# FILED
July 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### LORRI LISA CAPPS, ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01-A-01-9710-CV-00606 v. ) ) Wilson Circuit DAVID WAYNE CAPP

S, ) No. 1566

) Defendant/Appellee. ) )

COURT OF APPEALS OF TENNESSEE APPEAL FROM THE CIRCUIT COURT FOR WILSON COUNTY

AT LEBANON, TENNESSEE THE HONORABLE BOBBY CAPERS, JUDGE

ANTHONY E. HAGAN 107 1⁄2 S. Cumber

land Lebanon, Tennes see 37087 ATTORNEY FOR PLAINTIFF/APPELLANT

CONNIE REGULI 353 Wimpole D

rive Nashville, Tennessee 37211 ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- OPINION The only issue

on appeal in this divorce case is whether or not the trial court erred in awarding custody of the seven y ear old daughter of the

parties to the husband rathe

r than to the wife.

David Wayne Capp s an d Lor ri Li sa Ba rret t Ca pps mar rie d in Wil son Cou nty, Tennessee, February 14, 1982. David Capp s is now age fo rty and Lorri Capp s is age 38. The only child of the marriage, Heather Grace Capps, was born April 27, 1990 and these parties separated on February 21, 1997.

Therei s little fact ual dispute in the c ase. David Capps w

orked full-time a

s a machinist f or Wright I

ndustries and Lorri Capps worked part-time and was the primary care giver for the part ies' m inor ch ild . Th us, Dav id w as t he p rim ary br ead w inn er fo r th e fam ily, and Lorri was the primary homemaker f or the family.

In February

, 1997, Lorri me

t and became gr

eatly enam

ored with one Joh nny Ba ile y, who had moved to Wilson County three months earlier from

California. Bailey had custody of his own two childrenby a previo us marriage an

d voluntarily

paid support for a

third child in California born out of wedlock. Bailey had a history of marijuana

possession in California.
Upon filing her compl

ain t for divorce on Februar y 27, 1997, Lorri essentially moved into the house with Bailey, his children and his disabled father and unemploy ed brother. From the time of the divorce complaint Heather remained either with her father or in the home of her maternal gran

dmother, Sharon Ric

hards.

LorriCapps makes it quite clear in her testimony

that she sees nothi

ng wrong with her live-in rel ationship with Johnny Bailey and his minor children and intends to continue
same. Her principal complaint on appeal is that she is being punished for having an affair and is for that reason alone being denied custody of Heather. The record in this case does not support such an assertion.

Appellant insists that all of the evidence in the record shows her to be a caring and loving mother. Apparently she believes the burden to rest upon Mr. Capps to prove that she is an "unfit pare

nt". This court ha

s said in a similar c

ontext: [13] A parent seeking custody is no longer required to prove that the other parent is unf

it in orde r to be awarded custody. Griffin v. Stone, 83 4 S.W.2d 300, 305 (Tenn.Ct.App.1992); Harris v. Harris, 83 2 S.W.2d 352, 353 (Tenn.Ct.A pp.1992); Bah v. Bah, 668 S.W.2d at 667. Thus, the trial cou rt's decision to f ocus almost exclusive

ly on Ms. Gaskill's fitness was erroneous. In custody and visitation cases such as this one, the evidenc

e should have bee

n reviewed to determine both-3- part ies' f itness as a comparative matter. Thus, although the evidence may not have shown that Ms. Gaskill was an unfit mother, it may, and in this case does, ind

icate she is compa

ratively less fit than Mr. Ga

skill to hav e cus tod y of the p arties' daughter. Because the trial court misapplied the comparativefitness analy sis, we must now proc

eed with our own examin ation of the evidence giving due consideration to the trial court's fi

ndings of fact.
Gaskill v. Gaskill

, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996).

It is clear from this

record that the trial judge properly made a "comparative

fitness" analysis of

the entire case

and correctly

applied the law to t

he facts.

This court has said: So that there will be no misunderstanding in the future, we hold that it is not necessary to find that a mother is unfit in order to award cus tody of a minor child to the father, or for that matter another third party when it is in the chil d's best in terests. All the relevant circumstances of the case, including those specifically enumerated herein, should be c onsidered, and princip al responsi bility for rear ing a minor should be placed with the person most fit to do so. [4] We believe that is precisely what the trial judge did here and why custody was awarded to the father. The trial court made no finding that the mother was unfit and, based on this transcript, w e think such a conclusion would h ave been unjustified. However, we think the trial judge was satisfied that for now the child's best interests would be served in the custody of the father, with liberal visitation to the mother. Without question the trial j udge was conce rned, as are we, wi th the environment

in which young Mr. Bah would be placed and the deleterious influences to which hemight be exposed in the home of the mother of Mrs. Bah. No do

ubt the trial court believe d strongly that ther e was a di fference in the maturity and emotional stability of the mother and the father. Of course, that court is in a far superior position to assess these qualities than this court because of the ability to view the witnesses andassess their deme anor, mannerisms

and other visual and audiocharacteristic

s not apparent in

the transcript. However, insofar as these qualities can be assessed based upo n past conduct, the record indicates the father to be

the most stable and

emotionally

mature parent at this time.
Bah v. Bah , 668 S.W.2d 663, 667 (Tenn. Ct. App. 1983).

The record in this ca

se does not show Mrs

. Capps to be an unfit parent but the law does not require such a

showing. Both parents may be found to be fit custodial parents but the very purpose of the "comparative fitness" analy

sis is not to choose between the lesser of two evils, but rather to determine which parent can serve the best interest of the child. The trial court has made its

decision and our r

eview of that dec

ision is limited by

long settled rule

s.-4- [2] Our de novo revi ew of the trial court's custody and visitation decrees is tempered by the well-established principle that a t r ial court has w ide discretion in matters of custody and visitation. Sutt les v

. Suttles , 748 S.W.2d 427, 429 (T enn.1988); Marmino v. Marmino , 34 Tenn.App. 352, 238 S.W.2d 105, 107 (1950 ); Grant v. Grant , 39 Tenn.App. 539, 286 S.W.2d 349, 350 (1954). The various general principles regarding a trial court's prerogatives in these matters and our review of same is well stated in Suttles : Although we recognize that the general rule is that "the details of custody and visitation with children a re peculiarly within the broad discretion of the trial judge," Edwards v. Edwards , 501 S.W.2d 283, 291 (Tenn.App.1973), and that t he trial court's decision will not ordinarily be r everse d absent s o me abuse of that di

scretion, "in re

viewing child c ustody and visitation cases, we must remember t hat th e welfareof the child has always been the paramou nt consideration" for the courts. Luke v. L uke , 651 S.W.2d 219 , 221 (Tenn.1983). In addition, the right of the noncustodial parent to re as onable visitation is clearly favored. E.g., Weaver v. Weaver , 37 Tenn.App. 195, 202-203, 261 S.W.2d 145, 148 (1953). 748 S.W.2d at 429.
Jahn v. Jahn , 932 S.W.2d 939, 941 (Tenn. App. 1996).

The evidence in

this case supports the decision of the trial court and certainly does not preponderate against the trial court action in awarding custody of Heather to her father.

The judgment of the tr

ial court is in all

respects affir

med, and the case

is remanded for suc h fu rth er pr ocee din gs as may b e nec ess ary.

Costs of this cause a

re taxed against

the appellant.

_____________________________ WILLIA M B. CAIN, JUDGE

CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE

__________________________________-5-

WILLIA M C. KOCH, JR., JUDGE