# FILED
February 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE MIDDLE SECTION AT NASHVILLE

_________________________________________________ CARA ANNETTE HOL LIS , ) ) Williamson Chancery No. 24097 Plaintiff/Appellee ) ) Appeal No. 01A 01-9704-CH-00178 vs. ) ) FREEMAN HA

RDIN HOLLIS , ) ) Defendant/Appellant )

_____________________________________________________________________

APPEAL FROM

THE CHANCE RY COURT O F WILLIAMSON COU NTY AT FRANKLIN, TENNESSEE THE HONORABLE HENRY D ENMARK BELL, CHANCELLOR

CARO L L. SOL OMAN , Nashville, Tennessee Attorney for Defendant/Appellant
VIRGINIA LEE STORY , Franklin, Tennessee Attorney for Plaintiff/Appellee

OPINION FILED: AFFIRMED

DAVID R. FA RMER, J.

W. FRANK CR

AWFORD, P.J.,W.S.

(Concurs) ALAN E. HIGHERS, J. (Concu rs)1 36-4-12 9. Stipu lated g roun ds an d/or de fense s - Gran t of divo rce. -

. . .

(b) The court may, upon such stipul ations or upon proof, gr ant a divor

ce to the party who was l ess at faul t or, if either or both part ies are ent itl ed to a div orce, declare the parties to be divorc ed, rathe r than aw arding a d ivorce to e ither party alone. 2 This divorce case involves the dissolution of the twenty-one year marriage of Cara Annette Hollis (Wife) and Freeman Hardin Hollis (Husband). The tr ial court entered a final decree declaring the parties divorced pursuant to T.C.A. § 36-4-129(b). 1 Husband has appealed from the final decree, challen ging the trial court's decisions regarding child custody and

alimony. F

or reasons a

s hereinafter

stated, we

affirm.
The parties married in June, 1975. Their union produced three s ons: Nathan, Timothy and Joseph who, at the time of trial (December 1996) , were ages eighteen,fifteen and thirteen, respective ly. Wife was forty at the time of tri al and in good health. She has an eleventh grade education . Both before and after the marriag e, she held various minimum wage positions ( mostly in sales). She became a full-time homemaker after the birth of their first child,remaining so throughout the majority of the marriag e. She periodically undertook

work outside the home, suc h as babysitting, and th e position of nanny for three years, w hen her children became of school a ge. She began her current occupation of cleaning houses i n 1991. She estimates monthly e arnings of $600.00. She identified total monthly expenses for herself and th e children of $3,143.56. This figure includes the first and second monthly mortgage payments on the marital home, which the parties valued at $55,000.00 w ith an approximate equity of between $21,000.00 and $26,000.00. Wife requested that the parties shar e joint custody of the chil dren, with she receivin g primary

physical custody. S he asked to be allowed t

o remain in the marital h ome until the youngest chi ld turns eighteen or g raduates from high school.
Husband was forty-four at the time of trial. He has been a federal government employee, working as a supply technician for the Department of Defense, for approximately twenty years. He earns additional income as a member of the N ational Guard and supervising parties held at the Armory . Husband testified that during the marriage his employment r equired out-of-town tr

avel and overnight stays "off and on." For3

the past two years, h is work has re quired him to be away f rom the h ome app roximate ly two weeks out of each month. Husband s tated, however, that he has since trained a new employee which wi ll drastically r educe his out-of-town trav el to only two or three nights per month. He requested that he be aw arded the marital home and sole cu stody of both minor children. He explain ed that when out-of-town tr avel is necessary , the younger childr en would be supervised b

y their oldest brother. He and his eldest son, w ho attends school and works part-time, hav e a good relationship.
Wife stated that Husband's employment during the marriage required overnight travel "q uite often." S he explaine d that when h e is "on the r oad," he is aw

ay from home Monday through Thursday or Friday as well as once a month for National Guard drills, when he is away th e entire weekend. Wife stated that sometimes H usband would be away all night when monitor

ing a party held at the Armory.

Husband's 1995 federal income tax return indicates annual ear nings of $40,414.00. Husband's 1996 earnings st atement through September reflects compensation of $31,174.00. He receives an additional $219.00 per month for Nati onal Guard duties and approximately $1,500.00 annual ly for monitoring parties at the Armory.
Upon hearing the evidenc e, the trial court entered a final decree as follows: In addition to declaring the parties divorced, the t rial court awarded th e marital residence and its accompanying indebted ness to Wife and ordered her to pay her ow n attorney's fees and marital debt of approximately $6,000.00. Husband was aw arded his pension, whic h the parties valued at approx imately $26,500.00, and ordered to pay all remaining mar ital indebtedness incurred by either party prior t o the hearing date, or approx imately $8,000.00. Wife was awarded custody of Joseph and Hu sband custody of Timothy. As t o custody, the court held, “[t]hat Joseph and Timothy will be tog ether for the entire summer school vacation with Wife having v isitation/custody for the first half and Husband having visitation/custody the second half. That Timothy and Josep h will also be together on all school holidays with the parties having custody/visitation on alternating holiday periods,4

including weekends during the school year." The court ordered Husband to pay child support of $323.00 per month based on the court's findings that Husband has a gross earning capacity of "approx imately $3,500.00 per month" and that Wife's gross earning capacity is "approximately $1,300.00 per month, assuming a forty hour week as a house cleaner." Husband was to continue providing hea lth insurance for both minor c hildren and pay two-thirds of thei r uncovered medical ex penses. Finally, Hus band was ordered to pay Wif e $620.0 0 per mon th as alim ony in futuro

