                  IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
             ---------------------------------------------------------------------------

                                                                         FILED
                                                                           Dec. 16, 1997

                                                                         Cecil Crowson, Jr.
                                                                          Appellate Court Clerk

TERRY E. McLEESE, JR.,                         )
                                               )        HENRY CHANCERY
     Plaintiff\Appellant                       )
v.                                             )
                                               )
TAMMY LYNN McLEESE,                            )        Appeal No. 02A01-9605-CH-00130
                                               )
     Defendant\Appellee                        )




        APPEAL FROM THE CHANCERY COURT OF HENRY COUNTY
                      AT PARIS, TENNESSEE
            THE HONORABLE WALTON WEST, CHANCELLOR




W. BROWN HAWLEY, II                                     THOMAS F. VENTIMIGLIA
TERESA McCAIG MARSHALL                                  7445 Reynoldsburg Rd.
308 W. Washington St.                                   Springville, TN 38256
Paris, TN 38242                                         Attorney for Appellee
Attorney for Appellant




AFFIRMED

                                               WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

ALAN E. HIGHERS, JUDGE

HOLLY LILLARD, JUDGE


                         M E M O R A N D U M OP I N I O N
       Custody of the five-year-old son of these parties was awarded to the appellee-

mother in a post-divorce hearing. The parties initially agreed upon joint custody.

The father appeals, complaining essentially that the Chancellor relied too heavily on

the tender years doctrine. We cannot substitute our judgment for that of the

Chancellor, but are bound by the limitations imposed by TENN. R. APP. P., RULE

13(d). Unless the evidence preponderates against the judgment, we must affirm.

       Superimposed upon this rule is the important legal principle that the

Chancellor’s determination of credibility is well-nigh conclusive, Walls v. Magnolia

Truck Lines, 622 S.W.2d 526 (Tenn. 1981), and credibility of the witnesses was a

strong factor in this case.

       The Chancellor found:

       The Court is of the opinion that both parties are fit and proper persons to
       have custody of the parties’ child. Presently, the child appears to have a
       closer relationship with his mother. The Court is not overly impressed with
       some of the activities of the mother in the past; she also remains
       unmarried whereas the father has remarried and seems to have a stable
       home. It is oftentimes difficult to determine what is in a child’s best
       interest as the future conduct of any party is obviously unknown.
       However, although the Court is of the opinion the child will do well with
       either parent, the Court is of the opinion that presently the child should
       remain with his mother.

       We note that the operative word in the Chancellor’s finding is “presently,”

which was not idly used.

       Our review of this record does not reveal that the tender years of the child was

an overriding consideration, or that the doctrine based on the youthful age of the

child was impermissibly relied upon. We are persuaded that this case is singularly

appropriate for affirmance pursuant to RULE 10, RULES OF THE COURT OF APPEALS ,1

and the judgment is accordingly affirmed at the costs of the appellant. The case is

remanded to the trial court for all appropriate purposes.


       1
         10. Affirmance Without Opinion - Memorandum Opinion.
              (b) Memorandum Opinion. The Court, with the concurrence of all
       judges participating int he 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. [As amended by order filed April 22, 1992.}

                                           2
                                 William H. Inman, Senior Judge

CONCUR:



______________________________
Alan E. Highers, Judge



______________________________
Holly Lillard, Judge




                                  3
                   IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON
              ---------------------------------------------------------------------------




TERRY E. McLEESE, JR.,                          )
                                                )        HENRY CHANCERY
      Plaintiff\Appellant                       )
v.                                              )
                                                )
TAMMY LYNN McLEESE,                             )        Appeal No. 02A01-9605-CH-00130
                                                )
      Defendant\Appellee                        )



________________________________________________________________

                                        JUDGMENT

________________________________________________________________



      This cause came on to be regularly heard and considered by this Court, and

for the reasons stated in the Memorandum Opinion of this Court, of even date, it is

Ordered:



      1. The judgment of the trial court is affirmed.

      2. Costs of this appeal are taxed against the appellant for which execution

may issue if necessary.



      ENTER:



                                                William H. Inman, Senior Judge



                                                _________________________________
                                                Alan E. Highers, Judge



                                                _________________________________
                                                Holly Lillard, Judge
