# FILED Dec. 16, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON

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TERRY E. McLEESE, JR. , ) ) HENRY CHANCERY Plaintiff\Appellant ) v. ) ) TA MMY LY NN McLEESE, ) Appeal No. 02A01- 9605-CH-00130 ) Defendant\Appellee )

APPEAL FROM THE CH ANCER Y COU RT OF H ENRY COUN TY AT PARIS, TENNESSE E THE HONORABLE WALTON W EST, CHANCELLO R

W. BROWN HA

WLEY, II THOMAS F. VENTIM IGLIA TERESA McCA IG MARSHA LL 7445 Reynolds burg Rd. 308 W. W ashington St. Springv ille, TN 38256 Paris, TN 38242 Attorney for Appellee Attorney for Appellant

AF FIRMED WILLIA M H. INM AN , SENIOR JUD GE CONCUR: AL AN E. HIGHERS , JUDGE HOLLY L ILLA RD, JUDGE
M E M O R A N D U M O P I N I O N1 10. Affirmance Without Opinion - Memorandum Opinion. (b) Memorandu m Opinion. The Court, w ith the concurrence of all judges participati ng int he cas e, may affirm, rever

se or modify t he actions of the trial cou rt by memorandum opinion when a formal opinion would have no precedential value. When a case is dec ided by memorandu m opinion it shall b e d esignated “ MEMORAND UM OPINION ,” shall not be pu bli shed, and shall not b e cited or relied on for any reason in a subsequent unrelated case. [As amended by order

filed April 22, 1992.} 2 Custody of the fiv

e-year- old son of these par ties was awarded to the appelleemother in a post- divorce h earing. The par ties initi ally ag reed upon joint custody. The father appeals, compl aining ess entially that the Chancel lor reli ed too heavil y on the tender ye ars doctri ne. We cannot substitute our j udgment for that of the Chan cello r, bu t are boun d by th e lim itat ions impo sed b y T ENN . R. A PP . P., R ULE 13(d). Unl ess the evi dence preponderates against the judgment, w e must affirm. Superimposed upon thi s rule is the important le gal princ iple that the Chancellor’ s determination of credibilit y is w ell-nig h conclusive, Walls v. Magnolia Truck Lines

, 622 S.W .2d 526 (Tenn. 198 1), and credibility of the witnesses was a strong factor

in this cas e. The Chancellor found: The Court is of the opinion that both parties ar e fit and proper per

sons to have custody of the parties’ ch ild. Presen tly, the c hild appears t o have a closer relationship with his mother. The Cour t is not ov erly impr

essed wit h some of the activities of the mot her in the past; sh e also remains unmarried whereas t he father has remarr ied and seems to have a stable home. It is oftentimes difficult to deter mine w hat i s in a child’s best interest as the future conduc t of any party

is obvi ously unknow n. However, although the Court is of the opin ion the child will do well with either parent, the Court is of the op inion that presently the child should remain with his mother. We note that the operative w ord in the Chan cellor’s finding is “ presently ,” which was not idly

used. Our revi ew of this record does not reveal that t he tender year s of the child was an overri ding consi deration, or t hat the doctrin e based on the y outhful age of the child was impermissibly relied upon. W e are persuaded that this case is singularly appropriate for affirmance pursuant to R ULE 10, R ULES OF THE C OURT OF A PPEALS , 1 and the judgment is accordingly aff irmed at the costs of the appellant. The case is remanded to the trial court f or all appropriate purposes.3 W illiam H. I nman, Senior Ju dge CONCUR:

______________________________ Alan E. Hi ghers, Ju dge

______________________________ Holly Lillard , JudgeIN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON

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TERRY E. McLEESE, JR. , ) ) HENRY CHANCERY Plaintiff\Appellant ) v. ) ) TA MMY LY NN McLEESE, ) Appeal No. 02A01- 9605-CH-00130 ) Defendant\Appellee )

__________________________________________ ______________________ J U D G M E N T

__________________________________________ ______________________

This cause came on t o be regular ly heard an d considered by this Court , and for the reasons stated in the Memorandum Opinio n of this Court, of even date , it is Ordered:
1. The judgment of the trial cour t is affirmed. 2. Costs of thi s appeal are taxed against theappellant for w hich execut ion may is sue i f ne cess ary.

ENTER:

W illiam H. I nman, Senior Ju dge

_________________________________ Alan E. Hi ghers, Ju dge

_________________________________ Holly Lillard , Judge