# FILED
March 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk CECIL WAYNE CRA FT, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9609- CH-00417 VS. ) ) Humphreys Chancery ) No. 22-221 PATRIC IA CAR OL CRA FT, ) ) Defendant/Appellee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F HUM PHREY S COU NTY AT WAVERLY, TENNESSEE THE HONORABLE ALLEN W. W ALLACE, JUDG E

FOR AP PELLAN T: FOR APPELLEE: A. RUSSELL WILLIS Not represent ed W ILLIS & KNIGHT 215 Second Avenue North Nashvil le, Tennessee 37201

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE

CONCUR: TODD, P.J., M .S. KOCH, J.- 2 - 

## O P I N I O N

The trial cour

t granted both parties a div orce, granted custody of the two children to the wife, set child support at $1,50 0 per month, and divided the m ari t al prop erty. On appeal, the husband chall enges the award of custody, the amount of child support, and the requirement that the husband pay the wife $50, 000 as he r share of the equity

in the busines s that was awar ded to h im. We aff irm the tri al court.
I. Child Custody

The parties were married i n 1973. They both worked duri ng their first eightyears of marriage. Mr. Craft beg an as a constru ction wor ker, butwas eventually able to establish a sawmil l and pallet manufacturing bus iness on land t hat had been owned by his family. Craft W oodworks pro spered , and the parties built a home in McEwen. They subseq uently deci ded that they w anted children, an d thatit woul d be feasible for Mrs. Craft to quit her job to r aise the chil dren full-time. They produced a boy and a girl, Derrick Wayne Craft, born on August 1, 1982, and Ashley Lauren Craft, born on November 6, 1985.

In 1988 a violent

argument over money led to a separation. The parties reconciled, but a g rowi ng coo lnessbetw een them imp elled the h usband to file for divorce in 1994. Both par ties asked for c ustody

of the children. At trial, ea ch party testified as to the shortcomings of the other. The judge apparent ly felt they both were good parents, but i n the final decree of divorce, fil ed April 18, 1 996, he award ed custody of the children to the wife, with reasonable v isitation g ranted to the husba nd.- 3 - In the ap pellant’s brief, Mr. Craft argues that the trial court erred in granting custody of both children to th e wife . He cl aims that she is less f it to have custody because she dri nks at least t hree or four beer s every night w hile watc hing televisi on, and because she g oes to a nearby restau rant ever

y morning for coffee, often leaving the children alone at home.

He claims that he is more fit because he has established a warm bond with his fourteen year old son Derrick, and becau se Derrick chooses to spend a lot of time with his fa ther, in cluding w orking wit h him at the sawmill over the summer. Althou gh Mr. Craft i s here seekin g custody of both chi ldren, it is clear from the pleadings bel ow that he i s chiefly i nterested in establishing custody of hi s son.

Mrs. Craft failed to file a ti mely brief in respo nse t o theappe lla nt’s bri ef, and failed to timely re spond to thi s court’s s ubsequent show cause order a s to why this ap peal should not besubmitted for a dec ision on the record and on t h e appellan t’s brief alone, in accordance wi th Tenn. R. App. P. 29(c). Becau se of her failure to respond, we ordered that the appe al be limited to a Rule 29(c) review. Mrs. Craft subsequently

filed a motion for

an extensio n of time in whi ch to file her br ief, and we denied the moti on. We will accordingly examine the record to determine if Mr. Craf t’s as sert ions enti tle h im to a cha nge o f cu stod y.

We must first stat e t hat a decisio n of the trial court in reg ard to a question of child custody is presumed on appeal to be correct unless the evidence preponderatesotherwis e. Dalton v. D alton , 858 S.W.2d 324 (Tenn. App. 1993). The param ount consi deration for the t rial court must alway

s be the best in terest of the child or children. Bevins v. Bev ins , 53 T e nn. App. 403, 383 S. W .2d 780 (1964). Malone v. Ma lone, 842 S.W .2d 621 (Tenn. App . 1992).- 4 - Custody determinationsare frequentl y a matter of comparative fitness, and in such cases, n o implication of the unfitness of the non- custodial parent may be drawn from the court’s

decision to p lace custody in the other par

ent. Bah v. Bah , 668 S.W.2d 663 (Tenn. App. 1983) . The case before us obviously involves two capable parents, but although neith er party is unfit, neither party is perfect either.

