1

FILED

March 26, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

KATHERINE RENEE RICE, ) C/A NO. 03A01-9709-CV-00415

)

Plaintiff-Appellant,)

)

)

v. ) APPEAL AS OF RIGHT FROM THE

) McMINN COUNTY CIRCUIT COURT

)

)

)

JAMES TIMOTHY RICE, )

) HONORABLE JOHN B. HAGLER, JR.,

Defendant-Appellee. ) JUDGE

For Appellant For Appellee

LYNN TARPY S. RANDOLPH AYRES

THOMAS M. LEVEILLE Athens, Tennessee

Hagood, Tarpy & Cox, P.L.L.C.

Knoxville, Tennessee

O P I N I O N

AFFIRMED AND REMANDED Susano, J.
2

In this divorce case, the trial court awarded the

original defendant, James Timothy Rice (“Husband”), an absolute

divorce from Katherine Renee Rice (“Wife”); granted Husband

custody of the parties’ child, Madalyn Sue Rice (DOB: April 20,

1993); divided the parties’ personal property and debts; and

pronounced other decrees that are not relevant to the issues on

this appeal. Wife appealed, presenting issues that raise the

following questions:

1. Does the evidence preponderate against

the trial court’s judgment awarding Husband a

divorce?

2. Does the evidence preponderate against

the trial court’s decision to award custody

of the parties’ child to Husband?

3. Did the trial court err in refusing to

allow testimony regarding Husband’s practice

of reading “pornographic” magazines?

4. Does the evidence preponderate against

the trial court’s decree ordering Wife to pay

a deficiency indebtedness on the parties’

Jeep?

We affirm.

I. Factual Background

The parties were married in Pennsylvania on September

21, 1993. They had been involved prior to their marriage, and

their earlier relationship had produced a child, Madalyn Sue

Rice, who was born on April 20, 1993. Wife has another child,

Meghan LeBlanc, who was five at the time of the trial below.
1

According to Husband, Randolph failed to advertise the business as he

had agreed to do.

3

For the bulk of the parties’ three-year plus marriage,

Husband was employed as a salesman for various owners of cemetery

properties. During the marriage, Husband worked in, and the

parties resided in, the states of Pennsylvania, Missouri,

Indiana, Illinois, and finally Tennessee. Husband moved to

Athens, Tennessee in May, 1995. Wife and the two children

followed him to Tennessee at the end of July, 1995.

Prior to moving Tennessee, Husband had learned that

Green Hill Cemetery in Etowah was available for sale. He talked

to a Jim Randolph, his best friend who he had known for 10 years,

about the cemetery and, according to Husband, Randolph agreed to

purchase the cemetery and agreed that he and Husband would

ultimately be partners in the business. Husband and Randolph

then both re-located to McMinn County to pursue this business

interest.

Husband was initially successful in selling lots at the

Etowah cemetery; however, shortly after moving to Tennessee,

Randolph began personally pursuing leads that were received at

the cemetery office, and Husband decided that Randolph was not

dealing with him in a fair manner.1 Concluding that there was

not enough business to support the two of them, Husband decided

to look elsewhere for employment.

Approximately four to six weeks after Wife moved to

Athens, Husband decided to leave Tennessee for a job at a

cemetery in Georgia. Wife refused to relocate to Georgia,
4

reminding Husband that she had told him that the move to

Tennessee was her last. Husband suggested counseling, but Wife

declined to participate.

In October, 1995, while Husband was working in Georgia,

Wife returned to Illinois with the children and moved in with her

brother and his family.

Wife returned to Tennessee in January, 1996, and moved

in with Randolph at his home in Englewood. The children moved

with her. According to Wife, she and Randolph started a sexual

relationship in March, 1996. At the time of trial, Wife and

Randolph were still living together with the children in

Englewood. Husband was living with his parents in Crystal Lake,

Illinois, where he was employed selling home security systems.

