# FILED
July 2, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
BEVERLY FAY

MELTON, ) ) Plaintiff/Appellee, ) Weakley Chancery

No. 14238 ) VS. ) A ppeal No. 02A 01-9701-CH- 00022 ) DANNY JOE MELTON, ) ) Defendant/Appellant. )
APPEAL FROM THE CH ANCER Y COU RT OF WEAKLEY COUN TY AT DRESDEN, TEN NESSEE THE HONORABLE W. MICHAEL MALOAN, JU DGE

WILLIA M R. NEESE Dresden, Tennessee Attorney for Appellant

JAMES H. BRA DBERRY JAM ES H. BRA DBERRY & A SSOCIA

TES Dresden, Tennessee Attorney for Appellee

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: DAVID R. FA RMER, J. HOLLY K IRBY LIL LA RD, J. In this divorce action, Danny Joe Melton (hereinafter, “Husban d” or “Mr. Melton”)2

appeals the trial court’s deter mination reg arding the di vision of themarital estate, custody of the parties’ minor child , and the awar d of certain farm equipment to his former father-inlaw.
Danny

Joe Me lton and B everl y Fay Melt on (hereinafter, “W ife” or “Mrs. Melton”)
were married in J une, 1972. Duri ng the marriage, the couple lived in Gleason, Tennes see. The union produced two children. The older chil d has reached the age of majority , and the younger, born in 1981, is a minor. Mrs. Melton is a teacher in the Weakley County sc hool syst em, and Mr. Mel ton derived most of his incom e during th e marria ge from farming and from auto racing -related busi nesses. Throug ho ut the marriage, Vernon Dunn, Mrs. Melton’s father , contributed fin ancially to the Meltons . In fact, Dunn set up Mr. Melton in
a farming operati on by gi ving hi m 111 a cres of farm land and a tract or, and Mr. Melton helped Dunn farm his ow n land and also pa rticipated w ith h im in a number of ventures. It is undisputed that financial w oes plagued the Meltons du ring their marri age, and eve n resulted in t he couple’s se eking bankr uptcy prote ction in 1987.

Mr. Melton became i nvolved in the auto rac ing busines s and eventual ly bought an $18,000 racing car and a $15,000 motor. In 1995, rumors s urfaced around the community that Mr. Melton was involved in an extramarital affair. Ultimately , the Meltonsseparated in August, 1995. Mrs. Mel ton filed a complaint for divorce in the W eakley County Chancery Court in Sept ember 1995 , charging Mr. Melt on with adul tery and i nappropriate mar ital conduct. Subsequ ently, M r. Melton fil ed an answer and counter compl aint. On Apri l 3, 1996, Vernon Dunn filed an intervening petition against the Meltons in which he sought an order requiri ng the Melt ons to vacate all properties owned by Dunn, to retur n all equi pment owned by Dunn as well asseeking a j udgment for all monies and benefitsthat Dunn had provided to

the couple si nce 1985.
Following a trial held on April 26, 1996, and June 28, 1996, the t rial court entered orders on July 12, 1996, August 2, 1996, and August 26, 1996. In its ruling, the trial court granted a divorc e to Mrs. M elton on the grounds of inappropriate marital conduct but found3

that there had been no proof of an ex tramarital affair . The trial court aw arded the parti es jointcustody of the minor child, with the mother having custody during the school year, and the father having custody during the summer months. The tr ial court g ranted each parent liberal visitat ion during the non-custodial period. Addi tionally , both parents were ordered to pay child suppor

t to the other dur ing the non-custodial period. The tr ial court aw arded all real proper

ty to Mr s. Melton and d ivided the personal proper ty betw een the parties. Mr. Melton was ordered to v acate the shop bui lding adjac ent to the house that he used for his racing business, and t he court ordered Mrs. Mel ton to pay Mr. Melton $20,000 as costs of relocating his racingbusiness. The t rial court awarded Ver non Dunn possess ion of a John Deere 4440 tractor, combine, planter and bush ho g, but d ismissed Dunn’s other claims. The trial cour

t directed that

Mr. Melt on and Mrs. M elton were each responsi ble for the debts following the property received by

each. Mr. Melton timely filed a notice of appeal on September 10, 1996, and the cause is properly before this Cour

t for considerat ion.

Since this case was tried by the court sit ting without a jury, we review the case de
novo upon the record with a presumption of cor rectness of the findings of fact by the tri al court. Unl ess the e vi denc e pr epon derates aga ins t thefind ing s, we mus t aff irm, absent error of law . Rule 13 (d ) T.R.A.P.

ISSUES
Mr. Melton has raised the following issues on appeal: I. Did the tri al court make an equitable di vision of theparties’ mar ital propert y in awardi ng the wi fe approximately seventy percent of its v

alue? II. Did t he tri al cou rt er r in e ffectively n aming the w ife as p rima ry custo dial parent? III. Did the trial court err in awarding Vernon Dunn the tractor and planter?

