# FILED July 27, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

STEPHEN LEWIS, ) ) Plaintiff/Appellee ) Montgomery Chancery No. 97-11-0024 ) v. ) ) Appeal No. 01A01-9809-CH-00469 STEPHANIE LEWIS, ) ) Defendant/Appe

llant. )

APPEAL FROM THE CHANCERY COURT OF MONTGOMERY COUNTY

AT CLARKSVILLE, TENNESSEE THE HONORABLE CAROL A. CATALANO, CHANCELLOR

For the Plaintiff/Appellee : For the Defendant/Appellant : F. J. Runyon, III Carrie W. Kersh Clarksville, Tennessee Clarksville, Tennessee

AFFIRMED

HOLLY KIRBY LILL

ARD, J.

CONCUR: W. FRANK CRAWFORD, P. J., W.S. ALAN E. HIGHERS, J

.OPINION

This is a divorce and child custody case. The wife challenges the trial court’s order awarding the husband custody of

the parties’ minor

child, as well as th

e trial court’s decision to grant the divorce to the husb

and on the grounds o

f inappropriate

marital conduct.

We affirm. Appellant Step hanie Lewis (“W ife”) and Appel

lee Stephen Lewis

(“Husband”) we

re ma rrie d

on June 8, 1991. They had one child, a daughter, Jaylin Lewis (“Jaylin”), born March 24, 1994. The record indicates that the parties had a tumultuous relationship. In June 1997, Wife told Husband that she wanted a divorce. Hu sband testifie d that Wife askedfor her share of the

equity in the parties’ home. After Wife showed Husband divorce “papers,” Husband signed a check to her for $20,000, representing Wife’s equity in the parties’ home. Wife then gave Husband a qu

itclaim deed and moved out of the home for approximately five or six weeks, after which the parties apparently reconciled. Wife testified that she wanted a divorce but that she changed her mind. Wife said that Husband insisted that she move out of the home and only then did she ask for her share of the equity in the home. On November 6, 1997,

Husband filed for

divorce, citing ir

reconcila ble differ ences and inappropria

t e marital conduct. Later that same day, Wife filed a petition seeking an order of prot ection, ba sed upon several incidents of alleged abuse by Husband. She obtained a temporary

ex parte order of protection. On November 14, 1997, the trial court conducted a hearing regar ding Wife’s petition. At the hearing on Wife’s petition, Wife testified that on November 1, 1997, she, Husband, and Jaylin attended a

basketball game.

As they started to

le ave the game, Hus

band carried Ja

ylin down the bleachers. J

aylin became upset and began crying and “resisting” by kicking her legs. As Husband went down the bleachers with Jaylin, he slipped and almost fell. Jaylin continuedcrying, and Wife testified that Husband was very upset. They got in the car, with Husband driving and Wife and Jaylin in the back s

eat. Wife said th

at, once inside the

car, Husb and yelled at Jay lin and slammed on the brakes and caused Wife and Jaylin to be thrown forwar d, pinning Jaylin’s foot against the frontseat of the vehicle. At the hearing, Husb

and recalled the

incident differe

ntly. He testif

ied tha t Jaylin climbed up and down the bleachers acting like a “thre e year old” when Wife said that she was “tired of dealing with this” and that s he wanted to leav

e. Husband test

ified that he a lmost lost his balance while carrying Jaylin down the blea chers bec ause Jaylin began crying and kicking. Husband2

testified that Jaylin was crying in the car on the way home from the game, and Wife started yelling at Jaylin. After asking Wife and Jaylin to calm down, Husband “tapped” t he br akes prior to approac hing a stop sign. Husband denies slamming on the brakes causing Wife and Jaylin t o b e thrown forward. At the hearing, Wife testified to another alleged incident of abuse sev eral da ys later, on November

