# FILED
October 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MICHAEL ALLEN LANCE, ) ) Plaintiff/Appell

ant, ) Sumner Circuit

) No. 16685-C VS. ) ) Appeal No. TINA GAYLE LANCE, ) 01A01-9801-CV-00036 ) Defendant/Appellee. )

APPEAL FROM THE CIRCUI T COURT FOR SUMNER COUNTY AT GALLATIN, TENNESSEE THE HONORABLE THOMAS GOODALL, JUDGE

For Plaintiff/Ap

pellant : 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

### -2- 

## O P I N I O N

Thi s appeal involves the custody o f a five-year-o ld-girl. After thre e and one -half years of marriag e, the father filed a divorce p etition in the C ircuit Court fo r Sumn er Coun ty requestin g c ustody of the part ies’ only child. The mother did not contest the di vorce but soughtcustody of the part ies’ child. Following a bench tr ial, the t rial court declared the parties divorced and awarded custody to t he mother. The father asser ts on this appea

l that he shoul d have be en award ed the divo rce and tha t he is com paratively m ore fit than th e mother to have custody. We affirm the award of custody to the mother but remand the case with directions to modify thejudgme nt to award the divorce to the father on t he ground of inappr opriate m arital con duct.

I.

Tina Gayle Lance and Michae l Allen Lance m et in April 1992 w hile work ing at Opryland, U.S.A. Ms. Lance was seventeen, and M r. Lance was twe nty-three year s old. They became romantically involved, and on August 20, 1993, M s. Lance gave birth to their daughter, Kayla M ichelle Lance. The parties changed l iving arrangements qui te often following the birth of t he chil d, bu t fi nall y, in Febr

uary 1994, they moved i nto t heir own apartment in Madison.

The parties were marri ed in July 1 994. Ms. Lance w as their daughter’s primary caregiver but also worked full-ti

me. Mr. Lance also worked full-time and attended classes at Voluntee r State Community College where he was enrolled in t he nursing program. When he was not working or attendi ng classes, much of hi s time was spent studyi ng. Both the maternal and paternal grandpa rents assi sted with b abysitti ng. In June 1995, t

he parties purcha sed a ho me in W hite Ho use w ith finan cial assis tance fr om M r. Lanc e’s pare nts.

Ms. Lance’s p arents mo ved back to Louisian a in November 1995. After visi ting her parents twice in January and February 1997, Ms. Lance informed Mr. Lance that she wished to move back to Louisiana with t he parties’ da

ughter. Ms. Lance’s at

titude about Mr. Lance and her marria ge chang ed dram atically wh en she retur ned from an extend ed visit to Louisiana

in March 1997. Instead of ret urning to her

home, she moved in with girlf riends and inform ed M r. Lanc e that sh e desire d to m ove to L ouisian a perm anently . M r. Lanc e became suspicious about Ms. Lance ’s conduct when their phone bill reveal

ed that she was mak ing freque nt telephon e calls to a form er boyfrien d in Louis iana. Ms. L ance finally1 Prior to a 1998 amendment not applicable to this case, Tenn. C ode Ann . § 36-4-129(b) provided: “The court may, upon such stipulations or upon proof , gran t 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.” 

### -3- admit ted t o Mr. La nce that she was hav ing sexua l relations in L ouisiana w ith her old boyfriend.

The p arties’ marr

iage deterior

ated rapidly.On April 1, 1997, Mr. Lance fi led a petition fo r divorce in t

he Circuit Court f

or Sumner County and obtained a temporar y restraini ng orderpreventing Ms. Lance from taking thei r daughter to Louisiana prior t o the trial. The trial court dissolved the order on Ma y 9, 1997 wh en it gave Ms. La nce temporary custody. Ms. Lan ce admitted in her a nswer that she had engaged i n inappropriat

e marital conductbut requested

custody of her daughter. Follow ing a bench trial, the trial court declaredthe parties divorced in accord ance with Ten n. Code An n. § 36-4-129(b) (19 96), 1 awarded custody of the part ies’ daug ht er

to Ms . Lance, and determ ined that the child’s interests would be served best by permit ting Ms. Lance and the chi ld to move to Louisiana. Ms. Lance and Kayla have moved to Louisiana,where Ms. Lance works as a secretar y at her uncle’s real estat

e office. They l

ive rent-fr

ee in a home owned by her parents. Mr. Lance continues to reside i

n the Nashville ar

ea and works at Vander bilt H ospital as a nurse assistan t.

II.
Mr. Lance’s prim ary issue on this app eal invo lves the custod y decis ion. He asserts that the evidence doesnot support the trial court’s findin g that Ms . Lance is co mparativ ely
more fit to be t

he custodial par

ent. We have determined tha t t he evidence does not prepon derate a gainst th e court’ s concl usion.

A.

