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/Appellant. )

)

______________________________________________________________________________

From the Chancery Court of Tipton County at Covington.

Honorable J. Steven Stafford, Chancellor 

J. Thomas Caldwell, Ripley, Tennessee

Attorney for Defendant/Appellant.

Cyburn H. Sullivan, Covington, Tennessee

James H. Bradley, Covington, Tennessee

Attorney for Plaintiff/Appellee.

OPINION FILED:

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 Travis

(Wife), married in February 1984, separated in September 1995 and were divorced by final decree

entered in June 1997. Three children were born of the marriage: Joshua Daniel, born April 19, 1985,

Alexandria Faith, born August 18, 1987, and Nicholas Hunter, born January 3, 1993. Husband has

appealed from the final decree, challenging the correctness of the trial court’s decision to award sole

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

 Husband and Wife were childhood sweethearts, having met when they were ages 7 and 6,

respectively. They attended high school together and were members of the same church where they

participated in various youth related activities. They married at ages 19 and 20. There were problems

throughout the marriage. Both parties testified to verbal abuse and physical altercations, sometimes

in the children’s presence. It was Husband’s testimony that the physical abuse was initiated by Wife

and that he responded only in self-defense. Wife described Husband as domineering and controlling.

Husband testified that for the first seven or eight years, his priorities were somewhat amiss with his

attention focused primarily on his work as opposed to his wife and children. After an accident

resulting in the loss of his job, however, he stated that he was in a position to spend more time with

the children and was consequently made aware of the importance of family and has since shifted his

priorities. Husband is in the printing business and at the time 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 children during the marriage and for a time also operated an in-home day

care, caring for up to 25 children. 

 Neither party has resided in the marital home, located in Covington, since May 1996.

Wife testified that she moved to Bartlett after the couple’s separation when her day care business

began to dwindle and she was caring for only three or four children. At the time of trial, Wife

operated an in-home day care from her residence in Bartlett, caring for four children and earning

between $300 and $350 per week. She currently dates a Bartlett police officer, Mr. Frank Lemmons.

The testimony was undisputed that much animosity
3

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

particularly the eldest, Joshua. The trial court conducted an in chambers conference with Joshua

who indicated a preference that his custody be awarded to Husband. Husband testified that he would

be willing to relocate to Tipton County if so ordered by the court in order to obtain custody of the

children. The children have a relationship with both their maternal and paternal grandparents all of

whom live in the Covington area, as well as other cousins, aunts and uncles.

The trial court was presented with the deposition

testimonies of three clinical psychologists, 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 offered no recommendation to

the court but who testified as Joshua’s individual therapist regarding the impact of the divorce on

him. There was conflicting testimony among the psychological experts as to whether Wife’s

relationship with Lemmons had negatively impacted the children. 

The final decree indicates the parties stipulated that

grounds for divorce existed and that both parties were granted a divorce pursuant to statute. As

heretofore noted, the trial court awarded custody of the children to Wife, with Husband receiving

“standard visitation 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 between Lemmons

and Husband regarding the children; that any discussions involving the children’s welfare were to

be conducted between the parties; and that all discipline of any type to the children was to be

administered by the parties only. Finally, the decree ordered the parties to continue Joshua’s

counseling sessions with Dr. Allen Battle “on an as needed basis until such time as Dr. Battle

discharges Joshua or until the court orders otherwise.”

In a memorandum opinion, the trial court made the

following factual findings as they relate to child custody:

Wife is
4

current

l y

dating

a man

named

Fran k

Lemm

ons. . .

. She

admits

that she

i s

having

sexual

relatio

ns with

M r .

Lemm

ons but

denies

doin g

anythin

g

inappr

opriate

in the

presen

ce of

t h e

childre

n. The

Husba

n d

claims

that the

Wife is

attempt

ing to

h a v e

M r .

