1 

# FILED

July 29, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) JOHANNA TRAVIS , ) Tipton County Chancery Court ) No. 14,862 Plaintiff/Appellee. ) ) VS. ) C.A. No. 02A01-9707-CH-00163 ) MARTIN L. TRAVIS , ) ) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Chancery Court of Tipton County at Covington. Honorable J. Steven Stafford, Chancellor

J. Thomas Caldwell, Ripley, Tennessee Attorney fo

r Defendant/App

ellant.
Cyburn H. Sullivan , Covington, Tennessee James H. Bradley , Covington, Tennessee Attorney for Plaintiff/Appellee.

OPINION FIL

ED: REMANDED

FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)2

This is a divorce case. The parties, Martin L. Travis (Husband) and Johanna Travi s (Wife), married in February 1984, separated in

September 1995 and were divorced by final decree entered in June 1997. Three c

hildren were bor

n of the marriag

e: Joshua Daniel,

born April

19, 1985, Alexandria

Faith, born August 18, 1987, and NicholasHunter, born January 3, 1993. Husband has appealed from thefinal decree, challe nging the corr

ectness of the tr

ial court’s decis

ion to award sole custody of the children to Wife. He has also raised additional issues relating to the children.

Husband and Wifewere childhood sweethearts, having met when they we re ages 7 and 6,

res pect ive ly. They

attended high school together and were members of the same church where they participated

invarious youth related activities. They mar ried at ages 19 and 20. There w ere problems throughout

the marriage. Bo

th parties testifie

d to verbal abuse

and physical altercations, sometimes
inthe children’s presence. It was Husband’s testimony that the phy sical abuse was initiated by Wife andthat he responded only in self-defense. Wife described Husband

as domineer ing and cont rolling. Husbandtestified that for the first seven or

eight yea rs, his priorities weresomewhat amiss with his attention focused primarily on his wor kas opposed to his wife and children. After an accident resulting in the lossof his job, however, he stated that he was in a position to spend mor

e time with the children and was consequently made aware of the importanc e of family and has since

shifted his priorities. Husband is in the printing business and at thetime of trial was employed as an estimator for a printing firm in Jackson, Mississippi, earning approximately $45,000 annually. Wife was the primary caretaker of

the childrenduring the marriage and for a time also operated an in-home day care, caring for up to 25 children.

Neith er party has re sided in the marital home, located in Covington, since May 1996. Wife testified that she

moved to Bartlett

after the couple’ s separation whe n her day c

are business began to d win dle and she was cari ng fo r on ly t hree or four children. At the time of trial, Wife operated an in-h ome da y care from her residence in Bar tlett, caring for four children and earning between$300 and $350 per week. She currently dates a Bartlet

t police officer

, Mr. Frank L

emmons.

Thetestimony was undisput ed that much animosity3

exists between Lemmons and Husband which, the record indicates, has affected the children, most particularly

the eldest, Joshua. T

he trial court co

nducted an in cha

mbers c onference with Joshua who indicated a preference that his custody be awarded to Husband. Husband testified that he would be willing to relo

cate to Tipton Count

y if so ordered by the court in order to obtain custody of the children. The childrenhave a relations hip with both their maternal and paternal grandparents all of whom live in the Covin

gton area, as w

ell as other cousi

ns, aunts and uncle

s.

Thetrial court was presented with the deposition testimonies of three clinical ps yc hologists, one who interviewed the children and Wife and recommended

that custody

be placed with Wife, one who interviewed the children and Husband and recommended that

custody be awarded Husband and the final who offere dno recommendatio

n to the court but who testified a s Jos hua’s individual therapist regarding the impact of the divorce on him. There was conflicting testimony among the psy chological experts as to w hether Wife’s relationship with Lemmons had negatively impacted the childre n.

