F ILED

Ma rch 30, 2000

C ec il Crow s on, Jr.

Appellate Court Clerk

IN THE COURT OF A P PEAL S OF TENNES S E E

AT N A SHVILLE

ANGELA JOAN W AGNER, )

)

Plaintif f/A ppellant, )

) A ppeal N o.

) M 1999-01045-C O A -R 3-C V

V S. )

) R utherford C hancery

) N o. 98DR -570

RODNEY K E ITH W A G N ER, )

)

D efendant/A ppellee. )

A P PE A LED FROM THE CHA N C ERY COU RT 

OF RUTHERFORD C OUN T Y

A T

M U RFREESBORO, TENN ESSEE

THE HONORA BLE ROBERT E. CORL E W , III, CHA N C ELL O R

JON S. JABL ONSK I

2400 C restmoor Road, S uite 315

N ashville, Tennessee 37215

A ttorney for Plaintiff /A ppellant

FRA N K M. FLY

P. O . Box 398

M urfreesboro, Tennessee 37133-0398

A ttorney f or Defendant/A ppellee

A FFIRMED A ND REM A NDED

BEN H. CA NTREL L ,

PRESID IN G JUDGE, M.S .

CONCUR:

K OCH, J.

COTTREL L , J.
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O P I N I O N

T he trial court granted the parties a div orce, ordered joint custody

of the parties’ minor son, and divided the marital property. O n appeal, M s.

W agner contends that the trial court’s aw ard of joint custody on an alternating

w eek basis w as improper, that the division of marital property w as inequitable,

and that the trial court’s order requiring her to bear one-half of the child’s

medical insurance w as improper. W e disagree and aff irm the trial court’s

jud gme nt. 

I.

R odney W agner, an employee of D igital E quipment C orporation,

and A ngela W agner w ere married in A ugust of 1990. In O ctober of 1990, after

tw elve and one-half years of employ ment w ith D igital E quipment C orporation,

M r. W agner was offered a termination package consisting of back pay f or

accumulated “sick time,” “vacation time,” and salary based on length of

employ ment. M r. W agner accepted the offer and subsequently started his own

business, L an C onn ects. 

T he parties’ marriage produced one son, C hristopher T aylor

W agner, w ho w as born in 1993. The testimony in this case indicates that w hile

the parties were married, M s. W agner was the primary caretaker of the child.

A lthough M s. W agner testified that M r. W agner had no inv olvement in his son’s

life, other testimony indicated that M r. W agner’s inv olvement in his son’s life
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w as limite d du e to his ef f orts t o start his ow n bu sin ess. T he child w as diagnosed

w ith attent ion def ici t hy peractiv ity dis order. 

T he parties separated in 199 8. A t this time, the parties agreed to a

temporary arrangement of joint custody on an alternating w eek basis. D uring

this agreed joint custody arrangement, M r. W agner had the child put on

medication for attention deficit hy peractivity disorder. The child’ s teachers

testified that after the child began taking the medication they noticed an

imme diate d if ference in his beh av ior, at ten tio n sp an, and f ocu s. 

In M ay of 1998, M s. W agner filed a complaint for absolute div orce

citing irreconcilable differences, inappropriate marital condu ct, and cruel and

inhuman treatment. M r. W agner answered the complaint denying these

allegati ons and pray ing for dismissal of the complaint . 

A fter a hearing, the trial court awarded M s. W agner a div orce on the

grounds of inappropriate marital conduct. The parties were awarded joint

custody of their son on an alternating w eek basis. M r. W agner w as designated

the primary custodial parent w ith full and sole responsibility f or making nonemergency health care, school, and religious decisions concerning the child. Mr.

W agner w as ordered to pay child support of $728.00 per month, a sum equal to

10.5% of his monthly income. The trial court further ordered that the parties be

equally responsible for payment of the costs of medical insurance for the child.
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T he court aw arded the marital home to M s. W agner and the parties’

ow nership of fif ty perce nt o f the sto ck i n L an C onn ects to M r. W ag ner. T he trial

court designated as martial property $40,245 of M r. W agner’s IR A account,

$2,860 of M r. W ag ner’s checking account w ith N ations B ank, $9,019 of M r.