II. Procedural History

Wife filed for divorce on April 8, 1996, some three

months after moving in with Randolph. She alleged that she was

entitled to a divorce on the ground of inappropriate marital

conduct.
2

T.C.A. § 36-4-106(a) provides, in pertinent part, as follows:

In cases wherein an answer is filed, the court shall,

on motion of the defendant, require the complainant to

file a bill of particulars, setting forth the facts

relied on as grounds for the divorce, with reasonable

certainty as to time and place.

3

Rule 12.05, Tenn.R.Civ.P., provides, in pertinent part, as follows:

If a pleading to which a responsive pleading is

permitted is so vague or ambiguous that a party cannot

reasonably be required to frame a responsive pleading,

the party may move for a more definite statement

before interposing a responsive pleading.

5

Husband moved for a bill of particulars, relying on

T.C.A. § 36-4-106(a)2 and Rule 12.05, Tenn.R.Civ.P.3 Wife

responded by alleging verbal and physical abuse, and use of

profanity in front of the children. In addition, she relied upon

the grounds of abandonment and non-support under T.C.A. § 36-4-

102 (a)(3).

On December 18, 1996, Husband filed an answer and

counterclaim for divorce. Both parties sought custody of their

minor daughter.

Following two days of trial, the court took the matters

before it under advisement. On January 23, 1997, the court

entered its final judgment, which recites the following predicate

for the relief granted:

...the Court finds and holds that...Katherine

Renee Rice, has been living in an adulterous

relationship for approximately one year with

a man by the name of Jim Randolph, that [she]

has allowed said Jim Randolph to assume an

inappropriate role in interfering with the

father’s relationship with the parties’ minor

daughter, and that under the provisions of

Tennessee Code Annotated § 36-4-

102(a)(1)...[she] has been guilty of

inappropriate marital conduct. The Court

further finds that [her] testimony concerning
6

alleged abuse by [Husband] was not

particularly persuasive and that the real

reason for the breakup of the marriage is

[her] relationship with one Jim Randolph,

rather than any abuse as alleged by [her].

III. Standard of Review

In this non-jury case, our review is de novo upon the

record of the proceedings below; but the record comes to us with

a presumption of correctness that we must honor “unless the

preponderance of the evidence is otherwise.” Rule 13(d),

T.R.A.P. See also Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.

1984). Our search for the preponderance of the evidence is

tempered by the principle that the trial court is in the best

position to assess the credibility of the witnesses; accordingly,

such credibility determinations are entitled to great weight on

appeal. Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App.

1995); Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn.App. 1991). 

In fact, this court has noted that

...on an issue which hinges on witness

credibility, [the trial court] will not be

reversed unless, other than the oral

testimony of the witnesses, there is found in

the record clear, concrete and convincing

evidence to the contrary.

Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490

(Tenn.App. 1974).

IV. Analysis
7

Wife contends that she, not Husband, should have been

granted the divorce. She argues that Husband’s conduct before

their separation was the real cause of the breakup of their

marriage.

“[A] divorce suit is not designed to determine which

spouse has been perfect in behavior, for perfection is found no

more in marriage than elsewhere.” Bush v. Bush, 684 S.W.2d 89,

92 (Tenn.App. 1984). When a marriage is examined in a court

proceeding, it generally reveals a union with “imperfections in

both spouses.” Id. Courts attempt to determine the “straw that

broke the camel’s back” -- conduct that finally brought an “end”

to the marriage relationship. Id. As a practical matter, that

can be a single incident or an accumulation of matters over time.

In this case, the trial court determined that the real

cause of the breakup of this marriage was Wife’s adulterous

relationship with Randolph. In denying Wife’s motion to alter or

amend, or for a new trial, the court made the following

significant statements:

Also, I think I should add that I did judge

the credibility of the witnesses. I could

not -- well, I’ll put it this way: Had I

believed all the allegations of abuse, it

might have been a different case, but I

watched the witnesses testify and I could not

accredit much of that testimony.

