# FILED

April 28, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

WILLIAM THOMAS WINCHESTER, ) ) Plaintiff/Appella

nt, ) Chester Circuit No. 4186

) v. ) ) Appeal No. 02A01-9802-CV-00046 GLENDA RACHELLE WIN CHESTER ) (COLLIER), ) ) Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT OF CHESTER COUNTY

AT HENDERSON, TENNESSEE

THE HONORABLE WHIT LAF ON, JUDGE For the Plaintiff/Appellant : For the Defendant/Appellee : William T. Winchester, Pro Se C. David Jones Memphis, Tennessee Huntingdon, Tennessee

AFFIRMED IN P

ART, REVERSED IN PART AND REMA

NDED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S. ALAN E. HI GHERS, J.OPINION

This is the second appe

al in this child custody case. In the first trial, the trial court awarded the parties joint custody of their minor child. Both parties appealed, each arguing for sole custody. This Court reversed th

e award of joint c

ustody and remand

ed the case to

the trial court for an

award of sole custody to either the mother or father. On r emand, the trial court aw arded sole custod

y to the mother, and ordered the father to pay child support. The father now appeals the custody award

to the mother and the award of child support. We affirm the award of custody, reverse the award of child support and r

emand for reca

lculation of child s

upport. Since the trial court on remand considered the proceedings in the first trial, we must review the ev idence in the first trial as well as the proceedings on remand. Glenda Rachelle Winchester Collier(“Mother”) and William Thomas Winchester (“Father”) were married on Februa ry 14, 1994. They separated before the birth of their daughter Maggie, born on October 24, 1994. Both parties soughtsole custody of Maggie. Prior to the first trial, the trial court appointed a guardian ad litem for Maggie to aid in the

custody determina

tion. The trial cou rt also ordered a psychological evaluation of Mot h er by Dr. Elias Kin g Bond, to determine

her fitness as a p

arent. Prior to tri

al, Father was evaluated by Dr. Lynn Zager. At the first trial, Father was represented by counsel and Mother was not. Father testified, and presented evidence and

several witnesses and cross-examined Mother. Mother testified but did not cross-examineFather

or present e

vidence or witne

sses on her behal

f. Throughout all o

f these proceedings, the relationship between the parties has been consistently acrimonious. At the first trial, Father complained of Mother’s failure to convey medical information to him about Maggie’s health, asserting t hat Mothe r did not inform him when the child was hospitalized for three days and that, on another occasion, Mothe r failed to inform him that Ma ggie had some medicine in her bag that needed to be refrigerated. Father testified that alth

ough Maggie had as

thma and se veral doctors have prohibited her exposure to smoke, Mother continued to smoke a roun d Maggie, worsening Maggie’ s r espiratory ailments. Several medical records were introduced diagnosing Maggie’s asthma and including physicians’ admonitions against Maggie’s exposure to smoke. In the first trial, Father argued that Mother had an unstable employment record, holding nine jobs in the three year period be fore trial. He a sserted that Mothe

r let her second o

ldest child overdose on medic

ine while the child

was sitting in Mother’s lap in the hospital emergen cy room.2

He also maintained that Mother had sexual relations with her boyfriend wh ile Maggie w as in the home, in violation of

the trial court’s

orders. Father c

haracterized

Mother as untruthf

ul, asserting that she listed three children on her public housing application when only two children li

ved with her, and that she made c ontradictory sta

tements about her

smoking habits. Fa

thertestified that Mother had a history of

obstructing visitation with her children’s fathers. He stated that sometimes when he would pick up Ma ggie for visitation

there would

be a note on the door with directions to a babysitter’s house where Maggie was staying at the time. The psychologist who had eval uated Father, Dr. Lynn Zager, testified that he was free of significant

mental illness and c

oncluded that he w

ould be a fit

pa rent. Father’s sister and aunt testified about the loving relationship between Maggie and Father and of Father’s e

xtensive family support. Father testified about his love for Maggie and his invo

lvement in her dai

ly activities. He emphasized

the co urt-ordered psy

chological exami

nation of Mother, w

hich indicated a h

istrionic personality disorder, with passive-aggressive and dependent features. At the first trial, Mother testified that, when she was pregnant with the parties’ child, Father dragged her down the stairs by her feet. Father denied this. Mother asserted that Father repeate

dly threw her out of the house, verbally abused her, and threatened her with physical abus

e. Mother also accused Father of stalking her after they separated. Mother filed a police report indicating that Father re peat edly drove by her home. Father admitted to conducting surveillance on Mother and hiring a private detective to gather more information. Mo ther denied smoking around Maggie or allowing her boyfriend to spend the night while Maggie was present. The Guardian Ad Lite

m’s report prepared for the first trial recommended that the parties have joint custody in decisions regarding Maggie, but that Mother have principle physical custody, with liberal visitation to Father. The Guardian Ad Litem stated:

