### IN THE COURT OF APP EALS OF TENNESS EE AT NAS HVILLE June 28, 200 6 S es sio n KEV IN KHA M F ONG NA LY v. V IENQR HON E V ICKIE F ONG NA LY

Appeal f romthe Chancer y Court for Rutherford County

No. 04-9276DR

No. M2005- 01757-COA-R 3-CV - F iled on S eptem ber 27, 2006

C H A RLES D. S US ANO , J R
. , d i s s en t i n g.

I cannot c oncur in the c onclusion of the majority opinion, i.e. , that the ev i d en ce doe s not preponde rate ag ainst th e trial c ourt’s judg ment desig nating the husband a s the primary residential pare nt of the parties’ m inor children. My revie w of the r ecor d persua des me that the tria l court we nt ag ainst the overw helming w eig ht of the evide nce f avoring an aw ard of primary custody to the wife for one rea son and one r eason only , i.e. , b e c a us e of the wi fe ’s a dmi tte d a du lte ro us re la tio ns hip during the marriag e. I

believe the trial court pre mised its decision on an incorr ect inter preta tion of the law a nd/or made a

fac tually -er

roneous de cision.
The trial c ourt rende red its opinion from the benc h following the close of proof. The court’s opinion is approximately eleve n pag es long . Howeve r, it includes only a very brief sta tement of the court’s r ationale f

or naming the husband instead of the wife as the primary residential pa

rent. That se c tio n, in i ts e nti re ty , is a s f oll ow s:
I n lo o k in g a t th e v ar io u s f a c to r s , th e ma

jo r f a c to r s th a t are the ov e rridi ng c on sid e ratio n in thi s ma tte r are the – ob vio us ly thi s a ff a ir that h as t ak en place. It goe s to the char acte r of the w ife a nd the situation that’s [si c] put the children in. And then that’s balanced by the pr e fe re nc e of

the old e st c hil d s ome wh a t.
Th e oth e r f

a c tor s, bo th o f the se pa

re nts are fi t a ndpr op e r p are nts

. Both of the m love their children. Both of them evidently have a very g o o d r e lati o n s h ip w ith th e c h il d r e n
. I w o uld p r o b ab ly

c h ar a c te r iz e the mother’s r elationship and [si c] be ing mor e of the car e g iver a nd a wa rmer r elationship with the children; the f at h er i s more of the traditional fathe r. Respec t and honor, I think is what we expect of the children w ith the father

.-2- I am g oing to try

to arra ng e a joint ar

rang ement to some ext ent. B ut I ’m g oing to na me the father a s the primary pare nt in this situation, s i m p l y beca

use I think that that’s in the best interest of the c hildren when I have looke d at all the fa ctors that fa ll into pl ace
. As I rea d this opini on, it is clear to me that “ obviously ” the “ major fa ctor[] ” in th e t ri al court’s decision wa s the wife’ s aff air.
I t has long been the law in this state that “[i] n custo d y ca s es t h e C ourt shall not use the custody of the c hild as a re war d or punishment to the pare nt, but shall be g overne d by the welf are of the child.” Lo ng v . L ong , 4 8 8 S

. W

. 2 d 7 2 9 , 7 3 3 (T en n
. C t

. Ap p
. 1 9 7 2 ) ( ci t i n g Car re re v . P runt y , 257 I owa 525, 133 N.W.2d 692 (1965))

. I n Suthe rla nd v . Sut

he rla nd , 8 31 S.W. 2d28 3 ( Te nn . Ct . A pp . 1 99 1) , w e no te d th a t [s]e x ual inf

ide lit y or ind isc re tio n d oe s n ot ips o fa c to d i s q u a l i f y a p arent from being awa

rded c ustody . Howeve r, whe n the par ent’s s e xu a l a c ti v it ie s o r

in d is c r e ti o n in volve neglec t of the minor child, such negle ct may be considered in re lation to t he best interest of the mi no r c hil d

. Id . at 286 (e mphasis added)

. See also Parker v. Parke r , 986 S.W. 2d 55 7, 56 3 (T e nn . 1 99 9) ; V arley v. V arley , 9 34 S.W. 2d65 9, 66 6- 67 (T e nn . Ct . A pp . 1 99 6) ; Lance v . Lance , No. 01A01-9801- CV00 03 6, 19 98 WL

