### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON November

27, 2001 Se ssion ANDREW LEE MAYS v. DEBORAH JANE ROGERS MAYS Direct Appeal from the Circuit Court for Shelby County No. 156204-5 R.D. Kay S. Robilio, Judge

No. W2000-03067-COA-R3-CV - Filed February 5, 2002

This is a divorce and child custody case. Husband sued for divorce, and Wife counte rsued. Husband dismissed his complaint on the day of trial. Wife wa s granted the divorce and custody of the part ies’ minor child. On

appeal, Husband argues that the trial court er re d i n i ts di vi si on of

ma ri ta l p ro pe rt y, its decision to deny Husband r ehabilitative alimony, i ts award o f attorne y’ s fees to

Wife, and

its decision notto hear evidence on the issue of child custody. We affirm in par t, reverse in part, and remand the case to the trial court for a he aring on child custody

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in part; Reversed in part; and Remanded D AVID R. F ARMER , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and D AVID G. H AYES , S P
. J., joined. Kay Farese Turner and Martin W. Cash, Jr., Memphis, T e nnessee, for the appellant, Andrew Lee Mays. Charles W . McGhee , Memphis, Tenness ee, for the appe llee, De borah Ja ne Roger s Mays. OPINION Andrew May s and Deborah Mays were

married on April 12, 1975. During their marriage, four child ren we re born t

o the coup le. Throu ghout mos t of the ma rriag e, Mr. Ma

ys w orked asa painting or remodeling contractor. Ms. Mays worked as a real estate ag ent. After twenty-two

years of marriage, on July 3, 1997, Mr. May s filed a complaint for divorce w here he sought custody of the ch

ildren. M

r. May s took no fu

rther a ction on th

is complaint , however, an d o n J un e 1 8, 19 98 , M s. Ma ys filed an answer and counter-complaint where she sought a divorce from Mr. M ay s and cust

ody of the couple’s children. The coup le ultimately separated on December 19, 1998.1 The chil d was born on Apri l 30, 1985. -2-

When the case ca

me to trial on September 11, 2000, Mr. May s dismissed his complaint for divorce , citing

a desire to remain married to Ms. May s. Accordingly , the trial proceeded with Mr. Ma ys contesting Ms. May s’s action for divorce. After a lengthy tr ia l, th e c ou rt gr an te d M s. Ma ys a divorce on the grounds of inappropriate marital conduct. In itsdistribution of marital property, the c ourt awarded the marit al reside nce to Mr . May s. The court ordered the parties to obtain an independent estimate of the fair market value of the marital residenc e and commanded Mr. May s to pay Ms. May s one-ha

lf of the home’s eq

uity interest

. Regardingthe pa rt ie s’ pe rs on al ty, the court awarded Mr. May s the 1996 pickup truck and the 1975 Volvo. The cour

t also awa

rded Mr. May s th e Union Plant ers Bank Account, the NBC chec king accoun t, his Fidel

ity I RA accou nts, one- half of th

e NBC Money

Ma rket account, one-half of the NBC Portfolio Account and one-half of the H.D. Brous Account. As to Ms. Mays, the c ourt awarded her the 1989 H onda and

the Previ a

van. Additionally, the court awarded Ms. May s the Commercial Bank & Trust checking account, he r Fidelity IRA a ccounts, and the corresp onding halves of the NBC Mo ne y Market, NBC Portfolio, and H.D. Brous accounts. The c ourt also awarded each party the personalty held in their individual ca pacity. Further, th e c ou rt de ni ed Mr . M ays ’s cl ai m f or re ha bi li ta ti ve al im on y. The court ordered Mr. Ma ys to pay Ms. May s’s attorney’s f ees. Also, the court assessed the costs of the action against Mr. Mays. Fi na ll y, by the time of the divorce proceedings, only

one of the May s’ four childr en w as a minor. 1 At trial, M

r. May s sought c

ustody of the mino

r child, but the cou

rt would not permit testimonyon the issue. The court based its decision on Mr. May s’s refusal to comply with previous court orders that required Mr. May s to undergo a psychological and custody evaluation. The

refore, the court awarded custody of the child to Ms. Mays. Mr. Mays appea

ls the decision of the trial court, raising thefollowing issues, as we perceive them, for our review: I. Wh et he r t he tr ia l c ou rt er re d i n t he di vi si on of th e m ar it al pr op er ty. II. Whether

t he trial court erred in deny ing Mr. May s’s claim for re ha bi li ta ti ve al im on y. III. Whether

the trial court er red in or dering Mr. May s t o pa y Ms. May s’s attorne y’ s fees. IV. Whether

the trial court erred by

awarding Ms. May s primary leg al custody of the parties’ minor child.-3-

Ad di ti on al ly, Ms . M ays raises tw o issues f or our re view. The se issues , as we pe rceive them, are as f ollows: I. Whether M

r. May s’s appe al is friv olous. II. Whether

Ms. Mays should be awar ded her attorney ’s fees inc ur red for this appeal. To the extent these issues involve questions of fact, our review of the trial court’sruling i s de novo with a presumption of correctness. Tenn. R. A pp. P. 13(d