From what I have obser

ved, the natural m

other is somew hat immature and do es not appear to unde rstand the importa

nce of her actio

ns as they affec

t h e r position with the Court in reg ard to the custody i

ssue pending. On th

e oth e r hand, William Winchester is ve ry intense and all

consumed with

this case and has left no stone unturned. Jointphysical custody was not rec ommend ed because of the animosity between the parties. The Guardianfound the p ublic housing that Mo ther lived in to be “

adequate for the

children and Ms. Winchester.” The Gua rdian also considered Dr. Bond’s psychological evaluation of Mother. Although Dr. Bond’s report stated that Mother “could very well have a personality disorder,” he3

concluded

that “[b]ased on these i n terviews and the information that I have at hand, I do not see sufficient reason to consider her unfit or incapable or retaining custody of their c hild, as it presentl

y remains.” After the first trial, the trial court awarded the parties joint custody of Maggie, ordering that she spend alternate weeks with each parent. B oth Fathe r and Mother appealed to this Court. On appeal, both pa rties agreedthat the trial cour t erred in award

ing joint custody of M

aggie to both parents. Each sought sole custody. On appeal, this Court concluded that the trial court erred in awarding the

parties joint custody of Maggie, in view of the animosity between the parents. We found that the record did not

contain sufficient information for the appellate court to make an award of sole custody and remanded the

case to the trial court for further findings of fact r

egarding custody

and for an awar

d of sole custody to either Mother o

r Father, with rea

sonable visitation t

o the noncustodial p

arent. Prior tothe second

trial, Father attempted to suppress the Guardian Ad Litem’s report that

was prepared for the first trial, stating that it contained inaccur acies and incorrectly relied on the tender years doctrine.

This motion was deni

ed. Father als o f

iled a motion to recuse and change

venue. The recusalmotion alleged that the trial court infringed Father’s First Amendment right of free speech and had an

alleged conflic

t of interest with

the guardian ad litem from the first trial. The motion explained that

the conflict was because “the Guardian Ad Litem has a workin

g relationship withthe Juvenile Court,

has tried Juvenile

Court cases, and t

hus has a profess

ional interest with

all trial courts in this judicial distri ct.” Father also reported the trial court judge to the disciplinary board. The trial court denied Father’s motion to recuse and change venue. In the second trial, the trial court limited the testimony and proof to those incidents that occurred after the first trial, over Father’s objection. The trial court stated that it would consider the record in the first trial regarding incidents prior to the parties’ divorce. In the seco nd trial , Father testified that, on one occasion after the initial custody award, Mother refused to let him visit with the child for scheduled visitation. He also alleged that on one4

occasion Mother failed

to show up at a designated time and place to exchange the child for visitation; there was conflicting testimony as to when this occurred. Father also claimedthat

Mother’s lack of stability in her personal life affects the child. For example, Father noted that M other had held at l

east four jobs sinc

e the first t rial, that Mother obtained her current job just one month before trial, after

working only one month at her previous job, that Mothe r lived in a public housing project, that Mother did not have custody of one of her other children by a different father, and that Mother had bounced severalchecks. He alleged several inst ances of perjury by Mother, such as her denial of ever smoking around Maggie, h er denial o f losing custody of her eldest chi ld, and her denia

l that she had lived

on Windsor Street i

n Memphis. In his testimony, Fathe

r emphasized fa

mily support from his

parents, sister,

and aunts. He noted his apartment in Memphis with a pond and other amenities for Maggie, and his access to the Unive rsity of M emphis Day Care Ce nter, which he as serted has exce llent educationa

l programs. Father also pointed out his a

dvanced educa

tion: a bachelor’s degree

in physics and a master’s degree in education. Father testified that he was attending law school. Father also stated that he regularly attends church and has had Maggie baptized. At the second trial,

Mother introduce

d evidence indic

ating that Father h

as had seve ral

e ncounters with the local police department. An investigator with the Huntingdon Polic e Department,

Steve McClure (“McClure”), testified that he had a confro ntation with Father when Mother failed to show up f

or a custody exch

ange. McClure sta

ted that Father ca

me into city hall ranting and raving because his ex-wife failed to meet him for a custody exchange. McClure stated that he probably would have arrested Father if his mother had not been accompanying him. Father had another confrontation with the Huntingdon Police when they were called at a different custody exchange. Father stated that a police office

r approached hi

m and asked Father

if he was wearin

g his body microphone. Whe

n Father answere

d in the affirma

tive, the officer allegedly grabbed the microphone out of Father’s jacket. Father wrote a letter to the police department demanding a formal apology. In that letter, Father stated that he had a legal right to be at Wife’s home and to tape record the events and that “I have tape recorded every encounter with my ex-wife ove r the past year in order to protect myself from her lies.”5

