FILED

October 16, 1998

Cecil W. Crowson

Appellate Court Clerk

PATRICIA HITCHCOCK IRWIN, ) Rutherford Chancery

) No. 97DR-9

Plaintiff/Appellee, )

)

VS. )

)

DON JEWELL IRWIN, ) Appeal No.

) 01A01-9803-CH-00128

Defendant/Appellant. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT OF RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

HONORABLE DON R. ASH, JUDGE

Larry H. Hagar, #11275

Stan Davis, #18618

214 Third Avenue, North

Nashville, Tennessee 37201

ATTORNEYS FOR PLAINTIFF/APPELLEE

Helen S. Rogers

SunTrust Building, Suite 1550

201 Fourth Avenue, North

Nashville, Tennessee 37219

ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED.

HENRY F. TODD, JUDGE

CONCURS:

WILLIAM C. KOCH, JR., JUDGE

WILLIAM B. CAIN, JUDGE
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PATRICIA HITCHCOCK IRWIN, ) Rutherford Chancery

) No. 97DR-9

Plaintiff/Appellee, )

)

VS. )

)

DON JEWELL IRWIN, ) Appeal No.

) 01A01-9803-CH-00128

Defendant/Appellant. )

O P I N I O N

In this divorce case the husband has appealed from the judgment of the Trial Court which

declared the parties to be divorced on grounds of irreconcilable differences, awarded joint

custody of their minor child to the parties with principal custody in the wife, and divided the

marital estate.

The husband’s first issue is:

I. Whether the Trial Court erred in awarding Wife

primary possession of the minor child with limited visitation

to the Father when he has been the child’s primary care giver

and Wife’s work schedule was not as regular or flexible as

Father’s.

The parties were married December 1, 1991. On June 20, 1991, their child was born.

At that time, the husband was a road truck driver, hence, his times at home were irregular. He

continued this type of work for two or three years in order to pay off a debt incurred prior to

marriage. The husband asserts and the wife denies that he was attentive to the child when he was

home between road trips.

The wife did not work the first year of the marriage, but claims that she paid household

expenses from her savings during that year and from her earnings afterward until the husband’s

debts were paid.

After payment of his debts, the husband quit road trucking and took a local job, 8:00 a.m.

to 5:00 p.m., Monday through Friday, in order to be at home nights and weekends.
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The wife works various days and alternate weekends from 7:00 a.m. to 7:00 p.m. The

child is placed in day care while the mother is at work.

The wife has another child from a previous marriage who has bonded with the child of

the present marriage.

The husband claims to have been very attentive to the child, taking her to and from

school, preparing her meals, and reading to her. When available, he cares for her before and after

school instead of the day care center.

Each party concedes that the other is a fit custodian and that the child loves both parents.

One source of dissention between the parties was the desire of the wife to move from

Davidson County to Putnam County where her family resides. The husband preferred to

continue to reside in Davidson County.

The Trial Judge delivered a lengthy oral discussion of the considerations supporting his

judgment, including the following:

I find both of these parties would be fit custodians.

- - - -

I think the physical surrounding of Mrs. Irwin is superior to

that of Mr. Irwin.

Religious training, Mr. Irwin has taken the child to church

more, so that would be a check in his column. Both parties,

as evidenced by the witnesses today, have availability of third

party support. I am also going to consider the relationship

that this little girl has with her older sister, and obviously that

would be a check in favor of the mother. I think both of these

parents love this child, and from the testimony presented the

child loves both of these parents.

In regard to the primary caretaker of the child, even though

Mr. Irwin has made sacrifices in that regard, and he has done

a very good job of that, I still find that Mrs. Irwin is the

primary caretaker. Continuity of placement and stable

environment: The child has lived in this one home for a good

portion of her life. Both parties seem to have a stable family
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unit; both parties seem to be in good physical and mental

health.

- - - -

This is a proper case to allow the mother to be the primary

custodian, and I am going to award that.

The noncustodial parent, Mr. Irwin, will be entitled to

information on the health, school performance and

extracurricular activities of the child. Mrs. Irwin, it is your

responsibility to let him know when these events are and let

him participate. If you don’t let him participate in those

events that will be a basis for a change of custody, so you

need to be aware of that.

- - - -

In regard to visitation, because Mr. Irwin has convinced this

Court that he desires this additional time with his child I’m

going to give him more visitation than I normally give. His

visitation will be very other weekend, Friday at 5:30 until

Sunday at 5:30. Also every Tuesday night he can have

visitation from the time he gets off work until 7:30, so he can

return the child at that time.

Also he will have extended summer visitation. He will have

two weeks in June, that will be the second and third week in

June from Sunday to Sunday; he will have two weeks in July,

and that will be the second and third week in July, and he will

have one week in August, the second week in August.

The review of custody decisions is de novo upon the record with a presumption of

correctness unless the evidence preponderates otherwise. Gaskill v. Gaskill, Tenn. App. 1996,

936 S.W.2d 626. The evidence does not preponderate otherwise.

Trial Courts are vested with broad discretion in matters of child custody, and appellate

courts will not interfere except upon a showing of erroneous exercise of that discretion.

Whitaker v. Whitaker, Tenn. App. 1997, 957 S.W.2d 834, cert. den. 118 Sct. 1316. There is no

showing of an erroneous exercise of that discretion in the present case.

Appellant’s second issue is:

II. Whether the Court erred in failing to award Husband

an equal portion of the appreciation in Wife’s real property

owned prior to the marriage when Husband had made

substantial contributions to their appreciation.
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A. There was no compelling reason for anything

other than an equal division of assets.

B. Husband’s request for Roberts Court should

have been honored.