5, 1997. Wife testified that she and her mother, Gl enda Shoop (“Shoop ”), and Jaylin went to the grocery store. When they left the grocery store, Jaylin refused to sit in her car seat. Once they returned ho

me, Wife put Jaylin

in “time-out.” Husband then got home from work and asked Wife what had hap pened. Wi fe admitted walking past Husband and responding with an obscene gesture. Wife testified th at Husband then be

gan yelling “in

that threatening tone” at Shoop in the kitchen. Before she knew it, Wife sa id she grabbed a k

nife. Wife state

d that she said, “[

p]lease don’t hurt my mom.” After “r ealizing” that s he had a knife in her hand, Wife testified that she placed the knife on the counter and called 911. Wife reported to the 911 operator that Husband was threatening her. Shoop testifie d that Husband bec

ame angry, bega

n “yelling” at her

, and allegedly slapped Shoop on the hand. Husband also rec

alled thisincident

differently. He testified at the hearing that he returned hometo find Jaylin in “time-out.” Husband asked what had happened. Husband testified that Wife

re sponded with an obscene ge sture, so Husband a

sked Shoop what had

happened. Shoop st

ated , “what the hell do you care?” H

usband testified th

at Wife then gra

bbed a kitchen kni

fe and held

it three inches from his face. Husband denied threatening or slapping Wife or Shoop. After hearing the conflicting testimony, the trial court add ressed th e alleged incidents of violence: [In addre ssing November 1, 1997, incident,] [ t]he Court . . . find [s] that apparently

this child is a high maintenance child. An d because she is tha t, these parties have had several disagreements so far as her discipline and keeping up with her is concerned. I

t’s a big responsib

ility and it does require that both of them do what they can. The Court does not find that the incident on November 1, 1997[,] constitutes a threat of harm to this child or to Mrs. Lewis. Therefor e, a pparently, Mrs. L

ewis didn’t think so either. There was no application for peace bond then . . . . On November 5th, Mrs

. Lewis alleges in her peace bond application that on Wednesday night November 5 th , Steve Lewis struck my mother on the hand and verbally threatened her. The order of protection application does not even relate [to] any threat to Mrs. Lewis herself. And the Court finds t

hat on November 5t

h Mr. Lewis did not th

reaten Mrs. Lewis in any way. Rather that Mrs. Le wis threatened him wi

th a knife and that

his mother-in-law was being confrontational . . . .3 [T]he Court finds the following facts: [t]hat on November 6th 19 97[,] Mr. Lewis filed a

petition for divorce. On November 6th -- before this order of protection

-- Mr. Lewis was ask

ing his attorneys to provide for him to have custody of his child. But

. . . November 6th is the same day that Mrs. Lewis comes a

nd gets this application for an order of protection . And it mor e appears that sh e obtained it because of what Mr. Lewis was in the process of doing more than anything else

. .

. . Thus, the trial court denied Wife’s petition for an order of protection. On March 23, 1998, the same t rial jud ge heard the divorce proceedings. The trial court refused to hear evidence concerning alleged violent incidents occurring from November 1, 1997,

to November

5, 1997, because the proof was previously presented at the hearing onWife’s petition for an order of protection. In the divorce proceedings, Wife t esti fied to several in

cidents of violenc

e which allegedl

y occurred during the course

of the marriage . Wife testified t hat the abuse beg

an the first

week of their marriage when Husband yelled at her, pushed her, placed her in a “headlock” and “took her down to the ground . . . .” Several months after this incident, the parties were lying in bed arguing when Husband allegedly again p laced her in a “headlock.” Wife testified to a third incident on July 3, 1995, when the parties

began arguing an

d Wife pointed her

finger in Husband’s face, and Husband grabbed Wife’s finger . W ife ran to the bedroom and closed the door. Wife said Husband then “broke through” the door. Wife testified that: “[w]e were just both looking at the door. We couldn’t believe it. We had t o spend the rest of the day piecing it back together.” Wife also testified that Husband pulled her hair on several occasi

ons. Wife als o con tends that, in March 1997, Husband kickedher while the par

ties were in bed,

and Wife slapped

Husband. Wife ad

mitted that she did

not tell anyone of Husban

d’s alleged abuse. Wife admitte d a ssaulting Husband. Wife also admitted slapping Glenda Lewis, her mother-in-law, causing her to fall to the ground. In his testimony, Husband denied an y violent behavior, although Husband admitted grabbing Wife’s hair on two occasions. Husband testified that Wife hit, slapped, and kicked him. Husband said that the parties f

requently argued about mone

y “[a]nd she wou

ld get up in my face . She’ll point, she’ll curse, and then turn around and storm off . . . .” Husband testified that Wife cut his ear

with a key on one occasion and placed a knife to his throat, referring to the November 5th incident.4