In a letter to the D irec tor of Public Safety of Huntingdon, Father accused the police department

of staking out his apartment and following him on several occasions. He threatened that “any further harrassment [sic] by any member of your department will re

sult in civil litigation and federal intervention; as a disabled federal officer, I guarantee it.” Mother testified a

t the second trial a

s well. She deniedthat she smoked around Maggie or that she exposed her to smoky environments. Mother denied that Maggie has asthma. Mother also deniedthat her boyfriend stayed the night at her home or that they had engaged in sexual activities while Maggie was in the house. Mother testified that Father had continually harassed her by driving by her family member

s’ houses, taking photographs and videotapes of Mother and her relatives, and taping phone conversations with her without her knowledge. Lori Cole, Mothe r’s cousin and Maggie’s former babysitter, filed a complaint with the local police department alleging that Father

was stalking and videotaping her and her husban d. In response, Father filed a lawsuit against the Coles for defamation, slander, and fili ng a false police report. In her testimony, Mother noted that Father’s lawsuit was dismissed with a war ning of Rule 11 sanc

tions. Mother also maintained that Father perjured himself in his lawsuit against the Guardian Ad Litem by claiming indigency when Father owned a $50,000 house on which he was receiving rental payments. Mothe r testified that she had a stable job that paid $408 a week, had recently purchased a reliable automobile, was in the process of buying a house, and had the full sup port of her family, including her mot her, wh o cared for Maggie while Mother was at work. Mother observed that Maggie’s older half-sister loves and misses Maggie when she is gone and asserted that it would not be in Maggie’s best interest to separate her from her older sister. Prior to the first trial,

Father paid $200 per month in child support. Neither party paid child support during the two year period in which the parties exercised joint custody. Father is now a full time law student who re

ceives $20,000 pe

r year in stu

dent loans and $440 per month in rental income on his house. At the first trial, Father was receiving $454 per month in Ve teran’s Disabilit

y payments. There was no evidence presented at the second trial indicating that

he no longer received the disability payme

nts. After the secon

d trial, the trial c

ourt issued an orde

r, stating in pertin

ent part: Visitation privileges set out by Chan cel lor Morris have reasonably been complied with by both parties and the families of both parties have been and are

very supportive of each party.6 The Court finds there is still friction between the parties. T he proof shows that [Father] has secretly taped conversations between the parties and has taken pictures from a distance, all of which is annoying to the other party. The Court finds that [Father] did complain that [Mother] smoked in the presence of the minor child, which complaint is denied by [Mother]. The Court finds that the

Defendant, Gle

nda Rachelle Win

ch ester (Collier), is employed with Proctor and Gamble at an annu al salary of $24,0

00.00 and is purchasing a house that will be adequate for her and her two minor children The Court f

inds that the Plaintiff, William Thomas Winchester, lives in an apartment in Memphis that is adequate for him and his minor daughter. The Court finds that each party has adequate back-up in their car e o f their minor child, Maggie. The Court finds that [Mother] is the mother of another daughter born to her in a prior marriage who is approximately two years older than the minor child of the parties. The Court finds that said sisters are very close and have lived together more or less since Maggie was born. 10. The Court finds that it would be in the best interests of the minor child, M a ggie, that she be place d in the custody of th

e Defendant Gle

nda Rachelle Winchester

(Collier), with right of liberal vi sit ation to Plaintiff William Thomas Winchester. IT IS, THEREFORE, OR DERED, by the Court t

hat: 1. Custody of the minor child shall be placed with the Defendant, Glenda Rachelle Winchester (Collier), with the right of re asonable visitation granted to the Plaintiff, William Thomas Winchester. 2. Plaintiff, William Thomas Winchester shall pay the sum of $300.00 per month as child support, plus Clerk’s fees, through the Clerk’s office. Payment s hall be made in bi-monthly payments on the 1st and 15th of each month. From this order, Fat

her now appeals. On appeal, Father argues that it was error for the trial court to proh

ibit him from arguing or testifying about facts introduced at the first trial or which happened before the divorce was granted. Father contends that this had the effect of preventing him from impeaching Mother’s testimony that she did not smoke around the child. Father contends that th e trial court fai

led to conduct a comparative fitness analysis. Father also argues that it was error for the trial court to consider the GuardianAd Lite m’s repor t despite its inaccuracies and its reliance on the tender years doctrine. Father maintains that the ev idence preponderates against the trial c

ourt’s award of

custody to Mother. Father also contends that the trial court’s determination of child support was arbitrary and inappropriate

because the trial court did not hear any evidence on Father’s income. Finally, Father argues that the trial judge erred an d abused his discretion by failing to recuse himself and forcing Father to reveal facts concerning his complaint against the trial judge. In child custody case

s, appellate rev

iew is de novo upon the record with a presumption of the correctness

of the trial court

’s findings of fac

t. See Tenn. R. App. P. 13(d ); see also Hass v. Knighton , 676 S.W.2d 554, 555 ( Tenn. 1984); Dalton v. Dalton , 858 S.W.2d 324, 327 (Tenn. App.7

