# F I LED
Ma rch 30, 2000 C e c i lCr o w s o n , Jr. Appell ate Cour

t Cl er k 

### I N THE COURT OF A P P EAL S OF TENNES S E E AT N A S HVI LLE

ANGELA JO

AN 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 I TH W

A G N ER, )

) D efendant/A ppellee. ) A P P E 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 , I I I , CHA N C ELL O R JON S. JABL ONSK I 2400 C res

tmoor Road, S uite 315 N ashv ille, Tennessee 37215 A ttorn ey for Plaintiff

/Appellant FRA N K M. FLY P. O . Box 398 M urfr eesbor o, Tennessee 37133-0398 A ttorney f

or Def endant/A ppellee

A FFI RMED A ND REM A NDED

BEN H. CA NTREL L , PRESI D I N G JUDGE, M. S . CONCUR: K OCH, J. COTTREL L , J.-2- 

### O P I N I O N

T he tr ial cour t granted the

parties a div orc e, or der ed joint custody of the par ties’ minor son, a

nd div ided the mari

tal pr oper ty . O n app eal, M s. W agne r contends that the tr

ial cour t’s aw ard of joint custody

on an alter

nati n g w eek basis w as improper

, that the division of

marital pr

operty w as inequitable, and that the trial cour

t’s order req

uirin g her to bear one-half of the child’s medical insur

a nce w as improper

. W e disagree and a

ff irm the tr

ial cour t’s jud g me nt.
I.
R odney W agner, an employ

ee of D igital E quipment C orpor at io n, and A ngela W

agner w ere mar ried in A ugust of

1990. In O ctober of 1990, after tw elv e and one-half y

ear s of employ ment w ith D igital E quipment C orpor ation, M r . W agner w as off ere d a ter mination packa ge consisting of

back pay f

or accumulated

“sick time,” “ v

acat ion time,” and sala

ry based on length of employ ment. M r. W agner accepted

the off er and subsequently started his own bus ine ss, L an C onn

ect s.
T h e parties’ marr

iage produced one s

on, C hrist

opher Tay lor W agner, w ho w as bor n in 1993. The

testimony

in this case indicates

that w hile the parties were marr

ied , M s. W agner w as the pr imary caretaker

of the child. A lthough M s. W agner testified that M r. W agner had no inv

olv ement in hi s s on ’s life, other testimony

indicat ed that M r. W agner’s inv

olv ement in his son’s life-3-

w a s lim ite d due to

his ef f orts t o start hi s ow

n bu sin ess . T he child w

as diagnosed w ith att ent ion def ici t hy perac tiv ity

dis order.
T h e par ties separ ated in 199 8. A t this time, the par

ties agreed to a temporar y ar ran gem ent of joint custody

on an alter

nating w eek basis. D u

ring this agreed joint cu

stody ar ran gem ent, M r. W agner had the chil

d pu t on medication

for attention deficit hy

peractivity

disorder . The child’ s teac

he rs testified that after the child began taking the medication they

noticed an im me dia te d if f erenc e in his beh av ior, at ten tio n sp an, a

nd f ocu s.
In M ay of 1998, M s. W agner filed a complaint

for absolute div

orce citing irr econcilable diff

erences, inappropr

iate marital co

ndu ct, and cr

uel and inhuman tre atment. M

r. W agner answe red

th e complaint denying

these all eg ati ons and pray ing f or dis mi ssa

l of the com pla int .
A fter a hearing, the tr

ialcourt awarded M

s. W agner a div orc e on the grounds of inappropr

iate marita

l con duct. The parties were awarded joint custody of their son on

an alternating w

eek basis. M

r. W agner w as designated the prim ary cu stodial par

ent w ith full and sole re

sponsibility f

or making nonemergency

health car

e, school, and

re ligious decisions concer

ning the child. Mr

. W agner w as order ed to pay child suppor t of $728.00 per

month, a sum equal to 10.5%of his monthly

income. The trial cour

t further orde red that the par

ties be equally re sponsible for payment

of the costs

of m edical insur

ance for the chi

ld.-4- T h e cour t aw arded the mar

italhome to M

s. W agner and the par

ties’ ow ner ship of f if ty perce nt o f

the sto ck i n L an C onn

ect s to M r. W ag ner. T he trial cour t designated as m

artial pr operty $40,245 of M r. W agner’s IR A acco

unt, $2,860 o f 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 F irst A merican C hecking A ccount, and $368 of Mr. W agner’s account with E ducator

