Anthony Gale Wix v. Cathy Marie Wix ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 7, 2000 Session
ANTHONY GALE WIX v. CATHY MARIE WIX
Appeal from the Chancery Court for Lewis County
No. 3862 Russ Heldman, Judge
No. M2000-00230-COA-R3-CV - Filed March 7, 2001
This appeal involves the dissolution of an eighteen-year marriage by the Chancery Court for Lewis
County. The trial court awarded the wife the divorce after concluding that the husband’s continuing
extramarital affair amounted to inappropriate marital conduct. To protect the “moral integrity of the
marital relationship,” the trial court granted the wife sole custody of the parties’ two minor children
and declined to grant the husband any visitation rights. In addition, the trial court ordered the
husband to pay more than the minimum child support required by the child support guidelines
because he was willfully underemployed and because he would not be exercising standard visitation
with the children. The husband asserts on this appeal that the trial court’s decisions with regard to
custody and visitation, child support, and the division of the marital estate lack evidentiary support.
We have determined that the trial court’s disapproval of the husband’s extramarital affair
inappropriately colored its decisions regarding visitation and child support. Accordingly, we affirm
the manner in which the trial court divided the parties’ marital estate and reverse the trial court’s
visitation and child support awards.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part
and Reversed in Part
WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.
Christopher L. Dunn, Columbia, Tennessee, for the appellant, Anthony Gale Wix.
Michael E. Spitzer, Hohenwald, Tennessee, for the appellee, Cathy Marie Wix.
OPINION
Cathy Marie Wix and Anthony Gale Wix were married in June 1980 in Georgia. Ms. Wix
was sixteen-years old and had completed the tenth grade. Mr. Wix was a twenty-eight-year-old high
school graduate who worked as a self-employed lumberman. Mr. Wix was also a widower, and this
marriage was his second. The parties had three children. The oldest was born in April 1981; the
middle child in August 1987; and the youngest in November 1988.
Ms. Wix later earned her GED. Except for a four or five year period early in the marriage
when she worked as a seamstress, Ms. Wix did not work outside the home because Mr. Wix desired
her to remain at home to care for their children. Ms. Wix was diagnosed with breast cancer in 1995.
Surgical intervention was ruled out because the cancer was too advanced. Accordingly, Ms. Wix
received intensive chemotherapy from May 1995 through October 1995 followed by high-dose
radiation treatments. These treatments caused Ms. Wix’s cancer to go into remission; however, their
effects rendered her essentially unable to work.
Mr. Wix’s logging business began to founder in 1997. He incurred substantial debt in late
1997 or early 1998 when he purchased additional heavy equipment in the hope that he could reverse
his failing financial fortunes. In August 1998, while on a business trip to Illinois, Mr. Wix began
an extramarital affair with Elizabeth McClain, the wife of a fellow lumberman. When Mr. Wix
returned home on August 30, 1998, he told Ms. Wix that he was in love with somebody else and that
he wanted a divorce. The parties separated in September 1998, and on November 5, 1998, Mr. Wix
filed a divorce complaint in the Chancery Court for Lewis County seeking a divorce on the grounds
of irreconcilable differences and inappropriate marital conduct. He also requested joint custody of
the parties’ children. Ms. Wix counterclaimed for divorce on the ground of inappropriate marital
conduct. She sought sole custody of the children but requested that Mr. Wix be granted “such
visitation as the Court deems necessary in the best interest of the children.” By March 1999 Ms. Wix
had become romantically involved Calvin Sandy who later moved into the marital home with Ms.
Wix and the children.
Ms. Wix moved for pendente lite support on September 20, 1999. At a hearing conducted
one week later, the parties announced that they had agreed that Ms. Wix was entitled to the divorce
on the ground of inappropriate marital conduct and that two tracts of jointly owned property should
be sold. All other disputes were reserved for further hearing at a later time. On November 9, 1999,
the trial court entered an order awarding Ms. Wix a divorce on the ground of inappropriate marital
conduct.
The trial on the remaining issues began on November 10, 1999, before another trial judge.1
The parties’ lawyers made it clear from the outset that this hearing would focus primarily on disputes
regarding the division of the marital estate and spousal support. They informed the trial court that
their clients essentially agreed that Ms. Wix should have custody of the two minor children2 and that
Mr. Wix should have visitation. Mr. Wix’s testimony regarding marital and business finances
consumed the first day of the hearing. Before adjourning the hearing for the day, the trial court
1
Judge Jeffrey S. Bivins presided over the September 27, 1999 hearing and issued the November 9, 1999 order
granting Ms. Wix the divorce. Judge Russ Heldman presided over the remaining proceedings in the case.
2
The parties’ olde st child had become emancip ated by the tim e of this hearing a nd was estran ged from h is
mother for reasons that are not apparent in the record.
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announced that it wanted to “give the parties and their lawyers some guidance.” First, the court
observed that “the non-custodial parent should have standard visitation and a liberal amount of time
in the summer and alternate holidays, and that the children should have a good relationship with the
visiting parent.” However, the court also warned that “[t]he [c]ourt doesn’t like live-in situations.
It’s [sic] never good for a child.” Then, addressing Mr. Wix’s cohabitation with Ms. McClain, the
court commented:
if Mr. Wix and Ms. McClain are inclined to get married, it would
behoove them to do that, otherwise if there is a final hearing and I
have to come down with a ruling, I might have to say some things and
put some restrictions on people that they otherwise may [not] have if
there is an agreement.3
Because the hearing would not resume for two weeks, the attorneys sought the trial court’s
guidance about their clients’ live-in paramours. The trial court first observed:
But I just don’t understand what people - - what they think.