1993). Of course, the child’s best interest is the primary consideration in custody cases. See Bah

v. Bah , 668 S.W.2d 663, 665 (Tenn. Ap p. 1983). A compar

ative fitness ana

lysis is used to

decide which parent sh

ould b e awarded custody. See Ruyle v. Ruyle , 928 S.W.2d 439, 442 (Tenn. App. 1996). The first issue for our consideration is whether th e trial court erred in limiting Father’s testimony and proof to those incidents that occurred after the parties’ divorce was final. The trial

court repeatedly q uoted the appellate court’s instruction that the case was remanded for further findings of fact. See Winchester , 1997 WL 61508, at *4. The trial court stated: [T]he Court of Appeals has used the term, “conduct further findings and facts.” So, anything new--and if this is not new, why then there is no necessity--I’m asking you- -not asking you, but I am

advising you, that you have the right to introduce any new facts. And, that’s what I’m concerned with. I’m not concerned, as such, about the divorce. What I’m concerned with is to develop further facts, which would then be submitted to my reco

mmendation to the Cou

rt of Appeals. The trial court stated further: Wh at you want to do is argue--I’ve read three or four times, what the Cour t o f Appealshas instructed. And, I’ve asked that you stay with it. Now, one more time. This is it. Remand the cou rt, the trial cour

t, to conduct further

findings of fact, concerning each party’s comparative fitness. Now, when you say further, you mean something new. What’s old is in this record. Although the trial court limited the parties from introducing evidence that was already in the record, the trial court

explained that it would review and consider the record of the first trial. The trial court stated, “Just what’s happ

ened, now, since

the legal recor

d, as far as I’m c

oncerned, beca

use I have those and I’m going to read what was said and make a consideration.” On direct examination, when Father attempted to

question Mother about the contempt petitions that he filed in the first trial, the trial court responded, “I’ll read the record on that; you don’t need to reintroduce it.” The trial court is aff

orded wide discr

etion in the admission or

rejection of evi

dence, and its actions will be reversed

on appeal only

where there is a showing of an 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). The trial court’s statements indicate clearly that the trial judge considered

in its decision information containedin the record from the first trial. At the first trial, Father had full opportunity to develop any facts or evidence. We find no abuse of discretion in the1 This section previously read: (d) It is the legislative intent that the gender of the party seeking custody shallnot give rise to a presumption of parental fi tness or cause a pres umption in favor or against the award of custody to such party; provided, t hat in the case of a child of tender years , th e gender of the pa rent may be consid

ered by the cour

t as a factor in determining custody after an examination o f the fitn ess of each par ty seeking custody. Tenn. Code Ann. § 36-6-101(d) (1996). 8 trial court’s decision to refuse to hear testimony about events already reflected in the record. The trial court’s decision on this issue is affirmed. Father’s next

issue on appeal is that the trial court failed to compare the fitness of the parties but, instead, improperly applied the abolished tender years doctrine by requiring Father to provethat Mother was unfit. The tender years doctrine w as original ly established in Weaver v. Weaver , 37 Tenn. App. 195, 261 S.W.2d 145 (1953). The court held in that case, “A mother, except in extraordinary circumstances, should be with her child of tender years. . . . Normally, such a c hild will not be taken away from its mother unless it is demonstrated tha

t to leave the child

with its mother would jeopardize

its welf are, both in

a physical and in a moral sense.” Id. at 202, 261 S.W.2d at 148. When the comparative fitness doctrine was adopted in Bah v. Bah , 668 S.W.2d 663, 667 (Tenn. App. 1983) , th e tender years doctrine became only a factor in the analysis. The Bah court stated that, To the extent the “tender years” doctrine has continued efficacy it is simply one of many factors to

be consider ed in determining c ustody. . . . [I]t is n

ot necessary to find that a mother is unfit in order to award custody of

a minor child to the father, or for that matter another third party when it is in the child’s best interests. Id. at 666-67. In 1997, the state l egislature amen

ded Tennessee Co

de Annotated § 36- 6-101(d) to

state that “It is the legi

slative intent that

the gender of the

party seeking cu

stody shall not give r

ise

to a presumption of pa

rental fitness

or cause a presumption or constitute a factor in favor or against the award of custody to such party.” Tenn. Code Ann. § 36-6-101(d) (Supp. 1998). 1 Father lists several instances in which he asserts that the trial court stated that the issue before it was whether Mo

ther was fit

or unfit. For example, the trial judge told Father, “[W]e’re talking here whether she’s a fit mother or not.” Father also notes the trial court’s admonition that Father was to introduce proof showing that “since the divorce was granted, that this woman has been a

n unfit mother or a fit mother.” Father fails to note the trial court’s

statement that “th

e question is, is

her9

ability to be aproper parent, and yours, too.” At ano

ther point, the tria

l court asked Fathe

r why it should aw ar d custody to him rather than to Mother. Father points to no statement in the record indicating the trial court’s award of custo dy to Mother was based on its gender preference. Mo reover, the custody order indicates clearly that the trial court performed an appropriat e comparative fitn

ess evaluation of

the parties: Vi sit ation privileges set out by Chancellor Morris have reasonably been complied with by both parties andthe families of both parties have been and are very supportive of each party. The Court finds there is still friction be tw een the parties. The proof shows that [Father] has secretly taped conver s ations between the parties and has taken pictures from a distance, all of which is annoying to the other party. The Court finds that [Father] did

complain that [Mother] smoked in the presence of the minor child, which complaint is denied by [Mother]. The Court finds that [Mother] is employed with Proctor and Gamble at an annual salary of

