### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 5, 2003 Session
SYNTHIA M. HOPKINS v. VICTOR L. H OPKINS Appeal from the Chancery Court for Montgomery C ounty No. 2001-01-0072 Carol Catalano, Judge

No. M2002-02233-COA-R3-CV - Filed June 25, 2003

The trial court granted the wife an a bsolute divorce, and fashioned a parenting pla n that gave the husband primary phy sical custody of their three children during the scho ol y ear, wit h the wife

to exer cise pr im ar y p hysical custody during the summer. The wife arg ues on appeal that the trial court’s plan gave the husband more custodial time than he had asked for, and far more than he was entitled to. She also argues that the trial court erred in its division of marital property, by giving the husband the benefit of an offset for a purported loa n from his pare nts. We reverse the trial court’s custody order, but a

ffirm its property division. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed in Part; Reversed in Part ; and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W ILL IAM B. C A IN and P ATRIC IA J. C OTT RELL , JJ., joined.
Mark A. Rassas and Julia P. North, Clarksville, Tennessee, f or the ap pellant, Synt

hia M. Hop

kins.
Sharon T. Massey , Clarksvi lle, Tennessee, f or the ap pellee, Victor L . Hopkins.
OPINION
I. M ARRIAGE AND E STRANGE MENT Synt hia Sue Moore and Vict or Lee Hopkins ma

rried on May 26, 1990. T

he wife h ad just finished college, and the husband still had a y ea r to go b efore completing his bachelor’s deg ree. During that year, the wife

worked f ull-time to

help her husband f

inish colle ge, whi le he wor ked part

time. After he graduated, Mr. Hopkins g ot a job at Tran e Industri es, and became the family ’s primary bre adwinner, while Ms. Hopkins took the role of homemaker.
The parties purchased

a marital home, with Victor Hopkins’ parents furnishing the $17,000 down payment. Three children were bo rn of the parties’ marriag e, two boy s and a g irl. Thoug h both-2-

parents maintained an active involvement in their children’s upbringing, they beganto experience marital difficul

t ies in the year

2000, when Mr. Hopkins began spending less time at home, a nd became emotionally

distant from his wife.
Ms

. Hopkins questioned her husband about this, and he stated that he didn’t love her anymore, and that he wanted out of the marriage. He also pushed his wife away phy sically, rebuff

ing any gestures of affection she

tried to make towards him. She suggested counseling . He agreed. The parties went to two or three sessions with a marriag e counse

lor. During those

sessions, Mr. Hopkins repeat ed that he did not love

his wife a

nd that he wanted out. Synt hia Hopkins filed a C omplaint for Absolute Divorce in the Chancery Court of Montgomery

County on January

22, 2001. Ms. Hopk ins cited irreconcilable difference s and inapprop riate marital c onduct asground s. She ask ed for primary

custody of the ch ildren, c hild support, alimon y, and an equitable division of the marital property . Her detailed parenting plan proposedthat

Mr. Hopkins have visitation every other weekend, during alternating holiday s, and for two weeks vacation during the summer.
Victor Hopkins f

iled his Answer and Counter-Complaint for divorce on Februa ry 7, 2001. He denied that he had been guilty of inappropriate maritalco nduct, but admitted that there were irreco ncilable

differences between the par ties. Mr. Hopkins also submitted his own parenting plan, which divided the custody of the c hildren equally between the parents, with custody alternating on a weekly basis.
Mr. Hopkins c ontinued t

o live in the marital home afte r his wife filed the Divorce Complaint. With the assist

ance of his pare nts, he be gan bui ldin g a house ne xt door to the marital home so he would remain n ear the childre n after he moved out. He moved into the new house two months before the trial of this case, and the parties be gan alternating custody on a daily basis.
II. D IVORCE P ROCEEDI NGS
The final hearing on the

divorce was conducted on June 4, 2002. Each party acknowledged that the ot her was a go od paren t to the children, but they both testified as to a rguments and disag reemen

ts over financial issues and child-rearing practices. For example, Sy nthia H opkin s testified that she believed that her husban d’s inclin ation to ha ve all the childre n sleep in the same king-size bed with him was not consistent with their need for privacy and independence.
Ms. Hopkins also testified that her fo ur-y ear-old daughter rec eived great benefit from spending time with o the r childre n of the sa

me age when atte

nding da yc are/pr e-schoo l at “L

ittle Country Schoolhouse.” Vic tor Hopkins testified that for both financial and emotional reasons, it was better for the little girl to be taken c are of by the paternal grandmother when the pa rents were worki ng.-3-

