1 M other states her issue as follows:
W hether in the f

ace of overwhelming and undisputed evi denc e that Appellee subje cts his c hil dren to phy sica l and e moti onal harm, the tri al c ourt ’s award of cust ody to Appelle e, apparent ly t o punish Mother f

or her rel a tions hip wit h her super vis or, s houl d be rev erse d.
Since M other conte nds, in e ffect, that the tria l court w as wro ng on the facts , the i ssue is pro perl y f ramed i n te rms of whether the evidence prepo nderates aga inst the trial co urt’s dete rmina tions. See Tenn. R. App. P. 13( d). Attorne ys shou ld avoid framing thei r issues i n argumentative terms. A rgum ents are best left to the ar gume nt sectio n of the b rief.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE July 2, 2003 Session MEAJI LYNN NISLEY LOCKMIL LER v. MARK DOUGLAS LOCKMILLER Appeal from the Circuit Court for McMinn County No. 24409 John B. Hagler, Judge Filed December 30, 2003 No. E2002-02586-COA-R3-CV

In this divorce case, the parties contested, among other things, the issues of divorce and the custody of their minor children, Victoria Grace L ockmiller (DOB: August 27, 1994) and James Roman Lock mille r (DOB: November 24, 1998). Expressing its belief that Mark Doug las Lockmiller (“Father”) would not tell “a knowing untruth,” the trial court gra nted him a divorce from

Meaji Ly nn Nisley Lockmiller (“Mother”) on the ground of inappropriate marital conduct a

nd desig nated him as the primary re sidential parent of the parties’ children. Wife appeals, contending 1 that the evidence prepond erates agains t the tria

l court’saward o f primar

y custody to Fathe r. We aff irm. Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined. WandaG. Sobiesk

i, Diane M . Mess er, and D onna C. Looper, Knoxville, Tennessee, for the appellant, Meaji Ly

nn Nisley L

ockmiller. Randy G. Roge

rs, Athens, Tennessee, for the appellee, Ma rk Douglas Lockmiller.2 Mother wa s des ign ated as the t emporar y re side nti al pa rent fol lowi ng t he hea rin g of J anuar y 25, 2002. 3 M other ’s appel lat e at torn eys were not i nvol ved i n th e procee ding s t hat oc curr ed pr ior to the f iling of the emergency petition.

4 Th ere ar e no issu es be fore us as to the se “othe r matter s.” -2- OPINION I. The trial of t

his hotly -contes ted divor

ce case extended over six days, i.e. , June 18, 19, 20, 21, 2002, and July 1 5 and 16, 2 002. I n addition

to the main

divorce hearing, the trial court conducted an earlier single-day

hearing on the issue of

who should be the temporary residential parent of the children , 2 and a post-trial hearing on November 25, 2002, in re sponse to the “Emergency Petition for Change of

Custody” filed b y Mo ther’s new couns el. 3 In addition, the record bef ore us reflects that a hearing occurred on

April 22, 2002; but apparently ther e was no oral testimony at that hea ring bearing upon the issue now before us or, if there was such testimony , it was repeated at one of the other hearin gs. In any even t, we d o not have a t ranscr ipt o f that hearin g. T he trial court heard from both parties and some 19 other witnesses, some of whom wer e presented by Mother and some of

whom testified at the call of Father. The transcript of the divorce trial is in eleven volumes and covers 1,610 pages. We state all of this to demonstrate the thoroug hness of the presentation by both sides and the quantity of the testimony considered by

the trial court. The record before usreflects that everyone had their “say ” and that the trial court listened patiently to the evi dence p

resente d by

both sides

.

II. At the conclusion of the divorcetrial, the court below rend

ered its decision from the bench pertaining to the issues of divorce, custody , and other matters. 4 The court’s oralcomments were later attached to, and ma

de a par t of, the tr

ial cour t’s j udgment of divo rce. The judgment was entere d below on October 1, 2002. In the cou rse of its remarks from the bench, the trial court made the following comments: It has been a very difficul t case. I t’s, I guess, the long est

case I’ve tried. But I’ve listened to the evide nce very care full y. I

have reviewed the evidence. I ha

ve obser ved the pa

rties ver y c arefully during t he cours e of the p

roceed ings. * * * * [I]n a case like this, it is primarily the two par ties who make or break the case, and the attorney s cannot do anything about that. There are-3- other witnesses who are important. But in theend, it’s probably the Court’s assessment of the indivi dua l parties that counts more than any thing el se in a ca se like thi s. First, with respect

to the divo

rce, the Court gr ants the divorce to the husband and dismisses the complaint of the wife. The Courtis of the opinion tha t the prima