Thefinal decree in

dicates t he p arties stipulated that grounds for divorce existe d and tha t both parties were granted a divorce pursuant to statute. As heretoforenoted, the trial c ourt awarded cu

stody of the c

hildren to Wife, wi th Husband receiving “standard vis itation privileges as previously agreed by the parties.” Husband was ordered to pay monthly child support. The decree instructed that Wife was to avoid any contact betwee n Lemmons and Husband regarding the children; that any discussions involving the children’s welf

are were to be conducted betwe

en the parties; a

nd that all disciplin

e of any ty

pe to the chil dren was to be administeredby the parti e s only. Finally, the decree ordered the parties to continue Joshua’s counseling sessions with Dr. Allen Battle “on an as needed ba sis until such time as Dr. Battle discharges Joshua or until the court orders otherwise.”

Ina memorandum opini

on, the tr ial cou rt made the fol low ing f act ual fin din gs as the y rel ate to c hil d cu sto dy:

Wife is4 curren t l y d atin g a man n am e d Fran k L e m m ons. . .

. She ad mi t s that she i s hav i n g s e xua l rel ati o ns with M r

. Le m m ons but denie s doin g anythin g inapp r opr i at e inthe prese n c e o f t h e chil dr e n. The Hu s b a n d cla i m s that the Wife is attempt ing to h a v e M r . L e m m o n s takehis p l a c e inthe lives of t h e c h ildr e n. The W i f e denie s t h i s

. T h e Hus b a ndand M r

. L e m m o n s h a v e5 h a d ve r ba l confr o nt at io n s in th e prese n ce o f t h e chil dr e n. Fran k L e m m o n s testifi e d o n be h al f o f W i f e . H e s t ate d that he l o v e d t h e W i f e andhe andthe W i f e h a d d o n e nothi n g inapp r op r iat e inthe prese n ce o f t h e chil d r e n . He a l s o d e nie d spen d i ng the night at t h e Wi fe ’ s hom e w h i l e t h e child r e nwere presen t

. M r . Le m m o n s den i e d that he6 h a d d o n e an yth i n g t o i m pai r t h e c hildr e n ’ s re lati o n shi p w i t h t h e H usb a n d

. He clai m s to do a lo t o f t hing s w i t h t h e c hildr e n. H e a l s o testifi e dthat he will a lway s d isl ik e t h e H u sb a ndand doe s n o t believ e that he wil l ever be able to resolv e tha t probl e m. Upo n reques t of the Hu s b a nd, the Cour t int erv i ewe d t h e partie s ’ o ldes t child , J os hua, inthe prese n ce o f7 t h e parti es’ atto r n e y s . T h e Cour t f o u n d Jo sh u a to be a ver y in tel li g e n t chil d w h o l o v e d b o t h h i s parent s

. H e is ex tr e m e l y conce r n e d w i t h t h i s div o rce andthe a dver se a f fec t that it has had onhim andhis si blin g s. He a l s o s tat e d that his g rade s h a v e g o n e dow n sin c e t h e fili n g of the div o rce

. J osh u a testifi e dthat it wo u l d be his pre fer e nceto liv e w i t h h i s father.8 T h e W i f e testifi e dthat t h e pa rtie s can n o t discu s s an ythin g civ i ll y andare una b l e t o a g r e e onany issues

. T h i s h a s re sult e d in the part ie s experi e n c i n g g r e a t dif f icu l t y r e gard i ng the chil dr e nsince t h e i r separa t ion.

