                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE



BRUCE FREEMAN GROVER, JR.,           )
                                                              FILED
                                     )                         April 30, 1999
       Plaintiff/Appellee-           )      Williamson Chancery No. 24827
       Cross/Appellant,              )                      Cecil Crowson, Jr.
                                     )                    Appellate Court Clerk
v.                                   )
                                     )      Appeal No. 01A01-9804-CH-00197
SHARON DIANE GROVER,                 )
                                     )
       Defendant/Appellant-          )
       Cross/Appellee.               )




          APPEAL FROM THE CHANCERY COURT OF WILLIAMSON COUNTY
                         AT FRANKLIN, TENNESSEE


                       THE HONORABLE TIMOTHY EASTER, JUDGE



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

Russ Heldman                         Robert H. Plummer, Jr.
Ernie Williams                       Franklin, Tennessee
Franklin, Tennessee




                                     AFFIRMED AND REMANDED


                                     HOLLY KIRBY LILLARD, J.



CONCURS:

BEN H. CANTRELL, J.

WILLIAM C. KOCH, JR., J.
                                             OPINION

       This is a child custody case. The trial court awarded custody of the three minor children to

the father, and ordered the mother to pay child support. The mother appeals. We affirm and remand.

       Plaintiff/Appellee, Bruce Freeman Grover (“Husband”), and Defendant/Appellant, Sharon

Diane Grover (“Wife”), were married in 1979. Three children were born during the eighteen and

one-half year marriage. At the time of trial, Cassie was fourteen, Christina (“Chrissy”) was eleven,

and Chase was nine. On July 23, 1997, Husband filed for divorce from Wife, citing irreconcilable

differences and inappropriate marital conduct. Wife filed a counter-complaint for divorce. Both

parties sought custody of the three minor children.

       For several years preceding their separation, the parties had lived with the children in a four

bedroom trailer located on land owned by Wife’s father, Tom Locke (“Locke”). Prior to the parties’

separation, Wife was the primary caretaker of the children. Wife moved out of the trailer in June

1997. Since then, the children have continued to reside in the trailer with Husband, and he has been

the primary caretaker of the children. The trailer is within walking distance of the Locke residence.

The children spend considerable time in the home or in the care of Locke and his wife, Wife’s

stepmother, as they have since they began residing in the trailer. Locke and his wife help Husband

with the care of the children, before work and at other times when needed.

       After Wife moved out of the marital home, Husband obtained a temporary restraining order

“restraining and prohibiting [Wife] from removing and/or attempting to remove the minor children

from the physical possession of [Husband] and/or [Wife’s] father, pending further proceedings in

this cause.” Locke, Wife’s father, also obtained a restraining order against Wife, which prevented

her from coming on to his property.

       Both parties have a checkered past. Approximately nine years ago, both Husband and Wife

were convicted of the sale of cocaine. As a result, they were both placed on lengthy probation.

Husband has never been convicted of violating his probation, but admits that warrants were served

on him on a few occasions. Wife has one probation violation for a positive drug test for marijuana.

         On August 15, 1997, the parties entered into an agreed order providing that Husband and

Locke would share joint custody of the children until a later hearing. At the time of the agreed order,

both parties had tested positive on a drug screen. Joint custody with Wife’s father was agreed on to

protect the children in the event that both parties were incarcerated. In a second agreed order dated

December 8, 1997, the parties agreed that Wife would pay $145 per week in child support pending
the final hearing set for January 12, 1998. Wife paid these amounts until January 12, 1998, but failed

to pay child support from January 12, 1998 to February 11, 1998 when the hearing was rescheduled.

       Husband is currently employed as an assistant grocery store manager. His shift starts anytime

from 2:00 a.m. to 6:00 a.m., which prevents him from caring for the children before school. He

testified that since he started working those hours, he has received help in getting the children ready

for school from his mother or his in-laws. He is usually off work by 3:00 p.m.

       Husband testified at trial that his oldest daughter, Cassie, is estranged from her mother and

chooses not to visit with her mother. He stated that the parties’ second oldest daughter, Chrissy,

does not wish to visit with her mother but feels compelled to because she believes that she would

be arrested if she did not. Husband testified about his everyday involvement in the children’s lives,

such as driving them to after-school activities, coaching his son’s sports teams, and eating lunch at

school with each child at least once every week. He enrolled the children in counseling for divorced

children at their respective schools. Husband claimed that Wife was not helping him with any of the

children’s expenses, and that she was not paying child support.

       Husband admitted that, about two years before the divorce, he moved out of the marital home

and lived with another woman for several months. Husband claimed that he gave Wife money for

the children’s expenses during the separation, which Wife disputes. During this time, Husband

claimed that he learned that Wife was also having an affair.