’s C red it U nion. The cour t then aw ard ed M s. W agner half of M r. W

agner’s IR A accou

nt and M r. W agner the r

est of the marital pr

oper ty in the accounts. T

his appeal follow

ed.
T h e issues M s. W agner has raised on a

ppeal are ( 1) w hether the tr

ial judge er red in his custody determination; ( 2) w hether the div ision of m

arital prope rty w as equitable; and ( 3) w

hether the tr ial cour t er red in or der ing M s. W agner to bear one- half of

the expense of

the child’s m

edical insurance.
II. C usto

dy A rrangeme

nt
M s . W agner contends in he

r br ief on appeal that the tr

ial cour t’s aw ard of joint custody

on an alternating w

eek basis w

as improper . In addit ion, M s . W agner ar gues that it w

as er ror for the tri al cour t to grant M

r. W agner the author ity to make non-emergency health car

e, school, and r

eligious decisions w ith re gard to the

child. W e note that

the pr oper standar d of appellate re

v iew in child custody cases is de novo upon the r ecor d w ith a pr esumption of corr

ectness of the trial cou rt’ s f inding s. See H ass v. K

ni ghton , 676 S.W .2d 554, 555 (

Tenn. 1984)
. B y

w ay of statute, cour

ts hav e the author

ity to aw ard child custody

in a di v orce proce eding “to either

of the parties to the suit or to both par

ties in the-5-

instance of joint custody

or sh ar ed pa r en ting, or to so me suitable per

son, 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 deter mination must be based first and foremost on the be

st inter est of the child or

childr en and can involv e consider ation of a multitude of f

actor s that can affect the child’s best intere st. See N ichol s v. Nichols

, 792 S.W .2d 713, 716 (

Tenn. 1990) ; R

og er o v . P itt , 759 S .W .2d 109, 112 (

Tenn. 1988) ; Bah v. Bah

, 668 S .W .2d 663, 666 (

Tenn. C t. A pp. 1983)
. In addition, w

e must accor

d the determ

ination of the trial court great deference on appeal because

the tr ial cour t had the oppor

tunity to obser v e the manner and demeanor of the w

itnesses at trial

w hile our re v iew is limited to the w ritten re cor d. J ones v. J ones

, N o. 01-A -01-9601-C

V 00 038 , S u mner C ounty ( Tenn. C t. A pp. filed S eptember 11, 1996, at Nashv

ille) ( citing Town of

A lamo v. F orcum

-J ame s C o. , 327 S.W

.2d 47 ( 1959) )
.
T his C ourt has pr

ev iously adopted the doctrine of co mpar ativ e fitness to deter mine the most suitable

custodian for children of tender y ears. W e stated F itness

for custodial r

espon si bilities is lar

gely a comparative

matter. N o human being is deemed

per fect, hence no human

can be deemed a

per fectly fit custodian. N ecessar ily , therefore, the courts must deter mine w hich of tw o or more available custodi ans is m ore or l ess fit than other s . . . . T o the extent the ‘tender years’ doctr ine has continued efficacy

it is simply one of m any factors to be considered

in determining custody , not an uny ielding rule of law . The only

rigid pr inciple is and must be th

a t the best inter

ests of the child ar

e par amount in any custody deter mination. Bah v. Bah

, 668 S.W

.2d at 666 (

citations omitted)
.-6- In the present case, the trial j udge m ade detailed findings of f act regar ding the issue of custody

. T h e tr ial judge found that, although the bond betw een M s. W agner and the chil

d w as slightly

greater than that between M r. W agner and the child, M

r. W agner w as more stabl

e. The trial cou

r t based this finding on M s. W agner’s history of im

pulsi v e actions and expenditures ev idenced by the r ecor d. The trial cour t further noted that M

s. W agner continues to suff er from psy chological problems for

w hich she takes medication on a daily basis. T he tr ial cour t pointed out M

s. W agn er’s confronta

tional and exclusiv

e demeanor in cour t re garding i ssues of custody w hereas M r. W agner appeare

d much more amenable to

a continuation

of an appropriate r

elationship w

ith each par ent. In a ddi tio n, the t

rial cour t noted that continued joint custody w as an appropriat e pe rman

ent sol uti on.
T h e tri al cour t’s aw ard of decision making

author ity to M r. W agner w a s based on the cour

t’s determination that M

r. W agner w as better able to dea

l w ith others including school personnel, doct ors, c hurc

h associates, neighbors, and bus iness associ ates. The trial cour t then noted that M

s. W agner has little church association, a confrontational re lationship w ith school per

sonnel, and long “mad spells” w

her e she stops inter

acting w ith other s w ho take positions for w hic h sh e do es n ot c are. T hes e f

inding s are s upp orted

by the record.