Based upon the evidence before it, the court concl uded :

T h e Cour t i s trou b l e dwith variou s aspect s of both parti es’ l ives

. Howe v er , i t has no doub t tha t b o t h par tie s l o v e9 t h e chil dr e n an d intheir o w n w a y , see k w h a t t h e y believ e to b e best for t h e c hildr e n. T h e H usb a ndhas admitte dthat t h e Wife is a good moth er . Howe v er, his conce r n , a s wellas t h e conce r nof the C our t , involve s th e Wi fe ’ s re lat i o n s h i p w i t h M r

. Le m m o n s . A d dit i ona ll y , t h e Cour t i s t roubl e dwith t h e lack of succ e ss tha t J osh u a h a s experi e ncedin h i s10 sch o o l w o r k sin c e t h e separa t ion.
Onthe o t h e r h a n d , t h e Cour t i s conce r n e d w i t h t h e con t ro l that the H u sb a n d seem s to want t o a s s e r t in a l l issues

. T h e Cour t is also conce r nedby t h e allegati ons of ph ysi c a l a bus e a n d w i t h t h e Hu s b a n d ’ s in expl i c a b l e beh a v i o r ex hib i t e d to war d t h e W i f e durin g variou s argu m e nts. T h e Cour t11 doe s n o t believ e that the ch i ldr e n sh ou l d b e separa t edbut tha t t h e y sh ou l d re mai n t ogeth e r. Th e Cour t a l s o doe s n o t believ e that it w o ul d be i n t h e ch i ldr e n’s best intere st s t o mov e t o Ja cks o n , Mi ss i s sippi.

After entry of the decree, Husband filed a motion for additional findings requesting that the court enter an order allowing him to take two of the children

as dependents for in

come tax purposes a

nd requiring the

parties to share travel expe

nses relating to visitation by instructing that they exchange the childrenat a convenient location halfway between Jackson, Mississippi and Covington. Thetrial court subsequently denied Husband’s request for a sharing of travel expenses, but ordered that he be allowe

d to take the y

oungest child

as a dependent for income tax purposes. Husband presents the following issu

es on appeal:

I. Th e Cour t erred in12 awa r d i n g c usto dy of the parties[ ’] three c hildr e n to the wife.
II. The Cour t erred in f aili n g t o requir e t h e pa rt ie s t o j o intl y s har e t h e chil dr e n ’ s transp o rta tio n ex pen s es. I I I

. T h e Cour t erred in fa ilin g t o a llo w t h e H usb a ndtwo (2) o f t h e c hildr e n a s de pe n d ents for inco m e t a x pur po s es.

Wefirst address the issue of c hil d custody. Our primary concernis the best interes ts of the Travis ch

ildren. The stand

ard of review is i

naccordance withRule 13(d) T.R.A.P. which provides for a de novo review accompanied by a pres umption of

correctness

of the trial court’s findings of fact, unless the evidence preponderates otherwise. E.g.,13

Whitaker v. Whitaker , 957 S.W.2d 834, 838 (Tenn. App. 1997).

Weare guided in our decision by certai n guidelines previously

established by

case law as well

as those factors

se tforth by sta

tute. These aide

s in making our determination were addressed by the court in Whitakeras follows:

Inchild c us tody a n d visita t i o n cases , t h e we lf are a n d b e s t i n teres t s of a chil d arethe p aramo u n t c o nsi d erat io n s an d t h e rights , desire s, a n d intere st s of the parent s become se co n d a r y . Neel y v . Ne el y , 7 3 7 S .W.2d 5 3 9 , 5 4 2 (T enn . Ap p. 1 9 87). I n Bah v. Bah , 6 6 8 S.W. 2 d 6 6 3 (T enn . Ap p. 1 9 83), the14 Cour t establis h e d s o m e gu i del i nes for maki n g t h e det er m ina ti o n of best intere st : W e a dop t w h a t w e believ e i s a commo nsense a p pro a ch t o cus t o d y, one whic h wewill callthe doct ri n e o f “c om p ar a tiv e fitness

. ” The p aramo u n t conce r n i n chil d cu stody cases is t h e w elfare a n d b e s t i n teres t of the child

. Mo lli s h v . Mol li s h , 494 S .W.2d 1 4 5 , 1 5 1 (T enn . Ap p. 1 9 7 2 )

