                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   March 16, 2004 Session

         DANIEL LEE STEVENSON v. TRACY DAWN STEVENSON

                Direct Appeal from the Circuit Court for Rutherford County
                              No. 45250    J. S. Daniel, Judge



                    No. M2002-02970-COA-R3-CV - Filed April 14, 2004


This appeal arises from the trial court’s award of primary residential custody of the parties’ minor
children to their father. We affirm.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and
                                       Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Robert D. Massey, Pulaski, Tennessee, for the appellant, Tracy Dawn Stevenson.

Jon S. Jablonski, Nashville, Tennessee, for the appellee, Daniel Lee Stevenson.

                                            OPINION

       Daniel Lee Stevenson (Mr. Stevenson) and Tracy Dawn Stevenson (Ms. Stevenson) were
married in October 1992 and separated in July 2001. Mr. Stevenson filed for divorce in August
2001. The trial court, sitting without a jury, declared the parties divorced on November 19, 2002,
and awarded Mr. Stevenson primary residential custody of the parties’ two minor children. Mother
appeals only the award of primary residential custody of the children to Mr. Stevenson.

                                       Standard of Review

       Appellate review of the trial court's findings of fact is de novo with a presumption of
correctness. Tenn. R. App. P. 13(d); Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn.2000). We may
not reverse the trial court's factual findings unless they are contrary to the preponderance of the
evidence. Id. We afford the trial court wide discretion in matters of child custody and review its
determination under an abuse of discretion standard. Herrera v. Herrera, 944 S.W.2d 379, 385
(Tenn. Ct. App. 1996). This Court will not interfere with the trial court’s determination absent a
palpable abuse of discretion or unless the judgment is against the great weight of the evidence. Id.
at 386. This deferential review is premised on the assumption that the trial court first considered the
best interests of the children in making the custody determination and did not act arbitrarily. Id.

                                                        Analysis

        The welfare and needs of the children are the paramount concerns in the determination of
child custody. Id. The true test for the award of custody is to arrive at the point of deciding with
whom to place the child in preparation for a caring and productive adult life. Id. In making a
custody determination, the trial court must engage in a comparative fitness analysis of the parents.
Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996). In so doing, it must consider the
factors outlined by the legislature as codified at Tenn. Code Ann. § 36-6-106.1 Id. Custody
determinations are thus based on a combination of subtle factors, and require a factually based
inquiry. Id. The trial court is in the best position to weigh the facts presented to it, and to assess the
credibility of the parties. Id. at 631.

        In its November 2002 order, the trial court stated:

                The Court finds that the main issue of this trial regards who is to be the
        primary residential parent. That after listening to the facts of this case, the Court
        finds the following after applying the factors enumerated in T.C.A.§ 36-6-404(b).

                    a.       The Court finds that both parties were equally
                             responsible for the care giving of the children. The


        1
            The statute provides that the trial court must consider:

                  (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. . . .
                  (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; and
                  (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 (2001).



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                       Court specifically discounts any testimony to the
                       contrary.
               b.      The Court also finds that both parties genuinely love
                       the children and are interested in their well being.
               c.      The Court finds that the factors that weigh more
                       favorably for the Plaintiff, DANIEL LEE
                       STEVENSON would be the emotional and physical
                       fitness of the parties, also the continuity of the life of
                       the children and the satisfactory living environment.

       Based upon the above conclusions, this Court finds that the Father, DANIEL LEE
       STEVENSON, shall be named the primary residential parent.

        Having reviewed the record in this case, we cannot say the evidence preponderates against
the determination of the trial court, or that the court abused its discretion in awarding primary
residential custody to Mr. Stevenson. The report of the special master, adopted by the trial court in
September 2001, indicates that these parties appear to have had a difficult relationship throughout
their marriage. The master’s report clearly indicates that although Ms. Stevenson is an excellent
parent, her mental health, including being suicidal in the weeks preceding the report and taking seven
different medications, caused the court “concern[] about her emotional stability.” Although, the
special master stated that Mr. Stevenson contributed to the mental health problems of Ms. Stevenson,
refused to go to marriage counseling when asked to by Ms. Stevenson, and was “not very truthful
with regard to a brief relationship he had with Defendant’s friend in September of 1999,” the master
nevertheless recommended it was best for the children to reside primarily with Mr. Stevenson, at
least “during this temporary time.”

         In their briefs to this Court, Mr. Stevenson and Ms. Stevenson both cite to the deposition of
Dr. Glenn Yank, a psychiatrist who treated Ms. Stevenson at Vanderbilt Hospital, where she received
in-patient treatment. Mr. Stevenson cites to Dr. Yank’s testimony regarding Ms. Stevenson’s mental
illness to support the proposition that he is the more fit parent. Ms. Stevenson cites Dr. Yank as
testifying that she is in “good remission,” and that neither her illness nor medications would interfere
with her ability to work or parent the children.

         Clearly, this is a case wherein the court was faced with two parents who genuinely love and
care for their children. Further, the court found that both Mr. Stevenson and Ms. Stevenson were
responsible for the care giving of their children. However, a parent seeking custody need not prove
that the other parent is unfit, and a child custody determination is not a mechanism to punish or
reward parents. Gaskill, 936 S.W.2d at 630-31. Instead, the trial court must seek to further the
children’s best interests by placing them in the environment that will best meet their physical and
emotional needs. Id. at 631. The evidence in this case does not preponderate against the finding of
the trial court that Mr. Stevenson is emotionally and physically more fit to have primary residential
custody.



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                                             Holding

        The trial court reached its custody determination based upon the comparative fitness analysis
prescribed by the Tennessee Code, and we cannot say this determination was an abuse of discretion
in light of the record. We affirm the judgment of the trial court. Costs of this appeal are taxed to
the Appellant, Tracy Dawn Stevenson, and her surety, for which execution may issue if necessary.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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