                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     August 6, 2001 Session

   JOANNE THOMPSON BARRETT v. CHRISTOPHER LEE BARRETT

                    Appeal from the Chancery Court for Rutherford County
                             No. 98DR-888   Royce Taylor, Judge



                    No. M2000-00380-COA-R3-CV - Filed October 12, 2001


In this divorce appeal the wife asserts that the trial judge erred in awarding custody of the children
to the father, in refusing to award her rehabilitative alimony, and in the division of the marital estate.
We affirm the trial court.

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

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL , JJ., joined.

David Goad, Murfreesboro, Tennessee, for the appellant, Joanne Thompson Barrett.

John H. Baker III, Murfreesboro, Tennessee, for the appellee, Christopher Lee Barrett.

                                               OPINION

                                                    I.

        The parties married on March 9, 1991. They had two boys, who were five and six at the time
of the separation. Husband worked at Nissan in Smyrna and wife worked at several different jobs
during the marriage. They separated in the summer of 1998. In a pendente lite order Ms. Barrett
received possession of the marital home, custody of the children, alimony, and child support. She
was ordered to pay the mortgage on the marital home and the utility bills.

         The period between the separation and the divorce proved to be especially tumultuous (and,
no doubt, perplexing to the trial judge). Ms. Barrett accused Mr. Barrett of striking and threatening
her, of cursing her in the presence of the children, and of violating several orders of protection. Mr.
Barrett accused Ms. Barrett of keeping company with a violent drug abuser, of wasting and
concealing martial assets, and of making untrue charges against him. The charges and
countercharges required many hearings, and some of the issues may have been unresolved at the time
of the final hearing.

        The court declared the parties divorced without fault on May 17, 1999 and then conducted
a series of hearings on the merits of the remaining issues. On January 24, 2000 the court entered its
final decree awarding primary custody of the children to Mr. Barrett. The court also divided the
marital property and ordered Ms. Barrett to pay child support but suspended the payment for a year
in lieu of requiring Mr. Barrett to pay rehabilitative support.

                                                II.
                                          CHILD CUSTODY

       The final decree does not contain any findings of fact on the factors the trial judge considered
in awarding custody to Mr. Barrett. In an oral ruling from the bench the judge made these limited
findings:

       Quite clearly they’re [sic] not any perfect parents. We have two parents here, and
       there have been some problems with both.

       ...

       I think that the more stable environment, continuity – that Mr. Barrett needs to be the
       one that’s involved primarily with these kids as far as the residential care of these
       children.

       I think he has been involved in the past – both parents have been involved; but I think
       he’s – that he’s in the better position to continue with the continuity and stability
       needed of the family unit with these children.

        Ms. Barrett argues, therefore, that the decision comes to this court without a presumption of
correctness and requires us to apply de novo the relevant factors found in Tenn. Code Ann. § 36-6-
106 regarding child custody. But, we think that argument overlooks the fact that the factors listed
in the statute are only aids in arriving at the ultimate fact of what is in the best interests of the
children. See Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App. 1983). An award of custody without
more contains an implicit finding that the best interests of the child will be served by being in the
primary custody of the parent to whom custody is awarded. See Hass v. Knighton, 676 S.W.2d 554
(Tenn. 1984); Nichols v. Nichols, 792 S.W.2d 713 (Tenn. 1990).

       We do, however, examine the evidence carefully to see if it preponderates against the trial
judge’s award. Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. Ct. App. 1996). In many cases the
evidence is not heavily weighted either way and the cold record contains only charges and
countercharges, generating more heat than light. In such cases, we mainly rely on the trial judge’s



                                                 -2-
assessment of the parties’ credibility. Massengale v. Massengale, 915 S.W.2d 818 (Tenn. Ct. App.
1995); Mimms v. Mimms, 780 S.W.2d 739 (Tenn. Ct. App. 1989).

        Ms. Barrett’s testimony centered largely on Mr. Barrett’s temper, his abusive behavior toward
her, and his overbearing personality. To some extent, a social worker who worked with the children
and both parents corroborated the testimony. She testified that the children were anxious about their
father’s temper and were concerned about their mother’s safety. But the social worker did not know
anything about any actual abuse, and there is reason to doubt many of the incidents about which Ms.
Barrett raised loud and frequent complaints.

        Mr. Barrett provided testimony about Ms. Barrett’s association with an admitted drug abuser
and her unsuccessful attempts to deny the association. Her insistence on continuing the relationship
in the presence of the children despite an injunction against it was the subject of some of the
petitions for contempt the trial judge had to endure. Mr. Barrett also produced evidence from which
an inference could be drawn that Ms. Barrett failed to ensure that the children finished their
homework and that she was otherwise not actively involved in their school work; that she kept a
dirty house; that she didn’t spare the children when she provoked unnecessary confrontations with
Mr. Barrett; and that she had little regard for the orders of the court. Dishonesty reflects on the
parent’s fitness to be a good custodian for the children. Gaskill v. Gaskill, 936 S.W.2d at 634 (Tenn.
Ct. App. 1996).

       Based on the record we cannot say the evidence preponderates against the trial judge’s
custody award to Mr. Barrett.