); e.g., Berryhill v. Rhodes , 21S.W.3d 188, 190 (Tenn. 200 0). We may not reve rse the tr ial cour t’s fact ual findings unles s they are contrary

to the preponderance of the evidence

. Id. With respect to the court’slegal c onclusion s, our revi ew is de novo with no presumption of correctness. Bowden v. Ward , 27 S.W.3d 913, 916 (Tenn. 2000). The Distrib ution of the P arties’ Assets In his first issue, Mr. Mays contends that the trial court erred in its division of the May ses’ pr op er ty. The law regarding the classification and division of a divorc ing cou

ple’s pr operty is well establishedin this jurisdiction. In an action for divorce, Tennessee, as a “dua l property” state , draws a distinction between separate and marital property. Batson v. Batson , 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). Because the Tennessee statutes only allow for the division of marital prope rty upon the dissolution of a marriag e, i t is of primary importance for the trial court to classify property a s separa te or marital. Tenn. Code Ann. § 36-4-12 1(a); Brock v. Brock , 941 S.W.2d 896, 900 (Tenn. Ct. App. 1996 ). There

fore, because se

parate propert y isnot subject to division in an action for divorce, the trial

court mus t initially

determin e the nat ure of the parties’ property

. Watters v. Watters , 959 S.W.2d 5 85, 588 (Tenn. Ct. Ap p. 1997); Brock , 941 S.W.2d at 900. The Gene ral Asse mbly defines“separ

ate prop erty” as: (A) All real and personal property owned by a spouse

before marriage; (B) Property ac quired in exchange for property acquired before

the marriage; (C) Income fro m and appreciation of property owned by a spouse

before marriage except when chara cterized as marital property under subdivision (b)(1); (D) Property ac quire d bya spouse at any time by gift, beque st, devise or descent ; (E) Pain and suffering awards, victim of crime c ompensation awards , future medical expenses, and future lost wages; and (F) Property

acquired by

a spouse after an order of legal separation whe re the court has made a final disposition of property

.-4-

Tenn. Code Ann. § 36-4-121(b)(2) (2001). Further, the Tennessee legislature provides the f ollowing definitions for “marital property” in a divorce action:

(1)(A) “M ar it al Pr op er ty” me an s a ll re al an d p er so na l p ro pe rt y, both tangible andintangible, acquired by either or both spouses during the course of the marri age up to the date of the final divorce hearing and owned by e

ither or both spouses as of the date of filing a complaint for divorce. . . . (B) “Marital Property” i ncludes income from, and any increase in value during the marriage of, prope rt y d etermined to be separate property in accordance withsubdivisio n (b)(2)if each party substantially contributed to its preservation and appreciation, and t he value of vested and unvested pension, vested and unvested stock option rig

hts, retir ement or other fr inge be nefit rig hts relat ing toemployment that accrued during the period of the marriage. (C ) “Marital Property ” includes recovery in personal injury, worke rs ’ compensat ion, soc ial security disability actions, and other similar actions for the follo wing: wages lost during the marriage, reimbursemen

t for medi cal bills incurred an d p ai d w it h m ar it al pr op er ty, an d p ro pe rt y da ma ge to ma ri ta l p ro pe rt y. Tenn. Code Ann. § 36-4-121(b) (2001). This court has recognized instances where separate property

can become part of the marital estate due to the parties’ treatment of the sepa ra te pr op er ty. The doctrines of transmutation and commingling provide an ave nu e where separate proper ty can bec ome marital property

