TINA KIRCHNER MONTZ,                    )
                                        ) Appeal No.
      Plaintiff/Co unter-De fendant/    ) 01A01-9812-CV-00635
      Appellee,                         )

v.
                                        )
                                        )
                                        ) Davidso n Circuit
                                                             FILED
CHRISTIAN ANDREW MONTZ,                 )                      June 29, 1999
                                        )
      Defendant/Counter-Plaintiff/      )                    Cecil Crowson, Jr.
      Appellan t.                       )                   Appellate Court Clerk




                    COURT OF APPEALS OF TENNESSEE
                     MIDDLE SECTION AT NASHVILLE




APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE MARIETTA SHIPLEY, JUDGE.




DAVID H. HORNIK,
222 Sec ond Av enue N orth
Suite 350M
Nashville, Tennessee 37201-1649
       Attorney for Plaintiff/Counter-Defendant/Appellee

ROSEMARY E. PHILLIPS
429 Church Street
P.O. Box 590
Goodlettsville, Tennessee 37070-0590
      Attorney for Defendant/Counter-Plaintiff/Appellant




                        AFFIRMED AND REMANDED




                                        HERSCHEL P. FRANKS, JUDGE




CONCUR:
GODD ARD, P.J.
SUSAN O, J.
                        M E M O R A N D U M O P I N I O N1


                In this divorc e action, the h usband h as raised thes e issues on a ppeal:

                1.      Whether the Court erred in awarding custody of the minor
                        child to the mother?

                2.      Whethe r the Cour t erred in setting child supp ort?

                3.      Whethe r the Cour t erred in the d ivision of the debt?

                4.      Whether the cou rt erred in not awarding h usband’s attorney’s
                        fees?

                The parties were m arried in October of 1 994, and one ch ild was born

to the marriage on Se ptember 21, 1995 . The father insists that the Trial Cou rt

erred in awarding cu stody of the child to the mother.

                The husband’s attack on the wife’s credibility is based upon

misrepresentations made to the Court. Clearly, the Trial Judge was concerned

about the conduc t of both parties and their represen tations to the Court. How ever,

the best interest of the child is the test in the placement of custody, and the Trial

Judge’s fa ctual determ inations from the testimon y of the witne sses is entitled to

deference by this Court, since the Trial Judge had the opportunity to observe and

evaluate all o f the parties’ te stimony. Mo reover, custo dy may not be u sed to

punish or reward parents, but should be utilized to promote the best interest of the

child by p laceme nt with the pare nt, see Gask ill v. Gaskill, 936 S.W.2d 626 (Tenn.

App. 19 96), and in a warding custody neithe r parent is to be measured against a

standa rd of p erfectio n. Id. at 106.

                In this case, the Trial Court considered the parents’ behavior and


        1
                The Court of Appeals' Rules provide:

         RULE 10. AFFIRMANCE WITHOUT OPINION
                 (b) The Court, with the concurrence of all judges participating in the case, may
affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum opinion it
shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited
or relied on for any reason in a subsequent unrelated case.



                                               2
parenting skills, and concluded that the husband had created a climate of physical

and emo tional abuse during the m arriage, and took into ac count his attitu de as to

parental responsibility, generally. Ultimately, the Court, after carefully analyzing

the evidence relating to the issue of custody, said:

                The Court is bound by the factors in determining a parenting plan
                under T.C.A. §36-6-411. The primary factor applicable in this case
                is (B) which discusses the strength, nature and stability of the child’s
                relationship with each parent, including whether a parent has taken
                greater responsibility for performing parenting responsibilities
                relating to the daily needs of the child, as well as the continuity of
                the child’s life. Both parents clearly love the child and can
                successfully care for the child, however, the Court considers Ms.
                Mon tz to be th e prima ry care giv er as state d in (E) .

While the evidence was in conflict about the respective fitness of the parents, the

evidence does not preponderate against the custody award as being in the best

interest o f the ch ild. T.R .A.P. R ule 13( d). Also see Whitaker v. Whitaker, 957

S.W.2 d 834 ( Tenn . App. 1 997).

                As we understand the husband’s next issue, it is contended that the

Trial Court erred in determining that the husband had an average income of

$2,500.00 per mon th, in calculating his child sup port obligatio n. Child sup port is

properly based on the earnin g capacity of a parent, and the ev idence in this record

does not preponderate against the Trial Judge’s finding that the husband’s earning

capacity was at least $30,000.00 per year. We find no merit in this issue.

                Next, the husband argues that the Court erred in the division of the

marital debt. A s a part of the marital settlem ent, the Co urt has discre tion in

allocating indebtedness, as well as assets. Our analysis of the obligations of the

parties does not reveal any inequities in the Court’s adjustment of the marital

indebtedness.

                Finally, the husb and assign s as error, the C ourt’s failure to award h is

attorney’s fees, as requested. The award of attorney’s fees is in the discretion of

the Tria l Court in divo rce actio ns. Koch v. Koch, 874 S.W.2d 571 (Tenn. App.



                                             3
1993). W e find no a buse of d iscretion, in the T rial Court de nying the hus band his

requested attorney’s fee.

              The cost of the appeal is assessed to appellant and the cause

remande d to the Tria l Court.




                                               ________________________
                                               Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Charles D. Susano, Jr., J.




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