Lemm

o n s

take his

p l a c e

in the

lives of

t h e

childre

n. The

W i f e

denies

t h i s .

T h e

Husba

nd and

M r .

Lemm

o n s

h a v e
5

h a d

verbal

confro

ntation

s in the

presen

ce of

t h e

childre

n.

Fran k

Lemm

o n s

testifie

d o n

behalf

o f

W i f e .

H e

s t ated

that he

l o v e d

t h e

W i f e

and he

and the

W i f e

h a d

d o n e

nothing

inappr

opriate

in the

presen

ce of

t h e

childre

n. He

a l s o

denied

spendi

ng the

night at

t h e

Wife’s

hom e

w h i l e

t h e

childre

n were

present

.

M r .

Lemm

o n s

denied

that he
6

h a d

d o n e

anythin

g t o

impair

t h e

childre

n ’ s

relatio

n shi p

w i t h

t h e

Husba

nd. He

claims

to do a

lot of

things

w i t h

t h e

childre

n. He

a l s o

testifie

d that

he will

always

dislike

t h e

Husba

nd and

doe s

n o t

believe

that he

wil l

ever be

able to

resolve

tha t

proble

m.

Upo n

request

of the

Husba

nd, the

Cour t

intervi

ewe d

t h e

parties’

o ldest

child ,

Joshua,

in the

presen

ce of
7

t h e

parties’

attorne

y s .

T h e

Cour t

f o u n d

Joshua

to be a

ver y

intellig

e n t

chil d

w h o

l o v e d

b o t h

h i s

parents

. He is

extrem

e l y

concer

n e d

w i t h

t h i s

divorce

and the

adverse

a ffec t

that it

has had

on him

and his

sibling

s. He

a l s o

stat e d

that his

grades

h a v e

g o n e

dow n

sin c e

t h e

fili n g

of the

divorce

.

Joshua

testifie

d that it

wou l d

be his

prefere

nce to

liv e

w i t h

h i s

father.
8

T h e

W i f e

testifie

d that

t h e

parties

cannot

discuss

anythin

g

civilly

and are

unable

t o

a g r e e

on any

issues.

T h i s

h a s

resulte

d in the

parties

experie

n c i n g

g r e a t

difficul

t y

regardi

ng the

childre

n since

t h e i r

separat

ion.

Based upon the evidence before it,the court concluded:

T h e

Cour t

i s

trouble

d with

various

aspects

of both

parties’

l ives.

Howev

er, it

has no

doub t

tha t

b o t h

parties

l o v e
9

t h e

childre

n and

in their

o w n

w a y ,

see k

w h a t

t h e y

believe

to be

best for

t h e

childre

n.

T h e

Husba

nd has

admitte

d that

t h e

Wife is

a good

mother.

Howev

er, his

concer

n, as

well as

t h e

concer

n of the

Court,

involve

s the

Wife’s

relatio

n s h i p

w i t h

M r .

Lemm

o n s .

Additi

onally,

t h e

Cour t

i s

trouble

d with

t h e

lack of

success

tha t

Joshua

h a s

experie

nced in

h i s
10

school

w o r k

sin c e

t h e

separat

ion.

On the

o t h e r

h a n d ,

t h e

Cour t

i s

concer

n e d

w i t h

t h e

control

that the

Husba

n d

seems

to want

t o

a ss e rt

in all

issues.

T h e

Cour t

is also

concer

ned by

t h e

allegati

ons of

physic

a l

a bus e

a n d

w i t h

t h e

Husba

n d ’ s

inexpli

c a b l e

behavi

o r

exhibit

e d

toward

t h e

W i f e

during

various

argume

nts.