PROPERTY DIVISION4

On appeal, Mr. Melton asser ts thatthe trial court erred i n making a pr operty div ision. We f ind that this issue is w ithout merit.

Trial co urts ha ve broad di scretion in dividin g the marital estate upon div orce. Kincaid v. Kincaid , 912 S.W.2 d 140, 142 (Tenn. App. 1995). In Batson v. Bat son , 769 S.W.2d 849 (Tenn. App. 1988), this Court addres sed the equita ble divi sion of marital prop erty: Tenn. Code Ann. § 36-4- 121(a) prov ides thatmarital property

should be divided equitably withou t r egard to fault. It gives a trial court wi de discreti on in adjustin g and adjudicating the parties’ rights a nd interestsin all joint ly owne d pro pert y. Fisher v. Fisher , 648 S.W.2d 244 (Tenn. 1983).

This C ourt customari ly gi ves great weig ht to decision s of the trial court in div idi n g marit a l estates, and we are disinc lined to dist urb the trial court’s dec ision unless the distributi on lacks prope r evidenti ary suppor t or result s from some error of law or mis applicat ion of statutory requirements and procedures. Wade v. W ade , 797 S.W.2d 559, 604 (Te n n. App. 1990). The t rial court ’s distri bution need not be eq ual to be equitable. It is not achiev ed by a mechani cal application o f the statutory factors, but rather byconsideringand weig hing the most r elevant factor

s in lig ht of the unique facts of each
case. Batson v. Bat son , 769 S.W.2d 849, 859 (Tenn. App. 1988).
Up on review

of the facts of this cas e, it appears t o the Court that the divis ion of marital property was equi table. Each par ty has presented th eir own fig ures regar ding the valuation of the marital es tate to support their respective positions, and it is not surpr ising that there is a g reat dispari ty betw een them. The Chancel lor decreed t hat the debts followed the pr

operty towhich they were attached. For purposes of this analysis, we will acceptthe Husband’s valuation an d distributi on schedule. See Carrier v. Carr ier , No. 02A01-9608-CH- 00180 (Tenn. App. May 2, 1997) . With this in mind, we concl ude that the trial court divided the marital property as follows:

Wife Husband Asset Value Asset Value 50 acre farm & home $149,000.00 Farm Equip. less awar d5

67 acre farm 71,000.00 to Mr. Dunn $ 3,850.00 14 acre farm 13,852.00 Bus. parts & eq uip. 44,255.00 Total Real Estate 233,852.00 1969 truck, 1984 truck & Polaris 4- wheeler 9,000.00 Home f urnishin gs $ 8,585.00 1994 Chevrolet truck 18,000.00 Lawn Mowers 1,000.00 Firearms & misc. 1,000.00 1990 Chevrol et Lumina 5,450.00 Cash awar ded in decree 20,000.00 Wife’s pension 27,345.78 Cash on hand 2,500.00 Total Person al $ 44,880.78 $96,105.00 Property Real Estate D ebt ($76,333.00) Auto Debt ($12,800.00) ($14, 000.00) TOTAL A

SSETS $278,732.78 $96,105 .00 TOTAL DEBT (89,133.00) ( 14,000.00) CASH TO HU SBAND(20,000.00) NET DISTR IBUTION 169,599.78 82, 105.00

Mr. Melton asser

ts thatthe property divisi on was inher ently ineq uitable because the court awarded M rs. Melton assets val ued at nearly two times that aw arded t o him. However, M r. Me lton fails to r ecognizethat Mrs. M elton has been saddl ed with debt obligations

equal to near ly six

and one-half timesthe debt that was assessed to him, and he had not credited her with the $20,000.00 cash pay ment that the tri al court ord ered her to make to him. Further more, Mr. M elton has overlooked the fact that he has received a windfall by being reliev ed of further liabi lity for approximatel y 87% of the mari tal debts. In fact, he was responsible for creating approximately $14,000.00 in debt s ecured by t he 14
acre farm in order t o enter the rac ing bus ines s by purchasing a car. Mr. Melton subsequently sold the racing car for a loss, purc hased another and s old the second, also fora loss. Othe r than his testimony , no evidenc e was pres ented regardi ng the dispositi on of the proc eeds of these sa les, tho ugh it is cl ear that the pro ceeds were not applied tothe reduction of the origi nal debt. In effect, Mr s. Melton must

pay for her husband’s entry int o the racing bus iness. T his is no t a new sc enario. Throug hout the marriag e, Mrs. M elton held a ful l tim e teaching pos ition and even taught on nig hts and weekends. It is evident that Mrs. Mel ton contributed substantiall y more tothe financial as pect of the marriage t han did Mr. Melt on, whose losing business ventures resulted in dissipation of the marital es tate and ultimately

bankruptcy

in spite of contr ibutions by Vernon Dunn, g ifts of free land, and soil bank payments. The wife is land rich, but cash poor w ith only mi nuscule liq uid assets with whi ch to p ay th e $89,00 0.00 in debt on her an nual te acher’ s sala ry o f some6

$29,000.00. According ly, w e find thatthe property division did not result in an inequitable distributi on to Mr. M elton.