Glenda Lewis, Husband’s mother, testified regarding the incident in which Wife slappe d her and made her fall to the ground. Glenda Lewis testified that Wife had a “crazed” look in her e ye. In the divorce proceedings, both parties claimed to be Jaylin’s primary caregiver. Prior to the marriage, Husband obtained a college degree. At the time of trial, Husband was employed in the bankin g ind ustry. Wife attended the same college and obtained a degree in psychology and sociolog y . Wife pursued jobs in the behavioral

sciences field b

ut was unsuccessf

ul because prospective employers indicated that Wi fe neededa master’s degree. Wife chose not to obtain a graduate degree and had several jobs before accepting a position at a bank. Subsequently, Wif

e be came pregnant.

For two months after

Jaylin’s birth, Wif

e stayed home to care for the child. Wife then began working part-time at a bank. While Wife was at work, Glenda Lewis cared

for Jaylin. Once Jaylin reached two years old, she attended a daycare center while Wife continued to work on a part-time basis. Wife testified that she cares for Jayli

n when Husband tra

vels outof town on bus ine ss trips. Wife said that she and Jaylin share a “typical mother/daughter” relationship, and that Jaylin is the most important priority in her life. Husband testified that he was Jaylin’s primary car egiver. Husband said that he was the parent responsible for disciplining Jaylin and that he explained to her behaviors that were considered bad, as well as the consequences of such behavior. Husband testified that he took care of J

aylin in the mornings before leaving for work and particularly onweekends. Husband said that Jaylin enjoys many activities with him such as visiting his parents and “running errands” on the weekends. Husband enrolled Jaylin in dance classes and brings her to dance class every Friday. Husband also enrolled Jaylin in

a private school. Sherry Phillips (“Phillips”) , a friend of the p arties, testified

that Wife had dif

ficulty controlling Jaylin and that Jaylin “seem[ed

] more disciplined

and happy with Stev

e.” Phillips also said that Hus band brough t Jaylin to the majority of the birthday parties given for other children. Cynthia Ginsburg, a neighbor of the parties, testified that she observed Husban d playing with Jaylin in the front yard and taking walks with her around the neighborhood. Prior to the divorce pro

ceedings, Wife s

igned a marital dis solution agreeme nt, which was later withdrawn, giving custody of Jaylin to Husband. In her testimony, Wife said that Husband5

promised to attempt a reconciliation in return for custod y of Jaylin. Rhonda Byard (“Byard”), a friendof the parties, testified that Wife told her that she was considering giving Husband custody of Jaylin. The record showed that lengthy negotiations occurred betwee n the pa rties regarding several provisio

ns of the marital di

ssolution agreeme

nt. After hearing th

e evidence, the

trial court found

the following fac

ts: The Court finds that [Wife] has co nducted herself in an inappropriate way, and grants [Husband] a divorce on the grounds of Inappropriat e Marital Conduct, T.C.A. Section 36-4-102. The impetuous conduct that was related in Court

included slapping her mother-in-law, holding a knife to her husband, and cutting her child’s rabbit bank open to obtain a small amount of money for postage. This same conduct applies to [Wife’s] signing of the Marital Dissolution Agreement. [Wife] testified that the only reason she signed the Marital Dissolution Agreement

was because [H

usband] had said

that he would not

reconcile or tr

y again to save their marriage unless he had custody of their daughter. Witnesses testified in open Court that [Wife] had talked about giving custody of the parties’ minor

child to[Husband], and that [Wife] had prayed with one of her friends about not signing the Marital Dissolution Agreement which gave custody of the parties’ minor child to [Husband]. The Court finds that [Wife] could have been thinking at thattime of the relationship between [Husband] and their daughter, and what a good relationship they ha ve together. The Court finds that [Husband] does have a good relationship with the parties’ minor child, a relationship which includes a practi ce of making “deals” for her behavior and “pinky promises” when the d ea l is important. The Court further finds that [Husband] tells his child face to face what h e considers is wrong or bad behavior, and that he is willing to “pop” his child fo r discipline. The Court finds that [Husband] has made a routine of activities with the parties’ minor child. . . . The Court finds that [Hu

sband] has enrol

led the child in dance, and consistently be en the parent to ta

ke her to dance.