I also felt very clearly that the mother’s

relationship with Mr. Randolph began earlier

than she had testified. I think that’s one

reason Mr. Randolph was not here to testify

in court, because there was going to be a lot

of questions asked and to be answered with

respect to that. I think there was a great

deal of deception involved in the early part
8

of that relationship, and all that went into

account in the Court’s decision in judging

the credibility of the parties as they

appeared before the Court.

“[A] persistent pattern of adulterous conduct” will

support a grant of an absolute divorce on the ground of

inappropriate marital conduct. Farrar v. Farrar, 553 S.W.2d 741,

744 (Tenn. 1977). It is likewise clear that post-separation

conduct of an inappropriate nature will support a grant of

divorce under certain circumstances. Clark v. Clark, 644 S.W.2d

681, 682 (Tenn.App. 1982); Perry v. Perry, 765 S.W.2d 776, 779

(Tenn.App. 1988).

In this case, the parties had sharply contrasting

theories as to the cause of the end of their marriage. Wife

claimed that Husband’s verbal and physical abuse, coupled with

the instability of his employment and his failure to support his

family, were the main causes of the failure of their marriage. 

On the other hand, Husband pointed to Wife’s relationship with

Randolph as the ultimate cause of their breakup. The trial court

resolved these credibility issues in favor of Husband. The court

did not find the evidence of abuse to be persuasive. As we have

previously indicated, a trial judge, who sees and hears the

witnesses, is in a much better position than are we to resolve

competing and sharply contrasting testimony. Tennessee Valley

Kaolin Corp., 526 S.W.2d at 490.

There is evidence in the record to support the trial

court’s conclusion that Wife and Randolph were involved before
9

March, 1996, the point in time at which Wife claimed the affair

began. Wife admitted that she and the children had dinner out

with Randolph in October, 1995, and also admitted that he visited

her in Illinois for Thanksgiving, 1995. There was also evidence

of gifts and long-distance phone calls prior to March, 1996. 

This evidence gives rise to a reasonable inference, accepted by

the trial court, that there was a romantic, if not sexual,

relationship prior to March, 1996.

In view of the trial court’s very explicit findings

regarding the credibility of the parties, we cannot say that the

evidence preponderates against the grant of divorce to Husband. 

Wife’s issue as to the divorce is found adverse to her.

Wife also complains about the trial court’s award of

custody of the parties’ minor daughter to Husband. She argues

that the trial court awarded custody to Husband in order to

punish Wife for her adulterous relationship with Randolph. She

relies upon a number of cases holding that custody should not be

used to punish a party for errant behavior. See, e.g.,

Sutherland v. Sutherland, 831 S.W.2d 283, 286 (Tenn.App. 1991). 

She points out that she was the primary caregiver, that even

Husband acknowledges that she is a good mother, that the court’s

decree has the effect of separating Madalyn from her half-sister,

and that Husband’s employment instability and failure to send

support demonstrates his unfitness as a custodian. Wife claims

that the court failed to make the analysis required by both

T.C.A. § 36-6-106 and the “comparative fitness” test first named

in Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.App. 1983).
10

The trial court made explicit findings on the subject

of custody:

...the Court never intends to use custody to

punish a party. If the Court does that, then

the Court is wrong. I don’t think that I

used custody to punish the mother in this

case.

The Court had to decide which parent would be

more likely to insure that this four-year-old

child would have a relationship with both

parents. And after hearing all the evidence,

I found that if the father had custody, there

was a greater chance that the child would

have a meaningful relationship with the

mother than if the mother had custody,

because the mother’s paramour had seriously

interfered with the father’s access to the

child.