From our rev iew of the re cord and gi ving theHusband the benefit of his proffered evidence, we find that

the evidence does not prepon derate against the trial court’s findin gs as to the divi sion of the proper ty. Accor

dingly , t he tri al court’s determinations r egarding property d ivisio n will not be disturb ed on appeal.

Mr. Melton nex

t challenges

the trial court’s dete rmination reg arding cus tody of the parties’ min or child. The trial cour t awarded t he parties jo int custody of their 14 year-old son. Specifical ly, the co urt granted custody of thechild to M rs. Melton during the school year and to M r. Me lton du ring the su mme r months. T he trial cour t also awa rded liberal visit ation to the non-custodial parent . On appeal, husband asse rts that the trial court awarded the wife cus tody for 42 weeks per y ear and to him for a mere 10 weeks per year. Further, husband asserts that the trial court disregarded the expres sed desire of the mi nor son regardi ng his li ving ar rangements.

In order to make a determination concerning the custody of children, the trial court must look to the particular facts of each case. Scarbro ugh v. Scarbrou gh , 752 S.W.2d 94, 96 (Ten n. App. 1988). Factors to conside r include , but are not limit ed to th e follo wing:

Age, habits, mental a n d emotional makeup of the c hild and those parties compet ing for cust ody; Educ ation and experience of tho se seeking to raise the c hild; Their c haracter and propensities

as evidenc ed by their

past conduct; The financial and physi ca l circumstances available in the home of each party seeking custody and the s pecial req uirements of the child; The availabi lity and e xtent of thir d party sup port; The associations

and influences to which the child is most likely to be exposed and the alternatives aff ord ed, bot h positive and negative; and where is

the likeli hood of an enviro nment for the child of love, warmth, stability, support, consistency, care and concern and physical and spi ritual nurt ure. Bah v. Bah , 668 S.W .2d 663, 666 (Tenn . App. 1983).
During the course of thes e proceedings , the trial court had an oppo rtun ity to obse rve personalities, responsibil ities, demeanor, credibili ty and suit ability of each parent to se rve7

as the custodial parent. W hile the child expressed a desire to live with his father, he also stated to the tr ial court dur ing an in camera examination: Q: Okay. Well, sinc e yo ur mo m an d dad sepa rate d, I b elie ve backin August or

September of last year, tell me w h ere you have been li ving dur ing that per iod of time? A: My mom’s. Q: Okay, H ow has that been worki ng out? A: Pretty good.

This Court is of the opin ion tha t the f indings of the trial court should be g iven great weight as they relate to issues surrounding child custo dy. “ Absent some compelling reason otherwis e, considerable weight must be given to the judgment of a Trial Court in a divorce proceeding in res pect to cre dibi lity an d sui tabi lity” of t he parties as custodians. Bush v. B ush , 684 S.W.2d 89, 95 (Tenn. App. 1984). The t rial court s are ves ted with a wid e discretion in ma tter s of child cust ody, a nd th e revie wi ng courts will n ot interfere except upon a showing of erroneous exercise of that di scretion. Grant v. G rant , 286 S.W.2d 349, 350 (Tenn. 1954). The tria l court en joys a subs tantia l advanta ge in having the opportunity to see, hear and ev

aluate the parents ’ suitabil ity as c ustodians. Mimms v. Mimms , 780 S.W.2d 739, 745 (Tenn. App. 1989). As this Court noted in Bah v. Bah , 668 S.W.2d 663:

This Court w ill, how ever, g ive great weig ht to the decisi on of the trial court because the ju dge sa w the witnes ses face-toface and he ard them testify; t his rule bei ng based upon the assumption that the trial judge did not act arbitrarily or willfully but with t he regard to

whatis rig ht and equitable , consideri ng first the child’s

best interes t as directed by his reason and conscience tow

ards the chil d’s welfare. Id. at 665, citin g, Riddick v. Riddick , 497 S.W.2d 740 (Tenn. App. 1973).