ry cause of the brea k-up in the marriage is the wife’s new r elationship. The husband does have some problems with t emper , I think. But I think that his worst temper, whichhe did admit, was when he felt that his wife had taken up with someone else. He was ver y up set about

it and understan da bl y s o. I think many – I’ll say most of the earlier incident s regarding his temper and h is beh avior ha

ve been grossly exaggerated, in the Court’s opinion. I’ll put it this way: I

n weighing the testimony of the two parties and their o wn perceptions, I feel that Mr. Lockmiller told the truth far more than Ms. Lockmiller. I think he’s probably more stubborn than he realizes, and perhaps he d oe s have a stronger temper. B ut I don’t think that Mr. Loc kmiller would tell a knowing untruth, and I don’t thin

k he eve r did when he testified. I think he’s a man of strong , truthful character. I do not think that Ms. L ockmiller was truthful about the – her relation ship with this other man. I think it started earlier. I

think it’s had a g reat ef fect on h er char acteriza tion of ev ents. I do not – I

think that she was completely untrue in the January – or the testimony in the January hearing was completely

untrue about her fear for the children. I didn’t br ing it out here wit h me, but I

wrote down that a couple of times she indicated – she stated that she took the children out of town, once to her au

nt’s and t o some othe

r place , and told

the Court that she didthat because shewanted them to be safe from her husband. And she has never feared for the safety of the

children in the presence

of her husband. I think that was a pure fabrication. Also, it may seem to be a small point, but the Court was ver y botheredby some shoplifting incidents which a re min or but they-4- certain ly affec t a person’s credibility. I

think that Mr. Lockmiller and th e oth er witne sses who te stified to that wer e telling the absol

ute truth. It was distur

bing, a nd it affec ted the Cou

rt’s asse ssment of M s. Loc km il le r’ s c re di bi li ty. She obviously

was unha ppy in the mar

riage . I do n’t know if

this was before or after meeting Mr . Rouse. I k now this, that Mr. Lockmiller’s conduct was neve r proven by a preponderance

of the evidenc e t o constitute cruel and inhuman treatme nt. His conc ept of put

ting his wife o n a pedestal might be someone else’s concept of excessive possessiveness, but it is certai nl y notcruel and inhuman treatment. I think he did trust

and resp ect his wife, and I think he was ve ry upset at the bre ak-up of the marriage. I do no t believe that he rejected counseling. I believe that he was placed in a position so that Ms. Lockmiller could testify that he rejected counseling because she wanted a divorce. I think he wanted to save the marriage, and I think that he would have e ntered into meaningful counseling, and I don ’t think tha

t that wasoffere d to him. I know the most important issue to the parties is who will be the residen tial pare nt. Agai n, I cannot state too much how conc erned I am about th e bitterne ss which thiscase has generated. I ’ll say I think a grea

t deal of the bitter

ness is j ustifi ed. But somehow it must be overcome, because if any body continue s to try

to punish someone, the children are going to suffer. The Court does not make a determination of resid ential pa renting in order to punish a parent. And i t certainl y w ould not do t hat in this c asebecause these are both good, f it parents. Despite ever

ythin g that’s been said here, these are both caring parents. The c hildren are in no dang er from e

ither one of them, a

nd they need both

parents

. But having weighed all the evidenc e in this case and having look e d at all the factor s that the C ourt is re quired to look at under the statute, I am convinced

by a preponde

rance of the evide nce that the father is the fitter parent to be the residential parent in this case. He has be en a st rong c aregiver , much mor e so than many

father s to whomcustody has bee

n awarded, in my e xperience. And now that-5- this is behind them, I believe tha t he is more likely than the mother would be to ensure that the children have a g ood relationship with the other pa rent. In other wo rds, Itrust him more to ensure that the children have quality time and a quality relationship with the mother than I would trust the mother at this particular time. He’s a teach er. He’ s inv olved with child ren. I fin d not hing i n the evidence that would indicate anything other than that

he was a good teacher. He has been

involved in the chil dren’s a ctivities

. That’s not to sa y the mother h as not been, but he has been very involved and he ’s be en in vo lv ed in a v er y po si ti ve , c on st ru ct iv e w ay. He has stron g family

support. I

did not think that he’s a father who is seeking custody of his chi ldren to p lease hi s mother o r becau se his mother is doing that. I think he’s doing that beca use he feels that that is his oblig ation. B ut I th

ink he’s f ortunate in the support

that he ha s. I felt t hat his family members did make g ood witnesses. Again, there’s some harshness there, but I think they feel tha t their fa mily has been stepped o n and deme aned, a nd they ’re justi fied, asI’ve said, in some of th at. Aga

