FILED

October 4, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT NASHVILLE

 

TONYA RENEE JACKSON, )

)

Plaintiff/Counter-Defendant/ ) Williamson Circuit No. 93337

Appellee, )

)

VS. ) Appeal No. 01A01-9504-CV-00132

)

KEITH GEORGE JACKSON, )

)

Defendant/Counter-Plaintiff/ )

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE

THE HONORABLE HENRY DENMARK BELL, JUDGE

TAMMY L. KENNEDY

WILLIAMS AND DINKINS

Nashville, Tennessee

Attorney for Appellant

MICHAEL S. BLIGH

Nashville, Tennessee

Attorney for Appellee

AFFIRMED IN PART, MODIFIED IN PART

AND REMANDED

ALAN E. HIGHERS, JUDGE

CONCUR:

DAVID R. FARMER, JUDGE

HEWITT P. TOMLIN, JR., SP. J.

This case involves a dispute over child custody and division of marital property as
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decreed by the trial court in a divorce case.

Appellant, Keith George Jackson (Husband) and Appellee, Tonya Renee Jackson

(Wife), were married on October 1, 1988. They separated on or about May 21, 1993, and

a final decree of divorce was entered October 3, 1994. The parties had one child during

their marriage, Nia Renee Jackson, who was three years old at the time of trial. 

At the time of their separation, the parties had incurred an estimated $18,000 in

debts, all of which were listed in Wife's name. (R. 24) All of these debts were discharged

in bankruptcy during the pendency of the divorce proceedings. 

While the parties were married, Husband placed his extra income from his job at

Saturn Corp. into a mutual fund. At the time of the parties' separation, the fund was worth

approximately $18,000, and the fund increased in value to $20,371.82 at the date of the

final hearing.

The court awarded Wife $18,500 of the mutual fund. The court reasoned that but

for the fact that Wife declared bankruptcy, there would have been no property division

because the value of the estate would have been zero. The trial judge further relied upon

the fact that Husband's earning capacity was more than double that of Wife's earning

capacity. The Husband was granted a divorce on the grounds of the Wife's adultery. The

court determined that Wife was not entitled to alimony and declined to award either party

attorney's fees. Wife was awarded sole custody of the parties' one child, Nia, and

Husband was ordered to pay child support in accordance with the child support guidelines.

Child Custody

The Husband has raised two issues for our review on appeal. First, he contends

that the lower court erred in awarding sole custody of Nia to Wife. Husband implores this

Court to award to him either sole custody or joint custody. Next, he argues that the trial
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court inequitably distributed the marital estate by valuing the estate at zero and by

awarding the mutual fund to Wife. 

This case was tried without a jury. Consequently, pursuant to T.R.A.P. 13(d), this

Court is required to make a de novo review of the trial court's findings of fact with a

presumption of correctness, unless the evidence preponderates otherwise. Jones v.

Jones, 784 S.W.2d 349, 352 (Tenn. App. 1989); Campanali v. Campanali, 695 S.W.2d

193, 194 (Tenn. App. 1985). Additionally, trial courts are vested with wide discretion in

matters of child custody and reviewing courts will not interfere except upon a showing of

an abuse of discretion. Grant v. Grant, 39 Tenn. App. 539, 286 S.W.2d 349, 350 (1954);

Marmino v. Marmino, 34 Tenn. App. 352, 238 S.W.2d 105, 107 (1951).

In determining issues of child custody, our primary concern is the best interest and

welfare of the child. Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn. App. 1991). Courts

routinely employ a comparative fitness analysis, whereby the court determines which of two

or more available custodians is more fit than others. Bah v. Bah, 668 S.W.2d 663, 666;

Edwards v. Edwards, 501 S.W.2d 283, 290 (Tenn. App. 1973).

The trial judge in this case had the opportunity to observe the manner and

demeanor of the witnesses as they testified and was thereby in a better position than this

Court to observe the witnesses and evaluate their characteristics and fitness as

custodians. Therefore, the credibility accorded by the trier of fact will be given great weight

by the appellate court. Weaver v. Nelms, 750 S.W.2d 158,160 (Tenn.Ct.App.1987). 

(citations omitted).

In this case, the court elected to award custody to Wife. Upon a thorough review

of the record before us, we are unable to say that the evidence preponderates against the

trial court's decision, nor does the record support a finding of abuse of discretion. 

Husband argues that we should award joint custody of Nia if we decline to award
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him sole custody. There is ample evidence from the record that both parties displayed

admirable parenting skills. It is further apparent that both parties love Nia and both appear

fit and proper to have custody. This Court, however, has previously recognized that joint

custody often results in detrimental effects to the children. In Dodd v. Dodd, 737 S.W.2d

286, 289 (Tenn. App. 1987), this Court stated:

The experience of this Court has been that joint custody

rarely, if ever, works--for the children. There needs to be one

residence, one haven in all the storms of life, including those

storms whipped up by the winds of divorce. There needs to

be one parent with primary control and responsibility for the

upbringing of the parties' children, whenever possible...

See also, Malone v. Malone, 842 S.W.2d 621, 623 (Tenn. App. 1992)(overturning lower

court's award of joint custody, noting that the Court of Appeals has previously disfavored

joint custody awards).

