# FILED
October 16, 1998 Cecil W. Crowson Appellate Cou rt 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 AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM

THE CHANCERY COURT OF RUTHERFORD COUN TY AT MURFREESBORO, TE NNESSEE HONORABLE DON R. AS H, 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: WILLIA M C. KOCH, JR., JUDGE WILLIA M B. CAIN, JUDGE-2-

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 thehusband has appealed from the judgment of the Trial Court which declared the parti es to be divorced on grounds of irreconcilable differences, awarded joint custod y of their minor child to the parties with principal custody in the wife, and di vided th e marital estate.

The husband’s fir

st 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 thechild’s primary care giver a nd 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 husba

nd was a road truc

k driver, hence

, his times at home were irregular. He continuedthis type of work for two or three ye ars in order to pay

off a debt incurr

ed prior to marriage. The husband asserts and the wife denies that he was attentive to the child when he was home between roa

d trips.

The wife did not work th

e first yea r of the marriag

e, but claims that sh

e 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 h

ome nights and we

ekends.-3- The wife wor ks v ari ous 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 previousmarriage who has bonded with the child of the present marriage.

The husband claims to have been very attentive to the child, taking her t o and from school, preparingher meals, and reading to her. When available, he cares for her before and after school instead of the day care center.

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

One source of dissent

i on b etween the parties was the desire of the wife to move from Davids on Cou nty to Putnam Co unty where

her family r

esides. The husba

nd preferred to
con tin ue t o res ide in D avi dso n Co unt y.

The Trial Judge delivered a lengthy oral discussion of the considerations supporting his judgment, i ncluding th e followin g:

I find both of th

ese parties would

be fit custodians.

- - - - I think the physical sur

roun ding of Mrs. I

rwin is superior to that of Mr. Irwin. Religious traini ng, 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 sup port. I am also going to conside

r the relationship that this little girl has

withher older

sister, and obviously that would be a check in favor o

f the mother. I

think both

of these parentslove this child, and from the testimony presented the child loves both of t

hese parents. In regard to the primary caretaker of the child, even thou gh Mr. Irwin has made sacrifices in that regard, and he has done a very goo d job o f that , I stil l find that M rs. Ir win is t he pri mary caretaker. Con

tinuity of pla

cement 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 fa

mily-4- unit; both parties seem

to be in good phy

si ca l and mental health.

- - - - This is a proper

case toallow the mother to be the primary custodian, and I

am going to awa

rd that. The noncusto dial p arent, Mr. I rwin, will be entitl

ed to information on the health, school perf ormance and extracurricular

activities of the c

hild. Mrs. Irw in, it is your responsibility

t o let him know when these events are and let him participate. I

f you don’t le

t him participate in

those events that will be a basis for a change of custody, so y ou need to be aware

of that.

- - - - In regard to visitation, beca

use Mr. Irwin

has convinced this Courtthat he desires this additional time with his chi l d I’m go ing to gi ve him more visitatio n than I norma

lly give. H

is visitation will be v ery other w eekend, Friday

at 5:30 until Sunday a t 5:30. Also every Tuesday night he can have visitation from the time he g ets off work until

7:30, sohe 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 thi rd week in June from Sunday

to Sunday; he

wil l ha ve t wo w eeks in J uly, andthat will be the secondand thi rd w eek i n Ju ly, and he will have one week in

August, the seco

nd week in Augus

t.
The review of custod

y decisions i

s d e novo upon the record with a presumption of correctness

unless the evidence preponderatesotherwise. Gaskill v. Gaskill , Tenn. App. 1996, 936 S.W.2d 626. The evidence does not preponderate otherwise.

