                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                         August 27, 2001 Session

  MELONEY GAIL CARR (CAMPBELL) v. GRADY LEONIAL CARR, III

                        Appeal from the Chancery Court for Haywood County
                             No. 12031    George R. Ellis, Chancellor



                       No. W2000-02420-COA-R3-CV - Filed October 3, 2001


This is a child custody case. The parties were separated in February 2000 and the father was
awarded temporary custody of the parties’ two minor children. After the trial, the mother was granted
the divorce, but custody of the two children remained with the father. The father was required to pay
rehabilitative alimony on the condition that the mother enroll in EMT classes. The mother appeals,
asserting that the trial erred in denying a continuance when several of the mother’s witnesses were
unavailable to testify at the hearing, in awarding custody to the father, in making the rehabilitative
alimony conditional on the mother enrolling in EMT classes and in the division of marital property.
We reverse the award of custody to the father, modify the order on rehabilitative alimony, modify
the division of marital property, and remand to the trial court to determine issues relating to child
support.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
                      Reversed in Part, Modified and Remanded

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which J. ALAN E. HIGHERS, J., and
DAVID R. FARMER , joined.

Steven R. Walker, Memphis, Tennessee, for the appellant, Meloney Gail Carr.

Didi Christie, Brownsville, Tennessee, for the appellee, Grady Leonial Carr, III.

                                          OPINION
                                          1
      This is a child custody case. This case arises from the divorce of Appellant, Meloney Carr
(now Campbell) (hereinafter “Mother”), and Appellee, Grady Carr (hereinafter “Father”). The parties



         1
            There is no transcript of the proceedings below. The record on appeal includes a Statement of the Evidence,
timely filed by counsel for Mother. The Statement of the Evidence was not disputed by Father, and not acted upon by
the trial judge. Consequently, under Rule24(f) of the Tennessee Rules of Appellate Procedure, the Statement of Evidence
is deemed approv ed.
were married in January 1994, and had two children, Britney (born February 13, 1994) and Grady
(born November 12, 1996).

        Prior to the parties’ separation, the family lived in Haywood County, Tennessee. Father was
employed by a railroad in a job that at times required him to be away from home overnight. During
the marriage, Mother was not employed outside the home, but instead stayed at home with the
parties’ children, by agreement of the parties. Several members of Father’s extended family live in
Haywood County, while members of Mother’s extended family live in Desoto County, Mississippi.
It is undisputed that Mother was the children’s primary caregiver.

        On January 2, 2000, Mother moved out of the marital home, taking with her the parties’ two
children. Mother was unemployed and without means of support; she and the children moved into
her sister’s home in Mississippi. Father remained in the marital home in Haywood County,
Tennessee.

        On February 4, 2000, Mother filed for divorce alleging both irreconcilable differences and
inappropriate marital conduct. In the Complaint, Mother alleged that Father had recently “threatened
to beat and kill her, as well as, take the children to where she would never see them again.” Mother
sought a restraining order against Father, which was granted. Father contested the divorce, denied
the allegations of inappropriate marital conduct, and sought temporary custody of the children,
asserting that he could provide a more stable environment and noting that he had the support of his
extended family in Haywood County. He sought to have the temporary restraining order dissolved.

        After a hearing, the trial court awarded temporary custody of the children to Father, provided
that the paternal grandmother move into the marital home with Father and that the children not be
exposed to alcoholic beverages. The temporary restraining order against Father remained in place.

         The divorce action was heard on May 22, 2000. Mother sought to present testimony from
Jennifer Jackson to establish that Father had had a lengthy affair with Jackson, and also to establish
Father’s temper, propensity to violence and his abuse of alcohol.2 However, the day before the
hearing, Jackson suffered an accident and was unavailable to testify. On the date of the hearing, two
other persons Mother intended to call as witnesses had not yet been served with subpoenas.
Mother’s attorney sought a continuance. The trial judge called the attorneys for the parties into his
chambers to discuss the continuance; the attorneys agreed that the unavailable witnesses’s testimony
would be cumulative to the other testimony offered by Mother and would primarily go to the grounds
for divorce and not to custody. After Father stipulated to the affair and to the grounds for divorce,
the trial judge denied the continuance.