.
Husband identifies the issues on appeal as follows:

I. Whether the Chancellor abused his discretion in separating the two brothers, who w

ere close in age, wi

thout any evidence that such separation would be i n the children's best inter est. II. Whether the Chancellor abu sed his discretion in failing to award custody of the two minor c hildren to the father based upon a comparative fitness analy sis and the children's pr eference. III. Whether the Chancellor abused his discretion in awarding alimony in futuro

to the wife where th e wife is relatively youn g, in good health, and where financial rehabilitation i s feasible. IV. Whether the husband should be awarded his attor ney's fee on appeal incurred on behalf of the chil dren.

Wife has raised the similar issue of whether she should be awarded her attorney's fees incurred in this appeal.

Husband's first two is

sues address the awardin g of custody and will be considered together. Husband contends tha t the trial court erred in dividing custody of the two minor children. He asserts that the record reflects both y oung men's preferences to resi de with their father. He also notes the undisputed acrimonious rel ationship currently ex isting between the eldest child and Wife which, according to Husband, w ill "severely hand icap []" the youngest child's relationship with hi s oldest brother if the custody award is allowed

to stand. Finally, Husband insists that there was no showing that the younger child's best interests are served by custodial placement w ith the Wife or that the best interest of either of the two minor children ar e served by physi cally separating th em. It is asserted that the5

potential damage which may result from such separation is not minimized by the court's "well-mea ning gestu re" requir ing the two young men to spend vacations and holid ays together.
Our review of the trial court's decision regarding custody is de novo on the record with a presumption that the trial court's findings of fact are correct unless th e evidence preponderates otherwise. E.g ., Gaskill v. Gaskill , 936 S.W.2d 626, 63 1 (Tenn. App. 1996); Rule 13(d) T.R.A.P. The Gaskill court's discussion of chi ld custody decisions mer its repeating here:
[C]ustody and visit

ation arrangements are among the most important decisions confronting a tr ial court in a divor

ce case. The needs of the children are paramount; w hile the desires of the parents are secondary. Lentz v. Lentz

, 717 S.W.2d 876, 877 (Tenn.1986). Custody should never be used to punish or rewar d the parents, Turner v. Turner , 919 S.W.2d 340, 346 (Tenn.Ct.App.1995); Long v. Long , 488 S.W.2d 729, 733 (Tenn.Ct.App. 1972), but rather should promote children's best interests by placing them in an environment that wil l best serve their phy sical and emotional needs. See Luke v. Luke , 651 S.W.2d 219, 22 1 (Tenn.1983). No hard and fast rules exi st for determining whic h custody and visitation arrange ment will best serv e a child's need. Taylor v. Taylor , 849 S.W.2d 319, 327 (Tenn.1993); Dantzler v. D antzler , 665 S.W.2d 385, 387 (Tenn.Ct.App. 1983). The inquir y is factually dri

ven and requires the c

ourts to carefully weig h numerous considerations. Nichols v. Nichols , 792 S.W.2d 713, 716 (Tenn. 1990); Rogero v. Pitt , 759 S.W.2d 109, 112 (Tenn.1988). Among these considerations ar e: the age, habits, mental and emotiona l make-up of the child and those parties competing for custody; the education and experience of those seeking to raise the child; their character and propensities as evide nced by their past conduct;the financial and physical ci rcumstances available i n the home of each party seeking cus tody and the special req uirements of the child; the availabili

ty and extent of thirty

-party support; the associations and influences to w hich the child is most li kely to be exposed in the alternati ves afforded, both positive and negative; and where i s the greater likeli hood of an environment for the child of love, warmth, stability, support, consistency, care and concern, and physical and spiritual nurture. Bah v. Bah , 668 S.W.2d 663, 666 (Tenn.Ct.App.1983); see also Tenn. Code Ann. § 36-6-106(Supp.1995). Gaskill, 936 S.W.2d at 630.
The record reflects that the parties have remained in the sam e household up until6

the time of the divorce hearing. The record further reveals much friction among these family members once the divor ce proceedings ensued, w ith the exception of Joseph w hom it appears has remained for the most part neutral. Arguments w ere not uncommon and Husband recalled instances of Wife's verbal abuse toward him with the children present. There were also instances where Wife would leave the home (no l onger than overnight) to go to a nearby friend's home,according to Wife, because of the stresses and pressures felt in the home during this time. Both parties confesse d to extramarital affairs.
Since Wife’s filing for divorce, Husband agrees that he has taken a more active role with the children and hous ehold chores and, in Wife's words, he "sudde nly started doing everything." Wife testified that she had a good relationship with all of her children pr ior to the time she filed for divorc e. Wife admitted that her relationship with her two eldest sons had since become "strained." She at tributed this to Husband's attempts to "involve" the children in the divor

