                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     June 28, 2006 Session

    KEVIN KHAM FONGNALY v. VIENQRHONE VICKIE FONGNALY

                   Appeal from the Chancery Court for Rutherford County
                                      No. 04-9276DR



                No. M2005-01757-COA-R3-CV - Filed on September 27, 2006



CHARLES D. SUSANO , JR., dissenting.


        I cannot concur in the conclusion of the majority opinion, i.e., that the evidence does not
preponderate against the trial court’s judgment designating the husband as the primary residential
parent of the parties’ minor children. My review of the record persuades me that the trial court went
against the overwhelming weight of the evidence favoring an award of primary custody to the wife
for one reason and one reason only, i.e., because of the wife’s admitted adulterous relationship
during the marriage. I believe the trial court premised its decision on an incorrect interpretation of
the law and/or made a factually-erroneous decision.

        The trial court rendered its opinion from the bench following the close of proof. The court’s
opinion is approximately eleven pages long. However, it includes only a very brief statement of the
court’s rationale for naming the husband instead of the wife as the primary residential parent. That
section, in its entirety, is as follows:

               In looking at the various factors, the major factors that are the
               overriding consideration in this matter are the – obviously this affair
               that has taken place. It goes to the character of the wife and the
               situation that’s [sic] put the children in. And then that’s balanced by
               the preference of the oldest child somewhat.

               The other factors, both of these parents are fit and proper parents.
               Both of them love their children. Both of them evidently have a very
               good relationship with the children. I would probably characterize
               the mother’s relationship and [sic] being more of the care giver and
               a warmer relationship with the children; the father is more of the
               traditional father. Respect and honor, I think is what we expect of the
               children with the father.
               I am going to try to arrange a joint arrangement to some extent. But
               I’m going to name the father as the primary parent in this situation,
               simply because I think that that’s in the best interest of the children
               when I have looked at all the factors that fall into place.

As I read this opinion, it is clear to me that “obviously” the “major factor[]” in the trial court’s
decision was the wife’s affair.

        It has long been the law in this state that “[i]n custody cases the Court shall not use the
custody of the child as a reward or punishment to the parent, but shall be governed by the welfare
of the child.” Long v. Long, 488 S.W.2d 729, 733 (Tenn. Ct. App. 1972) (citing Carrere v. Prunty,
257 Iowa 525, 133 N.W.2d 692 (1965)).

       In Sutherland v. Sutherland, 831 S.W.2d 283 (Tenn. Ct. App. 1991), we noted that

               [s]exual infidelity or indiscretion does not ipso facto disqualify a
               parent from being awarded custody. However, when the parent’s
               sexual activities or indiscretion involve neglect of the minor child,
               such neglect may be considered in relation to the best interest of the
               minor child.

Id. at 286 (emphasis added). See also Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999); Varley
v. Varley, 934 S.W.2d 659, 666-67 (Tenn. Ct. App. 1996); Lance v. Lance, No. 01A01-9801-CV-
00036, 1998 WL 748283, at *3-4 (Tenn. Ct. App. M.S., filed October 28, 1998); Holeman v.
Holeman, No. M2001-00622-COA-R3-CV, 2002 WL 31397344, at *6 (Tenn. Ct. App. M.S., filed
October 24, 2002); Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004 WL 2346000,
at *8 n.5 (Tenn. Ct. App. M.S., filed October 15, 2004). We have not hesitated to reverse an initial
award of custody when it appeared that custody was placed with a parent because of the other
parent’s extramarital affair in a situation where there was no showing that the parties’ child was
neglected or otherwise adversely impacted by the affair. See, e.g., Sutherland, 831 S.W.2d at 287.

        In the case at bar, the trial court stated that it “would probably characterize” the wife as
“being more of the care giver.” The court also found that she had “a warmer relationship with the
children.” There is an abundance of evidence to support both of these findings. The court also noted
that the oldest child, in her testimony, had stated a preference that her custody be awarded to her
mother. While not mentioned in the trial court’s opinion, it should be noted that this oldest of the
parties’ four children, then age 17, said she thought that she along with her three siblings should live
with their mother. The other three children did not testify.

        The trial court did not state any “custody” findings adverse to the wife except her extramarital
affair. I find that the evidence overwhelmingly supports an award of custody to the wife. There is
no evidence that the wife’s affair involved neglect of her children or that the children were adversely
impacted by the affair. In fact, there is very little in the record regarding the affair and absolutely


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nothing that indicates neglect or an adverse effect on the children. See attached appendix. In fact,
the evidence clearly shows that the children are doing well in school and otherwise flourishing with
their mother as the primary care giver.

        I have reluctantly concluded that the trial court’s decision not to award the wife primary
residential custody status was based solely upon the affair and that the trial court decided that the
primary care giver with “a warmer relationship with the children” should not have primary custody
solely because of her sexual activities with one man. I believe the trial court’s decision was based
upon an interpretation of the law that is at odds with the clearly-stated pronouncements of the
appellate courts of this state.

        I recognize the trial court said that the affair “goes to the character of the wife.” That is all
the court said on the subject of the wife’s “character.” It did not state how the affair was a mark
against the wife’s character or why the court thought it was. If the court is saying that a person who
has an affair – regardless of the circumstances and regardless of whether the affair caused the
participant to neglect a child and regardless of whether the affair adversely affected the child – is
disqualified from being a primary custodian, this is contrary to the law as set forth in this dissenting
opinion. If, on the other hand, the trial court is basing its judgment on a finding of neglect or other
adverse impact on the parties’ children, there is simply no evidence in the record to support such a
finding. In the final analysis, the evidence, in my judgment, clearly preponderates against the trial
court’s award of primary custody to the husband.

        I would reverse the award of custody to the father, grant custody to the wife, and reverse the
trial court’s decision with respect to the marital residence so as to grant ownership of the property
to the wife with her assuming the monetary obligation in connection therewith that was previously
imposed upon the husband. In proposing this modification of the division of property, I note that
the parties agreed at trial that the ownership of the house should accompany the award of primary
custody.

        I respectfully dissent.




                                                        __________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




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