# FILED
October 2, 199 6 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHVILLE

TERI MICHELLE PARKER, ) ) Plaintiff /Appella nt, ) Houston County Chancery

) vs. ) ) RICHARD KEN PARKER, ) Appeal No. ) 01A01-9504-CH-00138 Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT OF HOUSTON COUN TY AT ERIN, TENNESSEE

THE HONORABLE A

LL EN WALLACE, CHANCELLO R

For the Plaintiff/Appellant : For the Defendant/Appellee: Robert Clive Marks Laurence M. McMillan, Jr. Clarksville, Tennessee Clarksville, Tennessee

AFFI RMED IN P ART, REVERSED IN PA RT

HOLL Y KIRBY L

IL LARD, JUDGE

CONCUR:

W. FRANK CR

AWFORD, P. J., W.S.

DAV ID R. F ARM ER, J.1 The parties and the trial court have presented this Court with an unorthodox Statement of

the Evidence. From the sparse rec ord before us, it appears that counsel for Husba nd, in making his objections to Wife’s proposed Statement of the Evidence, presented the trial court with a “redlined” version of Wife’s proposed Statement of the Evidence . Instead of removing the editing marks and redlining from Husband’s redlined version, the trial court adopted the Husband’ s version

in its entir

ety , includin g the redlining. As such, t he Statem ent is diff icult to read and confusing. OPINION In this case , Pla intif

f-Appellant, Teri Michelle Parker (Wife), appe als the trial court’s decision to award custody of the part ies' ch ild, Dy lan Ken Pa

rker, to Defendant-Appellee, Richard Ken Parker (Husband), alleging that the custody deter

mination was based on the eff ects of racial prejudice. We affirm the trial court’s award of custody to Husband. This ap pe al is co mp li ca te d b y the fa ct that the parties filed no transcript of the trial court procee dings. Instead, they have filed a rather confusing Stateme nt of the Evidence. 1 Moreover, as discussed below, the integrity of the Statement of the Evidence is challenged by Wife on appeal. Husband and Wife were married in 1988. During the parties’ marriag e, Wife was employe d

as a licensed practical nurse. Wife beg an working for Dr. Sidberry , an African-American phy sician, at his medical clinic in March of 1993. In July of

1993, Wife filed for divorce, alleging grounds of inapprop riate marital conduct and

asking for custody

of the parties’ child. Husband counterclaimed, alleging inapprop

riate marital conduct and irreconcilable differ ences. Husband also sought custody of the parties’ child. At trial, Husband alleged that Wife was having an affair with Dr. Sidberry and that she had neglected Husband and their child to spend time wi th Dr. Sidberry. Wife denied a ny improper involvement

with Dr. Sidberry or tha t she had ne g lected her son. After Wife’s denial, Husband offered the testimony of a private inve stigator who presented a videotape indicating that Dr. Sidber ry had spent several hours at Wife’s apartment on more than one occasion. One of the witnesses at tr ia l w as a p ed ia tr ic nu rs e w ho ha d w or ke d w it h D r S id be rr y. Over objection by Wife’s counsel, the witness testified that it could be harmful for the minor child to be raisedin the context of an interracial relationship between Wife and Dr. Sidberry. At the close of the parties’ proof, th

e Chance llor foun d that Wife testifie d untruthf ully and had e

ngag ed in inapprop riate marital c onduct. The trial court granted custody

of the parties' child to Husband. The trial court also ordered that the child could not b e aroun d Dr. S idber ry, even th ough this relief had not been requested.2

Wife appealed the trial court’s ruling. There was no transcript of the trial, so thepartie s prepared a proposed Statement of Evidence. Wife alleged that the trial cou rt’s ruli ng was a

result of the judge’s racial prejudice. She soug ht to include in the Statement of Evidence a statement purporte dly

made by the trial judg e during thecourse of cross-examination of Wife’s mother. The statement included a parenthetical indicating the trial judg e’s unspoken intention: She [Wife’s mother] comes from the same school I do. She can’t help the way she feels. Society

today feels dif ferent ly than the way

we were brought up (this refe rred to the Wife who is white, seeing Dr. Sidberry , who is black. (sic) The trial court held a post-trial hearing on the Statement of Evidenc e, and there is a transcript of the post-trial proceeding. The trial judge conceded that

he had probably

made a statement similar to that sought to be includ ed by Wife, but d

enied the infere nce of r acial pr ejudice in the parenthetical proposed by Wi fe’s counsel: THE COU RT : Ne ver di d I - and I do this in a

