# FILED

October 23, 19 97
Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON PAM ELA G. M ASSEN GILL , ) ) Plaintiff/ Appellee, ) ) Chester Juv enile No. 93-52 vs. ) ) STANLEY KEITH STEWART, ) Appeal No. 02A01- 9612-JV-00309 ) Defendant/Appellant. )

APPEA L F ROM THE JU VENI LE CO URT OF CHESTER

COUNTY AT HENDER SON, TENNESS EE

THE HONORABLE HOWARD BAI LEY, J UDGE

For thePlainti ff/

Appellee: For the Defendant/Appellant: John Van Den Bosch , Jr. Lloy d R. Tatum Jackson, Tennes see Henderson, Tennessee

AFFIRMED

HOLLY KIRBY LI

LLARD, J.

CONCURS: W. FRANK CRAWFORD, P.J. , W.S. DAVID R. FARMER, J.OPIN ION

This is a child c

ustody case be tween pa rents who have never been married to ea ch other. The trial court awarded custody to the mother, with liberal visitation to the father. We affirm. The Appellee , Pamela G. Masseng ill (“Massengill”) an d the Appellant, Stanley Ke ith Stewart (“Stewart”) became r o mantically involved around 1990. Stewa rt moved into Massengill’s residence in 1992 after Massengill gave birth to a c hild fathered by

Stewart. Two ye ars later Ma ssengil l gave birth to another

child fa thered b y Ste

wart. Soo n therea

fter the couple’ s relatio nship terminated and Stewart moved out of the home. Stewart moved into his parents’ h ome to live wit h them. Massengill remained in her home with the parties’ two sons. The older child was legitima ted in 1993 and it

was established that Stewart was the father. An order e stablish

ing Stewar t a s t he fa th er of th e p ar ti es ’ yo un ge r c hi ld wa s e nt er ed in Fe br ua ry, 1996. The parties entered into a separation agreement in 1995. The agreement provided for joint custody of the two children and obligated Stewart to pay child support. The record does not in dicate that this agr eement w as court

approve d. Subsequ ently , Stewar t took the o ldest chil d to his parents ’ home and refused to return him to Massengill. Massengill then filed a petition for contempt, for violation o f the parties ’ separation agreement, stating that Stewart had taken the oldest child and alleging that she was not allowed to visit or talk with him. Stewart responded by filing a petition for custody of both children. At the trial in this cause, Stewart claimed that the best int erest of the children would be served by a warding him cu st od y. Stewart accused Massengill of being an habitual drug user, who regula rly smoked crack cocaine

and marijuana in the presence of the childre n. Stewart stated that Massengill had permitted her older son Antonio to baby sit the parties’ two childre n, and tha t Antonio had been incarcerated for possession of crack cocaine. Stew art also cla imed that M asseng ill did not ma intain he r home in a

habitabl e condit

ion
. Stewart contendsthat on one

occasio n in November Massengill’s utilities were cut off and he r home
was extremely cold. Stewart alleg es that this problem was not cured for several day s. Stewart noted that Massengill does not own basic amenities, such as a telephone or a n automobile. In contrast, Stewart argued his parents’ home has a swimming p ool, a fishing pond, and a spacious back ya

rd, and would

be a bett er envir onment fo

r the chi ldren. Ste

wart’s p arents d

esire to help rear the children.2

Mas sengill

disputes St

ewart’ s alleg ations tha

t she is a d

rug use r. Masse ngill tes tif

ied tha t she had not smoked marijuana in over a y ear and hadnot smoked crack cocaine since underg oing rehabilitation in 1988 or 1989. Massengill and other witnesses testified that Stewart abused a lcohol. Massengill conceded that

she had let Antonio babysit for a per iod of time when her regular baby sitter
was unable to work. She maintained that he was fit to do so. She denied that her utilities had been turned off. Massengill noted that her living cond iti ons were the same as they were during the ap prox imately

three ye ars in which Stewart lived with her. She also observed that Stewart’s speculative testimony was the only evidence of her allege d drug use. Without explaining its reasoning, the trial court grante d custody of the ch ildren to Masseng ill and granted Stewa rt “rea sonab le and liber al vis itat ion” p rivil ege s. The trial court also ordered Massengill to receive counseling from Home Ties a nd the Carl Perkins Ch ild Abuse Prevention Center. F rom this or

der, Stew art now a

ppeals. On appeal, Stewart a sserts tha t the tr ial court er

red in g ranting custody of the ch ildren to Massengill. Stewart a

rgues t hat the tr ial cour t issued a contrad ictory ruling, implicitly

findi ng Massengill to be unfit by

ordering her to seek counseling, but nevertheless aw arding custody to her. Our review o f the tria

l court’sfinding s of fac t is de novo on th e re co rd , a cc om pa ni ed by a presumption of correctness of the trial court’s factual findings. Tenn. R. Civ. P. 13(d). In matters
re la ti ng to ch il d c us to dy, Trial cou rts are v ested wit h wide disc

retion . . . and the a

ppellate courts wi ll n o t interfere except upo n a showin g of er roneous e xerci se o f th at d is cre ti on. . . . In custody cases, the welfare and best interests of a child ar e of paramount concern. A determination of a chil d's bes t interes ts must turn on the particular facts of each case. Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. App. 1993) (citations omitted). The determination of which parent is more suitable is termed the “doct rine of com parative fitness.” Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. App. 1983). Many of the pe rtinent f acts in this case are in sharp dispute, such as whether Massengill uses illegal substanc es and wh ether she provide s a suitab le home for the parties’ children. These issues turn on the credibility of the pa rties and the witnesses. The trial court saw and heard the testimony of both parents, as well as other witnesses. Where issues of cre dibility are involved, the3

determination of the trial court must be accorded “considerable deference.” Tenn-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423, 425-26 (Tenn. 1989). Moreover, it is undispu

ted that Ste

wart obta ined posse ss ion of the parties’ oldest son and refused to permit his return to Massen gill for a conside

rable tim e. Where

one pare nt seeks t o aliena te a child fr om the other parent and actively interferes with the child having a loving relation ship with the ot her parent , this is a factor that may be taken into account in determining
cu st od y. See Varley v. V

arley , 934 S.W.2d 659 (Tenn. App. 1996). It is in the best interest of the children to maintain aloving r elationsh ip with both parents, and the evidence justifies the conclusion that this is best accomplished by awa rding custody

of the children to Massengill. Stewart notes tha t Masseng

ill was or dered to undergo counseling for the pre vention of

child abuse. The only evidenc e in the record regarding potential

abuse re lated to Ma ssengil l’s son Ant onio being permitted to babysit the parties’ sons. While Antonio’s incar ceratio n is cause for concern, there was no evidence of inappropriate beha vior or abuse of the children. The trial court’s decision appears to strike the appropriate balance
. In sum, many

of the issu es turn on

the trial court’s assess ment of the credibility of the witnesse s, a deter

mination w

hich is accorded considerable defe rence by this Court. It is undisputed that Stewart took possession of one of the

parties’ sons and refused to return him to Massengill, and this fact mitigates in favor of an aw ard of c usto dy to Mass engill . The o rder t hat Ma ssengi ll un dergo counseling appears to be a preventative measure , as the record contained no evidence of abuse of the children. Therefore, from our review of the record as a whole, the evidence does not prepond erate against the trial court’s award of c ustody to Massengill. The decision of the trial court is affirmed. Costs are taxed to the Appellant, for which
ex ec ut io n m ay i ss ue if

ne ce ss ar y. HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK C RAWFORD , P.J., W.S .
DAVID R. FARMER, J.