IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT NASHVILL E

_______________________________________________________ ) WILLIAM PATRICK VARLEY, JR. , ) Davidson County Circuit Court ) No. 94D-2015 Plaintiff/Appellee. ) ) VS. ) C. A. No. 01A01-9511-CV-00498 ) PAMELA DAWN VARLEY, ) ) Defend ant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Court of Davidson County at Na shville. Honorable Muriel Robinson, Judge

Robert Todd Jackson , Nashville, Tennessee Robert L. Jackson , Nashville, Tennessee Attorney s for Def

endant/A ppellant
. Mary Ar line Evans , Nashville, Tennessee Attorney for Plaitniff/Appe llee.

OPINI ON FIL

ED: REVERSED IN PART AND AFFIRM ED IN PART FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) HIGHERS, J. : (Concur s)This is a divorce action wherein the appellant, Pamela Dawn Varley (Wife), a ppeals from the final decree which awarded a divorce and sole custody of the parties’ three minor children to Appellee, William Patrick Varley , Jr. (Husband). The children are Bridget Mar ie, born December 14, 1988, William Patrick Varley , II I, born January

23, 1991 and Sadie Ellen Varley , whose date of bi rt h i s J un e 3 0, 19 92 . T he de cr ee al so fa il s t o a wa rd Wi fe al im on y.

The parties married in July 1988 and separa ted in April 1994. The mo nth fo llow ing, Husbandfiled his complaint seeking a divorce on grounds of inappropriate marital conduct or, in the event the part ies ente red into a marital d

issolution a

greem ent, irre concila ble diffe rences. Wife counterclaimed

for di vo rc e o n t he sa me gr ou nd s a nd so ug ht an aw ar d o f p er ma ne nt al im on y. Both parties sought sole custody of the children. In a subseque nt hearing on various motions filed by the parties, the trial court held Wife i n direc t contempt of court “for an incident in the hallway immediate

ly following the hearing” and orde red that she be punished by “tak[ing] a tour

of the jail facilities, immediately.”

The final hearing oc c urred on April 25-26, 1995 and adduced the following e vidence: At the time of the hearing, Husband was 42 and Wife, 30. Husband is a certified public accountant in private practic e. I

n 1994, he

earned an adjust ed gro ss income of

approxima

tely $40,000, with a net monthly income of approxim ately $2,950. His hours of e mploy are fr

om approximately 8:30
a.m. to 6:30 p.m . and he works some weekends. Wife is a high school g raduate with 3 ye ars of college. She would like to obtain ateaching certificate which will require two yea rs of additional st ud y. Wife currently wor ks at a paroch i al early education facility tea ching computer and supervising four and

five y ear old children. Wife’s mother

has been the director of the progr am for the past fifteen ye ars. Wife’s annual net earnings are approximately $7 ,0 00 based on part- time employment.

Prior

to the marriage, in 1986, Husband purchased a home at 801 Kendall Drive which became

the parties’ marital residence. From January 1989 to July 1990, Husband worked at homeout of an office in the g a rage. Husband t estified that from

July th rough O ctober 1 990, his work necessitated out-of-tow n travel
. He and a partner had purchased a trucking line in Little Rock, Arkansas. The business was purchased two day s prior to the invasion of Kuwait and experiencedfinancial difficulties when “fuelprices went through the ceiling.” The business eve ntually went bankrup t, w ith Husband’s part ner also taking a persona l bankruptcy . Husband , howeve r, is still attempting to settle s ome of the outstanding debts. Husband stated that during this time period, he was away from home during the week, returning on the weekends. The business was then moved to Gord onsville, Tennessee where Husband worked f rom November of 1990 to July 19 91
. According to Hu sb an d, th e m ov e a ll ow ed hi m “ no rm al wo rk ho ur s” an d t o c om e h om e e ve ryd ay. Wife complained that during this time, Husband was not there for her “m enta ll y, p hys ic al ly, financially.” Wife testified that problems arose fo r the couple soon afte r the birt h of their first child. During the marriage, Wife ha d no checking account or credit card and Husband was responsi ble for paying

the bills. After

Bridget’s birth, Husband gave Wife $40 per week for living expenses, increa sed to $60 w hen Will iam was born and, fina lly, to $100 whe

n the younges t child was born.