.15 Ther e a r e literall y tho u s a nds of t hing s tha t mus t b e take n int o cons i d e r atio n inthe lives of y oun g chil d r e n , Smi t h v . Sm ith , 1 8 8 T e n n . 4 3 0 , 4 3 7 , 2 2 0 S. W .2d 6 2 7 , 6 3 0 (1 949 ) , a n d t h e s e fact or s mus t b e r e vie w edon a comp ar a tiv e appr o a ch:
F i tnes s f o r c ustod i a l res p o n sibi l it i e s i s lar gel y a c ompar a t i v e m atter

. N o huma n b e i n g i s deeme d16 perfec t , henc e n o huma n canbe deeme d a perfec t l y fi t cust o d i a n . Nec es s arily , theref o re, the cour t s mus t det er m i n e whic h of two o r m o r e availa b l e cu s tod i ans is m o r e or less fit than others. Edw a r d s v . E d wa r ds , 501 S.W. 2 d 2 8 3 , 29 0-9 1 ( Ten n . Ap p.1 9 7 3 ) (emp h a s i s supp lie d). Bah , 6 6 8 S. W .2d at 666. T h e t r i a l cou r t mus t a l s o con s i d er the17 facto r s as se t forth in T.C.A

. § 36-6- 1 0 6 (1996): 36-6
- 1 0 6 . Chil d cu st o d y. -- In a su i t f o r annulm ent , divorc e

, separa t e mai nt e na nc e , or i n a n y o the r proce e din g re quir i ng the court to makea c usto dy det er m i na tio n re g ard i n g a m i n o r child , suc h de te r m i na tio n shallbe mad e u p o n t h e basis of the best intere st of the child

. T h e c o u r t sha l l cons i d er a l l re l eva n t facto r s18 incl ud i ng the foll o w i n g w h e r e applic a ble: (1) The l ove , af fe ct i onand e mot i o nal ties ex isti n g be twe e n th e parent s a n d child; (2) The dis pos i tion of t h e parent s t o p rovide t h e chil d w i t h food , c lo thi n g , me di c a l care, educat i onand o t h e r neces s a r y car e andthe de g re e t o whic h a p aren t h a s b e e n t h e pri m a r y car eg i v er; (3) The imp or t anceof continu19 ity i n t h e chi ld ’ s life and t h e l engt h of time t h e chil d h a s livedin a stable , sati s fac t o r y envir o nment; (4) The s t abili t y of the fa mil y unit of t h e parent s ; (5) The men ta l a n d ph ys i c a l heal t h of the parent s ; (6) The home , sch o o l a n d commu nit y re c or d of the child; (7) The reaso n a b l e pre fer e nceof t h e child if twel v e ( 1 2 ) y ear s of age o r older

. T h e cou r t m a y20 hea r t h e prefe r e nceof a young e r child u p o n reques t

. The pref e r e nces of old e r c hildr e n sh ou l d no rm a l ly b e g i v e n gr e ate r weig h t t h a n t hos e o f young e r c h ildr e n; ( 8 ) Ev ide n ce o f ph ys i c a l o r e mot i o n a l abus e to the child , to the o the r pa r en t o r t o a n y o t h e r person ; and (9) The ch a rac t er and b e hav i o r o f a n y oth e r pers o n w h o r eside s i n o r freq u e nts the21 hom e o f a p aren t a n d suc h pe r son’ s i nteract i o n s w i t h t h e child.

Whitaker , 957 S.W.2d at 837-38.

As heret ofore noted, the record before us indicates that the two oldest Travis children, Alexandria and Joshua, ages 9 and