Putting children in front of other men and women, and have them
spend the night. No wonder this country is going down the tubes.
* * *
There is [sic] churches all around this courthouse, just
flooding this town and this county. Isn’t the message getting out what
is good and bad, and what’s right and wrong? I don’t know. What do
people have in their ears?
Thereafter, with regard to Ms. Wix, the trial court stated that “[u]ntil she marries somebody, she’s
permanently enjoined from having people live with her; men that are non-related.” With regard to
Mr. Wix, the court stated:
When the children are with Mr. Wix, Ms. McClain needs to hit the
road. If she wants to go see Mr. McClain and apologize for what she
did to him, and try to seize some of that time to reconcile a terrible
situation, that might be a good thing for her to do. I don’t know what
3
This is not the first instance where the trial court has implied that its custody and visitation decisions will be
favorably influenced by a hastily arranged marriage. It has become customary for the trial judge to tell parties that the ir
requests for custody and visitation will stand a better chance of success if they marry the person with whom they are
living before the p roceedin gs are conc luded. See, e.g., Fain v. F ain, No. M1999-02261-COA-R3 -C V , 2 0 00 W L
1879548, at * 3 (Tenn. Ct. App. Dec. 29, 2000) (No T enn. R. App. P. 11 application filed); Murray v. Murray, No.
M1999-02081-COA-R3-CV, 2000 WL 827960, at *2 (Ten n. Ct. App. June 27, 2000) perm. app. denied (Tenn. Dec.
18, 2000); Earls v. Ea rls, No. M1999-00035-COA-R3-CV, 2000 WL 696816, *2 (Tenn. Ct. App. May 31, 2000) perm.
app. filed (Tenn. Aug. 21, 2000).
-3-
she’s going to do. But she’s going to have to - - She’s got to sleep
elsewhere. And the children, hopefully their minds aren’t seared with
impropriety; that they’ll be able to grow up and when they are
tempted with these vices, they will choose the higher road.
And I just think that’s the duty of the [c]ourt. Until the
legislature or the Tennessee Supreme Court says otherwise, morals
still have a place in the law. There wouldn’t be any law if it weren’t
for morals. It came out of the Ten Commandments actually. That’s
where it all started. But things sort of went downhill after that.
Not surprisingly, Mr. Wix and Ms. McClain married before the trial resumed on November
24, 1999.4 The testimony during this hearing focused on issues relating to the division of the marital
estate and Ms. Wix’s request for spousal support. Neither party presented the sort of evidence
generally associated with custody and visitation disputes. Both parties apparently assumed that the
custody and visitation issues were settled in light of the trial court’s comments at the conclusion of
the November 10, 1999 hearing indicating that Ms. Wix would receive custody of the children and
that Mr. Wix would be given defined visitation rights. During her testimony, Ms. Wix agreed that
the children loved Mr. Wix and that he loved them. She also agreed that the current visitation
arrangements had been working and that awarding her custody and giving Mr. Wix visitation would
work.
At the conclusion of the proof, the trial court awarded Ms. Wix sole custody of the minor
children and refused to grant Mr. Wix visitation rights of any sort. The trial court also awarded Ms.
Wix more child support than required by the child support guidelines because Mr. Wix had no
visitation rights. After dividing the marital estate and apportioning the marital debts, the trial court
ordered Mr. Wix to pay Ms. Wix $500 per month in spousal support and to pay her an additional
$5,975 to defray her legal expenses. The trial court’s statements from the bench reflect that each of
these decisions was colored by the court’s moral disapprobation of Mr. Wix’s conduct. On this
appeal, Mr. Wix takes issue with the trial court’s refusal to grant him defined visitation rights, the
calculation of his child support, and the manner in which the trial court divided the marital property.
I.
THE ERRONEOUS APPLICATION OF THE FALSUS IN UNO , FALSUS IN OMNIBUS MAXIM
As a preliminary matter, we take up the trial court’s invocation of the maxim “false in one,
false in all” to discount Mr. Wix’s “testimony . . . as being unreliable and without credibility.”
While appellate courts routinely defer to a trial court’s determinations regarding the credibility of
witnesses appearing before them, Long v. Tri-Con Indus., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999);
Doe A v. Coffee County Bd. of Educ., 925 S.W.2d 534, 537 (Tenn. Ct. App. 1996), we may discount
4
Ms. McCla in took Mr. Wix’s surname following the marriage, b ut for the sake o f clarity, we will continu e to
refer to her as “Ms. McClain.”
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these determinations when the record contains clear and convincing evidence to the contrary. Wells
v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999); Thompson v. Crewell Indus. Supply,
Inc., 936 S.W.2d 955, 957 (Tenn. Ct. App. 1996). We may also discount a trial court’s credibility
determination if it is based on an erroneous application of a recognized legal principle.
Prior to the trial of this case, Mr. Wix gave a deposition during which he undertook to place
a value on many of the items of personal property included in the marital estate. His valuation
testimony during the November 10, 1999 hearing differed from his deposition testimony in several
particulars.5 During cross-examination, he conceded that during the deposition, he “just ran numbers
off the top of my head. I didn’t know what the value of things are.” During Mr. Wix’s cross-
examination, the trial court reminded his lawyer of “the titrant [sic] of evidence that says ‘false in
one, false in all’” and suggested that he begin thinking about how to rehabilitate his client on
redirect. On redirect, Mr. Wix stated that there was no market for most of the items of personal
property and that he and Ms. McClain had tried their best to figure how much each item of property
was worth. He also stated that he was not intentionally trying to misrepresent the value of the
property.