$24,000.00 and is pu

rchasing a house

that will be adequa

te for her and her two minor children. The Cour t finds that [Father ] lives in an apar

tment in Memphis that i s adequate for him and his minor daughter. The Court finds t

hat each party has a

dequate back-u

p in their care of

their minor child, Maggie. The Court finds that [Mother] is the mother of another daughter born to her in a prior marri age who is approximately two years older than the minor child of parties. The Court finds that said sisters are very close and have lived together more or less since Maggie was born. The Court finds that it would be in the best interests of the minor child, Maggie, that she be placed in thecustody of [Mother] with right of liberalvisitation to [Father]. While the trial court did not discuss separately each factor listed in Tennessee Code Annotated § 36- 6-106, from the record

and the final orde

r, it is clear that

the trial judge co

nducted an appro

priate comparative fitn

ess analysis. We f

ind this issue on appe

al is without merit. Father also argues that

the Guardian Ad L

item’s report wa

s erroneously

utilized by the trial

court because it relied upon the tender y ears doctrin e. However, on the topic of the tender years doctrine, the Rep

ort states: The Tennessee C ourts h ave historically recognized the “tender years doctrine” since thecase of Weaver v. Weaver , 261 S.W.2d 145 (Tenn. App. 1953), in which the Cour t ruled “a mother , except in extra

ordinary circum

stances, should be with her child of tender years.” This has been the case until recently in which the Court has found that in the case of Bah v. Bah , 668 S.W.2d 663 (Tenn. App. 1983) “that the tender year s doctrine is only a factor to be con sidered i n the overall dete rmination in what is i

n the best interest

of the child.” It appears that the Courts are moving toward a more modern approach to the c ustody issue in

finding that the be

st interest of the c

hild is the paramount issue with tender years being a factor along with the warmth, consistence, and continuity of th e relationship

between parent and child and not the sex of the parent. Edwards v. Edwards , 501 S.W.2d 283 (Tenn. App. 1973).10

As noted above, the custody order by the trial court does not indicate that the trial judge relied

on the tender years doctrine. We find no abuse of discretion by the trial court in utilizing theGuardian Ad Litem’s report in its decision on custody. Father contends on appeal that theevidence preponderated against the trial court’s decision

to award custody to M

other, based on a

comparative fitn

ess analysis. He a

rgues that Mother

is emotionally

unstable and has an unsettled lifestyle, changing employment frequently. He maintains that Mother obstructed his visitation w ith Maggie, and that she smokes in Maggie’s presence and denies that Maggie has asthma. Father notes that Mother

lives in a public housing project, while he lives in an family-

oriented apartm

ent complex in Memp

his while attending school, andpoints out that h e is highly e ducated. Father notes that Mother has three children, and that her mother has custody o f her oldest

daughter. He alleges incidents indicating dishonesty, such as an arrest for writing bad checks and lack of truthfulness in responding to discovery inquiries about subjects such

as drug use, prior marriages, smoking around the parties’ chil

d, and overdosing a

nother child with medication. When the resolution of the issues in a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the witne sses in th eir manner and de meanor while testifying is in a far better position than this Court to decide those issues. See McCaleb v. Satur n Corp. , 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn. App. 1997). The weight, fa

ith, and credit

to be given to any

witness’s testimony lies in the first instance withthe trier of fact, and

the credibility accorded will be given grea t weight by the appellate court

. See Whitaker , 957 S.W.2d at 837; see also In re Estate of Walton v. Young , 950 S.W.2d 956, 959 (Tenn. 1997). This is especially true for custody dec isions, which are factually driven and require

t he careful consideration of numerous factors. See Adelsperger v. Adelsperger , 970 S.W.2d 482, 484 (Tenn. App. 1997) (citing Scarbrough v. Scarbrough , 752 S.W.2d 94, 96 (Tenn. App. 1988); Holloway v. Bradley , 190 Ten n. 5 65, 571 , 23 0 S. W.2 d 10 03, 100 6 (1 950 )). “Si nce [ chi ld c ust ody] decisions often hi

nge on the parti

es' credibility, appellate courts are reluctant to second-guess trial judges who have observed the witnesses and assessed their credibility.” Adelsperger , 970 S.W.2d at 485 (cit ing Gilliam v. Gilliam , 776 S.W.2d 81, 84 (Tenn. App. 1988)).11

