# FILED February 2, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) TODD FREDERICK BROOKS , ) Shelby County Circuit Court ) No. 152550-3 R.D. Plaintiff/Appellant/Cross-Appellee. ) ) VS. ) C.A. No. 02A01-9709-CV-00225 ) LINDA FAYE CARTER , )

) Defendant/Appe

llee/Cross-Appe

llant. ) )

______________________________________________________________________________ From the Circuit Cour

t of Shelby County at M

emphis. Honorable Karen R. Williams, Judge
Robert L. J. Spence, Jr. , Memphis, Tennessee Karen R. Cicala, Memphis, Tennessee Sara D. Flowers-D

ent , Memphis, Tennessee Attorney for Plaintiff/Appellant/Cross-Appellee.
Rita L. Stotts , Viola E. Johnson , STOTTS, HIGGINS, JOHNSON, Memphis, Tennessee Attorney for Def

endant/Appellee

/Cross-Appellant.

OPINION FILED: REVERSED IN PART, MO DIFIED IN PART, AFF IRMED IN PART AND R EMANDED FARMER, J. HIGHERS, J. : (Concurs) HAYES, Sp. J. : (Concurs)

Defendant

Todd Frederick Brooks (Father) appeals, and Plaintiff Linda FayeCarter

(Mother) cross-appeals, the final divorce decree entered

by the trial court which awarded the parties joint custody of their three minor c hildr en, designated the Father as the primary custodial parent, ordered the Father to paychild support to the Mother, and distributed the parties’ property. We affirm the trial court’s distribution of the marital prope

rty, with one modifi

cation, but we re

verse the court’s custody decision and we remand for the court to recalculate the Father ’s child support obligation pursuan

t to the Child Support G

uidelines.
I. Procedural History

These divorce proceedings began in June 1996 when the Father filed a complaint for divorce against the Mother alleging abandonment and inappropriate marital conduct. The Mother counterclaimed

for divorce on the

grounds of inappr

opria te marital conduct a

nd irreconcilab

le differences.

Both parties sought custody of their three minor children, a daughter b orn i n August 1989 and two sons born, respectively, in February 1992 and September 1995. In July 1996, the trial court entered an order appointing a guardian ad litem to represent the interests of the three children in these proceed

ings.
By virtue of a conse

nt order entere

d by the trial cour

t in August 1996, both parties continued to live in the marita l homepending further orders of the court. After conducting a hearing
over nine separate days, beginning September 17, 1996, and ending October 30, 1996, the trial court entered an order which, inter alia , awarded the parties joint custody of their three children pending these proceedings. The order on temporary custody designated the Father as the primarycustodial parent and provided that the Father and the minor children would continue to live in the marital home. The order granted the Mother visitation on Monday through Thurs day of each week, beginning a t 3:15 p.m. when the two older children finished school for the day and ending by 8:30 p.m. The order also granted the Mother visitation every other weekend f rom 8:00 a .m. on Saturday until 10:00 a.m. on Sunday. For the remaining weekends, the Mothe r was gr anted visitation on Sunday from 10:00 a.m. to 9:00 p.m.

In Feb ruary 1997, the trial court entered an order, upon the Mother’s mot ion , relieving the guardian ad litem of her duties in this case and appointing a Court

Appointed SpecialAdvocate

(CASA) to repres

ent the interests

of the children. The trialcourt’s order di rected CASA to conduct an investigation and submit a written report relative to specific issues identified in the court’s order. Despite its directive, the trial court subsequently ref

used toadmit the CASA report into evidence at the final divorce trial. The trial court indicated that it would rely upon the CASA worker’s oral testimony rather than her written report.

After conducting the final divorc e trial in July 1997, the trial court entered a final divorce decree which a

warded both part

ies an absolute

divorce , awarded the parties joint custody of their three minor children, designated the Father as the primary custodial parent of the children, awarded specified visitation to the Mother, and distributed the parties’ property. In contrast to the temporary custody order, the final d ecree awarded the Mother visitation with the minor children every Thursd ay until 8:00 p.m., every other weekend from Friday afternoon to Monday morning, two weeks in August, and specified holidays. Although the Father was designated as the primary custodial parent, the tria

l court ordered h

im to pay child suppor

t to the Mot her in the amount of $1800 per month “to help provide the [Mother] with living quarter s large enough to a

ccommodate for the children’s weekend visits.” The court ordered the Father to maintain medical, dental, and mental health insurance on all three childre

n. With regard to t

he distribution of th

e parties’ property, the trial court ordered

that the proceeds of the

Father’s interest in the River City Medical Group and the parties’ equity in the marital residence be split evenly between the parties upon the sale of these assets. The trial court a

lso distributed the p

arties’ various i

nvestment accoun

ts in accordance

with the Father’s proposed distribution of these accounts.