T h e

Cour t
11

doe s

n o t

believe

that the

childre

n

should

b e

separat

ed but

tha t

t h e y

should

remain

togethe

r. The

Cour t

a l s o

doe s

n o t

believe

that it

w o uld

be in

t h e

childre

n’s best

interest

s t o

mov e

t o

Jackso

n ,

Missis

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 income tax purposes and requiring the parties to share travel expenses relating to

visitation by instructing that they exchange the children at a convenient location halfway between

Jackson, Mississippi and Covington. The trial court subsequently denied Husband’s request for a

sharing of travel expenses, but ordered that he be allowed to take the youngest child as a dependent

for income tax purposes. 

Husband presents the following issues on appeal:

I. The

Cour t

erred in
12

awardi

n g

custody

of the

parties[

’] three

childre

n to the

wife.

II. The

Cour t

erred in

failing

t o

require

t h e

parties

t o

jointly

s har e

t h e

childre

n ’ s

transpo

rtation

expens

es.

I I I .

T h e

Cour t

erred in

failing

t o

a llo w

t h e

Husba

nd two

(2) of

t h e

childre

n a s

depend

ents for

income

t a x

purpos

es.

We first address the issue of child custody. Our

primary concern is the best interests of the Travis children. The standard of review is in accordance

with Rule 13(d) T.R.A.P. which provides for a de novo review accompanied by a presumption 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). 

We are guided in our decision by certain guidelines

previously established by case law as well as those factors set forth by statute. These aides in

making our determination were addressed by the court in Whitaker as follows:

In child

custody

a n d

visitati

o n

cases,

t h e

welfare

a n d

b e s t

interest

s of a

chil d

are the

paramo

u n t

consid

eration

s and

t h e

rights,

desires,

a n d

interest

s of the

parents

become

second

a r y .

Neel y

v .

Neely,

7 3 7

S.W.2d

5 3 9 ,

5 4 2

(Tenn.

App.19

87). In

Bah v.

Bah ,

6 6 8

S.W.2d

6 6 3

(Tenn.

App.19

83), the
14

Cour t

establis

h e d

s o m e

guideli

nes for

making

t h e

determ

ination

of best

interest

:

W e

a dop t

w h a t

w e

believe

i s a

commo

n sense

approa

ch to

custod

y, one

which

we will

call the

doctrin

e o f

“comp

arative

fitness.

” The

paramo

u n t

concer

n i n

chil d

custody

cases is

t h e

welfare

a n d

b e s t

interest

of the

child .

Mollis

h v .

Mollis

h, 494

S.W.2d

1 4 5 ,

1 5 1

(Tenn.

App.19

7 2 ) .
15

Ther e

a r e

literally

thousa

nds of

things

tha t

mus t

b e

take n

int o

consid

eration

in the

lives of

youn g

childre

n ,

Smit h

v .

Smith,

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

(1949),

a n d

t h e s e

factors

mus t

b e

review

ed on a

compar

a tiv e

approa

ch:

Fitness

f o r

custodi

a l

respon

sibiliti

e s is

largely

a

compar

a t i v e

matter.

N o

human

b e i n g

i s

deemed
16

perfect,

henc e

n o

human

can be

deemed

a

perfect

ly fit

custodi

a n .

Necess

arily ,

therefo

re, the

courts

mus t

determ

i n e

which

of two

o r

m o r e

availab

l e

custodi

ans is

m o r e

or less

fit than

others.

Edwar

ds v.

Edwar

ds, 501

S.W.2d

2 8 3 ,

290-91

(Tenn.

App.19

7 3 )

(empha

s i s

supplie

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

consid

er the
17

factors

as set

forth in

T.C.A.

§ 36-6-

1 0 6

(1996):

36-6 -

1 0 6 .

Chil d

custod

y. -- In

a suit

f o r

annulm

ent ,

divorce

,

separat

e

mainte

nance,

or in

a n y

o the r

procee

din g

requiri

ng the

court to

make a

custody

determ

ination

regardi

n g a

m i n o r

child ,

suc h

determ

ination

shall be

mad e

u p o n

t h e

basis of

the best

interest

of the

child .

