1 There is no tr anscript of the procee

dings bel ow. The record on appeal includes a Statement of the Evidence, timely filed by couns

el for Mother. The Stat ement of the Evi

dence was not disput

ed by Father, and not

acted upon by the trial ju

dge. Consequently,

under Rule24(f) of t

he Tennessee Rules of Appellate Procedure, t he Statement of

Evidence is deemed approv ed.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON August 27, 2001 Sessio

n
MELONEY GAIL

CARR (CAM

PBELL) v. GRA

DY LEONIAL C

ARR, III
Appeal from the Chancery Court for Haywood County No. 12031 George R. Ellis, Chancellor

No. W2000-02420-COA-R3-CV - Filed October 3, 2001

This is a child custody case. The parties were separated in F ebruary 2000 and the father was awarded temporary custody of the parties’ two minor children. After the trial, the mother was granted the divorce, but custo

dy of the two

children remain

ed with the father. The father was required to pay rehabilitative alimony on the condition that the mother enroll in EMT class

es. The mother ap

peals, asserting that the trial err

ed in denying a continuance when several of the mother’s witnesses were unavailable

to testify at

the hearing, in awarding custody to the father, in making the rehabilitative alimony conditional on t he m oth er en rol lin g in E MT c las ses and in t he d ivi sio n of mar ita l pr ope rty. We reverse the award of

cus tod y to t he fa the r, m odi fy th e ord er on reha bil ita tiv e al imo ny, modify the division of marital property, and remand to the trial court to de termine issues re

lating to child support. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part, Modified and Remanded

H OLLY K IRBY L ILLARD , J., deli vered the opi nion of the cou rt, in w hich J. A LAN E. H IGHERS , J., and D AVID R. F ARMER , joined.
Steven R. Walker, Memphis, Tennessee, for the appellant, Meloney Gail Carr.

Didi C hrist ie, Br ownsv ille, Tenne ssee, for th e appe llee, Grady Leo nial C arr, III.

OPINION This is a child

custody case. 1 This case arises from the divorce of Appellant, Meloney Carr (now Campbell) (hereinafter “M other”), and Appellee, Grady Carr (hereinafter “Father”). The parties2 Affidavit of Jennifer Ja ckson. In her affidavit, Jackson assert s that Fath

er was an excessi

ve drinker. She

states that she witnessed him lose his t emper on many occasions and that it was almost rout

ine for him t

o throw a plate or glass at her.
-2- were married in

January 1994, and had two children, Britney (born February 13, 1994) and Grady (born November 12, 1996).

Prior to t he p art ies ’ se para tio n, t he fa mil y liv ed i n Ha ywoo d Co unt y, Tennessee. Father was employed by a railroad in a job that at times required him to be away from home overnig ht. During the marriage, Moth

er was not employ

ed outside the home

, but inst ead sta yed at home with the parties’ children, by agreement of the parties. Several members of Father’s exte

nded family

live in Haywood County, while members of Mother’s extended family live in Desoto County

, Mississippi. It is undisputed that Mother was the children’s primary car egiver.

On January 2, 2000, Mother moved out of the marital home, taking with her theparties’ two children. Mother was unemployed and without means of support; she and the children moved int o her sister’s home in Mississippi. Fathe r remainedin t he m ari tal hom e in Haywo od C oun ty, Tennessee. On February 4, 2000, Mother filed for divorce alleging both irreconcilable differences and inappropriate

marital conduct. In the Complaint, M other all eged that Father had recently “thre atened to beat and

kill her, as well as, take the children to where she would never see them again.” Mother sought a restraining order against Father, which was granted. Father contested the divorce, denied the allegations of i

n appro priate marital conduct, and sought temporary custody of the children, asserting that he could provide a more stable environment and noting that he had the support of

his extended family

in Haywood County. He sought to have the temporary restraining order dissolved.

After a hearing, the

trial court awarded temporary custody of the children to Father, provided that the paternal grandmother move into the marital home with Father and that the children not be exposed to alcoholic beverages. The temporary restraining order against Father remained in place.