The Court fin

ds that [Husband] has enrolled the c hild in the Academy. The Court finds from Ms. Price, of Kiddie Colleg e, that . . . [Wife] seems to usually be in more of a hurry when picking up the child, even though she has adjusted her schedule to only be working part-time in order to have more time for the c hi ld. The Court finds that neighbors testified t hat . . . aft er observing both [Husband] and [Wife] with their child, the neig hbors obs erve [Husband] as being the more p atient parent, a

nd that the child seems happier with [Husband]. The Court finds that these could be some of the reasons why [Wife] w a s willing to give [Husband] custody of their daughter when she executed the Marital Dissolution Agree

ment. Based on the testimony pre sented, the Court f

inds that it is in

the best interest of the child that custody be awarded to [Husband]. Thus, the trial court awarded the divorce to Husband and awarded Husband custody of Jaylin. The trial court also divided

marital property

and did not grant Wife alimony. From this order, Wife now appeals. On appeal, Wife argues that the trial court erred in granting Husband a divorce on the ground of inapp rop riate marital conduct. Wife argues that the trial court erred in excluding testimony regarding incidents of violence to which Wife testified at the hearing on her petition for an order of6

protection. Wife contends that the evidence preponderates against the trial court’s award of custody to Husband and that the trial court utilized the award of custody to punish Wife. In child custody ca

ses, appellate r

eview is de novo upon the record, with a presumption of the correctness of the trial court’s factual findings. See Tenn. R. App. P. 13(d ); Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984); Dalton v. Dalton , 858 S.W.2d 324, 327 (Tenn. App. 1993). No such presumption attaches to the trial court’s conclusions of law. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Wife asserts that the trial court erred in refusing to allow evidence of the incidents of violence upon which the petition for anorder of pro tection was based. She contends that the evidence preponderates against the trial court’s orde r awar ding the divorce to Husband on the grounds of inappropriate marital conduct, and argues that the evidence revealed that Husband was the aggressor and that Wife was afraid of Husband. Wife first argues that the trial court erred in excluding from the divorce trialevidence on the incidentsof

violence to which the parties testified during the hearing on Wife’s petition for an order of protection. The tr

ial court has wide

discretion in admit

tin g or exclu ding evidence and will be reversed on appeal only upon on showing of abuse of discretion. See Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992); Davis v. Hall , 920 S.W.2d 213, 217 (Tenn. App

. 1995). In this case, the same trial judge heard testimony on the alleged incidents of violence from Nove mber

1, 1997, to Novembe

r 5, 1997. At the he

aring, the partie

s testified fully a

bout th os e allegedincidents. See Winchester v. Winchester , No. 02A01-9802-CV-00046, 1999 WL 250176 (Te nn. App. Apr. 28, 1999). Wife points to no prejudice from this decision; indeed, fu rthe r testimony on the same incidents wou ld have been red

undant and unnec

essary. We find n

o abuse of discretion in the exclusion of evidence about facts already presented bef ore the court. The trial court’s decision on this issue is affirmed. Wife also contends that the evidence preponderates against the trial court’s decision to award the divorce to Husband on the grounds of inappropriate marital conduct, and arguesthat the evidence shows that Husband was the aggressor and that Wife was afraid of him. In awarding the divorce to Husband, the tria l court charact erized Wife’s

conduct as “impet

uous,” noting seve

ral incidents, including “slapping her mother-in-la w, holding a knife t

o her husband, and

cutting her child’ s rabbit bank open to obtain a small amount of money for posta

ge.” These

incidents were not disputed by7

Wife. Most of the remaining incidents were sharply disputed by the parties, with their testimony in stark contrast. The tri

al court’s finding

s on these incidents depended squarely on its assessment of the parties’ credibility and demeanor in court. A trial court’s determinationof credibility is entitled to great weight

on appeal primar

ily because the trial court had the opportunity to observe witnesses

as they testified. Gas k ill v. Gaskill , 936 S.W.2d 626, 633

(Tenn. App. 1996) ; see Massengale v. Massengale , 915 S.W.2d 818, 819 (Tenn. App. 1995); Koch v. Koch , 874 S.W.2d 571, 577 (Tenn. App. 1993). Considering the undisputed evidence, and with appropr iat e deference to the trial court’s determination of credibility on the disputed evidence, we find that the evidence does not preponderate

