                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE

            LINDA MARIE CLINE v. RICHARD ALLEN CLINE, JR.

              A Direct Appeal from the Chancery Court for Williamson County
                   No. I-25941   The Honorable Donald P. Harris, Judge



                    No. M1999-00811-COA-R3-CV - Decided June 16, 2000


        This is a divorce case involving the question of child custody. The trial court provided for
joint custody with primary physical custody to Mother. Father has appealed.

Tenn.R.App.P., Appeal as of Right; Judgment of the Chancery Court Affirmed

CRAWFORD , P.J., W.S., delivered the opinion of the court, in which FARMER , J., and LILLARD , J.,
joined.

Delilah A. Speed, Columbia, For Appellant

Virginia Lee Story, Franklin, For Appellee

                                  MEMORANDUM OPINION1


        Defendant-appellant, Richard Allen Cline, Jr. (Father), appeals from the order of the trial
court awarding the parties joint custody of their three minor children with primary physical control
to plaintiff-appellee, Linda Marie Cline (Mother).

        The parties were married August 11, 1984 and have three minor children: Derrick Richard
Cline, d/o/b 3/20/87; Lucas William Cline, d/o/b 9/5/88; and Rebecca Marie Cline, d/o/b 6/8/92.

        After a non-jury trial, the parties were granted a divorce pursuant to T.C.A. § 36-4-129(e)

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          Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the concurrence
of all judges participating in the 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decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not
be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
(1996). The trial court, inter alia, made an equitable division of the parties’ assets, awarded
rehabilitative alimony to Mother, provided for joint custody of the parties’ minor children with
Mother having primary physical custody and ordered Father to pay child support. Father has
appealed, and the only issue for review is whether the trial court erred in granting joint custody of
the parties’ minor children with Mother designated as the custodial parent.

        The record reveals that after the parties separated, Mother began a relationship involving a
sexual liaison with another man, and that Father engaged in a somewhat bizarre self-satisfaction type
of sexual activity. There is no proof in the record, however, that the children of the parties were
actually exposed to the sexual activities of the parents.

         The only witnesses to testify at the trial were the parties. Mother testified that for the most
part she was not employed during the marriage after the children were born and that she devoted her
time to making a home for the children and Father. She testified extensively concerning her
activities as the primary care giver for the children. Father did not seriously dispute Mother’s
account of the extent of her activities with the children.

        Father testified that in addition to being the “breadwinner” of the family, he was actively
involved in their home education, supervision, and recreational activities. His testimony was not
seriously questioned by Mother. The trial court found that both parties were fit and proper persons
to be custodians of the children.

        The trial judge, as the trier of fact, had the opportunity to observe these parties and their
manner and demeanor on the witness stand, and the weight, faith, and credit accorded to their
testimony by the trial judge is entitled to great weight in this Court. Mays v. Brighton Bank, 832
S.W.2d 347, 351-352 (Tenn. Ct. App. 1992). As the case was tried by the Court sitting without a
jury, we review the case de novo upon the record with a presumption of correctness of the findings
of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm,
absent error of law. T.R.A.P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984).

        T.C.A. § 36-6-106 (Supp. 1999) provides:

                36-6-106. Child custody.

                In a suit for annulment, divorce, separate maintenance, or in any other
                proceeding requiring the court to make a custody determination
                regarding a minor child, such determination shall be made upon the
                basis of the best interest of the child. The court shall consider all
                relevant factors including the following where applicable:
                (1) The love, affection and emotional ties existing between the
                parents and child;

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               (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 care giver;
               (3) The importance of continuity in the child's life and the length of
               time the child has lived in a stable, satisfactory environment;
               provided, that where there is a finding, under § 36-6-106(8), of child
               abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual
               abuse, as defined in § 37-1-602, by one (1) parent, and that a non-
               perpetrating parent has relocated in order to flee the perpetrating
               parent, that such relocation shall not weigh against an award of
               custody;
               (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; provided, that where there are
               allegations that one (1) parent has committed child abuse, [as defined
               in § 39-15-401 or § 39-15-402], or child sexual abuse, [as defined in
               § 37-1-602], against a family member, the court shall consider all
               evidence relevant to the physical and emotional safety of the child,
               and determine, by a clear preponderance of the evidence, whether
               such abuse has occurred. The court shall include in its decision a
               written finding of all evidence, and all findings of facts connected
               thereto. In addition, the court shall, where appropriate, refer any
               issues of abuse to the juvenile court for further proceedings;
               (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.

       The determination of a child’s best interest must turn on the particular facts of each case.
Taylor v. Taylor, 849 S.W.2d 319, 326 (Tenn. 1993); In re Parsons, 914 S.W.2d 889, 893 (Tenn.
Ct. App. 1995). In Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App.1983), the Court established some

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guidelines for making the determination of the child’s best interest:

                       We adopt what we believe is a common sense approach to
               custody, one which we will call the doctrine of "comparative fitness."
                The paramount concern in child custody cases is the welfare and best
               interest of the child. Mollish v. Mollish, 494 S.W.2d 145, 151 (Tenn.
               Ct. App.1972). There are literally thousands of things that must be
               taken into consideration in the lives of young children, Smith v.
               Smith, 188 Tenn. 430, 437, 220 S.W.2d 627, 630 (1949), and these
               factors must be reviewed on a comparative approach:

                       Fitness for custodial responsibilities is largely a
                       comparative matter. No human being is deemed
                       perfect, hence no human can be deemed a perfectly fit
                       custodian. Necessarily, therefore, the courts must
                       determine which of two or more available custodians
                       is more or less fit than others.

               Edwards v. Edwards, 501 S.W.2d 283, 290-91 (Tenn. Ct. App.1973)
               (emphasis supplied).

Bah, 668 S.W.2d at 666.

        Father asserts that the trial court placed too much emphasis on his role as the financial
provider for the family and did not consider the other relevant factors that would authorize primary
custodial responsibility for him. The chancellor did note that Father, as the primary wage earner,
could provide the financial support to the children allowing Mother to devote more of her time, as
she had in the past, to the care of the children. The record does not bear out, however, Father’s
assertion that the court placed too much emphasis on this factor. The court also noted that Mother
was awarded the marital home and the physical facilities for the children would remain virtually
unchanged. Viewing the record as a whole, we reach the conclusion that the evidence does not
preponderate against the finding by the trial court that the award of joint custody with primary
physical custody to Mother is in the best interest of the children.

        Accordingly, the judgment of the trial court is affirmed, and this case is remanded to the trial
court for such further proceedings as may be necessary. Costs of the appeal are assessed against the
appellant, Richard Allen Cline.




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