Much of the testimony center ed around Wife’s ad

mission of a

n extra-ma

rital af fair withMr. Paul Ligon. L

igon is a neighbor of the

parties, residing at 805 Kendall Drive since 1992. Ini ti al ly, Ligon became

acquainted with both par ties, watching ball games with Husband at the Varley re si de nc e a nd pl ayi ng with the Varley c hildren. Husband testified that in April 1994, he received a phone call late oneevening from his brother-in-law (husband to Mrs. Varley ’s twin sister, Pat) and was informed that “[Wife] was out with Paul Ligon.” Husband stated that he c onfronted Wife with this information on her return home and she denied any misconduc t. Accord ing to Husband, from that night forward he and Wife slept in different

rooms and their relationship further changed. He explained: “[s]he started going out just ab out ever y ni ght, be coming, . . . bellig erent, obstinate. Just wouldn’t have much to do with me.” Husbandcomplained that during this time Wife would stay out late at nig

ht, 4 or 5 nights a week. Sometimes she took thechildre n with her, keeping them out until 10 or 11 p.m.

Husbandalso complained that Wife has attempted to a li enate the affe ctions of his children from him. He stated that they are encouraged that “Dad’ s bad.” He related a September 9, 1994 incident wherein, after their appear ance in court

on a preliminary ma

tter which, as heretofore noted, resulted

in Wife’s b eing he

ld in conte

mpt, he re turned ho me to find Wife and various of herfamily

members present. Husband described their beha vior as “taun ting” a nd “obnoxious” and he requested that they leave . Wife denied this type behavior by herself or

her family membe

rs. When they refused to leave, Husband called the police. According to Husband, Bridg et bega n kicking him and “looking for applause from the re latives.” Wife’s mother described the incident by stating, “I
saw . . . William and Sadie, get . . . one of them

got [a] bat, the other got a stick and went up, try ing to hit their father. And they were say ing, leave my

mother alone.”

Husbandbelieves Wife has taught the children to lie for her. He claimed that “[Wife] tells [the children] to kick me, hit me” and she, then, cheers them on. He believes Wife promotes hostility towardhim and his family. He further proclaimed that Wife had stated in the prese nce of the children that Ligon would be a better father.

Husbandbelieves himself the better custodia l parent , declar

ing: “I ’m more ho nest. I think I have . . . better moral values. I ’m more mature. I’m more dependable. I

think that I will [give] the children a better chance at succ ess in life, whether it be college or whateve r. . . . I think I’m a better role mode

l. . . . I’m . . . more secure a nd stable.”

Husbandstated that he lived alone 11 ye ars prior to his marriage and has suffic ient skills to care for and nurture the children. Husband’s mother testified that she will assist Husband in the care of the children, if he is awar ded custody. Husband descr ibed his mo ther as “the main baby-sitter, prior to the divor ce.”

The proof sho ws that the

eldest child

is in kindergarten

at St. Ann’s and the young er children are enrolled

at the day c are facility

where Wife is employed. I f awarded custody , Husband plans to enroll

the y ounger

childre n at St. Mar

y’ s, which isin close p

roximity (less tha n a mile) t

o boththe marital residence and Husband’s office . Husband or his mother would pick up Bridget after school. After school day

care is also available at St. Mary ’s. During the summer months, Bridget would stay with her gr and mother and the young er ones, at St. Mary ’s. On cross examination, Husband stated that he had no problems with the care his y ounger children were receiving at their present day

care facility . He believes that Wife and children love each other
.Both Ligon and Wife testified that their sexual relationship beg an in July 1994. Wife was competing in a triathalon in Mississippi and Ligon accompanied her, r esulting in their sexual
en coun ter. Their last sexual encounter was in February 1995. Ligon testified that on a couple of occasions between Sept emb er and December 1994, he met with Wife on late eve nings after the children’s bedtime. Ligon also stated that during the summer of 1994, he and Wif e would sit