The divorce action was heard on May 22, 2000. Mother sought to present testimony from Jennifer Jackson to establish that Father had had a lengthy

affair with Jacks

on, and also to esta

blish Father’s temper, propensity to violence and his abuse of alco hol. 2 H owever, the day before the hearing, Jackson suffered an accident and was una vai lab le t o te sti fy. On the date of the hearing, two ot her persons Mother int ended to call as w

itnesses had not y

et been served w

ith subpoenas. Mother’s attorney sought a continuance. The trial judge ca lled the attorneys for the parties into his chambers to discuss the continuance; the attorneys agreed that the unavailable witnesses’s testimony would be cumulative to the other testimony offered by Mother andwould primarily go to the grounds for divorce and not to custody. After Father stipulated to the affair and to the grounds for divorce, the trial judge denied the continuance.-3-

Mother testified at the outset of the hearing. She testified that Father worked for a railroad, andthat his work required him at times to be away overnight. Mother said that she had not worked for approximately

the last eig

ht years. She said that, when the parties married, she quit school at Father’s request. She had d iscussed with

Father the possibility of returning to school to become an EMT. She asserted that

Father told

her that she was supposed to be a housewife and take care of the children, that she could not make it in school because she was stupid, that she would never amount to anything, and that she

would only be a housewife who depended on someone else to take car e of her. Mother said that, since the parties’ separation, it had been hard to find a job. She said that two temporary

employment a

gencies had indicated that they could find her temporary employment at $8.00 per hour.

Mother described Fath

er’s alcohol abu

se. She said that F

ather drank alm

ost daily, th

at he would begi n dr ink ing W ild Tur key b our bon in t he m orn ing a nd c ont inu e un til sup per. On h is d ays off, she said, Fa

ther would be out w

ith his friends until

the early m

orning hours.

Mother also described

Father’s physical abuse of her. She testified that, immediately after she had kne e su rger y, Father threw and pushed her across a room and into a fireplace, causing her to hit her head. On more than one occasion, she asserted, Father had held her down, sitting on top of her, and poked he

r in the chest har

d enough to le

ave visible bru ises. She said that once Father threw his glass of bourbon at her because she did not refill his glass and told him he had been drinking too much. The glass almost hit the ir daughte r, Britney , who had been sta

nding next to Mother.

Mother testified that

Father freque

ntly lost his temper with t

he parties’ child

ren over small things. She said that

if Father were sleeping and the children’s play woke him, he would whip them witha bel t. S he as ser ted tha t Fat her w hip ped the chi ldr en fr equ ent ly, andexcessively hard. She said that he hadwhippedBritney so hard that it left a

deep bruise on he

r back, and that h

e had recently whipped their son h

ard enough to le

ave visible marks

on his bottom.
At the time of trial, Mother lived in her parents’ home, with four bedrooms and two ba

ths. Mother’s mother, Mrs. Walker, testified, corroborating Mother’s testimony that Father’s discipline hadleft visible bruises on the parties’ son. Mrs. Walker said that, when the children visited Mother, they did not want to return to Father.

Mother’s cousin, Adam Walke r, also testified.

He said that he rode with Mother to Father’s hometo pick up the children. When they were picked up , Wa lker asserted, the children were uncleanand hungry and Britney ’s hair was “a mess.” He said that the children were happy to leave Father and cried when they had to return to him. Walker des cribed an in cident regard ing a puppy Father hadgotten for

Mother during the parties’ separation. In the children’s presenc e, Walker said, Father ye lled at Mother that

she “had better t

ake the damn dog

or he would get r

id of it,” and then picked the puppy up by the scruff of the neck and threw it into Walker’s arms.3 A pleading fi led by Mother says t

hat Father

asserted th

at a male fri

end of Mother’s had

slept in t

he same bed with Mother and Britney, and that this asserti on w as untr ue. However, Father’s assertion is not contained in the Statement o f Evidence , which is deem ed appr oved and is the record for this appea l.
-4- Britney’s kindergarten teacher, Tracy Riddle, a lso testified a t the he aring. Ms. Riddle testified that, when Mother was the children’s primary careg iver, Britney was

always neatly dressed in matching outfits, with her hair nicely fixed with a bow in it. Since Father had been a warde d temporary

custody, she said, Britney was ne ver dressed as nicely, and her hair was unkempt and at times wet. Ms. Riddle

noted that Britne

y’s hair ha

d recently been cut very

short.

