William Barry Martin v. Marny Anne Martin ( 1995 )

WILLIAM BARRY MARTIN, )
)
Plaintiff/Appellee, )
) Davidson Fourth Circuit
) No. 93D-3800
VS. )
) Appeal No.
) 01-A-01-9505-CV-00222
MARNY ANNE MARTIN, )
)
Defendant/Appellant. ) FILED
Oct. 25, 1995
IN THE COURT OF APPEALS OF TENNESSEE
Cecil Crowson, Jr.
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEAL FROM THE FOURTH CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE MURIEL ROBINSON, JUDGE
LESLIE BARRETT KINKEAD
207 Third Avenue, North
Third Floor
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFF/APPELLEE
KATHRYN G. BRINTON
43 Music Square West
Nashville, Tennessee 37203
ATTORNEY FOR DEFENDANT/APPELLANT
AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
WILLIAM BARRY MARTIN, )
)
Plaintiff/Appellee, )
) Davidson Fourth Circuit
) No. 93D-3800
VS. )
) Appeal No.
) 01-A-01-9505-CV-00222
MARNY ANNE MARTIN, )
)
Defendant/Appellant. )
OPINION
In this divorce case, the defendant/wife has appealed from that portion of the divorce
decree which granted to the plaintiff/husband sole custody of the daughter of the parties, aged
4 1/2 years at the time of judgment, 5 years at the present time.
The judgment contained an extensive schedule of visitation which is not challenged
on appeal.
The sole issue on appeal is whether the evidence preponderates against the finding of
the Trial Court that:
It is in the best interest of the minor child, Aimee Martin, that
sole custody and care shall be awarded to Mr. Martin.
The findings of the Trial Court also include the following:
It is further ordered, and the Court affirmatively finds, that
both parties are fit persons for the Court to consider as
custodians of the minor child, Aimee Martin. Both have
helped substantially in raising the minor child and both parties
have adequate parenting skills.
This suit was filed on October 18, 1993. From October 17, 1993 until December 22,
1993, the father had physical possession of the child. On December 22, 1993, the Trial Court
ordered alternating custody with each party having the child for thirty days at a time. This
arrangement continued until December 19, 1994, when exclusive custody was committed to
the father with extensive visitation by the mother.
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It appears that the distinction between the desirability of the parents as custodians
rests in their respective lifestyles.
From March, 1994, until the hearing on December 7, 1994, the mother was involved
in a relationship with an individual who had been convicted of selling cocaine to undercover
police officers on three occasions. The mother testified that she visited and spent the night in
the home of said individual two or three times a week, that the child had spent the night at the
home of said individual five or ten times, that she did not intend to continue to spend the
night with said individual because she had been told that it was not in the best interests of the
child, but that she intended to continue her relationship with the individual.
The mother also testified that she was employed, that she resided with her mother, but
planned to move out to a separate apartment near her mother's home so that her mother could
help her with the child.
The mother of the defendant testified she would be glad to help and that she works a
twelve hour night shift.
The father has been married previously and has two other children with whom he has
visitation. Subsequent to the separation, he had a brief sexual relationship with another
woman with whom he visited once in a park in the company of his two older children. Since
the separation, the father has resided with his step-mother who is not employed and who
cares for his daughter in his absence.
Custody decisions are reviewed by this Court de novo upon the record with a
presumption of the correctness of findings of fact unless the evidence preponderates
otherwise. T.R.A.P. Rule 13(d), Dalton v. Dalton, Tenn. App. 1993, 858 S.W.2d 324.
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The welfare and best interests of the child are paramount in the determination of child
custody which must turn upon the particular facts of each case. Holloway v. Bradley, 190
Tenn. 565, 230 S.W.2d 1003 (1950).
Custodial fitness is a comparative matter. Malone v. Malone, Tenn. App. 1992, 842
S.W.2d 621; Edwards v. Edwards, Tenn. App. 1973, 501 S.W.2d 283.
Sexual infidelity or indiscretion does not ipso facto disqualify a parent for custody.
Sutherland v. Sutherland, Tenn. App. 1991, 831 S.W.2d 283.
When any activity affects the quality of care and nurturing received by a child, that
activity is proper for consideration on the issue of custody. Mimms v. Mimms, Tenn. App.
1989, 780 S.W.2d 739.
The evidence does not preponderate against the finding of the Trial Court that the best
interests of the child require that she be in the custody of her father.
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the
appellant. The cause is remanded to the Trial Court for any necessary further proceedings.
Affirmed and Remanded.
_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________________
BEN H. CANTRELL, JUDGE
_____________________________________
WILLIAM C. KOCH, JR., JUDGE
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