Ferris E. Watson v. Lynn Rose Watson ( 2000 )


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  •                IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    FERRIS E. WATSON,                        )
    )
    Plaintiff/Appellant,            )        Appeal No.
    )        M1999-02527-COA-R3-CV
    vs.                                      )
    )        Stewart Chancery
    LYNN ROSE WATSON                         )        No. 97-8-110
    )
    Defendant/Appellee.             )
    )               FILED
    February 1, 2000
    APPEAL FROM THE CHANCERY COURT
    FOR STEWART COUNTY Cecil Crowson, Jr.
    Appellate Court Clerk
    THE HONORABLE LEONARD MARTIN PRESIDING
    MARKLEY RUNYON GILL
    P.O. BOX 445
    ERIN, TENNESSEE
    ATTORNEY FOR PLAINTIFF/APPELLANT
    TROY L. BROOKS
    2050 FORT CAMPBELL BOULEVARD
    CLARKSVILLE, TENNESSEE 37042
    ATTORNEY FOR DEFENDANT/APPELLEE
    AFFIRMED AND REMANDED
    PATRICIA J. COTTRELL, JUDGE
    CONCUR:
    CANTRELL, P. J.
    KOCH, J.
    MEMORANDUM OPINION                               1
    This case involves a dispute over custody of two children upon their
    parents’ divorce. The trial court awarded custody to Lynn Rose Watson
    1
    See Tenn.Ct.App.R.10(b).
    (“Mother”) with visitation to Ferris E. Watson (“Father”). Father appeals,
    claiming he is comparatively the better parent. We affirm the award of
    custody to Mother.
    I.
    Our courts make no more important decisions than those involving the
    custody of children. When called upon to order a custody arrangement, a
    court must consider many factors and make a custody determination based on
    the best interest of the children. See 
    Tenn. Code Ann. § 36-6-106
     (Supp.
    1999) (listing the factors for the court to consider).
    In child custody cases, the welfare and best interest of the children are
    the paramount concern, and the determination of the children’s best interest
    must turn on the particular facts of each case. Akins v. Akins, 
    805 S.W.2d 377
    , 378 (Tenn. Ct. App. 1990) (citing Holloway v. Bradley, 
    190 Tenn. 565
    ,
    570-72, 
    230 S.W.2d 1003
    , 1006 (1950)). In Holloway, the Court stated:
    The determining facts in these adoption and custody cases are so infinite in
    their variety that the reported decision in one case is of little aid or assistance
    in settling the next. The supreme rule to which all others should yield is the
    welfare and best interest of the child.
    Holloway, 
    230 S.W.2d at 1006
    .
    Where, as here, both parents seek custody, this court has held that the
    child’s best interest is to be determined by using an analysis of the
    comparative fitness of each parent. See Bah v. Bah, 
    668 S.W.2d 663
     (Tenn.
    Ct. App. 1983).
    We adopt what we believe is a common sense approach to
    custody, one which we will call the doctrine of “comparative
    fitness.” The paramount concern in child custody cases is the
    welfare and best interest of the child. Mollish v. Mollish, 
    494 S.W.2d 145
    , 151 (Tenn. App. 1972). There are literally
    thousands of things that must be taken into consideration in the
    lives of young children, Smith v. Smith, 
    188 Tenn. 430
    , 437, 
    220 S.W.2d 627
    , 630 (1949), and these factors must be reviewed on a
    comparative approach:
    Fitness for custodial responsibilities is largely a
    comparative matter. No human being is deemed
    perfect, hence no human can be deemed a perfectly fit
    custodian. Necessarily, therefore, the courts must
    determine which of two or more available custodians is
    2
    more or less fit than others. Edwards v. Edwards, 
    501 S.W.2d 283
    , 290-291 (Tenn. Ct. App. 1973) (emphasis
    supplied).
    Bah, 
    668 S.W.2d at 666
    .
    Because the determination of where a child’s best interest lies is the
    result of the consideration of a number of factors in the context of a specific
    factual situation, see Adelsperger v. Adelsperger, 
    970 S.W.2d 482
    , 485 (Tenn.
    Ct. App. 1997), it is particularly fact-driven. See Rogero v. Pitt, 
    759 S.W.2d 109
    , 112 (Tenn. 1988). Such decisions often hinge on the trial court’s
    assessment of the demeanor and credibility of the parents and other witnesses.
    See Adelsperger, 
    970 S.W.2d at 485
    ; Gilliam v. Gilliam, 
    776 S.W.2d 81
    , 84
    (Tenn. Ct. App. 1988). Consequently, appellate courts are reluctant to
    second-guess a trial court’s determination regarding custody and visitation.
    See Rutherford v. Rutherford, 
    971 S.W.2d 955
    , 956 (Tenn. Ct. App. 1997)
    (quoting Gaskill v. Gaskill, 
    936 S.W.2d 626
     (Tenn. Ct. App. 1996)).
    Accordingly, this court will decline to disturb the custody decision of
    the trial court herein unless that decision is based on a material error of law or
    the evidence preponderates against it.2 Adelsperger, 
    970 S.W.2d at 485
    .
    II.
    In the case before us, both parents argued and presented evidence
    attempting to show that the other was the comparatively less fit custodian. To
    detail the specific deficiencies and incidents alleged benefits no one, least of
    all the children. Father’s complaints against Mother can be summarized
    primarily as her failure, in specific instances, to provide the care he thought
    2
    The same conclusion regarding the standard of review to be applied to a trial court’s ruling
    on custody and visitation is required by Tenn. R. App. P. 13(d) on the basis that a trial court’s
    decision awarding custody is a finding of fact that the best interests of the children are furthered
    by the arrangement ordered. See Garner v. Garner, 
    773 S.W.2d 245
    , 246 (Tenn. Ct. App.
    1989); McKeehan v. McKeehan, No. 02A01-9407-CV-165, 
    1995 WL 695124
     at *2 (Tenn. Ct.
    App. Nov. 21, 1995, as amended Jan. 11, 1996) (no Tenn. R. App. P. 11 application filed). Our
    review of such a finding is de novo with a presumption of correctness, and, absent an error of
    law, we will affirm the trial court’s finding unless it is against the preponderance of the
    evidence. See Tenn. R. App. P. 13(d); Hass v. Knighton, 
    676 S.W.2d 554
    , 555 (Tenn. 1984).
    3
    was required. On the other hand, the record reflects incidents of violence by
    Father against both Mother and the children as well as sexual misconduct
    involving his stepdaughter. A therapist testified as to the effects of Father’s
    violence on the older of the two children and her fear of Father. Similarly, a
    caseworker testified that Father should not be given custody unless he
    underwent intensive counseling.
    In deciding between these two parties, the court heard testimony from
    each of them and from family members, as well as the therapist and
    caseworker. The evidence showed that each parent was less than perfect.
    Quite simply, however, these children are afraid of Father. Their fear is based
    on incidents of violent behavior they have witnessed and experienced. The
    trial court had to choose between the two parents, and the evidence amply
    supports the award of custody to Mother.
    IV.
    For the reasons stated above, we affirm the order of the trial court.
    This case is remanded for such further proceedings as may be necessary.
    Costs are taxed to appellant.
    _______________________________
    PATRICIA J. COTTRELL, JUDGE
    CONCUR:
    ____________________________
    BEN H. CANTRELL,
    PRESIDING JUDGE, M.S.
    ____________________________
    WILLIAM C. KOCH, JR., JUDGE
    4