Ms. Riddle also testified that Britney’s eating habits had been affected since Father obtained
cus tod y, that Britney

now ate very

littleat scho ol. She said that she spoke to Father a

bout this, noting to h im t hat Mot her h ad al ways packed a lunch f or Britney because she did

not like the school food. Ms. Riddle said that F ather’s respons

e was th at Mother “sho uldn’t have left; B ritney will either adapt to the school food or go without.”

In Father’s testimony, he did not dispute much of Mother’s allegations, but asserted that he hadchanged since being awarded temporary custody of the children. Father acknowledge d that he “might have drunk more than he should have, but wasn’t an alcoholic”; he said that he had gone to
one Alcoholics Anonymous meeting and d ecide d that he “didn’t ha ve anything

in common with those people.” He asserted that he had since stopped drinking on his own.

Father acknowledged that, during the parties’ marriage, Mother had wor ked hard cleaning the house and caring for the children, and had “done a better job at it than he ever c ould have done.” He admitted that Mother had been the children’s primary careg iver prior to the parties’ separation,
a nd that she had taken good care of the children during the marriage. Father acknowl edged that , prior to the parties’ separation, he had not gone to church with the children or gone to T-ball games and the like, but asserted that he had done these things since the parties separated.

Father admitted that he whipped the children , at times with a belt. He acknowledged whipping Britney hard

enough to leave a bruise on her back, but said that it “wasn’t as big a deal as Meloney and her family

tried to make it out to be.” He conceded that he “might have” wh

ipped his
son with a belt hard enough to leave a mark. Father asserted that he was a firm be liever in discipline and said that he would discipline his children “as I see fit.”
Father conceded that, shortly after Mother had knee surgery, he had

“slung his wife across the room. . . .”

Father asserted in his tes

timony that Mot

her is now an unfit

pa rent. Without offering specifics, 3 Father said that since Mother had m

o ved inwith her family, she was no longer a good mot her a nd t hat the chi ldr en s hou ld n ot b e rai sed arou nd M oth er’s fam ily.-5-

Father’s mother testified as well. She said that she had been staying with Father andhelping
care for the children. She described the children as happy and well-mannere d, except when Mother
came for visits. She said that her son was “a firm father,” and asserted that “if it took spanking them with a belt , that was what had to be done.” She said that they had cut Britney’s hair very shor t because it was too hard to fix.

After the hearing, the trial court granted the divorce to Mother based on Father’s stipulated inapprop riatemarital conduct. The tria l court ordered t

hat custody o

f the children re

main with Father and awarded visitation to Mother in accordance with the Shared Parenting Provisions. Mother was ordered to pay

child support and a

ll medical, dental

, psychological and optical expenses notcovered by Father’s insurance. I n addition, Mother was awarded rehabi lit ative alimony for a periodof twelve months, conditioned on her enrollment i n and attendance

at EMT classes with

in three months of the trial c ourt’s order. Th

e trial court also

divided the marita

l p roperty such t

hat Father received the 1 998 Toyota Camry and the bedroom suite in the possession of Mother a nd Mother received the 1987 Acura Integra and the family’s computer. From this order, Mother now appeals.
Mother first argues that the trial court erre

d in refusing to c

ontinue the trial be

cause of her absent witnesses. She maintains that , had her request for a continuance been granted, the absent witnesses would have corroborated her allegatio ns of Father’s alcoholism and violence. Even withoutthe testimony of the absent witnesses, Mother asserts that the evidence stil

l showed her to b e the more fit parent and that the trial court erred in awarding custody to Father. Mother als o appeals the requirement that she pay all of the children’s medical related expenses not covered by Father’s insurance. She argues that the trial court erre

d in requiring he

r to attend EMT cla

sses in order to receive rehabilitative alimony, and also appeals the trial cour t’s division of property.

We consider first the trial court’s decision to award custody to Father. A trial court’s findings of

fact in child custody cases are reviewed de novo accompanied by a presumption of the correctness

of those findings. Tenn. R. App. P. 13(d ); Hass v. Knighton , 676 S.W.2d 55 4, 555 (Tenn. 1984). However, where, as in this case, the trial court fails to make specific findings of facts, this Court must make an independent review of the record. Crabtree v. Crabtree , 16 S.W.3d 356, 360 (Tenn. 2000).