W agner’s 401K account, $1,300 of M r. W agner’s First A merican C hecking

A ccount, and $368 of M r. W agner’s account with E ducator’s C redit U nion. The

court then awarded M s. W agner half of M r. W agner’s IR A account and M r.

W agner the rest of the marital property in the accounts. T his appeal follow ed.

T he issues M s. W agner has raised on appeal are (1) w hether the trial

judge erred in his custody determination; (2) w hether the div ision of marital

property w as equitable; and (3) w hether the trial court erred in ordering M s.

W agner to bear one-half of the expense of the child’s medical insurance.

II. C ustody A rrangement

M s. W agner contends in her brief on appeal that the trial court’s

aw ard of joint custody on an alternating w eek basis w as improper. In addition,

M s. W agner argues that it w as error for the trial court to grant M r. W agner the

authority to make non-emergency health care, school, and religious decisions

w ith regard to the child. W e note that the proper standard of appellate rev iew in

child custody cases is de nov o upon the record w ith a presumption of correctness

of the trial cou rt’s f ind ings. See H ass v. K nighton, 676 S.W .2d 554, 555 (T enn.

1984). B y w ay of statute, courts have the authority to aw ard child custody in a

div orce proceeding “to either of the parties to the suit or to both parties in the
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instance of joint custody or shared parenting, or to some suitable person, as the

w elfare and interest of the child or children may demand . . . .” T enn. C ode A nn.

§ 36-6-101(a)(S upp. 1999). This custody determination must be based first and

foremost on the best interest of the child or children and can involv e

consideration of a multitude of factors that can affect the child’s best interest.

See N ichols v. Nichols, 792 S.W .2d 713, 716 (T enn. 1990); Rogero v. P itt, 759

S.W .2d 109, 112 (T enn. 1988); Bah v. Bah, 668 S.W .2d 663, 666 (T enn. C t. A pp.

1983). In addition, w e must accord the determination of the trial court great

deference on appeal because the trial court had the opportunity to observe the

manner and demeanor of the w itnesses at trial w hile our rev iew is limited to the

w ritten record. J ones v. J ones, N o. 01-A -01-9601-C V 00038 , S umner C ounty

(T enn. C t. A pp. filed September 11, 1996, at N ashville) (citing Town of A lamo

v. F orcum-J ames C o., 327 S.W .2d 47 (1959)).

T his C ourt has prev iously adopted the doctrine of comparative

fitness to determine the most suitable custodian for children of tender years. W e

stated

Fitness for custodial responsibilities is largely a

comparative matter. N o human being is deemed perfect,

hence no human can be deemed a perfectly fit custodian.

N ecessarily, therefore, the courts must determine w hich

of tw o or more available custodians is more or less fit

than others . . . . T o the extent the ‘tender years’ doctrine

has continued efficacy it is simply one of many factors to

be considered in determining custody , not an unyielding

rule of law . The only rigid principle is and must be that

the best interests of the child are paramount in any

custody determination.

Bah v. Bah, 668 S.W .2d at 666 (citations omitted).
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In the present case, the trial judge made detailed findings of fact

regarding the issue of custody. T he trial judge found that, although the bond

betw een M s. W agner and the child w as slightly greater than that between M r.

W agner and the child, M r. W agner was more stable. The trial court based this

finding on M s. W agner’s history of impulsiv e actions and expenditures

ev idenced by the record. The trial court further noted that M s. W agner continues

to suffer from psychological problems for w hich she takes medication on a daily

basis. T he trial court pointed out M s. W agn er’s confrontational and exclusive

demeanor in court regarding issues of custody w hereas Mr. W agner appeared

much more amenable to a continuation of an appropriate relationship w ith each

parent. In addi tio n, the trial court noted that continued joint custody w as an

app ropriate perman ent sol uti on. 