On appeal from the final divorce decree, the Father contends that the trial court erred (1) by ordering the primary custodial parent, the Father, to pay child support to the non-custodial parent, the Mother, and, conversely, by failing to order the Mother to pay child support to the Father, (2) by ordering the Father to provide health insurance coverage f or the parties’ children, (3) by awarding the Mother one-half of the Father’s share of the proceeds of the medical practice in which he owned a partial in

terest upon the sa

le of this asset,

and (4) by finding that the Father’s debt to the Internal Revenue Service was not a marital debt.

The Mother also has appealed, contending that the trial cou rt erred (A) by designatingthe F ather as the prima ry custodial pare

nt of the parties’ three minor childr en, (B) by limitin

g th e admissibility

of the CASA report

and ignoring the CASA worker’s testimony, and (C) by failing to make an equitable distr

ibution of the parties’ marital property, specifically their investment acco unts . II. Child Custody

Prior to reviewing the trial court’s custody decision, we feel compelled to point out that our review of the appellate record in this case was hampered significantly by the parties’ failure to comply with rule 14 of the rules of this court regarding the abridgement of records. The record in this case consiste

d of twenty volumes and o ver 1100 pages of testimony. Pursuant to rule 14, therefore, this court ordered counsel for the pa

rties tosubmit an abridged transcript. See Tenn. Ct. App. R. 14 (providing that this court may order counsel to abridge record in all cases where transcript of evidence, including depositions, exceeds 300 pages). Rule 14 requires counsel for the appellant to include in the abridged record all of the testimony “deemed sufficient to convey a fair, accurate and complete account of what transpired with respect to those issues that are the basis of appeal.” Tenn. Ct. App. R. 14. If the appel lee’s counsel deems the abridged record to be insufficient,

he or she, in turn, has the responsibility of designating such other parts of thetranscript to be included in the abridged record as will aid this court’s review of the issues before it. Cohen v. Cohen , 1990 WL 75079, at *1 (Tenn. App. June 8, 1990), perm. app. denied (Tenn. Sept. 24, 1990); Tenn. Ct. App. R. 14.

In o ur view, the p arties have failed to include within the abridged record all of the testimony necessary to convey a “fair, accurate and complete ” account of what transpired below relative to the issues now ra ised by them on appe

al. Tenn. Ct. App. R.

14. This failure is particularly

troublesome

as it p ertains to the chil d custody issue rai

sed by the Mother o

n crossappeal. An appellant who fails to include the relevant portions of the tes timony in the abridged record takes the risk that this co

urt will decline to

review the issues raised by the appellant because, in the absence of the n

ecessary portio

ns of the transcr

ipt, this court gene

rally must presume that the findings of the trial court were supporte

d by the evidence heard below. Nguyen v. Hart , No. 03A01-9302-CH-00058, 1993 WL 291411, at *4 (Tenn. App. July 29, 1993), pe rm. ap p. denied (Tenn. Nov. 29, 1993).1 In making its custody determination, the trial court indicated that it relied on the

evidence presented both at the October 1996 temporary custody hearing and at the July 1997 final divorce trial. On appeal, the parties likewise relied on the testimony and evidence adduced at both hearings. In reviewing the trial court’s custody decision, therefore, this court reviewed the transcripts of

both hearings. Nevertheless,

we are mindful that the central issue in this case is the custody of the parties’ three minor children, and that the resolution of this issue turns on wh

at is in the best

interest of the children , and not the best intere st of the parties th

emselves. In orde

r to make this determination, therefore, we found it ne cessary to r eview the entire original transcr

ipt submitted with the appellate re

cord instead of me

rely relying upon t

he abridged rec

ord provided by the

parties. 1

Our review of the trial co urt’s custo dy decision is governed by Tennessee Rule of Appellate Procedure 13(d). Ruyle v. Ruyle , 928 S.W.2d 439, 441 ( Tenn. App. 1996); Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. App. 19 93); T.R.A.P. 13(d) . This standard re quires us, in conducting
a de novo review of the re cord, to presume t

hat the trial cour

t’s findings of fac

t are correct,

unless the evidence in the record preponderates otherwise. See T.R.A.P. 13(d). In applying this standard of review, we rec

ognize that “ [t]rial courts a re vested with wid

e discretion in mat

ters of child custody and the appellate courts will not interfere except upon a showing of erroneous exercise of that discretion.” Koch , 874 S.W.2d at 575. Our paramount concern, and that of t he trial court, is the welfare and be

st interest of the parties’ minor children. Ruyle , 928 S.W.2d at 441; Koch , 874 S.W.2d at 575. This determination necessarily tur

ns on the particula

r facts of each case. Koch , 874 S.W.2d at 575.