out in the drivewa

y ta lking unt il late at night. Ligon stated tha tin April 1994 he and Wife, her sister and another friend w ent out tog ether pl aying dar ts and drinking “a couple of beers.” L igon testified that prior thereto , he and h

is paren ts, with wh om he res ides, had socia lize d with the Varleys. L igon confirmed

that he had “read” for Bridget’s class at school. His testimony further revealed

that the Varley children frequently visit the L igon residence and, in fact, wer e there as recent as the day prior to Ligon’s testimony . Wife’s sister testified that she had observed the Varley children with Wife and Ligon “[v]isiting in the y ard, children play ing.”

Wife testifie d that her

travel to Mississippi

to compet

e in the tr iathalon occurr ed just a couple of day s after Bridget had broke n her arm while playing . Wife explained that she decided to make the trip only af

ter Husband’s assurances that Bridg et would be fine. Thechildre n sta yed withtheir father at

t his time. Wif

e stated that she d

eparte d later th an orig inally intended (due to Bridget’s condition) and after B ridget had received medica l attention.

When asked, “[d]id [Husband] ever complain to you about the time y ou were spending with [Ligon]?”, Wife replied that prior to his filing for divorce, she “confr onted him . . . about [if] it made him uncomfortable that Paul was at the house, or if he came home from work and Paul was outside the house, if therewas any discomfo rt there , to pleas e tell me. And he said no, .

. . that was not a problem.” Wife admitted that “a couple of times” during the summer of 1994 she went out at nig ht after the child ren wer e aslee p to meet L

igon. She said that s he usuall

y di d not leave the house without first putting the children to bed and having “every thing ready

for the next day.” She denied any r

omantic activity with L

igon in the presence of the children.

On cros s-exa

minat ion, W i fe denied e

ncourag ing the c hildren to disrespect their father, commenting: “I re spect [Husband] as their father. I want them to see him as their father, and have a good r

elationsh ip with him.” She admitted, however, that for Christmas 1994, she purchasedgifts for the c hildren to give Mr . Lig on, but none for the ir father . Gifts we

re also exchanged between her and the children and various other neighbors. Wife state d that she ha d enoug h mo ney to purchas e a gi ft for their fa ther and “ [i]f the children asked me to do that, I would ha ve done that.” Wife believe s the chil dren l ove their father, but described his behavior towar d them as “distant.”

Wife te st if

ie d t ha t s he wa s p ri ma ri ly responsible for the children’s care during the marri age (packing their lunches, bathing them and putting them to bed). Wife has coordinated her schedule at work to allow her to take Bridget to and fr om school. She is currently the “ roommother” for Bridget’s classroom. Wife stated that her children and her weig ht are most important

to her . If awarded custody , but not the marital residence, Wife plans to move into the downstairs portion of her parents’ home. Wife’s mother testified that she and her husband would be willing to financ ially assist Wife in obtaining an apartment.

Various other family member s and co-workers of Wife testifie d that Wife

is a loving and caring

mother. B ridget ’s teacher at St. Ann’s, Tammy Tieg e, testified that Bridget is a very good student and that both parents were present for a pa rent-teacher confere

nce.

Husband’s mother, Ellen Varley , testifiedthat Husband’s 39 yea r old brother, John, has resided with her for the past ten y ears. She admitted that John had been convicted of DUI , but deniedthat he had a drinking problem. He drinks in her home whe n the Varley

children arepresent ; however, he does not take the children place s.

After hearing the evidence, the trial c ourt granted Husband

an absolu te divorce “due to . . . Wife’s ma

rital misc onduct, in view of her admitted adul

tery and her c ontinuing

relation ship with[Lig on] throug

h th e cour se of the

separa tion.” The

court aw arded th

e marita l residen ce to Hus band “subject to all debt and tax liens” and ordered Husband to pay all debts incurred by t

h e parties “up to Apr

il 2 6, 1995.” Husband was also ordered to purchase a vehicle for Wife for an amount not to exceed $13,000 andpay for the children’s health insurance. As to the issue of child custody, the court found:

[T]hat both parties have adequa te parenting skills and that both hadprimaril y done a very

good job caring for the children. The Court finds that ther

e is a difference in the emotional and moral stability of bothparents and finds that the Wife is the volatile party and that the Husbandis very

passive. The Court

d e claresthat the Wif

e is not a cr edible witness in some regards as to her relationship with Mr . Ligon. The Court

finds tha t it is i n t he best interest of the three (3) minor children that their custody be awarded to the Husband.