T he trial court’s aw ard of decision making authority to M r. W agner

w as based on the court’s determination that M r. W agner w as better able to deal

w ith others including school personnel, doctors, church associates, neighbors,

and business associates. The trial court then noted that Ms. W agner has little

church association, a confrontational relationship w ith school personnel, and

long “mad spells” w here she stops interacting w ith others w ho take positions for

w hic h sh e do es n ot care. T hese f ind ings are s upp orted by the record. 

In light of the foregoing, it is the opinion of this court that it is in the

best interest of the child that he be giv en the opportunity to maintain w arm and

close relationships with both parents in the form of joint custody. In addition,
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the trial court’s aw ard of decision-making authority to M r. W agner w as

appropriate in light of the ev idence in the record.

III. Division of the M arital Property

M s. W agner next contends that trial court’s div ision of marital

property w as not equitable. S pecifically, M s. W agner argues that the trial court

erroneously classified marital property as separate property. W e disagree.

T enn. C ode A nn. § 36-4-121 defines marital and separate property:

(b)(1)(A ) “M arital property” means all real and personal

property, both tangible and intangible, acquired by either

or both spouses during the course of the marriage up to

the date of the f inal div orce hearing and ow ned by either

or both spouses as of the date of f iling of a complaint for

div orce, except in the case of fraudulent convey ance in

anticipation of f iling, and including any property to w hich

a right w as acquired up to the date of the f inal div orce

hearing, and valued as of a date as near as reasonably

possible to the final div orce hearing date.

(B ) “M arital property” includes income from, and any

increase in value during the marriage of , property

determined to be separate property in accordance w ith

subdivision (b)(2) if each party substantially contributed

to its preservation and appreciation and the v alue of

vested pension, retirement or other fringe benefit rights

accrued during the period of the marriage.

. . . 

(2) “Separate property” means:

(A ) All real and personal property ow ned by a spouse

before marriage;

(B ) Property acquired in exchange for property acquired

before the marriage;

(C ) Income from and appreciation of property ow ned by

a spouse before marriage except w hen characterized as

marital property under subdivision (b)(1); and

(D ) Property acquired by a spouse at any time by gif t,

bequest, dev ise or descent.

T enn. C ode A nn. § 36-4-121(b)(1)(A )-(B ); (b)(2).
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M s. W agner first takes issue with the trial court’s classification of

the majority of M r. W agner’s termination package as separate property. M s.

W ag ner asserts that the entire package w as marital property and should hav e

been divided equally. W e note that the termination package consisted of salary

for M r. W agner’s accumulated sick time, vacation time, and length of

employ ment. After receiving the money from this package, M r. W agner

deposited the funds into an account with M errill L y nch and then transferred the

funds to an account w ith E ducator’s C redit U nion. M r. W agner had w orked for

D igital E quipment C orporation for over tw elve years prior to his marriage to M s.

W agner. Mr. W agner w orked for D igital E quipment C orporation for only f our

months w hile he was married to M s. W agner. A s such, the vast majority of M r.

W agner’s accumulated sick pay and v acation pay amassed prior to his marriage

to M s. W ag ner. 

T he T ennessee S upreme C ourt has previously held that marital

property includes retirement benefits, both vested and unvested, which accrue

during the marriage. C ohen v. C ohen, 937 S.W .2d 8 23, 8 30 (T enn . 199 6). The

C ourt further held that 

1. O nly the portion of retirement benefits accrued during

the marriage are marital property subject to equitable

div ision.

2. R etirement benefits accrued during the marriage are

marital property subject to equitable division even though

the non-employee spouse did not contribute to the

increase in their value.

3. T he value of retirement benefits must be determined at

a date as near as possible to the date of the div orce.
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Id. at 8 30. A lth oug h th e C ourt w as referring to ret irement ben ef its, w e find the

reasoning and holding applicable in the case at bar as the package received by

M r. W agner w as analogous to a retirement benefit package.

