluctant
to second-guess a trial court’s decisions” regarding child custody. Id.

                When both parents seek custody, “[c]ourts customarily devise initial custody and
visitation arrangements by engaging in a ‘comparative fitness’ analysis which requires them to
determine which of the available custodians is comparatively more fit than the other.” Id. at 630.
Accordingly, courts should not focus only on one parent’s fitness since both parents’ fitness should
be compared and considered. Id. at 631.

               In this matter, the Trial Court gave two findings of fact as the basis for its
determination that custody of the Children should be awarded to Husband: (1) Wife’s adulterous
relationship; and (2) Husband had, at the time of trial, the more stable home environment. Wife
contends on appeal, among other things, that the Trial Court erred in awarding custody of the
Children to Husband because the proof in the record shows Husband had committed violent acts
against her during the marriage, at least some of which were witnessed by the Children. Wife also
argues that the Trial Court erroneously based its custody decision upon Wife’s extramarital affair
with Ledbetter. Wife points out that when Husband was asked why he wanted custody of the
Children, he testified only that it was because of Wife’s affair.

                We agree with Wife that her adulterous relationship cannot be the only basis for the
Trial Court’s decision regarding custody of the Children. A “parent’s sexual infidelity or
indiscretion does not, ipso facto disqualify that parent from receiving custody of his/her children.”
Varley v. Varley, 934 S.W.2d 659, 666-67, (Tenn. Ct. App. 1996). “When the activities of the parent
involve neglect of the children, however, such neglect is a consideration in determining the
children’s best interests.” Id. In addition, under a number of the statutory factors outlined in Tenn.
Code Ann. § 36-6-106(a), a trial court may consider the effect of a parent’s extramarital affair on the
Children and on the parent’s fitness as a custodian.

              According to its factual findings, the Trial Court, however, also considered the home
environment that Husband could provide the Children to be more stable than the home Wife could


                                                 -6-
provide. The evidence contained in the record on appeal does not preponderate against this factual
finding. See Tenn. Rule App. P. 13(d); Alexander v. Inman, 974 S.W.2d at 692.

              Nevertheless, due to the Trial Court’s failure to make any specific findings of fact
regarding Wife’s allegations of abuse by Husband, we vacate the custody portion of the Trial Court’s
Final Decree. Much of the trial testimony dealt with Wife’s claim of Husband’s abuse. For some
reason, however, the Trial Court never addressed this issue.

                Tenn. Code Ann. § 36-6-106(a)(8) specifically lists as one of the factors that the Trial
Court “shall consider . . .” in making its custody determination is “[e]vidence of physical or
emotional abuse . . . to the other parent . . . .” This subsection also mandates that “[t]he court shall
include in its decision a written finding of all evidence, and all findings of fact connected thereto.”
Id. Wife made allegations and presented proof of Husband’s physical and emotional abuse of her.
Much of the trial was related to this issue. The Trial Court made no “written finding of all evidence,
and all findings of facts . . .” related to Wife’s allegations and proof of physical and emotional abuse
of her by Husband. This portion of the statute is mandatory and provides that the Trial Court “shall”
make this written finding of evidence and findings of fact concerning the allegations and proof of
abuse presented to the Trial Court.

                Husband’s abuse of Wife, if any, and particularly any abuse in the presence of the
Children, weighs heavily in this custody determination as such abuse is relevant to the court’s
comparison of the parties’ fitness as parents. The implications of such abuse, if true, are far-reaching
with respect to the relationship that Husband has with the Children’s mother, Wife, and the
relationship that Husband has and will have with the Children. Since this Court did not have the
benefit of observing the parties’ manner and demeanor during their testimony at trial, this Court is
not in a position to determine which party is more credible on this disputed, yet critical, issue. See
Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000).
Accordingly, we vacate the permanent custody portion of the Trial Court’s Final Decree and remand
this matter to the Trial Court to make a written finding of all evidence and specific findings of fact
regarding Wife’s allegations of abuse by Husband, particularly the allegations of abuse occurring in
the presence of the Children. Having considered all relevant factors, we hold that if the Trial Court
on remand finds that Wife carried her burden and established that Husband is guilty of this abuse,
then custody of the Children shall be granted to Wife as being in the best interests of the Children.
If the Trial Court finds that Wife failed to carry her burden regarding this issue, custody of the
Children shall be with Husband as determined by the Trial Court in its original Final Decree.

               We now turn to Wife’s argument on appeal that the Trial Court erred in its property
division. We note that Wife, on appeal, failed to comply with Ct. App. Tenn. R. 15 which requires,
in matters involving the “amount or the disposition of the marital property,” the appellant to include
in her brief “an orderly tabulation of all marital property in a form substantially like the form
attached [to Rule 15].” Despite Wife’s non-compliance with Rule 15, we will address, as best we
can, Wife’s issues on appeal regarding the Trial Court’s disposition of the parties’ property.



                                                  -7-
                First, Wife contends that the Trial Court erred in holding that the real property was
Husband’s separate property, and, therefore, that Wife was not entitled to any of the real property.
Wife argues that improvements were made to the property after the parties were married and that,
therefore, the property is marital property. Wife points to her testimony that the parties made
improvements on the property after they were married, including the addition of two storage
buildings, a porch, underpinnings and the cleaning and maintenance of the yard.3 Wife also contends
these post-marriage improvements to the real property increased its value by $2,000 and points out
that her opinion was undisputed at trial.