Wife was awarded visitation and an extended summer visitation from June 15 to Aug ust 15. Child support w as awar

ded as fo llows:

The Court further finds that due to the present financial situation of the Wife, the Court should deviate from the Child Support Guidelines and set no child support for a period of one (1) y ear. TheCourt finds that the Wife makes Seven Thousand ($7,00 0 .00) Dollars per y ear and that she is able-bodied and h a s the earning capacity to support herself, and that she plans to go to sc hool, and that s he has the

ability to increase her income. . . . The Court further finds that for the month of June each yea

r, the Husband should pay c hild support to the Wife in the sum of Four Hundred Fifty ($450.0 0) D ollars, th at he should pay child support in the

amount of

Nine Hundred ($900.00) Dollars fo r the month of July, and child support in the amount of Four HundredFifty ($450.00) D ollars for the month of August each y ear.

The court expr

essly enjoined Wife “from attempting to alienate the affections of the minor children fr om th ei r f at he r o r h is fa mi ly” and “from having the minor children . . . around Mr. L igon or any other romantic interest in an inappropriate circumstance .”

Wife fra mes the iss ues on ap

peal as f ollows:

1. Whether

the Tria l Court er red in awarding custody

of the parties’ three children

to the Appellee/Husband, when it appears from the record

that the T

rial Cour t had made

its d ecision w ith reg ard to plac ement

of custody during

the first witness’s (the Appellee) te st im on y, and whether the Court should have disqualifieditself from the final hearing , and if not, whethe r or not, on a compa

rative f itness test, it would have been in the best interest and welfare of the minor childre n that the ir custod y be awarde d to the Ap

pellant. 2. Whether th

e Trial Court erred in not awarding the Appellant any reha

bi lita tive alimony, despite finding tha t the Appellant was eco nomically

disadvantaged in her

financial situation, as compared to the Appellee. 3. Whether the Trial Court erred in not finding the Appellee guilty of fault during the marriage , thus awarding the divorce to the parties, as opposed to the Appellee, when the adul tery andmisconduct found by the Tria l Courtoccurred after filing, and the re was no Amended

Complaint f

iled by Appellee to charge adultery

or to bri ng his ground s for d ivorc e curre nt th rough t he fin al hear ing. 4. Whether the finding of direct contempt of

Court against the Wife should

be vaca ted wher einthe alleged contempt did not occur in the direct

presenc e of the Co

urt, (it being in the hallway ), and the Appellant’s rights to notice and opportunity to be heard under direct contempt were violated.
Husband presents this additional issue:

Whether or notthe trial court erred in failing to order the Wife to pay child support to the Husband f or the care and maintenance of the thre e minor children o f the par ties.

We deal first with the issue of whet her the trial

court’sjudgmen

t holding Wife in direct contempt should be vacated by this Court. I

t is Wife’s position that the contempt, if any, wa s indirect and therefore punishable only after noticeand an op

portunity to be heard. She relies upon the express language of the trial court’s judgment, holding Wife in “direct” contempt “for an incident in the hallw ay

immediate

ly f ollowing the hear ing of th is cause . . . .” Wife contends that a finding of direct contempt must be based upon conduct actually committed in the court’s presence and since the trial court

wa s o bv io us ly n ot in th e h al lw ay, he r c on te mp t, if an y, was not subject to summary disposition.

We first distinguish between criminal and civil contempt as the trial court’s judgme nt
was not speci fic. The

former i s punitive

in nature and its pur

pose is to vindicate

the authority of

the law a nd the court as an organ of society . The latter is necessary to compel obedience with an intentionally disobey

ed court order. I

n this case, it is said

that “the contemno

r ‘car ries the k ey s to the jail in his or her own pocket.’ ” Crabtree v. Crabtree , 716 S.W.2d 923, 925 (Tenn. App. 1986).