74 82 83 , a t *3 -4 (T e nn . Ct . A pp . M .S ., fi le d O c tob e r 2 8, 19 98 ); Holem an v. Holem an , No. M2001-00622-COA- R3-CV, 2002 WL 31397344, at *6 (Tenn. Ct. App. M.S., filed Oc tob e r 2 4, 20 02 ); Cum m ings v. Cum m ings , No. M2003-00086-COA- R3-CV, 2004 WL 2346000, at *8 n.5 (Te nn. Ct. App. M.S., fil ed Oc tober 15, 2004). We ha ve not he sitated to reve rse a n initial awa rd of c ustody

when it appe are d that custody was plac ed with a p ar en t because of the othe r pare nt’s extramarital af

fair in a situation where the re w as no showing that the parties’ chi l d was neg lected or otherwise adver sely impacted by the af fair. See, e .g., Suthe rla nd , 831 S.W .2d at 287.
I n the ca se at ba

r, the trial c ourt stated that it “would proba bly char acte ri z e” t h e wi fe a s “being more of the car e giver .” The court also found t hat s he had “ a wa rmer r elationship with the children.” There is an abunda nce of evidenc e to support both of these f indings. The court a lso noted that the oldest child, in her testimony , had stated a pref ere n ce that her c ustody

be aw arde d to her mother. While not mentioned in the trial court’s opinion, it should be noted that this oldest of the parties’ four children, then ag e 17, said she thought that she along with her thre e siblings should live w i t h t h e i r m o t h e r
. T h e o t h e r

t h r e e c h i l d r e n d i d n o tt e s t i f y.
The trial c ourt did not state any “custod y ” finding s adver se to the wife except her e x tramarital a ff a ir . I fi nd that the e vid e nc e ov e rw he lmi ng ly su pp orts a n a wa rd of c us tod y to the wi fe . T he re is no e vid e nc e that th e wi fe ’s a ff a ir inv olv e d ne g le c t of he r c hil dr e n o r tha t th e c hil dr e n w e re a dv e rs e ly imp a c te d b y th e af

fa ir . I n f a c t, the re is v e ry

lit tle in the re c or d r e g ard ing the a ff a ir a ndabs olu te ly-3-

nothing that indicates neg lect or an adve rse e ffe ct on the childre n. See a tta c he d a pp e nd ix. I n f

a c t, the e vid e nc e c le arl y

sh ow s th a t th e c hil dr e n a

re do ing we ll i n s c ho ol a ndoth e rw ise fl ou ri sh ing wi th their mother a s the primary car e g iver.
I have r eluctantly

conclude d that the trial court’s decisi o n n o t to awar d the wife primary residential c ustody

status was base d solely

upon the af

fair a nd that t h e t ri al court de cided that the primary car e g iver with “ a warmer rela tionship with the childre n” should not have primary custody solely beca use of he r sexual activities with one man. I believe the trial court’ s decision was ba sed upon an interpr etation of the la w that is at odds with the clea rly -stated pr onounceme nts of the appellate courts of this state.
I re c og nize the tr ia l c ou rt

sa id tha t th e a ff

a ir “ g oe s to the c ha

ra c te r o f t he wi fe .” Th a t is a ll the court s ai d o n t h e subjec t of the wife ’s “c hara cter .” It did not st ate how the af fair w as a ma

rk ag ainst the wife’ s char acte r or why the court thought it was. I f the c ourt is say ing that a per son who has an af fa i r

– reg ardle ss of the circ umstances a nd reg ardle ss of whethe r the a ffa ir caused the pa rt ic ipa nt t o n e g le c t a

c hil d a nd regardle ss o f w he the r the a ff a ir a dv e rs e ly

a ff e c te d th e c hil d –

is disqualified from be ing a primary custodian, this is contra ry to the law as set forth in this dissenting opinion. I f, on the other ha nd, the trial court is basing its judg ment on a finding of neg lect or othe r adver se impact on the parties’ children, there is simpl y no evidenc e in the re cord to support such a finding . I n the final a naly sis, the evidence , in my judgme nt, clear ly preponde rate s ag ainst the trial court’s a war d of primary

custody to the husband.
I would reve rse the awa

rd of custody to the father, gra nt custody to the wife, and re verse the tr ia l c ou rt ’s de c isi on wi th r e sp e c t to the mari ta l r e sid e nc e so a s to g ra nt o wn e rs hip of the pr op e rt y to the wi fe wi th h e r a ssu min g the mon e tary ob lig a tio n in c on ne c tio n th e re wi th tha t w a s p re vio us ly imposed upon the husband. I n p ro p o sing this modification of the division of prope rty , I note that the parties ag ree d at trial that the owner ship of the house should acc ompany the awa rd of primary c u s t o d y.
I re sp e c tf ull y dis se nt.



### __________________________ CHARL ES D. SUSANO, J R., J UDGE