In child custody cases, the welfare and best interest of the child are paramount. See Whitaker v . Whitaker , 957 S.W.2d 834, 837 (Tenn. App. 1997); Tenn. Code Ann. § 36-6- 10 6 (1996). The determinatio n of the child’s be

st interest must turn

on the particular

facts of each case. See Taylor v. Taylor , 849 S.W.2d 319, 326 (Tenn. 1993); In re Parsons , 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995). In Bah v. Bah , 668 S.W.2d 663 (Tenn. Ct. App.1983), the Court adopted the doctrine of comparative fitness as a common sense approach to de termin e the child’s best interest. In making a custody decision, the cou rt must consider the factors set forth in Tennessee Code Annotated § 36-6-106, including the importance of continuity in the ch

ild’s life, the deg

ree to which a parent has been the primary caregiver, the stability of each parent’s family unit, evidence of physical or emotio

nal abuse to

the child or the other parent, and each parent’s past performance-6-

of parenting responsibilities. See Tennessee Code Annotated § 36-6-1 06(a)(2)-(4), (8) and (10) (Supp. 2000).
Any inquiry into the com parative fitness

of parents is fac

tuall y driven and turns upon a number of considerations, including the credibility and demeanor of the parties. Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). Having seen and heard the actualtestimony, the trial court is in the best position to eva luate the parties ’ honesty and, thus , the trial court is vested with broaddiscretion in awarding custody. Id. at 631. However, the determination of the trial court must still be based on the proof in the record and upon the appropriate application of the law. Id. Reviewing the facts in this case, it is difficult to see how the evidence preponderates in favor of the award of custody of Father, even considerin g the deference accorded to the trial court in a custody decis ion. In the record before this Court, Mother’s testimony is essentially unrefuted, regarding Father’s history of alcohol abuse, his physical verbal

and emotional abuse of Mother, and his hot temper and excessive discipline, bordering on physical abuse, of the parties’ c hildren. It is undisputed that Mother was the children’s primary caregiver prior to the temporary award of custody to Father, and that Mother did a good job caring for the children. Father a dmits he was not

deeply involved in the care of the parties’ children prior to the separation. The importance of continuity of
care for children in divorce has been repeatedly emphasized by this Court. See Barnhill v. Barnhill , 826 S.W.2d 443, 453 (Tenn. Ct. App. 1991). While acknowledg ing his past histor

y of alcoho

l abuse andphysical and verbal abuse of Mother, Father maintains that he is now a changed man, ceasing consumption of alcohol with no c ounseling or professional help and becoming a sensitive and i nvolved par ent, taking the c hildren to church

, sports and similar

activities. Yet he

cavalierly dismisses his excessive discipline of the children, whipping them with a belt hard enough to leave b rui ses, maintaining that he will discipline the parties’ children “as I see fit.” When Britney’s teacher told Father that B

ritney ate very little at school, suggesting that he pack her a lunch as Mother always had, Father responded in a manner devoid of

sensitivity to the child’s needs, asserting that Britney c ould either adapt

to school food or g

o without.

Father asserts that

he provides the more stable environment, noting that Mother lives in her parents’ home while Father continues to reside in the marital home. Howeve r, this fact mu st be vie wed in over all context. From the record in this case, Mother left the marital home with the children after Father’s stipulated adultery and against a

backdrop of Fa

ther’s admitted a

lcohol abuse andphysical ab

use of Mother. I

t is undisputed that Mo

ther was unemploy

ed and without job sk

ills
or financial support, by virtue of the parties’ agreement that she leave school to ca

re for the partie

s’ homeand children. Indeed, Mother’s testimony is unrefut ed that Fat her belittled and demeaned Mother when she broached the idea of obtaining job training, calling her stupid and telling her she would always be a dependent housewife. The award of temporary custody

to Father was conditioned
on the paterna l grandmoth er moving in with Father and the children. Mother now resides in her parents’ home, with ample space and the support of her extended family, so both parents now reside in a suitable home w

ith family sup

port. Considering all of these circumstance s, incl uding the fact that Mother had been the children’s primary caregiver pr

ior to the award o

f temporary

custody, th

e importanc e of continuity in the-7-

children’s lives, Father’s lack of involvement in the children’s care prior to the award of temporary
cus tod y, Father’s history of alcohol abuse, Father’s histor