in, I hope they

can ove rcome th at. Another factor that I think strongly

argues in favor of the

father is that the children will be able to remain in thesameenvironment that they have been in. As will become clear later in this opi nion, th e t ri al co ur t’ s c re di bi li ty d et er mi na ti on s p la y a significant role in our appellate review of this case. III. Our review of thi s bench tr ial is de novo upon the record of the proceeding s below, but the record comes to us accompanied by a presumption that the trial court ’s fin dings of fact are cor rect. Tenn. R. App. P. 13(d). This is a pres umption tha t we are duty -bound to

honor unless the evidence preponderates against those finding s. I d. The credibi lity

of witnes ses is a matter that is peculia rly within the

province of the tri al court

. See Bowman v. Bowman , 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991). That cou rt has a d isti nct advan tage over us: it sees the witnesse s in person . Unlike an appella te court – which is l

imited to a “cold” transcript of the evidence and e xhibits – the tri al courtis in a position to observe the demeanor of the witnesses as they

testify. This enables the tria l court to make assessments regarding-6-

a witness’ s memory , accur

acy , and, most

im po rt an tl y, a witness’s truthfulness. The cases are legion that hold a tria

l court’sdetermin ations re garding witne ss credi bility are entitled to great

weight on appeal. See, e.g. , Massengalev. Masseng ale , 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995). In the absence of unrefuted authent i c docume

ntary evidenc e refle cting ot

herwise , we are

loathe to substitute our judgment for thetrial court’s findings with respect to the credibi lity

of the wit nesses. “Trial courts are vested with wide discretion in matters of child custody . . . .” Varley v. Varley , 934 S.W.2d 659, 665 (Tenn. Ct. App. 1996) (quot ing Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993)). This being the case, we will not reverse a trial court’s decision regarding custody unless the record cl early dem onstrates that the court has abused its discretion. Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992). As the Supreme C ourt has cautioned, “a discretionary judgment of a trial court [should not be disturbe d] unless it a ffirmat ively appears that the trial court’s decision was agains tlogic or reasoning, and ca used an injustice or injury to the party complaining .” Marcus v. M arcus , 993 S.W.2d 596, 601 (Tenn. 1999) (quot ing Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996)). When making c

hild custo dy decisi ons, courts are admonished to make decisions that “promote childre n’s best in

terests b y pl acing t

hem in an e

nvironme nt that will be st serve their physical and emotional needs.” Nelson v. Nelson , 66 S.W.3d 896. 901 (Tenn. Ct. App. 200 1 ) (quot ing Gaskill v. Gaskill , 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996)). In making custody decisions, court s must consider, to the extent pertinent, the following statutory factor s: (1) The love , affection and e mo t ional ties existing between the parents and child; (2 ) The disposition of the parents to provide the child wi th food , cloth ing, medical c are, ed ucation a nd other necess ar y care

and the degree to which a pare

nt has been the primary

caregiver; (3) The impor

tance of continuity

in the child’s life and the length of time the child has lived in a stable, satisfactory environment; . . . . (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; * * * *-7- (8) Evidence of

phy sical or e

motional a

buse to the

child, to the other parentor to any other pe rson; provided, that where there ar e allegations that one (1) parent has committed child abuse, [as defined in § 39-15-401 o r § 39-15-402], . . . , against a family member, the court shal l cons ider all evidence relevant to the phy sical and emotional safety of the

child, and det ermine, by a c lear preponderance of the evide

nce, whe ther such abuse h as occur red. The court sha

ll include in its decis ion a writ ten finding of all

evidenc e, and a

ll findi ngs of

fact connected thereto. I

n addition, the court

shall, where appropriate, refer

any issues of abuse to t he juveni le court

for further procee dings; (9) The character and behavior of any other

person who resides in or freque nts the home of a parent

and such person’s interactions with the child; and (10) Each pa

rent’s p ast and pote ntial for future performance of parenting responsibilities, including the willingness and ability of eachof the pa

rents to facilitate and encourage a close and continuing parent- child

relationship between the chi ld and the ot her par ent, consistent with the best interest of the child. Tenn. Code. Ann. § 36-6-106 ( 2001 ). Further, a court must consider “the pare nts’ demeanor and credibi lity

during the divorce proceeding s.” Nelson , 66 S .W.3 d at 90 1 (quo ting Gaskill , 936 S.W.2d at 631). Because trial courts are a fforded broad di scretion i n determining child custody , we are disinclined to “second-guess” a trial court’s decision in such matters. Id. A court is n ot permitted to punish an adulterous parent for “an extramarital affa ir by awarding custody” to the other pa rent. Sutherland