The mother testified that she thought that alternating custody

during the school y ear as the father had proposed would be very disruptive to the ch ild ren’s lives. When the father’s attorney askedthe mothe

r about the paren

ting pla n propose d in her di vorce c omplaint, the chan cellor interjected, “I’ve rea

d both parties’ shared parenting plan and, to tell y ou the truth, have done one of my own.”
The parties also testified in some detail about their financial circumstances. Synthia H opkins went back to work as a substitute teacher in January 2001, when she discovered that her husband had somehow eliminated her acc ess to their joint bank accounts. She eventually obtained a full-time job as a first g

rade te acher with the Cla rksville- Montgome

ry County School Dis tr ict. The fu ll-time sala ry is $28,500 per yea

r. She testified that she would like to earn her Master’s Deg ree, becaus e it would enable her to obtain an immediate $3,000 per y ear salary increase.
At the time of trial, Mr. Hopkins had been employ ed by the Tra ne Company for nine a

nd a half yea rs, and his gross annualincome had reached $67,000. He testified that his work hours ar e flexible enough to allow him to come ho me at 4:00 p.m. almos t every

day , and take

his childr en to baseball practice. His parents paid for the c o nstruction of a new house for him, next door to the marital home (al

though he appar

ently furn ished much of the labor). He has agr eed to pay r

ent of $500 or $700 per month to his parents (there was some inconsistency in his testimony ). Mr. Hopkins has a 401(k) retirement plan through his employ er with a value of $84,326.
One area of

contention involved the contribution Mr. Hopkins’ parents made to the marital home. As we stated above, the parents furnished $17,000 for a down pa

yme nt on the ho me. Shortl

y before trial, they filed

suit against their son and daughter-in-law in Ge neral Sessions Court for breach of contract. They

claimedthat the money

was mean

t to be an u

ndocumen

ted loan r ather th an a gif

t, and asked the cour t to award them $15,000, in accordance with the jurisdictional limits of the General Sessions Court.
At the conclusion of the proof, the chancellor announced her decision from the bench. She declared that she would grant the divorce to Sy nthia Hopkins on the ground of inappropriate marital conduct, and dismissVictor H opkins’ petition for divorce. As for the parenting plan, the chanc ellor stated that the best interest of the children and of the parties was best served by a plan different from either o f the one s submitted by t he parti es. The judge’ s finding s and conclusions w ere memo rialized in th e F inal Decree of Divorce, filed on July 19, 2002. The court found that the mother’s desire to begin a Master’s De gree program was reasonable, but that the demands of such a prog ram, whe n combine d with

her full-time teaching job, would necessarily

limit the time she had available to meet her children’s needs. The court also noted that the father had a grea t deal of flexibility in his job, and that he di d not need any f urther education. The fat her was accord ingly give n cust ody of the child ren du ring th e s ch oo l ye ar, with visitation by the mother, while the mother was give n custo dy d

uring su mmer vac ation, wit

h visitation by the father.-4-

The chancellor calculated that her plan would give the father about 230

custodia l day s with the children each year, and the mother about 135 days. The mother w as ordered to pay child support of $681 p er mon th, a s ligh t downward deviation from the guidelines, beca use she would have the childre n more tha

n the ty pical non -custodi al pare

nt.
The wife was awarded rehabilitative alimony of $277.77 per

month for 36 months, based on her testimony

that it would cost about $10,000 to earn her Master’s degr ee, and that if she took one course per seme ster, it w ould take three y ears. Th e wife w as alsoawarded the marital residence, a nd ordered to hold the husband harmless for any indebted ness on the property. The court found the equity in the home to be about $35,000.
The chance

llor also declared her intention

to make an equal division of the husband’s 401(k). She held, however, that the full $84,000 balance in the account

had to be reduced by

set-offs before the division wa s calcul ated. The set-of fs includ ed the $17 ,000 alle gedly

owed to the husband’s parent s, whi ch the court made t he hus band s olely res ponsi ble fo r sati sfying.
A further set-off of about $12,000 was ordered to equalize the division of the equities in the other marital property. T

he court noted

that the marital home and a vehicle awarded to the wife had a total equitable value of $36,000, while a 26 acre tract that was awa rded to the husband, together withthe vehic le he wa s award ed had a total equitable va lue of $24,000. The set-offs reduced the divisible portion of the 401(k) to about $55,218. The result was a determination that the wife was entitled to receive $27,609 from the husband, representing her share of the retirement acc ount. The parties were also ordered to pay their own attorney

fees. The wife filed a Motion to Alter or Amend the Judgment, which was denied. This appeal followed.
III. T HE P ARENTI NG P LAN While pointing out that a jury cannot g rant a plaintiff