In its final ruling, the trial court cited Mr. Wix’s testimony regarding the bedroom furniture
and the horses6 as the basis for its conclusion that Mr. Wix had not been a credible witness because
he had given different values for the same items of personalty. Invoking the maxim, “false in one,
false in all,” the trial court stated that it would “not accord any credit to Mr. Wix’s testimony
concerning the values of property. And concerning what assets exist or do not exist. Therefore the
court adopts Mrs. Wix’ proposal concerning what the value of the assets are and what the assets are
to be divided as the marital assets.” Even though the trial court’s oral ruling was limited to the
credibility of Mr. Wix’s valuation testimony, its decree recites that it “discounts the testimony of
Anthony Gale Wix as being unreliable and without credibility.”
The maxim “false in one, false in all” should not be used to discard a witness’s testimony
when the witness has simply made a mistake. The maxim becomes applicable only when the witness
has deliberately and willfully given false testimony. Curtis v. VanDusen, 723 S.W.2d 648, 651
(Tenn. Ct. App. 1986); Parsley v. Harlan, 702 S.W.2d 166, 174 (Tenn. Ct. App. 1985); McKinnon
v. Michaud, 37 Tenn. App. 148, 159, 260 S.W.2d 721, 725-26 (1953). In most circumstances, rather
than discounting all of a witness’s testimony because of irreconcilably inconsistent statements, the
courts simply treat the two inconsistent statements as cancelling each other out. In re Estate of Ross,
5
For example, Mr. Wix testified during his deposition that a horse trailer was worth $400, but at trial, he
testified that it was worth only $50 because its floor had rotted out and because it had two flat tires. He also testified
during his deposition that the parties’ bedroom furniture was worth $3,500; while at trial, he testified that he could not
recall that the pa rties had pur chased this furn iture for $2,6 00.
6
While the record sho ws that the partie s owned thr ee horses, the re is no indicatio n in the record that Mr. W ix
ever gave inconsistent testimony regarding the ir value. As best we can determine, the trial court meant to allude to Mr.
Wix’s testimony regarding the ho rse trailer rather than to the horses.
-5-
969 S.W.2d 398, 400 (Tenn. Ct. App. 1997); Taylor v. Nashville Banner Publ’g Co., 573 S.W.2d
476, 482-83 (Tenn. Ct. App. 1978).
Based on the record in this case, the trial court had ample grounds to accredit Ms. Wix’s
valuation testimony over Mr. Wix’s. In light of the inherently subjective nature of testimony
regarding the value of items of personal property for which there is no ready market and Mr. Wix’s
candid admission that he was only giving his best estimate of the value of the property, the trial
court’s decision to discredit all of Mr. Wix’s testimony went too far. Accordingly, for the purposes
of this opinion, we concur with the trial court’s decision to rely on Ms. Wix’s estimated values of
the parties’ marital estate. However, we decline to exclude Mr. Wix’s testimony regarding the other
disputed issues on appeal, particularly the visitation and child support issues.
II.
THE DIVISION OF THE MARITAL ESTATE
Mr. Wix asserts that the trial court erred by refusing to equally divide the proceeds from the
sale of a 396.95-acre tract of land. Rather than examining this portion of the trial court’s decree in
isolation, we must consider it in the context of its net effect on the entire property settlement. King
v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998).
A.
During their eighteen-year marriage, the parties accumulated marital property worth
approximately $363,000. In addition to their marital home, the parties own four other tracts of real
property worth approximately $174,200. The largest and most valuable piece of property was a
396.95-acre tract located in Lewis and Lawrence Counties. While the divorce proceedings were
pending, the parties received an offer to purchase this tract for $150,000. The parties also amassed
significant debt during their marriage. Their marital debt, including their mortgage, a car loan, and
unpaid medical bills and property taxes, amounted to approximately $78,000. The debts relating to
Mr. Wix’s logging business amounted to approximately $123,800.
The trial court awarded Ms. Wix marital property valued at approximately $248,500,
including the marital home, the 396.95-acre tract, a 1993 Jeep, a tractor, and approximately $12,000
in miscellaneous personalty. Mr. Wix received property worth approximately $114,500, including
the three remaining tracts of real property, an interest in a time-share, his guns, his business
equipment, and approximately $5,500 in personalty. The trial court allocated the mortgage on the
marital home and car loan to the wife and ordered her to pay these debts with the proceeds of the sale
of the 396.95-acre tract. The court also ordered Mr. Wix to repay the remainder of the marital debt,
as well as all the business debts.
The net result of the trial court’s division of the marital estate was that Ms. Wix received
property worth approximately $198,328 after the mortgage and car loan were repaid. For his part,
Mr. Wix received property valued at $114,500 and debts amounting to $151,620. Thus, the debts
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Mr. Wix was required to pay exceeded the property he received by approximately $37,120. Stated
another way, Ms. Wix received 68.5% of the marital property and was required to be responsible for
64.5% of the marital debt. Mr. Wix received 31.5% of the marital property and was required to be
responsible for 35.5% of the marital debt and 100% of the business debt.