lot of ca ses, I

just have what children said. I a- am very much c oncerned with people, I guess for lack of a better ter m, shacking up. I am notreferring to white and black. I am talking about peop le t hat live together without the benefit of mar riage in front of children. No where did I eve r mean - referring to Dr . Seaberry (sic), that he was black, no where did I mean that. What I was talking a bout in that case and I think if y ou have a transcr ipt y ou willfind out thatI was tal king ab out p eople that j ust go outher (sic ) and sha

cking u p, with ch

ildren. I am o pposed to tha t. The lawyer s who regula rly practic e in fron

t of me kno w that. I don’t think that it is good for children, and tha t is what I was ref

erring to. No where did I ever make any

co m ment - it lo oked like to me ever sin ce this tri al starte d, has be en try ing to ma ke effo rt to say that the Court has so me objection [to] interracial associations. I don’t care w hether they a

re black, white, red or what they are , I am not going to a llow children -- I don’t allow childre n, some of them

have to - to be around people

that live together without the benefit of marriag e. I am just opp osed to it. And that is what I was refe rring to. No where

did I eve r intend nor do I even feel that wa y. So, I thin

k it has be en - I

don’t know

where th is come fr om, but I probably made some kind of a statement in there about that. MR. MARKS: Do you want me to - do y ou want me to elab orate on

the infor mation tha

t I have g ot? THE COURT: No. MR. MARKS: The statement of the evidence. THE COURT: No. If y

ou are referring

to interra cial - if you are referring

to interr acial, my concernabout interr acial marriage s, interr acial ba bies, y ou can fo

rget it. I never said anything like that. I

am talking about people that live in front of children, that’s what - that is what I am

opposed to

and I will tell you in a minute, and I don’t care - the Appellate Court may think I am wrong, if they do, they can

tell me . But it is just no good for children. I remember

telling h er that sh e didn’t - something

along th at line, b ut I

was thinking one thing and eve ry body else wasthinking

something

else. Tha

t is all I am talking

about. MR. MARKS: I

am not - I guess a t this pointI am t

alking a bout simply

what the r

ecord sa ys, I am not b ringin g up any int erraci al rel ation ship s as su ch, bu t ther e is no body saying - THE COURT: Well, you have got in pa renthes is here, this refe

rs to the w ife who iswhite and who is seeing Dr. Seaberry (sic) who is black.3

MR. MARKS: Which

- the lan guag e inparenth esis was p ut in pare nthesis because y

ou did notsay that. Tha

t was the interpre

tation of t he witnes s becaus e right

before you made this statemen t, it was the

situation w

here All en Kern s was riding Gay le Scism as a witness about Dr. Seaberry

(sic) - THE CO URT: Well , its wrong. MR. MARKS: - being black. THE COURT: You can take the parenthesis out, I never referred

to that. T he Appellate Courtcan put a

ny k ind of inte rpreta tion they want to on

it, but I am telling

you , that’s n ot my interpretation. That is not the way I intended it. Counsel for Wife soug ht an evidentiary he aring, and this was denied. He then asked to make an offer of proof , and this was denied as well. The trial court then approved the Statement of Evidence proffered by

Husband, which included the redlined deletion of the statements proposed by Wife. On appeal, Wife asks this Co urt to set aside the award of custody to Husband because the trial court’s decision

was base d on the ef

fects of raci al preju dice and because it was aga inst the preponder ance of

the evidence. Wife also asserts that trial court erre d in not permitting an evidentiary

hearing or

at least an offer of proof on the disputed portion of the Statement of Evidence. Our review o f this cas e is gove rned by Tenn. R. App. P. 13(d), which provides that review of findings of fact by

the trial court shall be de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the evidence preponderates otherwise. Tenn. R. App. P. 13 (d); Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993). Where the evide nce is confl icti ng, fin dings of the trial court are entitled to great we ight on appea l becaus e the trial judg e had the

opportuni

ty to observe the manne

r and dem

eanor of the witne sses while testi fying. Galbreath v. Harris , 811 S.W.2d 88, 91 (Tenn. App. 1990), cert. denied , 502 U.S. 939, 112 S. Ct. 374, 116 L. Ed. 2d 326 (1991). On an issue which hinges on the cre dibility

of witnes ses, the trial court will not be reversed unless there is found on the rec ord clear, concrete, and convincing evidence other than the oral testimony of witnesses which contradict the trial court’s findings. Id. Wife argues that the trial court erre d in not including in the Statement of Evidence the disputed statement that Wife’s mother “comes from the same

school” as the judge, with the parenthetical indica tin g that this referred to the interrac ial relationship between Wife and Dr. Si db er ry. She also contends that the trial court erred in not permitting an evidentiary hearing or at least an offer of proof. Ge ne ra ll y, the trial court’s approval of a statement of evidenc e is conc lusive. Te nn. R. App.4