. Hofer v. Hofer , C.A. No. 02A01-9510-CH-00210, 1997 WL 39503, at *3-4 (Tenn. Ct. App. Feb. 3, 1997)( no perm app. filed )(cit ing Pope v. Pope , No. 88-58-II , 1988 WL 7461 5, at *3 (Tenn. Ct. App. 1988)); Batson , 769 S.W.2d a

t 858. This C ourt has p

reviousl y de fined tra nsmutation

as follow s: [Transmutation] occurs wh en separat e property is treated in such a way

as to give evidenceof an int ention that it become marital property . One method of causing transmutation is to purchase property with separate funds bu t to take title in joint te na nc y. This may

also be done by

placing separa te prope rty in the nam

es of both spouses. The rati onale und erly ing both t hese doctrines is that dea

ling with propert y in these wa

ys c reates a rebu ttable pr

esumption

of a gif t to the mar

ital esta te. This presumption is based also upon the provision in many marital proper ty statutes that propert y acquired duringthe marr

iage ispresumed marital. The presumption can be rebuttedby evidence o f circumstances or communications clearly indicating an intent that the property r

emain separate. Batson , 769 S.W.2d at 858 (qu oti ng 2 H. Clark, The Law of Domestic Relations in the United States § 16.2, at 185 (1987)). The related doctrine of commingling concerns instances where separa te property becomes marital p roperty when the separa te prope rty is inextric ably

mingled with marital property or the

other spouse’s sep arate property. Hofer, 1997 WL 39503, at *3.2 Mr. M ays sta ted in his Lo cal R ule 1 4(D ) M em oran dum , later inc orp orate d as a trial exh ibit, th at h e has

inherit ed $126,233. 00 in f

unds si nce 1986. These f unds i ncluded $28,99 9.00 fr om hi s m othe rs estate, $ 744 .00 in interest from the acco unt, $ 34,568.00 from the sal e of his mother’ s house, $13,572.00 fr om his grandfather’ s est ate, $26,264. 00 in proceeds f rom a note payable to hi s maternal famil y, $10, 786 in thef t set tlements , $1,200.00 inher itance from Billy J ames Farms, and a $10,000 gift from his uncle. -5- Commingling does not

occur if the separate property can be traced into its product or if the s eparat

e property c ontinues to be segregated. Id.
I ni ti al ly, Mr. Mays asserts th at the trial court erred by determin ing that the N BC Ban k Portfolio Account consisted

entirely of mar

ital property. Mr. Mays contends that he placed money he inherite d during

the marr iage in to the NB C Bank Por

tfolio Account 2

. Mr. May s maintain s these funds are separate property , not marital property subject to equitable division. Therefore, Mr. Ma ys assertsthat

the trial court should have a

warded him $126,133.00 out of the $203,979.00 held in the NBC Po rtf

olio Account as separate property , leaving $77,846 to be divided equitably among the parties. After a thorough review of the

record , we fail

to find any indication that Mr. May s raised the issue at t ria l. It

is well-settled in Tennessee that issues not raised in trial c annot be r aised fo r the fir st time on appeal. Simpson v. FrontierCmty. Credit Union , 810 S.W.2d 147, 151 (Tenn. 1991). At no poin t duri ng the p roceed ings did Mr. Mays assert that the $126,133.00 w as separate property that should not be included in the equitable division of the marital property . Our review of the r eco rd sugge sts the opposite. We find the following exchange between c ounsel for Mr. May s and the trial court regarding Mr. Ma

ys’s inherited funds as relevant to our conclusion: Ms. Turner: So if he uses his inherited funds in any fashion and has placed them in these marital funds, I mean - - The Court: They’ve

been subsumed? Ms. Turner: That’s correct. But his contribution from sep arate f

unds should be recognized by

the Court, I think. The Court: Not if they - - well, now, you -all can brief thi s for me. But my understanding of the law is if you don’t isolate t he funds and you use them for the be ne fi t o f t he fa mi ly, th ey l os e t he ir id en ti ty. Ms. Turner: They

become marital assets. But what the Court –

the Court’s correct, commingled asse ts. The Court : Yeah, r

ight. Ms. Turner: But the factor t hat’s in t he statute and the one that I wa nt the Courtrespectfully

to give s ome attention

to is the factor that say s that when one has3 Counsel for Mr. Mays asked whet her the inhe rit ances have been comm ingled with marital property. After a brief explanation, Counsel asked M r. Mays, “So the answer to t he Courtis yes, you commingled?” Mr. Mays repl ied, “Y es, m a’am , I did.” -6- contributedfrom their separate property or diminished their s eparat e proper ty in furtherance

of the marital estate – and there’s a rec ent case that recog nizes this doctrine, and its called the seed money – seed mon

ey . And its Bock vs. Brock [sic]. And what it sa

ys i s this Court

is not oblig ated totake dollar for dollar and offset that money as being inherite d put into the marita l estate. What the Cou

rt should do is to give consideration for a weighted division in favor of that

person w ho put all o f their inherited funds into the marital estate. The Court : Well, cer

tainly , that’s – Ms. Turner: So that’s all I’m going to, and I want the Court to r eco gniz e where I’m going