Trial Courts are v

ested with broad d

iscretion in

matters of child

custody, an

d appellate
c ourts 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 seco

nd issue is:

II. Whether

the Court erred in

failing to award Husband an equal portion of the appreciation in Wife’s rea l proper ty ownedprior to the marriage when Husband had made substantial contributions to their appreciation.-5- A. Therewas no compelling reason for anything other than an equ

al division of asse

ts. B. Husband’s request for Roberts Cour t s hould have been honored. The pertinent por

tion of the judgme

nt of the Trial Cour

t is: 6. Marital and sep arat e pro pert y is di vided as follows pursuant to the factors set out in Tenn. Code Ann. § 36-4-121(b):
a. In regard to the Wife’s sepa rat e 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 appr

eciated equity

during the marriage is awarded to Husband. b. In regard to the Wife’ s s eparate property known as Sulphur Sp

r ings, fifty percent (50%) of the appreciated eq uity during

the marriage i

s 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 sep arate property known as Woodbury, seventy percent (70%) of the appre ci ated equity

during the marr

iage is awarded to t he H usb and and thi rty p ercent (30%) of the appreciated equity during the marriage is awarded to Wife. d. In regard

to the Husb

and and Wi

fe’ s marital property kn

own as Roberts Co

urt, fifty percent (50%) of the equity is awarded to th e Wife and fifty percent (50%) of the equity is awarded to Husband.
e. In regard to the Husband a nd Wife’s marital property kn

own as the Weeks Ro

ad 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 kn

own as Raspb erry L

ane, sixty percent (60%) of the equity is awarded to the Wife and forty percent (40%) of the e quity is awar ded to Husband. In regard to

the findings and awards stated in (a) through (f) above, andin lieu of and to prevent a sale of the properties in order to distribute such award, an d furth er to prevent any tax conse

quences to the pa

rties occass

ione d by-6- sale, the court divides and awards the a foresaid proper

ties to the parties as fo

llows:
Husband Wife 9708 W oodbury Pk., Murfreesboro 4528Baywood , Murfreesboro 1282 Weeks Road, M urfreesboro 3864 Ne stledown Dr., Murfre esbor o 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 exec

ute the necessa

ry q uitclaim deeds as evidence of the real estate division a foresaid, and shallalso make best efforts to refinance their individual properties in order

to remove the other party from liability on the existing mortgage(s). The parties stipul

ated the apprec

iation in value of th

e various proper

ties 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 testifiedthat “we” borro wed th e $33, 763 down payment using her line of bank credit, that $15,000 was “jointly” financ ed, that t he husband used $3,000 received from his father as part of the down payment, and that he performed co

nsiderable

lab or i n im pro vem ent of t he p rop ert y. The Trial Court was impressed by the fact th at the husband was

heavily in de

bt and unable to contribute

much to the purchase of this property and that the wife used her saving s andcredit to-7-

prov ide th e 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 alloweda husband to sharein the $51,700 apprecia tion of a house owne

d by the wife

because he had contributed$7,540 to the improvement of the house and paid some other expenses. The
sameauthority approved a holding that an “equitable” distribution was not required to be exa

ctly equal.
Appellant

cites Mahaffey v. Mahaffey , Tenn. App. 1989, 775 S .W.2d 618 which dea ls withseparate property which the parties treated as joint proper ty and thi s Court he ld that the overall effect of the distribution of marital assets was equitable.
App ellant complains th at 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 pro perties 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, whi ch re pres ent a di ffer ence of $ 18, 425 . Ho wev er, t he T ria l Ju dge s tat ed o ral ly:

When I made this division of property, jus t forthe 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 p

ropert y, when I

divided the Robert

s Court I figured th at equi ty 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 pay

ment, so I want

ed her to get those funds back. So I think when you calculate this, if y ou’d go b ack there and do that you’ll see that there is $23,000 ex t ra 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 pru chas e pri ce of the Rob ert s Co urt pro pert y.-8- Appellant complains of the consideration given to the testimony of an accountant. The Trial Judge was t he best jud ge of the weight to been given this evidence which is not considered to be determinativ

e of any issu

e in this appeal.

Fin all y, 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 a

ble 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 othe

rwise correct j udgment.

The judgment of the TrialCourt is affirmed. Costs of this appeal are assessed against the appellant and his surety. The cause is remanded to t he Trial Court for necessary further proceedings.



### AFFIRMED AND REMAND ED

.

__________________________________ HENRY F. TODD, JUDGE

CONCUR:

____________________________ WILLIA M C. KOCH, JR., JUDGE

____________________________ WILLIA M B. CAIN, JUDGE