               The terms “marital property” and “separate property” are defined in Tenn. Code Ann.
§ 36-4-121. Separate property is defined, in pertinent part, as “[a]ll real and personal property owned
by a spouse before marriage.” Tenn. Code Ann. § 36-4-121(b)(2)(A). Marital property is defined
in a number of ways by Tenn. Code Ann. § 36-4-121(b)(1), which include, in pertinent part:

                  (A) “Marital property” means all real and personal property, both
                  tangible and intangible, acquired by either or both spouses during the
                  course of the marriage up to the date of the final divorce hearing
                  ....

                  (B) “Marital property” includes income from, and any increase in
                  value during the marriage of, property determined to be separate
                  property in accordance with subdivision (b)(2) if each party
                  substantially contributed to its preservation and appreciation . . . .

The term “substantial contribution” is defined by this statute as that which:

                  may include, but not be limited to, the direct or indirect contribution
                  of a spouse as homemaker, wage earner, parent or family financial
                  manager, together with such other factors as the court having
                  jurisdiction thereof may determine.

Tenn. Code Ann. § 36-4-121(1)(D).

                 In determining that the real property was not marital property, the Trial Court found
that the real property was received by Husband prior to the parties’ marriage and that the significant
improvements made to the property also were made prior to their marriage. We hold that the proof
contained in the record does not preponderate against these findings. See Tenn. R. App. P. 13(d);
Alexander v. Inman, 974 S.W.2d at 692.




         3
           The proof in the record on appeal shows that the real property was pastureland prior to the time that Husband
obtained the land and placed the first mobile home on it in 1994, before the parties were married.

                                                          -8-
                 We note that the only proof in the record that the improvements made after the parties
were married increased the value of the property is Wife’s opinion that its value increased by $2,000.
The Trial Court apparently did not find Wife’s testimony regarding the alleged increase in the
property’s value to be credible. The Trial Court’s determinations regarding credibility are accorded
deference by this Court. Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d at 502;
Davis v. Liberty Mutual Ins. Co., 38 S.W.3d 560, 563 (Tenn. 2001). “[A]ppellate courts will not re-
evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the
contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). Because the
evidence does not preponderate against the Trial Court’s findings and because of the deference we
must give the Trial Court’s assessments of credibility, we affirm the Trial Court’s determination that
the real property was Husband’s separate property.

                Wife next contends on appeal that the Trial Court erred in awarding the Peterbilt
tractor to Husband.4 Without citing any authority, Wife argues that the Trial Court should have
ordered the tractor to be sold and the proceeds equally divided between the parties. Wife contends,
without citing the record on appeal, that the tractor should be sold because of the variance of the
parties’ opinion as to the value of the vehicle and Wife’s unrefuted testimony that Husband told her
that he would prevent her from “receiving what she would be entitled to” in the divorce. Wife does
not contend, however, that the Trial Court’s overall division of property was not equitable.

                “In making equitable division of marital property, the [Trial Court] shall consider
all relevant factors including” the following:

                   (2)      The . . . vocational skills, employability, earning capacity
                            . . . of each of the parties . . .;

                   (8)      The economic circumstances of each party at the time the
                            division of property is to become effective . . .; [and]

                   (11)     Such other factors as are necessary to consider the equities
                            between the parties.

Tenn. Code Ann. § 36-4-121(c).

                 The Trial Court did order Husband to pay Wife her share, or one-half, of the parties’
equity in the tractor. In addition, the proof contained in the record establishes that Husband uses the
tractor in his job as a trucker and logger. Given Husband’s vocation and employability, the parties’



         4
            Wife inco rrectly argues that the Trial Court never made a specific determination regarding the award of the
Peterbilt tractor. Th e Trial Co urt, in its Final Decree , awarded th e tractor to H usband. In a ddition, on appeal, W ife
discusses both the Peterbilt tractor and trailer as the parties’ property. The record on appeal shows, however, that the
parties owned only the Peterbilt tractor and that Husband leased the trailer from his father.

                                                            -9-
economic circumstances, and the equities between the parties, we find no error in the award of the
Peterbilt tractor to Husband. See Tenn. Code Ann. §§ 36-4-121(c)(2), (8) & (11).

               Wife’s remaining argument on appeal concerns the Trial Court’s award of various
other personal property items to Husband. We find this issue to be without merit.

                                          CONCLUSION

                The portion of the Trial Court’s Final Decree regarding permanent custody of the
parties’ Children, medical insurance for the Children, and child support is vacated and remanded
to the Trial Court for further proceedings consistent with this Opinion. The remainder of the Trial
Court’s Final Decree is affirmed. However, pending a determination of custody and related issues
on remand, the Children will remain in the now temporary custody of Father as ordered by the Trial
Court in its Final Decree. Additionally, all child support, including medical insurance and
responsibility for medical and dental expenses not covered by medical insurance, and visitation as
ordered by the Trial Court in its Final Decree shall remain in effect on a temporary basis until a
determination on remand by the Trial Court of custody and related issues. This cause is remanded
to the Trial Court for further proceedings as required, consistent with this Opinion, and for collection
of the costs below. The costs on appeal are assessed equally against the Appellant, Victoria Kay
Goad Nelson, and her surety, and the Appellee, James Roger Nelson.




                                                        ___________________________________
                                                        D. MICHAEL SWINEY, JUDGE




                                                 -10-