 In most instances, joint custody will not be in the best interest of a child due to

the existence of a strong potential for conflict between the parents. Barnhill, 826 S.W.2d

at 454. 

 We choose to continue to adhere to the sentiments of this Court disfavoring joint

custody. We therefore affirm the lower court's award of sole custody to Wife. 

Division of Marital Property

We will next consider Appellant's contention that the court erred in its valuation and

distribution of the marital estate.

The parties accumulated indebtedness of approximately $18,000 during their

marriage. Their only significant marital asset was a mutual fund, containing an estimated

$18,000 that had appreciated in value to $20,371.82 by the time of the hearing. (T.R. 107)

During the pendency of the divorce case, Wife bankrupted on the $18,000 debt.

Accordingly, at trial, the estate was comprised almost entirely of the mutual fund.
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In the case at bar, the trial court stated in his opinion as follows:

Considering that but for wife's bankruptcy there would

be no property for division and considering that

husband's earning capacity is more than double that of

wife, the court concludes that wife should have the

lion's share of the mutual fund. Wife's share will be

$18,500. (T.R. 107)

Trial courts have broad discretion in dividing martial estates, and their decisions are

afforded great weight on appeal. Fisher v. Fisher, 648 S.W.2d 244, 246 (1983); Harrington

v. Harrington, 798 S.W.2d 244, 245 (Tenn. App. 1990). Moreover, findings of the trial court

are accompanied by a presumption of correctness, unless the evidence preponderates

otherwise. Barnhill v. Barnhill, 826 S.W.2d 443, 459 (Tenn. App. 1991). Although

ownership of the marital estate should be presumed to be equal until proved otherwise,

Kelly v. Kelly, 679 S.W.2d 458, 462 (Tenn.App.1984); Salisbury v. Salisbury, 657 S.W.2d

761, 770 (Tenn.App.1983), a trial court's division of property need not be equal to be

equitable. Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. App. 1988). As a general

matter, courts will evaluate the fairness of a property division by its final results. Thompson

v. Thompson, 797 S.W.2d 599, 604 (Tenn. App. 1990). 

T.C.A. § 36-4-121(c) sets forth the factors a court should consider when making an

equitable division of marital property:

(c) In making equitable division of martial property, the court

shall consider all relevant factors including:

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills,

employability, earning capacity, estate, financial liabilities and

financial needs of each of the parties;

(3) The tangible or intangible contributions by one (1) party to

the education, training or increased earning power of the other

party;

(4) The relative ability of each party for future acquisitions of

capital assets and income;

(5) The contribution of each party to the acquisition,

preservation, appreciation or dissipation of the marital or

separate property, including the contribution of a party to the

marriage as homemaker, wage earner or parent, with the

contribution of a party as homemaker or wage earner to be

given the same weight if each party has fulfilled his or her role;

(6) The value of the separate property of each party;

(7) The estate of each party at the time of the marriage;

(8) The economic circumstances of each party at the time the

division of property is to become effective;

(9) The tax consequences to each party; and 
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 (10) Such other factors as are necessary to consider the equities 

 between the parties. 

T.C.A. § 36-4-121(c).

It is apparent from the record that the trial judge considered the bankrupted debt in

its division of the property. While we do not believe that the trial court's consideration of

this factor was improper, it was unnecessary because marital property is to be valued "as

of a date as near as reasonably possible to the final divorce hearing date." T.C.A. §

36-4-121(b)(1)(A). In the present case, at the time of trial, the marital estate was

comprised of a mutual fund valued at $21,371.82. The task of this Court, then, is to apply

the above delineated principles of law to the lower court's decision awarding the bulk of the

fund to Wife. 

The most pertinent factors in the instant case that bear upon the manner in which

the property should be divided are as follows: (1) Wife was not awarded alimony, which

falls under the factor regarding the economic circumstances of each party at the time that

the property division is to become effective; T.C.A. § 36-4-121(c)(8). (2) Husband's earning

capacity is much greater than that of Wife. At the time of trial, Husband's income was

approximately $50,000, while Wife made only $17,000 in her job as a bank teller ; (3) the

marriage was of relatively short duration, which serves to diminish the value of a spouse's

nonmonetary contributions; Batson v. Batson, 769 S.W.2d 849, 859. (Tenn. App. 1988).

 (4) Husband was the sole creator and contributor to the mutual fund; (R. 63-65) and (5)

The parties were 29 years old at the time of trial. 

Although earning capacity is certainly an important factor in evaluating whether a

distribution is equitable, it is by no means dispositive. We cannot in good conscience rely

solely upon that factor in divesting Husband of virtually the entire marital estate that he so

prudently created and maintained. The above factors weigh almost equally with respect

to each party. 

Pursuant to the statutory factors set forth in T.C.A. § 36-4-121, therefore, we find
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that the more equitable solution is to award each of the parties one half of the fund which

they accumulated.

For the foregoing reasons, the judgment of the trial court is affirmed in part and

modified in part, and the cause remanded for further proceedings consistent with this

opinion. The costs on appeal are assessed to Appellant.

 

HIGHERS, J.

CONCUR:

 

FARMER, J.

 

TOMLIN, SP. J.