B.
Trial courts should divide the parties’ property and debts after they have awarded the divorce
and, if required, have decided on the custody and visitation arrangements for the minor children.
Anderton v. Anderton, 988 S.W.2d 675, 679 (Tenn. Ct. App. 1998). Dividing a marital estate
necessarily begins with the classification of the property as either separate or marital property.
Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996); McClellan v. McClellan, 873
S.W.2d 350, 351 (Tenn. Ct. App. 1993). The definitions of “separate property” and “marital
property” in Tenn. Code Ann. § 36-4-121(b) (Supp. 2000) provide the ground rules for the task.
Once the property has been classified, the trial judge’s goal is to divide the marital property in an
essentially equitable manner. Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn. Ct. App. 1998). A
division is not rendered inequitable simply because it is not precisely equal, Cohen v. Cohen, 937
S.W.2d 823, 832 (Tenn. 1996); Bookout v. Bookout, 954 S.W.2d 730, 732 (Tenn. Ct. App. 1997),
or because each party did not receive a share of every piece of marital property. King v. King, 986
S.W.2d at 219; Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994).
Dividing a marital estate is not a mechanical process but rather is guided by considering the
factors in Tenn. Code Ann. § 36-4-121(c). Kinard v. Kinard, 986 S.W.2d at 230. Trial judges have
wide latitude in fashioning an equitable division of marital property, Fisher v. Fisher, 648 S.W.2d
244, 246 (Tenn. 1983); Brown v. Brown, 913 S.W.2d at 168, and appellate courts accord great
weight to a trial judge’s division of marital property. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn.
Ct. App. 1996); Edwards v. Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App. 1973). Thus, we will
ordinarily defer to the trial judge’s decision unless it is inconsistent with the factors in Tenn. Code
Ann. § 36-4-121(c) or is not supported by a preponderance of the evidence. Brown v. Brown, 913
S.W.2d at 168; Mahaffey v. Mahaffey, 775 S.W.2d 618, 622 (Tenn. Ct. App. 1989); Hardin v.
Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983).
In addition to dividing the parties’ marital property, the trial court should also allocate the
parties’ debt as part of the division of the marital estate. Anderton v. Anderton, 988 S.W.2d at 679.
The parties’ debt, like their marital property, should be divided equitably in accordance with the
factors in Tenn. Code. Ann. § 36-4-121(c) and in light of (1) which party incurred the debt, (2) the
purpose of the debt, (3) which party benefitted from incurring the debt, and (4) which party is better
able to repay the debt. Goodman v. Goodman, 8 S.W.3d 289, 298 (Tenn. Ct. App. 1999); Cutsinger
v. Cutsinger, 917 S.W.2d 238, 243 (Tenn. Ct. App. 1995). Marital debts need not be divided in
precisely the same manner as the marital assets, although, where possible, they frequently follow
their related assets. Kinard v. Kinard, 986 S.W.2d at 233; King v. King, 986 S.W.2d at 219;
Mondelli v. Howard, 780 S.W.2d 769, 773 (Tenn. Ct. App. 1989).
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C.
The trial court’s explanation of its rationale for dividing the parties’ marital estate, for the
most part, reflects an appropriate consideration of the factors listed in Tenn. Code Ann. § 36-4-
121(c). The court pointed out that the marriage had been one of long duration and that Ms. Wix had
made significant non-monetary contributions to the marriage in her roles of wife and mother. It also
recognized that Ms. Wix had little education and no marketable skills and that her medical condition
left her essentially unable to work. Clearly, Ms. Wix’s present and future inability to work would
hinder her ability to support herself or to accumulate capital assets in the future. Because Ms. Wix
had no separate property to fall back on, the trial court stated that its goal was to leave her debt-free.
Under the facts of this case, the trial court’s goal was logical and appropriate.
A division of marital property and debts should be undertaken without regard to fault. Tenn.
Code Ann. § 36-4-121(a)(1); Bookout v. Bookout, 954 S.W.2d at 733; Brown v. Brown, 913 S.W.2d
at 168. It appears that the trial court’s division of the marital estate was, at least in part, grounded
on fault considerations. Even though the trial court stated that it was not considering fault, its
statements from the bench reflect that fault was very much on its mind. The trial court found that
Mr. Wix’s “evil” decision to turn his back on his family to pursue Ms. McClain “diverted . . . [his]
attention from a healthy logging business and caused it [the logging business] to suffer.”
Accordingly, invoking Tenn. Code Ann. § 36-4-121(c)(5), the court concluded that “Mr. Wix’ choice
of pursuing Elizabeth McClain in violation of his marriage vows, which he swore before God, or
most likely did if it was a traditional ceremony” amounted to a “dissipation of the marital asset
which was a business.”7
The record does not provide any factual support for the trial court’s conclusion that Mr.
Wix’s relationship with Ms. McClain caused the failure of his business. Mr. Wix testified that his
logging business began to fail in 1997 before he ever met Ms. McClain. He explained without
contradiction that his business reversals were brought about by several rainy seasons, the difficulty
in hiring employees willing to work in rainy and inclement weather, the debt from the purchase of
expensive new logging equipment, and the costs of unforeseen repairs to his equipment. Mr. Wix
testified that he was unable to earn a profit soon after he purchased the new logging equipment in
late 1997 or early 1998. Significantly, Ms. Wix corroborated Mr. Wix’s testimony. She testified
that she was aware that Mr. Wix’s logging business was failing before Mr. Wix met Ms. McClain
in August 1998. She attributed this failure to the purchase of “very expensive equipment.”
