                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE

                                                              FILED
STEPHEN LEWIS,                       )
                                     )                         July 27, 1999
       Plaintiff/Appellee            )      Montgomery Chancery No. 97-11-0024
                                     )                      Cecil Crowson, Jr.
v.                                   )                     Appellate Court Clerk
                                     )      Appeal No. 01A01-9809-CH-00469
STEPHANIE LEWIS,                     )
                                     )
       Defendant/Appellant.          )


         APPEAL FROM THE CHANCERY COURT OF MONTGOMERY COUNTY
                       AT CLARKSVILLE, TENNESSEE


                THE HONORABLE CAROL A. CATALANO, CHANCELLOR



For the Plaintiff/Appellee:          For the Defendant/Appellant:

F. J. Runyon, III                    Carrie W. Kersh
Clarksville, Tennessee               Clarksville, Tennessee



                                     AFFIRMED


                                     HOLLY KIRBY LILLARD, J.


CONCUR:

W. FRANK CRAWFORD, P.J., W.S.


ALAN E. HIGHERS, J.
                                            OPINION

       This is a divorce and child custody case. The wife challenges the trial court’s order awarding

the husband custody of the parties’ minor child, as well as the trial court’s decision to grant the

divorce to the husband on the grounds of inappropriate marital conduct. We affirm.

       Appellant Stephanie Lewis (“Wife”) and Appellee Stephen Lewis (“Husband”) were married

on June 8, 1991. They had one child, a daughter, Jaylin Lewis (“Jaylin”), born March 24, 1994. The

record indicates that the parties had a tumultuous relationship.

       In June 1997, Wife told Husband that she wanted a divorce. Husband testified that Wife

asked for her share of the equity in the parties’ home. After Wife showed Husband divorce “papers,”

Husband signed a check to her for $20,000, representing Wife’s equity in the parties’ home. Wife

then gave Husband a quitclaim deed and moved out of the home for approximately five or six weeks,

after which the parties apparently reconciled. Wife testified that she wanted a divorce but that she

changed her mind. Wife said that Husband insisted that she move out of the home and only then did

she ask for her share of the equity in the home.

       On November 6, 1997, Husband filed for divorce, citing irreconcilable differences and

inappropriate marital conduct. Later that same day, Wife filed a petition seeking an order of

protection, based upon several incidents of alleged abuse by Husband. She obtained a temporary

ex parte order of protection. On November 14, 1997, the trial court conducted a hearing regarding

Wife’s petition.

       At the hearing on Wife’s petition, Wife testified that on November 1, 1997, she, Husband,

and Jaylin attended a basketball game. As they started to leave the game, Husband carried Jaylin

down the bleachers. Jaylin became upset and began crying and “resisting” by kicking her legs. As

Husband went down the bleachers with Jaylin, he slipped and almost fell. Jaylin continued crying,

and Wife testified that Husband was very upset. They got in the car, with Husband driving and Wife

and Jaylin in the back seat. Wife said that, once inside the car, Husband yelled at Jaylin and

slammed on the brakes and caused Wife and Jaylin to be thrown forward, pinning Jaylin’s foot

against the frontseat of the vehicle.

       At the hearing, Husband recalled the incident differently. He testified that Jaylin climbed

up and down the bleachers acting like a “three year old” when Wife said that she was “tired of

dealing with this” and that she wanted to leave. Husband testified that he almost lost his balance

while carrying Jaylin down the bleachers because Jaylin began crying and kicking. Husband
testified that Jaylin was crying in the car on the way home from the game, and Wife started yelling

at Jaylin. After asking Wife and Jaylin to calm down, Husband “tapped” the brakes prior to

approaching a stop sign. Husband denies slamming on the brakes causing Wife and Jaylin to be

thrown forward.