In the presen t case, the evidence revealed the following facts, most of which were undisputed. The Father worked as an obstetrician-gynecologist and was affiliated w

ith Methodist Ce ntral Hospital in Memphis. The Father also se

rved as a clinica

l instructor at the

University

o f Tennessee-Mem

phis. The Father partic

ipated in a ninete

en-physician ca

ll group. On weekdays, the Father generally left the house at 7:00 a.m. and did not return until abo ut 6:00 or 6:30 p.m. The Father’s job required him to be on call for his own patients from 7:00 a.m. to 5:00 p.m. during the work week. In addition, two or three times per month, the Father was requi

red to be on call to

treat the patients of the other physicians in his group. On these occ asions, another adult besides the Father was required to stay with the children in the marital home because, at any moment, the Fathercould be called to the hospital to deliver a baby.

In contrast, the Moth

er had a more fle

xiblework schedule wh

ich enabled her

to spend
a greater portion of her time with the children. The Mother, who had an MBA degree from the University

of Memphis, worked part-time in the personnel department at Federal Express. She workedthree days per week, Tuesday, Wednesday, and Friday. The Mother was able to arrange her work schedule so that sh

e could pick up the children from school every afternoon at 3:15 p.m. The Mother also transported the children to extracurricular activi ties in the afternoon, such as piano, gymnastics, and martial arts lessons, and she provided the children with their evening meal. During the marriage, the parties hired a nannyto watch their youngest child during the work week. During most weeks, the Mother cared for the youngest child on Monday, and the nanny cared for him from Tuesday through Friday. The Mother also cared for the youngest child on Saturday while the Father spent time with the two older children.

At the temporary custody hearing and, later, at the final divorce tria l, both parties claimedto be the children’s primary caregiver. The Mother te stified that she breast-fed all three children and stayed home with them during the f irst si x months of their lives. According to the Mother, she also helped

the children pre

pare for school i

n the morning and made sure that they were properly dressed and groomed. On the other hand, the Father testified that he awakened the children, fedthem breakfast, helped them dress, and transported them to school each weekday morning. The Father also testified that, the majority of the time, he was the parent who bathed the children and put them to bed at night.

Despite the Father’s claims to be the children’s primary caregiver, the overwhelming weight of the testimony supported the conclusion tha t the Mother consis

tently fulfilled thi

s role throughoutthe parties’ marriage. In his own testimony, for example, the Father acknowledged that the Mother

was the parent primarily responsible for ensuring that the children’s health-care needs
were met. As a

general rule, the Mother transported the children to the pediatrician’s office, used the children’s insurance prescription card to get their prescriptions filled, adm inistered the children’s medications,

and cared for the children when they became ill. Most of the time, the Mother was the parent who stayed home from work when the children were ill. The Mother also was the parent

whotook the children to the dentist’s office for checkups every six months.

The parties’ youngest child was born with a large birthmark

on the side of his face, which was described by the parties and doctors as a gi ant pigmented nevus. The child had undergone several surgeries to correct this co n dition, and at least two more surgeries would be required in the futur e. The Mo ther’s testimony was uncontradicted that she was the parent who largely was responsible for the child’s care after each surgery. The Mother explained that this care required that a piece of silicone be placed on the child’s face and secured by a protective cap. The Mother expressed conc

ern over th

e child’ s care while he was in the Father’s custody because, on several occasions when she picked up the child for scheduled visitation, either he was not wearing the protective cap or the nanny had not placed the silicone on his face correctly.

In addition to ensuring that the children’s medical needs were met, the Mother also playeda more active ro

le than did the Fathe

r inensuring that their educational needs were met. The Father acknowledged that the Mother had more contact with the children’s teachers than he did, a fact which was confirmed by one of the children’s teachers. The Mother served as a room mother at school and attended almost all of the children’s school parties. According to the sam e teache r, the Mother inquired a

s to the child’s pro

gress o n a regular

basis, whereas the Father never had consulted the teacher on this matter. In fact, the teacher did not remember e

ver having spoken

to the Father. The Father further acknowledged that the Mother set up a special room in the parties ’ home where she presented a

dditional educati

onal materials to

the children and that the Mother had taught sign language to the parties’ oldest child.