It is clear from the record that the contempt in which Wife was he ld is “criminal.” Rule 42 T.R .A.P., as h

ere per tinent, pr ovides:
(a) Summary Disposition . A criminal contempt may be punished summarily

if the judge certifies that he or she saw or heard the c onduct co nstituting

the conte mpt and tha

t it was co mmitted inthe actual presence of the cour t. The orde

r of cont empt shall

recite the facts and shall be signed by the judge and entered of rec ord. (b) Dispositio n Upon Notic e and Hear

ing . A criminal contempt except asprovided

in subdivis ion (a) o f this r ule s hall be prosecuted on notice.

We note that

this Court isat

somewhat of a disadvantage beca use the record never specifies the conduct on which the finding of conte mpt is base d. Moreov er, and m ost im po rt an tl y, the record contains no certification that the judge saw or heard

the conduct

constituting the contempt
or that it was committed in the actual presence of the court, a s is necessary under the ru le
. Co ns eq ue nt ly, we hold the record insufficient to support the trial court’s finding of

direct c ontempt. The judgment of the trial court in this regard is, ther efore, vacated.

We next consid

er wheth er the di v o rce should have been prope rly awarde d to both parties. As noted, the trial court awarded an absolute divorce to Husband due to “Wife’s marital misconduct, in view of

her admitted adul

tery and her c ontinuing

relation ship with [Ligon] throu gh the course of

the separation.” Wife argues on appeal that Husband’s complaint for divorce alleg ed
as grounds irreconcilable differe nces and inappropriate marital conduct only and at no t

ime was the pleading amended to allege adultery , nor a motion made to amend the pleading to conform to the evidence.

It

is not disputed that Husband’s complaint omits the specific allegation of adultery and at no time w as the ple ading e ver expre ssly

amended . Both pa

rties ca ll our atte nti on to Ru le 15.02 T.R. C.P., which provide s, in part pertine nt:

When issues notraise d by the pl eadin gs are tried by express or implied co nsent of t

he parti es, they

shall be tr

eated in all respe cts as if they had bee

n raised in the pleadi n gs. Such amendment of the plead ings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any

time, even after judgment; but failure so to amend does not affect the re sult of the trial of t hese issu es.

Con trary to Husband, Wife argues that the issue was not tried by consent and that Husband’s fai lure to amend the pleading s prohibitsthe trial court’srelianc e on such

ground as a1 From review of the trial transcript, we believe Wife’s counsel at trial mistakenly thoug ht that the allegation of adultery was within the complaint as counsel on more than one occasion makes reference there

to. basis for awarding Husband the divorce. We find most reve aling the assertion, in Wife’s brief, that “Appellant’s counsel for appeal cannot understand why the couns el for the

Appellan t at the tr ial did notobjec t [to the is sue be ing t ried] .” Wife continues that she “still cannot agree that the issue or grounds found by the Trial Court we re tried by he

r express or implied consent. . . .” Indeed, the record does not r

eflect a ny o bjection by Wi fe to the

trial of t he issue a t any tim e throughout the
course of the pr oceedings. 1 We conclude that the issue of adultery wa s clearly tried by the implied consent of the parties and properly before the trial court for consideration.
Further, we findno error by the trial court in its construction or application of T.C.A. § 36-4-12 9(b), ascontended by Wife. The

statute r eads:

The court may , upon such stipulati ons or upo n proof, g rant a divorce to the party

who was le ss at fault

or, if either or both parties are entitled to a divorce, declare the parties to be divorced, rather than awarding a divorce to either pa rty alone.

Wife asserts that the trial court erred in awarding the divorce to Husband

“alone” and, in accordance withthe statute, should have found Husband guilty of fault, determined which of the parties was less at fault and then awarded the divorce ac cordingly , “giving an indication in the record a nd its [o]rder” of which party

was less at fault.

