# FILED Feb. 12, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT JACK SON

WILLIAM THOMAS WINCHESTER, ) ) Plaintiff /Appella nt, ) Chester Equity No. 8684

) vs. ) ) GLENDA RACHELLE WINCHESTER, ) Appeal No. 02A01-9604-CH-00092 ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT OF CHESTER COUNTY

AT HENDERSON, TENNESSEE

THE HONORABLE JOE C. MORRI S, CHANCELLOR
For the Plaintiff/Appellant : For the Defendant/Appellee : Tim Edwar

ds Michael L. Weinman Memphis, Tennessee Henderson, Tennessee

VACATED A ND REMAN DED

HOL LY KI RBY LI LL ARD , J.

CONCUR:
W. FRANK CR

AWFORD, P. J., W.S.
DAV ID R. F ARM ER, J.OPINION

This is a child custody

case. The trial court awarded Appellant William Thomas Winchester (“Husband”) and Appellee Glenda Rachelle Winchester (“Wife”) joint custody of the mino

r child of the marriage, which both parties appe al. We vacate the trial court’s award of joint custody and remandthe case to the trial court to conduct further finding s of fact concerning each party ’s comparative fitness and to award custody to either Husband or Wife. Husband and Wife h ad been married for appr oximately tw o a nd a half months when they separated. At

the time of their separation, Wife was pregnant with the pa rties’ unborn child, Maggie. Magg ie was bor n o n October 24, 1994, a little over four months after Husband filed for divorce. Each party soug

ht sole custody of Mag gie. Wife retained custody pending the divorce, and Husband
was granted visitatio n privileg es. To aid in the cus t od y determination, the trial court appointed a guardian ad litem for Maggie. The c ourt a lso order ed Dr. El ias Bond (“Dr. B ond”) to c onduct a psychologic al evaluation of Wife, but not of Husband. Approximat

ely three weeks before trial, Wife’s counsel withdrew. The trial court gave Wife fifteen day s to retain new cou nsel, but s he faile d to do soand appeared pro se at trial. At the trial, Husband testifie d at leng th in resp onse to hisattorne y’ s question s, with no o

bje ctions or crossexa mination by Wife. Husband prese nted several witnesses, including a psy chologist, Dr . Lyn n Zager, who testified that she had examined Husband and found that he would be a fit parent. Wife testified briefly in response to questions fromthe trial court and was cross-examined by Husband’s at to rn ey. When the trial court asked Wife i f she had any th ing further, she responded, “My mom witnessed some things that she hasn’t told about ye t.” The tria

l court a pparent ly d id not understand this to be a request tha

t Wife’s mo ther be p ermitt ed to testi fy, so no witnesses testified on Wife’s behalf. In he r t es ti mo ny, Wife alleged one insta nce of ph ysi cal abus e during

their sho rt marri age, in which Husband purportedly pulled her, pregnant with Magg

ie and holding her child from a previous marri age in her arms, by he r feet down t

he stairs. Wife also c laim ed tha t Husb and is contr olli ng, hot-tempered, and mentally abusive a nd that he ordered her out of their house on sever al occasio ns. The reco rd also includes Wife’s accusation that Husband stalked her and indica tes that she called the police to her residence, complaining that he ke pt driving by her

house.2

In his testimony, Husband claimed that Wife is a poor c aretaker of the child and has in the past tried to block his access to Maggie. He alleged that she

had contributed to Maggie’s asthma and b ronchial p roblems b y sm oking a round he r and by allowing others to

smoke ar

ound her , in contravention of doctors’ recommendations and the trial court’s orders. He allege d that Wife had stayed overnight with her

curren t boyfriend in

Magg ie’s pre sence, o nce ag ainin violation of court order. He admitt

ed to having conducted surveillance on Wife and having hired a private investigator to gather incriminatingevidence against her. He note d that Wife has been married three times, that she has had childrenby three diff erent men, and that Wife’s parents have custody of her oldest child. He allege d that Wife

has a hist

ory of preve nting the father s of her c

hildren f rom havin g acc ess to them. The trial court also considered the psy chological evaluation of

Wife by Dr. Bond. I

n his report to the trial court, Dr. Bond indicated that Wife “could very well have a person ality

disorder” butfound tha

t Wife was fit to ret

ain cust ody. D r. Bond did not evaluate Husband, but had discussions with Mr. Winchester, and stated that he saw “no reason . . . that present custody status of [the parties’] daughter be changed.” The trial cou

rt also co nsidere d the rep ort of the Guardia n Ad L item. After in

terview ing both parties and Wife’s mother, as well as reviewing Dr. Bond’s evaluation, numerous documents, and a videotape of Maggie a

nd Husband, the Guardian Ad Litem state d: The Guardia

n Ad L item does not feel th at a true joint custo dy s ituation c ould work with these parties due to the animos ity a nd ill will be

tween the m and thei

r families
. Further, the parties live quite a distanc e from e ach othe r and as t he child grows older, this would be an impossible situation. The Guardian Ad Litem rec ommended joint custody in decisions reg arding Maggie. However, the Guardian Ad Litem recommended that Wife have principal custody “with the understanding that her mother, Frances Coleman, will monitor her actions and report an y problems . . . .” She recommended that Husband be given libera l visitation. After considering all of the evi dence , the trial court awarded the parties joint custody of Maggie, with eachparent having custody of Maggie on alternating

weeks. Husband a

ppealed to this Co ur t, as ki ng fo r s ol e c us to dy. Wi fe al so se ek s s ol e c us to dy.3