In addition to the for

egoing responsibil

ities, the Fath

er acknowledged

that the Mother had assumed most

of the responsibility for arranging and scheduling the children’s extracurricular activities,as well as transpo rting them to these

activities. The Mother enrolled the children in such activities as piano lessons, g ymnastics, and ma

rtia l arts lessons. The

Mother’s work sc

hedule enabled her to transport the children to these various activities on Mondays, We dnesd ays, and Thursdays after school.

Prior to entry of the tempo r ary custody order, the Mother also assumed theresponsibility of paying the nann

y and giving her ins

tructio n s concerning the daily care of the children. The Mother primarily was responsible for combing and braiding the parties’ daughter’s hair. The Mother maintained photo albums and diaries recording each ch ild’s dev elopment. She paid the household expenses from a joint account into which the Father deposited a portion of his earnings. After the Father filed this divorce

action, but prior t

o the Mother vaca

ting the marital hom

e pursuant to the temporary custody o rder , the Mother slept in a bedroom downstairs near the children’s bedrooms while the Father slept in a room upstairs.

After the trial court entered its temporary custody order, the already notable conflicts betwee n the p arties became increasingly hostile. Unfortunately, most of these incidents occurred when the parties were

exchanging custody of the children at the marital home. The Father claimed that the conflicts were caused by the Mother because she often insisted on entering the marital home and/or refused to leave the property when asked to do so. The

se allegations ap

peared to have s

ome merit because, in her testimony at the final divorce trial, the Mother insisted that her children’s presencein the marit

al home s omehow gave her the right to enter t

he home. The Fathe

r also believedthat

the Mother had attempted to interfere with his telephone contact with the children when they were vi siting the Mother because she often provided excuses for why the children could not speak to him.
Nevertheless, the Father acknowledged that his own conduct and motives wereless than exemplary. When a conflict at the marital home occurred, the Father routinely called the police in order to induce th

e Mother to

leave the property. The Father explained that he did not want the Mother in the marital home

because she kept taking marital property out of the home. The Father acknowledged, however, that one of the items whi

ch the Mother alle

gedly “snuck and t

ook” was a Mercedes Benz automobile that was titled in her name.

Moreove r, alth ough in the past the Mother primarily had been responsible for providing the c hildren’s medica l care, the Fathe

r admitted schedu

ling the youngest ch

ild’s most recent surgery on a date that was “best” for the Father without regard for the Mother’s schedule
. A fterthe c hild’s surgery, the Father refused to allow the Mother to care for the child either in the marital home or in her

own home. The Father was so adamant in his refusal that he enlisted the

aid2 In addition to his mor e recent conduc

t, the Father also a

dmitted that, prior

to the parties’ separation, he engaged in conduct that created cause for concern. Dur ing one fight when the Mother was pregnant with the parties’ youngest child, the Mother allegedly became so enraged that she threatened to “blow away” the Father. The Father admitted that, in response to the Mother’s statement, he retrieved a gun from her closet, dropped it on a chair or sofa next to her, and challenged her to shoot him. Hearing their parents fighting, the children then walked into the room, observed the gun, and became upset. According to the Mother, this altercation occurred late one evening after the Father had been drinking. In August 1994, the Father was seriously injured in a car accident. The Father admitted that he caused the

accident by fall

ing asleep at the w

heel, and he indic

ated that he made

a “big mistake” by drinking alcoholic beverages after staying up until 4:00 a.m. the two previous nights. Although the Father claimed that he now was more careful about his drinking, and that drinking was not an important part of his life, he acknowledged that he drank beer, wine, or whiskey as often as every other day. Describing himself as a “stress smoker,” the Father further acknowledged that he sometimes smoked cigarettes and drank alcoholic beverages while he was alone in his bedroom at night. of the police and hos

pital security to pr

event the Mother f

rom caring for th

e child or taking the child homewith her. The Father was on call that night, so his refusa

l resulted in the ch

ildbeing cared for by the nanny instead of the Mother.

Finally, the Fath er admitte d that he exacerbated some of the hostility between the parties by taking suc h acti ons as changing the locks on the marital home on the day before the Mother was required

to move out, as well a

s placing a board

imbedded with

nails in the driveway so that the Mother’ s car would get a f lat tire. The Fathe

r went so far as to wrap plastic around the board so that it would resemble a newspaper.