T h e

c o u r t

sha l l

consid

er all

relevan

t

factors
18

includi

ng the

followi

n g

wh e r e

applica

ble:

(1) The

l ove ,

affecti

on and

emotio

nal ties

existin

g

betwee

n the

parents

a n d

child;

(2) The

disposi

tion of

t h e

parents

t o

provide

t h e

chil d

w i t h

food ,

clothin

g ,

medica

l care,

educati

on and

o t h e r

necess

a r y

car e

and the

degree

t o

which

a

parent

h a s

b e e n

t h e

primar

y

caregiv

er;

(3) The

import

ance of

continu
19

ity in

t h e

child’s

life and

t h e

l ength

of time

t h e

chil d

h a s

lived in

a

stable,

satisfac

t o r y

enviro

nment;

(4) The

stabilit

y of the

family

unit of

t h e

parents

;

(5) The

mental

a n d

physic

a l

health

of the

parents

;

(6) The

home ,

school

a n d

commu

nit y

record

of the

child;

(7) The

reason

a b l e

prefere

nce of

t h e

child if

twelve

( 1 2 )

y ear s

of age

o r

older.

T h e

cou r t

m a y
20

hea r

t h e

prefere

nce of

a

younge

r child

u p o n

request

. The

prefere

nces of

old e r

childre

n

should

normal

ly be

g i v e n

greater

weight

t h a n

t hos e

o f

younge

r

childre

n;

( 8 )

Eviden

ce of

physic

a l or

emotio

n a l

abus e

to the

child ,

to the

o the r

parent

or to

a n y

o t h e r

person;

and

(9) The

charact

er and

behavi

or of

a n y

oth e r

person

w h o

resides

in or

freque

nts the
21

hom e

o f a

parent

a n d

suc h

person’

s

interact

i o n s

w i t h

t h e

child.

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

As heretoforenoted, the record before us indicates that

the two oldest Travis children, Alexandria and Joshua, ages 9 and 12 respectively, at the time of trial,

were both interviewed by clinical psychologists 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 sufficiently with her parents’ estrangement, due in some degree to the fact that

her older brother serves as sort of a “buffer” between her and the family situation. Dr. Battle

testified that Alexandria is “doing quite well” and is not exhibiting any psychological problems other

than those normally expected of any child whose parents are in the throes of a divorce. Nor does the

record reflect any unusual or significant adjustment problems for the youngest child, although he was

not interviewed psychologically due to his age. The record, however, does suggest that Joshua has

been severely impacted by the divorce and has endured much emotional turmoil as a result. There

was testimony in the record that Mother’s employment in the Covington area, running a children’s

day-care, was no longer feasible after the parties’ separation because children were taken out of the

day care. However, instead of seeking employment in the area in which the children had grown up

and the 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

in the record indicating that this move was in the best interest of the children; indeed, the record

indicates that the move created more turmoil for children already caught between two parents in

conflict. The record also indicates that Mr. Lemmons disciplined the children by “whipping” them.

On the other hand, Dr. Stacey L. Dixon testified that Alexandria divulged to her that her father
22

“doesn’t give me my asthma medicine” and “when I cough it drives him crazy and he slaps me on

my face.” She also told Dr. Dixon that her father does not take her to the doctor when she is sick

when she 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 therapist, testified that Joshua

exhibited “extreme concern about the anger that exists between mother and father. . . . anxiety and

sadness that is evoked by the disruption of his home and his family. . . . grave concern about his

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

same time he feels frustrated in doing so and fearful that he won’t [be] able too.” Dr. Battle

continued: 

