                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON


                                                       FILED
TIMOTHY SHAUN McCLURE,               )
                                     )                   March 2, 2000
       Plaintiff/Appellant,          )      Fayette Chancery No. 11726 R.D.
                                     )                 Cecil Crowson, Jr.
v.                                   )                Appellate Court Clerk
                                     )
STACY DAWN McCLURE,                  )      Appeal No. W1998-00804-COA-R3-CV
                                     )
       Defendant/Appellee.           )


         APPEAL FROM THE CHANCERY COURT OF FAYETTE COUNTY
                       AT SOMERVILLE, TENNESSEE


               THE HONORABLE DEWEY C. WHITENTON, CHANCELLOR



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

Charles M. Cary                      Tim J. Thompson
Boliver, Tennessee                   Memphis, Tennessee




                                     AFFIRMED IN PART, REVERSED
                                     IN PART AND REMANDED


                                     HOLLY KIRBY LILLARD, J.



CONCURS:

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

ALAN E. HIGHERS, J.
                                              OPINION

         This is a divorce case. The trial court awarded the husband sole custody of the parties’

children and ordered the wife to pay child support. Supervised visitation was awarded to the wife,

and visitation was also awarded to the maternal grandmother and great-grandmother. The trial court

also ordered that the marital home be sold, with the proceeds divided between the parties. We affirm

the award of custody to the husband, reverse the award of visitation to the maternal grandmother and

great-grandmother, reverse the order that the marital home be sold, and remand.

         Plaintiff/Appellant, Timothy McClure (“Husband”), and Defendant/Appellee, Stacy McClure

(“Wife”), were married on June 3, 1990. The parties have two children, William Nicholas McClure,

born February 20, 1991, and Morgan Taylor McClure, born April 12, 1996.

         On the night of October 3, 1996, Wife was arrested after allegedly abusing the two children,

who were then six years old and five months old. The district attorney general in the case charged

that Wife became intoxicated and beat William. She then began to stab with a knife around the bed

where infant Morgan lay. The district attorney general stated that William slipped away from his

mother and ran next door to get his uncle, Husband’s brother. The uncle saw marks on William’s

body and went to the parties’ house to investigate. When the uncle walked up to the front door, Wife

allegedly met him intoxicated and completely undressed. Wife was arrested and charged with child

abuse.

         Wife denies the charge, stating that she was not intoxicated on the night of the incident. She

claimed that William had been playing with a knife around infant Morgan, and that she stabbed the

mattress with the knife to show William how the knife could injure the baby. Nevertheless, Wife

pleaded nolo contendere to one count of child abuse, a Class D felony, on January 8, 1997.

         Immediately after the incident, Husband and Wife separated. On October 4, 1996, the day

after the incident, the Fayette County Juvenile Court issued an order awarding sole custody of the

parties’ two children to Husband. On October 8, 1997, the same court issued a temporary restraining

order prohibiting Wife from returning to the parties’ home. Since then, Husband has maintained sole

custody of the children.

         On October 8, 1996, Husband filed a complaint for divorce in the Fayette County Chancery

Court. Husband asked for a divorce on the basis of Wife’s inappropriate marital conduct or, in the

alternative, due to irreconcilable differences between the parties. He asked that he be awarded

custody of the parties’ children, that Wife be ordered to pay child support, that she have no visitation
rights, and that he be awarded the marital home. Wife counter-filed for divorce on October 29, 1996.

She sought custody of the parties’ children and child support from Husband, and asked the trial court

to equitably divide the parties’ real and personal property.

       On November 7, 1996, Wife filed a motion for visitation. Wife asked that visitation take

place in the home of the children’s maternal great-grandmother, Marie Anderioli (“Great-

Grandmother”), and under her supervision. By telephone conference on May 9, 1997, the Fayette

County Chancery Court granted Wife supervised visitation with the parties’ children. No copy of

the order is included in the record on appeal. At trial, Wife asserted that frequently Husband

permitted her to see the children only at his house or at his parent’s house, and that Husband and his

family were disruptive during her visitation. Husband maintained that Great-Grandmother often

failed to supervise Wife’s visitation, as required by the trial court’s order.

       On January 17, 1997, the trial court entered an order requiring Husband, Wife, and their older

child to undergo psychological evaluation and counseling with Peter W. Zinkus, Ph.D. The purpose

of the evaluation was to determine fitness for custody and visitation. After the consultation, Dr.