We do not find Wife’s interpretation of the foregoi ng stat ute acc urate. Alth ough the statute allows for the awarding of the divorce to the part y “ less at fault,” there is certainly no requirement

of a writte n finding by t he trial c ourt that b oth partie s were a t fault or which party

was less at fa ult. This is implicit within the trial court’s ruling awarding the divorce to Husband. Moreover, subsection (b) expressly acknowledg es the awarding of a divorce “to either party alone.” As we have determined that the issue of adultery

was proper for the trial court’s considera tion, we find no er ror in its failure to award a divorce to both parties; the facts do not prepo nderate

agains t the trial court’s findings in this regard. See Rule 13(d) T.R.A.P. This issue is without me

rit.We now turn attention to the premier issue of child custody. We are g

uided in our review by this Court’s holding in Koch v. Koch , 874 S.W.2d 5 71 (Tenn . App. 199 3), wher einit was announced:

Trial courts are vested with wide discretion in matters of child custody and the appellate court s will not interfere except upon a showing of erroneous exercise of that discretion. Mimms v. Mimms , 780 S.W.2d 739 (Tenn.App.1989). In custody cases, the welfare

and best interest of a child are of paramount concer n. A determination of a child’s b est inter

ests must turn on the particular facts of each case. Scarbrough v. Scarbrough , 75 2 S .W .2d 94 ( Ten n.A pp. 198 8). In Bah v. Bah , 668 S.W.2d 663 (Tenn.App.1983) the court said:

We adopt what we believeis a common sense a pproachto custody, one which we will ca ll th e doctrine of “comparative f i tness.” The paramount concernin child cus tody

cases isthe welf

are and best interest of the child. Mollish v. Mo llish , 494 S.W.2d 145, 151 (Ten

n.App.19 72). The

re are literally thousa nd s of thing s that must b e taken into consideration in the lives of young children, Smith v. Smith , 188 Tenn. 430, 437, 220 S.W.2d 62 7, 630 (1949) , and these factors must be reviewed on a comparative approach:

Fi tness for custodia l re sponsibilities is largely a comparative matter . No human being is deemed perfect, hence no human can be d eeme d a perf ectly fit cu st od ia n. Ne ce ss ar il y, therefore, the courts must determine which of two or more avail abl e custodians is more or less fit th an other s. Edwards v. Edwar

d s , 501 S.W.2d 283, 290-91 (Tenn.App.1973) (emphasis supplied).

Koch , 874 S.W.2d at 575.

The court in Bah identified certain factors as relevant f or considerationwhen making an award of custody

to include the age, habits, mental and emotional make-up of the child and the parties seeking custody; the educa tion and experience of

those desiring custody ; their character and propensities as evidenced by their past conduct; the financial and phy sical circumstances availab le in the home of each party wanting custody ; the availability an d extent of third party support; the associations and influences to which the child is most likely to be e xposed; and where ex ists the greater likelihood of

an environment for the child of lo ve , w ar mt h, st ab il it y, s up po rt , c on si st en cy,2 These factors are now codified a t T.C.A. § 36-6-106, effective June 12, 1995. The final judgment in this matter was entered on May 26, 1995. care and concernand physical and spiritual nur ture. Bah v. Bah , 668 S.W.2d 663, 666 (Tenn. App. 1983). 2 Finally , as these

childre n are of “tender ye ars,” w e derive

additi onal guidance from the legisl ature’ s enact ment o f T.C. A. § 36 -6-10 1(d), provi ding:

It is the legislative intent that the gender of

the party see

king custody shall not give rise to a presumption of parental fitness or cause of presumption in favor

or against the award of custody to such pa rt y; provided, that in the case of a child of tender y ears, the gender of the paren t may

be consid

ered by the cour

t as a fa

ctor in determining custody after an examination of the fitness of each party se ek in g c us to dy.

On appeal, Wife argues that the decision to award Husband custody was prompted by the trial court’s undue bias and prejudic e aga

inst her, which stemmed from the incident where she
was found in

contempt. Wife focuses upon the following comment made by the trial judge during the redi rect exa mination of

Husband, who was th

e first w itness at t

rial:
Q. Are you da

ting anyone ? A. No. Q. Are you ha

ving relations with any one? A. No. Q. Do you have a

ny potential girlf

riends waiting for you? A. No. THE COURT: And

you probably won’t, with three children to take care of, either.

