                                FILED
                                December 17, 1999

                                Cecil Crowson, Jr.
                               Appellate Court Clerk
DEBORAH PRICE-LUTTRELL,                  )
                                         )
     Plaintiff/Appellant,      )
                                         )     Appeal No.
v.                        )                  M1999-01834-COA-R3-CV
                          )
GEORGE PARKER LUTTRELL, SR.,                 )     Coffee Circuit
                          )                  No. 2332-D
    Defendant/Appellee.   )



                    COURT OF APPEALS OF TENNESSEE


      APPEAL FROM THE CIRCUIT COURT FOR COFFEE COUNTY

                        AT MANCHESTER, TENNESSEE


               THE HONORABLE JOHN W. ROLLINS, JUDGE




ROBERT J. JACKSON
STANLEY A. KWELLER
Jackson, Kweller, McKinney & Badger
One Washington Square, Suite 103
214 Second Avenue North
Nashville, Tennessee 37201
      ATTORNEYS FOR PLAINTIFF/APPELLANT


ROBERT T. CARTER
Henry, McCord, Bean & Miller


                                                                     Page 1
300 North Jackson Street
P. O. Box 538
Tullahoma, Tennessee 37388
      ATTORNEY FOR DEFENDANT/APPELLEE




                            AFFIRMED AND REMANDED



                                                               WILLIAM B. CAIN, JUDGE
                                   OPINION
              The sole issue on appeal in this case is custody of a minor child, aged
seven years at the time of the trial. The trial court, after hearing the evidence, granted
custody of Nathian Luttrell to his father, George Luttell.         The child’s mother,
Deborah Price-Luttrell now appeals asserting that upon a proper compar-ative fitness
analysis, she should be the custodial parent. We disagree with Ms. Luttrell and
affirm the decision of the trial court.


              At the hearing held in the trial court, seven witnesses testified including
both parties. Following the hearing, the trial court observed as follows:
              Ladies and gentlemen, you can’t have it both ways, and I
              just don’t believe that, frankly, that Mr. Luttrell turned
              from a pillar of the community in a year and a half into the
              monster that Ms. Luttrell says that he is. This is sworn to
              under oath in a court of law. Ronnie Jacobs has
              knowledge of the minor children’s stepfather, his good
              character, and does not abuse alcohol; Vernon Teters has
              knowledge of the minor children’s stepfather, his good
              character, and does not abuse alcohol; Norman Bryant has
              knowledge of the minor children’s stepfather, his good
              character, and does not abuse alcohol; H. B. Rogers has
              knowledge of the minor children’s stepfather, his good
              character, and does not abuse alcohol; Roy Lotance has
              knowledge of the minor children’s stepfat[h]er, his good
              character, and does not abuse alcohol.

              Ms. Luttrell, your credibility is in serious issue with this



                                                                                             Page 2
             Court.

             ....
             Now comes the hard part. Mr. Luttrell, you’re going to be
             faced with a heavy burden because I’m going to give you
             custody of your son, but it’s going to be on the condition
             that you go immediately to Motlow or some other facility
             and enroll yourself in a course where you can learn how to
             read and write, unless a doctor can tell me, or a trained
             professional, that you can’t. I think based on this record
             and the proof that I have heard, that you are the better
             choice, considering Ms. Luttrell’s track record with other
             children. But you’ve got a heavy burden and – but I
             expect you to live up to it.

             In overruling the motion to alter or amend filed by Ms. Luttrell asking
the court to reconsider the custody decision, the court observed: “Where one of the
parties very clearly – you know, there are a multitude of sins out there that affect[]
parenting, and I think being honest plays a role as a role model.             I think it’s
imperative that people raise their children in an environment where there’s some
value ascribed to truth and being honest and forthright, and that was a factor in my
decision in this case.”


             In her first issue, Ms. Luttrell asserts that the trial court was incorrect in
determining that she was comparatively less fit to be the custodian of the minor
child. It is well settled that the paramount concern in a custody decision is the best
interest of the child. Bah v. Bah, 668 S.W.2d 663, 665 (Tenn. Ct. App. 1983). In
making this decision, the court is legislatively mandated to consider certain factors:
             (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;


                                                                                              Page 3
             (6) The home, school and community record of the child;
             ....
             (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.

Tenn. Code Ann. § 36-6-106 (Supp. 1999).