In light of the foregoing, it is the opinion of this cour t that it is in the best inter est of the child that he

be giv en the opportunity to m aintain w arm and cl ose re lationships with both parents in the for m of joint custody. I n addition ,-7-

the tri al cour t’s aw ard of de cision-making

authority to M r. W

agner w as appr opria te in light of the ev idence in the r ecor d.
III. Divis

io n of the M arital Propert y
M s . W agner next contends that tr ial cour t’s division o

f marital prope rty w as not equitable. S pecifically , M s. W agner ar gues that the trial

cour t err oneously classified marital pr

oper ty as separ ate pr op erty. W e disagree. Tenn. C ode A nn. §

36-4-121 defines marital a nd separ ate pr oper ty : (b )(1 )(A ) “M

arital pr operty” m

eans all rea

land personal prope rty, both tangible and intang ible, acquired by either or bo th sp ou se s d ur in g the co ur se of th e ma rr iage up to the date of the f

inal div orce hear ing and ow ned by either or both spouses as of the date of f iling of a complaint

for div orce, excep

t in t he case of fraudulent conveyance in anticipation

of f iling, and including

any proper ty to w hich a right w as acquir ed up to the date of the f inal div orce hear ing, and v

alued as of a date as ne

ar a s re asonably possible to the final div orce hear ing date. (B ) “M arital pr operty” includes incom

e fr o m, and any incr ease in v alue durin

g the marr

iage of , pr oper ty determined

to be separ

ate pr oper ty i n acc orda nce w ith subdiv ision ( b) ( 2) if each party

substantially

contributed to its preser

v ation and appreciation and the v a l ue of v ested pension, r

etir ement or other

fringe benefit rights accrued dur

ing the period of the m

arr iage.

. . . ( 2) “S epar

ate pr oper ty ” means: (A ) Al lre

al and per

sonal pr oper ty ow ned by a spouse before marr

iage; ( B ) Proper

ty acquir ed in exchang e for proper

ty acquired before the marr

iage; ( C ) Income from and appr eciation of proper

ty ow ned by a spouse before marr

iage ex cept w

hen character

ized as marital pr oper ty under subdiv ision ( b) ( 1) ; and (D ) Proper

ty acquir ed by a spouse at any time by

gif t, bequest, de

v ise or descent. Tenn. C ode A nn. §

36-4-121(

b) ( 1) ( A ) -( B ) ; (b) ( 2)
.-8- M s . W agner first

takes issue with the

tri al cour t’s classification of the majority of

M r. W agner’s t erminat ion package as separ

ate pr oper ty . M s. W a g n er asser ts that the entire package w as marital pr

operty and should hav e been div ided equally. W

e note that the

ter mination package consisted of

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

t e r r eceiv ing the m

oney from this packag

e, M r. W agner deposited the funds into an account with M err ill L y nch and then tr ansferr ed the funds to an account w

ith E ducator’s C redit U

nion. M r. W agner had w orke d for D igital E quipment C orpor ation for over tw

elv e y ear s pri or to his marr iage to M s. W agner. Mr

. W agner w orke d for D igital E quipment C orpor ation for only f

our months w hile he was m

arr ied to M s. W agner. A s such, the

v ast majorit

y of M r. W agner’s accumulated

sick pay and v acation pay amassed prior to his marr

iage to M s. W ag ner.
T h e Tennessee S upreme C our t has previously

held that marital prope rty includes r

etir ement benefits, bo

th v est ed and unv

ested, which accrue durin g the ma rriag e. C ohen v. C ohen

, 937 S .W .2d 823, 8 30 (T

enn. 199 6). Th

e C ourt further

held that 1. O nly the por tion of retir

ement benefits accrued du ring the marr iage are marital pr

oper ty subject to equitab

le div ision. 2. R etirement benefits accrued dur ing the m arr iage are marital prop ert y subject to equitable div

ision ev en though the non-employ

ee spouse did not cont ribut e to the increase in their

v alue. 3. T he v alue of retir

ement benefits must be

determined at a date as near

as possible to the date of the div orce.-9-

Id. at 830. A lth

oug h th e C ourt w as ref erring to ret irem ent ben ef its , w e find the rea soning and holding applicable in the case at bar as the package r