       Wife is currently employed at Kroger as a head clerk. She currently lives in a house with her

boyfriend and another male roommate. Wife testified that she moved out of the marital residence

after she was assaulted by Husband, resulting in a bruised lumbar and an injury to her elbow. She

alleged that, when she came home from work one day, Husband awoke and became angry with her

about the keys to his truck. He then pulled her by her ankles off the couch where she had been sitting

and threw her purse at her. This assault was not prosecuted. When she returned the following day

to pick up the children, she found that her father had obtained a restraining order prohibiting her

from coming onto his property. Wife testified that when Husband moved out of the marital home

for several months, she had just been diagnosed with Crohn’s disease, a disease affecting the

intestines. She denied that Husband made payments to her for the children’s care during that time.

She testified that she did not begin seeing the man with whom she currently resides until Husband

moved out of the marital residence. She stated that she stopped this extramarital relationship when

                                                  2
Husband returned to the marital home and that it did not resume until June 1997 when she asked

Husband for a divorce.

        Wife testified that, prior to the parties’ final separation, she was the primary caretaker of the

children, and that she prepared them for school and fixed their lunches. She stated that, since the

separation, she has been involved in the children’s activities and has attended a dance, football and

baseball games, and has visited Chase’s school and counselor.

        Wife also testified, that after she acquired a lawyer to set up visitation, she has never missed

a visitation with the children. On several occasions Chase, by choice, stayed longer with Wife than

the usual weekend visitation schedule allowed. Wife explained that Chrissy may have developed

the idea that she would be arrested if she did not visit with her mother from an occasion on which

Chrissy was at her grandfather’s house and refused to go with her mother for visitation. Wife

admitted that she told her father, in Chrissy’s presence, that the court had ordered visitation for her

and that she could call the police if necessary, but chose not to do so and left without Chrissy. Wife

acknowledged that all of the children would have to change schools if custody were awarded to her.

Wife believes that the two younger children should live with her despite one of the children’s desires

not to change schools. As for the fourteen year old, Cassie, Wife acknowledges that she can choose

her residence, but asserts that it is in Cassie’s best interest to live with Wife because of Cassie’s lack

of discipline or a curfew while with Husband. She asserts that the children should be split up if

Cassie refuses to live with her.

        Wife testified that, contrary to Husband’s testimony, she paid $800 towards medical expenses

not covered by insurance and contributed towards Chrissy’s dance classes and recital costumes,

Chase’s football expenses, and Chase’s school lunches.

     Wife also testified that, when both parties were convicted of the sale of cocaine, Husband told

her that he was diagnosed with a cocaine addiction and a sexual addiction. She asserted that

although he was treated for the cocaine addiction, he never received any treatment for the sexual

addiction. Husband disputed any type of sexual addiction or that he ever received such a diagnosis.

        Wife’s father, Thomas Locke, testified about his extensive involvement in the children’s

lives. He stated that he had custody of all three children for two years while the parties were dealing

with their cocaine convictions. He explained that he built a pool for his grandchildren and his wife,

that the children would often spend the night with him and his wife, and that he saw the children

                                                    3
every day playing in the yard. In his opinion, the children should be with their father.

       Husband’s mother, Eloise Cummings Blazy, also testified at trial. She indicated that the

children are happy and settled in their current schools and should remain with their father. She stated

that Cassie does not wish to visit with her mother and that Chrissy feels forced to visit, but that

Chase wants visitation with his mother. She also testified that the children have a good relationship

with Wife’s father, Locke.

       Wife presented two witnesses, Elsie Pratt, Thomas Locke’s sister and Wife’s aunt, and Toni

Packard, a friend of Wife, who testified that the children would be better off in their mother’s

custody. In addition, Wife’s mother, Irene Locke, testified that Wife is a good mother and is

supportive of the children’s school activities. She asserted that Wife was the children’s primary

caretaker during the marriage and denied that Husband has a loving relationship with the children,

stating that she has not recently seen him show them any affection.

       The two oldest children, Cassie and Chrissy, were interviewed in chambers by the trial judge

and the attorneys. Cassie stated that she would rather live with her father. She said that she does

not get along with her mother and that when she visits her mother, her mother has parties and drinks.

In addition, she said that there was not sufficient bedroom space at her mother’s house for the

children with the male roommate residing there. Cassie stated that the children usually prepared

their own lunches and breakfast because of her dad’s early hours. Chrissy stated that she liked living

on her grandfather’s farm and wanted to stay there.

