# FILED October 4, 1995 Cecil Crowson, Jr . Appellate Court Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
TONYA RENEE JACKSON, ) ) Plaintiff/Counter- Defendant/ ) Williamson Circuit N o. 93337 Appellee, ) ) VS. ) A ppeal No. 01A 01-9504-CV-001 32 ) KEITH GEORGE JACKSON, ) ) Defe ndan t/C ount er- Plai ntiff/ ) Appellant. )
APPEAL FROM THE CI RCUI T COUR T OF WILLIAMS ON CO UNTY

AT FRANKLIN, TENNESSEE THE HONORABLE HENRY D ENMARK BELL, JUDGE

TAMMY L. KENNEDY WILLIAMS A ND DINKINS Nashvil le, Tennessee Attorney for Appellant
MICHA EL S. BLIGH Nashvil le, Tennessee Attorney for Appellee

AFFIRMED IN PART, MODIFIED IN PA RT AN D REMA NDED

AL AN E. HIGHERS , JUDGE
CONCUR: DAVID R. FA RMER, JUD GE HEWITT P. TO MLIN, JR., SP. J.

This case invo lves a dispute over chi ld custody and divis ion of marital pr operty as2

decreed by t he trial cour t in a divorce case.
Appellant, Keit h Geo rge Ja ckso n (Hus ban d) an d App elle e, T onya Renee Jackson (W ife), were marr ied 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 dur ing their marri age, Nia R enee Jackson, w ho was three years ol d at the time of tri al.

At the time of their separation, the parties had i ncurred an est imat ed $18,0 00 in debts, all of which were listed in Wife's name. (R. 24) All o f these debts were dis charged in bankruptcy

during the pendency of the di vorce pr oceedings.

W hile the parties were married, Husband p laced his ex tra income from hi s job at Saturn Corp. into a

mutual fund. A

t the t ime of the parties' separation, the fund was w orth approximately $18,000, and the fund increased i n value to$20,371.82 at the dat e of the final h earing.

The cour t aw arde d Wife $18,500 of the mutual fund. The court reas oned that but forthe f act t hat W ife decl ared bank rupt cy, the re would have been no pr operty div ision because the value of the estate woul d have been z ero. The tri al judge furthe r relied upo n the fact that Husband' s earning cap acity was more than double that of Wife's earning capa city. The Husband was granted a divorce on the grounds of the Wife's adultery. The court determined that

Wife was not ent itled to ali mony and decli ned to award either party attorney's fees. Wife was awarded sol e custody of th e parties' one child, Nia , and Husband was ordered to pay child support in ac cordance w ith the child support guidelines.
Child Custody

The Husband ha s raised tw o issues for our

review on appeal. Fi rst, he contends that the lower

court erre d in awar

ding sole c ustody of Nia to W ife. Husband implores this Court to award t o him either s ole custody or joint c ustody. N ext, he argues th at the trial3

court inequ itab ly distributed the marital es tate by valuing the es tate at zer o and by awarding the mutual fund to Wife.

This case was t ried without a jury. Consequently, pursuant to T.R.A.P. 13(d), this Court is requi red to make a de novo re view of the trial cour t's findings

of fact with a presumpti on o f correctness, unless the ev idence preponderates otherw ise. Jone s v. Jones , 784 S.W.2d 349, 352 (Tenn. A pp. 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 review ing courts

will not interfere except upon a show ing of
an abuse of discret ion. Grant v. Grant , 39 Tenn. App. 539, 286 S .W.2d 349, 350 (1954); Marmino v . Marmino , 34 Tenn. App. 35 2, 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). Court s routinely emplo y a compa rative fitn ess a nalys is, whe reby t he co urt d eter mine s which of t wo or more avail able custodians is more fit than o the rs. Bah v. Bah , 668 S.W.2d 663, 666; Edwards v . Edwards , 501 S.W .2d 283, 290 (Tenn . App. 1973).

The trial judg e in this cas e had the o pportunity to observe the manner and demeanor

of the witnes ses as they testified and was thereby in a better position than this Court to observe the witnesses and evaluate their chara cterist ics and fitness as custodians. Therefore, the credibility accorded by the tri er of fact wil l be given great weight bythe appellate c ourt. Weaver v. N elms , 75 0 S.W.2d 158,160 (Tenn.Ct.App.1987). (citations omitted).

In this case, t he court elect ed to award custody to Wife. Upon a thorou gh revi ew of the record before us, we are unable to say that the evidenc e preponderates ag ainst the trial cour t's decisi on, nor does the r ecord support a finding of abuse of di scretion.

Husband argues that we should aw ard joint custody of Nia i f we de cline t o award4

him sole custody . There is ampl e evidence from the record that both parti es disp layed admirable parenting skills. It is further apparent that

both parties l ove Nia and both appear fit and p rope r to ha ve custody. This Court, h owever , has previ ously recognized that joint custody often results in detrimental effectsto the childr en. In Dodd v. Do dd , 737 S.W.2d 286, 289 (Tenn. App. 1987 ), this C ourt stated:

The exp eri enceof t his C ourt has been that joint custody rare ly, if ever, works--for t he children. There needs to be one residence, one haven in all the storms of life, includ ing those storms whipped up by

the winds

of divorce. There needs to be one parentwith pr imary cont rol and respon sibility for the upbringing of the parties' children, w henever poss ible... See also , Malone v. Malone , 842 S.W.2d 621, 623 (Tenn. App. 1992)( overturni ng lower court's award of joint custody , noting that the Court of Appeal s has prev iously di sfavored joint custody awards).

