# FILED August 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk YVETTE MICHEL PORT ER CAIRA )

) Plaintiff/Appell

ant, )

) Appeal No. v. ) 01-A-01-9709-CH-00508 ) 01-A-01-9801-CH-00055 RONALD STEPHEN CAI RA ) Montgomery Chancery

) No. 95-77-275 Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CHAN CERY 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 PLAINTI FF/APPELLANT

MARK A. RASSAS Suite 104, Glenn Building Clarksville, Tennessee 37040

ATTORNEY FOR THE DEFENDANT/APPELLEE

AFFIRMED AND REMANDED2 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 t

wo issues for conside

ration.
1. Whether the tri

al court erred in f

ailing to awardprimary c

ustody of the minor childr

en of this marriage with Defendant/Appellee. 2. Whether the tri

al cour t made an equitab

le property d i stribution 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

unles s the e vide nce pr epon derat es aga inst 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, 8 36-37 (Tenn.Ct.App. 1997) perm app. denied 1997, cert. denied, 118

S. Ct. 1316, 140 L.Ed.2d 48 0 (Mar 23, 1998). We are unpersuaded that the rec ord below prep onderates against th e chancell or’s findings with regar d to custody and prop erty distribution.
With regard to the child c

ustody issue, Ap

pellant makes m

uch of the trial court’s com

ments regardi

ng her fitness as a mother. The true benchm ark for awar ding child custody is the comparative fitness of the parties in vie

w of the criteria set out in our state code, Tenn. Code Ann. § 36-6-106 (1996). See genera lly 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 courtabused its discretion in fi nding the Father m ore fit a parent th

an the Mothe r. 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 awar

ding custody

to Mr. Caira. There is no finding in the record3

determining

the mother to be

unfit because

of this or any other reason. The court simply states, 3. That even tho ugh the Plaintiff wa

s the bookkeeper of the f

amil y, showing disci

pline in financial mat

ters, this was off

set by lack of discipline in he r personal life, and the Court believes that the emotion al stabil ity of the Defenda ntis better or mo

re even than that of the Plaintiff, and that the Defendant should be awardedcustody

of the minor

children, subject to the previous visitation agreement insofar as possible. We find it interesting th at Appellant m

akes no argumen

t that this finding is against the preponderance of the evidence or amounts to abuse o

f discretion. Without such a show

ing, this court m

ust affirm the

actions of the lowe

r court.
As for t he issue regarding di stribution of mar ital property,

it is w el l settled in this jurisdiction t hat trial courts hav

e wide discretion i

n dividin g mar i tal property. See e.g. Wade v. Wade, 897 S.W.2d 702, 71 5 (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 in come plus or m

inus $72,000. Ap pellant at tempts to show abuse of discretion by showing that Mr. Caira's tax forms indicate reimbursem ent s for expenses incurred. What Appellant fails to show

is a preponderance

of the evidence aga

inst the finding of the trial judge. Appellee replies correctly: "The court specifically stated that all proof relative to the parties' income, property, retirem ent pla ns and debts was considered, and the awar d to Mrs . Caira reflected this." Before this court may delve into a redistribution o f the marital

estate, a clear

showing must be m

ade by the appellant of som

e abuse of discreti

on at the trial level
. Otherwise, the office of the appeal usurps the trial court's superior opportunity to weigh factual issues with appellate sec

ond-guessing.
In his reply brief, A ppellee raises only one issue, to wit,

whether the trial court erred in orde

ring a downward de

viation in child support f

rom 32% to 22%. The trial di

vorce decree belo

w reads in pertine

nt part,4 6. That because of

the time that th

e Plaintiff spends w

ith the m inor children, there s

hould be a deviation fr

om the Chil d Support Guideli nes req uiring 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 Te

nn. Comp. R. & R egs 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 tr

ial court in this awa

rd.
For the reasons and under the authorities cited ab ove, we affirm t he trial c ourt in allrespects and rem and this case for fu

rther proceedings n

ot inconsistent

with this opinion. Costs of this a ppeal are taxed equ

ally against the parties.

_____________________________ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ BEN H. CANTRELL, JUDGE

__________________________________ WILLIAM C. KOCH, JR., JUDGE