FILED

July 29, 1998

Cecil W. Crowson

Appellate Court Clerk

LORRI LISA CAPPS, )

)

Plaintiff/Appellant, ) Appeal No.

) 01-A-01-9710-CV-00606

v. )

) Wilson Circuit

DAVID WAYNE CAPPS, ) 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. Cumberland

Lebanon, Tennessee 37087 

ATTORNEY FOR PLAINTIFF/APPELLANT

CONNIE REGULI

353 Wimpole Drive

Nashville, Tennessee 37211

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
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OPINION

The only issue on appeal in this divorce case is whether or not the trial court erred

in awarding custody of the seven year old daughter of the parties to the husband rather than to

the wife.

David Wayne Capps and Lorri Lisa Barrett Capps married in Wilson County,

Tennessee, February 14, 1982. David Capps is now age forty and Lorri Capps 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.

There is little factual dispute in the case. David Capps worked full-time as a

machinist for Wright Industries and Lorri Capps worked part-time and was the primary care

giver for the parties' minor child. Thus, David was the primary bread winner for the family,

and Lorri was the primary homemaker for the family. 

In February, 1997, Lorri met and became greatly enamored with one Johnny Bailey,

who had moved to Wilson County three months earlier from California. Bailey had custody

of his own two children by a previous marriage and 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 complaintfor divorce on February 27, 1997, Lorri essentially moved

into the house with Bailey, his children and his disabled father and unemployed brother. From

the time of the divorce complaint Heather remained either with her father or in the home of her

maternal grandmother, Sharon Richards.

Lorri Capps makes it quite clear in her testimony that she sees nothing wrong with

her live-in relationship 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 parent". This court has said in a similar context:

 [13] A parent seeking custody is no longer required to prove that the

other parent is unfit in order to be awarded custody. Griffin v. Stone,

834 S.W.2d 300, 305 (Tenn.Ct.App.1992); Harris v. Harris, 832

S.W.2d 352, 353 (Tenn.Ct.App.1992); Bah v. Bah, 668 S.W.2d at 667.

 Thus, the trial court's decision to focus almost exclusively on Ms.

Gaskill's fitness was erroneous. In custody and visitation cases such as

this one, the evidence should have been reviewed to determine both
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parties' fitness 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, indicate she is comparatively less fit than Mr. Gaskill

to have custody of the parties' daughter. Because the trial court

misapplied the comparative fitness analysis, we must now proceed with

our own examination of the evidence giving due consideration to the

trial court's findings 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 the 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

custody of a minor child to the father, or for that matter another third

party when it is in the child's best interests. All the relevant

circumstances of the case, including those specifically enumerated

herein, should be considered, and principal responsibility for rearing 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, we think such a

conclusion would have 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 judge was concerned, as are we, with the

environment in which young Mr. Bah would be placed and the

deleterious influences to which he might be exposed in the home of the

mother of Mrs. Bah. No doubt the trial court believed strongly that

there was a difference 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 and assess their demeanor, mannerisms and other visual and

audio characteristics not apparent in the transcript. However, insofar as

these qualities can be assessed based upon 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 case 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" analysis 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 review of that decision is limited by long settled rules.
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 [2] Our de novo review of the trial court's custody and visitation

decrees is tempered by the well-established principle that a trial court

has wide discretion in matters of custody and visitation. Suttles v.

Suttles, 748 S.W.2d 427, 429 (Tenn.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 are peculiarly

within the broad discretion of the trial judge," Edwards v.

Edwards, 501 S.W.2d 283, 291 (Tenn.App.1973), and that

the trial court's decision will not ordinarily be reversed

absent some abuse of that discretion, "in reviewing child

custody and visitation cases, we must remember that the

welfare of the child has always been the paramount

consideration" for the courts. Luke v. Luke, 651 S.W.2d

219, 221 (Tenn.1983). In addition, the right of the

noncustodial parent to reasonable 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 trial court is in all respects affirmed, and the case is remanded

for such further proceedings as may be necessary.

Costs of this cause are taxed against the appellant.

_____________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________

HENRY F. TODD, PRESIDING JUDGE

__________________________________
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WILLIAM C. KOCH, JR., JUDGE