After reviewing the foregoing evide nce, as wel l as the remaining evidence in the record, 2 we conclude that this case repre

sents one of the rare instances where the evidence preponderates against

the trial court’s custody decision. In making a custody determination that was in the children’s best interest, the trial court was requir ed to consider, a

mong other releva

nt factors, the following:
(1) The love, affe ction and emotional ties existing

between the parents and child; (2) The dispositio n of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver; (3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;(4) The stability of the family unit of the pa

rents; (5) The mental and phy sical health of the

parents; (6) The home, school andcommunity record of the child; (7) The reasonable

preference o

f the child

if twelve (12) years of age or older. . . . ; (8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; and (9) T he character and behavior of any other person wh o resides in or frequents the home of a parent and such person’s interactions with the child.
T.C.A. § 36-6-106 (1996).

Many of these factors favored neither parent in this case. For example, the trial court found that, although both parti es had exhibited si

gnificant streng

ths and weaknesse

s in their parenting skills, both parties were fit to serve

as parents of the

ir three children. The trial court also found that both parties ha d demonstrated tha t they loved the chi

ldren. On the othe

r hand, both parties had harmed the c hildren by exposin

g them to the partie

s’ co nstant verbal and physical confrontations with eachother, and both ha d engaged in “an a

ggressive campa

ign to wrest

control from the other without regard to the damage this behavior inflicted on the children.”

Despite the fact that both parties may have demonstrated themselves to be f

it parents,
we nevertheless co

nclude that the ev

idence preponde

rates against

the trial court’s award of primary custody to the Father, rather than to the Mother, in this case. The undisputed evidence revealed that the Mother had demonstrated the greater disposition to provide the children with food, clothing, medical care, education, and other necessary care and that the Mother was the c hildren’s primary caregiver during the parties’ marriage. See Barnhill v. Barnhill , 826 S.W.2d 443, 452-54 (Tenn. App. 1991) (affirming trial court’s decision to award parties

joint custody, with pr

imary custody to father, where record revealed that father had been children’s primary caregiver

during latter cou

rse of parties’ marriage). By the Father’s own admission, the Mother was the pa rty who took the initiative to provide for the children’s health-care, educational, and recreational nee ds. Specifically, the Motherwas the party who primarily interacted with the children’s teachers and health-car e providers. Th e Mother took the children to see their pediatrician and dentist as needed, cared fo rthemwhen they were ill, and consulted with their teachers concerning their progress in school. The Mother se rved as a room

mother at the children’s school, and she attended the children’s school parties. The Mother scheduled the children’s extracurricular activities and transported t

hem to these activities during the week.

The Mother also demonstrated the greater ability and disposition to provide for the children’s daily needs in the future. Whereas the Father’s schedule prevents him from arriving home prior to 6:00 or 6:30 p.m. during the week, the Mother’s schedule freesher to pick up the children from school at 3:15 p.m. a

nd to spend the afternoon and evening with the children. Inasmuch as the Father is still at work durin

g these hours, he m

ust rely either on

the Mother to spend

this time with the children or on a third party, such as the nanny. By the Father’s own admission, the time he has available to spend with the children d uring the week is s

ignificantly limite

d by his busy

schedule. In contrast, the flexibility of the Mother’s work schedule permits her to stay home with the children when they are ill and to participate in events at their school.

In fact, in his

parenting plan submitted to the tria l court during the f

inal divorce tria

l, the Father essentially proposed maintaining the status quo of the temporary custody arrangement. Apparently, the Father planned to continue to rely on the Mother to pick up the children from school in the afternoons and to care for them until 8:30 p.m. On the two or three nights during the mon

th when the Father was on call, he planned to offer visitation to the Mother before hiring a third party, such as the nanny or a babysitter, to stay with the children.

