                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                        June 28, 2011 Session

   JOHN AMBLER WIDENER v. STEPHANIE ELIZABETH WIDENER

                 Direct Appeal from the Circuit Court for Davidson County
                          No. 08D-2061     Carol Soloman, Judge


                    No. M2010-02435-COA-R3-CV - Filed August 12, 2011


Defendant Mother appeals the trial court’s judgment naming Plaintiff Father primary
residential parent, the award of child support, and assignment of debt. We affirm in part,
vacate in part, reverse in part and remand.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
             part, Vacated in part, Reversed in part and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Jean N. Crowe, Nashville, Tennessee and T. Ryan Malone, Chattanooga, Tennessee, for the
appellant, Stephanie Elizabeth Widener.

Russell E. Freeman, Goodlettsville, Tennessee, for the appellee, John Ambler Widener.

                                   MEMORANDUM OPINION 1

      This is a divorce case. Plaintiff/Appellee John Ambler Widener (Mr. Widener) and
Defendant/Appellant Stephanie Elizabeth Widener (Ms. Widener) married in July 2003.
Two children were born of the marriage, a daughter in 2004 and a son in 2006. In July 2008,


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This 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       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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 any unrelated case.
Mr. Widener filed a complaint for divorce in the Circuit Court for Davidson County, alleging
several grounds for divorce and seeking to be named primary residential parent of the parties’
minor children. Ms. Widener answered and counter-complained in November 2008, also
seeking an absolute divorce and to be named primary residential parent. Issues of child
custody were hotly contested, and the matter was heard by the trial court on August 30, 2010.


       The trial court entered the decree of divorce on October 19, 2010, declaring the parties
divorced. The trial court named Mr. Widener primary residential parent and established
alternate parenting time for Ms. Widener based on the agreement of the parties during the
course of the litigation. For the purposes of calculating child support, the trial court
established Ms. Widener’s income to be $1,117.00 where Ms. Widener was not working full-
time. The trial court found that Mr. Widener was not receiving overtime pay that he had
previously received, and found his income to be $2,981.00 per month. The trial court
ordered Mr. Widener to pay outstanding medical and housing bills in an unspecified amount,
and $1,000 of the amount owed for a car that Ms. Widener used during the marriage.
Following further proceedings on child support matters, the trial court entered final judgment
on January 7, 2011. Ms. Widener filed a timely notice of appeal to this Court. On December
27, 2010, we granted Ms. Widener’s motion to proceed as a poor person on appeal.

                                      Issues Presented

       Ms. Widener presents the following issues for our review, as we re-state them:

       (1)    Whether the trial court erred by naming Mr. Widener primary
              residential parent of the parties’ minor children.

       (2)    Whether the trial court erred in its finding regarding Mr. Widener’s
              income.

       (3)    Whether the trial court erred by ordering Ms. Widener to be
              responsible for the debt on the car she used during the marriage, less
              $1,000, when she did not possess the car after the parties’ separation.

                                    Standard of Review

       We review the trial court’s findings of fact with a presumption of correctness unless
the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Accordingly, we will not
reverse the trial court’s factual findings unless they are contrary to the preponderance of the
evidence. We review the trial court’s conclusions on matters of law de novo, however, with

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no presumption of correctness. Tenn. R. App. P. 13(d). Our review of a trial court’s
application of the law to the facts is de novo, with no presumption of correctness. State v.
Ingram, 331 S.W.3d 746, 755 (Tenn. 2011). Matters of child custody and visitation generally
are within the broad discretion of the trial court. Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001) (citations omitted). Similarly, the trial court’s determinations on matters of
witness credibility are accorded great deference. Wells v. Tenn. Bd. of Regents, 9 S.W.3d
779, 783 (Tenn.1999). We will not re-evaluate a trial judge’s credibility determinations
unless they are contradicted by clear and convincing evidence. Id.

                                          Discussion

       We turn first to whether the trial court erred in naming Mr. Widener primary
residential parent. As noted above, the trial court has wide discretion on matters relating to
child custody. Its determination on how to best allocate parental responsibility often turns
on subtle factors which require the court to assess the credibility and demeanor of the
witnesses. E.g., Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997).
 We will not substitute our judgment for that of the trial court on these matters. E.g.,
Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). Rather, we will disturb a trial court’s
decision regarding parental responsibility only if it “falls outside the spectrum of rulings that
might reasonably result from an application of the correct legal standards to the evidence
found in the record.” Id. Notwithstanding the trial court’s broad discretion, its decision must
be supported by the proof in the record and the applicable case and statutory law. Gaskill v.
Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). Tennessee Code Annotated § 36-6-106
sets out the factors which the trial court must consider when determining which parent will
be named primary residential parent.

       In her brief and in the trial court, Ms. Widener has alleged instances of physical abuse
on the part of Mr. Widener toward herself and the children to support her assertion that she
should be named primary residential parent. The trial court found:

       At the separation of these parties, there was domestic violence between both
       parties wherein each were physical with the other for which the [c]ourt finds
       no excuse and it was proper for the parties to separate and when [Ms.
       Widener] left the parties[’] marital residence at the time of the separation, in
       October of 2007, [she] left the parties[’] minor children in the primary care of
       [Mr. Widener].

       The trial court engaged in the comparative fitness evaluation prescribed by the Code,
and determined it was in the best interests of the minor children to remain in the primary care
of Mr. Widener. Additionally, the trial court found that Mr. Widener was “a very credible

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witness,” that he had the support of his family to provide after-school care, and that Mr.
Widener “has provided continuity in the children’s lives” and “has been the stabilizing force
in [their] lives.” Upon review of the evidence in the record, we cannot say the evidence
preponderates against the trial court’s findings, or that the trial court abused its discretion.
We affirm on this issue.