Zinkus recommended that Wife receive full weekend visitation on alternating weekends supervised

by the maternal grandmother, Linda Strawn (“Grandmother”). Dr. Zinkus recommended that Wife

continue her psychiatric treatment and refrain from using alcohol during visitation periods.

       On April 25, 1997, Grandmother and Great-Grandmother filed a corrected intervening

petition for visitation. In the corrected petition, Grandmother and Great-Grandmother requested that

they be awarded visitation with the children in addition to their supervision of Wife’s visitation.

Husband opposed the intervening petition for visitation.

       On June 10, 1997, Wife was arrested for driving under the influence of alcohol. Six days

later, she was admitted to the Memphis Mental Health Center, where she remained a patient for next

twenty-eight days. The record on appeal contains no documentary evidence on the resolution of the

DUI charge; however, Wife testified that the charge was eventually expunged. Wife also testified

that charges of reckless driving and public drunkenness were dismissed in July and August of 1994.

Wife said that she attended meetings of Alcoholics Anonymous twice a week and that she saw a

psychiatrist approximately every three weeks.

        On November 13, 1997, the trial court heard testimony in the case. The only witnesses were

Husband, Wife and Great-Grandmother. Husband testified that, since the parties’ separation, he has

                                                   2
continued to live with the children in the marital home. Husband’s parents live near the home.

Immediately after the separation, Husband’s parents took care of the children because Husband

worked during the day. However, Husband obtained a job which permits him to spend more time

with the children. He asserted that he had provided for all of their needs since the parties’ separation,

with little financial support from Wife.

        Wife testified that Husband had not adequately cared for the children since the parties’

separation. She asserted that Husband failed to get prompt medical care for the children in several

instances, and expressed concern about Husband’s corporal punishment of the children. Wife

acknowledged that she has not paid any child support to Husband since the parties separated. She

admitted that she lived in a condominium on a golf course, which she paid for with money from part-

time jobs and from her parents. She testified that she bought a new Ford Mustang after the parties

separated. At the time of trial, Wife was employed, earning approximately $335.00 per week. In

a later pleading, however, Wife stated that she had lost her job.

        The parties disputed the value of the marital home. The Fayette County Tax Assessor

appraised the home in 1997 at $39,300, with a pay-off amount of approximately $39,764.15.

Husband testified that there was no equity in the home. Wife testified that First Tennessee Bank

appraised the home in 1995 at $58,000. She asserted that significant improvements were made to

the home after the 1995 appraisal.

        Both Wife and Great-Grandmother testified that Husband and his family interfered with

Wife’s visitation. Great-Grandmother testified that she supervised Wife’s visitation since the

parties’ separation and that she would be willing to do so in the future. Husband denied any

interference and asserted that he tried to make Wife’s visitation “as pleasant as possible.” He

acknowledged that both Grandmother and Great-Grandmother enjoyed close relationships with the

parties’ children before the separation. He had no objection to either Grandmother or Great-

Grandmother supervising Wife’s visitation in the future.

        On December 29, 1997, the trial court entered a “Final Decree of Divorce.” The decree

granted a divorce to both Husband and Wife and awarded Husband “temporary custody and control”

of the parties’ two minor children. Wife was granted visitation on alternating weekends, supervised

by Great-Grandmother, and was required to pay child support and back child support to Husband.

The decree ordered that all of the marital property, including the parties’ home, be sold and the net

                                                   3
proceeds divided equally if the parties were not able to agree on an alternative arrangement within

sixty days from the entry of the decree. Finally, Dr. Zinkus was ordered to submit a follow-up report

to the trial court by September 1, 1998.

        On January 26, 1998, Husband appealed the “Final Decree of Divorce.” On January 29,

1998, Wife filed a motion to alter or amend the decree, alleging that the trial court entered the order

without the benefit of a full report from Dr. Zinkus and that the court did not specify when the parties

should meet with Dr. Zinkus for a follow-up visit, and seeking a reduction in Wife’s child support

obligation because she lost her job after the hearing. Husband opposed Wife’s motion to alter or

amend the judgment and filed a motion to terminate or restrict visitation, alleging that Great-

Grandmother was not supervising visitation, and asserting that the Memphis Rape Crisis Center had

determined that Morgan’s rectum had been penetrated following visitation with Wife on January 23,

1998. Wife responded to Husband’s allegations of sexual abuse by requesting the trial court place

Morgan in State custody pending an investigation.           Subsequently, Grandmother and Great-

Grandmother filed a supplemental intervening motion requesting visitation rights in addition to

supervision of Wife’s visitation.