The true test for t he award of cus tody is to arr ive at the p oint of deciding with w hom to plac e the child in pre para tion for a carin g and prod ucti ve adult life. Bah at 665-66. It is noted by this C ourt in Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. App. 1993), t hat the welfare and best interes t of the child i s of paramountconcern in c ustody cases

. See also , Mollish v. Mollish , 494 S.W.2d 145, 151 (Tenn. App. 1972). Fitne ss for custodia l responsibil ities is a comparati ve matter that the trial court is req uired to make. See, Bah8

v. Bah , 668 S.W .2d at 666. Nowhere is the presumption of correctness of the trial court’s conclusionsmoreappl ica ble than in m atte rs o f chi ld custody where the surrounding testimony

is complex and involved and frequently fill ed wit h dis pute s and acrim ony. See, Nicks v. Nicks , 369 S. W.2d 909, 912 (Te nn. Ap p. 1962). As not ed by the Tenness ee Supreme Court i n Cecil v. State ex. rel. Cecil , 237 S.W .2d 558, 559 (Tenn . 1951):

In cases involving child custody, t he decision of the Trial Jud ge who saw and heard the w itnesses, is to be give n great weight, if not controll ing effect, and w e will interfere only where we find a palpable abuse of discretion, or a judgment against the great weight of the evidence. Id. at 559.
Upon examination of the transcri pt and record in this cause it is apparent that the Chance llor

gave great consideration to the comparative fitne ss of Mr. Melton and Mr s . Melton to s erv e as custodial parents. The Cha ncellor concluded that both parents were suitable to serve as

custodial par

ents, and each parent was granted l iberal v isitation dur ing the non-custodial period. Mr s. Melton is a t eacher

in theWeakley C ounty school sys tem, and is in t he be st po sitio n to o verse e the child and h is stu dies . Sim ilarl y, the child’s interest in racing is best serv

ed by Mr. M elton d uring the ti me that he has custody in the summe r. The Chancellor’s decision in regard ch ild custody is presumed to be correct and should be upheld on appeal because t he evidence pr esen ted to this Cour

t does not preponder

ate against the t rial court ’s findings.

TRA CTOR A ND PLA NTER

At the conclusi on of the proof in this cause, the trial court awar ded Vernon Dunn the John Deere 4440 tractor and a planter that had been used by Mr. Melton. On appe al, Mr. Melton asserts that

Dunn failed to present adequate pr oof to supp ort hi s claims of ownership of the equipment an d that Du nn failed to provide M r. Melton w ith adequate notice concerning the termination of the land lease arrangement. We find this issue to be9

without mer it.

At the March 1996, hearing, the trial cour t found that Dunn was the owner of th e tractor, but the trial court permit ted further ev idence on this issue to be presented at trial. At trial, Vernon Dunn presented a 1979 check in the amount of $22,000, which stated in the memo section, “For 4440 Joh n Deere with warranty expiring March, 1979.” Mr. Melt on maintains that the tract or is his as evidenced by

a $10,500.00 check wr itten to Dunn from the proceeds of the sale of Melton’s Case tract or that were t o be applied toward the purchase of the John Deere tractor in dispu te. Conversely, Du nn mai ntains that the M elton’s check was

to cover losses susta ined by the men in the commodities market. Dunn produced numerous ot her checks that he had written for repairs and tr actor parts. Also, Dunn produced copies ofhis IRS tax return deprec iation schedul es for 1979-1986, which al l noted a John D eere 4440 tracto r.

In addition to the tractor, Dunn asse rts owners h ip over a planter in Melton’s possession. Melto n ass erts that Dunn prod uced no evi den ce of his own ershi p of the planter in que stion. Dun n admits that he had no documents evi dencing his title to that imple ment. However, Dunn did submit IRS tax return depreciation schedules f or 1980 - 1986 which indicated that a planter was being depreciated. Mr . Melton failed to produce any evidence or

doc uments which indicated that he had any interest in said plant er. Acco rdin gly, we do not find that the Chancel lor erred in award ing possess ion of the tractor and planter to M r. Dunn.

Fina lly, Mr. Melton assert s that Dunn failed to g ive him adeq uate notice of the termination of the farm lea se. The common law requires s ix months’ notice prior to the termination of a lease for a tenant holdi ng over from year to year. Buchanan v. J ohnson , 595 S.W.2d 827, 831 (Tenn. App. 1979); see a lso, Smi th v. Holt , 193 S.W.2d 100, 102 (Tenn. App. 1945). In the instant case, Mr. Melt on pres ented no proof regard ing t he ter ms of the agreement w ith Vernon Dunn, so it is no t known w hether Mr. Melton was a contract tenant or a hold-ov

er tenant. Dunn wrote M r. Mel ton a letter directing him to cease all10

operations upon and benef it from Dunn’s land as of December 31, 1995, and Mr. M elton testified t hat he received said letter in September 1995. S uch notice would be quite sufficientfor a lease beginning in the spri ng. Upon cons ideration of the ev idence proffered,
we find that Dunn gave M elton adequate not ice so as to w arrant termi nation of the lease.

For the reasons st ated herein, the judgment of the tr ial court i s affirmed. Costs are adjudged agai nst Husband.

HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.