Based on the testimony of both Mr. Wix and Ms. Wix regarding the circumstances
surrounding the failure of Mr. Wix’s logging business, we find that the trial court erred by
concluding that Mr. Wix had dissipated a marital asset as a result of his infatuation with Ms.
McClain. However, this error does not undermine the remainder of the trial court’s analysis
7
Later in its findings, the trial court repeated that Mr. Wix’s “choice to pursue his re lationship with Ms. M cClain
. . . resulted in this inclosion [sic] on [sic] his business. And that will go to be his sole responsibility under - - and that’s
accorde d by the facto rs 3640 121.C. [s ic].”
-8-
regarding the division of the marital property and the allocation of the parties’ debts. Based on our
independent review of the evidence, we find no basis for altering the trial court’s conclusions that
Mr. Wix should be responsible for paying 100% of the business debt and 35.5% of the marital debt
and that Ms. Wix should receive the portion of the proceeds of the sale of the parties’ 395.96-acre
tract remaining after repayment of the mortgage on the parties’ marital home and the parties’ car
note. Accordingly, we affirm the manner in which the trial court divided the marital estate.
III.
THE DECISION TO DENY MR . WIX VISITATION WITH HIS CHILDREN
While Mr. Wix does not contest the trial court’s decision to award Ms. Wix sole custody of
the parties’ minor children, he takes issue with the court’s refusal to grant him visitation of any sort.
He asserts that the evidence preponderates against the trial court’s decision and that this decision,
if allowed to stand, will impair and diminish his relationship with his children. We agree.
Regrettably, the trial court’s judgment was affected by its moral disapprobation of Mr. Wix’s
conduct and its desire to use this case to send a message about the sanctity of marriage.
A.
Neither party in this case was reticent about his or her extramarital relationship. Mr. Wix
admitted that his marriage disintegrated after the met and fell in love with Ms. McClain. Throughout
the proceeding, he admitted that he and Ms. McClain had been living together practically since he
moved out of the marital home in September 1998. For her part, Ms. Wix also admitted that she had
been cohabiting with Mr. Sandy since March 1999 in the same house where the minor children were
living.
The trial court appears to have been nonplused by the parties’ sexual mores. At the
conclusion of the November 10, 1999 hearing, the court ordered Mr. Sandy out of Ms. Wix’s house
and directed Ms. McClain to “hit the road” whenever the children were visiting with Mr. Wix.8
When the time came to decide on custody and visitation, the parties’ conduct was still very much
on the trial court’s mind. After characterizing Mr. Wix’s and Ms. McClain’s relationship as “evil,”
the trial court admonished the parties that
we’ve come a long way since the Biblical times, but in the Old
Testament the consequence for adultery was death. You can find that
in the Book of Deuteronomy. The consequence in modern times is
not so great. Now, the consequence is divorce and it appears that has
happened.
8
The court also suggested that Ms. McClain could use this time to apologize to her husb and and a ttempt to
reconcile.
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Later, the trial court added:
But the court doesn’t find any real good thing that’s come out
of this. I guess, if Mr. Wix is happy, that would be a good thing, but
Ms. Wix has not shown happiness to this court, she has suffered
greatly, and those children most certainly have because there’s been
a break in the natural order of things.
The children don’t have their father there. And they must
totally rely on their mother who is not in the best of health, and it puts
a strain on her.
Be that as it may, the court finds it would be totally
abominable for this court to do anything but award sole and exclusive
custody of the minor children to Ms. Wix.9
After awarding Ms. Wix sole custody of the children, the trial court turned to the issue of
visitation or what the court referred to as the “hard part of this case.” Again, the influence of the trial
court’s displeasure with Mr. Wix is clear. The trial court reasoned as follows:
Because of the circumstances of this case, it being that these
children were deprived of their father because he decided to choose
someone else, and did so in such a cruel way, the court finds that just
a willy-nilly adopt-a-standard-visitation-plan for Mr. Wix under these
circumstances would send a message to these children that what he
did was perfectly okay, and there’s proof in the record that this was
not okay.
* * *
And in this case there will be no visitation because the court
finds that to allow reasonable visitation under these circumstances
would send a terrible message to these children. That’s the
consequence of this case, and that’s the court’s judgment.
When Mr. Wix’s lawyer questioned the visitation decision in light of Ms. Wix’s testimony that the
children loved their father and that Mr. Wix loved the children, the trial court expanded on the
reasons for its decision to deny Mr. Wix visitation. The court stated:
9
The trial court proceeded to reject Mr. Wix’s request for joint custody because of the proof that Mr. Wix had
“pretty much cut off” Ms. Wix when he “decided to pursue E lizabeth M cClain.” T he trial court also noted that M r. Wix
had “hard ly worked a t all with Ms. W ix concern ing what is in the be st interest of the child ren.”
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The court’s not making a ruling with respect to legal
visitation. Visitation that’s covered under the visitation statute. The
Tennessee legislature wrote, the court finds that visitation under these
circumstances is morally dangerous to these children, and therefore,
it will not be set by the court. There will be no visitation that this
court will acknowledge or this court will control by court order.
* * *
From the standpoint of him having a visitation right, that’s
contained in an order. He has no visitation rights by law, based upon
the evidence and how I understand the case.