In the present case, the termination package benef its accrued almost

entirely before the parties w ere married. A fter the parties w ere married and M r.

W agner received the package, M s. W agner did nothing to substantially

contribute to its preservation or appreciation. Therefore, we cannot f ind that the

trial court erred in finding that only $368.00 of the $25,368.00 in the E ducator’s

C redit U nion A ccount was marital property.

M s. W agner next contends that the trial court erred in finding that

only $2,860.00 of Mr. W ag ner’s N ati ons B ank accoun t w as marital prop erty . A t

the time the parties w ere married, M r. W agner had an account w ith First

A merican w ith a balance of $13,477.00. A fter the marriage, M r. W ag ner took

$12,000.00 from that account and opened another account with F irst A merican

as “doing business as” L an C onnects account. A f ter th e parties sep arate d, M r.

W agner transferred this account to N ations B ank. W hen the account w as opened

at N ations B ank, it had a balance of $30,102.45. How ever, at the time of the

div orce hearing, the account had a balance of only $16,337.00. T he trial court

correctly determined that $13,477.00 of this account w as M r. W agner’s separate

property. See T enn. C ode A nn. § 36-4-121(b)(2)(A ). In add iti on, w e note that

marital property must be “valued as of a date as near as reasonably possible to

the final div orce hearing date.” Tenn. C ode A nn. § 36-4-121(b)(1)(A ).

T herefore, the trial court correctly utilized the value of the account as of the date
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of the div orce hearing, $16,337.00, for purposes of determining the amount of

marital property in the account. T he trial court correctly determined that only

$2,8 60.0 0 of the account w as marital property and thus subject to equitable

div isi on. 

IV . M edical Insurance

M s. W agner next contends that the trial court erred in requiring her

to bear one-half of the ex pense of the medical insurance for the child. W e note

initially that this C ourt has previously held that the C hild S upport G uidelines 

require the obligor parent to pay f or the children’s

medical insurance in addition to whatever other child

support mig ht be required. T he courts have little

discretion w ith regard to this obligation and may only

depart from the g uideline’s requirements if they make

w ritten, specific findings concerning w hy it w ould be

unjust or inappropriate to require a particular obligor

paren t to pay for the chi ldren ’s medical ins urance. 

C arden v. Card en, N o. 01-A -01-9502-C H 00042, C offee C ounty (T enn. C t. A pp.

filed N ovember 22, 1995, at N ashville) (citing T enn. C omp. R . & R egs. r. 1240-

2-4 -.04 (1)(a)). H ow ever, in the present case, the parties enjoy joint custody of

the child and neither party falls w ithin the definition of an “obligor” as set out

in the g uid eli nes. See T enn. C omp. R . & R egs. r. 1240-2-4-.03(1). In fact, the

guidelines state that they are “designed to apply to situations w here children are

liv ing primarily w ith one parent . . . . In situations where overnight time is

div ided more equally betw een the parents, the courts w ill have to make a caseby-case determination . . . .” T en n. C omp. R . & R egs. r. 1240-2-4-.02(6). In the

case at bar, w e find that the handling of the matter of health insurance for this

minor child w as w ithin the discretion o f the trial cou rt. See D ill v. Dill, N o.
02A 01-9810-G S-00272, H ardin C ounty (T enn. C t. A pp. filed A ugust 2, 1999,

at Jackson). In light of the foregoing, the trial court did not abuse its discretion

in ordering the parties to equally share the cost of the child’s medical insurance.

T he judgment of the court below is affirmed and the cause remanded

to the C hancery C ourt of R utherford C ounty for any further proceedings

necessary. T ax the costs on appeal to the appellant, A ngela J oan W agner.

 

BEN H. CA NTREL L ,

PRESID IN G JUDGE, M.S .

CONCUR:

 

W ILLIAM C. KOCH, JR ., JUDGE

 

PATRICIA J. COTTREL L , JUDGE