I n

Joshua

I just

see him

i n

essence

i n a

state of

transiti

on. In

o the r

words,

he has

n o t

solidifi

ed into

anythin

g. It is

simply

sort of

psycho

logical

upheav

al, as

though

o n e

had a

contain

er of

w a t e r

i n

which

the dirt

h a s

settled
23

out of

t h e

bottom

so you

h a v e

c l e a r

w a t e r

at the

top and

dirt at

t h e

bottom,

a n d

someo

n e

comes

in with

a stick

a n d

s t i r s

t h e

whol e

thi n g

up and

t h e n

everyth

ing is

j u s t

topsyt u rvy,

b u t

there is

n o

resoluti

on in

Joshua

’s mind

at this

p o i n t

except

insofar

as he

decided

as of

the last

time I

s a w

h i m

a n d

e v e n

indeed

before

t h e n

that he

wo u ld

r a the r

liv e

w i t h

h i s
24

f a t h e r

becaus

e that

woul d

b e

more in

keepin

g with

t h e

g o a l s

and the

values

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 further therapy. He believed Alexandria had faired better during this family

trauma due to her age and the fact that Joshua, her older brother, had created a certain degree of

security for her. Dr. Battle did not find Joshua to exhibit any “deep psychopathology” and believed

his disorder environmentally produced. He concluded that Joshua had “sufficient intelligence, grasp

of the situation and of himself to be eminently capable to make an informed decision. And I find

that his reasons for 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 responded, “[o]ne does

not like 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 raised hundreds of miles apart. 

During the in chambers conference, Joshua informed

the court that he did not like the school that he transferred to in Bartlett as well as the one he attended

in Covington 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, he replied “I keep

them in the corner of my eye all the time.” He stated that if he “had a choice,” he would “probably

want [he and his siblings] to live with [his] dad. . . . I would just like that better, I would think.”

When asked if there was “[a]ny particular reason” for his choice, Joshua explained that “some of it

is Frank.” He stated, “every time my dad drops us off, [at his mother’s, after visiting], [Frank’s] got
25

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

an incident where Husband had returned the children to Wife’s house after visiting. Lemmons was

present and “started calling [his] dad names.” He continued, “[m]y sister threw down her shoes and

jumped in my dad’s arms, and my brother was clinging on to his legs until my mom came out there,

and she told my dad to let go. . . . My sister wouldn’t let go. It was just hard.” Joshua said he

sometimes worried about his mother and father and was “always” 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.

We recognize that divided 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 children who deserve no less than

other children whose parents remain united. As stated in W. Walton Garrett, Tennessee Divorce,

Alimony and Child Custody § 24-15 (1997), “[t]here is a strong presumption that the welfare of the

children will be best served by keeping the children together.” This presumption, however, is to be

“viewed in light of the particular facts and circumstances surrounding each child custody case.”

Hollis v. Hollis, No. 01A01-9704-CH-00178, 1998 WL 57537 (Tenn. App. Feb. 13, 1998). 

We are cognizant of the fact that Joshua’s preference

is not binding, but is one of the factors to be considered in a custody determination. Smith v. Smith,

No. 01A01-9511-CH-00536, 1996 WL 526921 (Tenn. App. Sept. 18, 1996); Hardin v. Hardin, No.

03A01-9711-GS-00507, (Tenn. App. May 19, 1998). 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 expressed 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

children are very close and Joshua feels protective toward his younger siblings. We do not believe

he envisioned them being separated. Therefore, we conclude that this case should be remanded to

allow Joshua to express to the trial court whether his preference would be the same if he and his
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siblings are separated. The record before us does not contain evidence of the effect of split custody

on the children and whether or not it would be in their best interest. Therefore, we are of the opinion

that 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 concerning child support, visitation and the

allocation of tax deductions as the circumstances require.

We commend the trial court for including in the final

decree that Wife is to avoid any contact between Mr. Frank Lemmons and Husband regarding the

children and that all discipline of any type to the children be administered only by Husband or Wife.

In view of our remand, the second issue presented by

Husband is pretermitted. Costs of this appeal are taxed to Mr. Travis.

____________________________________

FARMER, J.

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CRAWFORD, P.J., W.S. (Concurs)

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LILLARD, J. (Concurs)