If I’m wrong in that regard, the Court of Appeals can correct
me in that regard. A case as bad as this, there’s got to be a line drawn
with respect to the moral integrity of the marriage relationship.
And these children need to know - - and that’s how the court
is going to make sure that there’s no moral endangerment. That when
they grow up they know that they should not do the same thing that
their father did.
And that’s the only way this court knows that message can get
out. If, like I said, if Mr. Wix calls up Ms. Wix and says, ‘I’d like to
see these children.’ And she says, ‘Come by and let’s have dinner.’
She’s perfectly free to do those kinds of things. That’s a non-
controlled, nonadjudicated situation.
B.
Custody and visitation decisions are among the most sensitive decisions confronting a trial
court in a divorce case. Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996). Rather than
calling for heavy handed, authoritarian intervention, Jones v. Jones, No. 01A01-9607-CV-00346,
1997 WL 80029, at *4 (Tenn. Ct. App. Feb. 26, 1997) (No Tenn. R. App. P. 11 application filed),
they require trial courts to exercise compassionate and practical judgment to devise an arrangement
that will promote the continuation and development of the child’s relationship with both parents.
Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996); Taylor v. Taylor, 849 S.W.2d 319, 331-32
(Tenn. 1993); Wilson v. Wilson, 987 S.W.2d 555, 564 (Tenn. Ct. App. 1998). Trial courts must not
use these decisions to reward or punish parents. Adelsperger v. Adelsperger, 970 S.W.2d 482, 485
(Tenn. Ct. App. 1997); Turner v. Turner, 919 S.W.2d 340, 346 (Tenn. Ct. App. 1995).
The goal of custody and visitation decisions is to promote the child’s best interests by placing
him or her in an environment that will best serve his or her physical or emotional needs. Luke v.
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Luke, 651 S.W.2d 219, 221 (Tenn. 1983). No hard and fast rules exist for determining which
custody and visitation arrangement will serve a child's needs best. Taylor v. Taylor, 849 S.W.2d at
327 (Tenn. 1993); Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. Ct. App. 1983). The inquiry
is factually driven and requires the courts to carefully weigh numerous considerations, including
those identified in Tenn. Code Ann. § 36-6-106 (Supp. 2000). Nichols v. Nichols, 792 S.W.2d 713,
716 (Tenn. 1990); Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988); Holloway v. Bradley, 190
Tenn. 565, 571, 230 S.W.2d 1003, 1006 (1950).
The comparative fitness analysis is not intended to ascertain which parent has been perfect
because perfection is as unattainable both in marriage and in parenting as it is in life's other
activities. Rice v. Rice, 983 S.W.2d 680, 682-83 (Tenn. Ct. App. 1998); Bush v. Bush, 684 S.W.2d
89, 93 (Tenn. Ct. App. 1984). Courts understand that parents have their own unique virtues and
vices. Gaskill v. Gaskill, 936 S.W.2d at 630. Accordingly, we do not expect parents to prove that
they are exemplary or that the other parent is completely unfit. Instead, they carefully consider the
conduct and circumstances of the parents to determine which of the available custodians is
comparatively more fit to have permanent custody of the child. Earls v. Earls, 2000 WL 696816,
at *6; Gaskill v. Gaskill, 936 S.W.2d at 631.
Custody and visitation determinations often hinge on subtle factors, including the parents'
demeanor and credibility during the divorce proceedings themselves. Accordingly, appellate courts
are reluctant to second-guess a trial court's decisions. Trial courts must be able to exercise broad
discretion in these matters, but they still must base their decisions on the proof and upon the
appropriate application of the applicable principles of law. Gaskill v. Gaskill, 936 S.W.2d at 631;
D v. K, 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995). Thus, 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. Nichols v. Nichols, 792 S.W.2d at 716; Doles v. Doles, 848 S.W.2d 656,
661 (Tenn. Ct. App. 1992).
C.
The trial court’s ruling from the bench following the November 24, 1999 hearing and its final
decree leave little room for doubt regarding the basis for its decision to deny Mr. Wix visitation. The
trial court perceived that permitting any sort of court-approved personal interaction between Mr. Wix
and his children would be “morally detrimental” to the children and that allowing the children
personal contact with their father, unless their mother authorizes it, would “send a terrible message
to these children.” Accordingly, the court refused to define any visitation rights for Mr. Wix in order
to vindicate the “moral integrity of the marriage relationship” and to “get the message out” to the
children that “they should not do the same thing that their father did.”
Mothers and fathers each make unique and complementary contributions to their children’s
welfare and emotional development. National Interdisciplinary Colloquium on Child Custody Law,
Legal & Mental Health Perspectives on Child Custody Law: A Deskbook for Judges § 12:1, at 130
(1998) (“Legal & Mental Health Perspectives on Child Custody Law”) . Accordingly, Tennessee’s
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General Assembly and courts have recognized that non-custodial parents have a fundamental right
to visit their children. Tenn. Code Ann. § 36-6-301 (Supp. 2000); Suttles v. Suttles, 748 S.W.2d 427,
429 (Tenn. 1988); Helson v. Cyrus, 989 S.W.2d 704, 707 (Tenn. Ct. App. 1998); Jahn v. Jahn, 932
S.W.2d 939, 941 (Tenn. Ct. App. 1996); Weaver v. Weaver, 37 Tenn. App. 195, 202-03, 261 S.W.2d
145, 148 (1953).