12 respectively

, at the time

of trial,

wereboth interviewed by clinical psycholog

ists regarding the impact their parents’ divorce has had

on them. From the psychological reports, as well as the testimonies of the parties, we conclude that Alexandria

is coping suffic

iently with he

r parents’ estra

ngement,due in some

degree to the fact that her older br other s erves as sort of a “buffer” betw

een her and the f

amily situatio

n. Dr. Battle testifiedthat Alexandria is “doing quite well” and is not exhibiting any psychological proble ms other thanthose normally expected of any child whose par ents are in the throes of a divorce. Nor does the record reflect any unusual or significant adjustment problems for the y oun gest child, although he was

notinterviewed psy

chologically

due to hisage. The record, however, does suggest that Joshua has beenseverely impacted by the divorc e and has endured

much emotional turm

oil as a result.There

was testimonyin the record that Mother’s employment in the Covington area, running a c hildren’s day-care,was no longer

feasible after the parties’ separation because children were taken out of the day care. However, instead

of seeking emplo

yment in the area in which the children had grown up andthe area in which their extended family was located, Mother moved the children to the Bartlett

area, near Mr. Lemons, and remained unemployed for a significant period of time. There is nothing
inthe record indicating that this move was in the best interest of the children; indeed, the record indicates that the move created more turmoi l for childr en already caught betwee

n two parents in conflict. The record also indicates that Mr. Lemmon s disciplined the c

hildren by “

whipping” them. Onthe other hand, Dr. Stacey L. Dixon testified tha t Alexandria divulged to her that her father22

“doesn’t give me my a

sthma medicine” and “when I cough it drives him crazy and he slaps me on
my face.” She also told Dr. Dixon that her f at her does not take her to the doctor when she is sick whenshe is with him.We do not find the evidence to preponderate against the trial court’s grant of custody of Alexandria and Nicholas to mother.

Dr. Battle, Joshua’s th

erapist, test

if ied that Joshua exhibited “extreme concern about the anger that exists between mother and father. . . . anxiety and sadnes s that is evoked b y the disrupt ion of his home and h

is family. . . .

grave concer

n about his mother having an affair with another man. . . . [and] th e desire to live with his father while at the

sametime he feels frustrate d in doing so and fe

arful that he won’t [be] able too.” Dr . Batt l e continued:

I n Jo sh u a I ju s t seehim i n ess enc e i n a state of transi t i on. In o the r w ords , he has n o t so li dif i edinto an ythin g. It is simpl y sort of psych o log i ca l up he a v al, a s th ou g h o n e had a contai n er o f w a t e r i n whic h the dirt h a s se ttl e d23 outof t h e b otto m so you h a v e c l e a r w a t e r at th e top and dirtat t h e bottom , a n d so m e o n e come s inwith a stick a n d s t i r s t h e whol e thi n g up and t h e n e ve ryt h i ng i s j u s t to psy t u rvy , b u t thereis n o resoluti o n i n Jo shu a ’s mind at this p o i n t exc e p t i n sofa r a s h e deci de d a s o f the last timeI s a w h i m a n d e v e n inde e d befo r e t h e n that he w o u l d r a the r liv e w i t h h i s24 f a t h e r b e cau s e tha t w ou l d b e morein kee p i n g with t h e g o a l s andthe value s that he h a s b e e n taught.

Dr

. Battle

believed Joshua had been “psychologically disturbed,” but believed any damage done could be healed with fu

rther therapy

. He believed Ale

xandria had faire

d better during t

his family

traum a due to her age a

nd the fact that Josh

ua, her older br

other, had crea

ted a certain

degree o f security for her. Dr. Battle did not find Joshua to exhibit

any “deep psychopatholog y” and believed his disorder environmentally produced. He concluded that Joshua had “suffic

ient intelligenc

e, grasp of the situation and of himself to be eminently capable to m ake aninformed decision. And I find that his reasons f

or living with

his father are not silly, trivial, childish reasons that might be given by a child for the benefit of their own gratification . . . .” When questioned as to

the effect on Joshua
if custody was divided and he was raised apart from his two siblings, Battle re sponded, “[o]ne does

notlike to have that division of siblings under conditions where everything else is equal.” Battle said this was particularly the case if the children were to be ra ised hundreds of miles apart.