       At the conclusion of the proceedings, the trial court issued an oral ruling granting custody

to Husband. In the trial court’s written order, it stated that it had considered the statutory factors

listed in Tennessee Code Annotated § 36-6-106. It found that the most important factor in this case

was “the importance of the continuity in all of the children’s lives,” including their continued

residence on Locke’s farm and enrollment in their current schools. The trial court found that it

would not be in the children’s best interest to split them up. The trial court discussed the conference

with the two older children, in which they told the trial judge that they wished to remain in their

current home with their father and stay in their current schools. The trial court also indicated that

a significant consideration in granting custody to Husband was the stability provided by Mr. and

Mrs. Locke. Husband was ordered to arrange for adult supervision for the morning hours before the

children depart for school. Wife was granted standard visitation of every other weekend, summer

                                                  4
break, and holidays; however, the trial court stated that any child of fourteen who did not wish to

visit with Wife would not be forced to do so. Wife was ordered to pay $600 per month in child

support.

       Wife now appeals the trial court’s order awarding custody to Husband. On appeal, Wife

argues that the trial court failed to consider the comparative fitness of the parties. Wife also argues

that the trial court erroneously credited Husband’s testimony and failed to consider that he had been

consistently untruthful to the court. Husband seeks attorney’s fees for this appeal.

       The trial court has wide discretion in child custody matters. See Herrera v. Herrera, 944

S.W.2d 379, 385 (Tenn. App. 1996). “In cases involving child custody, the decision of the Trial

Judge who saw and heard the witnesses, is to be given great, if not controlling effect, and we will

interfere only where we find a palpable abuse of discretion, or a judgment against the great weight

of the evidence.” Id. at 386 (quoting Cecil v. State ex rel. Cecil, 192 Tenn. 74, 77, 237 S.W.2d 558,

559 (1951)).

       “[T]he welfare and best interests of a child are the paramount considerations and the rights,

desires, and interests of the parents become secondary.” Whitaker v. Whitaker, 957 S.W.2d 834, 838

(Tenn. App. 1997) (citing Neely v. Neely, 737 S.W.2d 539, 542 (Tenn. App. 1987)). The

determination of the child's best interest must turn on the particular facts of each case. See Taylor

v. Taylor, 849 S.W.2d 319, 326 (Tenn. 1993); In re Parsons, 914 S.W.2d 889, 893 (Tenn. App.

1995). In Bah v. Bah, the court adopted the “comparative fitness” approach to child custody

decisions: “There are literally thousands of things that must be taken into consideration in the lives

of young children and these factors must be reviewed on a comparative approach.” 668 S.W.2d 663,

666 (Tenn. App. 1983) (citation omitted). The trial court must also consider factors set forth in

Tennessee Code Annotated § 36-6-106.1


       1
          Tennessee Code Annotated § 36-6-106 provides the following factors to be considered
in child custody cases:

       (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;

                                                  5
    On appeal, Wife argues that the trial court failed to compare the fitness of both parties. Wife

also argues that the trial court placed undue emphasis on Wife’s decision to move out of the marital

home without the children. Wife reiterates that she had to leave the marital home because Husband

assaulted her. She also contends that the trial court failed to consider that Wife’s father, from whom

the parties rented their marital home, had a restraining order issued against her. Wife emphasizes

that she was the primary caregiver until the parties’ final separation. Husband argues that the trial

court appropriately placed the children with him, based on findings that a move would create

“additional harm” to the children, that the children should not be split up, and that the older children

preferred to remain with Husband.

    The trial court in this case stated expressly that it had considered the statutory factors listed in

Tennessee Code Annotated § 36-6-106 and had compared the fitness of the two parents. The record

supports this statement; the trial court’s oral ruling includes a discussion of several of the listed

factors.

    The trial court discussed the importance of continuity in the children’s lives. It is undisputed

that Wife was the primary caretaker prior to the parties’ final separation. While courts in Tennessee

are not required to award custody to the parent who has been the primary caretaker, it remains an

important consideration. See Taylor v. Taylor, 849 S.W.2d 319, 327-28 (Tenn. 1993); Contreras

v. Ward, 831 S.W.2d 288, 290 (Tenn. App. 1991); see also Bailey v. Bailey, No. 02A01-9609-CH-

00226, 1997 Tenn. App. LEXIS 268 (Tenn. App. Apr. 22, 1997) (considering parent’s status as

primary caretaker in custody decision); Hooke v. Thompson, No. 01A01-9504-CV-00180, 1995

Tenn. App. LEXIS 645 (Tenn. App. Oct. 4, 1995) (same). However, under the circumstances in a

given case, a court may determine that the parent who has been the primary caregiver “may not



       (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 . . . ;
       (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 (Supp. 1998).

                                                   6
necessarily be comparatively more fit than the other parent to have permanent custody of the child.”

Gaskill v. Gaskill, 936 S.W.2d 626, 630-31 (Tenn. App. 1996).

    In this case, the issue of continuity in the children’s lives is complex. While Wife was the

primary caretaker, it is undisputed that both parties have had significant problems with substance

abuse. During this period of instability, the fact that the family lived on Locke’s property, and the

intervention of Locke and his wife in caring for the children, provided an anchor for the children.