             In seeking the best interest of the child and considering the statutory
factors, the needs of the child are paramount and the desires of the parents
secondary. Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn. 1986). A “comparative
fitness” analysis is required in which neither parent is to be measured by a standard
of perfection. Edwards v. Edwards, 501 S.W.2d 283, 290-91 (Tenn. Ct. App.
1973); Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996). As this
court has held:
             Custody and visitation determinations often hinge on
             subtle factors, including the parents’ demeanor and
             credibility during the divorce proceedings themselves.
             Accordingly, appellate courts are reluctant to
             second-guess a trial court’s decisions. Trial courts must
             be able to exercise broad discretion in these matters, but
             they still must base their decisions on the proof and upon
             the appropriate application of the applicable principles of
             law. Thus, we review these decisions de novo on the
             record with a presumption that the trial court’s findings of
             fact are correct unless the evidence preponderates
             otherwise.
Gaskill, 936 S.W.2d at 631 (citations omitted).


             Although seven witnesses testified in the hearing below, the case made
by the record turns almost entirely on the credibility of the parties. Ms. Luttrell had
been twice before married and had two sons by her first marriage. Mr. Luttrell had
been once before married and had one child by this previous marriage. Ms. Luttrell



                                                                                          Page 4
testified first with a litany of criticisms of Mr. Luttrell in which she asserted that he
falsely accused her of having affairs with other men. She accused him of excessive
drinking of alcoholic beverages, verbal and physical abuse of her, and inattention to
the minor child. She testified that there were problems from the time they moved to
their farm in 1994 until the time of their separation:
             Shortly after we moved out to the farm is when the
             problems started. We lived quite a ways out in the
             country. He asked – I wanted to visit a friend, he became
             upset if I wanted to go visit a girlfriend or spend a couple
             hours with them. If I wanted to go back to school at one
             point to try to finish up my education, he became very
             upset with that. He had very strong jealousy. If I went to
             the store and he was with me, if somebody even looked in
             my direction he became very upset, made comments to
             those people. Afterwards I received a very verbal chewing
             out. A lot of times I didn’t even know who these people
             were. If I said hi to them, I was chastised for it
             afterwards.

             There was a lot of – there was drinking that went on. And
             the drinking at first didn’t seem to be a problem. After we
             moved out to the farm, drinking increased, which when he
             came in in the evenings, like I said, he’d been drinking
             some and he’d go to sleep, so he wasn’t there as far as
             emotional support as far as the family unit was concerned.
              He wouldn’t take vacations with us. When we’d go on
             holiday to somewhere – he went one time and that was it.
             After that he said he wouldn’t go anymore, so we took
             holidays by ourselves.
             ....
             Q      Let’s go back just a minute. When you were talking
             about the incidents when you were out in public or
             something, that he would chastise you; what would he say?
             A      He’d ask me who was that person. Sometimes I
             knew him. A lot of times I didn’t. Yeah, you know who
             he is. Why would they speak to you, why would they look
             at you. And it got to [a point] where if we ran into
             somebody out there, he would start marking comments,
             what are you looking at, you know. Then we’d get into
             the vehicle, he’d say, are you seeing that person. He’d
             drive by their house, are you sleeping with that person, is
             that somebody else that you’re sleeping with.
             Q      Did he often accuse you of having sexual relations



                                                                                            Page 5
              with other persons?
              A       Yes, ma’am. After we moved to the farm is when
              that started.
              Q       . . . [A]nd you moved to the farm February of ‘94;
              is that right?
                      A       I believe that is correct.
              Q       Approximately how many people would you say he’
              d accused you of throughout the years of having sexual
              relations?
                      A       Several.
              Q       Several, meaning two, ten, [twenty]?
                      A       Ten to [fifteen].




              On cross-examination, Ms. Luttrell was immediately confronted with a
serious problem. Her first husband, Michael Brian Price, had previously filed a
change of custody petition as to Ms. Luttrell’s children by her first marriage. In
preparation for trial of that petition in December 1996, she had filed sworn pleadings
and answers to interrogatories asserting certain matters as to Mr. Luttrell.      She
testified as follows:
              Q       Now, getting ready for the case a year and a half
              ago, you swore in some pleadings that this man was a
              good father, good stepfather, and did not use alcohol; is
              that right?
              A       I said he was not abusive of alcohol, but he did
              drink.
              Q       Do you remember answering Interrogatory Number
              22?
                      A      Can you refresh my memory, please.
              Q       Yes, ma’am. I can show you the document. Do
              you recognize that document, ma’am?
              A       I don’t recognize it, but my signature, I’m sure I
              saw it.
                      Q      Are there a list of names on there?
                      A      There is.
                      Q      What is the first name?
                      A      Ronnie Jacobs.
              Q       According to that document, what is Ronnie Jacobs
              going to testify to?
                      A      In this here?
                      Q      Yes, ma’am.



