FILED

October 28, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MICHAEL ALLEN LANCE, )

)

Plaintiff/Appellant, ) Sumner Circuit

) No. 16685-C

VS. )

) Appeal No.

TINA GAYLE LANCE, ) 01A01-9801-CV-00036

)

Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT

FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE

THE HONORABLE THOMAS GOODALL, JUDGE

For Plaintiff/Appellant: For Defendant/Appellee:

Clark Lee Shaw F. Dulin Kelly

Nashville, Tennessee Andy L. Allman

Clinton L. Kelly

Hendersonville, Tennessee

AFFIRMED IN PART; MODIFIED IN PART;

AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal involves the custody of a five-year-old-girl. After thre e and one -half

years of marriage, the father filed a divorce petition in the Circuit Court for Sumner County

requesting custody of the parties’ only child. The mother did not contest the divorce but

sought custody of the parties’ child. Following a bench trial, the trial court declared the

parties divorced and awarded custody to the mother. The father asserts on this appeal that

he should have be en awarded the divorce and tha t he is comparatively more fit than the

mother to have custody. We affirm the award of custody to the mother but remand the case

with directions to modify the judgment to award the divorce to the father on the ground of

inappropriate marital conduct. 

I.

Tina Gayle Lance and Michae l Allen Lance met in April 1992 while working at

Opryland, U.S.A. Ms. Lance was seventeen, and Mr. Lance was twenty-three years old.

They became romantically involved, and on August 20, 1993, Ms. Lance gave birth to their

daughter, Kayla Michelle Lance. The parties changed living arrangements quite often

following the birth of the child, but finally, in February 1994, they moved into their own

apartment in Madison.

The parties were married in July 1994. Ms. Lance was their daughter’s primary

caregiver but also worked full-time. Mr. Lance also worked full-time and attended classes

at Voluntee r State Community College where he was enrolled in the nursing program. When

he was not working or attending classes, much of his time was spent studying. Both the

maternal and paternal grandparents assisted with babysitting. In June 1995, the parties

purcha sed a home in White House with financial assistance from Mr. Lance’s parents. 

Ms. Lance’s parents moved back to Louisiana in November 1995. After visiting her

parents twice in January and February 1997, Ms. Lance informed Mr. Lance that she wished

to move back to Louisiana with the parties’ daughter. Ms. Lance’s attitude about Mr. Lance

and her marriage changed dramatically when she returned from an extended visit to

Louisiana in March 1997. Instead of returning to her home, she moved in with girlfriends

and informed Mr. Lance that she desired to move to Louisiana permanently. Mr. Lance

became suspicious about Ms. Lance’s conduct when their phone bill revealed that she was

making frequent telephone calls to a former boyfriend in Louisiana. Ms. Lance finally
1

Prior to a 1998 amendment not applicable to this case, Tenn. Code Ann. § 36-4-129(b)

provided: “The court may, upon such stipulations or upon proof, grant a divorce to the party who

was less at fault or, if either or both of the parties are entitled to a divorce, declare the parties to be

divorced, rather than awarding a divorce to either party alone.”

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admitted to Mr. Lance that she was having sexual relations in Louisiana with her old

boyfriend.

The parties’ marriage deteriorated rapidly. On April 1, 1997, Mr. Lance filed a

petition for divorce in the Circuit Court for Sumner County and obtained a temporary

restraining order preventing Ms. Lance from taking their daughter to Louisiana prior to the

trial. The trial court dissolved the order on May 9, 1997 when it gave Ms. Lance temporary

custody. Ms. Lance admitted in her answer that she had engaged in inappropriate marital

conduct but requested custody of her daughter. Following a bench trial, the trial court

declared the parties divorced in accordance with Tenn. Code Ann. § 36-4-129(b) (1996),1

awarded custody of the parties’ daughter to Ms. Lance, and determined that the child’s

interests would be served best by permitting Ms. Lance and the child to move to Louisiana.

Ms. Lance and Kayla have moved to Louisiana, where Ms. Lance works as a secretary at her

uncle’s real estate office. They live rent-free in a home owned by her parents. Mr. Lance

continues to reside in the Nashville area and works at Vanderbilt Hospital as a nurse

assistant. 

II.