        On April 30, 1999, the trial court entered an order denying Wife’s motion to alter or amend

and disposing of all other motions filed prior to January 29, 1998. The trial court expressly affirmed

that the “Final Decree of Divorce” entered on December 29, 1997, was a final judgment under Rule

54.02 of the Tennessee Rules of Civil Procedure. The order added that, “. . . as visitation, child

custody, and child support are always subject to modification by the trial court[,] . . . any motion

filed . . . after January 29, 1998, concerning visitation, child custody, or child support may be set for

hearing if the parties so desire . . . .” In the interim, the order provided that Wife would be allowed

to telephone the children at Husband’s home and that “the [Wife], her mother and her grandmother

may visit with the minor children in the home of the [Husband].”

        Husband now appeals the trial court’s “Final Decree of Divorce” and the order entered on

April 30, 1999. On appeal, Husband argues that the trial court erred in awarding him “temporary”

custody of the children instead of permanent sole custody, that the trial court erred in awarding

visitation to Grandmother and Great-Grandmother, that the trial court erred in not awarding the

divorce to him, and that the trial court erroneously ordered that the marital home be sold.



                                                   4
       Husband first argues that the trial court should have awarded him sole permanent custody

of the parties’ two children instead of “temporary” custody. Husband maintains that an award of

permanent custody is appropriate in light of Wife’s history of child abuse, alcohol abuse, and failure

to pay child support. Wife does not challenge the trial court’s award of custody to Husband, but

argues that an award of “temporary” custody was justified by Husband’s failure to get prompt

medical attention for the children, his corporal punishment of the children, and his statements in

front of the children that Wife is an alcoholic.

       Since this case was tried by the trial 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. See

Tenn.R.App.P. 13(d).

       The issue of child custody is reviewed de novo, with a presumption of correctness in the trial

court’s findings of fact, unless the evidence preponderates against them. See Tenn.R.App.P. 13(d).

The welfare and best interest of the child are the primary concerns in child custody proceedings. See

Tenn. Code Ann. § 36-6-106 (Supp. 1999); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. App.

1997). The trial court must also consider the factors set forth in Tennessee Code Annotated § 36-6-

106. The determination of the child’s best interests must turn on the particular facts of each case.

See Taylor v. Taylor, 849 S.W.2d 319, 326 (Tenn. 1993).

       The trial court granted Husband “temporary custody and control” of the parties’ children in

its “Final Decree of Divorce.” Though the decree also required a follow-up psychological report,

the custody award was not contingent upon the results of the report nor was it tied to any other date

or event. By subsequent order, the court clarified that the “Final Decree of Divorce” was a final

judgment subject, as always, to future modification by the trial court. The order noted that the

parties were free to appeal the court’s custody, visitation, or child support determinations.

       Taken together, the trial court’s order of December 29, 1997, awarding Husband “temporary

custody” of the children, and the order of April 30, 1999, making the December 1997 order final,

must be deemed simply an award of sole custody to Husband. While Husband chafed at the trial

court’s failure to use the word “permanent” in the April 1999 order, the trial court clearly intended

that the custody award be as permanent as such awards ever get. The trial court noted, as set forth

by statute, that any award of custody “remains[s] within the control of the court and . . . subject to



                                                   5
such changes or modification as the exigencies of the case may require.” Tenn. Code Ann. § 36-6-

101(a)(1)(Supp. 1999). Therefore, the trial court’s award of custody to Husband is affirmed.

       Husband next argues that the trial court erred in allowing Grandmother and Great-

Grandmother to intervene and in making an award of visitation to them. He asserts that there are no

circumstances in this case warranting an award of grandparent or great-grandparent visitation. Wife

argues that the visitation award as a whole was within the trial court’s discretion.

        Tennessee Code Annotated § 36-6-306 provides for “reasonable” grandparent visitation if

the minor child’s parents are divorced or legally separated and if visitation is in the “best interests

of the minor child. . . .”1 Tenn. Code Ann. § 36-6-306(a)(Supp. 1999).

