                                         FILED
                                        October 13, 1999

                                       Cecil Crowson, Jr.
                                      Appellate Court Clerk
       IN THE COURT OF APPEALS OF TENNESSEE

                           AT KNOXVILLE




TERESA D. GILLENWATERS,                    ) C/A NO. 03A01-9812-GS-00409
                                           )
              Appellant,                   ) BLOUNT GENERAL SESSIONS
                                           )
vs.                                        ) HON. WILLIAM R. BREWER,
                                           ) JUDGE
JAMES E.W. GILLENWATERS, III,              )
                                           ) AFFIRMED AND REMANDED
              Appellee.                    ) AS MODIFIED


JOHN D. LOCKRIDGE and SCARLETT A. BEATY, LOCKRIDGE, VALONE & BEATY,
PLLC, Knoxville, for Appellant.

MARTHA MEARES and ANNE M. STAIR, Maryville, for Appellee.



                                        OPINION


                                                              Franks, J.


              In this divorce action, the Trial Judge awarded custody of the parties’ child to

the father, which custody award is the sole issue on appeal by the mother.

              We quote from the Trial Judge’s findings in his Memorandum Opinion:

              These parties were married December 28, 1988. They separated
              approximately May of 1995. One child was born to the marriage, Laura
              Elizabeth Gillenwaters, date of birth August 20, 1989. Custody of this minor
              child is the hotly contested issue in this case.

              The Plaintiff Teresa Gillenwaters is (43) forty-three years old. During the
              period of time the Court took testimony in this case, she worked for Farouk
              Systems, Inc. as the national sales manager. A lot of travel was required as a



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              result of her position and she was out of town on business quite often, as
              shown . . . While this Court had the case under advisement, by way of Motions
              and affidavits filed, the Court learned that the Plaintiff was changing or had
              already changed employment to a job requiring much less travel, however, she
              was relocating or had already relocated herself and the child to Macon,
              Georgia. The Defendant, who is (41) forty-one years old, works for a
              company called PPG Industries and now lives in Dickson, Tennessee, just
              outside of Nashville. His job also requires some travel, but on average no
              more than four (4) to five (5) nights per month. Since the granting of the
              divorce, he has remarried and currently resides with his present wife in a
              house that the present wife owned prior to their marriage.

              ...

              It is the Plaintiff’s position that physical custody of the child should continue
              with her and that her change of employment was done primarily to allow her
              to spend more time with the child. While this case was pending, the girlfriend
              of the Plaintiff’s adult son lived in the Plaintiff’s house with the son and took
              care of child while the Plaintiff would be away on business. The girlfriend and
              son denied any improper conduct in the presence of this child. It is the
              Defendant’s position that he is better suited for custody because of the nature
              of his job and that he can provide more stability to the life of the child.
              Further, it is the Defendant’s position that due to the travel schedule of the
              Plaintiff, that he was as much a primary caregiver to the child as was the
              plaintiff.

              ...

              It is the opinion of the Court that it is in the best interest of the minor child,
              as shown by a slight preponderance of the evidence, that custody of the minor
              child should be awarded to the Defendant.

              The mother argues that the judgment being appealed is more in the nature of a

custody modification rather than an initial custody determination, because the mother had “

de facto” custody of Lori Beth during the lengthy litigation process. This argument is

without merit, because the Court had not previously made a custody award (except in the

default judgment which was later set aside). Since there is no previous decree the change of

circumstances standard of Tennessee Code Annotated Section 36-6-101 cannot be invoked.

Smith v. Smith, 1989 WL 139726 (Tenn. App. Nov. 16, 1989.)

              The standard of review of an initial custody determination is “de novo upon

the record of the trial court, accompanied by a presumption of the correctness of the

finding, unless the preponderance of the evidence is otherwise.” Hass v. Knighton, 676


                                                                                                   Page 2
S.W.2d 554 (Tenn. 1984). Moreover, because custody decisions are factually based and

often are determined by the credibility of the witnesses, we are hesitant to reverse the trial

courts’ decisions because the trial judge was present and able to observe the witnesses

testify and judge their credibility. Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn.

App. 1997).

              It is well-settled in custody cases, that the “welfare and best interests of a

child are of paramount concern.” Koch v. Koch, 874 S.W.2d 571 (Tenn. App. 1993). To

determine what is in the child’s best interests, courts are instructed to look at numerous

factors, set forth in T.C.A. §36-6-106. Also courts apply the doctrine of comparative

fitness, and the two potential custodians should be compared and a judgment made regarding

who is more fit. Koch v. Koch, 874 S.W.2d 571 (Tenn. App. 1993). The Trial Judge

considered the factors set forth in T.C.A. §36-6-106 to arrive at his judgment. After

considering these factors and comparing the fitness of the parties, we conclude that the

evidence does not preponderate against the Trial Judge’s award of custody to the father.

T.R.A.P. Rule 13(d).

              The parties both appear to be good parents and the stability of the home

appears to be equal. This was a strongly contested case, but the Trial Judge had the

opportunity to observe the “manner and demeanor” of the witnesses who testified, and the “

weight, faith and credit to be given the witness’s testimony lies in the first instance with the

trier of fact”, such that the credibility attached should be given great weight by this Court.

Whitaker v. Whitaker, 957 S.W.2d 834 (Tenn. App. 1997). “Nowhere is the presumption of

correctness of the trial court’s conclusions more applicable than in matters of child custody

where the surrounding testimony is complex and involved and frequently filled with disputes

and acrimony.” Herrera v. Herrera, 944 S.W.2d 379 (Tenn. App. 1996).

              Under the circumstances, it would be appropriate for the mother to have some

extended visitation due to her physical distance from Lori Beth’s new home and the fact that


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Lori Beth has close emotional ties with her mother as well. Upon remand, the Trial Court

should set liberal visitation for the mother’s convenience.

              The episodes of violent behavior by both parties are troubling, and the parties

should be encouraged to seek help in anger management because they need to be able to

communicate with one another as adults regarding their child. The parties should also be

encouraged to try to foster not only their own relationship with the child, but also the

relationship that the child has with the other parent.

              Accordingly, we affirm the judgment of the Trial Court and remand with the

foregoing instructions. The cost of the appeal is assessed to the appellant.




                                            __________________________
                                            Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Goddard, P.J.




___________________________
D. Michael Swiney, J.




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