# FILED April 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk GALE JOAN HOLLEN RITC HIE, )

) Houston Chancery Plaintiff/Appellant, ) No. 4-342 ) VS. ) ) DAVID ANTHONY RITC HIE, ) Appeal No.

) 01A01-9708-CH-00425 Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE
APPEAL FROM

THE CHANCERY COURT OF HOUSTON COUNTY AT ERIN, TENNESSEE HONORABLE ROBERT E. BURCH, JUDGE

Gregory D. Smith, BPR #013420 Timothy K. Barnes, BPR #012375 One Public Square, Suite 321 103 S. Third Street Clarksville, TN 37040 Clarksville, TN 37040 ATTORNEYS FOR PLAINTIFF /APPELLANT Mark A. Rassas, BPR #4334 Julia North RASSAS & RASSAS Glenn Bldg., Suite 104 P.O. Box 361 Clarksville, TN 37041 ATTORNEYS FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WALTER W. BUSSART, JUDGE-2-

GALE JOAN HOLLEN RITC HIE, )

) Houston Chancery Plaintiff/Appellant, ) No. 4-342 ) VS. ) ) DAVID ANTHONY RITC HIE, ) Appeal No.

) 01A01-9708-CH-00425 Defendant/Appellee. )



## O P I N I O N This is an appeal from

a divorce decr

ee in which the onl

y issue is which parent shou

ld have principal custody of Luke, the minor child of the parties who was born July 13, 1993. The divorce decree of the Trial Court granted principal custody to the father, and the mother appealed to this Court. Her so

le issue on appea

l is: The T rial Court erred in denying Plaintiff/Appellant primary custody of the minor child of this marriag e. Background Facts The father is a staff sergeant in the United States Army

. The mother has a

child from a previous relationship. Said child has a learning disability. The parties were married Ma rch 1, 1991, separated in October 1995, and were d ivorced June 12, 199 7. From the time of

their marriage until March 1997, the father was stationed at Fort Campbell near theresidence of the parties.
Proceedings in Trial Court On November 3, 1995,

the mother fil

ed a comp laint for divorce in which the only grounds stated w

ere, verbatim, a

s follows: Perhaps the principal re

ason plaintiff wa

nts a divorce is th e defendant’s me

ntal and phy

sical abuse of he

r thirte e n year-old son by a prior marriage who is handicapped by attention deficit disorder and is hyperactive. Living in the samehouse as his stepfa ther has caused

th is c hild serious psychological

damage. In addition to that child, plaintiff has another chi ld b y the defe nda nt a nd a liv e-i n na nny. It would be much easier

for the defendant to leave the marital residencethan for plaintiff and her three dependents to do so.-3- Defendant

has threatened

to sel l th e par tie s’ p rop ert y, bothmar ital an d individual, if a divorce is filed. Plaintiff fe ars that h e will do so unless re strained by

an order of this court. The complaint prayed for: 1. Child support 2. Allocation of deb

ts 3. Injunction ag

ainst disposal of pr

operty 4. Possession of marita l home 5. Absolute divorce 6. Child custody 7. Division of marital estate
On November 28, 1995, theTrial Court entered an agreed order granting the father visitation with the minor child.

On Nov ember 14, 1996, the father filed an

answer deny

ing allegation

s o f th e complaint and a counterclaim alleging inappropriate marital condu ct an d irreconcilabl

e differences andpraying for an absolute divorce, division of marital estate and child custody and support.

On November

27, 1996, the Trial Court entered a “Final Decree of divorce from Bed and Board,” dismissing the mother’s complaint, grantingthe father a divorce “ a mensa et thoro ” (from bed and board), custody of the child, with visitation by the mother, and child support.
On January 16, 1997, the Trial Court entered the following agree d order: COMENOW the parties, and by agree ment , as evidenced

by the signature s of their respec tive counsel, announceto this Honorable Court that, there being no hope of reconciliation, and the Defendant’s permanent change of station having been established as Fort Benning, Georgia, the Bed and Board Divorce should be converted to an Ab so lute Divorce. IT IS THEREF ORE OR DERED that the divorce a mensa et thoroentered by

this Court on the 4th day

of March,-4- 1996, be converted to an Absolute Divorce, thereby restoring bothparties to

all rights and pr

ivileges of unma

rried persons.
On January 24, 1997, the Trial Court entered an order permitting the father to move with the child to Ft. Benning, Ga., and providing visitation with the mother.

As s tat ed ab ove , th e so le i ssu e on app eal is c ust ody.

The considerations f

or choosing whic

h parent should

receive custody

are listed in TCA§ 36-6-106. Howe

ver, an additiona

l factor weigh

s heavily in t

he present case. The evidenceshows without contr adiction that, at b

oth Ft. Campbell

and Ft. Benning, the

Army provides superlative health and child care facilities. Whatever the shortcomings of either of the parents, the Army facilities provide the decisive factor in the pre sent case.

The child’s best interest is the paramount consideration. Bah v. Bah , Tenn. App. 1983, 668 S.W.2d 663.

Trial Courts are vested with wide discretion in the det erm ina tio n ofchi ld c ust ody. Such decisions are entitled to great weight on appeal and will no

t be reversed ab

sent a clear showing of an improper and erroneous exercise of that discretion. Harwell v. Harwell , Tenn. App. 1980, 612 S.W.2d 182; Abney v. Abney , 61 Tenn. App. 531, 456 S.W.2d 364 (1970); Marmino v. Marmino , 34 Tenn. App. 352, 238 S.W.2d 105 (1951.
No grounds are

found for rever

sal of the judgme

nt of the Trial Cour

t which is-5-

affirmed. Costs of this appeal are taxed against the appellant and her surety

. The cause is remanded to the T

rial Court for nec

essary fur ther proceeding

s. 

### AFFIRMED AND REMAN DED

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

_____________________________ WALTER W. BUSSART, JUDGE