# FILED

Ap ril 16, 1997 Cecil Crowson, Jr. App ellate C ou rt Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTER N SECTION AT J ACKSON

______________________________________________________________________________ BRIA N PATRI CK GRANT, Shelby Circuit No. 14592 2 R.D. C.A. No. 02A0

1-9603-CV-0

0053 Plaintiff, Hon. Wyeth Chandler, Judge v. TONYA RENE E’ FORTUNE GR ANT, Defe nda nt. STUART BREAKSTONE, Law Office of Do n Owens, Memphis, Attorney fo r Plaintiff. LI NDA L . HOL ME S, Th e Wage rma n LawFirm , Me mph is, A ttorne y for Defe nda nt. REVERSED IN PART AND AFFIRMED IN PART Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. This a domesticrelations cas e wherein child custody is the principal is sue. Bri an Patrick Grant (hereafter “Husband”) f iled suit f

or divorce in the Circuit Court of Shelby County against

Tonya Renee’ Fortune Grant (hereaf ter “Wife”) alle ging that W ife was guilty of inappropri ate marital conduct. Wife filed a counter-complaint against Husb and seek ing a divorc e on the sam e groun ds. Follow ing a ben ch trial, the court awarded both partiesa divorceon the groundsof inappropriate maritalconduct, and awarded the partiesjoint custody of

their minor child with W ife des ignate d as the primary custodial parent. The court al so set the chil d support f or Husband, established a visitation schedule of Husband and divided the parties ’ marital assets. On appe al Hu sban d has raised one is sue, n am ely: W hethe r the trial co urt w as in

errorin awarding the parties’ j oint cus tody of the chil d and in failing to award Husband sole cu stody . W ife has raised three iss ues o n app eal: W hethe r the trial co urt erred in (1) establishing a “floa ting” visitation schedu le in accordan ce with H usband ’s employm ent schedule; (2)in setting Husband’ s child support payment at 15% of his net incom e, and (3) in a wa rding Hu sban d $9 ,000.0 0 of th e partie s’ equ ity in the marital residence. For the reaso ns hereinafter st ated, we reverse in part and affirm in part. The facts are not in dispu te. The parties were m arried in De cember, 1988.2

Their only child, a daughter, was born in March 1991. T he parties separat

ed in April 1994

only nine da ys aft

er moving into their

new marit

al residence, as a result of Wife’s admission t hat she was having an af fair with her employer. At t he time the part

ies purchased their new residence neither part y had discussed plans for divorce. Husband’s moving out short ly after they

had moved into their new home was also prompted in part by t he discovery of a diamond ring in the back seat of Wife’s car. Upon informing Wife of his discovery, Wife announced that she had been having an affair wit h Mr. William Adair, her then current empl oyer, who had pu rchased the ri ng for her. Husban d file d his com plaint for divorce sh ortly thereafter. Several months later, Husband filed a petitio n seeking to have the tria l court enter

a temporary rest

raining order prohibiting Wife from allowing any nonrelated males to visit the ho me in which she and the child l ived after 10P. M. The court entered suc h an order. The fol lowi ng month, Husband filed a Petition for Contempt asserting that Wife had viola ted the previous orde r of the court. Following a hearing the court dismissed the cont empt petit

ion, but issued a st

ern warning to Wife that

she faced the loss of temporary custody of her child if she violated the order aga in. Just a few days prio r to t he divorce hearing Husband filed a second petition for contempt, a lleging another violation of t he trial court’s prior ord er. Following a bench trial, the court ent ered a decree of divorce and gave Wife t emporary custody of t he parties’ child pending a final adjudication on t he issues of child support, child custody, visitat ion rights and division of marital property. Subsequently, the t rial court determined that both part

ies were fit and prop er pe rson s for

cus tody o f thei r da ugh ter an d award ed j oint c ustod y, wi th Wife serving as t

he primary custodial parent. Husba nd was ordered to pay $235.00 per mont

h in child support, which equaled 15% of his net income and in addition, was

awarded $9,000.00 of the parties’ equity in the marital residenc e. Husband’s second contempt pet ition was dismissed however, the t rial court3