Mr. Craft balked at getting braces for Derric k, even thou gh M rs. Craft testified that the boy

needed braces and that he was embarrassed about his crooked teeth. The appellant als o let health i nsurance for his children l apse after the parti es separated. It also appear s that Mr. C raft’s business ob ligation s might someti mes make it difficult for h im to attend to hi s children whe n the y need him, but that th e lib er al visitation that he has enjoyed allows them to receive the benef its of their relationshi p with hi m when wh en he is ava ilable.

Althou gh Mrs. Craft could perhaps make be tter u se of so me of her time with the children while they are still young, we do not draw any implications of neglect from the eveningrecreation that has been descr ibed, or from her desire to dr ink coffee and converse with adults in the morni ngs. If shelived i n one of the more cri me-ridden urban neighborhoods

in this state, we mig ht feel differently about a parentleavingher child ren al one during th e day on such a regular basis when it is not a matter of necessity , but in rural Humphreys County, we need not be q uite as concer ned.

On balance, we do not feel that the evidence preponderates ag ainst the trial court’s award of custody to Mrs. Cr aft. The record show

s her tobe more closely attuned to the needs of her c hildren, more responsive to those needs, an d and more able to dedicate her time to them th an is Mr. Craft.1 A tr ial court does not normall y hav e to cal culat e the a fter -tax income of t he non-cust odial parent, as the tables appen ded to the child support guidelines provide an after tax-figure and sup port amount for each lev el ofgross i ncome . However, the guidelines note that chil d suppo rt for the selfemployed must be calcul ated separ atel y, as the FI CA rate f or t hat gr oup is highe r t han for those em ployed by othe rs. - 5 - II. Child Support

The trial court found Mr. Craft’s real income to be in the rang e between $55,000 a nd $60,000 afte r taxes. 1 The court order ed him to pay $ 1,500 per month i n child support, stating that the amo unt was “less than the child support guideline s in that the male chi ld spends more than the usual amount of time for vi sitation w ith the father.”

The court ’s find ing o f income was based upon Mr. Craft’s business recordsand his person al income tax returns. The r

eturns showed thatMr. Craft had gross personal income of $101,248 in 1990, $100,643 in 1991, and $89,451 in 1992. On Januar

y 1, 1 993, a contract to supply w ooden pallets to Quebecor Prin ting was terminated because Quebecor decide d to switch to plastic p allets . The Quebecor contract had accounted for “ 98 or 99 percent” of Mr. Cr aft’s business, and his 1993 return showed that h is in come had plummeted to $22,9 73. In 1994, he re ported in come of $2 4,06 4. H is b usi ness rec ords ind icated i ncom e of $ 14,0 00 for the f i rs t three months of 1995.

In calculatingthe gross per sonal income of

a self-employed indivi dual forthe purpose of apply ing the child suppor t guidelin es, the reasonabl e expenses of producing that income may be deducte d from revenues. Deprecia tion is no t considered a reasonab le exp ense. Rules of Tennessee Department of H uman Services 1240-2-4-.03(3)(a). Kimble v. Kimble , Court of Appeals No. 01A01- 9503- CV-00049 (filed August 8, 199 6).- 6 - Though the g ros s in comethat Mr. Craft reported on his 1040 forms for 1993 and 1994 was less than $25,000 each year, he factored in depreciation toarrive at those figures . He concedes thatf or the purpose of the guidelines, the correct figuresfor both years would be over $50,000 in gross i ncome and over $45,000 in net income. He argues, however, that under the gui delines, the pr oper amount of child support for such an income woul d be closer t o $1,100 per month than to $1,500.