P. 24(e). In Hall v. Hall , 772 S.W.2d 4 32 (Tenn . App. 198 9), this c ourt stated: Any question as to the ac curacy of a transc ript or sta tement of the evide nce is to be submitted to and settled by the Trial Court, whose determination is conclusiveabsent extraordinary cir

cumstances. T.R.A.P. Rule 24(c) and (e). The only resour ces of a trial judg e for re solving s uch ques tions are (1) the me

mo ry o f the trial judge, (2) memoranda

of the trial judge, and (3) an evid entiary hea

ring to establish what evidenc e was pr

esented during t he trial. The third resource is seldom used, but, if used, and the evidence at such hearing is preserved on appeal, the appellate c our t might find some support therein for revision of the evidentiary record. There is no indication that any

such hearing was held, and no rec ord of the evidence adduced at such a hearing if he

ld. This co

urt has no

accessto the memo

ry of th e trial judge except the record, including the order and state ment of the evidence signed by the Trial Judge. No other memoranda of the Trial Judge or any othe r person is preserved in this record. A finding of a trial judge as to what evidenc e was presented i s a fin ding o f fact which is entitled to a presumption of correctness unless the evidence (at the hearing on this subject) preponderates otherwise. T.R.A.P. Rule 13(d). There is no evidence other wise. The rulin g of the Trial Judg e is pres umed cor rect an d is affirmed. Id. at 435. At the post-trial hearing in the present case, the tr ial judge essentially

conceded that

he had made remarks similar to those in dispute, excluding the parenthetical. In lig ht of this, we hold that the trial court erred in excluding the statement from the Statement of Evidence. However, the trial court properly e

xcluded the parenthetical portion of Wife’s proposed statement that offered Wife’s interpretation of the import of the trial judge’s remarks. A statement of the evidence should

convey

a “fair, accurate and complete account of what transpired w ith respe ct to those issues that are the bases of appeal.” Tenn. R. A pp. P. 24(c). A s such, it s hould be f actual a nd thoroug

h. Howev er, it is not proper for a statement of the evidence to include an explanation of the unspoken intention of the person speaking. Therefore, the tria l court did not err in excluding the parenthetical portion of Wife’s proposed

statemen t. It is unnecessary

to address the argument

that Wife was entitled to an evidentiary he aring or an offer of proof

. Wife asks this Court to set aside the award of custody to Husband, arguing that the decision

was based on the effects of racial prejudice and aga

inst the preponderance of the evidence . On the issue of racial prejudice, Wife notes that the trial court permitted testimony

from a pe diatric n

urse that Wife’s int

errac ial rela

tionship c ould

have a harmf ul eff ect on the ch ild an d that the tr ial j udge prohibited the child f

rom having any

contact with Dr. Sidberry , even though Husband had not requested such relief. Wife interpreted the tr ial judge’s statement, which was excluded from the Statement of Evidence, as a refere nce to the interracial relationship.5

At the post-trial hearing, the tri al j udge vi gorous ly d enied tha t race w as a factor in his decision. The trial judge explained that hehad concern about a child being exposed to an unmarr ied couple living together

and that he felt strongly

about Wife’s untruthfulness in maintaining that she was not involved with Dr. Sidberry. The propriety of

considering the effects of ra cial prejudice in a child custody decision was addressed by t he United States Supr

eme Court

in Palmore v. Sidoti , 466 U.S. 429, 104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984). In Palmore , the fat her soug ht a change of custody

because of the mother’s cohabitation with an African-America n, whom she later married. Id. at 430, 104 S. Ct. at 1880. The trial cou

rt awar ded custo dy t

o the fat her, bas ed in par

t on the “s ocial stig

ma tiz ation” that the child would suffer. Id. at 431, 104 S. Ct. at 1881. The Supreme Court noted that the trial court candidly state d that race was a factor and further observed that the result would have been different had the mother’s partner been a Caucasian. Id. at 432, 10 4 S. Ct. at 1881. The Court reversed, finding that the custody award violated the Equal Protection Clause of the United States Constitution:

The question, however, is whether the reality of priva te biase s and the possible injury they might inf

lict a re perm i ssible considerations for removal of an i nfant child fro m the custo dy o f its natur al mother . We have l

ittle diff icult y concluding that they are

not.[ ] The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law c annot, dir

ectly or indirectly , give th

em effect. Id. at 1882 (footnote omitted). In light of Palmore , it was error in this case fo

r the tria l court to p ermit expe

rt testimon

y to the effect that Wife’s involvement in an interracial relationship could harm the parties’ child. Under Palmore , consideration of such evidence by the trial court was clearly unacceptable. The trial court also clearly erred in holding that the child could have no contact with Dr . Si db er ry. There is absolutely no support in the record for such relief, even if Husband had requested it. The trial court is reversed on this issue. Agains tthe background of the trial court’s ada mant statements that race was not an issue, as well the err

ors noted above, w e must con sider the award o f custody

to Husb and. The app licable Te nnessee statu te requires that custody be determined "as the welfare and interest of the child or children may demand." Tenn. Code Ann. § 36-6-101(a) (1991 & Supp. 1995). In Bah v. Bah , 668 S.W.2d 663 (Tenn. App. 1983), this Court adopted a common sense approach to deter mining6

cu st od y, termed the do ctrine of "comparative fitness." I d. at 666. Bah recognized that there are literally thousands of factors to be considered in determining the c ustody arrangement that is in the best interest of young c hildren. Id. (citing Smith v. Smith, 188 Tenn. 430, 437, 220 S.W.2d 627, 630 (1949)). The Court determined that the best way to review the multitude of fact ors wa s thro ugh

a comparative appr oach. Id . The Cour t quoted w ith appro val from Edwards v. Edwards , 501 S.W.2d 283 ( Tenn. Ap

p. 1973), stating : Fitness for cust

odial re sponsibilit

ies is largely a compar

ative matter . No human being is deemed perfect, henc e no human can be deeme d a perf ectly fit custodia n. Nece ssarily , theref

ore, the courts mu st

determine which of two or more availab le custod

ians is mor

e or lessfit than ot

hers. Bah , 66 8 S.W.2d a t 666 (quot ing Edwards , 501 S.W.2d at 290-91) (emphasis added by the Bah court). In the instan

t case, t he reco rd clea rly supports the trial court’s finding that Wife was involved in an extrama

rital af fair with Dr. Sidberry. Generally , sexual infidelity or indiscretion, by itself, does

no t d is qu al if

y a parent from being awarded custody

. Sutherland v . Sutherland , 831 S.W.2d 283, 286 (Tenn. App. 19 91). “However, when the parent' s sexual activities or indiscretion involve neglect of t he minor child, such neglect may be considered in relation to the best interest of the minor child.” Id . (cit ing Mimms v. M imms , 780 S.W.2d 739, 745 (Tenn. App. 1989)). The re is evidence in the record from which the trial cour t could conclude that Wife’s extramarital relation ship caused h er to neglect the c

hild. Although this is denied by Wife, when a n issue hinges o n the cre dibility of witnes ses, the trial

court will not be re

versed u nless the re is found in the record clear, concre te, and convincing evidence other than the oral testimony of witnesses tha t contrad icts the trial

court’s finding s. Galbreath v. Harris , 811 S.W.2d 88, 91 (Tenn. App. 1990), cert. denied , 502 U.S. 939, 112 S. Ct. 374, 116 L. Ed. 2d 326 ( 1991). Nothing in t he reco rd suppor ts

a finding that either parent is unfit. Under the compara tive fitness doctrine, however, a parent need only be relatively mor

e “fit” than the other in order to be awar ded custody. Even conside ring the

errors above, the pr eponde rance of the evidence weig hs in favor of the trial court’s determination that custody by t he Husba nd was in th

e best i nterest o f the chi ld. There fore, the trial c ourt is affirmed on this issue. The trial cou

rt’s awa rd of cus tody

to Husban d is affir

med. The prohibitio n again st

the child coming in contact with Dr. Sidberry is reversed. Costs on appeal are taxed equally to Appellant and7

Appellee, for which execution may issue if necessary

.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P. J., W.S.

DAVID R. FARMER, J.