         2
          Affidavit of Jennifer Ja ckson. In her affidavit, Jackson asserts that Father was an excessive drinker. She states
that she witnessed him lose his temper on many occasions and that it was almost routine for him to throw a plate or glass
at her.

                                                            -2-
        Mother testified at the outset of the hearing. She testified that Father worked for a railroad,
and that his work required him at times to be away overnight. Mother said that she had not worked
for approximately the last eight years. She said that, when the parties married, she quit school at
Father’s request. She had discussed with Father the possibility of returning to school to become an
EMT. She asserted that Father told her that she was supposed to be a housewife and take care of the
children, that she could not make it in school because she was stupid, that she would never amount
to anything, and that she would only be a housewife who depended on someone else to take care of
her. Mother said that, since the parties’ separation, it had been hard to find a job. She said that two
temporary employment agencies had indicated that they could find her temporary employment at
$8.00 per hour.

        Mother described Father’s alcohol abuse. She said that Father drank almost daily, that he
would begin drinking Wild Turkey bourbon in the morning and continue until supper. On his days
off, she said, Father would be out with his friends until the early morning hours.

        Mother also described Father’s physical abuse of her. She testified that, immediately after
she had knee surgery, Father threw and pushed her across a room and into a fireplace, causing her
to hit her head. On more than one occasion, she asserted, Father had held her down, sitting on top
of her, and poked her in the chest hard enough to leave visible bruises. She said that once Father
threw his glass of bourbon at her because she did not refill his glass and told him he had been
drinking too much. The glass almost hit their daughter, Britney, who had been standing next to
Mother.

        Mother testified that Father frequently lost his temper with the parties’ children over small
things. She said that if Father were sleeping and the children’s play woke him, he would whip them
with a belt. She asserted that Father whipped the children frequently, and excessively hard. She said
that he had whipped Britney so hard that it left a deep bruise on her back, and that he had recently
whipped their son hard enough to leave visible marks on his bottom.

        At the time of trial, Mother lived in her parents’ home, with four bedrooms and two baths.
Mother’s mother, Mrs. Walker, testified, corroborating Mother’s testimony that Father’s discipline
had left visible bruises on the parties’ son. Mrs. Walker said that, when the children visited Mother,
they did not want to return to Father.

        Mother’s cousin, Adam Walker, also testified. He said that he rode with Mother to Father’s
home to pick up the children. When they were picked up, Walker asserted, the children were
unclean and hungry and Britney’s hair was “a mess.” He said that the children were happy to leave
Father and cried when they had to return to him. Walker described an incident regarding a puppy
Father had gotten for Mother during the parties’ separation. In the children’s presence, Walker said,
Father yelled at Mother that she “had better take the damn dog or he would get rid of it,” and then
picked the puppy up by the scruff of the neck and threw it into Walker’s arms.




                                                 -3-
         Britney’s kindergarten teacher, Tracy Riddle, also testified at the hearing. Ms. Riddle
testified that, when Mother was the children’s primary caregiver, Britney was always neatly dressed
in matching outfits, with her hair nicely fixed with a bow in it. Since Father had been awarded
temporary custody, she said, Britney was never dressed as nicely, and her hair was unkempt and at
times wet. Ms. Riddle noted that Britney’s hair had recently been cut very short.

        Ms. Riddle also testified that Britney’s eating habits had been affected since Father obtained
custody, that Britney now ate very little at school. She said that she spoke to Father about this,
noting to him that Mother had always packed a lunch for Britney because she did not like the school
food. Ms. Riddle said that Father’s response was that Mother “shouldn’t have left; Britney will
either adapt to the school food or go without.”