The pertinent portion of the judgment of the Trial Court is:

6. Marital and separate property is divided as

follows pursuant to the factors set out in Tenn. Code Ann. §

36-4-121(b):

a. In regard to the Wife’s separate

property known as Baywood, Nestledown, and Valley

Green, seventy percent (70%) of the appreciated

equity during the marriage is awarded to the Wife and

thirty percent (30%) of the appreciated equity during

the marriage is awarded to Husband.

b. In regard to the Wife’s separate

property known as Sulphur Springs, fifty percent

(50%) of the appreciated equity during the marriage is

awarded to the Wife and fifty percent (50%) of the

appreciated equity during the marriage is awarded to

Husband.

c. In regard to the Husband’s separate

property known as Woodbury, seventy percent (70%)

of the appreciated equity during the marriage is

awarded to the Husband and thirty percent (30%) of

the appreciated equity during the marriage is awarded

to Wife.

d. In regard to the Husband and Wife’s

marital property known as Roberts Court, fifty percent

(50%) of the equity is awarded to the Wife and fifty

percent (50%) of the equity is awarded to Husband.

e. In regard to the Husband and Wife’s

marital property known as the Weeks Road properties,

fifty percent (50%) of the equity is awarded to the

Wife and fifty percent (50%) of the equity is awarded

to Husband.

f. In regard to the Husband and Wife’s

marital property known as Raspberry Lane, sixty

percent (60%) of the equity is awarded to the Wife and

forty percent (40%) of the equity is awarded to

Husband.

In regard to the findings and awards stated in (a)

through (f) above, and in lieu of and to prevent a sale of the

properties in order to distribute such award, and further to

prevent any tax consequences to the parties occassioned by
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sale, the court divides and awards the aforesaid properties to

the parties as follows:

Husband Wife

9708 W oodbury Pk., Murfreesboro 4528Baywood , Murfreesboro

1282 Weeks Road, M urfreesboro 3864 Nestledown Dr., Murfreesboro

1326 W eeks Rd., Murfreesboro 706 Valley Green Dr., Smyrna

 3818 S ulphur Sp rings Rd., M urf.

 5105 Roberts Crt., Murfreesboro

 115 Raspberry Lane, Smyrna

7. Both parties shall execute the necessary quitclaim

deeds as evidence of the real estate division aforesaid, and

shall also make best efforts to refinance their individual

properties in order to remove the other party from liability on

the existing mortgage(s).

The parties stipulated the appreciation in value of the various properties as follows:

Separate Property of Wife:

Nestledown Drive $20,000

Baywood Drive 16,000

Valley Green Drive 18,000

Sulphur Springs Road 23,500

$77,500

Joint Property:

Roberts Court $36,000

Raspberry Lane 16,925

1282 Weeks Road 42,500

1326 Weeks Road 50,500

 $145,925

Separate Property of Husband:

Woodbury Pike $19,000

401K 3,053

Tidal Trust 1,888

$23,941

Appellant complains of the award of the Roberts Court property to the wife. The wife

testified that “we” borrowed the $33,763 down payment using her line of bank credit, that

$15,000 was “jointly” financed, that the husband used $3,000 received from his father as part

of the down payment, and that he performed considerable labor in improvement of the property.

The Trial Court was impressed by the fact that the husband was heavily in debt and unable to

contribute much to the purchase of this property and that the wife used her savings and credit to
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provide the purchase price. This cash contribution substantially accounts for the $30,101

difference between the $137,042 distribution to the wife and $106,941 5 to the husband.

Appellant cites Ellis v. Ellis, Tenn. 1988, 748 S.W.2d 424, wherein the Supreme Court

allowed a husband to share in the $51,700 appreciation of a house owned by the wife because

he had contributed $7,540 to the improvement of the house and paid some other expenses. The

same authority approved a holding that an “equitable” distribution was not required to be exactly

equal.

Appellant cites Mahaffey v. Mahaffey, Tenn. App. 1989, 775 S.W.2d 618 which deals

with separate property which the parties treated as joint property and this Court held that the

overall effect of the distribution of marital assets was equitable.

Appellant complains that the Trial Court allocated various percentages (30%, 60%, 70%)

of the various properties to the parties. The Trial Court evidently attempted to distribute various

interests in the various properties to produce an equitable division thereof. According to the

stipulated values, the wife received a total of $130,425 and the husband received $112,000,

which represent a difference of $18,425. However, the Trial Judge stated orally:

When I made this division of property, just for the

record, I considered what Mr. Irwin did in regard to collecting

rent, painting and other things that he did. I also considered

on the marital property, when I divided the Roberts Court I

figured that equity at $30,000, and the reason I did that is

because Mrs. Irwin sold her stock and her other items to make

a $23,000 down payment, so I wanted her to get those funds

back. So I think when you calculate this, if you’d go back

there and do that you’ll see that there is $23,000 extra that

Mrs. Irwin is getting from the Roberts Court because of those

contributions that she made.

The $18,425 overall difference is very near to the wife’s $23,000 contribution to the

pruchase price of the Roberts Court property.
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Appellant complains of the consideration given to the testimony of an accountant. The

Trial Judge was the best judge of the weight to been given this evidence which is not considered

to be determinative of any issue in this appeal.

Finally, appellant pleads for the award of the Roberts property to him because it is more

convenient for him to live at that address. Since the values of the various properties have been

stipulated, it appears that the parties should be able to agree upon an exchange of properties to

accommodate the wishes of one. However, the personal preference of a party is not a ground for

disturbing an otherwise correct judgment.

The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the

appellant and his surety. The cause is remanded to the Trial Court for necessary further

proceedings.

AFFIRMED AND REMANDED.

__________________________________

HENRY F. TODD, JUDGE

CONCUR:

____________________________

WILLIAM C. KOCH, JR., JUDGE

____________________________

WILLIAM B. CAIN, JUDGE