We agree with the trial court that both parties have demonstr ated that they ar e fit parentswho love their children a great deal; however, after reviewing the forego ing evidence, we must co nclude that the tr

ial court abused i

ts discretion in cr

afting a custody a

rrangement whic

h effectively denies these children the continued presence and care of the parent who has been their primary caregiver

during the school week. The evidence was undisputed tha

t the Mother’s sch

edule enables her to spend time with the children during the weekday hours when the Father isunavailable. By his own admission, the Father has limited time to spend with the children during the school week due to his long work hours. The Father expla ined that the only “

real day” he ha

d was Saturday, so h e spent that day with the children. However, the custody order entered by the tri al court grant s3 We also have considered the fact that the trial court’s custody order enabled the children

to continue to live in

the marital home. U

ltimately, howeve

r, this factor sho

uld be of little significance in this particular case, inasmuch as the final divorce decree provides that the marital home will be sold and the children apparently will have to move at least once regardless of which party is designate

d the primary cust

odial parent.
4 This subsection was added by the legislature in 1998. See 1998 Tenn. Pub. Acts 1003. primary cus tody to the parent whose schedule is more-suited to parenting the children on the weekends,and it deprives cu stody to the parent

whose schedule

permits her to more

actively parent the children during the week. Cf
. Gray v. Gray , 885 S.W.2d 353, 354-55 (Tenn. App. 1994) (affirming joint custody order which divided custody between parents in accordance with amount of time their respective work schedules enabled them to spend with children).

The trial court indicated that it was awarding primary custody of the children to the Father because, “of the two parents, he appeared to be more likely to allow the non-custodial parent to exercise visitation with the children.” We agree that one par ent’s wil lingness to foster a continuing relationship

between the child and the other parent is a valid factor f

or the trial court

to consider in fashioning its custody decree. 3 See Bowers v. Bowers , 956 S.W.2d 496, 498 (Tenn. App. 1997) (affirming award of primary custody to father where evidence showe

d that mother contin

ually attempted to shut father out o f child’s life, wh

ereas father e

ncouraged child

to show affection

to mother and attempted to ma

intain relationshi

p with mother’s fa

mily); see also T. C.A. § 36-6-106(10 ) (Supp. 1998) (providing th at, among other fa

ctors, court shal

l consider wi llingness and ability of eachparent to facilitate and encourage close and co ntinuing relationship between child and other parent). 4

Other

than the Mother’s alleg ed attemp ts to restrict the Father’s telephone contact with the children, however, the record lacks sufficient evidence to support the conclusion that the Mother has attempted to prevent the Father from seeing the children. On

one evening, the Mother refused to return the children

to the marital home

when she arrive

d there and disco

vered that only the children’s nanny was present. Although the Mother’s explanation for doing so was questionable,
we note that the Fath er was on call that night and that the Mother’s interference with his custody rights was minimal. We also note that the Father himself admitted that he had engaged in behavior which was designed to prevent the Mother from caring for the parties’ youngest child aft er his mostrecent

surgery, despite the fact that the Mother historically assum

ed this role throug

hout the parties’ marriage and despite the fact that the alternative to the Mother’s care wa s that of a non-parent

. Finally, we observe that both parties have the legal obligation to comply with court-ordered custody and visitation arrangements, and we c aut ion the parties tha t judicial remedie

s remain availab

le to
ensure their continued compliance. See, e.g. , Brumit v. Brumit , 948 S.W.2 d 739, 740-41 (Tenn. App. 1997) (wherein, in affirming trial court’s refusal to modify custody order based upon mother’s allegedinterference

with father’s vis

itation rights,

this court noted that tr

ial court adequa

tely addressed mother’s conduct by findin g her in contempt and imposing suspended sentence of incarceration).

We recognize that a ppellate courts a

re reluctant to d

isturb a tria

l cour t’s custody decision because “[c]ustody and visitation determinations often hinge on subtle factors, including the parents’ demeanor and credibility during the divorce proceedings themselves.” Gaskill v. Gaskill , 936 S.W.2d 626, 631 (Tenn. App. 1996). We also recognize that the trial cour

t alone is in the position to observe the parties’ demeanor and to determine their credibility. Brewer v. Brewer , 869 S.W .2d 928, 934 (Tenn. App. 1993). We note, however, that despite the obvious ranco r betweenthe parties in this case, much of the evidence presented by the parties was not contradictory. Moreover, in reversing the trial court’s custody decision, we have taken care to rely on the record
e vidence that was not disputed, such as that admitted by the Father, or, where the evidence wa s disputed, to accept the Father’s version of events as true.

As for the Mother’s complaint that the trialcourt erred in awardingthe parties “joint ” custody of their children

, we acknowledge

that such an arra

ngement might prove

to be problematic in this case, given both parents’ past reluctance and even outright refusal to co ope rate with one another for the good of their children. Nevertheless, at the final divorce trial, both parties professed their willingness to cooperate with the other party’s parenting efforts in the future, and we are reluctant to second -guess the t rial court’s decision to denominate this as a “joint” custody arrangement.