ce and "sway" their pos itions. She stated that Husban d did not encourage the children to be respectful of both parents. Husband's testimony was to the contrary.
Timothy testified that he desir ed to reside with Husba nd. Joseph did not testify. Timothy stated that, prior t o the divorce filing, Wife primarily escorted him to his v arious activities, but sinc

e that time, his father had play ed a more active role in these events. Timothy stated that during the marriage, his father "did the best he could . . . whe never he was there." Timothy acknowledged Joseph's love for his mother and agreed that they were "pretty close." Husband testified that he has a good relationship with all three of his children.
In contending that he is the bet ter fit parent to care for his two minor sons, Husband notes Wife's absences from the home, her verbal abus e and, according to him, her "emotional inability to c ontrol her life and perform her par ental obligations" at the pr esent time. In his favor, Husband points to the fact that he ha s changed both his household routine and job requirements in order to best parent his children "in the face of divor ce."7

On appeal, Wife does not disagree with the trial court's div ided custody award, noting that the two children wi ll continue to reside in the same community, attend the same s chool system an d have sim ilar activi ties within the comm unity.

The trial court's decisi on necessarily impli es a finding that both parties are "fit" custodians since each was awarded custody of one child. The record supports this de te rm in at io n. As

to th e d iv id ed cu stod y a rr an ge me nt , H us ba nd co rr ec tl y c it es to W. Walton Garrett, Tennessee Divorce, Alim ony and Child Custody § 24-15 (1997) in proposing that "[t]here is a strong presumption that the welfare of the children will be best served by keeping the children together." This presumption, however, must be viewed in light of the particular fact s and circumstances surr ounding each child custody case. The record indicates that pri or to the divorce proceedings, Wife was the primary car etaker of these children and that their re lationships with e ach other were good . Upon a thorough review of the record, we find no indication that Joseph possesses any hostilities toward his mother (or father for that matter).The current custody arr angement allows Joseph to continue to reside in the home that he has always known and to be cared for by his primary caretaker. It is the hope of thi s court that Joseph and his mother will continue to pur

sue a healthy relationship. Clearly, animosity is present in Timothy's relationship with hi s mother. He expressed a strong desire to reside with his father and at the age of fifteen, his desires merit consideration. An award of custody of Timothy to W ife under these circumstances, we believe, quite possibly could have a detrimental effect upon the presently healthy relationship between Wife and Joseph. Timothy and his father share a healthy relationship. Husband's t estimony convinces the court that his employment now requires less travel. This fact, accompanied by the fact that the el dest son continues to reside with Husband as well, leads this court to conclude that custody of Timothy was properly awarded to Husband and that suc h is in his best interes

t.

Husband 's next issu e concern s the award of alimo ny in futuro to Wife. He contends that the record supports a findi ng of Wife's ability to be economically rehabilitated. T.C.A. § 36-5-101(d) identifies v arious factors for the trial court to include in its consideration of8

whether alimony, of any kind, is appropriate. Of the se, the fundamental concerns are need and the ability to pay. Loyd v. Loyd , 860 S.W.2d 409, 41 2 (Tenn. App. 1993). The record clearly establishes

that Husband's earning capacity is superior to that of Wife. Granted, she is of relatively

young age and healthy . However, she has spent the majority of her marriage being a homemaker a nd caretaker of her children,as well as others. She does not possess a high school degree or its equiv alency. Her income as a housekeeper, even if employed full-time, as cal culated by the trial co urt, is $1,300.00 per month. Her needs alone were established i n excess of $2,000.00 per month. The r ecord, too, establishes Husband's ability to pay. Husband has not argued his inability in this regard. He merely contend s that an award of a limony in futuro is contrary to the ex

press language of the alimony statute which requires first a showing that the economically disadvantaged spouse cannot be rehabilitated. We are satisfied that the record supports the tri al court's award of alimony in futuro

to Wife at $620.00 per month.
Both parties have requested that they be awarded their attorney's fees incurred in this appeal. Based on our deci sion, we deny Husband' s request, but find it appropr iate to grant Wife's request. The issues in this case prima rily concern custody of the parties' children. We have affirmed the awarding of custody as determined by the trial court. The court in Sherrod v. Wix , 849 S.W.2d 780 (Tenn. App. 1992), holds that "requi ring parents who precipitate custody or support proceedings to underwrite the costs if their claims are ultimately found to be unwar ranted is appropriate as a mat ter of policy." Sherrod

, 849 S.W.2d at 785.
It results that the judgment of the trial court is affirmed and this cause remanded for further hearing to deter mine the appropr iate amo unt of att

orney' s fees to

be awar ded Wife on appeal. Costs are assessed against the appellant, for which execution ma y issue, if
necessa ry.

________________________________ FARMER, J. CONCUR:9

_________________________________ CRAWFORD, P.J.W.S.

_________________________________ HIGHERS, J.