        The statutes addressing grandparent visitation are, of course, subject to the parent’s

constitutional right to privacy. In Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), the Tennessee

Supreme Court discussed the constitutionality of Tennessee Code Annotated § 36-6-301, the

statutory predecessor to Section 36-6-306. As in Section 36-6-306, the predecessor statute permitted

a court award of grandparent visitation if the court found that such visitation was in the best interests

of the child. In determining the constitutionality of the statute, the Court in Hawk found as follows:

                We hold that Article I, Section 8 of the Tennessee Constitution protects the
        privacy interests of these parents in their child-rearing decisions, so long as their
        decisions do not substantially endanger the welfare of their children. Absent some
        harm to the child, we find that the state lacks a sufficiently compelling justification
        for interfering with this fundamental right.

Hawk, 855 S.W.2d at 582. Thus, under Hawk, a grandparent may not be awarded visitation in the

absence of a finding that the failure to award such visitation would result in substantial harm to the

child. While Hawk involved an intact family, its reasoning has been applied to other situations in

which the parents are not married. See Simmons v. Simmons, 900 S.W.2d 682, 684 (Tenn.

1995)(paternal grandparents seeking visitation after father’s parental rights terminated, mother

remarried, and step-father adopted child); Hilliard v. Hilliard, No. 02A01-9609-CH-00230, 1997

WL 61510, at *4 (Tenn. Ct. App. Feb. 14, 1997)(maternal grandparent seeking visitation when

child’s parents were divorced and father was granted custody); McVay v. Blen, No. 02A01-9508-JV-

00183, 1996 WL 729911, at *3 (Tenn. Ct. App. Dec. 19, 1996)(paternal grandparents seeking



       1
        It must be noted that this statute addresses visitation for the child’s grandparent, not the
great-grandparent. There is no authority in Tennessee addressing visitation by a great-
grandparent.

                                                   6
visitation with child born out of wedlock but subsequently legitimated by father); Floyd v. McNeely,

No. 02A01-9408-CH-00187, 1995 WL 390954, at *4 (Tenn. Ct. App. July 5, 1995)(paternal

grandmother seeking visitation where parents were divorced and father subsequently died);

Stephenson v. West, No. W1998-00668-COA-R3-CV, 2000 WL 2899, at *8-9 (Tenn. Ct. App. Jan.

13, 2000) (maternal grandmother and step-grandfather seeking visitation after mother died and father

remarried).

        In Ellison v. Ellison, 994 S.W.2d 623 (Tenn. Ct. App. 1998), perm. to appeal denied (June

14, 1999), this Court considered the constitutionality of Tennessee Code Annotated § 36-6-306

(Supp. 1999). Ellison involved the decision of a widowed mother to deny the paternal grandparents

visitation with their grandchild. Id., 994 S.W.2d at 623. In view of the fact that the language in this

statute is virtually identical to that of the predecessor statute considered in Hawk and its progeny,

this Court held that Tennessee Code Annotated § 36-6-306 was an unconstitutional invasion of the

parent’s right to privacy. See Ellison at 625.

        Thus, under the reasoning in Hawk and subsequent cases applying Hawk, including Ellison,

in order to award visitation to Grandmother, the trial court was required to find that failing to award

visitation to Grandmother would result in substantial harm to the children. In this case, no allegation

of substantial harm was made in the pleadings or the testimony at trial. Consequently, the award of

visitation to Grandmother was erroneous. As noted above, there is no statutory basis for an award

of visitation to Great-Grandmother under the circumstances of this case, and this award of visitation

was erroneous as well. The trial court’s decision to award visitation to Grandmother and Great-

Grandmother must be reversed. Reversal of the award of visitation does not affect the trial court’s

order on supervision of Wife’s visitation with the children.

        Husband next argues that the trial court should have awarded him an absolute divorce on the

grounds of inappropriate marital conduct. He maintains that the trial court erred in granting the

divorce to both Husband and Wife. Wife argues that evidence of Husband’s corporal punishment

of the children and of his interference with Wife’s visitation was sufficient to support the trial court’s

divorce award to both parties.

        Both Husband and Wife proffered evidence of the other’s inappropriate behavior during the

marriage. The trial court’s determination of fault turned in part on its assessment of the witnesses’

credibility. When the resolution of an issue in a case depends on the truthfulness of witnesses, the

                                                    7
trial judge who has the opportunity to observe the witnesses in their manner and demeanor while

testifying is in a far better position than this Court to decided on that issue. See McCaleb v. Saturn

Corp., 910 S.W.2d 412, 415 (Tenn. 1995). Considering the evidence in the record, we cannot

conclude that the trial court erred in awarding the divorce to both Husband and Wife. The decision

of the trial court is affirmed on this issue.