There was only one part of the case that

shocked me. That was the part that shocked

me, that the mother’s new friend simply

attempted to take the place of the father in

this case. I think the evidence was

overwhelming. And even after taking the

tender years’ doctrine, the continuity and

placement, and so forth, into account, the

Court felt that it was in the best interest

of the child that the father have custody,

and nothing has been changed -- has been

shown that would make me change my opinion. 

If the Court is wrong in that regard, I hope

the appellate court will correct it.

* * *

Whether I gave proper weight to the different

factors is a question for someone else, but I

can assure you that I considered all the

factors which the legislature requires the

Court to consider.

We do not find support in the record for Wife’s

argument that the trial court did not employ the analysis

required by T.C.A. § 36-6-106 and the Bah case. On the contrary,

the record clearly reflects that the trial court correctly

analyzed the issue of custody. There was substantial evidence
11

that Wife permitted Randolph -- described by both parties as

“dictatorial” -- to interfere with, if not control, Husband’s

relationship with his daughter. Randolph’s conduct in this case

gives rise to a reasonable inference, drawn by the trial court,

that Wife’s continued exercise of custodial rights in the

Randolph household would severely limit, and adversely affect,

Husband’s relationship with the child.

There is also proof in the record that Madalyn is

confused by her mother’s relationship with Randolph. Wife

admitted that she and Randolph kissed, hugged, and held hands in

front of the children. Madalyn’s confusion is shown clearly by

the fact that she would sometimes call Randolph “Daddy,” while

she frequently called her real father by his first name. 

Randolph’s involvement in Madalyn’s life is further shown by the

fact that he administered discipline to the child by spanking her

with a hair brush. There was also testimony that as early as

December, 1995, Madalyn had told her paternal grandmother that

Randolph was going to be her new daddy.

The best interest of a child is the overriding

consideration in all custody determinations. T.C.A. § 36-6-106;

Luke v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983). Generally

speaking, it is not appropriate to separate siblings by a custody

order. Baggett v. Baggett, 512 S.W.2d 292, 293-94 (Tenn.App.

1973); but this principle is not inflexible. It must give way to

other considerations if the best interest of a child so dictates.
4

Husband testified that Randolph, who had been his best friend, failed

to honor his commitment to Husband regarding the Etowah cemetery; Randolph, on

the other hand, believed that Husband had stolen money from the cemetery.

12

We do not believe that the trial court awarded custody

to Husband in order to punish Wife for her adulterous conduct. 

Wife’s adultery is not the issue. What is important about that

relationship is Wife’s decision to move into Randolph’s house,

knowing that Randolph and her husband had had a falling out,4 and

then allowing Randolph to act as her surrogate with respect to

Husband’s relationship with his daughter. It is a reasonable

inference from the proof -- including testimony regarding a

physical altercation between Randolph and Husband -- that

Randolph permitted his personal animosity to affect his anointed

role as Wife’s surrogate for visitation matters.

It is unfortunate that Madalyn will be separated from

her half-sister. The trial court attempted to lessen the effect

of this separation by “encourag[ing]” Wife to allow Meghan to

visit in Husband’s home. As we have previously indicated, the

best interest rule trumps all other custody principles --

including the one generally disfavoring separation of siblings.

In resolving credibility issues as to entitlement to

divorce and custody, it is clear that the trial court was

influenced somewhat by Randolph’s failure to testify. In this

case, the trial court was within its discretion in drawing an

inference adverse to Wife under the so-called missing witness

rule. See NEIL P. COHEN, ET AL., TENNESSEE LAW OF EVIDENCE § 401.9

(3d ed. 1995)(“The general rule is that failure to call a witness

who (1) has peculiar knowledge of facts, and (2) would naturally
13

favor the party’s contention raises an inference that the

testimony would have been unfavorable to the party who failed to

call the witness.”).

The evidence reflects that Husband has established good

living conditions for his daughter in Illinois. There was no

evidence indicating that Madalyn will be adversely affected by

living with Husband in the home of his mother and stepfather.

The evidence does not preponderate against the trial

court’s award of custody to Husband.