v. Sutherlan d , 831 S.W.2d 28 3, 286 (Te nn. Ct. App. 1991). In other w ords, “[a] parent’s sexual infidelity or indiscretion does not, ipso facto [,] disqualify that parent from receiving custody of his/her children.” Nelson , 66 S.W.3d a t 902 (quoting Varley , 934 S.W.2d a

t 666-67) ; see als o Parke r v. Parker , 986 S.W.2d 557, 563 (Tenn. 1999). However, in applying the statutory factors set

forth in Tenn. Code Ann. § 36-6-106(a), a court “may consider the effect of a parent’s extramarital a ffair on the [c]hildren and on the paren t’s fitness as a cus todian.” Nelson , 66 S.W.3d at 902. When the parent’s activities “involve neglect of the children, however, such neglect is a consideration in determining the children’s best interests.” Id. (quoting Varley , 934 S.W.2d a t 667); see also Mimms v. M imms , 780 S.W.2d 7 39, 745 (Tenn. Ct. App. 1989).-8- IV. In the instant ca s e, there is an abundance of evidenc e that there is “love, affection and emotional ties existing between [both] parents and [their] child[ren].” See Tenn. Code Ann. § 36-6- 106(a)( 1). No wit

ness testi fied to the

contrar y w ith respect to eithe

r paren t. The trial court believed

the testimony of Fathe

r. This being the case, we accept as true the trial co urt’ s implicit f

inding th at Fathe

r is a par ent who wa s and is intimately involved in his children’s lives. From

changing diapers to bathing the children and doing their laundry , Father has been there for his children. It is clear from the proof that he has alway s been a very active p arent. He takes the children to church. He has participated in discuss ions with hi s daughter’s teacher. On several occasions, he took his daughter to school and got her there on time, something that cannot be said about Mother. Because both parent s worked and F ather got off from work ear lier than Mother, he would t

ypi cally pick up hisdaugh ter after school. See Tenn. Code Ann. § 36-6- 106(a)(2). Father took his daughter

to ballet lessons and helped her get into her ballet uniform. He also took her to her Little L

eague basketball practice s and attended her cheerleading practices. He was there when she cheered for the Little Le ague football team. Id

. Mother tried to paint Father as an out-of-control, ang ry indivi dual, whose children feared him. Father ’s testimo ny w as to the c ontrary . The tria l court be li eved Father when he said the children did notfear him; furthermore, the trial court held that the testimony regarding Father’ s anger problems was gr

eatly exagg erated . In th

is rega rd, it is interesting to note that Mother never testified that Father was violent with or toward her. I t is true that – as he admitted – Father left a bruise on his son’s buttocks from a very inapprop riate spanking when the child was only 18 months old. Father

testifie d that he n ow gre atly regre ts this inap

propria te behav ior on his p art. While he freely a dmitted that he is a disciplinarian and that he spanks his children, he denied any other incident s that caused bruises to appear or incident s that coul d be rea sonably construed as child abuse. It is clear fr om the testimony that, save the o ne “bruisin g” inci dent, Moth er neve r really complained, prior

to the bre akup of th

e partie s’ marri age beginning in early 2001, about Father’s disciplining of the chi ldren. A s the trial court intimated, all of this got to be a much bigger thing wi th Mother after sh e develo ped an int erest in another man. The trial court found that

the spanking incident that led to Mo th er ’s po st -t ri al “e me rg en cy” petit ion d id no t amou nt to abuse . The ev idenc e does not p repon derate agains t thi s find ing. The trial court

recognized

that Father and his nearby family were

important for the children. See Tenn. Code Ann. § 36-6-106(a)( 4). H e also found, and t he evide nce doe s not prep onderat e otherwise, that Father seems more predisposed than does Mother to foster a relationship between the children and the other parent. See Tenn. Code Ann. § 36-6-106(a)(10).-9- V. We have carefully

considered the testimony

and docu mentary evidenc e inthis case. In doing so, we are mindful of our appellate role and our

needto give d

efere nce to the trial cou rt’s credibility determin ations. That court believed F ath er. Itdid not place a great deal of stock in Mother’ s truthfulness. When we factor in the trial court’s credibility de terminations, we do not find that the evidence preponderates against the trial cour t’s holding that Father “is the fitter parent to be residential parent in this case.” VI. At the end of the argument section of he r brief, Moth er seek s expanded visitation . This matter was not presented

in the issue section of that brief. In any event, this is an issue that is more properl y a ddresse d to the tri al court

. VII. The judgment of

the trial court is affirmed. Costs on appeal are taxed to Meaji Ly nn Nisley Lockmiller. This case is remanded to the trial cour t for en forcement of the trial court’s judgment and for collection of costs assessed below, all pursuant to applicable la w.

_______________________________ CHARLES D. SUSANO, JR., JUDGE