Mr. Lance’s primary issue on this appeal involves the custody decision. He asserts

that the evidence does not support the trial court’s finding that Ms. Lance is comparatively

more fit to be the custodial parent. We have determined that the evidence does not

preponderate against the court’s conclusion. 

A.

Decisions involving the custody of children are factually driven and require the

careful consideration of nume rous considera tions. See Nichols v. Nichols, 792 S.W.2d 713,

716 (Tenn. 1990); Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988). Among these

considerations are:

the age, habits, mental and emotional make-up of the child and

those parties competing for custody; the education and

experience of those seeking to raise the child; their character and

propensities as evidenced by their past conduct; the financial

and physical circumstanc es available in the home of each party

seeking custody and the special requirements of the child; the

availability and extent of third-party support; the associations
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and influences to which the child is most likely to be exposed in

the alternatives afforded, both positive and negative; and where

is the greater likelihood of an environment for the child of love,

warmth, stability, support, consistency, care and concern, and

physical and spiritual nurture.

Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. Ct. App. 1983); see also Tenn. Code Ann. § 36-6-

106 (Supp. 1998). Since there are no hard and fast rules for determining which custody and

visitation arrangement will best serve a child’s needs, see Taylor v. Taylor, 849 S.W.2d 319,

327 (Tenn. 1993); Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. Ct. App. 1983), custody

and visitation decisions are invariably dictated by the unique facts of each case.

The ana lytical framework for making original custody decisions requires the courts

to examine the parents compe ting for custody to determine which of them is compara tively

more fit to be the child’s custodian. See In re Parsons, 914 S.W.2d 889, 893 (Tenn. Ct. App.

1995); Bah v. Bah, 668 S.W.2d at 666. The courts understand that each parent has his or her

own vices and virtues. See Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996).

Accordingly, they do not base their custody decisions on which parent is “perfect,” see Bah

v. Bah, 668 S.W.2d at 666; Edwards v. Edwards, 501 S.W.2d 283, 290-91 (Tenn. Ct. App.

1973), or on which parent has been made out to be completely unfit. See Griffin v. Stone,

834 S.W.2d 300, 305 (Tenn. Ct. App. 1992); Harris v. Harris, 832 S.W.2d 352, 353 (Tenn.

Ct. App. 1992). Rather, custody decisions require the courts to determine which of the

available custodial alternatives appears to be best calculated to meet the child’s needs.

Custody and visitation determinations often hinge on subtle factors, including the

parents’ demeanor and credibility during the divorce proceedings themselve s. Trial courts

must be able to exercise broad discretion in these matters, as long as their decisions are based

on the evidence and on an appropriate application of the applicable principles of law. See

D v. K, 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995). Accordingly, appellate courts are

reluctant to second-guess a trial court’s decisions, see Gask ill v. Gaskill, 936 S.W.2d at 631,

and we review these decisions de novo on the record with a presumption that the trial court’s

findings of fact are correct unless the evidence preponderates otherwise. See Nichols v.

Nichols, 792 S.W.2d at 716; Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App. 1992).

B.

The pivotal question with regard to the trial court’s custody decision is whether the

evidence preponderates against its conclusion that Ms. Lance is comparative ly more fit than
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Mr. Lance to be their daughter’s custodian. Mr. Lance asserts that the trial court’s decision

stemmed more from the trial court’s concern that he fathered a child out-of-wedlock than

from the current fitness of the parties. He also asserts that the evidence demonstrates that he

is more stable and responsible than Ms. Lance and, therefore, that he would be a better

custodial pa rent.

The trial court’s comments from the bench leave little doubt that it disapproved of the

facts that “this father was 24 years of age when he got this 17-year-old girl pregnant” and that

the child was born out of wedlock. It is difficult to tell from the record what role these

factors played in the trial court’s ultimate custody decision. However, we need not speculate

about these questions on appeal because we must review the record de novo and because our

appraisal of comparative fitness need not follow that of the trial court. Under the fa cts of this

case, we have dete rmined tha t the age diff erence in the parties and the fact that their child

was born before they were married are of only minor weight in the comparative fitness

analysis.

Mr. Lance’s assertion that he is the more stable and mature parent stems from his

belief that Ms. Lance’s infatuation with her high school boyfriend and her desire to move

back to Louisiana signals her immaturity and lack of commitment to her child. While her

conduct certainly evinces a lack of commitment to he r marriage , it does not ne cessarily

follow that she is any less committed to her daughter.