       At the hearing, Wife testified to another alleged incident of abuse several days later, on

November 5, 1997. Wife testified that she and her mother, Glenda Shoop (“Shoop”), and Jaylin

went to the grocery store. When they left the grocery store, Jaylin refused to sit in her car seat. Once

they returned home, Wife put Jaylin in “time-out.” Husband then got home from work and asked

Wife what had happened. Wife admitted walking past Husband and responding with an obscene

gesture. Wife testified that Husband then began yelling “in that threatening tone” at Shoop in the

kitchen. Before she knew it, Wife said she grabbed a knife. Wife stated that she said, “[p]lease

don’t hurt my mom.” After “realizing” that she had a knife in her hand, Wife testified that she

placed the knife on the counter and called 911. Wife reported to the 911 operator that Husband was

threatening her. Shoop testified that Husband became angry, began “yelling” at her, and allegedly

slapped Shoop on the hand.

        Husband also recalled this incident differently. He testified at the hearing that he returned

home to find Jaylin in “time-out.” Husband asked what had happened. Husband testified that Wife

responded with an obscene gesture, so Husband asked Shoop what had happened. Shoop stated,

“what the hell do you care?” Husband testified that Wife then grabbed a kitchen knife and held it

three inches from his face. Husband denied threatening or slapping Wife or Shoop.

        After hearing the conflicting testimony, the trial court addressed the alleged incidents of

violence:

                [In addressing November 1, 1997, incident,] [t]he Court . . . find[s] that
        apparently this child is a high maintenance child. And because she is that, these
        parties have had several disagreements so far as her discipline and keeping up with
        her is concerned. It’s a big responsibility and it does require that both of them do
        what they can.
                The Court does not find that the incident on November 1, 1997[,] constitutes
        a threat of harm to this child or to Mrs. Lewis. Therefore, apparently, Mrs. Lewis
        didn’t think so either. There was no application for peace bond then . . . .
                On November 5th, Mrs. Lewis alleges in her peace bond application that on
        Wednesday night November 5th, Steve Lewis struck my mother on the hand and
        verbally threatened her. The order of protection application does not even relate [to]
        any threat to Mrs. Lewis herself.
                And the Court finds that on November 5th Mr. Lewis did not threaten Mrs.
        Lewis in any way. Rather that Mrs. Lewis threatened him with a knife and that his
        mother-in-law was being confrontational . . . .


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               [T]he Court finds the following facts: [t]hat on November 6th 1997[,] Mr.
       Lewis filed a petition for divorce. On November 6th -- before this order of protection
       -- Mr. Lewis was asking his attorneys to provide for him to have custody of his child.
               But . . . November 6th is the same day that Mrs. Lewis comes and gets this
       application for an order of protection. And it more appears that she obtained it
       because of what Mr. Lewis was in the process of doing more than anything else . .
       ..

Thus, the trial court denied Wife’s petition for an order of protection.

       On March 23, 1998, the same trial judge heard the divorce proceedings. The trial court

refused to hear evidence concerning alleged violent incidents occurring from November 1, 1997, to

November 5, 1997, because the proof was previously presented at the hearing on Wife’s petition for

an order of protection.

       In the divorce proceedings, Wife testified to several incidents of violence which allegedly

occurred during the course of the marriage. Wife testified that the abuse began the first week of their

marriage when Husband yelled at her, pushed her, placed her in a “headlock” and “took her down

to the ground . . . .” Several months after this incident, the parties were lying in bed arguing when

Husband allegedly again placed her in a “headlock.” Wife testified to a third incident on July 3,

1995, when the parties began arguing and Wife pointed her finger in Husband’s face, and Husband

grabbed Wife’s finger. Wife ran to the bedroom and closed the door. Wife said Husband then

“broke through” the door. Wife testified that: “[w]e were just both looking at the door. We couldn’t

believe it. We had to spend the rest of the day piecing it back together.” Wife also testified that

Husband pulled her hair on several occasions. Wife also contends that, in March 1997, Husband

kicked her while the parties were in bed, and Wife slapped Husband. Wife admitted that she did not

tell anyone of Husband’s alleged abuse. Wife admitted assaulting Husband. Wife also admitted

slapping Glenda Lewis, her mother-in-law, causing her to fall to the ground.

       In his testimony, Husband denied any violent behavior, although Husband admitted grabbing

Wife’s hair on two occasions. Husband testified that Wife hit, slapped, and kicked him. Husband

said that the parties frequently argued about money “[a]nd she would get up in my face. She’ll point,

she’ll curse, and then turn around and storm off . . . .” Husband testified that Wife cut his ear with

a key on one occasion and placed a knife to his throat, referring to the November 5th incident.




