1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court , with

concurrence of all judges pa rticipating in the case, may affirm, reverse or modify the actions of the trial court by memora ndum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINI ON,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 1 

# FILED
June 2, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) IVA DELL BRO WN McALEX ANDER , ) C. A. No. 02A01-9611-CH-00289

) Madison County Chancery Court No. 50287 Plaintiff

/Appella nt. ) ) HON. JOE C. MORRIS, CHANCELL OR VS. ) ) AFFI RMED AND REMANDED KENNETH JA CKSON ) McALEXA NDER , ) ) OPINI ON FIL

ED: Defendant/Appellee. ) ) Jesse H. F ord, III , FORD & MAYO, Jackson, Ten

nessee, for Def

endant/A ppellant
. Mary Jo M

iddlebrooks , MIDDL

EBROOKS & GRAY, P.A., Jackson, Tennessee, for Plaintiff/Appellee.

______________________________________________________________________________ MEMORAN

DUM OP

INION 1

______________________________________________________________________________ FARMER, J.
Following the trial

court’s order g

ranting the part ies an ab solute

divorce, distributing the parties’ prop erty , award in g custody of

the parties’ four minor children to I va Dell Brown McAlexand

er (the Mother) , and ord

ering K enneth Jac

kson McAl exander (

the Fath er) topay child support to the Mother pursuant

to the Ch ild Support Guidelines, Father appealed. The sole issue presented by t he Father is whether the trial court er red in granting custody

of the parties’ four childre n to the Mot

her. We a

ffirm.

The Father’s primary

objection to the Mother being awarded custody of the children is that the Mother and children currently reside in the home

of Jonathan McAlexander, the Father’s 36-year-ol d son by a previous mar riage and, hence, the Mother’s stepson. The Mother left the Father2

in January 1995 and, taking the children with her, moved in with the stepson. I n March 1995, the Mother filed this complaint for divorce.

Based on his objection to the Mother’s living arrangements, the Father filed a motion for temporary c

ustody of the children pe

nding the divorce. After conducting a hearing on the matter, the trial court entered an order which (1) permitted the Mother to retain temporary physical custody of the parties’ children; (2) ordered the Father to pay temporar

y child support to the Mother; and (3) appointed a guardian ad litem to represe nt the interests of the children.

At the fina l div orce hearing in April 1996, the parties presented evidence on the custody issue and the Guar dian Ad L item pres ented he

r repor t. Alth ough the Mother previously ha d described he r l iv in g a rr an ge me nt as te mp or ar y, she acknowledged at trial that she and the children still were residing with the stepson. Although the trial court expressed concern about the children’s environm ent, in its subsequent order the court awarded the Mother sole c ustody of the parties’ minor children and granted the Husband “r easonable and liberal visitation.”

On appeal, the Fath

er objects to the Mother’ s curre nt living arrang ements fo

r herself and the child

ren on se veral g rounds, all related to the stepson. The Fat her desc ribes the relation ship between the Mother and the stepson as “incestuous.” The Fat her also contendsthat the r

elationsh ip between the Father

and the s tepso n, whi ch at b est co uld b e descr ibed a s acri moni ous, i s havi ng a negativeimpact on the Father’s relationship with the children. In this regar d, the Father

contends that he is being de prived of a meaningful relationship with his children beca use the stepson has replac ed him as th

e fathe r figur e in the children’s lives. Additionally, the Father suggests that the stepson is a

negative influence

on the chi ldren be cause of the attitu des expre ssed by the steps on in a writte n respons e to the Gu ardian Ad Lite m’s repo rt.

Our review of the trial court’s decision to award custody to the Mother is governed by Rule 13(d) T.R.A.P. Hass v. Knighton , 676 S.W.2d 554, 555 (Ten n. 1984); Ruyle v. Ruy le , 928 S.W.2d 439, 441 (Ten

n. App. 19 96); Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. App. 1993). Th is standardrequires us, in conducting a de novo review o f the re cord, to presume that the trial court’s3

findi ngs of fact are correct, unl ess the e vid ence in the record prepondera tes otherwise. Id . In applying this standard of review, we recognize that “[t]rial courts are vested with wide discreti on in matters of c hild custo dy and the appel late c ourts will not i nterf ere ex cept u pon a s howin g o f
erroneous exercise of

that discretion.” Koch , 874 S.W.2d at 575. Our paramount concern, and that of the trial court, is the welfare and best interests of the parties’ minor children. Ruyle , 928 S.W.2d at 441; Koch , 874 S.W.2d at 575. This determination necessarily turns on the particular facts of each
case. Koch , 874 S.W.2d at 575.

