Opinion
No. M2000-03218-COA-R3-JV.
Filed November 8, 2001.
Direct Appeal from the Juvenile Court for White County; No. 552; Honorable Sam Benningfield, Judge.
J. Steve Daniels, Livingston, Tennessee, for appellant, Kelly Seibers.
Henry D. Fincher, Cookeville, Tennessee, for appellee, Douglas Keith Clouse.
KURTZ, WALTER C., SP. J., delivered the opinion of the court, in which CANTRELL, J. and COTTRELL, J. joined.
OPINION
This is an appeal by the mother, Kelly Seibers ("Ms. Seibers"), challenging the ruling of the juvenile court which granted the parents joint custody of their child, Andrew, with primary physical custody going to the father, Douglas Keith Clouse ("Mr. Clouse"). The issue before us is:
Whether the juvenile court made a correct determination under a comparative fitness analysis that awarding the parents joint custody of the child with primary physical custody going to the father was in the child's best interest.
I. Facts and Procedural History
The parents in this case met in 1996. Their relationship can best be described as tumultuous as they spent time together and apart for an approximate two (2) year period. During this period Ms. Seibers became pregnant by Mr. Clouse and on November 20, 1996, gave birth to a male child, Andrew, who was the subject of this custody dispute. Andrew was Ms. Seibers second child as she already had another child from a previous relationship. The parents lived together during part of the pregnancy, but Ms. Seibers moved out shortly before the child's birth. Following Andrew's birth, Mr. Clouse signed a voluntary acknowledgment of paternity. Ms. Seibers became Andrew's primary caregiver providing food, shelter and clothing. In January, 1997 the couple reunited and began living together again. During this time period Mr. Clouse alleges that Ms. Seibers often screamed at Andrew, physically endangered him, and used illegal drugs in his presence. The parents lived together until April or May of 1998 when Ms. Seibers left the residence taking Andrew. The relationship ended completely in June, 1998.
Following the end of the relationship and Ms. Seibers' departure the couple remained relatively friendly. Ms. Seibers was Andrew's primary caregiver, but Mr. Clouse visited the child regularly and remained involved in his life. While Mr. Clouse provided a home and other items of support while the three lived together, he did not pay Ms. Seibers child support while they lived together or for an extended period after they no longer cohabitated. Ms. Seibers was employed and provided the financial support for Andrew. Mr. Clouse began a relationship with his present wife, Shelly Clouse, and ultimately married her on February 5, 1999. Ms. Seibers then filed a Petition for Paternity and Child Support on March 17, 1999, and Mr. Clouse filed an Answer and Counter-Petition for custody on April 19, 1999.
The juvenile court held a temporary custody hearing on August 30, 1999. While the transcript of that proceeding is not in the appellate record, Mr. Clouse contends that evidence at this hearing indicated Ms. Seibers, after leaving the home she shared with Mr. Clouse, lived with six (6) to ten (10) other people in a single-wide trailer where the residents smoked and possibly used illegal drugs. Mr. Clouse argues that Ms. Seibers often left Andrew unattended or entrusted him to family members at unfit locations with little or no supervision. By Temporary Order dated September 27, 1999, the juvenile court awarded joint custody giving the parents primary physical custody of Andrew on alternate weeks. The Temporary Order also required that Mr. Clouse begin satisfying an arrearage on child support in the amount of Four Thousand Eight Hundred Thirty-seven Dollars ($4,837.00) by paying One Hundred and Fifty Dollars per month ($150.00).