                                                  3
Glenda Lewis, Husband’s mother, testified regarding the incident in which Wife slapped her and

made her fall to the ground. Glenda Lewis testified that Wife had a “crazed” look in her eye.

       In the divorce proceedings, both parties claimed to be Jaylin’s primary caregiver. Prior to

the marriage, Husband obtained a college degree. At the time of trial, Husband was employed in the

banking industry. Wife attended the same college and obtained a degree in psychology and

sociology. Wife pursued jobs in the behavioral sciences field but was unsuccessful because

prospective employers indicated that Wife needed a master’s degree. Wife chose not to obtain a

graduate degree and had several jobs before accepting a position at a bank.

       Subsequently, Wife became pregnant. For two months after Jaylin’s birth, Wife stayed home

to care for the child. Wife then began working part-time at a bank. While Wife was at work, Glenda

Lewis cared for Jaylin. Once Jaylin reached two years old, she attended a daycare center while Wife

continued to work on a part-time basis. Wife testified that she cares for Jaylin when Husband travels

out of town on business trips. Wife said that she and Jaylin share a “typical mother/daughter”

relationship, and that Jaylin is the most important priority in her life.

       Husband testified that he was Jaylin’s primary caregiver. Husband said that he was the

parent responsible for disciplining Jaylin and that he explained to her behaviors that were considered

bad, as well as the consequences of such behavior. Husband testified that he took care of Jaylin in

the mornings before leaving for work and particularly on weekends. Husband said that Jaylin enjoys

many activities with him such as visiting his parents and “running errands” on the weekends.

Husband enrolled Jaylin in dance classes and brings her to dance class every Friday. Husband also

enrolled Jaylin in a private school.

        Sherry Phillips (“Phillips”), a friend of the parties, testified that Wife had difficulty

controlling Jaylin and that Jaylin “seem[ed] more disciplined and happy with Steve.” Phillips also

said that Husband brought Jaylin to the majority of the birthday parties given for other children.

Cynthia Ginsburg, a neighbor of the parties, testified that she observed Husband playing with Jaylin

in the front yard and taking walks with her around the neighborhood.

        Prior to the divorce proceedings, Wife signed a marital dissolution agreement, which was

later withdrawn, giving custody of Jaylin to Husband. In her testimony, Wife said that Husband




                                                   4
promised to attempt a reconciliation in return for custody of Jaylin. Rhonda Byard (“Byard”), a

friend of the parties, testified that Wife told her that she was considering giving Husband custody

of Jaylin. The record showed that lengthy negotiations occurred between the parties regarding

several provisions of the marital dissolution agreement.

       After hearing the evidence, the trial court found the following facts:

               The Court finds that [Wife] has conducted herself in an inappropriate way,
       and grants [Husband] a divorce on the grounds of Inappropriate Marital Conduct,
       T.C.A. Section 36-4-102. The impetuous conduct that was related in Court included
       slapping her mother-in-law, holding a knife to her husband, and cutting her child’s
       rabbit bank open to obtain a small amount of money for postage.
                This same conduct applies to [Wife’s] signing of the Marital Dissolution
       Agreement. [Wife] testified that the only reason she signed the Marital Dissolution
       Agreement was because [Husband] had said that he would not reconcile or try again
       to save their marriage unless he had custody of their daughter.
                Witnesses testified in open Court that [Wife] had talked about giving custody
       of the parties’ minor child to [Husband], and that [Wife] had prayed with one of her
       friends about not signing the Marital Dissolution Agreement which gave custody of
       the parties’ minor child to [Husband]. The Court finds that [Wife] could have been
       thinking at that time of the relationship between [Husband] and their daughter, and
       what a good relationship they have together. The Court finds that [Husband] does
       have a good relationship with the parties’ minor child, a relationship which includes
       a practice of making “deals” for her behavior and “pinky promises” when the deal
       is important. The Court further finds that [Husband] tells his child face to face what
       he considers is wrong or bad behavior, and that he is willing to “pop” his child for
       discipline. The Court finds that [Husband] has made a routine of activities with the
       parties’ minor child. . . . The Court finds that [Husband] has enrolled the child in
       dance, and consistently been the parent to take her to dance. The Court finds that
       [Husband] has enrolled the child in the Academy. The Court finds from Ms. Price,
       of Kiddie College, that . . . [Wife] seems to usually be in more of a hurry when
       picking up the child, even though she has adjusted her schedule to only be working
       part-time in order to have more time for the child. The Court finds that neighbors
       testified that . . . after observing both [Husband] and [Wife] with their child, the
       neighbors observe [Husband] as being the more patient parent, and that the child
       seems happier with [Husband].
                The Court finds that these could be some of the reasons why [Wife] was
       willing to give [Husband] custody of their daughter when she executed the Marital
       Dissolution Agreement.
                Based on the testimony presented, the Court finds that it is in the best interest
       of the child that custody be awarded to [Husband].