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

In the present case, the termination package benef its accrued

almost entir ely before the

par ties w ere marr ied. After the

par ties w ere marr ied and M

r. W agner re ceiv ed th e pa ckage, M

s. W agner did nothing to substantially contr ibute to its preser

v ation or appr

eciation. Therefore, we cannot f ind that the trial cour t er red in finding

that only $368.00 of the $25,368.00 in the E ducator

’s C red it U nion A ccount w

as marital pr

oper ty .
M s. W agner next contends that the

trial cour t err ed in finding

that only $2,860. 00 of

Mr . W ag ner’ s N ati ons

B ank acc oun t w as m arita l prop erty . A t the time the par

ties w ere marr ied, M r. W agner had an acc

ount w ith F irst A merican w ith a balance of $13,477.00. A fter the marr iage, Mr. W

ag ner to ok $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 pa rties separate d, M r. W agner transferr ed this account to N ations B ank. W hen the account w

as opened at N ations B ank, it had a ba lance of $30,102. 45. How ev er, at the time of the div orce hearing, the account had a balance of only

$16,337. 00. T

he tr ial cour t cor rec tly deter mined that $13,477. 00 of

this account

w as M r. W agner’s separ

ate prope rty. See Tenn. C ode A nn. §

36-4-121( b) ( 2) (

A ) . In add iti on, w e note that mari talprop

ert y must be “v

alued as of a date as near as r easonably pos sible t

o the final div orc

e hear ing da te .” Tenn. C ode A nn. § 36-4-121(

b) ( 1) ( A )
. T herefore, the tr

ial cour t cor rec tly utilized the

v alue of the account as of the date-10-

of the div orce

hear ing, $16,337. 00, for pur

poses of determining the

amount of marital prop ert y in the account. T

he tr ial cour t cor rec tly deter mined that only $2,8 60.0 0 of the account w

as marital pr

oper ty and thus subject to

equitable div isi on.
IV . M edi cal Ins urance
M s . W agner next contends that the tr ial cour t er red in requir ing her to bear one-half of the ex pense of the medical insura nce for the child. W

e note initially that this C ourt has pr ev iously held that the Child S upport G uidelines req u ire t he obligor par

ent to pay f

or th e childr en’s medical insur

ance in addition to whatev er ot her child suppor t mig ht be r equi red
. T he cour ts hav e little discr etio n w ith r egard to this obligation and may only depart from the g

uideline’s req

u ire ments if they

make w ritt en, sp ecific findings concer

ning w hy it w ould be unjust or i nappr opria te to r equir e a par ticular obligor paren t to pay f or the chi ldren ’ s m

edi cal ins uranc e. C arden v. Card en

, N o. 01-A -01-9502-C H

00042, C off

ee C ounty ( Tenn. C t. A pp. filed N ov ember 22, 1995, at Nashv

ille) ( citing T enn. C omp. R . & R egs. r. 1240- 2-4 -.04 ( 1)(

a))
. H ow ev er, in the pre sent case, the par

ties enjoy joint custody

of the child and neither

par ty falls w ithin the definition of an “obligor” as set out in the g uid eli nes . See

Tenn. 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 childr

en are liv ing primar ily w ith one par

ent . . . . In situations w h ere ov ern ight time is div ided more equa

lly betw een the par

ents, the c

ourts w ill hav e tomake a caseby -case deter mination . . . . ” T en

n. C om p. R . & R egs. r. 1240-2-4-. 02( 6) . In the case at bar, w e find that the handling

of the m atter of healt h insur ance for this minor child w as w ithi n the discr

eti on o f the trial cou rt. See D ill v

. Dill , N o.02A 01-9810-G S -00272, H ard in C ounty ( Tenn. C t. A pp. file d A ugust 2, 1999, at Jackson) . In light of the foregoing , the tri al cour t did not abuse its disc

ret ion in orde ring the par

ties to equally

shar e the cost of the child’ s medical insurance.
T h e judgment of

the cour t belo w is affi r m ed and the cause r

emanded to the C hancery C ourt of R utherford County for any further pr

oceed ing s necessary. T

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

BEN H. CA NTREL L , PRESI D I N G JUDGE, M. S . CONCUR:

W I LLI AM C. KOCH, J

R . , J UDGE

PATRICI A J. COTTREL L , JUDGE