FILED

August 5, 1998

Cecil W. Crowson

Appellate Court Clerk

YVETTE MICHEL PORTER CAIRA )

)

Plaintiff/Appellant, )

) Appeal No.

v. ) 01-A-01-9709-CH-00508

) 01-A-01-9801-CH-00055

RONALD STEPHEN CAIRA ) Montgomery Chancery

) No. 95-77-275

Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR 

MONTGOMERY COUNTY

AT CLARKSVILLE, TENNESSEE

THE HONORABLE CAROL A. CATALANO, CHANCELLOR

GREGORY D. SMITH

One Public Square, Suite 321

Clarksville, Tennessee 37040

ATTORNEY FOR THE PLAINTIFF/APPELLANT

MARK A. RASSAS

Suite 104, Glenn Building

Clarksville, Tennessee 37040

ATTORNEY FOR THE DEFENDANT/APPELLEE

AFFIRMED AND REMANDED
2

WILLIAM B. CAIN, JUDGE

OPINION

This case is before us on appeal from the trial court’s decree of divorce

and grant of child custody and support to the Appellee, Ronald Steven Caira. In

bringing this appeal, Appellant raises two issues for consideration.

1. Whether the trial court erred in failing to

award primary custody of the minor children of

this marriage with Defendant/Appellee.

2. Whether the trial court made an equitable

property distribution of the debts, assets and

retirement proceeds of this marriage.

Since this case was tried without a jury, we presume the trial court to

be correct in its factual findings unless the evidence preponderates against them.

Tenn.R.App.P. 13(d) Both parties recognize in their briefs that wide discretion

is accorded the trial court regarding divorce and custody matters. See Whitaker

v. Whitaker, 957 S.W.2d 834, 836-37 (Tenn.Ct.App. 1997) perm app. denied

1997, cert. denied, 118 S.Ct. 1316, 140 L.Ed.2d 480 (Mar 23, 1998). We are

unpersuaded that the record below preponderates against the chancellor’s

findings with regard to custody and property distribution. 

With regard to the child custody issue, Appellant makes much of the

trial court’s comments regarding her fitness as a mother. The true benchmark for

awarding child custody is the comparative fitness of the parties in view of the

criteria set out in our state code, Tenn. Code Ann. § 36-6-106 (1996). See

generally Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). The

record below and the briefs before this court contain no showing that the trial

court abused its discretion in finding the Father more fit a parent than the

Mother. Appellant also argues that since the record contains evidence of an

affair on the part of the Mother, that the chancellor per force used this fact as the

sole reason for awarding custody to Mr. Caira. There is no finding in the record
3

determining the mother to be unfit because of this or any other reason. The court

simply states,

3. That even though the Plaintiff was the

bookkeeper of the family, showing discipline

in financial matters, this was off set by lack of

discipline in her personal life, and the Court

believes that the emotional stability of the

Defendant is better or more even than that of

the Plaintiff, and that the Defendant should be

awarded custody of the minor children, subject

to the previous visitation agreement insofar as

possible.

We find it interesting that Appellant makes no argument that this finding is

against the preponderance of the evidence or amounts to abuse of discretion.

Without such a showing, this court must affirm the actions of the lower court.

As for the issue regarding distribution of marital property, it is well

settled in this jurisdiction that trial courts have wide discretion in dividing

marital property. See e.g. Wade v. Wade, 897 S.W.2d 702, 715 (Tenn.Ct.App.

1994). Appellant alleges in her brief that while the trial court assessed Mr.

Caira’s income at $25,380, his tax returns showed an income plus or minus

$72,000. Appellant attempts to show abuse of discretion by showing that Mr.

Caira's tax forms indicate reimbursements for expenses incurred. What

Appellant fails to show is a preponderance of the evidence against the finding of

the trial judge. Appellee replies correctly: "The court specifically stated that all

proof relative to the parties' income, property, retirement plans and debts was

considered, and the award to Mrs. Caira reflected this." Before this court may

delve into a redistribution of the marital estate, a clear showing must be made by

the appellant of some abuse of discretion at the trial level. Otherwise, the office

of the appeal usurps the trial court's superior opportunity to weigh factual issues

with appellate second-guessing.

In his reply brief, Appellee raises only one issue, to wit, whether the

trial court erred in ordering a downward deviation in child support from 32% to

22%. The trial divorce decree below reads in pertinent part,
4

6. That because of the time that the Plaintiff spends with the

minor children, there should be a deviation from the Child

Support Guidelines requiring the Plaintiff to pay as child

support to the Defendant, the sum of 22% of her net income.

This deviation is in keeping with the plain meaning of Tenn. Comp. R.

& Regs r. 1240-2-4-.04(2)(b)1994. When such an order falls well within the

contemplation of the Child Support Guidelines, we can find no abuse of the

discretion of the trial court in this award.

For the reasons and under the authorities cited above, we affirm the

trial court in all respects and remand this case for further proceedings not

inconsistent with this opinion. Costs of this appeal are taxed equally against the

parties.

_____________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________

BEN H. CANTRELL, JUDGE

__________________________________

WILLIAM C. KOCH, JR., JUDGE