         We next turn to Ms. Widener’s assertion that the trial court erred by finding that Mr.
Widener’s income was $2,981.00 per month. In her brief, Ms. Widener asserts the trial court
failed to take Mr. Widener’s overtime pay into account when making its determination. She
asserts that, although Mr. Widener did not earn overtime pay for the two weeks preceding
trial, his overtime amounts should have been considered as Mr. Widener testified at trial that
his overtime hours are “up and down.”

       The determination of a parent’s income is a question of fact. Willis v. Willis, 62
S.W.3d 735, 739 (Tenn. Ct. App. 2001). Overtime pay is to be included in the calculation
of a parent’s income. Tenn. Comp. R. & Regs. R. 1240-02-04-.04(3)(a)(vi). “Variable
income such as commissions, bonuses, overtime pay, dividends, etc. shall be averaged over
a reasonable period of time consistent with the circumstances of the case and added to a
parent’s fixed salary or wages to determine gross income.” Tenn. Comp. R. & Regs. R.
1240-02-04-.04(3)(b).

       At the August 2010 hearing of this matter, Mr. Widener testified that he had not
received overtime pay for the “[l]ast two weeks.” When asked whether “it appear[ed] that
the overtime is going to start back up,” Mr. Widener replied, “[i]t always does.” Mr.
Widener testified that overtime was “up and down.” He stated, “[a]t some point, we should
pick back up.”

       In light of Mr. Widener’s testimony and the requirements of the Child Support
Guidelines, we agree that the evidence preponderates against the trial court’s finding
concerning Mr. Widener’s income. We accordingly vacate the child support determination
and remand to the trial court to include an average of Mr. Widener’s overtime pay in its
calculation of his income, and to recalculate the parties’ child support obligations based on
the revised amounts.

        We finally turn to Ms. Widener’s assertion that the trial court erred by ordering her
to assume all but $1,000 of the debt remaining on the car she drove during the parties
marriage. In her brief, Ms. Widener asserts that there was no basis for the court to order her
to assume responsibility for all but $1,000 of the debt for the automobile where Mr. Widener
testified that he did not allow her to take the car because it was in his aunt’s name. At the
trial of this matter, Mr. Widener testified that the vehicle was “in [his] aunt’s name,” that it

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had been repossessed, and that payments in the amount of approximately $7,000 were owed
on the vehicle. He testified that the vehicle was purchased to enable Ms. Widener to work,
but that “if she was working, [they] would have more problems than anything else.” Mr.
Widener testified that the costs of gas and child-care cost more than Ms. Widener would
earn. Mr. Widener concedes that he did not allow Ms. Widener to take the vehicle with her.


        The final decree of divorce reflects that the court assigned this debt to Ms. Widener
as part of its division of property. In essence, it assigned to Ms. Widener an amount equal
to the remainder of the automobile debt, less $1,000. The trial court found that the parties’
debt included medical bills for their children; credit card charges that primarily consisted of
Christmas gifts for the children; pre-separation, past due apartment rent amounts; and the
automobile debt on the car which Ms. Widener drove pre-separation. The trial court did not
make findings with respect to the amounts of these debts, however. Mr. Widener testified at
trial and reiterated in his brief that the parties’ debt included medical bills in the amount of
$240, and the record does not contain evidence of further debt. Thus, the trial court
apparently assigned debt in the amount of $1,240 to Mr. Widener, and in the amount of
$6,000 to Ms. Widener. The parties did not own real property, and they each were awarded
the personal property currently in their possession.

        The trial court must divide the marital estate equitably. Tenn. Code Ann. § 36-4-
121(a)(1); Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App.1988). The factors to be
considered by the trial court when dividing the marital estate are set forth in § 36-4-121(c)
of the Tennessee Code. An equitable division of marital property does not require a precisely
equal division of marital assets, but requires a fair result. Robertson v. Robertson, 76 S.W.3d
337, 341 (Tenn.2002); Batson, 769 S.W.2d at 859. Additionally, the trial court may adjust
the division of marital property to assist the economically disadvantaged spouse when there
is a disparity between the parties’ relative earning capacities. Robertson, 76 S.W.3d at 341.
We review a trial court’s property award under an abuse of discretion standard. Sullivan v.
Sullivan, 107 S.W.3d 507, 512 (Tenn. Ct. App. 2002). An abuse of discretion occurs when
the trial court applies an incorrect legal standard, reaches an illogical conclusion, bases its
decision on an assessment of the evidence that is clearly erroneous, or uses reasoning that
results in an injustice. State v. Hester, 24 S.W.3d 1, 35 (Tenn. 2010).

        In light of the equities between the parties, including their relative earning capacities
and Ms. Widener’s economic disadvantage relative to Mr. Widener, we find the assignment
of debt in this case to be unsupported by the record. Ms. Widener did not have possession
of the vehicle following the parties’ separation, and, despite Mr. Widener’s assertion that he
did not allow Ms. Widener to take the vehicle because he feared she would not make the car
payments, it was repossessed nonetheless. Further, the vehicle apparently was purchased by

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Mr. Widener’s aunt, and there is nothing in the record to demonstrate that Ms. Widener
agreed to act as surety for the debt. Thus, we reverse the order assigning the vehicle debt to
Ms. Widener.

                                          Holding

       We affirm the trial court’s judgment naming Mr. Widener primary residential
parent. We vacate the child support determination and remand for a recalculation of child
support based upon Mr. Widener’s income, including average overtime pay. We reverse
the assignment of debt to Ms. Widener. Costs of this appeal are taxed one-half to the
Appellant, Stephanie Elizabeth Widener, and one-half to the Appellee, John Ambler
Widener.




                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE




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