       In Father’s testimony, he did not dispute much of Mother’s allegations, but asserted that he
had changed since being awarded temporary custody of the children. Father acknowledged that he
“might have drunk more than he should have, but wasn’t an alcoholic”; he said that he had gone to
one Alcoholics Anonymous meeting and decided that he “didn’t have anything in common with
those people.” He asserted that he had since stopped drinking on his own.

        Father acknowledged that, during the parties’ marriage, Mother had worked hard cleaning
the house and caring for the children, and had “done a better job at it than he ever could have done.”
He admitted that Mother had been the children’s primary caregiver prior to the parties’ separation,
and that she had taken good care of the children during the marriage. Father acknowledged that,
prior to the parties’ separation, he had not gone to church with the children or gone to T-ball games
and the like, but asserted that he had done these things since the parties separated.

       Father admitted that he whipped the children, at times with a belt. He acknowledged
whipping Britney hard enough to leave a bruise on her back, but said that it “wasn’t as big a deal as
Meloney and her family tried to make it out to be.” He conceded that he “might have” whipped his
son with a belt hard enough to leave a mark. Father asserted that he was a firm believer in discipline
and said that he would discipline his children “as I see fit.”

       Father conceded that, shortly after Mother had knee surgery, he had “slung his wife across
the room. . . .”

        Father asserted in his testimony that Mother is now an unfit parent. Without offering
specifics,3 Father said that since Mother had moved in with her family, she was no longer a good
mother and that the children should not be raised around Mother’s family.




         3
          A pleading filed by Mother says that Father asserted that a male friend of Mother’s had slept in the same bed
with Mother and Britney, and that this assertion was untrue. However, Father’s assertion is not contained in the
Statement o f Evidence , which is deem ed appr oved and is the record for this appea l.

                                                         -4-
        Father’s mother testified as well. She said that she had been staying with Father and helping
care for the children. She described the children as happy and well-mannered, except when Mother
came for visits. She said that her son was “a firm father,” and asserted that “if it took spanking them
with a belt, that was what had to be done.” She said that they had cut Britney’s hair very short
because it was too hard to fix.

       After the hearing, the trial court granted the divorce to Mother based on Father’s stipulated
inappropriate marital conduct. The trial court ordered that custody of the children remain with
Father and awarded visitation to Mother in accordance with the Shared Parenting Provisions.
Mother was ordered to pay child support and all medical, dental, psychological and optical expenses
not covered by Father’s insurance. In addition, Mother was awarded rehabilitative alimony for a
period of twelve months, conditioned on her enrollment in and attendance at EMT classes within
three months of the trial court’s order. The trial court also divided the marital property such that
Father received the 1998 Toyota Camry and the bedroom suite in the possession of Mother and
Mother received the 1987 Acura Integra and the family’s computer. From this order, Mother now
appeals.

        Mother first argues that the trial court erred in refusing to continue the trial because of her
absent witnesses. She maintains that, had her request for a continuance been granted, the absent
witnesses would have corroborated her allegations of Father’s alcoholism and violence. Even
without the testimony of the absent witnesses, Mother asserts that the evidence still showed her to
be the more fit parent and that the trial court erred in awarding custody to Father. Mother also
appeals the requirement that she pay all of the children’s medical related expenses not covered by
Father’s insurance. She argues that the trial court erred in requiring her to attend EMT classes in
order to receive rehabilitative alimony, and also appeals the trial court’s division of property.

       We consider first the trial court’s decision to award custody to Father. A trial court’s
findings of fact in child custody cases are reviewed de novo accompanied by a presumption of the
correctness of those findings. Tenn. R. App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555
(Tenn. 1984). However, where, as in this case, the trial court fails to make specific findings of facts,
this Court must make an independent review of the record. Crabtree v. Crabtree, 16 S.W.3d 356,
360 (Tenn. 2000).