Because of the general belief that children will be harmed substantially if denied interaction
and relationship with both parents, Legal & Mental Health Perspectives on Child Custody Law §
12:2, at 131, Tennessee’s courts have repeatedly recognized that custody and visitation arrangements
should interfere with the parent-child relationship as little as possible. Taylor v. Taylor, 849 S.W.2d
at 331; Pizzillo v. Pizzillo, 884 S.W.2d 749, 755 (Tenn. Ct. App. 1994). However, a parent’s right
to visit with his or her children is not absolute. The courts may restrict, suspend, or terminate
visitation rights upon the presentation of clear and definite evidence that permitting continued
visitation will jeopardize the child physically, emotionally, or morally. Tenn. Code Ann. § 36-6-301;
Suttles v. Suttles, 748 S.W.2d at 429; Helson v. Cyrus, 989 S.W.2d at 707; Weaver v. Weaver, 37
Tenn. App. at 202-03, 261 S.W.2d at 148.
Because of the legal and psychological significance of a parent’s visitation rights, persons
seeking to restrict or eliminate visitation must demonstrate that there is probable cause that the child
will be placed at risk if visitation is permitted. The Tennessee Supreme Court requires that this proof
must be “definite,” Suttles v. Suttles, 748 S.W.2d at 429, and Tenn. Code Ann. § 36-6-301 requires
that the proof demonstrate that visitation is “likely” to endanger the child’s physical or emotional
health. These evidentiary standards have effectively created a presumption against severely
circumscribing or denying visitation to non-custodial parents. Such drastic measures are appropriate
only when arrangements less detrimental to the parent-child relationship are not available or
workable as a practical matter.
With these principles in mind, the courts have terminated or suspended visitation by a non-
custodial parent only in extreme circumstances such as (1) the non-custodial parent’s history of
physically abusing his spouse and child, Suttles v. Suttles, 748 S.W.2d at 429; (2) the non-custodial
parent’s abandonment of the child, Turner v. Turner, 919 S.W.2d at 346; Mimms v. Mimms, 780
S.W.2d 739, 745 (Tenn. Ct. App. 1989); or (3) conduct of the non-custodial parent that is injurious
to the child’s physical health, Smith v. Smith, No. 03A01-9603-CV-00078, 1996 WL 591181, at *4
(Tenn. Ct. App. Oct. 11, 1996) (No Tenn. R. App. P. 11 application filed). In other circumstances,
the courts have stopped short of terminating or suspending visitation when less restrictive
alternatives, such as supervised visitation, have been reasonably available. E.g., Whitaker v.
Whitaker, 957 S.W.2d 834, 838-39 (Tenn. Ct. App. 1997) (disapproving unreasonably burdensome
restrictions on visitation on a parent ordered to undergo counseling); D v. K, 917 S.W.2d at 685
(approving supervised visitation for a parent who permitted a child to play unattended in a parking
lot); Pizzillo v. Pizzillo, 884 S.W.2d at 757 (approving supervised visitation for a non-custodial
parent convicted of sexual abuse); Crabtree v. Crabtree, 716 S.W.2d 923, 927 (Tenn. Ct. App. 1986)
(approving supervised visitation for a non-custodial parent charged with sexual abuse).
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The trial court’s refusal to grant Mr. Wix visitation rights is wholly unsupported by the
evidence and is clearly out of step with other similar visitation decisions routinely made by the courts
of this state. This record contains no evidence that Mr. Wix’s relationship with Ms. McClain (or Ms.
Wix’s relationship with Mr. Sandy for that matter10) has harmed his children physically, emotionally,
or morally. Nor is there any evidence in the record that Mr. Wix’s conduct has placed the children
in jeopardy of such harm or that the children will somehow come to believe that adultery is socially
acceptable if their father is permitted to visit with them. The trial court’s personal notions of moral
rectitude are no substitute for proof of actual or threatened harm to the children.
In fact, neither the parties nor the trial court believe that permitting the children to be in Mr.
Wix’s presence will harm them in any way. The parties agree that Mr. Wix’s visitation was going
well until the trial court cut it short. They both profess their affection for the children, and Ms. Wix
concedes that the children love Mr. Wix and that they have a good relationship with Ms. McClain.
The trial court must not have perceived any inherent danger in permitting Mr. Wix to associate with
the children because it told Ms. Wix that she could permit Mr. Wix to visit the children at any time.
We find that the trial court erred by refusing to give Mr. Wix structured visitation. More than
anything we have seen in this record, the trial court’s actions have seriously and inappropriately
undermined the relationship between the Wix children and their father. Accordingly, we reverse this
portion of the December 20, 1999 decree and remand the case to the trial court for the purpose of
establishing a visitation schedule for Mr. Wix. In the absence of proof that the standard visitation
envisioned by the child support guidelines would not be in the children’s best interests, Mr. Wix’s
visitation should, at least, be comparable to the visitation arrangement described in Tenn. Comp. R.
& Regs. r. 1240-2-4-.04(1)(b) (1997).
IV.
MR . WIX ’S CHILD SUPPORT OBLIGATION
As a final matter, Mr. Wix takes issue with the portion of the trial court’s order requiring him
to pay $900 per month in child support. He asserts that the trial court had no basis for finding that
he was willfully underemployed and adjusting his child support upward because he was not granted
visitation. We agree.