During the in

chambers conference, Joshua informed the court that he did not like the school that hetransferred to in Bartlett

as well as the one he attended
inCovington and that he didn’t “know if it’s just because of this divorce, I’ve been making Fs, and its not great.” When asked whether he looked out for his little brother and sister, hereplied “I keep themin the corner of

my eye all the

time.” He stated t

hat if he “had a c

hoice,” he would

“probably

want [he an d his s ibli ngs] t o liv e with [his ] dad. . . . I would jus t like that better, I would think.” When asked if there was “[a]ny particular reason” for his choice, Joshua e

xplained that “some

of it is Frank.” He stated, “every time my dad drops us off, [at hi

s mother’ s, after v

isiting], [Frank’s] got25

to carry on something.” Joshua said that Frank was alway s calling his dad bad names. He related

anincident w here Husban d had return ed the chil dren to Wif e’s house af ter visiti ng. Lemmons was present and“started calling [his] dad names.” He continued, “[m]y sister threw down her shoes and jumpedin my dad’s arms, and my brother was clinging on

to his legs until

my mom came out there, andshe told my dad to let go. . . . My sis ter wouldn’t let go. It was just hard.” Joshua said he sometimes worried about his mother and fathe

r and was “alwa

ys”concerned

about his brother and sister and felt as though he had to take care of them. Joshua said that Lemmons disciplined him and his siblings by spanking them. He preferred it when Lemmons was not present at his mom’s home.

Werecognize that d

ivided custody

arrangements generally do not serve the best interests of the children and that, if at all possible, decisions regarding custody should be made so as to avoid this particular result for chi ldren who d eserve no less than other children whose

parents r emain unit

ed. As sta

ted in W.Walton Garrett, Tennessee Divorce, Alimony and Child Custody § 24-15 (1997), “[t]here is a strongpresumption that the welfare of the childrenwill be best served by keeping the children together.” This presumption, however, is to be “viewed in light of the particular facts a nd circumstances surrounding each child custody case.” Hollis v. Hollis , No. 01A01-9704-CH-00178, 1998 WL 57537 (Tenn. App. Feb. 13, 1998).

Weare cognizant of the fact that Joshua’s preference is not bindi ng, but is one of the factors to be considered in a custody determination. Smith v. Smith , No. 01A01-9511-CH-0

0536, 1996 WL 526

921 (Tenn. App. Se

pt. 18, 1996); Hardin v. Hardin , No. 03A01-9711-GS-00507, (Tenn. App. May 19,199 8). Given the relationship between Joshua and
Mr. Lemmons and between Joshua and his father, we find it to be a particularly significant factor in this case. Having reviewed this record, we find that there is strong evidence in favor of Father being awarded custody of Joshua. However, our careful review of the chancellor’s discussion with Joshua convinces us that Joshua’s expres sed preference to live with his father was based on Joshua’s assumption that custody of all the children would be awarded to father. As previously discussed, the childrenare very

close and Joshua fe

els protective tow

ard hisyounger siblings. We do not believe he envisioned them be

ing separated. Therefore, w e conclude that th

is case should be r

emanded to allo w Joshua to express to the trial court whether his preference would be the same if he and hi s26

siblings are separated. The record before us does not contain evidence of the effect of split custody

on the children and whe

ther or not it would b

e intheir best interest. Therefore, we are of the opinion th at this case be remanded to the trial court to conduct a further hearing on the issue of custody pursuant to T.C.A. § 27-3-128 and to consider all factors concerning custody of these children. The trial court shall also make any further determinations conce rning child support, visitation and the allocation of tax deductions as the circumstances require.

Wecommend the trialcourt for includi ng in the final decree that Wifeis to avoid any contact between Mr. Frank L emmons andHusband regarding the childrenandthat all discipline of any type to the children be administere d only by Husband or

Wife.

Inview of our remand, the second issue presented by Husband is preter

mitted. Costs of this a

ppeal are taxed to

Mr. Travis.

____________________________________ FARMER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LILL ARD, J. (Concurs)