. I’m not trying to argue that

it’s still se

parate

. (emphasis added). There are similar exchanges throughout the t rial, includ ing Mr. May s’s opening statements to the court and Mr. Ma

ys’ s closing

statemen ts to the co

urt. For these re asons, we do not believe that Mr. Ma ys raised the issue of whether he should receive the p rope rty listed in his L ocal Rule 14(D) Memorandum as separate property

. Assum ing, arguendo, that Mr. Mays did raise the issue at trial, we find no error in the court’s classification of the entire NBC Bank Portfolio Account asmari tal property. F irst, in direct te st im on y, Mr. Mays admitted to commingling the inheritances with marital pr op er ty. 3 Second, the evidenceestablishes that Mr. Mays deposited fundsfrom his business ventures into the NBC Bank Portfolio Account and used the acc ount to fund differ ent famil y a ctivities . This evidence, according to this Cour

t’s opinion

in Hofer , raises the presumption that commingling of separate and marital assets occurred in the account. While, as indicated in Batson , 769 S.W.2d at 858, the presumption can be rebutted with “evidence of circumstanc es or communications clearly indicating an intent that the propert

y r emain separate,” the evidence does not pre ponderate in favor

of such an intent by Mr. May s. Additionally, the courtstruggled with Mr. May s’s credibility reg arding the NBC Bank Port folio Accoun t. In it s benc h ruli ng, th e court state d the f ollo wing: [W]hile it is not disputed that Mr. May s recei ved some f unds from

his family ’s wills, testate disbursements, the Court, because of the credibility of Mr. Mays, is not sure what hap pened to t hose acc ounts. Per

haps he d idindeed c ontribute

all of them for the family

or perha ps he did not, but I

can’t r ule in his favor on that particular issue. Becau se the trial judge is in a much better

position to weigh and evaluate the oral testimony of trial witnesse s, we give great we ight to the trial judge’s findings on issues involving the credibility of witnesse s. Randolph v. Randolph , 937 S.W.2d 815 , 819 (Tenn. 1996). In light of the cour t’s4 Other fact ors to be consi dered by the court include: (1) The durati on of the marriage; (2) The age, physic al and mental heal th, vocat ional ski ll s, employabil it y, ear ning ca pacit

y, estate, financial liabilities and finan cial needs o f each o f the parties;

(3) The tangible or

intan gible co ntributi on by one (1) part y to t he educat

ion, tra ini ng or incr eased spendi ng power of t he othe r part

y; (4) The rel ati ve abi li ty of each party for futur e acqui sit

ions of ca pital asse ts and inco me . .

. . (con tinue d...) -7- finding regarding the

credibility of Mr. Mays and the record as a whole, we conclude that the trial court did not err in classify ing the $126,233 as marital property

. In Mr. Mays’s sec ond argument regarding the trial court’s distribution of the part ies’ asse ts, he contendsthat i f the NBC Bank Portfolio Account was marital property , he should receive a weighted distribution of the account because of his individu al contr ibuti ons. I

n support o f his argume nt, Mr. Mays ca

lls our attention to section 36-4-121 (c)(5) of the Te nnessee Code. With regard to the equitable distribution of marital property, this section states that the c ourt shall consider the fo llow ing: The contribu

tion of ea

ch party to the ac quisition, p

reserva tion, appreciation, deprec iati on or dissipation of the marital or separate property , including the contribution of a par

ty to the marr iage a s a homemake

r, wag e earne

r or par ent, with the contributio n of a par ty a s a homema

ker or w age e arner t

o be giv en the sa

me weight if each party

has fulfilled its role[.] Tenn. Code Ann. § 36-4-121(c)(5)(2001). Mr. Mays maintains that this section illustrates that a trial court must consider the impact of a party ’s vo lu nt ar y co nt ri bu ti on to th e m ar it al es ta te . M r. Ma ys contends that his voluntary contribution to the marital estate wa rrants a weighted distribution of the marital property. This Court has previously addre ssed this issue. In Brock v. Brock , 941 S.W.2d 896, 904-05 (Tenn. Ct. App. 1996), this Court determined that Mr. Brock should receive a g reater share

of the marital estate due to his contributions of premarital property to the marriage. In that case, we stated that Mr. Brock accumulated wealth prior to the ma rriage and contributed this wealth to the marria ge. Id. at 904. In light of section 36-4-121( c)(5) of the Tennessee Code, we determined that th

is wealth “was the ‘seed’ wealth for the substantial marital estate we now have before us.” Id. In recognizing the assets Mr . Brock

brough t into the ma

rriag e, we he

ld that he should be a

warded 55% of a c ertain stock that comprised the bulk of the marital estate. Id. at 899, 905. When a trial court divides marital p roperty upon divor

ce, the c ourt must

consider not only section 36-4-121(c)(5) of the Tennessee Code, but all of the relevant factors listed in part (c) of that section. 4 Further, though the trial court’s distribution of the parties ’ marital property must be4 (.. .continued)

