# FILED February 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk WILLIAM JEFFREY TARKINGTON, ) ) Davidson Circuit Plaintiff/Counter-Defendant/ ) No. 96D-1512 Appellant, ) ) VS. ) ) Appeal No. REBECCA JUANITA TARKINGTON, ) 01A01-9706-CV-00270 ) Defendant

/Counter-

Plaintiff/ ) Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM

CIRCUIT COURT OF D AVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE MURIEL R OBINSON, JUDGE
CAROL L. SOLOMAN, #6649 Washington Square, Suite 400 214 Second Avenue

, North Nashville, TN 37201 ATTORNEY FOR PLAINTIF F/COUNTER-DEFENDANT/APPELLANT JACK NORMAN, JR., #2702 213 Third Avenue,

North Nashville, TN 37201 ATTORNEY FOR DEFENDANT/COUNTER-PLAINTI FF/APPELLEE 

### AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

WILLIAM JEFFREY TARKINGTON, ) ) Davidson Circuit Plaintiff/Counter-Defendant/ ) No. 96D-1512 Appellant, ) ) VS. ) ) Appeal No. REBECCA JUANITA TARKINGTON, ) 01A01-9706-CV-00270 ) Defendant

/Counter-

Plaintiff/ ) Appellee. )



## O P I N I O N
The husband, William Jeffrey Tarkington, has appe aled from a judgment of the Trial Courtfinding him and his wife, Rebecca J uanita Tarkington, guilty of inappropriate marital conduct and declaring them to be divorced pursuant to TCA § 36-4-129.
Husband’s first two issues are: I. Whether

the Tr ial Court abused its disc retion in awarding custody of the two min or children to the mother where the credible proof show ed that the father was the comparatively better-fit custodian. II. Whether

the T rial Court erred in excluding the mo the r’s medical records from an alcohol treatment center where th e m other had executed a medical release for such records an d whe re the information sought to be introduced impacteddirectly upon the mother’s fitness as custodial parent. Since the first two issues relate to the fitness of each party to have custody and control of the children, they will be discussed together.
Prior to the entry of the final decree of divorce, th e Trial Cou rt entered an order stati ng: (1) The pendent e lite custody of the parties’ two minor sons shall be vested jointly in both parties, ho w ever, the primary physical possession of the children shall be with the wife who s ha ll reside with the c hildren at the par

ties’ River Rouge home in Nashville, Tennessee. T he husband shallvacate the premises on or before Sunday, June 23, 1996, and wife shall retain

exclusive possessio

n of th e premises pending furthe

r orders of the Co

urt.-3-

The same order contained detailed provisions for times of visitation.
After a non jury trial, the Trial

Court entered a “Final Decree” which required pay ment of child support and alimony, but did not make any further

provision for custody. For purposes of this appeal, it

must be presumedthat the above quoted “pendente lite” custody order remains in effect.
The determination of custody of children is within the sound discretion of the Trial Judge who saw and heard the parties and witnesses in person. Such determination is entitledto great weight and will

not normally be

disturbed on appeal. Rogero v. Pitt , Tenn. 1988, 759 S.W.2d 109; Bah v. Bah , Tenn. App. 1983, 6 68 S.W.2d 663. The cr

itical factor in

such determination must be the welfare and best interests of the child or children involved. Lentz v. Len tz , Tenn. 1986, 717 S.W.2d 876; Holloway v. Bradley , 190 Tenn. App. 565, 230 S.W.2d 1003 (19 50) ; Bevins v. Bevins , 53 Tenn. App. 403, 383 S.W.2d 403 (1964). Findings of fact by

the Trial Judge bearing upon the award of custody are reviewed de novo on appeal with a presumption of correctness unless the evidence preponderates otherwise. Nichols v. Nichols , Tenn. App. 1 990, 792 S.W.2d 713. Th e exercise of disc

retion as to child custody will not be disturbed on appeal except upon a clear showing of an erron eous exercise of discretion. Harwell v. Harwell , Tenn. App. 1980, 612 S.W.2d 182; Grant v. Grant , 39 Tenn. App. 539, 286 S.W.2d 349.
The “comparative fitness doctrine” is recognized in Tennessee. Bah v. Bah, supra , Edwards v. Edwards , Tenn. App. 1973, 501 S.W.2d 283.
The husband points outthat he testified at length about his affection fo

r and attention to the children and

that the wife did not express her feelings towar

d the children. I

t has been well-4-

said that “behavior speaks louder than words.” The Trial Court doubtless considered the various incidents described in the testimony more than the verbal professions of affection.
The answer of the wife admits that, on occasions, she consumed too much alcohol, but does not admit or deny that she is an “alcoholic.”
The husband relies upon the “admission” of the wife that she is an alcoholic, but

does not discuss his own excessive drinking and resultant behavior.
The husband concedes that the younger son is autistic and insis