Thus, the trial court awarded the divorce to Husband and awarded Husband custody of Jaylin. The

trial court also divided marital property and did not grant Wife alimony. From this order, Wife now

appeals.

       On appeal, Wife argues that the trial court erred in granting Husband a divorce on the ground

of inappropriate marital conduct. Wife argues that the trial court erred in excluding testimony

regarding incidents of violence to which Wife testified at the hearing on her petition for an order of




                                                   5
protection. Wife contends that the evidence preponderates against the trial court’s award of custody

to Husband and that the trial court utilized the award of custody to punish Wife.

       In child custody cases, appellate review is de novo upon the record, with a presumption of

the correctness of the trial court’s factual findings. See Tenn. R. App. P. 13(d); Hass v. Knighton,

676 S.W.2d 554, 555 (Tenn. 1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. App. 1993). No

such presumption attaches to the trial court’s conclusions of law. Carvell v. Bottoms, 900 S.W.2d

23, 26 (Tenn. 1995).

       Wife asserts that the trial court erred in refusing to allow evidence of the incidents of

violence upon which the petition for an order of protection was based. She contends that the

evidence preponderates against the trial court’s order awarding the divorce to Husband on the

grounds of inappropriate marital conduct, and argues that the evidence revealed that Husband was

the aggressor and that Wife was afraid of Husband.

       Wife first argues that the trial court erred in excluding from the divorce trial evidence on the

incidents of violence to which the parties testified during the hearing on Wife’s petition for an order

of protection. The trial court has wide discretion in admitting or excluding evidence and will be

reversed on appeal only upon on showing of abuse of discretion. See Otis v. Cambridge Mut. Fire

Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992); Davis v. Hall, 920 S.W.2d 213, 217 (Tenn. App.

1995). In this case, the same trial judge heard testimony on the alleged incidents of violence from

November 1, 1997, to November 5, 1997. At the hearing, the parties testified fully about those

alleged incidents. See Winchester v. Winchester, No. 02A01-9802-CV-00046, 1999 WL 250176

(Tenn. App. Apr. 28, 1999). Wife points to no prejudice from this decision; indeed, further

testimony on the same incidents would have been redundant and unnecessary. We find no abuse of

discretion in the exclusion of evidence about facts already presented before the court. The trial

court’s decision on this issue is affirmed.

       Wife also contends that the evidence preponderates against the trial court’s decision to award

the divorce to Husband on the grounds of inappropriate marital conduct, and argues that the evidence

shows that Husband was the aggressor and that Wife was afraid of him. In awarding the divorce to

Husband, the trial court characterized Wife’s conduct as “impetuous,” noting several incidents,

including “slapping her mother-in-law, holding a knife to her husband, and cutting her child’s rabbit

bank open to obtain a small amount of money for postage.” These incidents were not disputed by


                                                  6
Wife. Most of the remaining incidents were sharply disputed by the parties, with their testimony in

stark contrast. The trial court’s findings on these incidents depended squarely on its assessment of

the parties’ credibility and demeanor in court. A trial court’s determination of credibility is entitled

to great weight on appeal primarily because the trial court had the opportunity to observe witnesses

as they testified. Gaskill v. Gaskill, 936 S.W.2d 626, 633 (Tenn. App. 1996); see Massengale v.

Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995); Koch v. Koch, 874 S.W.2d 571, 577 (Tenn.

App. 1993).    Considering the undisputed evidence, and with appropriate deference to the trial

court’s determination of credibility on the disputed evidence, we find that the evidence does not

preponderate against the trial court’s decision to award the divorce to Husband. The trial court is

affirmed on this issue.

        Wife also contends that the trial court erred in awarding custody of Jaylin to Husband,

arguing that the trial court did not give proper weight to the fact that she had been Jaylin’s primary

caregiver during the marriage. She argues that custody was awarded to Husband in order to punish

her.

        In addressing the custody issue, we recognize that “[c]ustody and visitation determinations

often hinge on subtle factors, including the parents’ demeanor and credibility during the divorce

proceedings themselves.” Gaskill, 936 S.W.2d at 631; see also Rutherford v. Rutherford, 971

S.W.2d 955, 956 (Tenn. App. 1997). The trial court is in the better position than this Court to

observe the parties’ demeanor and determine their credibility. See Whitaker v. Whitaker, 957

S.W.2d 834, 837 (Tenn. App. 1997). “Since [child custody] decisions often hinge on the parties’

credibility, appellate courts are reluctant to second-guess trial judges who have observed the

witnesses and assessed their credibility.” Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn.

App. 1997) (citing Gilliam v. Gilliam, 776 S.W.2d 81, 84 (Tenn. App. 1988)).

        Tennessee Code Annotated § 36-6-101(a) requires that custody of children in divorce be

determined “as the welfare and interest of the child or children may demand.” Tenn. Code Ann. §

36-6-101(a) (Supp. 1998). In Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983), the Court set forth

a common sense approach to determining custody, the doctrine of “comparative fitness.” The Bah

Court noted that “[t]he paramount concern in child custody cases is the welfare and best interest of

the child.” Bah, 668 S.W.2d at 666; see also Ruyle v. Ruyle, 928 S.W.2d 439, 441 (Tenn. App.

1996); Koch, 874 S.W.2d at 575. This determination depends on the facts of each case. Koch, 874


                                                   7
S.W.2d at 575. Tennessee Code Annotated § 36-6-106 sets forth some of the factors to be

considered in performing a comparative fitness analysis. These factors include:

                (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 caregiver;

               (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;

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

              (7) The reasonable preference of the child if twelve (12) years of age or older.
       The court may hear the preference of a younger child upon request. The preferences
       of older children should normally be given greater weight than those of younger
       children;

               (8) Evidence of physical or emotional abuse to the child, to the other parent
       or to any other person . . . .

              (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.

                (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. 1998). In this case, the parties disputed which parent had been

Jaylin’s primary caregiver during the marriage, and the trial court made no finding on this issue.

However, even assuming that Wife had been Jaylin’s primary caregiver during the marriage, the trial

court appropriately considered the evidence on the parties’ behavior, alleged abuse, and emotional

stability. The trial court noted Wife’s “impetuous” conduct, including “slapping her mother-in-law,

holding a knife to her husband, and cutting her child’s rabbit bank open to obtain a small amount of

money for postage.” The trial court credited Husband’s testimony on the disputed incidents of

alleged abuse, and questioned Wife’s motives in seeking an order of protection after Husband filed

for divorce. As noted in Barnhill v Barnhill, “[c]ustodial arrangements should not be made with

the goal of punishing a parent for misconduct. Nonetheless, misconduct of a party does often reflect

fitness of the parent for custody and is a proper consideration.” Barnhill v Barnhill, 826 S.W2d

443, 453 (Tenn. App. 1991) (citing Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. App. 1973).


                                                   8
Considering the undisputed evidence, and giving appropriate deference to the trial court’s credibility

determinations on the disputed evidence, we find that the evidence does not preponderate against

the trial court’s award of custody of the parties’ child to Husband.

       The decision of the trial court is affirmed. Costs are assessed against the Appellant, for

which execution may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.

CONCUR:



W. FRANK CRAWFORD, P. J., W.S.



ALAN E. HIGHERS, J.




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