In most instanc es, joint custody will not be in the best interest of a child due to the existenceof a strong potential for conf lict between the parents. Barnhill , 826 S.W.2d at 454.

W e choose to continue to ad here to the sentiments of thi s Court dis favoring j oint custody. We therefore affirm the lo wer cour t's awar d of sole custody

to Wife.
Division of Marital Property

We will next consider Appellant's contention that t he court erred in its valuation and distributi on of the marital es tate.

The parties acc umulated indebtedness of approximatel y $1 8,000 during their marriage. Their only

significant

marital ass et was a mutual fund, containing an estimated $18,000 that had appreciated i n value to $20 ,371.82 by the t ime of the hearing

. (T.R. 107) D uring the p endency of the div orce case, Wife bankrupted on the $18, 000 debt. Accordingl y, at tri al, the estate w as comprised al most entirely of the mutual fund.5

In the case at bar, the trial court stated in his opinion as follows: Considering that but for wife's b ank ruptcy there would be no property

for divis ion and consider ing th at husband's earning ca pacity i s more than double that of wife, the c ourt conc lude s tha t wi fe s hould have the lion's share o f the mutual fund. Wife's share wil l be $18,500. (T.R. 107)
Trial courts have broad di scretion in dividin g martial estates, and their decisions are afforded great w eight on appeal

. Fisher v. Fis her , 648 S.W .2d 244, 246 (1983); Harring ton
v. Harring ton , 798 S.W.2d 244, 245 (Tenn. App. 199 0). Moreover, findings of the trial court
are accompanied b y a presumption of cor rectness, unl ess the evi dence preponderates
o th erwise. Barnhill v. Barnhill , 826 S. W .2d 443 , 459 (T enn. Ap p. 1991 ). Althou gh ownership of the marital es tate should be presumed to be equal unti l proved ot h erwise, Kellyv. Kelly , 679 S.W.2d 458, 462 (Tenn.App.1984); Salisbury v. Salisbury , 657 S.W.2d 761, 770 (T enn.App.19 83), a trial court's di vision of pr operty need not

be equal to be equitable. Batson v. Bat son , 769 S.W.2d 849, 859 (T enn. App. 1988). As a general matter, cour

ts w ill eva luat e thefair ness 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 cour t should consi der when maki ng an equit able divisi on of mari tal p rope rty:

(c) In making equitable divisi on of martial property, the court shall con sider all re levant f actors in cluding: (1) The durati on of the marriag e; (2) The age, phys ical and mental health, vocation al sk ills, emp loyab ility, earning ca pacity, es tate, financial li abilitiesand financial needs of each of the parties; (3) The tangible or intangible contribution s by one (1) party to the education, tra ining or increased ear ning pow er of the other part y; (4) The relative ability of each party for future acquisit ions of capital asset s and income; (5) The contribu tio n of each party to the acquis ition, preservat ion, appreciation or di ssip ation of the marital or separate pro perty, in cluding the contribution of a party to t he marriage as homemaker, wage earner or paren t , with the contribu tion of a party as homemaker or wage earner t o be given the same wei ght if each par ty has fulfill ed his or her role; (6) Th e valu e of the s epa rate prop erty o f ea ch pa rty; (7) The estate o f each party at the time of the marr iage; (8) The economic cir

cumstances of each party at the time the divisi on of property is to become effective; (9) The tax

consequences to each party ; and6

(10) Such other factor s as are neces sary to consider the equities between the parties. T.C.A. § 36-4-121(c).
It is apparent from t he record th at the t rial judge considered the bankrupte d debt in its divi sion of the proper ty. W hile we do n ot be lieve that the trial court's con sideration of this factor was improper, it was unnecessary because marital prop erty is to be valued "as of a da te as near as reasonably pos sible to the final divorce hearing date. " T.C.A. § 36-4-121(b)(1)(A). In the present case, at the ti me of trial, the mar ital estate w as comprised of a mutual fund val ued at $21,371.82. Th e task of this Court, then, is to app ly the above delin eated principl es of law to the lower court's decision awarding the bulk of the fund to Wife.

The most pertinent facto rs in the instant case that bear upon the ma nner in which the property

should be div ided are as foll ows: (1) W ife was no t awar ded alim ony, which falls under the factor r

egarding the economic circumstances of each party at t he 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 tri al, Husband's income was approximately $50,000, while Wife made only $17,000in 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 contribution s; Batson v. Bat son , 769 S.W.2d 849, 859. (Tenn. App. 1988). (4) Husban d was the s ole creator and contributor to the mutual fund; (R. 63-65) and (5) The parties w ere 29 year s old at the ti me of trial.

Althou gh earning capacity is certainly an important factor in evaluating whether a distributi on is equitable, it is by no means dispositi ve. We cannot in good conscience rely solelyupon that factor in divesting Husband of virtuallythe entire marital estate that he so prudently created and maintaine d. The above factors weigh almost equally with respect to each party

.

Pursuantto the statutor y factors s et forth in T.C.A. § 36-4-121, t heref ore, we find7

that the more equitable solution is to award each of the parties one half of the fund which they accumulated.

For the foregoi ng reasons, t he judgment of the tr ial court i s affirmed in part an d mod ifi ed in part, and the cause reman ded for furthe r proceedings consistent with this opinion. The cost s on appeal are a ssessed to Appel lant.

HIGHERS, J.

CONCUR:

FARMER, J.

TOMLIN, SP. J.