On appeal, Husband a sserts t hat the trial court erred and abused its discretion in awa rding joint custody of Mag gie to Wife and him. He maintains that it is in Maggie’s best interest that he be awarded sole custody

with liberal visitation rights being granted to Wife. Wife agrees that it was error for the trial court to award joint custody to the parties but contends that the tr

ial cour t should have given her sole custody . Wife also claims that her due processrights w ere viol ated at th e hearing of thi s cause, at which she appeared pro se . If she is not givensole custody by

this Court, in the alternative, Wife asks this Court to remand t he case back to the trial court fo r furthe r finding s of fac t. In child custody case s, appellate review is de novo upon the record with a presumption of the
correctness of the tri a l court’s fin dings of fact. Te nn. R. App. P. 13(d); Hass v. Knighton , 676 S.W.2d 554, 555 ( Tenn. 198 4); Dalton v. Dalton , 858 S. W.2d 324, 327 (Tenn. App. 1993). Of course, th e c hild’s best interest is the primary c onsideration in custody case s. Bah v. Bah , 668 S.W.2d 663, 665 (Tenn. App. 1983). By statute, t here is “ neither

a prefe rence n or a pre sumption fo r or ag ainst

joint legal cu st od y, joint physical custody

or sole custody . . . .” Te nn. Code Ann. § 36- 6-101(a)(2) (1996). Neverth eless, the practical problems of joint custody have been repeatedly

acknowled ge d b y this Court, particularly

“where there is hostility

and ill will between the parents.” Jones v. Jones , No. 01-A-01-9601-CV00038, 1996 WL 512030, at *4 (Tenn. App. Sept
. 11, 1996) ; see Malone v. Malone , 842 S.W.2d 621, 623 (Tenn. App. 1992); Dodd v. Dodd , 737 S.W.2d 286, 289-90 (Tenn. App. 1987). Joint custo dy arrangem ents “ depen d for t heir s uccess on a hi gh degree of coopera tion betweenthe parents, soit is perhaps not surprising that they should frequently fa

il.” Jones , 1996 WL 512030, at *5. Both

parties contend that joint custody is unworka ble in this case. The Guardian Ad Litem concluded that jo int custody wou ld not work with these

parties. Indeed, the r

ecord is replete with evide

nce of th e animosit

y that eachparty bea

rs toward the other. We agree that joint custody in this case is not feasible, a nd we therefore vacate the tr ial court’s order. Both parties seek sole custody of Maggie. The primary concern in d etermining custo dy i s the best interest of the ch ild. Tenn. Code Ann. § 36-6-10 6 (1996); Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. App. 1993). A comparative fitness analy sis is used to decide which parent should be awarded custody
. Ruyle v. Ruy le , 928 S.W.2d 439, 442 (Tenn. App. 1996).4

However, our revi ew of thisissue is limi ted to the record before us. Tenn. R. App. P. 13(d). While the record contains some of the information necessary

for a comparative fitness analy sis, the record is insufficient for this Court to determine which parent should be awarded custody . For example, Husband testified that he was cap able of c aring f or Magg ie on a da ily basis and that he had a close relationship with various female relatives. Howeve r, at trial he also testified that he was a full-time studentand was also employed, and he gave no indication of his plans for Maggie’s ca re while he was at work or school or the amount of time he would be able to spend with her. Moreover, we are mindful that “the trial judge, not the ap

pellate court, ha s the oppor

tunity to observe the witnesses.” Bah , 668 S.W.2d at 665. In evaluating the maturity and emotional stability of the mother and fa ther, the trial court is in a far superior position to a ssess th ese qual ities than this court because of the ability to view the witnesses and assess their demeanor, mannerisms and other visual and audio characteristic s not appa

rent in the

transcr ipt. Id. at 667. Therefore, we remand this case to the trial court for further findings of fact regarding e ach par ent’s capabil

ities for caring for Mag gie on a

daily basis and

any other findings pe

rtin ent to a determination of

cu st od y. The court shall then conduct an analy sis of the comparative fitness of each parent, taking into account the factors listed in Tenn. Code Ann. §§ 36-6-101(d) and 36-6-106 and any other r

elevant factors. See Bah , 668 S.W.2d at 666. For example, if either Husband or Wife has not fully coopera

ted with the custody or visitation arra ngement or has acted in such a manner as to damage Maggie’s relation ship with the other p arent, t his should be taken into account. See Jones , 1996 WL 512030, at *4-5. After conducting the compara tive fitness analysis, the trial cour tshould then award custody

accordingly , with reasonable visitation for the noncustodial parent. Wife a lso conten ds that he r due pro cess rig

hts were violated . In li ght of ou

r decisio n to remandthe matter to the trial court, it is unnecessary for us to address this issue. The concerns raised by Wife, suc h as the tr

ial cour t not permitting her mother to testify and her purportedly

being precluded from cro ss-ex amining

Husband o

r most of hi s witnesse s or from t estify ing exce pt in response to questions from the trial court or Husband’s attorney , should be rectified on remand.5

The order of

the trial court aw arding

Appellan t and App ellee joint custody of their minor child is vacated. This cause is remanded back to the trial court for further findings of fact and for disposition consistent with this Opini on. T he costs o f this app eal are adjudg ed equa

lly a gainst Ap pe ll an t a nd Ap pe ll ee , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

HOLLY KIRBY LILLARD, J. CONCUR:
W. FRAN K CRAWF ORD, P. J., W.S.
DAVID R. FARMER, J.