Tenn. Co de An n. § 36-4-12 1 (2001 ). -8- equitable, the court is not requi r ed to divide the parties’ marital property equally. Watters v. Watt ers , 959 S .W.2d 585, 591 (Tenn. Ct. App. 1997). The equity or inequity of a court’s distribution of marital property is determine d by

exami ning the final results of the court’s ruling rather than the division of any particula r piece or category of ma ri ta l p ro pe rt y. Id. Finally , we note that trial courts ar e af

forded a great deal of

discretion when dividing marital property , and the dec isi ons made by a tria

l court in the division of marital property a re entitled to great weight on appeal. Bookout v. Bookout , 954 S.W.2d 730, 732 (Tenn. Ct. App. 1997).
In the present case, the court awarded Mr. Mays approximately 54% of the marital estate. This award included an equal distribu tion of th e NBC Bank Por tfolio Ac count bet

ween the parties. As we are chiefly

concerned with the final results of the court’s distribution of the parties’ marital pr op er ty, we find no error in the court’s division of the property . From our review of the rec ord in light of all relevant factors provided in section 36-4-121(c ) of the Tennessee Code, the evidence does notpreponderate against the cour t’s judgment. Both

parties made substantial contributions to the marriage. The marriage lasted mor e than twenty-thr ee ye ars. Each party

is in reasonably g ood physical health wi th the ca pacity to earn a l iving af ter the d ivorce. In lig

ht of thes e facto

rs, the court awarded Mr . M ays a majority of the pa rties’ marital property . While the amount Mr. Mays rec eived was not in exact accordance with the amount of the inherited property that he contributed to the marital property, Mr. Ma

ys is only entitled to an equitable distribution of the marital propert y based upon the factors provided by the General Assembly . In this case, the t rial court ’s division of the marital property wa s equitable. Accordingly , we hold that the court properly distributed the marital assets. Mr. Mays’ s Claim for Reha

bilitativeAlimony
In his second issu e, Mr. Mays arg ues that the trial court erred in deny ing his claim for rehabilitative a

limony . The tria

l court ru led as fo llows:
I wanted to

review D

r. Ennis’ deposi ti on. I

believe it indicat

es that Mr . May s’ depression may have

existed for

his lifetim

e and may be even permane nt for the rest of his l ifetime , but he ha s a history of working, and a

lso the fa ct that ma ny p eople have depression but

continue to work, and

while his depression apparently has been exacerbated

by the Court proc eeding s, which it isunequivo cal that h e starte d himself by filin g the c omplaint, they have bee n exacerbated, the Court is going to take the view that he is going to be able to get

back on his feet with titration of his medication and t hat he will be able to work as he has worked in the past albeit suff ering fro m depression, so I am not going to make an award of alimony to Mr. Mays. Mr. May s contend s that reh abilitativ e alim ony is warranted in this case chiefly because of the ev id en ce re ga rd in g h is de pr es si on an d M s. Ma ys’ s e ar ni ng ca pa ci ty.-9-

Trial courts have broad discretion to determine whether alimony is appr

opriate and, if so, the nature, amount, a nd d uration of the alimony aw arded. Kinard v. Kina rd , 986 S.W.2d 220 (Tenn. Ct. App. 1998 ). Acco

rdingly , appella

te courts are reluctant to second gue ss a trial court’s decision regarding alimon y a

nd will not disturb such a decision unless it is unsupported by the record or counter to the public policies contemplatedin the applicable Tennessee statutes. Id. There are no hardan d f as t r ul es to be ap pl ie d i n c as es in vo lv in g a re qu es t f or al im on y. Id. In stead , decisions regarding alimony hinge o n the unique factsof the ca se and in vo lve the careful consideration and ba lancing of many fa

ctors, including those set forth in section 36-5-101(d)(1) of the Tennessee Code

. Id. at 235. Ul

timately , the most im

portant f actors t ha t a court must consider when determining whether to award alimony a

re (1) the need of the spouse seeking support and(2) the a

bility of the other spouse to pay

support. Id. Our statut es expr ess a preference for a n award of rehabilitative alimony to rehabilitate a spouse who is economically disadva ntaged relative to the other spouse. Tenn. Code Ann. § 36-5- 101(d)(1)(2000); Crabtree v. Crabtree , 16 S.W.3d 356, 358 (Tenn. 2000). Th e purpose of rehabilitative alimony is to promote the self-sufficiency o f the disadvantaged spouse by allowing them to acquire additional job skills, education, or training. Kinard , 986 S.W.2d at 234.
In this case, th e record supports the trial court’s decision to deny Mr. Mays reha

bilitative al im on y. The record shows that Mr. May s is suffering from depression. Furthe r, Mr. Mays’s psy chiatris t, Dr. Ennis, opined that Mr. Mays’sdepression would continue to plague him throughout his life. Importantly , however, Dr. Ennis stated that Mr. May s has suffered from this affliction since Mr