This court has never condoned extramarital affairs. See Sutherland v. Sutherland, 831

S.W.2d 283, 286 (Tenn. Ct. App. 1991). Sexual misconduct may be an indication of parental

fitness, and accordingly, the courts may consider it when undertaking their comparative

fitness analysis. See Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App. 1991);

Edwards v. Edwards, 501 S.W.2d at 291. However, courts decline to use custody decisions

to punish parents for sexual misconduct alone without some proof that the conduc t is

adversely affecting the children. See Varley v. Varley, 934 S.W.2d 659, 666-667 (Tenn. Ct.

App. 1996); Sutherland v. Sutherland, 831 S.W.2d at 286; Mimms v. Mimms, 780 S.W.2d

739, 745 (Tenn. Ct. App. 1989). 

Based on the facts of this case, we find no basis for concluding that Ms. Lance’s

inappropriate affair with her former boyfriend warrants reversing the trial court’s custody

decision. There is no indication that Ms. Lance is engaging in inappropriate, intimate

conduct in her daughter’s presence or that her daughter has been emotionally or

psychologically harmed by Ms. Lance’s relationship with her former boyfriend. Nor does

the record contain any proof that Ms. Lanc e’s infatuation with her former boyfriend has
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caused her to neglect her daughter’s needs. Thus, Ms. Lance’s meretricious relationship, by

itself, is not enough to tip the scales against awarding her custody.

Weighed against Ms. Lanc e’s relationship with her former boyfriend is the fact that

Ms. Lance has taken primary responsibility for meeting the child’s needs during the early

years of her life. While Mr. Lance was an attentive parent to the extent that his schedule

permitted, it was Ms. Lance who had the responsibility to feed, bathe, and clothe the child.

Ms. Lance has been the consistent parent figure to the child ever since she was born. The

child has been living with Ms. Lance in New Orleans since 1997. In light of the importance

of continuity and stability in a young child’s life, see Taylor v. Taylor, 849 S.W.2d at 328;

Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn. Ct. App. 1991), we are disinclined to alter

the present custody arrangement and require the child to leave her mother to return to

Nashville.

III.

Mr. Lance also takes issue with the trial court’s decision to declare the parties

divorced because of a desire to shield the parties’ child from the knowledge that Ms. Lance

had committed adultery. We assert that the decision was wrong for two reasons. First, Ms.

Lance admitted committing adultery, and second, because it is unrealistic to expect that

ignoring the plain evidence of adultery will shield the child from learning, if she does not

already know, that her mother’s affair with a former boyfriend caused her parents’ marriage

to end. We agree that Mr. Lance should have been awarded the divorce.

Tenn. Code Ann. § 36-4-129(b) permits a trial court to declare the parties divorced,

rather than awarding the divorce to one of the parties, if either or both of the parties prove

that they are entitled to a divorce. While we generally avoid revisiting a trial court’s decision

concerning to whom a divorce should be granted, this case presents a rare occasion requiring

us to intercede. Based on our de novo review of the record, we find overwhelming evidence

that Ms. Lance committed adultery. However, we find little evidence substantiating Ms.

Lance’s claim that she is entitled to a divorce from Mr. Lance.

Similarly, we have concluded the trial court’s desire to shie ld the parties’ child from

knowledge of her mother’s misconduct, while well-motivated, is misdirec ted. The child is

now five years old. If she does not already know why her parents separated and divorced,

she will certainly know soon enough even if she never sees the divorce decree. Accordingly,

we find that the trial court erred by declaring the parties divorced and that the evidence

preponderates in favor of concluding that Mr. Lance is entitled to the divorce on the ground

of inappropria te marital conduct. 
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IV.

We affirm the judgment awarding Ms. Lance custody of the parties’ daughter and

remand the case with directions that the trial court amend the divorce decree to show that Mr.

Lance was awarded a divorce on the ground of inappropriate marital conduct. We tax the

costs of this appeal in equal proportion to Michael Allen Lance and his surety, and to Tina

Gayle Lance for which execution, if necessary, may issue . 

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________

BEN H. CANTRELL,

PRESIDING JUDGE, M. S.

_________________________________

WILLIAM B. CAIN, JUDGE