                                                                                         Page 6
                      A      That George was a good stepfather.
                      Q      Good stepfather.
                      A      And does not abuse alcohol.
              Q       Does not abuse alcohol. What about the second
              witness on there?
                      A      Mr. Teters.
                      Q      Mr. Vernon Teters?
                      A      Correct.
              Q       And what does it say that Mr. Teters was going to
              testify to a year and a half ago?
              A       The stepfather was a good caretaker, does not
              abuse alcohol.
                      Q      What about the third person on the list?
                      A      Mr. Bryant, Norman Bryant.
              Q       What was Mr. Bryant going to testify to a year ago?
              A       To the same thing, good caretaker, does not abuse
              alcohol.
              MR. CARTER: Your Honor, may I refer to the document?
                             THE COURT: Yes.
              BY MR. CARTER:
              Q       Would it be fair to say from your testimony that a
              year and a half ago your ex-husband was a good character,
              a good stepfather, and did not abuse alcohol?
                      A      Yes.
              Q       That’s what your witnesses were going to testify to
              Judge Ewell in that other hearing?
                      A      Yes, I believe so.
                      Q      But today he’s a bad character?
              A       There’s been some changes come about in the past
              year and a half.
                      Q      Since December of 1996?
                      A      Yes, sir.

It is not difficult to see why the trial judge had serious reservations about the
credibility of Ms. Luttrell.


              Ms. Luttrell further testified that since Mr. Luttrell could not read or
write, he would not be capable of assisting six year old Nathian, who suffered from
attention deficit disorder and was hyperactive. This was contrasted by evidence that
Mr. Luttrell, although illiterate, had put his older son, George, Jr., through college,
and that this son was married with three children and held a stable job. The proof
likewise showed that Ms. Luttrell’s two oldest sons by her prior marriage, Aaron and


                                                                                          Page 7
Isaac Price, had been the subjects of juvenile court proceedings instituted by Ms.
Luttrell and that the older son was a “D” student and compelled to attend alternative
school as a discipline problem.        She further testified about problems with the
younger son Isaac:
              A      Basically started this past school year when we
              discovered that Isaac was laying out from school, he wasn
              ’t going to school. I addressed these issues because he
              was falsifying notes to turn in in school. He was told if he
              did not stay in school on a regular basis there would be a
              truancy involved with it. We discovered that he was
              smoking pot, he was popping pills, he was using alcohol
              when he was out with his friends and stuff.
                     Q      As a mother, that caused you concern.
                     A      Yes.
                     Q      You’ve been trying to discipline him.
              A      Correct. I have been trying to get him in counseling
              this past year, and he refuses to go.

              No parent can be a guarantor of the development of children no matter
how dedicated the parent may be in care giving, but factor (10) of Tennessee Code
Annotated section 36-6-106 requires the court to consider “each parent’s past and
potential for future performance of parenting responsibilities.” In this respect, even
inhibited by illiteracy, Mr. Luttrell’s past performance in parenting shines in
comparison to that of Ms. Luttrell.


              It is no longer necessary for the proof to establish that a parent is unfit
in order for custody to be awarded to the other parent.            Harris v. Harris, 832
S.W.2d 352, 353 (Tenn. Ct. App. 1992). The trial court in this case has made no
finding that Ms. Luttrell is an unfit parent and indeed such a finding is neither
mandated by the evidence nor necessary to the custody determination. The trial
court has determined that Mr. Luttrell in a comparative fitness analysis is the better
choice for custody in this case. With the trial court having seen and heard the
witnesses, observed their manner and demeanor in testifying and adjudged their
credibility, this court is reluctant to second guess the trial court.




                                                                                            Page 8
              In a custody decision, the law does not require trial judges to iterate one
by one their determinations of the relevant statutory factors provided in Tennessee
Code Annotated section 36-6-106, but rather it requires that they shall consider such
factors in determining what is in the best interest of the minor child. The trial court
findings of fact come to this court presumed to be correct unless the evidence
preponderates otherwise. Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App.
1992). The evidence in this case considered as a whole does not preponderate
against the findings of the trial judge.


              Ms. Luttrell further asserts that the trial court erred in referring to
evidence from individuals who did not testify as witnesses in this trial. This issue
arises from a reading into evidence of the answers of Ms. Luttrell to Interrogatory
Number 22 in the Price v. Price-Luttrell case. Therein she listed witnesses whom
she contended would testify that Mr. Luttrell was of good character, a good
stepfather and did not abuse alcohol. No contemporaneous objection was made to
this document at the time that it was admitted in evidence and objections thereto can
not be raised for the first time on appeal. See Wright v. United Servs. Auto Ass’n,
789 S.W.2d 911, 915 (Tenn. Ct. App. 1990).