. Mays was appr

oximately sixteen y ears old. Therefore, the rec ord supports the trial co urt’ s finding that Mr. May s’s depression has been a lifelong problem. The record

also show s that Mr. M ay s has wor ked throu ghout hislife, mak ing a living as a painting and remodeling contractor since 1978. Mr. May s’s repo rted his g ross inco me from his selfemployment

as $19,07 5 in 1993, $ 29,156 in 1 994, $15,1 01 in 1995, $46,150 in 1996, $22, 056 in 1997, and $34,1 09 in 1998. Mr. May s r eported a loss of $11 ,155 i n 1999 . Addi tion ally, th rough April24, 2000, M

r. May s grossed $24,600. Though M r. May s maintain s that h e could not work during the five months leading to trial, Mr. Mays testified that he took pa rt in various other activities during that time, such as preparing for trial, remode ling his ho me, work

ing in his garden, and vacationing in Hawaii. From this evidence, the trial judge prope rly concluded tha

t Mr. May s’ s depression was not

so severe that it prohibited Mr. Mays from ea rning a living. The court was correct in concluding that rehabilitative alimony was not necessary

in order for

Mr. May s to becom

e self-sufficient. The record also s hows t hat al thou gh Dr. Ennis statedthat Mr. Mays’s depr ession impacted his work, Dr. Ennis did not state that Mr. Mays’s depre ssion prevented him from working. Further, Mr. May s stated th at he is re acting in a positiv e manner

to the combination of

medicines ordered by Dr. Ennis. In l ig ht of

th is ev id en ce , t he co ur t p ro pe rl y fo un d t ha t M r. Ma ys will be able to work as wellin the futu

re as he did in the p ast. The trial court properly exercised its discretion in ruling that5 Ms. Mays at torne y’s f ees t otal ed $21,358. 13. -10- Mr. Mays failed to illustrate a n eed for re habilitat

ive alimon

y. A ccordingly , the cour

t proper ly denied Mr. Mays’ s request for alimony. Attorney’s Fees Regardinghis third issue, Mr. Mays asserts that the trial court erred by

aw ar di ng Ms . M ays her atto rney ’s fees

. 5 In awardi ng Ms. Mays her at torne y’s fees, t he cou rt st ated t he fol lowi ng: I’m also awarding to Mrs. May s the attorney’s f ees. Mr. May s is the one who startedall of this with the filing of his complaint and I believe that her proposed division of marital prope rty certai nly fell w ithi n the r ange of reas onablene ss, that if Mr. Mays had

not been rigid on the point of say ing that because of his religious beliefs he did not want this divorce and su bj ec ti ng Mr s. Ma ys to the embarrassment of a trial where we

have to ha

ve the ma tters hea rd on fault, that all of that wo uldnot have been necessary

and that that was manipulative and that Mrs. May s should not be penalized for that. In a divorce ca se, an award of attorney’s f

ees is treated

as an award of alimony

. Kinard v. Kinard , 986 S.W.2d 220, 235 (Tenn. Ct. App. 1998). Thus, when determining whether to award attorney’sfees, t he tri al cou rt is requi red to consi der th e same f actors used w hen co nsid ering a request for alimony. Kinca id v. Kinc aid , 912 S.W.2d 1 40, 144 (Tenn. Ct. Ap p. 1995). As with al im on y, need is th

e critic al facto

r to be co nsidere d by

the cour t when de ciding w

heth er to award attorney’sfees. Herrera v . Herrera , 944 S.W.2d 379, 390 (Tenn. Ct. App. 199 6). An award of attorney’s f

ees is proper when

one spous e is disadvantaged and does not have sufficient re sources withwhich to pay

atto rney ’s fees

. Id. The question of whether to award attorney ’s fees, and the amount thereof, are large

ly left within the discretion of the trial c ourt and will not be disturbed on appeal unless the trial court clearly abused that discretion. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995). Appellate courts may

review a trial cou rt’s disc retiona ry decision s, but that

review i s with less appellate scrutiny

. White v. Vanderbilt Universit y , 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999). If the disc retionary decision is within a range of acceptable a lternatives, appellate courts will not substitute their deci sio n for that of the trial court simply because the appellate court would have chos en a different