        In child custody cases, the welfare and best interest of the child are paramount. See
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. App. 1997); Tenn. Code Ann. § 36-6-106
(1996). The determination of the child’s best interest must turn on the particular facts of each case.
See Taylor v. Taylor, 849 S.W.2d 319, 326 (Tenn. 1993); In re Parsons, 914 S.W.2d 889, 893
(Tenn. Ct. App. 1995). In Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App.1983), the Court adopted
the doctrine of comparative fitness as a common sense approach to determine the child’s best
interest. In making a custody decision, the court must consider the factors set forth in Tennessee
Code Annotated § 36-6-106, including the importance of continuity in the child’s life, the degree to
which a parent has been the primary caregiver, the stability of each parent’s family unit, evidence
of physical or emotional abuse to the child or the other parent, and each parent’s past performance


                                                  -5-
of parenting responsibilities. See Tennessee Code Annotated § 36-6-106(a)(2)-(4), (8) and (10)
(Supp. 2000).

         Any inquiry into the comparative fitness of parents is factually driven and turns upon a
number of considerations, including the credibility and demeanor of the parties. Gaskill v. Gaskill,
936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). Having seen and heard the actual testimony, the trial
court is in the best position to evaluate the parties’ honesty and, thus, the trial court is vested with
broad discretion in awarding custody. Id. at 631. However, the determination of the trial court must
still be based on the proof in the record and upon the appropriate application of the law. Id.

        Reviewing the facts in this case, it is difficult to see how the evidence preponderates in favor
of the award of custody of Father, even considering the deference accorded to the trial court in a
custody decision. In the record before this Court, Mother’s testimony is essentially unrefuted,
regarding Father’s history of alcohol abuse, his physical verbal and emotional abuse of Mother, and
his hot temper and excessive discipline, bordering on physical abuse, of the parties’ children. It is
undisputed that Mother was the children’s primary caregiver prior to the temporary award of custody
to Father, and that Mother did a good job caring for the children. Father admits he was not deeply
involved in the care of the parties’ children prior to the separation. The importance of continuity of
care for children in divorce has been repeatedly emphasized by this Court. See Barnhill v. Barnhill,
826 S.W.2d 443, 453 (Tenn. Ct. App. 1991). While acknowledging his past history of alcohol abuse
and physical and verbal abuse of Mother, Father maintains that he is now a changed man, ceasing
consumption of alcohol with no counseling or professional help and becoming a sensitive and
involved parent, taking the children to church, sports and similar activities. Yet he cavalierly
dismisses his excessive discipline of the children, whipping them with a belt hard enough to leave
bruises, maintaining that he will discipline the parties’ children “as I see fit.” When Britney’s
teacher told Father that Britney ate very little at school, suggesting that he pack her a lunch as Mother
always had, Father responded in a manner devoid of sensitivity to the child’s needs, asserting that
Britney could either adapt to school food or go without.

        Father asserts that he provides the more stable environment, noting that Mother lives in her
parents’ home while Father continues to reside in the marital home. However, this fact must be
viewed in overall context. From the record in this case, Mother left the marital home with the
children after Father’s stipulated adultery and against a backdrop of Father’s admitted alcohol abuse
and physical abuse of Mother. It is undisputed that Mother was unemployed and without job skills
or financial support, by virtue of the parties’ agreement that she leave school to care for the parties’
home and children. Indeed, Mother’s testimony is unrefuted that Father belittled and demeaned
Mother when she broached the idea of obtaining job training, calling her stupid and telling her she
would always be a dependent housewife. The award of temporary custody to Father was conditioned
on the paternal grandmother moving in with Father and the children. Mother now resides in her
parents’ home, with ample space and the support of her extended family, so both parents now reside
in a suitable home with family support.