a large r recov ery

than is as ked for in the pleadings, see Brown v. Nu ll, 863 S.W .2d 425 (Tenn. Ct. App. 19 93), the a ppellant readily concedes that a trial court does have the powe

r to fash ion a par enting p lan that is

in the bes t interes t of the children, even if that plan differs from the plans or expectations of both parties. See Steen v. Steen , 61 S.W.3d 324 (Tenn. Ct. App. 20 01); Barnhill v. Barnhi ll , 826 S.W.2d 443 (Tenn. Ct. App. 1991); Bah v. Bah , 668 S.W.2d 663 (Tenn. Ct. App. 19 83). The appella nt argu es, however, tha

t it is not in the best interest of the children to reduce the mother’sparticip ation in the ir upbrin ging to the extent required by the tria l court’s plan.
The appellant also argues that the trial judge had pre-judged the evidence by announcing that she had a plan of her own, prior to hearing all of the parties’ testimony . She further contends that someof the court’s statements during the hea ring o n her Moti on to Alter and Amen d indicat

e improper motive on the part of the judge -- that she wished to punish the mother for being unwilling to share custody of

the children with their father on an equal basis.1 Tenn. Code A nn. § 36-6- 401, et. seq. i s a fa irl y recent enactment , whi ch requi res the incorporation of a deta iled permanent pare nting pla n into any f inal decree of divor ce where a mi nor chil d is i nvolved. The crit eria f or the r esident

ial sched ule in the pla n ove rlap w ith, and so mew hat exp and upo n, the facto rs set ou t in Te nn. Co de A nn. § 3 6-6-1 06 for deter minatio n of cu stody. -5- It is well-se

ttled that child cus t ody and

visitation should not be granted or withheld for punitive purposes
. Adelsper ger v. Ad elsperge r, 970 S.W.2d 482 (Tenn. Ct. App. 1997); Turner v. Turner , 919 S.W.2d 34 0 (Tenn. Ct. App. 19 95). The determi na tion of custody should alway s be made upon the basis of the best interest of the ch ild, and in accord ance with the fa

ctors se t out in Tenn. Code Ann. § 36-6-106 and Tenn. Code Ann. § 36-6-401. 1 While there is no proof that the trial judge was acting out of an improper motive, we think that the releva ntstatutory factor s support an equal division of custody betwee n the parties. These include, (1) The love, affection and emotional ties existing between the paren ts and child; (2) The disposition of the parents to provi de the child with food, cloth ing, medical care, education

and other necessary

care and the

degree to which a pare

nt has been the primary

caregiver; (3) The importance of continuity in the child 's life and the length of time the child haslived in a

stable, s atisfac tory

environm

ent . . .; (4) The s tability

of the fa mily unit of the

parents ; (5) The m ental an d phy sical he alth of the parents ; (6) The home, school and community record of the child; Tenn. Code Ann. § 36-6-106(a).
The proof sho ws that the partie s are e qually

loving to wards the

ir childr en, and equally di sposed to nurture them and meet their material needs. The mother wa s their primary c are give r prior to the filing o f the divo

rce com plaint. Af

terwar ds, both pa

rents sha red those duties in a more or less equal fashion. Since the mother re

mains in the marital home, and the father lives next door, continuity

and stability would not appear to be a problem. The gr andparents furnish additional st ab il it y, and are

willing t o help out in bringing up the children. There is no indication in the record that either parent

has menta

l or phy sical pro

blems that

would affect their care of the c

hildren. The older childre n are doing well

in school, while

the y oung est isalso a

ppar ently developin g well. We notealso that as a trained and licensed teacher , the mother brings an educator’s perspective to the task o f chil d reari ng. The court’s rationale for granting the father custody during

the school year

was that this was most compatible with the mother’s work schedule, and with her educ ati onal go al. The c ourt also reasoned that since the ch ildr en were attending the school at which the mother was teaching, she would have frequent opportunities to see them, even without custody

.2 The fig ures brea k down as fol lows: the hus band’s gr oss in come of $5596 per month ($67,154/12) i s reduced

under the gui deline s to a net income of $3918 per m onth. As the f ather of thr ee children, he would normal ly be obl igat ed to pay 4 1% of that am ount to the custo dial p arent fo r child su ppo rt, or $1 606