against the trial c

ourt’s decision to

award the divorc

e to Husband. The t

rial court is affirmed on this issue. Wife also contends that the trial court erred in awarding custody of Jaylin to Hu sband, arguing that the trial court did not give proper weight to the fact that she had been Jaylin’s primary caregiver during the marriage. She argues that custody was awar

ded to Husband in or

der to punish her. In addressing the custody issue, we recognize that “[c]ustody and visitation determinations often hinge on subtle fac tors, including the

parents ’ demeanor

and credibility during the divorce proceedings themselves.” Gaskill , 936 S.W.2d at 631; see also Rutherfo rd v. R utherford , 971 S.W.2d 955, 956 (Tenn. Ap p. 1997). The tria

l court is in the bett

er position than this

C ou rt to observe the parties’ de meanor and determine their credibility. See Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn. App. 1997). “Since [child custody] decisions often hi nge on the parties’ credibility, appellate courts are reluctant to second-guess trial judges who have observed the witnesses and assessed the ir credibility.” Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn. App. 1997) (citing Gilliam v. Gilliam , 776 S.W.2d 81, 84 (Tenn. App. 1988)). Tennessee Code Annotated § 36-6-101(a) requires that cu stody of children in divorce be determined“as the welfare and interest of the child or children may demand.” Tenn. Code Ann. § 36-6-101(a) (Supp. 1998). In Bah v. Bah , 668 S.W.2d 663 (Ten n. App. 1983), the C

ourt set forth

a common sense approach to determining custody, the doctrine of “comparative fitness.” The Bah Courtnoted that “[t]he

paramount conce

rn in child

custody cases is the welfare and best interest of the child.” Bah , 668 S.W.2d at 666 ; see also Ruyle v. Ruyle , 928 S.W.2d 439, 441 (Tenn. App. 1996); Koch , 874 S.W.2d at 575. This determination depends on the facts of each case. Koch , 8748

S.W.2d at 575. Tennessee Code Annotated § 36-6-106 sets forth some of the factors to be considered in performing a comparative fitness analysis. These factors include:

(1) The love, affec

tion and emotional ties e xisting between the parents and child; (2) The disposition of the parents to provide the child wi th f ood, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver; (3) The importance o

f continuity

in the child's life and the length of time the child has lived in a stable, satisfactory environment . . . . (4) The stability o

f the family unit of

the parents; (5) The mental an

d physical health o

f the parents; (6) The home, school and community record of the child; (7) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight tha n th ose of younger children; (8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person . . . . (9) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child. (10) Each parent's pa

st and potential f

or futu re performance of parenting responsibilities,

including the willingness and ability of each of the par ents to facilitate and encourage a close and continuing parent-child

relationship between the child and the other parent, consistent with the best interest of the child. Tenn. Code Ann. § 36-6-106 (Supp. 1998). Inthis case, the parties disputed which parent had been Jaylin’s primary caregiver during the marriage, and the t rial court mad e no finding on this issue. However, even assuming that Wife had been Jaylin’s primary caregiver during the marriage, the trial court appropriately considered the evidence on the parties’ behavior, alleged abuse, and emotional stability. The trial court no ted Wife’s “impe

tuous” conduct, including “slapping her mother-in-law, holding a knife to her husband, and cutting her child’s rabbit bank open to obtain a small amount of money for postage.” The trial court credited Hus band’s testimony on the disputed incidents of allegedabuse, and questioned Wife’s motives in seeking an order of protection after Husband filed for divorce. As noted in Barnhill v Barnhill , “[c]ustodial arrangements should not be made with the goal of punishing a

parent for misco

nduct. Nonethele

ss, misconduct of a

partydoes often reflect fitness of the parent for custody and is a proper consideration.” Barnhill v Barnhill , 826 S.W2d 443, 453 (Tenn. App. 1991) (citing Edwards v. Edwards , 501 S.W.2d 283, 291 (Tenn. App. 1973).9

Considering the undisputed evidence, and giving appropriate deference to the trial court’s credibility deter minations on the disputed evidence, we find that the evidence does not preponderate agains t the trial court’s award of custody of the parties’ child to Husband. The decision of the trial court is affirmed. Costs are assessed against the Appellant , fo r which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.