              In the Price proceeding, Ms. Luttrell had been asked to name witnesses
who would testify in that proceeding as to the facts that she was asserting in that
same proceeding. She was asserting at that time that Mr. Luttrell was a good
stepfather, a good caretaker and did not abuse alcohol. Ms. Luttrell, in answer to
the interrogatory, disclosed this very testimony. Following the use of this exhibit in
cross-examining her, she testified:
              Q     Would it be fair to say from your testimony that a
              year and a half ago your ex-husband was a good character,
              a good stepfather, and did not abuse alcohol?
                    A      Yes.
              Q     That’s what your witnesses were going to testify to
              Judge Ewell in that other hearing?
                    A      Yes, I believe so.




                                                                                            Page 9
There was no error in the trial court consideration of this document. Pankow v.
Mitchell, 737 S.W.2d 293 (Tenn. Ct. App. 1987).


             The judgment of trial court is in all respects affirmed and this case is
remanded for such further proceedings as may be necessary. Costs of the appeal
are assessed against the appellant, Ms. Luttrell.




                                 ____________________________________
                                 WILLIAM B. CAIN, JUDGE


CONCUR:


___________________________________
WILLIAM C. KOCH, JR., JUDGE


___________________________________
PATRICIA J. COTTRELL, JUDGE

             Pçëç As a mother, that caused you concern.
                    A      Yes.
                    Q      You’ve been trying to discipline him.
             A      Correct. I have been trying to get him in counseling
             this past year, and he refuses to go.

             No parent can be a guarantor of the development of children no matter
how dedicated the parent may be in care giving, but factor (10) of Tennessee Code
Annotated section 36-6-106 requires the court to consider “each parent’s past and
potential for future performance of parenting responsibilities.” In this respect, even
inhibited by illiteracy, Mr. Luttrell’s past performance in parenting shines in
comparison to that of Ms. Luttrell.


             It is no longer necessary for the proof to establish that a parent is unfit



                                                                                           Page 10
in order for custody to be awarded to the other parent.            Harris v. Harris, 832
S.W.2d 352, 353 (Tenn. Ct. App. 1992). The trial court in this case has made no
finding that Ms. Luttrell is an unfit parent and indeed such a finding is neither
mandated by the evidence nor necessary to the custody determination. The trial
court has determined that Mr. Luttrell in a comparative fitness analysis is the better
choice for custody in this case. With the trial court having seen and heard the
witnesses, observed their manner and demeanor in testifying and adjudged their
credibility, this court is reluctant to second guess the trial court.


              In a custody decision, the law does not require trial judges to iterate one
by one their determinations of the relevant statutory factors provided in Tennessee
Code Annotated section 36-6-106, but rather it requires that they shall consider such
factors in determining what is in the best interest of the minor child. The trial court
findings of fact come to this court presumed to be correct unless the evidence
preponderates otherwise. Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App.
1992). The evidence in this case considered as a whole does not preponderate
against the findings of the trial judge.


              Ms. Luttrell further asserts that the trial court erred in referring to
evidence from individuals who did not testify as witnesses in this trial. This issue
arises from a reading into evidence of the answers of Ms. Luttrell to Interrogatory
Number 22 in the Price v. Price-Luttrell case. Therein she listed witnesses whom
she contended would testify that Mr. Luttrell was of good character, a good
stepfather and did not abuse alcohol. No contemporaneous objection was made to
this document at the time that it was admitted in evidence and objections thereto can
not be raised for the first time on appeal. See Wright v. United Servs. Auto Ass’n,
789 S.W.2d 911, 915 (Tenn. Ct. App. 1990).


              In the Price proceeding, Ms. Luttrell had been asked to name witnesses
who would testify in that proceeding as to the facts that she was asserting in that
same proceeding. She was asserting at that time that Mr. Luttrell was a good



                                                                                            Page 11
stepfather, a good caretaker and did not abuse alcohol. Ms. Luttrell, in answer to
the interrogatory, disclosed this very testimony. Following the use of this exhibit in
cross-examining her, she testified:
             Q     Would it be fair to say from your testimony that a
             year and a half ago your ex-husband was a good character,
             a good stepfather, and did not abuse alcohol?
                   A      Yes.
             Q     That’s what your witnesses were going to testify to
             Judge Ewell in that other hearing?
                   A      Yes, I believe so.

There was no error in the trial court consideration of this document. Pankow v.
Mitchell, 737 S.W.2d 293 (Tenn. Ct. App. 1987).


             The judgment of trial court is in all respects affirmed and this case is
remanded for such further proceedings as may be necessary. Costs of the appeal
are assessed against the appellant, Ms. Luttrell.




                                 ____________________________________
                                 WILLIAM B. CAIN, JUDGE


CONCUR:


___________________________________
WILLIAM C. KOCH, JR., JUDGE

___________________________________
PATRICIA J. COTTRELL, JUDGE




                                                                                         Page 12