. The mother’s gross i ncome of $2375 per
mon th ($28,500/ 12) res ul ts in a ne t i ncome of $1880 p er month and 41% of that amount i s $771 per m onth. Subtracti ng the mother’s presumptive obli gation from the f ather’s l eaves a difference of $835 p er month. -6- During the hearing on the Motion to Alter and Amend, the mother testified to the contrary that she has had very

little opportunity to interact with the childre

n during the schoo l day . She also complainedthat the c ourt’s c urrent p lan prev ents her from driv

ing the c hildren to school i n the morni ng, or taki ng them home in the afternoon. I nstead, they have

to ride the school bus. Thus , while the court’s pl an was ba sed in large part on an attempt to solve scheduling pr oblems, it may have created some new ones.
Ms. Hopkins also testified that she would only have to attend class one night a week during the schoo l ye ar to mak

e normal progre ss towards h

er Maste rs Deg ree. I t thus appe ars to us th at it would be possible for her to attend the classes she needs, eve n while follow ing a sche dule that divides custody

equally betwee n the par ties.
It is tr ue tha t Tenn . Cod e Ann. § 36-6 -404( 15) st ates t hat th e court can tak e each p arent's employment

schedule into account when fashioning a par enting pl an , and may make accommodations consistent with those schedules. But there was no proof that the mother’s custody had to be curtailed as sever ely as the co urt believed necessary in order for her to meet her professional and educational obligations.
In sum, we believe that the best interests of the c hildr en ar e m os t e ff ec ti ve ly s er ve d b y a custody determin ation tha

t divides th

eir phy sical cu stody

equally between the parents. The father submitted two plans t

o the cour t, in both of

which the

parties a lternate custody on a wee kly basis. We believe that his plan of June 3, 2002 is the one the court should have adopted.
Alth ough some adjustments may be nec essary to ac commodate th e mother ’s acad emic schedule, the parties can make such adjustments by informal agreement. I

f they ca nnotagree, then the pl an pr ov id es fo r m ed ia ti on by a Rule 31 Mediator. We note that the father ’s plan ob ligate s him to pay child support of $800 a month, which we believe will equalize the resources available to the children, regardless of which pa rent they ar

e with.
We also note

that if we

were to s ubtract

the pres ump tively corr

ect amount of support she would be obligated to pay

under the child support guidelines from the amount he would have to pay under the same guidelines, the r

esult woul d be very

close to the amount

he offered. 2 In light of the father’s exerc ise of

prima ry custod y followi ng t he trial co urt’s ord er, he should not be

held responsi ble for any ba

ck child suppo rt, a nd his suppo rt oblig ation should begin in the month following the filing of this opinion.
IV. T HE P ROPERT Y D IVI SIO N-7- A. T HE $17,000 D EBT
The appellant argues that the trial court invaded the authority of another court by

approving an offset in

the prope

rty divisio n based u pon a presumed outcome in a case still pending in the General Sessions Court. She contends that since t hat court had not ye t decided whether the pur porte d $17,000 de

bt to Mr. Ho

pkins’ pa rents is in fact owed, it was e

rror fo r the tria l court to factor that sum int

o its calculations.
As the appe

llee poin ts out, how ever, th

e trial c ourt coul d not fully divide the

marital p roperty withoutalso i ncorp orati ng t he mar ital debts. The court did state that it was making Mr. Hopkins responsi ble for the debt to his parents “so that the genera l sessions laws uit is dismissed.” But of cour se the cour

t was not ta

king it up on itself t

o dismiss an

action in another court, bu

t merely observing that satisfaction of the debt would undoubtedly result in dismissal of the general sessions action. Appellee also arg

ues that s ince the

divorce complain t was fil ed before the debt action, the divorce court took ex clusive jurisdiction of the matter. We don’t believe this is so, since Mr. Hopkins’ parents arenot parties to the divorce. We agree however that had t he general se ssions ca se gone to trial before the final order was filed in the divorc e case, the defendants could have attempted to preve nt the gener

al session s court f

rom ruling

on the deb t by

raising the defe nse of pr ior suit pendi ng. In any

event, despite the confusio n that mig ht have be

en crea ted by putting t he same debt at issue in two different cases, we agr ee with the appelleethat it was prop er for th

e trial c ourt to rule on and disp ose of the

purporte d marital

debt as it r

elates to the divor ce of the se partie s.
B. T HE T OTAL P ROPERT Y D IVI SIO N The trial court is authorized to equitably divide the marital property of the

parties, without regard to fault. See Wilder v. W

ilder , 863 S.W.2d 707 (Tenn. Ct. App. 1992) “in proportions as the courtdeems ju st.” Tenn. Code Ann. § 36-4-121(a)(1). The cour t is given wide discretion i n propert y division. Loyd v. Loyd , 860 S.W.2d 409 (Tenn. Ct. App. 1993). Its distribution is given great weight on