Dec isions involving the custody o f children are factually driven and require th e carefulconsideration of nume rous co nsidera tions. See Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 19 90); Rogero v. Pitt, 759 S .W.2d 109, 1 12 ( Tenn. 1988). Among these considerations are:

the age, habits,

mental and emotional make-up of the child and those parties co mpeting for custody;the education and experienceof those seeking t o raise the

child; their character and propensitie s as evidenced by thei r past conduct;the financial and physical circ umstanc es available in the hom e of each p arty seeking custody andth e special requi rements of the chil

d; the ava ilability and extent of thi rd-party support ; the associ ations

### -4- and influences to which the child is mo st likely to be e xposed in the alternatives aff orded, both positive and negat ive; and where is the greater l

ikelihood of an envi

ronment for the

child of love, warmth, stability, suppo rt, consis t ency, care and concern, and physical and spi

ritual nur ture. Bah v. Bah, 668 S.W .2d 663, 66 6 (Tenn. C t. App. 198 3); see also Tenn. Code Ann. § 36-6- 106 (Supp. 1998). Since there are no hard and fast rules for det ermining which custody and visitat ion arrang emen t will bes t serve a child’s n eeds, 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 visitat

ion decisions a

re invariabl

y dictated by t

he unique facts of

each case.

The ana lytical frame work for making original custo dy decision s requires the courts to examin e the paren ts compe ting for custo dy to determ ine which of them is c ompara tively
more fit to be the child’s custod ian. See In re Parsons , 914 S.W .2d 889, 89 3 (Tenn. C t. App. 1995); Bah v. Bah , 668 S.W.2d at 666. The courts understand that each par ent has his or her
own vices and virtues. See Ga skill v. Gaskill , 936 S.W.2d 62 6, 630 (Tenn. C t. App. 1996). Acc ordi ngly, they do not base their cust

ody decisions

on which parent is “per fect,” see Bah
v. Bah, 668 S.W.2d at666; Edwards v. Edwards, 501 S.W.2d 283, 290-91 (Tenn. Ct.App. 1973), or on which parent has bee n made out to be com pletely un fit. See Griffin v. Stone, 834 S.W.2d 300, 305 (Tenn. Ct. App. 1 992); Harris v. Harris, 832 S.W.2d 352, 353 (Tenn. Ct. App. 1992). Rather, custody decisions requi re the cou rts to dete

rmine which of the available custodial alternat ives appears to be best calculated to meet the child’s needs.
Custody and v i sitation determinations often hinge on subt

le factors,

including the parents’ demeanor and credib ility during the divorce pro ceedings th emselve s. Trial courts must be able to ex ercise broad discretion in these matters, as long as thei

r decisions ar

e based
on the evidence and on an appropr iat e a pplicatio n of the applica ble prin ciples o f law. See D v. K , 917 S .W.2d 682, 68 5 (Ten n. Ct. Ap p. 1995). Accord ingly, appellate courts are reluctant to seco nd-gu ess a trial c ourt’s d ecision s, see Gask ill v. Gaskill , 936 S.W.2d at 631, and we review these decisi ons de novo on the record wit h a presumption that

the trial court’s findings of fact a re corre ct unles s the ev idence prepon derates otherw ise. See Nichols v. Nichols , 792 S.W .2d at 716; Doles v. Doles , 848 S.W.2d 6 56, 661 (Tenn. C t. App. 1992).

B.

The pivotalquestionwith regard to t he trial cour

t’s custody

decision is whet

her the evidence prepond erates again st its conclusio n that Ms . Lance is co mparative ly more fit than

### -5-

Mr. Lance to be their daught er’s custodian. Mr. Lance asserts that the trial cour

t’s decision stemmed more fro m the trial cou rt’ s conce rn that he fathe red a child out- of-wedlock than from the current

fitness of the parties. He also asserts t hat the evidence demonst rates that he is more s table and responsi ble than Ms. Lance and, t herefore, that

he would be a better custodial pa rent.

The trial cour

t’s comments from the

bench leave lit

tle doubt that

it disapproved of the facts that “this father was 24 years of age when he got t his 17-year

-old girl pr

egnant” and that the child was born out of wedlock.It is difficul t to tell from the record what role these factors played in t

he trial cour

t’s ulti mate custody decision. However, we neednot specu late about these questions on appeal because we must revi ew the record denovo and because our appraisal of comparative fit

ness need not follow that of the trial court. U nder the fa cts of this case, we have dete rmined tha t the age diff erence in th e parties and the fact that th eir child
was born bef ore th ey were marri ed are of only minor weight in the comparative fitness analysis.

Mr. Lance’s asserti

on that he is t

he more stabl e a nd matu re parent stem s from his belief that Ms. Lance’s infatu ation with her high school boyfriend and her desi re to move back to Louisiana signa ls her im maturity and lack of commitment to her child. While her conduc t certainly evin ces a lack o f comm itment to he r marriage , it does not ne cessarily follow that she is any less com mitted to her daugh ter.

