IN THE COURT OF APPEALS

AT KNOXVILLE

GERALD A. OTTINGER, ) COCKE CIRCUIT 

 ) C.A. NO. 03A01-9801-CV-00027

 )

 Plaintiff-Appellee )

 )

vs. )

 ) HON. BEN W. HOOPER, II 

 ) JUDGE

 )

KIMBERLY S. OTTINGER, )

 )

Defendant-Appellant ) AFFIRMED AND REMANDED 

 

J. RONNIE GREER, Greeneville, for Appellant.

CLYDE A. DUNN, Newport, for Appellee.

O P I N I O N

McMurray, J.

This is a child custody case in which both Gerald Ottinger

(father) and Kimberly Ottinger (mother) filed petitions for primary

residential custody of their daughter, Marlah Whitley Ottinger. 

The trial court granted joint legal custody to the parties and

awarded primary residential custody to the father. The mother
appeals, asserting that the court should have awarded her primary

residential custody. We affirm the judgment of the trial court.

The parties were divorced on December 13, 1995. The parties'

marital dissolution agreement, incorporated in the final judgment

of divorce, provided that the parties would have joint custody to

be shared equally between them. 

This arrangement proved satisfactory until Marlah approached

"school age." On February 10, 1997, the mother filed a "motion to

modify judgment," in which she asked the court "to modify its

previous judgment herein by awarding to her the full and exclusive

custody of the parties' minor child ... ." The father responded

with his own request for custody of Marlah. 

The case was heard at a bench trial on July 22, 1997. In its

order disposing of the case, the trial court found the following:

This is a most difficult decision to make because

the application of the comparative fitness doctrine to

the relevant factors set out in T.C.A. § 36-5-105, leaves

the parties virtually dead even. The parties [sic]

assessment of each other shows only that they both have

a great deal of respect for one another. Each party has

an abundance of love, affection and emotional ties to the

child. Both parents are more than adequately disposed to

provide their child with food, clothing, medical care,

and education. This is a case where the child's continuity with regard to the custody agreement must come to an

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end. There is no evidence of physical or emotional abuse

or the preference of the child. The evidence is equally

balanced as to mental and physical health of the parties

and the character and behavior of other people who

associate with the child. There is not sufficient

evidence regarding the two school systems which are

available for the child's education (or the difference in

communities) upon which to base an informed decision. 

The remaining factors are the stability of the family

unit, the home of the child, and the difference in

communities. 

* * * *

Overall and for some of those reasons set out in the

preceding paragraph, the Court feels that the child's

best interest will be served by being with the father. 

The court feels that the father's home and neighborhood

will by far serve the best interest of the child when

compared with the downtown home and neighborhood of the

mother, which will most likely expose the child to

associations and influences of a negative nature that

will not be found in the rural setting. The father has

been a little better in exposing the child to church and

also seems to be better in handling his financial affairs

than the mother. These are certainly factors that can

have a tremendous impact on a child while growing up. 

The father has already demonstrated the ability to attend

to his daughter's needs and to provide her with a stable,

nurturing home surrounded by her extended family.

The court made further findings of fact not quoted above, all

of which are well-supported by the evidence in the record.

The mother presents the following issues on appeal, stated

verbatim:

1. Did the trial court err in basing his decision, at

least in part, on facts not contained in the record

and not heard by him at the trial of this cause? 

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2 Does the evidence preponderate against the trial

court's denial of the petition of the mother,

Kimberly S. Ottinger, for custody of the parties'

minor child?

Regarding the first issue, the mother complains of the

following finding of fact by the trial court: "[t]he record

reflects that the mother has been in the bankruptcy court and

presently works a regular job of 40 hours a week and a second job

of 28 hours a week and will continue to work the second job until

all her bills are paid up or caught up." The mother correctly

points out that the transcript reflects no testimony was presented

to the court regarding the mother's involvement in bankruptcy

court. However, the record contains a "petition for contempt"

filed by the mother, which contains the following paragraph:1

The [father], Gerald A. Ottinger, has refused and

neglected to obtain a release of the lien on the horse

trailer awarded to the [mother] herein and has refused to

deliver to the [mother] a clear title for the horse

trailer. The [father] has advised the [mother] that he

is holding the title to the horse trailer in retaliation

for the [mother's] having filed a Chapter 7 Bankruptcy

Petition in the United States Bankruptcy Court for the

Eastern District of Tennessee.

Thus, there is information in the record, provided by the

mother, regarding the fact that the mother had filed a petition in

bankruptcy court. 

The petition for contempt was subsequently voluntarily dismissed.

1

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We are of the opinion, however, that the trial court was not

justified in finding that the mother's downtown Greeneville

residence and neighborhood "will most likely expose the child to

associations and influences of a negative nature that will not be

found in the rural setting." There was no evidence presented about

the respective neighborhoods of the parties. Tenn. R. Evid. 201

permits the courts to take judicial notice of certain facts. In

order to be judicially noticed, a fact must be generally known

within the territorial jurisdiction of the court or must be capable

of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned. See Tenn. R. Evid.

201(b). Negative "associations and influences" regarding a certain

geographic area, in the context of this case, are not proper

subjects for judicial notice.

It is clear that the trial court considered many different

relevant factors in arriving at its conclusions. We feel that the

consideration of community comparisons is, at best, harmless error

under the circumstances of this case. As has often been noted by

this court, trial courts are vested with wide discretion in matters

of child custody. Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. App.

1993). The primary reason for this rule is that the trial courts,

unlike the appellate courts, can observe and assess the demeanor

and credibility of witnesses, a significant aid and advantage in

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making findings of fact. See Massengale v. Massengale, 915 S.W.2d

818 (Tenn. App. 1995). 

We are of the opinion that the evidence does not preponderate

against the trial court's judgment. The judgment is affirmed in

its entirety. Costs on appeal are assessed to the appellant and

this case is remanded to the trial court.

____________________________________

Don T. McMurray, Judge

CONCUR:

____________________________________

Houston M. Goddard, Presiding Judge

____________________________________

Charles D. Susano, Jr., Judge

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IN THE COURT OF APPEALS

AT KNOXVILLE

GERALD A. OTTINGER, ) COCKE CIRCUIT 

 ) C.A. NO. 03A01-9801-CV-00027

 )

 Plaintiff-Appellee )

 )

vs. )

 ) HON. BEN W. HOOPER, II 

 ) JUDGE

 )

KIMBERLY S. OTTINGER, )

 )

Defendant-Appellant ) AFFIRMED AND REMANDED 

 

JUDGMENT

This appeal came on to be heard upon the record from the

Circuit Court of Cocke County, briefs and argument of counsel. 

Upon consideration thereof, this Court is of opinion that there was

no reversible error in the trial court.

The judgment is affirmed in its entirety. Costs on appeal are

assessed to the appellant and this case is remanded to the trial

court.

PER CURIAM