In any event, we

remain confiden

t that, upon remand, the trial court will structure the joint custody arrange

ment s o as t o minimize the conflicts between the parties. For example, inasmuch as the Mother has been primarily responsible for maki ng decisions regarding the children’s health care, education, and extracurricular activities, we woul d suggest that she continue to be5 The term “joint custody” appears to have no set definition in this state. See DeVault v.

DeVault , No. 01A01-9601-CV-00012, 1996 WL 482968, at *4 (Tenn. App. Aug. 28, 1996); English v. Shouse , No. 01A01-9108-CH-00285, 1991 WL 274517, at *4 (Tenn. App. Dec. 27, 1991); Oliver v. Oliver , 1988 WL 9804, at *1 (Tenn. App. Feb. 10, 1988). This court has broadly defined joint custody to mean “shared custody and shared responsibility for support.” Gray v. Gray , 885 S.W.2d 353, 356 (Tenn. App. 1994). At least one trial court has more narrowly defined joint custody to mean “equal input by both parties as to decision making for the children’s general welfare, health, education, and extracurricular a ctivities.” Martin v. Martin , No. 03A01-9708-GS-00323, 1998 WL 135613, at *2 (Tenn. App. Mar. 26, 1998). In designing joint custody arra

ngements, trial co

urts are not conf

ined by this latter d

efinition. In orde

r to avoid some of the c

onflicts inheren

t in a joint custody a

rrangement, tria

l courts may speci

fically delineate each party’s responsibilities and duties with respect to the care of the children. Schwalb v. Langlois , No. 01A01-9304-CV-00152, 1993 WL 415766, at *2 (Tenn. App. Oct. 13, 1993). responsible

for these types of decisions. See, e.g. , Schwalb v. Langlois , No. 01A01-9304-CV-00152, 1993 WL 415766, at *2 (Tenn. App. Oct. 13, 199 3) (approv ing joint custody order but modifying order to create definite allocation of duties and responsibilities between parent with primary custody and parent with secondary custody). 5

In accordance wi th the for egoing analysis, we reverse the trial court’s custody decision as set forth in the final divorcedecree, and we remand for the trial court to enter an order granting the Mother primar y custody of the ch

ildren, awardin

g liberal visitation

to the Father, recalculating the Father’s chil d support obligation

pursuant to

the Chi ld Support Guidelines, and setting forth the parties’ respective duties and responsibilities in this joint custody arrangement. In light of our

disposition of the custody issue , we need not addr

ess the Father’s i

ssues concernin

g child support and health insurance coverage for the children. We likewise need not address the Mother’s issue concerning the trial court’s evidentiary treatment of the CASA report and the CASA worker’s testimony.
III. Distribution of Pro perty

With regard to the tria

l court’s distribution of the parties’ property, the Mother contends that the court erred in failing to award her a greater share of the marital estate a nd, specifically, in

failing to award h

er one-half of t

he estate’s “liqu

id/semi-liquid” as sets, such as the investmentaccounts accum ulated by the part

ies during their ma

rriage. We disa

gree. Trial cou

rts have broad discretion

in dividing marital e

states, and their

decisions are afforded great weight on appeal. Fisher v. Fisher , 648 S.W.2d 244, 246 (Tenn. 1983); Harrington v. Harrington , 7986 These percenta ges take into the a

ccount the Father

’s IRS debt, which h

e estimated would exceed $200,000.

7 In her brief, the Mother asserted that her profit sharing and stock plan accounts acquired through her current employer also constituted separate property because they were a cquired prior to the parties’ ma

rriage. At trial,

however, the Moth

er testified that

she considered th

ese accounts to be mar

ital assets. Acco

rdingly, we canno

t fault the trial co

urt for including th

ese accounts within the marital estate. S.W.2d 244, 245 (Tenn. App. 1990). Although the trial c ourt’s distribution

of the marital pro

perty must be equitable, there is no requirement that the division be equal. Word v. Word , 937 S.W.2d 931, 933 (Tenn. Ap

p. 1996); Batson v. Batson , 769 S.W.2d 849, 859 (Tenn. App. 1988).

