Lorri Lisa Barrett Capps v. David Wayne Capps

FILED
July 29, 1998
LORRI LISA CAPPS, )
Cecil W. Crowson
) Appellate Court Clerk
Plaintiff/Appellant, ) Appeal No.
) 01-A-01-9710-CV-00606
v. )
) Wilson Circuit
DAVID WAYNE CAPPS, ) No. 1566
)
Defendant/Appellee. )
)
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CIRCUIT COURT FOR WILSON COUNTY
AT LEBANON, TENNESSEE
THE HONORABLE BOBBY CAPERS, JUDGE
ANTHONY E. HAGAN
107 ½ S. Cumberland
Lebanon, Tennessee 37087
ATTORNEY FOR PLAINTIFF/APPELLANT
CONNIE REGULI
353 Wimpole Drive
Nashville, Tennessee 37211
ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
The only issue on appeal in this divorce case is whether or not the trial court erred
in awarding custody of the seven year old daughter of the parties to the husband rather than to
the wife.
David Wayne Capps and Lorri Lisa Barrett Capps married in Wilson County,
Tennessee, February 14, 1982. David Capps is now age forty and Lorri Capps is age 38. The
only child of the marriage, Heather Grace Capps, was born April 27, 1990 and these parties
separated on February 21, 1997.
There is little factual dispute in the case. David Capps worked full-time as a
machinist for Wright Industries and Lorri Capps worked part-time and was the primary care
giver for the parties' minor child. Thus, David was the primary bread winner for the family,
and Lorri was the primary homemaker for the family.
In February, 1997, Lorri met and became greatly enamored with one Johnny Bailey,
who had moved to Wilson County three months earlier from California. Bailey had custody
of his own two children by a previous marriage and voluntarily paid support for a third child
in California born out of wedlock. Bailey had a history of marijuana possession in California.
Upon filing her complaint for divorce on February 27, 1997, Lorri essentially moved
into the house with Bailey, his children and his disabled father and unemployed brother. From
the time of the divorce complaint Heather remained either with her father or in the home of her
maternal grandmother, Sharon Richards.
Lorri Capps makes it quite clear in her testimony that she sees nothing wrong with
her live-in relationship with Johnny Bailey and his minor children and intends to continue
same. Her principal complaint on appeal is that she is being punished for having an affair and
is for that reason alone being denied custody of Heather. The record in this case does not
support such an assertion.
Appellant insists that all of the evidence in the record shows her to be a caring and
loving mother. Apparently she believes the burden to rest upon Mr. Capps to prove that she
is an "unfit parent". This court has said in a similar context:
[13] A parent seeking custody is no longer required to prove that the
other parent is unfit in order to be awarded custody. Griffin v. Stone,
834 S.W.2d 300, 305 (Tenn.Ct.App.1992); Harris v. Harris, 832
S.W.2d 352, 353 (Tenn.Ct.App.1992); Bah v. Bah, 668 S.W.2d at 667.
Thus, the trial court's decision to focus almost exclusively on Ms.
Gaskill's fitness was erroneous. In custody and visitation cases such as
this one, the evidence should have been reviewed to determine both
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parties' fitness as a comparative matter. Thus, although the evidence
may not have shown that Ms. Gaskill was an unfit mother, it may, and
in this case does, indicate she is comparatively less fit than Mr. Gaskill
to have custody of the parties' daughter. Because the trial court
misapplied the comparative fitness analysis, we must now proceed with
our own examination of the evidence giving due consideration to the
trial court's findings of fact.
Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996).
It is clear from this record that the trial judge properly made a "comparative fitness"
analysis of the entire case and correctly applied the law to the facts.
This court has said:
So that there will be no misunderstanding in the future, we hold that
it is not necessary to find that a mother is unfit in order to award
custody of a minor child to the father, or for that matter another third
party when it is in the child's best interests. All the relevant
circumstances of the case, including those specifically enumerated
herein, should be considered, and principal responsibility for rearing a
minor should be placed with the person most fit to do so.
[4] We believe that is precisely what the trial judge did here and why
custody was awarded to the father. The trial court made no finding that
the mother was unfit and, based on this transcript, we think such a
conclusion would have been unjustified. However, we think the trial
judge was satisfied that for now the child's best interests would be
served in the custody of the father, with liberal visitation to the mother.
Without question the trial judge was concerned, as are we, with the
environment in which young Mr. Bah would be placed and the
deleterious influences to which he might be exposed in the home of the
mother of Mrs. Bah. No doubt the trial court believed strongly that
there was a difference in the maturity and emotional stability of the
mother and the father. Of course, that court is in a far superior position
to assess these qualities than this court because of the ability to view the
witnesses and assess their demeanor, mannerisms and other visual and
audio characteristics not apparent in the transcript. However, insofar as
these qualities can be assessed based upon past conduct, the record
indicates the father to be the most stable and emotionally mature parent
at this time.
Bah v. Bah, 668 S.W.2d 663, 667 (Tenn. Ct. App. 1983).
The record in this case does not show Mrs. Capps to be an unfit parent but the law
does not require such a showing. Both parents may be found to be fit custodial parents but the
very purpose of the "comparative fitness" analysis is not to choose between the lesser of two
evils, but rather to determine which parent can serve the best interest of the child. The trial
court has made its decision and our review of that decision is limited by long settled rules.
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[2] Our de novo review of the trial court's custody and visitation
decrees is tempered by the well-established principle that a trial court
has wide discretion in matters of custody and visitation. Suttles v.
Suttles, 748 S.W.2d 427, 429 (Tenn.1988); Marmino v. Marmino, 34
Tenn.App. 352, 238 S.W.2d 105, 107 (1950); Grant v. Grant, 39
Tenn.App. 539, 286 S.W.2d 349, 350 (1954). The various general
principles regarding a trial court's prerogatives in these matters and our
review of same is well stated in Suttles:
Although we recognize that the general rule is that "the
details of custody and visitation with children are peculiarly
within the broad discretion of the trial judge," Edwards v.
Edwards, 501 S.W.2d 283, 291 (Tenn.App.1973), and that
the trial court's decision will not ordinarily be reversed
absent some abuse of that discretion, "in reviewing child
custody and visitation cases, we must remember that the
welfare of the child has always been the paramount
consideration" for the courts. Luke v. Luke, 651 S.W.2d
219, 221 (Tenn.1983). In addition, the right of the
noncustodial parent to reasonable visitation is clearly
favored. E.g., Weaver v. Weaver, 37 Tenn.App. 195,
202-203, 261 S.W.2d 145, 148 (1953).
748 S.W.2d at 429.
Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. App. 1996).
The evidence in this case supports the decision of the trial court and certainly does
not preponderate against the trial court action in awarding custody of Heather to her father.
The judgment of the trial court is in all respects affirmed, and the case is remanded
for such further proceedings as may be necessary.
Costs of this cause are taxed against the appellant.
_____________________________
WILLIAM B. CAIN, JUDGE
CONCUR:
__________________________________
HENRY F. TODD, PRESIDING JUDGE
__________________________________
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WILLIAM C. KOCH, JR., JUDGE
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