Mr. Wix testified without contradiction that he was able to earn approximately $40,000 per
year when he was operating his own logging business. However, after his business failed in 1998,
he was forced to go to work for another logger. He testified that he was earning approximately $600
per week or $30,000 per year by working as a lumberman for someone else. He also testified that
$600 per week was as much as he would be able to make no matter whom he worked for.
Notwithstanding this uncontradicted testimony, the trial court determined that Mr. Wix was
10
The trial court also made it clear that it did not con done M s. Wix’s rela tionship with M r. Sandy. While the
court viewed this rela tionship as “ina pprop riate,” it conclude d it did not “disentitle” her from receiving spousal support
because Mr. Wix’s “adultery, his vastly, more inimical disrelationship caused the breakup of the relationship.”
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voluntarily underemployed because he had “set about on a course to destroy his business situation
by pursuing an adulterous relationship.” We have already concluded that the trial court’s notion that
there is a causal connection between the failure of Mr. Wix’s business and his involvement with Ms.
McClain has no factual support and is contradicted by the testimony of both Mr. Wix and Ms. Wix.
Accordingly, we now find that the trial court’s conclusion that Mr. Wix willfully became
underemployed because of his relationship with Ms. McClain likewise lacks any evidentiary support.
Despite the lack of support for the trial court’s stated reason for concluding that Mr. Wix was
voluntarily underemployed, we have reviewed the record ourselves using the proper legal standards
to determine whether Mr. Wix is, in fact, voluntarily underemployed. Tenn. Comp. R. & Regs. r.
1240-2-4-.02(3)(d) (1994) permits the courts to calculate an obligor parent’s child support based on
the spouse’s “potential income” if the parent is “willfully and voluntarily unemployed or
underemployed.” Determining whether a person is willfully and voluntarily underemployed is a fact-
driven inquiry requiring careful consideration of all the attendant circumstances. Ralston v. Ralston,
No. 01A01-9804-CV-00222, 1999 WL 562719, * 3 (Tenn. Ct. App. Aug. 3, 1999) (No Tenn. R.
App. P. 11 application filed).
Clearly, obligor parents will not be permitted to avoid their child support obligations by
liquidating their businesses simply to evade paying child support, Brooks v. Brooks, 992 S.W.2d 403,
406 (Tenn. 1999), or to stop working or to take a lower paying job without good reason. Garfinkel
v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996). Accordingly, the courts must scrutinize
the reasons for the obligor parent’s career decision, Creson v. Creson, No. 02A01-9801-CH-00002,
1999 WL 65055, *5 (Tenn. Ct. App. Feb. 12, 1999) (No Tenn. R. App. P. 11 application filed);
McGaffic v. McGaffic, No. 03A01-9707-CV-00286, 1997 WL 772899, *4 (Tenn. Ct. App. Dec. 9,
1997) (No Tenn. R. App. P. 11 application filed); Ford v. Ford, No. 02A01-9507-CH-00153, 1996
WL 560258, *4 (Tenn. Ct. App. Oct. 3, 1996) (No Tenn. R. App. 11 application filed), and the
reasonableness of his or her ultimate career choice. Narus v. Narus, No. 03A01-9804-CV-00126,
1998 WL 959839, * 2 (Tenn. Ct. App. Dec. 31, 1998) (No Tenn. R. App. P. 11 application filed).
We find no evidence in this record that Mr. Wix willfully caused or permitted his logging
business to fail simply to avoid paying child support. His logging business was in decline when he
met Ms. McClain, and he provided detailed, persuasive reasons for his business’s failure over which
he had no control. Accordingly, we have concluded that the record does not support a conclusion
that Mr. Wix is willfully and voluntarily underemployed for the purpose of Tenn. Comp. R. & Regs.
r. 1240-2-4-.02(3)(d) and, therefore, that his child support obligation should have been based on his
uncontradicted testimony that he was earning approximately $30,000 at the time of the 1999 hearing.
The trial court also increased Mr. Wix’s child support by invoking Tenn. Comp. R. & Regs.
r. 1240-2-4-.04(1)(b) which permits increasing child support if the obligor parent is not exercising
visitation for the “average visitation period.” We have already determined that the trial court erred
by failing to grant Mr. Wix standard visitation and have remanded the case to the trial court for the
purpose of granting standard visitation to Mr. Wix. Accordingly, the trial court had no factual basis
for invoking Tenn. Comp. R. & Regs. r. 1240-2-4-.04(1)(b).
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Based on Mr. Wix’s uncontradicted testimony that he was earning $30,000 at the time of
trial, the trial court should have set his child support obligation at $610.88 per month or $142 per
week. On remand, we direct the trial court to enter an order setting Mr. Wix’s child support at that
amount unless Ms. Wix can demonstrate that there is a significant variance between that amount and
the amount that Mr. Wix would be paying based on his current salary. Based on the presumption
that the child support payments Mr. Wix has been making as a result of the December 20, 1999 order
have inured to the benefit of his minor children, Mr. Wix may not seek a refund for any
overpayments he has made.
V.
We affirm the division of the marital estate and the apportionment of the marital debts. We
reverse the denial of Mr. Wix’s request for structured visitation and reverse the portion of the order
setting Mr. Wix’s child support at $900 per month. The case is remanded to the trial court to
forthwith enter an order granting Mr. Wix visitation and setting his child support in accordance with
this opinion and for whatever other proceedings may be required. We tax the costs to Cathy Marie
Wix for which execution, if necessary, may issue.
___________________________________
WILLIAM C. KOCH, JR., JUDGE
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