Some of the facts involved in compa ring the f itness of the parents in this case are either undisputed or do not depend on a credibility determination. It is undisputed thatMaggie loves both parentsand has emotional ties to both. Both par ents have living ar

rangements

that are suitable for raising Maggie. Mother’s multiple marriage

s are undisputed,

as is the fact t

hat Moth er’s mother retains custody of

her oldest daughter. Without question Father is highly educated. It is undisputed that Mother is emplo

yed and Father is n

ot, while he is in school All of these fact s are relevant t

o the custody deter

mination and do not in

volve a credibili

ty determination by

the trial court. However, a number of facts are disputed and require the trial court to

assess the demeanor and credibility of the parties and the witnesses. Father insists that Mother and her boyfriend smoke in Maggie’s presence, which would exac erbate Maggie’s respir

atory conditions. M

other denies this. Mother alleges that Father dragged her down the stairs by her feet while she waspregnant, and that he was controlling and verbally abusive. Father denies this. Father alleges that Mot her and her boyfriend slept together while Maggie was in her home, which Mother denies. The parties’ temperaments and emotional characteristics have been described by witn

esses. The psychiatrist who evaluated Mother, Dr. Elias King Bond, described Mother as possibly having “a personality disor

der, probably be

st characteriz

ed as a mixed diagn

ostic picture, wit

h histrionic and passive/aggressive and dependent fe atures.” Howev

er, he did not find h

er to be an unfit

parent. Based on his evaluation, as well as his conversations with Father, he stated that he saw no reason not to continue the arrangement whereby Mother retained custody of Maggie and Father

continued to have reasonable visitation. The Guardian Ad Litem described Mother as intell igent and noted her efforts to improve herself by completing her education to get a job to support hers elf and her chi ldren. She also described Mother as “somewhat

immature” and observed that she did not seem “to understand the importance of her act

ions as they affect her position . . . in regard to the custody issue . . . .” The observations regarding Mother are corrobora

ted by the undispute

d facts of her mul

tiplemarriages and the loss of custody of her oldest daughter. The psychiatrist who e

xamined Father, D

r. Lynn Zager, de

scribed him a

s “sens itive” and “caring” and “free of any significant or severe mental illness.” The Guardian Ad Litem stated that Father was concerned

for his daughter “almost

to the point of obsession.” She described Father as “very intense and all consumed with this case and has left no stone unturned.” Mother described12

Father as “controlling”

and testif

ied t hat he had followed her, had conducted surveillance on her home and on her friends and family members, had taped telephone conversations with her an d members of her family, and taken photographs of Mothe r an d her friends and family. Father acknowledges much of

this behavior, andit is corroborated by police reports. Father was described by a police detective as “very very combative.” Thus, in this case, there are a number of disputed facts requiring the trial court to determine credibility. In addition, the fa cts regarding the

parties’ temper

aments and emotion

al characteri

stics, crucial to a custody de te rmination, must be de termined by the tri

al court in view of

the parties’ demeanor in the c

ourtroom and their

conduct during the

course of the litig

ation: Custody and visitation dete rminations ofte n hinge on subtle factors, including the parents’ demeanor and cr edibility during the divorce procee

dings themselves. Accordingly, appellate court s are reluctant to

second-guess a t

rial court’s dec

isions. Gaskill v. Gaskill

, 936 S.W.2d 626, 631 (Tenn. App. 1996). In addition, the trial court relied on the fact that Maggie and he

r half-sisters “

are very close and have lived together

more or less since Maggie was born.” While living with Mother, Maggie’s maternal grandmother

cares for Maggie and her older sisters, providing an opportunity for all three sisters to spend time together. The Guardian Ad Litem described Mother’s mo ther as “a very concerned

grandmother who appears to want the very best for her granddaughter.” Father does not dispute this. “Generally

speaking, siblings,

following a divorc

e, have a right to s

pend their minority tog ether i n the absence of proof of potential harm to one of them or other extenuating circumstances.” Gracey v. Gracey , No. 03A01-9511-CV-00419, 1996 Tenn. App. LEXIS 240, at *7 (1996). Clearly it

was appropriate

for the trial cour

t to take into acco

unt the benefits

to Maggie of maintaining her

relationship with h

er sisters. Bothparents in this ca

se love Maggie an

d have significan

t stren gths and weaknes ses. Viewing the record as a w hole and deferr

ing to the trial cour

t’s ability to

assess the credibility and demeanor of the witnesses, we cannot say that the evidence preponderates against the trial court’s decision to award custody of Maggie to Mother. The award of custody to Mother is affirmed. Fath er also argues on ap

peal that the tria

l court’s award o

f child support wa

s arbitrar y because the trial court did not hear any evidence on Father’s income and failed to make a written finding justifying deviation fromthe child support guidelines. Mother contends that because Father basically has no income, the trial court set child support at a reasonable amount.2 The California Fa mily Code defines in