ts that this son “impr

oves” during his visitation with the father; but the husband gives no basis for comparison of the child’s behavior, nor is th

ere any pr ofessional evide

nce that it is for the best interest of the child to be in the principal custody of the father.
The father relies upon the testimony of one of the children that he would rather be with the father. However, the child’s reasons for his preference do not particul arly relat e to his welfare.
It was proper for t

he Trial Court to

cons ider the advisability of keeping the children together rather than sepa

rating them. This

is especially

true because

of the disability of the older child. Unq ues tio nab ly, prior to their separation, both parties were guilty of conduct which they now regret. Unquestionably, their conduct, especially in the presence of the children, underwent someimproveme nt while th e case was pen ding. The conduct of neither party has been ideal even while the case was pending. Wisdom

directs caution as to reliance upon temporary reform. The parties should demonstrate their fit ness by consistent excellent care of the children over an ext end ed p eri od, befo re s eeki ng a r evi sio n of the “pen den te l ite ” ord er of cus tod y.-5- Husbandalso complains of the exclusion of medical records of the wi fe whi ch, it is insisted, were material to the custodialfitness of the mothe r. It is argu

ed that said reco

rd, would contain the notes of

doctors as to

statements made to them by the wife regarding her misuse of alcohol and drugs and resultant behavior. The mother hadauthorized the release of such records despite TCA § 63-11-213 (the psychological examination privilege). It does not appear that the medical record was actually tender ed and pr eserv ed in t he rec ord, w hich i s bett er pra ctice . It does appear that counsel stated the substance of the medical record, which is permissible.
From a consideration of what is in this re cord, this C ourt is unable to hold that the exclusion of t he record or t he summary of its contents “more probably than not a ffected the judgment or would result in prejudice to the judicial process,” as provided by TRAP Rule

36(b). Rule 6(a)(1), (2

) and (3) states: Rule 6. Briefs. - (a) Written argument in regard to each issue on appeal shall conta in: 1. A s tatement by the appellant of the allege d erroneous action of the trial court which raises the issue and a statement by the appellee of any action o f the trial court which is relied upon to correct th e alleged err

or, with citation to the record wher

e the erroneous

or corrective a

ction is recorded. 2. A statement showing how such alleg ed error was seasonably called

to the atte ntion of th e trial jud ge with citation to thatpart of

the record wh ere appellan t’s challen ge of the alleged error is recorded. 3. A statement reciting wherein app ella nt was prejudiced by such alleged error, with citations to the record showing where the resultant prejudice is recorded. An offer of proof by narration of its substance by counsel may be sufficient , but better practice is to present the actual evidence so that the effect of the alleged error may be correc ted on appeal. Farmers- Peop les Banks v. Clemmer , Tenn. 1975, 519 S.W.2d 801, 804. Whether narrative or documentary, the offer of proof should have been accepted. No grounds of re

versal are foun

d in the first two issu

es.-6- The husband’s thir

d, and last issue is: III. Whether

the Trial Court abused its discretion in awarding the wif e al imo ny in futurowher e t he parties’ earning capacities are

not appreciably

different and

where the wife is not precluded from economic rehabilitation. The husband admits that his gross income is $24,900.00 per year or $2,075.00 per

month. He insists that, in the past, the wife earned $16,000.00 per year, but co ncedes that, at th e time of trial, she was earning only about $11,000.00 per y ear for 10 months with summers off.
Husbandcites the legisla

tive policy f

avorin g re habilitative alimony. TCA § 36-5-101(d). So long as the two children are in the principal custody of th

e wife, it is

not unreasonable for her to retain her present em

ploymen t with the public schools which enables her to care for the children when they are not in school. This is especially important bec aus e of t he disability of one of the children.
Husbandargues finally

that he is unable to pay

the amounts order

ed by the Tr

ial Court. The husband admitted a net “take home pay” of $1,700.00 per month.Th e child support of $535.00 per month and alimony of $511.00 per month amount to $1,035.00 per month, leaving $665.00 of husband’s “take home pay.”
The wife testifiedto her need of $2,382.94 per month. Her $11,000.00, 10-month pay amounts to $1, 100.00 p er month leaving $1,282.94 needed from the husband. The $1,035.00 to be received fr

om the husband lea

ves a $153.00 shortage. It is seen that both parties will be required to do some economizing to “make ends meet.” This Court cannot say that the evidence preponderates against the findings of the Trial Judge or that she erroneously exercised her discretion in f ixing ali mony. TRAP Rule 13(d); Harwell v. Harwell

, Tenn. App. 1980, 612 S.W.2d 182.-7- The judgment of the T

rial Court is

affirmed. Costs of this appeal are assessed against the appellant,William JeffreyTarkington and his surety. The cause is remanded to the Trial Court for further nec

essary pro

ceedings.


### AFFIRMED AND REMAND ED .

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:
BEN H. CANTRELL, JUDGE
WILLIA M C. KOCH, JR., JUDGE