ordered Wife t

o prevent her current boyfriend from visiting Wife when the parties’ child was present. The court also set out explicit inst ructions concerning Husband’s

visit atio n right

s. I. The Custody Issue. Because they are closely interrelated, we will dispose of both Husband’s and Wife’s issues at the same time as t hey relate to t

he matter of

custody. As noted, t he trial court, app arently with some reluctance, gave t he parties joint custody of t

heir child, with Wife being designat ed as the primary custodian. This court has long held that jo int custody b y divorced parents of children of the marriage is not

looked uponwith f

avor. This is n ot si mply a bias o f the court , but is a vi ew de vel ope d as

a re su lt o f ye ars

of d eal ing wi th c ase s of this type . We must always keep in mind that in custo dy issues the welfare of the child is paramount. Bah v. Bah , 668 S.W.2d 663 (T enn. App. 1983) . As this court said in Bah , the best interest of the child is the alpha and the omega, the poles tar of

our concern . Id. at

66 5. Jo int cus to dy of chi ldre n b y d iv or

ced pa ren ts

ca n o nly work when the parties ha ve maintained some semblance of respect for one another, where t

he dissolution of the marriage has resulted in an improved relationship involving all the parties. This court observed the following in Dodd v. Dodd , 737 S.W.2d 286 (Tenn. App. 1987).

[W]e feel constrained to addr ess the institution of joint custody. Notwithst

anding the fact

that joint cust

ody of minor children is permitted by st

atute, we have found it necessary t o reverse a large number of such decrees during the past several years. T he experience of this Court has been that

joint cust

ody rarely, if ever, works--for the children. There needs to be one residence, one haven in all the storms of life, including those storms whipped up by the winds of divorce. There needs t o be one parent

with primary control and responsibility for t he upbringing of t

he parties’ children, whenever possible. Custody, in reality, means responsibility for the care, nurture and development of t he mental, emotional and physical nee ds of t

he child. The custo dial parent should expect and receive cooperation and assistance from the no n-custodial parent in every resp ect to serve the best interests of their chil d or children. In contested divorces, when feelings are usually heated and4 emotio ns run hig h, it

would appear t

o this Court

that joint custo dy would not serve the best interests o f the child. Even when the circumstances of the case would suggest joint custody, for it

to be successful woul d require a harmonious and cooperative relatio nship bet

ween bot

h parent

s. Id. at 289-2

90.

In re vi ewi ng th is r

eco rd i t w

ou ld be an und ers

ta te men t t

o s ugg est th at ill feelings existed between Husband and Wife. During the course of this marriage Wife had affairs wit

h at least t

wo men, the first a ffair precipitat ing Husband’s moving out t

he marital home. Several witnesses testified as t o Wife’s consist

ent

use of fou l l angu age to war d Hu sba nd i n the p res enc e of th eir

chi ld , al ong w ith physical and verbal abuse. By the same tok en, the record also reveals that Husband had an affair al l of his ow n, and on top of this Wife compl ained of physical abuse and ne glect. The reco rd indicat

es tha t t he tr ial court was awarding joint

custo dy as a temporary mea sure to see if it migh t not work. However, the court’s l ack of confidenc e in both parties’ abil ity to work together is reflected b y an order of the court that designated Wife’s mot her as a de fa cto referee in making decisions regarding the daught er in the event

that Husband and Wife were

una ble t

o re solv e an iss

ue b et ween th emse lves

. T he r eco rd r eve als e xt

reme tension and discord existing bet ween the parties. Accordingly, we have no hesitation in reversi ng the trial court’s ord er awardi ng joint custody. It is a mor

e diff icu lt d ecisio n f

or th is c ou rt

to as cer ta in which p ar

ent sho uld be awa rde d so le cu st ody of th e ch ild, wit

h t he ot her pa ren t h av ing re aso na ble visitat ion. The Bah court

adopt ed the doctr

ine of “ comparat

ive fit ness”, which incorporates wh at can best be descri bed as a totality of the circum stances test. See Bah at 666. In Bah we a lso he ld t ha t t he te nde r yea rs d oc tr ine , wh ichha d pr

ev io usly created a rebut

table presumption tha t the mother should receive custody of a smal l chil d “of tender years”, w as hereafter onl y a factor—but only one fac tor of5

among many—to be considered in t he overall determination of what is in t he child’s best interests. T he Bah court set forth t he following guidel ines to direct t he court in resolving a child custody decision:

To arrive at

the point

of deciding with whom to place a child in preparation f

or a caring and productive adult life requires consider

ation of many rel evant factors, incl uding but certainl y not limited to [1] the age, habits, menta l and emotional make-up of the chil d and those parties c ompeting for cus tody; [2] the education and experience of those seeking to raise t he child; [3] their character and propensit ies as evidenced by their past conduct; [4] the financial and physica l circ umstances availabl e in the home of each party seeking cust ody and the special requirements of t he child; [5] the availability and extent of third part y support; [6] the associations and influences to which t he child is most likel y to be exposed in the alternat ives afforded, bot

h positive and negat ive; [7] an d wh ere is th e g rea te r li ke liho od of an en vi ro nme nt

fo r t he chi ld of love, warmth, stab ility, support, consistency, care and concern, and physic al and spiritual nurture. ( Brackets added ). Id. at 665-6

. It now befalls our responsibil ity t o make a comparative analysis of t he pa re nt al s ki lls o f t he pa rt ie s i n q ue st

io n, ea ch vy in g f

or cu st od y o f t he ir ch ild . It appears that

both Husband and Wife earn sufficient salaries to insure an adequately comfortable lifestyle for the child. We o bserve, and rightly so, t he concerns raised by Husband over Wife’s recent indicatio n that she contempl ated marrying h er current boyfrien d, Lance Banc roft. Specifical ly, Husband questioned the a bility of Wif e to successfully raise their daughter in such a marriage when Bancroft would bring another small child to live with the famil y, his bli nd seven year old son who requir

es substantial care and attention. While this is a valid concern, of great er concern for this court is the apparent character and dependability of Mr. Ba ncroft, who willfull y and openly violated the tria l court’s temporary injunct ion prohibiting Wife from allowing non-rel ative male visitors to spend t he night at

her home when the parties’ daught er was pr ese nt . Evi den ce w

as pr ese nt ed a t t ria l to th e e ff

ect th at Ba ncr of t r ep ea te dly spent the night with Wife during the pendency of t he trial court’s order6

prohibiting sam e. Although the trial court dismi ssed Husband’s sec ond petition for

con temp t, ther

e wa s tes

timo ny of

fere d by H usb and throu gh a h ire d private inve stigat

or who tes

tif ied t hat he sa w Banc roft

leave Wife’ s home on t wo separate occasions aft er spending all night there. The invest igator also test

ified that the da ughte r was prese nt at the h ome at

that time. Wife denied t

hat s uch liais ons had taken pl ace. Recognizin g that a choice must be m ade, this court al beit reluc tantly,

aw ar ds W if e t he pr iv ile ge of

ha vi ng so le c us

t od y o f t he pa rt ie s’ min or

ch ild . In so doing we specifically say to both Husband and Wife, in particular to Wife, t hat the re cor

d in this c ase cau ses

this c ourt c onc ern , for i t shows that n eithe r par ty may be dee med fit to retain custody of this chi ld over a long peri od of time. Suc h in cid ents

as fo ul la ngu age a nd m arita l i nfid el ity, c oupl ed w ith emotional abuse and bitt er infighting, r

equire this court

to consider and make mention of a t

hird option: t

he service of a fost

er home, which perhaps might prov ide the ch il d a m ore h arm onio us a s we ll as s afe a tmosphe re i n wh ich to grow up. Therefo re, we res

pectf ully direct t

he tr ial court upon reman d to e stab lish contact with the appro priate division of the Tennessee Depart ment of Human Services (“TDHS”)and either by agreement or appropriat

e order provide that TDHS will m onitor t

he home life and stability of t he child on a quarterly basis during the ne xt thre e yea rs af ter the entry of the fina l d ecr ee an d to re port to the court its findings. II. Visitation and Other Issues. The current visit