       Considering all of these circumstances, including the fact that Mother had been the children’s
primary caregiver prior to the award of temporary custody, the importance of continuity in the

                                                  -6-
children’s lives, Father’s lack of involvement in the children’s care prior to the award of temporary
custody, Father’s history of alcohol abuse, Father’s history of physical and verbal abuse of Mother,
Father’s excessive discipline of the children and insensitivity to their needs, and the fact that both
parents live in a suitable home with adequate support from extended family, we must reverse the
decision of the trial court. Mother is hereby deemed the primary residential parent, and the cause
must be remanded to the trial court to determine an appropriate visitation schedule for Father.
Obviously, the award of child support to Father must also be reversed. The record does not include
Father’s income level, so the cause must also be remanded for an appropriate award of child support
to Mother. Father is ordered to maintain health insurance on the parties’ children and is ordered to
pay all non-covered medical, dental, psychological and optical expenses of the children. In light of
this holding, the issue on appeal regarding the trial court’s refusal to continue the trial is
pretermitted.

         Mother also appeals the trial court’s decision to condition rehabilitative alimony on her
enrollment in EMT classes within three months of the trial court’s order. Mother asserts that she no
longer intends to go to EMT school and, thus, the condition on rehabilitative alimony is overly
restrictive. The trial court, of course, is afforded wide discretion concerning an award of alimony.
Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn. Ct. App. 1989). This includes the discretion to
make alimony subject to conditions imposed by the court or agreed upon by the parties. Isbell v.
Isbell, 816 S.W.2d 735, 739 (Tenn. 1991). However, where the trial court fails to make specific
findings of fact considered in reaching its decision, independent review is required. Crabtree v.
Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000).

         The purpose of rehabilitative alimony is to rehabilitate an economically disadvantaged
spouse. Tenn. Code Ann.§ 36-5-101(d)(1) (Supp. 2000). It is undisputed that Mother was in an
economically disadvantaged position. In the record before this Court, it is clear that the decision for
Mother to leave school, refrain from seeking employment, and care for the parties’ home and
children was with Father’s agreement, indeed, at his insistence. The testimony regarding Mother
enrolling in EMT classes was not in the context of her plans for rehabilitation. Rather, it was in the
context of her testimony that, during the parties’ marriage, when Mother broached the topic of
obtaining job training such as enrolling in EMT classes, Father would demean and humiliate her, and
insist that she remain at home. Under the circumstances of this case, in which Mother is clearly in
an economically disadvantaged position, there is no reason to restrict her rehabilitation efforts to
training to become an EMT. The decision of the trial court must be modified, and the award of
rehabilitative alimony for twelve months is not conditioned on Mother enrolling in or attending EMT
classes. On remand, the trial court may extend the rehabilitative alimony beyond twelve months if
circumstances warrant.

         Mother also appeals the trial court’s division of marital property. The trial court’s order
states simply that Father was awarded the parties’ 1998 Toyota Camry and the bedroom suite which
was in Mother’s possession, while Wife was awarded the 1987 Acura Integra and the computer.
Father was ordered to pay any debts on both vehicles and Mother was required to pay the debt on
the computer. The Statement of the Evidence in the record on appeal contains little evidence


                                                 -7-
regarding the martial property to be divided. It contains only Mother’s testimony that when she left
the marital home with the parties’ children, she took the 1998 Toyota Camry, but at the time of trial
she had the 1987 Acura Integra. Mother’s testimony in the Statement of the Evidence is unrefuted
that the 1987 vehicle was inoperable because Father had “worn [it] out. . . .” In view of Mother’s
undisputed economic disadvantage, the division of marital property must be modified to either award
Mother the 1998 vehicle or provide an adjustment in the division of martial property or an award of
alimony in solido to provide her the means to acquire a vehicle suitable to transport Mother and the
parties’ children. The cause is remanded to the trial court for its determination on this issue. In all
other respects, the division of marital property is affirmed.

        The decision of the trial court is affirmed in part, reversed in part, modified and remanded
for further proceedings consistent with this Opinion. Costs on appeal are awarded against the
Appellee, Grady Leonial Carr, III, for which execution may issue if necessary.




                                               HOLLY KIRBY LILLARD, J.




                                                 -8-