During this period of joint custody, conflict surrounding the care of Andrew continued as Ms. Seibers refused to take the child to a Head Start program in White County that Mr. Clouse desired that he attend. Mr. Clouse also sought an Order of Protection against Ms. Seibers during this period for threats she made against him and his family. Ms. Seibers became pregnant by and began living with another man, Mr. Marshall LaFever. Ms. Seibers, at the time of the final hearing, lived in a single wide, two (2) bedroom trailer with Mr. LaFever and her other child. Mr. Clouse lived in a three (3) bedroom home with his wife and three (3) other children. His home has a large yard where the children play. Ms. Seibers is presently unemployed. Mr. Clouse is employed as a cabinet maker but qualifies for food stamp assistance. After the final hearing on October 11, 2000, where this and other evidence was revealed, the juvenile court entered a Final Order of Custody on November 22, 2000, which stated, "[i]t is in the best interest of the minor child that the parties have joint custody of Andrew, with the father, Douglas Clouse, to have and enjoy primary physical custody of Andrew. Father shall have actual physical custody of Andrew except as provided by . . . this Order." Ms. Seibers has appealed the custody decision.
Head Start is an early childhood development government program that also goes into the homes to assist parents in becoming active and involved in their child's life.
Counsel for appellant stated in his argument and brief that Ms. Seibers and Mr. LaFever have married since the Final Order of Custody was entered. However, we cannot consider that fact as it was not before the juvenile judge.
Mr. and Mrs. Clouse had a child after they married. Mrs. Clouse has two (2) children from a previous marriage. The Clouses have a home in Cumberland County that was damaged by lightning and repairs were scheduled to begin after the final hearing. The family planned to return after the contractor completed the repairs.
The juvenile judge also found that Ms. Seibers was unable to pay child support due to her pregnancy. He ordered that she begin making monthly payments on March 1, 2001, of at least One Hundred Fifty-five Dollars and Eighty-seven Cents ($155.87) in child support to Mr. Clouse. Mr. Clouse was to continue paying Ms. Seibers on the arrearage.
Appellant first attempted to appeal the juvenile court's order to the White County Circuit Court where it was assigned a number of C.C. 687. That appeal was subsequently dismissed by the circuit court judge. The appellate record contains reference to 687 as the trial court number, but the correct number is the juvenile court number of 552. The appeal is, of course, appropriately brought in this Court, not the circuit court. See Tenn. Code Ann. § 37-1-159.
II. Standard of Review
Appellate review of a trial court's custody decision is de novo upon the record accompanied by a presumption of correctness of the findings unless the preponderance of the evidence is otherwise. See Tenn.R.App.P. 13(d). Appellate courts are very reluctant to second guess a trial court's determination regarding custody and visitation. See Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn.Ct.App. 1996). An appellate court will interfere with a trial court's decision only upon a showing of an erroneous exercise of discretion. See Hoalcraft v. Smithson, 19 S.W.3d 822, 827 (Tenn.Ct.App. 1999); Whitaker v. Whitaker, 957 S.W.2d 834, 836-837 (Tenn.Ct.App. 1997).
A court must consider many factors when making a child custody determination so as to make a decision that is in the best interest of the child. See Tenn. Code Ann. § 36-6-106 (Supp. 2000) (listing the factors to be taken into consideration). When both parents seek custody, the child's best interest is served by utilizing a comparative fitness analysis. See Gaskill, 936 S.W.2d at 630; Bah v. Bah, 668 S.W.2d 663, 665-666 (Tenn.Ct.App. 1983). "In undertaking this analysis, the courts must understand that parents, whether married or not, are human beings, each with his or her own virtues and vices." Gaskill 936 S.W.2d at 630. This comparative analysis was specifically addressed in the Bah case:
To arrive at the point of deciding with whom to place a child in preparation for a caring and productive adult life requires consideration of many relevant factors, including but certainly not limited to the age, habits, mental and emotional make-up of the child and those parties competing for custody; the education and experience of those seeking to raise the child; their character and propensities as evidenced by their past conduct; the financial and physical circumstances available in the home of each party seeking custody and the special requirements of the child; the availability and extent of third-party support; the association and influences to which the child is most likely to be exposed in the alternatives afforded, both positive and negative; and where is the great likelihood of an environment for the child of love, warmth, stability, support, consistency, care and concern, and physical and spiritual nurture.
Here, we affirm the juvenile court's decision of awarding joint custody to the parents with primary physical custody going to the father. The decision was in the best interest of the child as the preponderance of the evidence established that Mr. Clouse was more comparatively fit to primarily care for Andrew than Ms. Seibers.