Wife contends that the trial court’s“prejud g[ment]” o f the ca se along with the “ great

emphasis ” it placed on Wife’s ad

mitted adultery

accoun ts for the custody award. She asser

ts that cus tody

is properl y with her w

hen the c omparat

ive fitne ss of the p arties a nd the “te nder y ears” d octrin e ar e given adequate consideration.

We first note the fallacy

in Wife’s argument that Husband failed to rebut the “tenderye ars” presumption. As heretofore noted, a mother of a chi ld(ren ) of tender y ears is no longer

afforded such presumption. See T.C.A. § 36 -6-101( d); Bah , 668 S.W.2d at 666.

As to the matter of Wife’s adulter y, we agree that a parent’s se xual infidelity or indiscre tion does n ot, ipso fact

o , disqualify that parent

from receiving custody

of his/her children. See Mimms v. M

imms , 780 S.W.2d 739, 745 (Tenn.App.1989). When the activities of the parent involve neglect of the children, however , su ch neglect is a consideration in determining the children’s best interests. Mimms , 7 8 0 S.W.2d at 745. The record does not support a finding that Wife was neglectful of the children due to her extramarital relationship with Mr. Ligon, nor was any such finding

made by the trial court. We , howeve

r, are c ompelled

to comment that w e are unimpressedby Wife’s decision to leave her six y ear old d aughte

r with a br

oken arm (albeit in her father’s care) to begin an illicit relationship with Ligon. I n any eve nt, there is no evidence in the record to suggest that Wife and Mr. L igon acted

inappropriately towa

rd one another in the presence of these children and, therefore, we a gree that the mere factof Wife’s adulter y isan insuff

icient ba sis on which to award custody to Husband.

With respec t to the tri al court ’s commen t, we find merit in Husband’s position that Wife failed to object to the trial judge’s continued participation in the proceedings, after making the comment, until this appeal from the decision rendered adversely to her. We quote the off-cited rule that “a part y mu st complain and seek relief immediately

after the occurrence of

a prejudicial event and may not silently

preserve the event as an

‘ace in the hole’ to be used in the event of an adve rse decision.” Gotwald v. Gotwald , 768 S.W.2d 689, 694 (Tenn.App.1988). Gotwald also recognized that “[i]t is not always the best pra ctice for a Trial Judge to comment freely upon the details of the evidence heard. However, when this occurs, the correctness of the judgment rea ched is judged upon the result reached, rather than the explanatory comments of the Tr ial Judge.” Gotwald , 768 S.W.2d at 695.

In this case , the tria l court expressly

found both

parentsto possess“adequ ate parenting skills” and to have done a “very good job” in caring for the childre n. The court, however, determinedHusband more emotionally a nd morally stable. We review the trial court’s findings of fact de novo upon the record, accompanied by a presumption of correctness. Unless the evidence3 Husband’s testimony in this reg ard was not disputed by Wife.

preponderates otherwis e, we ar e to affirm, absent error of law. Rule 13(d) T.R.A.P. ; E.g., Howard G. Lewis Constr. Co. v. Lee , 830 S.W.2d 60, 69 (Tenn.App.1991).

Our decision, as noted, is governe d by ou r conce rn for the best inte

rests of t hese children, which necessarily entails a determination of which parent i s more fit

to ca re fo r them. We find a preponderance of the evidenc e to support the trial court’s finding s that both of these parents have adequate parenting skills and have taken g ood care of thechildren. We further find the record to support the trial court’s observa tion th at of the

two, Husba

nd is more

emotiona

lly a nd morally stable.