come for child sup

port purposes as: (a) The annual gross i

ncome of each pa

rent means income

from whatever source derived . . . and includes, but is not limited to, the following: (1) Income such as commissions, salaries, royal ties, wages, bonus es, rents, dividen

ds, pensions, interest, trust income, annuities, wor kers ’ compensation be

nefits, unemployment

i nsu rance benefits , disability insuran ce benefits, soc

ial security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article. Rocha , 80 Cal. Rptr. 2d at 376-77 (quoting Cal. Fam. Code § 4058). 13 Our review of a child

support order is de novo on the record. The t rial court’s factual findings are presumed correct, “unless the preponderance of the evidence is otherwise.” T enn. R. App. P. 13(d). No presumption of correctness attaches to the trial court’s conclusions of law. See Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). The record before us clearly reflects Father’s income at the time of trial consisting of $440 per month

in rental income and $20,000 per year in student loans. Father apparen tly continues to receivethe $454 per month in Veteran’s Disability Payments that he was receiving at the first trial. While the trial court did

not expressly stat

e the income on whic

h he based the aw

ard of child

support, the re cord reflects th

at the court clea

rly heard eviden

ce about Father’ s loan and rental i ncome . Father did not dispute this income at trial. We must first determin

e whether Father

’s student loans ar

e considered inc

ome for purposes of determining child support. Tennessee’s child support guidelines broadly define gross income:

G ross incom e shall include all income from any source (before taxes and other deductions), whether earned or unearned, and includes but is not limited to, the fol lowing: wages, salaries, commissions, bonuses, overtime payments, dividen ds , severance pay, pensions , interest, trust inc ome, annuities, ca

pital gains, benef

its received from the Social Security Administration, i.e., Title II Social Securit y b enefits, workers compensation benefits whether temporary or permanent, judgment s recovered for personal inju

ries, unemploymen

t insurance bene

fits, gif ts, prizes, lottery winnings, a

limony or maintenan

ce, and income f

rom self-employme

nt. See Tenn. Comp. R. & Regs. Rule 1240-2-4-.03(3)(a) (1994). Student loans are not included in the definition, nor is their status addressed in any Tennessee case law. Therefore, caselaw from other jurisdictions must be considered. The California Court of Appeals held that educational loan proceeds,including amounts ov er th at required for books and tuition, are not income under the state’s Family Code definition of income, which is similar to the Tennessee definition. 2 See Rocha v. Rocha , 80 Cal. Rptr. 2d 376, 377 (Cal. Ct. App. 1998). The Rocha court reasoned that student loans, withan expectation of repayment, differed substantively from the sources of inc

ome listed in3 Milligan was overruled on other grounds by Overbey v. Overbey , 698 So.2d 811,

815 (Fla. 1997). 14 the code definition that had “no expectation of repayment

or reimbursement.” Id. Several other jurisdictions have also held tha t educational loa

ns are not income

for child support purposes. In In

re Marriage of Syverson , 931 P.2d 691, 698 (Mo nt. 1997), the Supreme Court of Montana found that educational loans that must be repaid are not consider

ed income

for child support purposes, but educational loans that need not be repaid are income if they ar

e intended to

subsidize the borrower’s living expenses. In Thibadeau v. T hibadeau , 44 1 N.W.2d 281, 285 (Wis. Ct. App. 1989), the Wisconsin

Court of Appeals he

ld that educationa

l loans and grants w

ere not i ncome for purposes of setting child support. Finally, in Milligan v. Addison , 58 2 So. 2d 769, 769 (Fla. App. 1991), 3 the Florida Court of Appeals hel d that edu cational loans cannot be considered income because of their repayment provisions. At least one jurisdiction has reach ed a dif ferent conclusion. In Gilbertson v. Graff , 477 N.W.2d 771, 774 (Minn. Ct. App. 1991), the Minnesota court held that educational loan proceeds

over the amount required for books and tuition are co nsidered income. The Minnesota court emphasized that the money exceeding tuition and book expenses was dedicated to personal living expenses and not to educatio nal needs and tha

t, if the parties had

remained married, they would have countedon receiving the excess proceeds. See id. The Minnesota court also reasoned that the state’s statutory definition of income as “any form of per iodic payment to an

individual,” clea

rly included excess student loan proceeds which “are a periodic and reliable source of income .” Id. The Tennessee definition of income as quoted above differs substant ially from that of Minnesota

and, therefore, the reasoning of the Minnesota court is less persuasive. As noted above, Tennessee’s definition of inco me is substantially

similarto that of California. As in California, the T ennessee de finition of income lists sources of gross income for which there is no expectation of repayment. For an educational loan, normally, there is an expectation that the funds will be repaid.15

The refore, we hold that educational loans with an expectation of repayment are not con sidere d “income” for purposes of determining ch ildsupport under the