We believe, however , that there is more than enough evidence i n the record to support the tr ial court’ s findings as to Mr. Cr

aft’s income. First, t here is the fact that in prio r

years, Mr. Craft was able to earn substant ially ab ove the amount the trial cour t wishes to hold him to. Second, there are indications that he is recovering financially from the impact of los ing his most lucrative contract, and thathis i ncome is rising again. Of

relevance here is his purchase of a b ackh oe an d hi s creati on of a new business based on it. Third, the testimony of William J. Nieman, who apprai sed Craft Woodworks, indicates t hat Mr. Craft managed to increase his lumber inventory from $7,000 to over

$59,000 bet ween 1990 and 1995, permitti ng an inference t hat during some of those years at least, his income tax returns understated what would have been ava il able to him as per sonal income, i f he had not chosen instead to increase his

investment i n Craft Woodworks.

W hile it is possible that Mr. Craft may never again ear n as much as he did in 1990 and 1991, theevidence does not preponderate ag ai nst the trial court’s finding that that he is

capable ofearning between $55,000 and $60,000 per year after taxes, and we affirm its or der that he p ay $1, 500 per m onth as su ppo rt fo r his t wo children.

III. Valuation of the Marital Property2 T his fi gure was suggest ed by Mrs. Craft ’s attorn ey , w ho reasoned t hat subt racti ng fi rst the ro ug hly $21,000 busine ss debt f rom the $195, 000 val uati on of Craf t W oodworks, and then t he $75,000 val ue o f th e res idence thatwas grant ed to Mrs. Craft alone , one woul d arri ve at a fi gure of about $99,000 for the und ivided e quity in the bus ines s, wh ich c ould then be d ivided e qua lly betw een the part ies. - 7 -

The tri al c ourt

grante d Mr

s. C raft the house in McEwen, an eighty-seven acre tract of la nd in the c oun try, furniture, a GMC van, and an IRA w orth $6,000. The husband was gr

anted the sawmill business and an IRA worth $16,000. The trial court val ued Craft Woodwor ks at $19 5,00 0, an d ordere d Mr . Craft t o pay hisform er w ife $50,000 over a ten year period for her sha re of the equity of the business. 2

The partiesmanaged toachieve al most perfect agreement on the val ue and dispositi on of every piece of marital property, except for Craft W oodworks. Mr. Craft claims that the business is wor th only $122,5 00 (although he testified at tr ial to a value of $135,000) and he has chosen t o assert an un usual theo ry to support his claim for rel ief from the trial court’s findi ng of the saw mill’s value.

An appraisal performed at the behest of the appellee (the Neiman-Ross appraisal) was entered intothe record, a nd its preparer testified at length as to how he arrived at a value of $195,200 for Craft Woodworks. C ounsel for th e appellant unnaccountably failed to introduce an ap praisal commissioned by his client (the Kitrell Appraisal) which wo uld h ave al leged ly sho wn the property to be wort h only $122,475. Mr. Craft’s attorney also allegedly failed to present him with a co py of the Ne imanR oss appraisal unt il just before Mr. Craft was called upon t o testify, th us giv ing hi m no opportunity

to revie w the ninety-two pag e report for acc uracy.
The appellant argues that this court should reverse the trial c ourt’s finding as to the value of Craft Woodw orks, beca use h e rec eived inef fec tive assistance of counsel. He r elies upon language in a recent case bef ore the Eastern Divisi on of t his co urt, where the c ourt actu ally de cline d to gr ant r elie f on such a the ory, but stated:- 8 - “. . . although we hold, as a general r ule, that in c ivil cases reliefmay

not b e premis ed up on th e the ory of i nef fec tive assistance of counsel, we reco gnize that there may be cases where the facts are s o egregiou s that justi ce ma y re quire some relief.” Thornburgh

v. Thornburg

h , Appeal No. 03A01 -9602-CH- 00053 (Filed July 17, 1996).