ation schedule fashioned by the t rial court provides that the c hil d be pic ked up the nigh t befo re Hu sba nd’ s “of f day ” and returned to Wife on t

he morning when Husband returns to work. This arrangement is cumbersome at best and has no st ability in that

the visit ation t imes change fre que ntl y du e to H us ban d’ s fl uc tuati ng e mp lo ym ent s ch ed ul e. We7

recommend that except f or holidays and certain vacat ion periods, Husband’s visitat ion rights be limited to weekend visits, but, as stat ed, he shall have l iberal visitat ion rights so as t

o include a proportionat e number of holidays and vacation t

imes. We direct t

hat t he parties be given a n opportunit y to fashio n a visitat ion schedule. In the event that they cannot

, then it shall be l eft t

o the judgme nt of the trial court on remand to do so. Wife furt her contends that

the t rial court erred in awarding child support payments to Wife equaling 15% of his net income, rat her than 21% as provided by the guidelines. Having awarded the parties joint custody, but

making Wife the primary physical custodian, t he court sta ted: “. . . Ordinarily he would pay 21 per cen t. I’ m go ing to put it 1 5 per cen t, wha tever

it is. . . bec aus

e he ’s go ing to have a little extra t

ime. He got a litt

le more than usual.” In light of t

he fact that Wife now has f

ull custody of

the ch ild, and t

hus

mor e fin anc ial res

ponsibi li ties

, we are o f the o pin ion th at chi ld sup port p aym ents shoul d be increa sed to 21% of Husband’ s net income. Lastly, Wife contends that the t rial court erred in awarding Husband $9,000.00

of the $35,000.00 co nsidered as equity in t he marital residence. Her claim of error rests on two gro unds. First, because Husband removed $8, 000.00 from their daughter’ s savings account when he moved out of the marit al residenc e. Second, that the sum of $30,000.00, us ed for the down pa yment on the ho me, wa s a gift

t o h er by W illiam Ad ai r, he r e mpl oyer (an d t he n lo ve r) . In her brief, Wif

e states t

hat “Brian Gra nt has been unjust ly enriched by the Trial Cour t. It i s re pre hen sib le that he wou ld ask f or on e/h al f of Wif

e’s lo ver’ s gi fts to her.” Husband on the ot her hand contends that $30,000.0

0 was part of Wife’s bonus that was paid to her at a com pany Christmas party. Be that as it may, regardless of its source and the real motives behind it , when the $30, 000.00 was used to pay part

of the purchase price, and title to the propert y was taken in t

he names of both the parties’, the fund s were transm uted into marital p roperty.8

The trial cou rt did not err in this division of the equity in the marital residenc e. In their res pec tive C onc lu sio ns, b oth Hu sba nd a nd Wi fe asked this c ourt to award each of them att orney fees on appeal, t o be established by the t rial court uponreman d. Co nside ring the circu msta nces o f t his ca se in whole, we are of the opinion that each party shoul d bear his or h er attorney fees on ap pe al. According ly, the tria l court’s judgment grant ing t he part ies join t cust

ody wit h Wif e b ein g t

he pr ima ry cus to dia l pa ren t is re ve rse d. W if e is a war

ded so le custody of the parties’ mi nor chil d, with Husband to have liberal visitation rights. The trial court’s judgment fixing child support is modified by increasing mother’s sup port to 2 1% of H usb and ’s n et inc ome . The trial cou rt’s j udg me nt per taini ng to the division of marit

al property is affirmed. The T ennessee Department of Human Services is ordered and directed to become involved in this case t o the ext

ent and in the mann er set out heretofore in this opinion. This case is remanded to the Circuit Court of Shelby Count y for furt her proceedings not inconsist ent with t

his opinion. Cost

s in this cause on appeal are taxed 3/4 t

o Husband and 1/4 to Wife, for which execution may issue if

necessar

y.

________________________________________ TOMLIN, Sr. J.

________________________________________ CRAWFORD, P. J. W. S. (CONC URS)

________________________________________ FARMER, J. (CONC URS)