In this case, the parties’ marital estate included investment accounts which totaled about $800,000. Of this amount, the Mother was awarded approximately $300,000 while the Father
was awarded appro

ximately $500,000. Although the trial court’s division of the parties’ investment accounts was not an equal one, we conclude that the d i stribution of these

accounts was equ

itable under the circumstances of this case. While the Mother was awarded less than forty percent (40%) of the investment

accounts, we note that she was awarded between forty-seven percent ( 47%) and forty-nine percent (49%) o f the total marital

e stat e, depending upon which parties’ pr

operty valuations are used. 6 We further note that, although the Mother received fewer “liquid/semi-liquid” marital assets than did the Father, the Mother was awarded, as her separate property, over $80,000 in additional investme

nt accounts which she acquired prior to the parties’ marriage. 7 Finally, we observe that the Mother wil l receive additio

nal cash assets

when she rece ives her share of the proceeds from the sale of themarital home and from the sale of the Father’s interest in the medical practice.

As fo r the property dis tribution issues ra

ised by the Father,

we first reject t

h e argument that the trial cour

t erred in failing to apportion the Father’s IRS debt between the par

ties. The final divorce decre e do es not specifically mention the Father’s IRS debt, which he estimated would exceed $200,000. By failing to ment ion the IRS debt in its final decree, however, the trial court effectively allocated this debt to the Father, inasmuch as the parties’ filed separate tax returns during their marriage and the Father apparently is the only party legally responsible for this debt.

As wi th it s distribution of the marital estate, the trial court was vested with broaddiscretion to alloc ate any debts incu

rred during the pa

rties’ marriage. Houghland v. Houghland, 844 S.W.2d 619, 624 (Te

nn. App. 1992); Yaffe v. Yaffe , 1989 WL 76310, at *2 (Tenn. App. July

12, 1989), perm. app. denied (Tenn. Oct . 2, 1989). E ven if, as the Father contends, the trial court erroneously

characterize

d the Father’s IRS d

ebt as separate

rather than mar

ita l propert

y, we conclude that the trial court

did not abuse its disc

retion in allocati

ng this debt to the Father. We note that, even after being allocated this debt, the Father still received in excess of fifty percent (50%) of the marital estate. Moreover, we note that, at tr ial, the Father pr

oposed that the IRS d

ebt be allocated

to him. In fact, with the exception of the Father’s interest in the medical practice, the trial court’s distribution of assets and allocationof debts was virtually iden tical to that propos

ed by the Father du

ring the trial.

With regard to t

he Fa ther’s second property issue, we agree with the Father’s contention that the trial cour t should have established

the Mother’s inter

est in the Father’s medical practice as of the date of the divorce. The statute gove rning the distributi on of marital prop

erty requires that property be valu ed “as of a date as near as reasonably possible to the final divorce hearing date.” Wright v. Quillen , 909 S.W.2d 804, 809 (Tenn. App. 1995) (quoting T.C.A. § 36-4-121(b)(1)(A) (1991)). During the final divorce trial in this case, the parties agreed that the value of the Father’s interest in themedical practice was $213,684. Accordingly, we agree that the Mother’s interest in the medical pr actice should be limited to the sum of $106,842, regardless of when the actual sale takes place. See Dunlap v. Dunlap , No. 02A01-9712-CH-003 20 , 1998 WL 886590, at

*15 (Tenn. App. Dec. 16, 1998); Preston v. Preston , No. 03A01-9406-CV-00202, 1995 WL 10345, at *1 (Tenn. App. Jan. 11, 1995), perm. app. dismissed (Te nn. Mar. 27, 1995). Inasmuch a s the record fails to indicate when this sale might occur, we grant the alternative relief requested by the Father on appeal that he make periodic pa

yments to Mother. Therefore, we modify the trial court’s judg

ment to order the Father to pay the amount of $106,842 to the Mother by making monthly payments of $1,780.70 over a period of sixty (60) months.

IV. Conclusion

We reverse the trial court’s custody decision as set forth in the final divorce decree, and we remand this

cause for the trial court to enter an order designating the Mother as the primary custodian of the parties’ three children, setting forth a liberal visitation schedule for the Father,calculating the Father’s chil d support obligation

pursuant t

o the Child Support Guidelines, and specifying the parties’ respective duties and responsibilities in

jointlyparenting their children. In addition, we modify the fina l divorce decre

e to order the Fath

er to pay the Mother $106,842 for her interest in the Father’s medica

l practice by mak

ing monthly payments

to the Mother in the amount of $1,780 .70 for a per iod of sixty (60) mon ths. In all other re

spects, the trial c

ourt’s judgment is affirmed. Costs of this appeal are taxed to the Father, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ HIGHERS, J. (Concu

rs)

______________________________ HAYES, Sp. J. (Concu

rs)