alternative. Id. at 223. A trial court must use conscientious judgment when making discretionary decisions. Id. The court must consider theapplica ble law a long with the fac ts before the court. Id. A discre tionary decision will be se

t aside on

ly w hen the tr

ial c our t m isconstruedor misapp lied the c ontrolling legal p rinciple s or acted contra

ry to th e substantial weigh t of the evidence. Id. Therefore, an appellate cour t will review a

trial court’s discretionary de cision to determine: “(1) whether the factual basis for the decision is supported by the evidence, (2) whether the trial court identified and applied the applicable lega l principles, and(3) whether the trial court’s decision is within the range of acceptable alternatives.” Id.-11-

In th e p re se nt ca se , w e b el ie ve th e t ri al co ur t e rr ed in aw ar di ng Ms . M ays her attorne y’ s fees. Co nsidering the fac tors outlined above , the rec ord does not support a finding that Ms. Ma

ys i s financi ally

disadvantaged relative

to Mr. Mays as a r

esult of this divorce. Additionally, the rec ord does not support a finding that Ms. May s lacks sufficient resources to pay her attorney . Our

review o f the record illustrates that Ms. May s reported a gross income of more than $70,000 in 1999

. Ad di ti on al ly, Ms . M ays will rec eive mor e than $20 0,000.00 in liquid assets according to the divorce decree. The substantial weight of the evidence establishes that Ms. May s does not have t he need required in order to justify an award of attorney ’s fees. Ms. May s argue s that atto rney ’s feesare pro

per bec ause of t

he actio ns o f Mr. May s. Ms. Ma ys cites Gilliam v. Gilliam , 776 S.W.2d 81, 86-87 (Tenn. Ct. App. 1988), in order to support her contention that attor

ney ’s feesare wa

rrante d when the ac tions of one party cr eate the bulk of the attorney’sfees. Ms. Mays r eliance on Gilliam is misplaced. The present case does not involve the type of obstru ctionist ta

cti cs the husband utilized in Gilliam . There, we stated that the husband’s litigation tactics went “bey ond the bound s of reason.” Id. at 86. I n this cas e, Mr. Ma

ys s imply contestedthe divor

ce. Mr . May s d id not employ ob struction ist litiga tion tacti cs that fr

ivolously increased Ms. Mays’s legal bill. Mr. May s did not abuse the discovery process, nor

did he for ce Ms. Ma ys to respond to frivolous and false claims. See id. We find t he fact that Mr. May s origin ally filed th e compla

int for div orce of

no conse quence

to our decision. The

record does not c ontai n evidencethat Mr. Ma

ys u sed any

tactics t o penalize

or cause undue co st to Ms. Mays. There fore, we hold that an award of attorney ’s fees to Ms. Mays is not supported by t he evide nce and revers e the trial court’s decision to award Ms. May s her attorney ’s fees. Child Custody
In his final i ssue, Mr. May s argue s that the t rial cou rt erred b y di smis sing his petition for custody of the pa rties’ minor child and awarding custody of the child to Ms. Mays. I

n its final decree of divorce, the cour t’s stated reason for dismissing Mr. May s’s complaint was “due to Husband’s refusal to comply with the Court’s previous Orders. ” The court was r eferr ing toan order entered on January 6, 2000 and an order

entered onFebruary

29, 2000. The January orde r required both parties to “undergo a psy

chological and custody e valu ation immediately.” The F ebruary order states as follows: The Courtasked whether or not [Mr. May s] would all ow counse l for [Ms. Ma

ys] to take the depos ition of histreating psychiatrist to determine his mental status and/or an independent evaluation performed. [Mr. May s] would not answer the question t

o the Co ur t a ff

ir ma ti ve ly, and ther

efore, the Court h

ereby strikes [Mr . May s’s] claim for custody unless he immediately obtains evidentiar y proof asto his menta

l status. Mr. Mays failed to provide the records and did not receive the independe ntevaluat ion. As a r

esult, Ms. Mays moved to dismiss Mr. May s’s petition for child custody at the opening of the trial. Mr. Ma ys argued that th e court sho uld be aware of all the facts and circ umstances before granting the motion, and furt

her, tha t the best interestsof the child mandate that the court should make a-12-

determination of custody afte r hearing proof on the matter. The c ourt refused to hear further proof and dismissed Mr. Mays’s claim for custody.
In child custody matters, trial cour ts are vested with a great deal of discretion. Gaskill v. Gaskill , 936 S.W.2d 6 26, 631 (Tenn. Ct. App. 1996 ); Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993). The trial court, however, must still base their child custody decisions on the proof andupon the c orrect

applica tion of the

la w. Gas kill , 936 S.W.2d at 631. The court’s central and utmost concern in a custody

case is the welfare and best inter ests of the parties’ minor children. Garfinkel v. Garfinkel , 945 S.W.2d 7 44, 747 (Tenn. Ct. App. 1996). Custody should never be utilized asa tool to pu

nish or re ward the parents

. Gaskill , 936 S.W.2d at 630. Fitness for custodial responsibilities is a comparative matter that the trial court is required to make. Herrera v