This court has never condoned extramarit al affairs. See Sutherland v. Sut herland , 831 S.W.2d 283, 286 (Tenn . Ct. App. 1991). Sexual misconduct may be an indication of pa rental fitness, and accordingly,the courts may consider it when undertaking t

hei r comparative fitness analys is. See Barn hill v. Barnh ill , 826 S.W.2d 4 43, 453 (Tenn. C t. App. 1991); Edwards v. Edwards , 501 S.W .2d at 291. H oweve r, courts declin e to use custody decisi ons to pun ish parent s for sexual m isconduc t alone with out som e proof that th e conduc t is adversely affectin g the ch ildren. See Varley v. Varley , 934 S.W.2d 659, 666-667 (Tenn. C t. App. 1996); Sutherland v. Sut herland , 831 S .W. 2d at 286; Mimms v . Mimms , 780 S.W.2d 739, 74 5 (Ten n. Ct. A pp. 198 9).

Based on the facts of this case, we find no basis for concl uding that Ms. La nce’s inapprop riate affair with he r former boyfriend warr ants reversi

ng the trial

court’s cust

ody decision. There is no indicat ion that Ms. Lan ce is engag ing in inapp ropriate, intim ate conductin her daughter’ s presence or that her daughter has been emoti onally or psychologicall

y harmed by Ms. Lance’s relati onship with her for

mer boyfriend. Nor does the record contain any p roof that Ms. Lanc e’s infatuation with her form er b oyfr iend has

### -6-

caused her to neglect her daughter’s needs. Thus, Ms. Lance’s meret ricious relationship,by itself, is not enough to t

ip the scales

against awarding her

custody.
Weighed a gainst Ms. Lanc e’s relationship with her former boyfriend is the fact that Ms. Lance h as taken prim ary respon sib ility for meeting th e child’s nee ds during th e early years of her life.While Mr. Lance was an attenti ve parent to the e

xtent that hi s schedule permitted, it was Ms. Lance who had the responsi bility t o feed, bathe,and clothe the child. Ms. Lance has been the consistent parent fi gure to the chil d ever since she was born.The child has been living

with M s. Lance in New Orleans since 1997. In l ight of the i

mportance of continuit

y and stabili

ty in a young child’ s life, see Taylor v. Taylor , 849 S.W.2d at 328; Contreras v. Ward , 831 S. W.2d 2 88, 2 90 (T enn. Ct. App. 1 991) , weare disincl ined to alte

r the present cus tody arrang ement an d require the child to leave her moth er to return to Nashville.

III.

Mr. Lance also takes i ssue with the tr ial court’ s decision to dec lare the parties divorcedbecause of a desire to shi eld the parti

es’ child fr

om the knowledge that Ms. Lance had committed adultery.We assert that the decision was wrong for two reasons. First, Ms. Lance admitted committing adul tery, and second,

because it is

unrealist

ic to expect t

hat ignoring the pl ain evidenceof adultery wil l shield t he child from lear

ning, if she doe s not already know, that her mother’ s affair wit h a former boyfriend caus ed her parents’ marr iage to end. We agree that Mr. Lance should have been awarded the divor ce. Tenn. Code Ann. § 36-4-129(b) permits a trial court to declare the parties divorced, rather than awarding the divor ce to one of the part

ies, if e ither or bot

h of the par

t ies prove that they are e ntitled to a

divo rce.While

we generally avoid r

evisiti ng a trial cour

t’s decision concerning to whom a divorce should be g ranted, this case presents a rare occasion requiring
us to intercede.Based on our de novo review of the r ecord, we find overwhelming evi dence that Ms. Lance comm itted adultery. However, we find little evi dence substantiating Ms. Lance’s claim that

she is entit

led to a divorce f

rom Mr. Lance. Similarly,we hav e conclud ed the trial cou rt’s desire to shie ld the parties’ ch ild from knowledge of her mother’s miscond uct, while w ell-motivate d, is misdirec ted. The ch ild is now five years old. If she does not already know why her parents se paratedand divorced, she will certai

nly know soon enough even if she never sees the divorce decre

e. Accordingly,
we find that t

he trial cour

t erred by declar

ing the parti

es divorced an d thatthe evidence preponderatesin favor of concl uding that Mr. Lance is

entitled t

o the divorce on the gr

ound of inap propria te mari tal cond uct.

### -7- IV.

We aff irm t he judgment

awa rding Ms. Lance custody of the par ties’ daught

er and remand the case w ith directions that the trial court amend th e divorce decree to sho w that Mr. La nce was a warded a divorce on the ground of inappropriat

e marital conduct.We tax the costs of thi s appeal in equal pr oportion to Michael

Allen Lance and his surety,and to Tina Gayle Lance for wh ich exe cution, if necess ary, m ay issue

.

____________________________ WILLIAM C. KOCH, JR ., J UDGE CONCUR:

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M. S.

_________________________________ WILLIAM B. CAIN, JUDGE