After carefully reviewing the record in this case, we conclude that

the evidence does notprepond

erate a gainst t he trial c ourt’s de cision to a ward cu stody

of the pa rties’ min or childr

en to the Mother. Contrary to the Father’s contention, the evidence fails to support theconclusion that the Mother’s curren

t living a

rrang ement wit

h the step son has ne gati ve ly impacted the F ather’s relation ship withthe children. First, we note that the record conta ins virtually no evidence

to support the Father ’s conte

ntion that t

he Mother ’s relat

ionshipwith the st

epson is in any way

incestuous. At the hearing

below, the Mother

consiste ntly denied ha ving an y ty pe of sexua

l or roman tic rela tionship withthe stepson. The Mother testified that the stepson has a five-bedroom house. The Mother and the parties’ three daughters sleep in two bedrooms on one side of the house, and the stepson and the parties’ 14-year

-old son sleep in two bedrooms on the other side. The middle par t of th e house consists of a common living area. One of the Mother’ s friends testified, without objection, that she believed the Mother was telling t he truth a bout her r elationsh ip with the

stepson. Si gnific antly , in orally presenting her

report at trial, the Guardian Ad L item, who had worked

on the case for a period of ten months, stated that in her conversations with the Father the Fathe r n ever ind

icate d that he believedthere was any

typ e of illic it

relation ship between the Mot her and t he stepso n. Fathe

r points to no evidence, other than the fact that the Mother and the stepson live in the same house, to support his assertion that they are involved in an incestuous relationship.

We also co nclude th at the evidence f ails to support the Father’s contention that the stepson has neg atively

influenc ed the ch

ildren or their re lationsh ip with th e Father. At trial, the Mother testified that the stepson’s relationship with the children is as a big brother, that he loves the children and is ver

y c lose to the

m, that he has not tried to alienate the children from the Father , and4

that his relationship with the Father has not adversely affected the children. The Guar dian Ad Litem’s report c orrobor

ated th e Mother’s testimony. I n presenting her report, the Guar dian Ad Litem stated that the stepson is very close to the children, that the children love their big brother, a nd that the Guardian has never perceive d anything othe r than a big-brother

relationship between the stepson and the child

ren. The Guardia n Ad Lit em also stated that she saw no evidence that the stepson’s atti tude toward th

e Fathe r has af fected the child ren or th at the ste

pson is try

ing to inf luence t h e children against the Father. The childre n’s only neg ative comments about the Father related to the Father’s behavior

when he i s wit

h the children. The Guardian opined that the temporary living arrangement

with the stepson has actually been good for the children in that it has provided needed stability and security, a

lthough she believes that at some point

the Mothe

r should e stablish

a home for herself and the childre n. M oreover , the Fa ther’s o wn testimo ny f

ailed to r eveal th at his relat ionship with the stepson has negatively affected the children. Although the Father i s no t welcome in the stepson’s house, there is no evidence that this restriction has interfered with the Father’s exercise

of visitat

ion righ ts wit h the childre n. In

fact, the only

visitation

problems recounted by the Fa ther were due to the

Mother ’s actions and had no relation to the stepson. The Father has spoken to t he stepson only once since the Mother and the children moved into the stepson’s home. Finally, althoug h we agree that the stepson’s written re sponse to the Guardian Ad Litem’s report is somewhat unusual, thereis no evidence that the attitudes expressed therein have been co mmunicate d to the ch ildren or have ha d any negati ve impac t on them.

We acknowledge that the post-separa tion living arrangements chosen by the Mother for herself and the children is unique. Nevertheless, based on the evidence presented in this case,
as well as the report of theGuardian Ad Litem, we a ffirm the trial court’s decision to award custody of the parties’ minor children to the Mother.

The trial court’s judgment is affirmed. Costs of this appeal are taxed to Appellan

t, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

____________________________________

FAR MER , J.5

______________________________ HIG HERS, J. (Conc

urs)

______________________________ LI LL ARD, J. (Conc

urs)