y of phy sical and verbal

abuse of Mother, Father’s excessive disciplin e of the children

and insensitivity

to their needs, and

the fact that both parentslive in a suitable home w ith adequate support from extended family, we must reverse the decision of the trial court. Mother is hereby deemed the primary residential paren t, a nd the cause must be remanded to the trial court to determine an appropriate visitation sche dule f or Father. Obv iou sly, the award of child support to Father must also be reversed. The record does not include Father’s income level, so the cause must also beremanded for an appropriate award of child support to Mother. Father is ordered to maintain health insurance on the parties’ childre

n and is ordered to pay all non-covered medical, dental, psychological and optical expenses of the children. In light of this holding, the issue on app eal regarding the trial cou rt’s refusal to c

ontinue the trial is pretermitted.

Mother also appeals the t

rial court’s dec

ision to condition re

habilita tive al imony on her enrollment

in EMT classes within three months of the trial court’s order. Mother asserts that she no longer intends to go to EMT school and, thus, th e condition on reh

abilitative alimony

is overly restrictive

. The trial court, of course, is afforded wide discretion concerning an award of alimony. Hanover v. Hanover , 775 S.W.2d 612, 617 (Tenn. Ct. App. 1989). This inc ludes the discret

ion to make alimony subject to conditions i mposed by the court or agreed upon by the parties. Isbell v. Isbell , 816 S.W.2d 735, 739 ( Tenn. 1991). Howe

ver, where the t

rial court fails to mak e specific findings of fact considered in reaching its decision, independen t rev iew is required. Crabtree v. Crabtree , 16 S.W.3d 356, 360 (Tenn. 2000).

The purpose of rehabilitative alimony is to reha bili tate an economically disadvantaged spouse. Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 2000). It is u

ndisputed that M

other was in an economically

disadvantaged position. In the record before this Court, it is clear that the decision for Mother to leave school, refrain from seeking employment, and ca re for the parties ’ h ome and children was with Father’ s agreement, in deed, at his insiste

nce. The testimony regarding Mother enrolling in EMT classes was not in the context of her plans for rehabilitation. Rather, it was in the context of h er t est imo ny that, during the parties’ marriage, when Mother broached the topic of obtaining job training such as enrolling in EMT classes, Father would demean and humiliate her, and insist that she remain at home. Under the circumstances of this case, in which

Mother is clearly in
an economically

disadvantaged

position, there is n

o reason to rest

rict her r ehabilitation eff

orts to training to be come a n EMT. The decision of the trial court must be modified, and the award of rehabilitative alimony for

twelve months is not c

onditi one d on Mother enrolli ng in or attending

EMT classes. On remand, the trial court may extend the rehabilitative a

limony bey

ond twelve months if circumstances w

arrant.

Mother also appeals the trial court’s division of marital property. The trial court’s order states simply that F

ather was awar

ded the parties’ 1998 Toyota Camry and the

bedroom suite which
was in Mother’s possession, while Wife was awarded the 1987 Acura Integra and the computer. Father was ordered to pay any

debts on both vehi cles and Mother was required to pay the debt on the computer. The S tatement of the Evidence in the record on appeal contains little evidence-8-

regarding the ma rtial prope rty to b e divi ded. It contains only Mother’s testimony that when she left the marital home with the parties’ children, she took the 1998 Toyota Camry, but at the time of trial she had the 1987 Acura Integra. Mother’s testimony in the

Statement of the Evidence is unrefuted that the 1987 vehicle was inoperable because Father had “worn [it] out. . . .” In view of Mother’s undisputed economic disadvantage, the division of marital property must be modified to either awa rd Mother the 1998 vehicle or provide an adjustment in the division of martial property or an award of alimony in solido to provide her the means to acquire

a vehicle suitabl

e to transport Mother and the parties’ children. The cause is remanded to the trial court for its d eterm inati on on t his i ssue. In all other respects, the division of marital property is affirmed.

The decision of the trial court is affirmed in part, reversed in part, modified and remanded for further proceedings consistent with this Opinion. Costs on appeal are awarded against the App ell ee, G rady L eon ial Car r, III, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

HOLL Y KIR BY LI LLA RD, J.