        Finally, Husband argues that the trial court failed to equitably divide the parties’ marital

property. Husband contends that he should have been granted the marital home so that the children

could continue to live in the home. Wife argues that the trial court’s decision to sell the parties’

home and divide the proceeds equally between the parties was appropriate and within the court’s

discretion.

        Appellate review of a division of marital property is de novo upon the record with a

presumption of the correctness of the trial court’s findings of fact. See Tenn.R.App.P. 13(d). An

appellate court may alter the trial court’s division of property only if the trial court misapplies the

law or if the evidence preponderates against the trial court’s factual findings. See Wade v. Wade,

897 S.W.2d 702, 715 (Tenn. Ct. App. 1994).

        Tennessee Code Annotated § 36-4-121(c) requires the trial court to consider several factors

in making an equitable division of marital property.2 The trial court may award the family home and




        2
            Tennessee Code Annotated § 36-4-121(c) provides that the following factors be considered in
making an equitable division of marital property:

        (1) The duration of the marriage;
        (2) The age, physical and mental health, vocational skills, employability, earning
        capacity, estate, financial liabilities and financial needs of each of the parties;
        (3) The tangible or intangible contribution by one (1) party to the education, training or
        increased earning power of the other party;
        (4) The relative ability of each party for future acquisitions of capital assets and income;
        (5) The contribution of each party to the acquisition, preservation, appreciation or
        dissipation of the marital or separate property, including the contribution of a party to the
        marriage as homemaker, wage earner or parent, with the contribution of a party as
        homemaker or wage earner to be given the same weight if each party has fulfilled its
        role;
        (6) The value of the separate property of each party;
        (7) The estate of each party at the time of the marriage;
        (8) The economic circumstances of each party at the time the division of property is to
        become effective;
        (9) The tax consequences to each party; and
        (10) Such other factors as are necessary to consider the equities between the parties.

Id.


                                                     8
household effects to either party; however, the trial court must give special consideration to a spouse

having physical custody of the children of the marriage. See Tenn. Code Ann. § 36-4-121(d).

        It is undisputed that Husband has lived in the marital home with the parties’ two children

since they separated, and that Husband’s parents live near the marital home and occasionally help

care for the children.

        Husband and Wife offered differing opinions about the value of the marital home. Wife

testified that First Tennessee Bank appraised the home in 1995 at $58,000. Husband testified that

the Fayette County Tax Assessor appraised the home in 1997 at $39,300. In light of the parties’

dispute about the value of the home, the trial court included it with the parties’ other property and

ordered that it be sold and the proceeds divided equally between Husband and Wife.

        We find that the circumstances in this case warrant according Husband, as the party with

custody of the children, the special consideration required under Tennessee Code Annotated § 36-4-

121(d), and that the trial court erred in ordering the marital home sold along with the parties’ other

property. Therefore, the decision of the trial court must be reversed, and the cause remanded for entry

of an order dividing the marital property in a manner that permits Husband to retain the marital

home. This may be accomplished by an award of the marital home to Husband, a valuation of the

marital home and an order requiring Husband to pay Wife for a portion of the value of the home, or

by any other adjustment in the overall division of marital property, in the discretion of the trial court.

        In sum, we find that the trial court’s orders amount to an award of sole custody of the parties’

children to Husband, subject to the trial court’s normal authority to modify if circumstances require.

The trial court’s decision to award visitation to Grandmother and Great-Grandmother is reversed.

Reversal of the trial court’s order on visitation to Grandmother and Great-Grandmother does not

affect the trial court’s order on supervision of Wife’s visitation. The trial court’s order that the

marital home be sold and the proceeds divided between the parties is reversed, and the cause is

remanded for entry of an order on division of the marital property that permits Husband to retain the

marital home, in a manner in the discretion of the trial court. In all other respects, the decision of

the trial court is affirmed.




                                                    9
       The decision of the trial court is affirmed in part and reversed in part and remanded, as set

forth above. Costs are taxed equally to Appellee, Stacy Dawn McCLure, and Appellant, Timothy

Shaun McClure, 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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