Mr. Craft argues

that this is

such a case, bu t we donot agree . Althou gh Mr. Craft may be understandab ly unha ppy wit h the perf orma nce o f his atto rney, the result is not even close to the sort of man ifest injustice that would be required before this court would consider granting him the extraordinary remedy he seeks.

We have examined the copy of the Kitrell appra isal that Mr. Craft has appended to his brie f, tho ugh the different m ethodologies used in the two appraisals make them difficult to co mpare. Mr. K itrell has simply stated what he calls a fair marketvalue for each piece of sawmill equipment and r olling stock, and added to t he sum his estimateof the value of theland and buildi ngs to reach a total value for the business.

Mr. Neim an ga ve both a fair market value and a liquidation value to each piece of equipment, to w hich he added his ow n estimate of the value of t he in vento ry, the land an d the building s. Howev er, he used the r

esults as onl y one element i n a weighted valuation that also consi dered other methods of va luin g busi ness prop erty, including approaches based on revenuesand upon sales of compa rative properties.

We note that the fair market equipment value stat ed in th e Kitrell appraisal is quite close to the l iquidation value of the same a ssets stated i n the Neiman-Ross appraisal. Though Mr. Neiman did attr ibute amuch higher fair market value to the equipment, he only applied the liquidation value to the weighted approach by which he ar rived at hi s fin al valu atio n of the p rope rty.- 9 - Another major difference between the two appr aisals is that Mr. Nei man included the inventor

y oflumber in his

appraisal, w hile the Kitr ell apprais al contains no men tion at al l of i nven tory. If Mr. Kitr ell had added to hi s own figu res the $59,244 inventoryvalue stated in the Ne iman-Ross appr aisal, he would have reached an appraised value of

$181,719, still somewhat bel ow Mr. Neiman’s esti mate, but leavi ng a considerabl y smaller

gap than Mr . Craft assert ed in his bri ef.
However, this discus sion ofvalue i s per hap s bes ide t he po int, as we beli eve the trial court could have fashioned the same award of marital prope rty to Mrs. Craft, even if it ha d accepted Mr. Craft’s esti mate of the value of C raft W oodworks

. The court is not required to order an eq ual divi sion of marital property, but only an equitable one. Ellis v. Ellis , 748 S.W .2d 424 (Tenn. 198 8).

Factors to be applied in dete rmining what would constitute an equitable divisi on of marital proper ty are many , and include the du ration of the marr iage, the age of the parties, t he earni ng ca paci ty of each part y, and the n eed s of each part y. Tenn. Code Ann. § 36-4-121(c). All ofthese factors would support a generou s award to Mrs. Craft out of the asset s of Craft W oodworks.

We also note that Mrs. Craft’s counter-com plaint asked for “a reasonable amount of spousal support,” and at one point in t he hearing, s he testified that she needed month ly support of between $500 and $ 700 per month tocontinue to live as she had prior

to her divorce. The tri al court did not mention spousal suppo rt in its final decree, though Mrs. Craft would appe ar from the record to be a likely candidate for rehab ilitative alimony. See Tenn. Code Ann. § 3 6-5-101(d).

The court’s $50, 000 award to Mrs. Craft, if paid in monthly installments ov er ten years time amounts to a monthl y income of les s than $500 per mont h ($416.67 to be exact). Since the factors listed in Tenn. Code Ann. § 36-5- 101(d), for- 10 -

the court to take int o account in setting spousal support includ es under section (H) “[t]he provisi ons made with regard to the mar ital propert y as defined i n § 36-4-121,” we can infer that even if the trial c o urt erred i n its val uation and div ision of marital prop erty, such an error would be har mless, in v iew of the likeli hood that court would have ordered spou sal supp ort if sufficient funds were not avai lable from the mari tal estate.

IV.

We af firm the order of the trial cour t. Remand this cause to th e ChanceryCourt of Hu mph reys Co unty f or fu rthe r proc eed ings c onsi sten t wi th this opinion. Tax the costs on appeal to the appellant.

_____________________________ BEN H. CAN TRELL, JUDGE
CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGE