Garner v. Garner

OPINION

CANTRELL, Judge.

This appeal concerns the custody of a twenty-month-old child. The order of the chancellor provides that each parent will have primary custody of the child for alternate six-month periods. On appeal, both parents object to that arrangement. The mother contends that the proof shows that the best interests of the child would be served by placing him in her custody. The father makes the same argument except that he contends that the chancellor should have placed the child with him. We affirm the judgment of the lower court.

The parties were married in November of 1982 and had one child, Tyler Jordan Garner. Mrs. Gamer sued Mr. Gamer for divorce on March 9, 1987 on the statutory ground of cruel and inhuman treatment. Mr. Gamer filed an answer and a counterclaim on August 6, 1987 in which he denied the material allegations of the complaint and sought a divorce on the ground of cruel and inhuman treatment. Each parent sought primary custody of the child.

After a hearing, the chancellor awarded Mrs. Gamer a divorce but gave custody of the child to the parties jointly and ordered that each parent have physical custody for alternating six-month periods. Mrs. Garner filed a motion to alter or amend the judgment and a motion for a stay pending appeal. At the hearing on the motions, the chancellor heard proof from a counseling psychologist and the owner of the day school that the child attended.

Joint Custody

This court has, in the past, expressed doubt that a custody order splitting or alternating custody serves the best interests of the child. See Dodd v. Dodd, 737 S.W.2d 286 (Tenn.Ct.App.1987); Dunavant v. Dunavant, 31 Tenn.App. 634, 219 S.W.2d 910 (1949); Logan v. Logan, 26 Tenn. App. 667, 176 S.W.2d 601 (1943); Phillips v. Phillips (Tenn.Ct.App.), 1987 WL 11129, filed in Nashville, May 22,1987; Bloom v. Bloom (Tenn.Ct.App.), 1986 WL 3159, filed in Nashville, March 12, 1986. Such orders, however, are permitted by Tenn.Code Ann. § 36-6-101 (Supp.1988), and, in some cases, have been approved by this court. See Baggett v. Baggett, 512 S.W.2d 292 (Tenn.Ct.App.1973).

An order of the trial court making a custody determination is a finding of fact that the best interests of the child are served by the order of the court. See Bush v. Bush, 684 S.W.2d 89 (Tenn.Ct.App.1984). That finding comes to this court with a presumption of correctness that will not be disturbed unless it is against the preponderance of the evidence. Tenn.R.App.P. 13(d); Dodd v. Dodd, 737 S.W.2d at 286; Bah v. Bah, 668 S.W.2d 663 (Tenn.Ct.App.1983). Thus, the question in this case is whether the evidence preponderates against the order of the trial judge.

We cannot say that the preponderance of the evidence is against the trial judge’s order. In fact, as in most divorce cases, the record contains very little evidence focusing on the welfare of the child. Neither party proved the other unfit for the role of custodial parent. There is evidence from which a conclusion could be drawn that Mrs. Garner bruised the child in administering a spanking just prior to the divorce hearing. That incident, however, was apparently an isolated one; and, by the time of the final decree (in April of 1988), the child had finished the first six months with Mrs. Garner without any apparent major difficulty.

As a reason for giving him primary custody, Mr. Garner cites the fact that on August 18,1987, just twelve days after the original divorce hearing, Mrs. Gamer married one of the men with whom she had denied having a relationship. This evidence was offered as a post-judgment fact, and we have considered it along with the other evidence in the record. While the evidence of Mrs. Gamer’s remarriage may reflect on her credibility, it does not show that she is an unfit parent, or that she should be denied primary custody of the child.

Mrs. Gamer complains that, when the child is with Mr. Gamer, Mr. Garner’s parents will be primarily responsible for the child’s care. Since Mr. Gamer works long hours, sometimes holding two jobs, this fact is undoubtedly true. Mrs. Garner, however, also works and must rely on others to care for the child during the working day. It is also true that Mr. Garner’s parents kept the child for the first six months of his life as a favor to the parties while they were still married.

The only evidence offered by the counseling psychologist was that it would be detrimental to the child to be deprived of some contact with either parent for an extended period of time. Based on this testimony, the chancellor modified the original order to allow the party not having custody to telephone the child at regular intervals.

The parties, and the court, must keep in mind that no child custody order is ever final and unchangeable. It will stay in effect only until changed circumstances and the best interests of the child demand a change in custody. When Tyler is old enough to attend school, a different arrangement may be more appropriate. For now, however, the trial court’s order will not be disturbed.

The Waiver Issue

At the hearing on the motion for a stay, the trial judge held that, by complying with the order and delivering the child to Mr. Gamer, Mrs. Gamer had waived any objection to the original order. While we are not sure that Mrs. Gamer’s actions amounted to a waiver, we think our disposition of the appeal on the merits renders this issue moot.

The judgment of the court below is affirmed and the cause is remanded to the Chancery Court of Franklin County for any further proceedings necessary. Tax the costs on appeal to the parties equally.

LEWIS, J., concurs. KOCH, J., dissents with an opinion.