Moreover, it is undisputed that awarding custody to Mother would result in the children having to

leave the marital home and change schools. Under these circumstances, it was reasonable for the

trial court to conclude that, while Wife had been the primary caretaker, awarding custody to her

would “cause further unstability in their lives and . . . additional harm.”

    The trial court also expressed appropriate concern about Wife’s living arrangements; Wife lives

in a house with her boyfriend and another man, and the children indicated that there were insufficient

bedrooms for them. The trial court stated, “I have some concern -- and, again, this goes back to

awarding custody to father in the first place: The environment right now that you’re living in I do

not believe is the most conducive environment for these children to live in in a custodial situation

. . . .” Wife’s living arrangements were compared to Husband’s, living in the marital home on

Locke’s property.

    Wife notes that the evidence established that Husband frequently left for work in the early

morning and that the children got themselves ready for school without adult supervision. Indeed,

this is a legitimate cause for concern, and the trial court in its order required Husband to provide

adult supervision for the children before school. Generally, the evidence indicated that the children

had been well cared for in Husband’s custody since the parties’ final separation.

    The record indicates that the trial court considered the preference expressed by the two older

children that they remain in their father’s custody. Indeed, it was clear from the record that it is

unlikely that Cassie would live with her mother even if ordered to do so. Consequently, the trial

court appropriately considered whether splitting the children, as would result from an award to Wife,

was in their best interest. Tennessee courts have consistently emphasized the importance of raising

siblings in the same household following divorce, “It is generally not a good idea to separate minor

children by a custody order . . . . Generally speaking, siblings, following a divorce, have a right to

spend their minority together in the absence of proof of potential harm to one of them or other


                                                  7
extenuating circumstances.” Gracey v. Gracey, No. 03A01-9511-CV-00419, 1996 Tenn. App.

LEXIS 240, at *7 (1996) (citations omitted). The record supports the trial court’s finding that

separating the children would not be in their best interest.

    Wife argues on appeal that Husband was consistently untruthful to the trial court, and that this

mitigates in favor of an award of custody to her. She points out that Husband indicated that he got

the children up on school mornings and got them ready for school, but that the children’s later talk

with the trial judge showed that he often left for work early and the children got themselves ready

for school. Without question, “[a] parent’s honesty reflects on his or her fitness to be a good

custodian.” Gaskill v. Gaskill, 936 S.W.2d 626, 634 (Tenn. App. 1996).

    Other issues involve an assessment of the parties’ credibility. Wife asserts that she was forced

to leave the marital home because Husband assaulted her. Both parties dispute various monetary

issues regarding payment of child support and the children’s expenses.

    When the resolution of the issues in a case depends upon the truthfulness of witnesses, the 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 decide those issues. See McCaleb v. Saturn

Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. App.

1997). The weight, faith, and credit to be given to any witness’s testimony lies in the first instance

with the trier of fact, and the credibility accorded will be given great weight by the appellate court.

Whitaker, 957 S.W.2d at 837; In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

This is especially true in custody matters. See Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. App.

1996).

    In this case, it is clear that both parents have had substantial difficulties and have significant

drawbacks. However, we recognize, “[P]arents, whether married or not, are human beings, each

with his or her own virtues and vices. . . . Therefore, the courts should not measure either parent

against the standard of perfection.” Gaskill, 936 S.W.2d at 630. Overall, the record supports the

trial court’s award of custody to Husband. The decision of the trial court is affirmed.

    Husband argues that he is entitled to attorney’s fees on appeal. Tennessee Code Annotated §

36-5-103(c) governs awards of attorney's fees in proceedings relating to child support and child

custody:

           The plaintiff spouse may recover from the defendant spouse, and the spouse or

                                                  8
       other person to whom the custody of the child, or children, is awarded may recover
       from the other spouse reasonable attorney fees incurred in enforcing any decree for
       alimony and/or child support, or in regard to any suit or action concerning the
       adjudication of the custody or the change of custody of any child, or children, of the
       parties, both upon the original divorce hearing and at any subsequent hearing, which
       fees may be fixed and allowed by the court, before whom such action or proceeding
       is pending, in the discretion of such court.

Tenn. Code Ann. § 36-5-103(c) (Supp. 1998). In this case, we find that Husband is entitled to

attorney’s fees for this appeal.

    In sum, we find that the trial court adequately compared the fitness of the parties and affirm the

trial court’s decision to award custody to Husband. Attorney’s fees to Husband for this appeal are

granted. The cause is remanded to the trial court for an award of attorney’s fees on appeal.

    The decision of the trial court is affirmed and the cause remanded for further proceedings

consistent with this Opinion. Costs are taxed to Appellant, for which execution may issue if

necessary.




                                      HOLLY KIRBY LILLARD, J.

CONCUR:



BEN H. CANTRELL, J.


WILLIAM C. KOCH, JR., J.




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