Wife contends that the trial court erred in failing to

allow her counsel to inquire into Husband’s practice of reading

“pornographic” literature. We do not find this to be error in

this case.

The totality of the record pertaining to this subject

is as follows:

Q What other problems were there in your

marriage?

A He drinks a lot. And I’m not a doctor,

but he’s very close to being an alcoholic. 

He cusses. He throws a temper. He likes to

read dirty magazines; he has them laying

around the house; I mean just tons of stuff. 

It was -- just there was a pile and pile of

stuff there.

MR. AYRES: Your Honor, I’m going to object to

this. We asked for a bill of particulars. 

We also asked in her deposition and this

never came out in it either. They filed

their specifics and there was nothing in

there about any so-called “pornography,” and

that’s the first I’ve ever heard of this.
14

THE COURT: Mr. McKenzie, do you --

MR. McKENZIE: As far as -- go back to the

alcohol, Your Honor, I think we did mention

he was verbally abusive. Certainly the

alcohol, if I could question her --

THE COURT: What about the books?

MR. McKENZIE: The magazines we did not list

that as a specific ground.

THE COURT: What about, was the deposition

taken?

MR. McKENZIE: Yes. I don’t remember that

being mentioned.

THE COURT: Did Mr. Ayres ask any questions

that that would have been a fair answer to?

MR. McKENZIE: Your Honor, I believe he asked

her what were the, what were the problems in

the marriage and --

THE COURT: I think I’ll sustain the

objection.

The testimony sought to be elicited in this case was

not relevant. This is because Wife did not allege Husband’s

reading of pornographic literature as a part of her grounds for

divorce. The question before the trial court pertained solely to

Wife’s grounds for divorce. Husband had attempted to “flesh”

these grounds out by filing his motion for bill of particulars. 

Since this matter was not raised in the pleadings, questions

about it were irrelevant. George v. Alexander, 931 S.W.2d 517,

525 (Tenn. 1996) (Reid, J., concurring); Bridges v. CSX Transp.,

Inc., 845 S.W.2d 760, 764 (Tenn.App. 1992). The function of a

pleading is to “give notice to the parties and the trial court of

the issues to be tried.” Castelli v. Lien, 910 S.W.2d 420, 429

(Tenn.App. 1995).
15

Wife cannot contend that Husband was not surprised by

this line of inquiry. The record before us clearly reflects that

Husband’s counsel was in fact surprised by the testimony. Wife’s

deposition is in the record, and it is entirely devoid of any

reference to the pornographic literature issue. Husband’s

counsel questioned Wife regarding her grounds for divorce in the

deposition and she failed to mention, in any way, Husband’s use

of pornographic material. This issue is found adverse to Wife.

Finally, Wife contends that the trial court erred in

requiring her to pay a deficiency debt of $3,200 on the parties’

Jeep.

Generally speaking, marital debts are to be equitably

divided between the parties. Cutsinger v. Cutsinger, 917 S.W.2d

238, 243 (Tenn.App. 1995); Mondelli v. Howard, 780 S.W.2d 769,

773 (Tenn.App. 1989). “When practicable, the debts should follow

the assets they purchased.” Id.

The Jeep was titled in Wife’s name. Husband left this

vehicle with Wife after she had moved in with Randolph. It was

in Wife’s possession when it was repossessed.

There were a number of debts allocated between the

parties in the judgment of divorce. We find that the evidence

does not preponderate against the trial court’s decision that it

was equitable to burden Wife with the deficiency on the Jeep

debt.
16

The judgment of the trial court is affirmed. Costs on

appeal are taxed against the appellant and her surety. This case

is remanded to the trial court for enforcement of that court’s

judgment and collection of costs assessed there, all pursuant to

applicable law.

__________________________

Charles D. Susano, Jr., J.

CONCUR:

______________________

Herschel P. Franks, J.

______________________

Don T. McMurray, J.