. Herrera , 944 S.W.2d 379, 386 (Tenn. Ct. App. 1996). Custody determinations are fact drivenan d require the trial court to carefully weigh many

considerations. Gaskill , 936 S.W. 2d at 6 30. R elevan t fact ors fo r the t rial c ourts consi derati on in clude the fo llow ing: [T]he age, habits, mental and emotional make-up of the child a nd t hose parties competing for custody; the educ ation and ex perience of those seeking to raise the child ; their c haracter and propensities as evidenced by their past conduct; the fina ncial and physical cir cumstances available in the home of each par ty see kin g custody and the special requirements of the child; the availability andextent of third party support; the associations and influences to which the child is most likely to be exposed in the alt

ernatives afforded, both positive and nega tive; and where is the greater likelihood of an environment for the child of love, warmth, s tability , support, consistency, ca

re and concern, and phy sical and spiritual nurture. Parker v. Parker , 986 S .W.2 d 557, 562 (T enn. 1 999) ( quot ing Gaskill , 936 S.W.2d at 630 (quoting Bah v. Bah , 668 S.W.2d 663, 666 (Tenn. Ct. App. 1983))) ; see also Tenn. Code Ann. § 36-6-106 (2001). In the present case , the trial court erred when it failed to permit Mr. May s to present proof on the child

custody issue bef ore awa rding custody

to Ms. Mays. The

court should have considered M r. Mays failure s to comply with court orders a s a factor in making its custody decision . Mr

. Mays’s actions could have provided the court with valuable insight reg arding his mental make-up, ch aracter, and pr opensitie s. Althoug h a trial c ourt posse sses a g reat de al of disc

retion in i ts child custody decision s, we believe the court erred in precluding Mr. May s from presenting evidence on the issue of the custody of his c hild. Ad di ti on al ly, as this Court stated in Gaskill , the trial court should not make child custody decisions in order

to punish on

e of the p arents. At the ope ning of t he trial, after th

e trial c ou rt granted Ms. Mays’s motion to dismiss, Mr. May s maintained that the court should hear proof

on the matter before making the child custody determination. The trial court replied, “[n]o, I’m not holding it under advisement. Mr. May s unequivoc all y, indubitably has had ample time and has shown6 Com men tary in Canon 2, part A. of the Code of Judic ial Conduct stat es that “[t]he test

for appeara nce of imp rop riety is whetherthe c onduct woul d creat e in r easonabl e minds a percept ion that t he judge ’s a bil it y to ca rry out judic ial resp ons ibilities w ith integ rity, im partia lity, and com peten ce is im paire d.” -13- nothing but a rec alcitra

nt attitude in that dir

ection. A nd that’sall that the court h as to comment on that.” This statement by

the court indicates that the court dismissed Mr. May s’s petition f or child custody in order to punish hi s refusa

l to obey court or ders. The trial court ha s other mechanisms withwh ic h t o p un is h a li ti ga nt wh o r ef us es to ob ey a court order. Additiona lly, a trial c ourt shoul d have a fully

developed recor

d upon whic

h to base a

decision in a matter of such great importance as custody of a minor child. The refore, we reverse the

court’s decision on the matter, andremand t o the trial court for an evidentiary hearing to determine custody , child support and visitation.
In lig ht of o ur disposition of thiscase, Ms . May s’s issuesare without merit. This is not a frivolous appeal, nor is an award of attorney ’s fees to Ms. Mays pr oper in this case. Mr. Mays reque sts that we assign this cause to another judge upon re mand. Mr. Mays cites Canon 2 of the Code of Judicial Conduct to support his position. 6 We disagree with Mr. May s. The re co rd do es no t s ug ge st th at th e t ri al ju dg e a ct ed wi th im pr op ri et y. Ac co rd in gl y, we affirm in part and reverse in part the decision of the trial cour t. We remand the cause in order for the trial court to make a child custody determination af ter hearing proof on the ma tter. The co sts of this a ppeal ar e taxed eq

ually to both par

ties, Mr. A

ndrew L ee May s, and his su re ty, an d M s. De bo ra h J an e R og er s M ays , for wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ DAVID R. FARMER, JUDGE