Tennessee Child Su

pport Guidelines. In this cas e, there is no dispu te that Father re

ceives approxima

tely $20,000 per ye

ar in educational loans. The proceeds from these loan s are not considered income for child support purposes unless there is no expectation of repayment. Father’s other in

come, consisting of

his rental income an

d disability paymen

ts, clearly fall within the definition of gross income listed in the child support guidelines. The record in this case does not indicate the income on which the trial court based its a

ward of $300 per

month in child support, nor

does it contain a writte

n finding justifying a

deviation from the

child support guide

lines,

as required under

Tennessee Code A

nnotated § 36-5-1 01(e)(1). The g uidelines would ap

pear to require someone with Father’s gross income (assuming the student loans are excluded) t o p ay substantially

less child support than $300 per month. Ther efore, we remand the cause to the trial court for factual findings as to Father’s income. The trial court may, in its discretion, hear additional evidence; for example, the trial court could consider evidence in dicating that repayment is not expected for Father’s student loans. Thetrial court may the n recalculate

the amount of child support basedon Father’s rental income, his disability payments and a ny other appr opriate income. A deviation from the guidelines should be accompanied by the appropriate written findings justifying the deviation. Father also contends on appeal that the trial judge abused his di scretion in failin

g to recuse himself and forcing Father to reveal facts about a pending complaint against the trial judge. Father alleges that the trial court

was biased again

st Father because of his political activism in an advocacy group regarding child custody. Father contends that the trial court instructed him not to write any

more letters to t he editor of the local news paper, and that th

is instruction inter

fered with his fir

st amendment

rights. Father als

o argues that t

he trial jud ge had a conflict of interest regarding the former Guardian Ad Lite

m on the case. At a

pre-trial hear

ing on Novemb er 10, 1997, Father objectedto a discovery request that he reveal the names of individuals he had reported to the legal disciplinary board. At the hearing, the following exchange took place: THE COURT: All right. Have you reported any judge to the disciplinary board? MR. WINCHESTER: Yes, your Honor. THE COURT: Who was that? MR. WINCHESTER: Your Honor. THE COURT: And wha

t grounds did you pre

sent to them; if you r

ecall?16

MR. WINCHESTER: It was basically that you were attempting to fringe [sic] upon my first amendment

rights of free speech, that you had a conflict of interest with the former guardian ad litem from this case -- THE COURT: That I had a -- MR. WINCHESTER: An a pparent conflic

t of interest. THE COURT: What wa

s the apparent co

nflict of interes

t? MR. WINCHESTER: That the guardianad litem’s relationship to the court system and her use by the Court whic

h resulted in the f

ormer chancell

or in this case

recusing himself has the same eff

ect upon your Hono

r, and as a result

you prevented me from presenting my motion to suppress the guar d ian ad litem reported at the previous hearing. THE COURT: All right. Mr. Winchester, do you have any evidence that I’ve done anything at all, even contacted this woman, in any manner other than to tell you that I have read the report that had been filed by her, which had been ordered by Judge Morris? MR. WINCHESTER: No, your Honor. THE COURT: You have no proof that I’ve approached

her or done anyth

ing with her, have you? MR. WINCHESTER: No, your Honor. THE COURT: And yo u ’re just saying that the fact that you reported me to the disciplinary board was the fact that I’m a judge and I’m in the system and being in the system I then would be biased to you? MR. WINCHESTER: Well, that was a side issue in the complaint, your Honor. In Tennessee, the d

ecision of recus

al is a matter

within the judge’s discretion. See Wiseman

v. Spaulding , 573 S.W.2d 490, 493 (Tenn. App. 1978). The Code of Judicial Conduct provides that

a judge should recuse himself when his impartiality may be questioned, including situations where “he has a personal bia

s or prejudic

e conc erning a party.” Code of Judicial Conduct , Canon 3(c)(1)(a) (1996); see also State v. Cas h , 867 S.W.2d 741 , 74 9 (Tenn. Crim. App. 1993); Lackey

v. State , 578 S.W.2d 101, 104 (Tenn. Crim. App. 1978). The record in this case does not establish that the trial judge abused his discretion by declini ng to recuse hi mself. The decision of the trial judge is affirmed on this issue. In sum, we find no error in the trial court’s dec ision to limit testimony and evidence concerning events that occurred subsequent to the first trial and which were already refle

cted in that record. Our review of the record indicates that the trial court adequately compared the fitness of the parties and did not err in refusing to suppress the Guardian Ad Litem’s report.

Based on undisputed facts as well as the trial court’s determination of credibility and assessment of the parties’ demeanor,

we affirm the award of custody to Mother. We reverse the trial court’s award o

f $300 per month in child support and remand for further factual findings and recalculation of the amount, in accordance withthis Opinion. We find no abuse of discretion in the tr

ial court judge’s

refusal to recu

se himself.17

The decision of the trial court is affirmed in part, reversed in part and remanded. Costs are taxed to Appellant and Appellee equally, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.