                                                  III.
                                     REHABILITATIVE SUPPORT

       When parties divorce, the legislature has stated the public policy of this state to favor the
payment of “rehabilitative temporary support and maintenance” to the spouse that is “economically
disadvantaged, relative to the other spouse.” Tenn. Code Ann. § 36-5-101(d)(1). The courts have
found that the purpose of the statute “is to provide a temporary income during a period of adjustment
and effort of the dependent spouse to become partially or totally self-sufficient.” Loria v. Loria, 952
S.W.2d 836, 838 (Tenn. Ct. App. 1997). The trial court has broad discretion in awarding temporary
support because the decision is factually driven and requires the balancing of the many factors
contained in Tenn. Code Ann. § 36-5-101(d). Herrera v. Herrera, 944 S.W.2d 379 at 387 (Tenn.
Ct. App. 1996). Those factors include (among others) the earning capacity of each party, the relative
education and training of each party, the duration of the marriage, the age, mental and physical
condition of each party, the separate assets and the marital property awarded to each party. Tenn.
Code Ann. § 36-5-101(D)(1)(A) - (H).

        In this case, the trial judge found that Ms. Barrett did have a financial need at the time of the
divorce; but instead of ordering Mr. Barrett to make payments to her, the trial judge suspended Ms.
Barrett’s child support payments ($405 per month) for a period of one year.


                                                  -3-
        The record shows that Ms. Barrett had embarked on a career selling real estate, and she asked
the court for an unspecified amount of support for a period of one year. Obviously, the court found
that she had the capacity to earn approximately $18,000 per year ($405/month in child support for
two children) and the trial judge specifically found that Ms. Barrett had been awarded $19,000 in
marital assets. In addition, Ms. Barrett owns a home that was her separate property at the time of
the marriage. Though the record does not specify the amount of equity in the home when the parties
married, it increased in value during the marriage, resulting in $15,000 of marital equity.

       In effect, the trial judge awarded Ms. Barrett $405 per month for a period of one year. We
cannot say that the evidence demonstrates an abuse of discretion on the part of the trial judge.1

                                                      IV.
                                                MARITAL PROPERTY

       Ms. Barrett also asserts that the trial judge erred in dividing the marital property. Her
complaints center on the division of a set of collectible figurines, the award of the marital home, and
the award of Mr. Barrett’s 401k account.

        The parties had through the years collected Department 56 Christmas Village figurines.
During the separation, a dispute arose over whether Ms. Barrett had taken some of the pieces. It does
appear that without making specific findings, the court ordered her to return the pieces she had taken
along with the other property taken from the marital residence. Mr. Barrett testified that he was able
to recover only about one-third of the collection.

        The trial judge awarded Mr. Barrett the pieces he had in his possession and awarded Ms.
Barrett the balance. The court found the value of the collection to be $28,900 and that the part Ms.
Barrett retained was worth $20,000.

        Although Ms. Barrett testified that she had only one piece of the collection, the court
obviously did not believe her. Since the resolution of this issue turns on the credibility of the
witnesses, the court’s findings will not be reversed unless there is clear, concrete, and convincing
evidence to the contrary. Rice v. Rice, 983 S.W.2d 680 at 682 (Tenn. Ct. App. 1998). Therefore,
we affirm the court’s findings on this issue.

       The court awarded the marital home to Mr. Barrett, including its $34,000 of marital equity.
Ms. Barrett insists that the equity in the marital home and the marital equity in her separate property
should have been added together and then divided equally. This argument overlooks the fact that
we do not consider individual assets in isolation. We are concerned with the equitable division of


         1
           There is no issue on appeal about the amount of Ms. Barrett’s child support, and we would point out that her
obligation to pay ch ild suppo rt is an entirely separate question from her right to rehabilitative support. When her right
to rehabilitative support ends at the end of one year, she will be obligated to pick up the paym ents to M r. Barrett un til
further or ders of the court.

                                                            -4-
the entire marital estate. “As a general matter, courts will evaluate the fairness of a property division
by its final results.” Bookout v. Bookout, 954 S.W.2d 730 at 732 (Tenn. Ct. App. 1997).

        The same could be said for the court’s award of Mr. Barrett’s 401k account. The court found
that $34,000 of the account was marital property and awarded the whole amount to Mr. Barrett. But
Mr. Barrett was assigned a $63,000 debt that the parties had incurred during the marriage.

        When all the assets were added up and the debts subtracted from the assets of each party, Mr.
Barrett received a net of $25,700 in marital property and Ms. Barrett $19,100. The court specifically
found that the division was equitable because Ms. Barrett had failed to pay certain debts she had
been ordered to pay pendente lite and Mr. Barrett had been forced to pay them. Upon our review of
the record, we do not think that the evidence preponderates against the trial judge’s division of the
marital estate.

       The judgment of the court below is affirmed, and the cause is remanded to the Chancery
Court for Rutherford County for any further proceedings necessary. Tax the costs on appeal to the
appellant, Joanne Thompson Barrett.




                                                _________________________________________
                                                BEN H. CANTRELL, PRESIDING JUDGE, M.S.




                                                  -5-