It

is clear to this Court that

both pare nts love their child

ren. What

concer ns this Court most, however, and

was apparently

a concern to thetrial cou

rt, is Wife ’s blatan

t attempt to

alienate the affections of the children from their father . W he n loved by both parents, c hildren should be taught to love and respect each pa rent equally. This reciprocation, in turn, will garner self respect and a positive

self imag e in the children. The rec ord in this c ase lend s absolute ly n o reason

as to
w hy the children should not be encouraged to re spect and love their father. We do n ot find th e record to show tha t Wife has supported such a healthy relationship between parent and child. Alth ough Wife testified otherwise, her actions speak loud and clear. The child ren have hit their father, yelled at

him (with n o appare

nt discour ageme nt from Wif

e) and f ailed to acknowl edge h

im at Christmas. Moreover, the record includes a picture of the entire family w

hich was altered

to delete Husband’s image and then returned to a frame where the children could observe in the family home. 3 The record also suggests that the childre n have been encouraged to develo p a positiv e relati onship withMr. Ligon, which is not to be impugne d except to the extent that such is detrimental to the children’s relationship with their own father. Finally , the record does not reveal any similar attempt
on Husband’ s behalf

to dissuade the children from having a loving re lationship with their mother.

We believe

it in the be st intere sts of th ese children that they maintain a loving and nurturing relationship with both parents. In light of the rec ord, we do not believe that such can be accomplishedby an awa

rd of custody to Wife at this time. I t goes without

say ing that in many , ifnotmost, cases of divorce, one may expect a certain amount of animosity between the divorcing parties. This case is no diff erent. However , when children are involved, it is imperative that the parentsset aside their hostilities where the children are conce rned, for the sake of the children. Wife has not seen fit to put her childrenahead of her own emotio ns whe

re th eir f athe r is c once rned . We urge Wife in the future to resist transferring any ill will that

she harbors toward Husband onto the children. After consideration of all relevant factors, including that it is in the ch

ildren’sbest inter

ests to maintain a

loving r elationsh ip with bothpa re nt s a nd Hu sb an d’ s e mo ti on al st ab il it y an d m at ur it y,
we hold that c

ustody was prop erly

awarde d him. We ag

ree tha t Wife is en

titled toliberal visitation with her c hildren a s has bee

n award ed by the trial court.

Wife al so ch al le ng es th e t ri al co ur t’ s f ai lu re to aw ar d h er re ha bi li ta ti ve al im on y. T.C.A. § 36-5-10 1(d) pro vides for the reha bilitati on o f an economically disadvantaged spouse, as relative to the other spouse, w hen ever possible “by the granting of an order for payme

nt of rehabilitative, temporary suppor t and maint enance .” The sta tute enum

eratescertain

factor s to consider when det ermining whether an awar d of alimon

y isappropriate. Of these factors, need and the ability to pay are most c

ritical. Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn.App.1993). Alth ough Wife’s monthly expenses of $1,275 exceed her c urren t net monthl

y income of $ 582, acc ording t o her income and expense statement, many of the expenses were incurred on behalf of the children and will now be borne by

Husband. Also, Wife ’s net mon thly income is b ased on her curr ent part-time
em pl oy. The rec ord suppo rts the tr ial cour t’s finding that Wif

e is able -bodie d with an earn ing capaci ty to support

herself and the a bility to incre ase her

income. We

believe Wife will be

able to increa se her ear

nin gs with

full-time employ . Husband

was orde

red to pa y a ll the mar

ital debt, including the home mortgage and a de bt to the IR S stemming from the bankruptcy , all of which totaled over $200,000. The marital home contained no equity at the time of the divorce. As the decision to award

alimony is within the trial court’s broad discr etion, Loyd , 860 S.W.2d at 412, we can find no error based on the rec ord befo

re us.

Fi na ll y, we address Hu sban d’s issue regar ding the trial cou rt’s fai lure to se

t child support for a period of one y

ear. The court chose to deviate from the c hild supportguidelines “due to the present financial situation of the Wife.” We hold such deviation supported by the record and find no error in this regard.It re sults that t he judg ment holding Wife in direct contempt

is hereby re

versed; the judgment in all othe

r respe cts is affirmed. Costs are taxed one-half to William Patrick Varley , Jr.
an d o ne -h al f t o P am el a D aw n V ar le y, f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)