appeal, and is presumed to be correct, unless the pr eponderance

of the evidence i s otherwise. Barnhill v . Barnhill , 826 S.W.2d 443 (Tenn. Ct. App. 1991).
In the present case, the

trial cou rt attemp ted to divide the marital property equally between the parties, in light of the factors set out in Tenn. Code Ann. § 36-4-121(c). The factors supporting an equal division were the duration of the marriage, the phy sical and mental health of the parties, and their equal contribution “to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property ,” with the contribution of the wife as homemaker and parent given equal weight

to the husband’s contribution as wage earne r and parent, as is required by Tenn. Code Ann. § 36-4-121(c)(5). Synt hia Hopkins notes that the relative economic circumstances of the pa rties at the time of the division of

assets is a

lso a factor to be conside red. Tenn. Code Ann. § 36-4-121(c)(8). She-8-

argues that the division of marital property a s a whole was inequitable as to he r, because Mr. Hopkins has a far greater

earning capacity

than she does. We a

gree t hat as a p ublic school teacher, Ms. Hopkins is unlikely to ever ear n as much as her former husband earns in the private sector, but we do not believe this automatically e ntitles her to a larger share of the ma rital estate.
We note that the parties do not appear to have accumulated ver y much in the

way of f inancial assets during the course of their marriage, with the exception of the husband’s 401(k). Nonethele ss, the trial court’s order gives the wife ove r $27,000 in cash, unencumb ered by taxes. Although this award represents her share

of the husband’s 401(k), Mr. Hopkins cannot withdraw this sum from the 401(k) without incurring a 10% penalty and pay ing inco me taxes on

it. Thus, the immediate impact of the property

division will fall on him, while the immediate benefit will accrue to her.
The wife will also receive $10,000 as rehabilitative alimony over three

years. O nce she earns her Master’s Degree, she will receive an immediate raise of $3,000 a y ear, with additional raises each year in accordance with the Clar ksvill e Montgomery

salary g rid that was entered into evidence. There are no indications in the record that the husband c an expect increases in his own salary

. In sum, it appears to us that wh ile Mr. Hopk ins’ s alary does place h im at an adv antage relative to his former wife, the differences betwe en the economic circumstances of the parti es are notso great as to render an equal divisionof the marital property inequitable. We therefore do not believe that the evidence prepondera tes against the trial court’s decision.
V. A TTORNEY F EES
Fi na ll y, Ms. Hopkins argues that the trial court erred in refusing to aw ard her attorne y f ees. She points out that attorney fees a re considered to be a ty

pe of alimony, R askind v . Raskind, 325 S.W.2d 617 (Ten

n. 1959); t

hat as wit h all alimo ny a

wards, it is permiss ible to consider fault when ruling on the que st ion of atto rney fees; see Lindsey v. Lindsey , 976 S.W.2d 175 (Tenn. Ct. App. 199 7); and that fault in this case clearly lies with Mr. Hopkins, since the wife was awa rded th e divorce on the grounds of his inappropriate marital c onduct.
But it is also true that an award of attorney fees is within the discretion of the trial court, and will not be reversed without a clear showing of abuse of that discretion. Loyd v. Loyd, 860 S.W.2d 409 (Tenn. Ct . App. 199 3); Houghland v. Houghland, 844 S.W.2d 619 (Tenn. Ct. App. 1992). Further, wh en th er e i s a so ur ce of fu nd s f or a p ar ty t o p ay h is or h er own a ttorney fees, a nd those funds are not

necessa ry for that p arty ’s suppor

t, it is usua

lly not conside

red appr opriate to make the opposing party re sponsible for such fees. See Franklin v. Frank lin , 746 S.W.2d 715 (Tenn. Ct. App. 1987).
In the present case, Ms. Hopkins received over $ 27,000 as h er shar

e of the marital a ssets. She is a licensed teacher, who has been proven to be capable of supporting herself. Further, there is nothing in the rec ord to indi cate tha t the fee s she incu

rred we re out o f th e ordinary , or that Mr. Hopkins acted in

an obstru ctive wa

y to force h er to pay for more legal a ssistance

than she w ould-9-

otherwis e have requi red. Thus, we belie ve that it w as within t

he discr etion of th

e trial c ourt to decline to award attorney fees to her.

VI

. That part of the trial court’s order which deals with child custody and child su pport is reversed. All other

parts of the orde r, inclu ding tho se which deal with the division of marital propert y an d with attorney fees are affirmed. Remand this cause to the Chance ry Court of Montgomery

County for further

proceedings consistent with this opinion. Divide the costs on appeal equally between the appellant and the appellee.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.