III. Discussion
The juvenile court concluded that Mr. Clouse was more comparatively fit to be the primary custodial parent and we agree. While Ms. Seibers primarily cared for the child for a time after his birth, there is evidence in the record which brings into question her abilities to provide for Andrew compared to those of Mr. Clouse. The juvenile court heard testimony and reviewed evidence that Mr. Clouse exhibited behavior and characteristics indicating he was more concerned with his role as a parent and Andrew's welfare.
As relates to all the factors to be considered and those specifically stated in Tenn. Code. Ann.
§ 36-6-106 (Supp. 2000), the juvenile court made findings indicating differences between the two (2) parents which ultimately led it to grant primary physical custody to Mr. Clouse. First, Ms. Seibers had not shown a greater disposition for caring for the child's needs than Mr. Clouse.See Tenn. Code Ann. § 36-6-106(a)(2) (Supp. 2000). Ms. Seibers had placed Andrew in environments where his overall health could be compromised and some evidence in the record indicates that she allowed his health to suffer by allowing his vaccinations to fall behind. Further, the evidence revealed Ms. Seibers seemed more indifferent to Andrew's educational advancement than did Mr. Clouse. The juvenile court while noting that this factor alone provided no clear cut preference stated at the final hearing:
However, I find too, the father has been the most pro-active. Particularly in education and bettering himself as a parent. Involving himself in the Head Start and taking the parenting classes and being involved in a more pro-active fashion, than has the mother. All of that taken together though. It still tends to leave the Court with no clear-cut preference. . . .
Mr. Clouse placed Andrew in a Head Start program and he and his wife participated in the program as well. He made certain Andrew's shots were updated. Mrs. Clouse had taken an interest in Andrew's education and attempted to help him in areas where he showed deficiency. Ms. Seibers, in contrast and for whatever reason, refused to transport Andrew to Head Start or make what appears to be reasonable sacrifices for his attendance while she had primary physical custody. Overall, Mr. Clouse seemed more disposed to satisfying Andrew's health and educational needs.
Second and most importantly, the evidence before the juvenile court revealed Mr. Clouse's family unit was more stable than Ms. Seibers'.See Tenn. Code Ann. § 36-6-106(a)(4) (Supp. 2000). The juvenile court at the final hearing noted that this was one distinct difference influencing its decision under the comparative fitness analysis.
This is where the Court finds that the father is clearly providing a more stable family unit. He is married. There seems to be no problems in the home. They work very well as a family unit, from all the evidence the Court has heard. He and his wife are actively involved in the rearing of this child. They are active in schools. They have been, as the Court said before, they have been very pro-active. It is a conventional family. Wherein you have a mother and a father that are married, and raising their children. . . . I find that the father is providing a more stable family unit.
Mr. Clouse provided stable and safe surroundings for Andrew. Mrs. Clouse had made the choice to stay home with the children providing a constant and seemingly stable caregiver. The paternal grandparents were actively involved in Andrew's life and assisted in caring for him when necessary. The evidence indicated that Mr. and Mrs. Clouse were happy and remained dedicated to Andrew's welfare and that of their other children.
Finally, the trial court correctly weighed Ms. Seibers' current living arrangement and the environment she provided into its analysis. Ms. Seibers, at the time of the final hearing, lived with Mr. LaFever and was expecting his child. This child is her third by a third different father. The trial court may consider the character and behavior of other persons who reside in the home of a parent seeking custody. See Tenn. Code Ann. § 36-6-106(a)(9) (Supp. 2000). Ms. Seibers, in her brief, primarily contends that the juvenile court improperly placed too great a weight on the fact that she lived with a man out of wedlock and was expecting his baby when compared with the fact that Mr. Clouse did not pay support for the first three (3) years of the child's life. Ms. Seibers contends that the juvenile court could not base its entire decision on the cohabitation as the evidence failed to show that the cohabitation had an adverse impact on the child. The juvenile court addressed this factor at some length in rendering its decision at the final hearing.
Appellant fails to mention that the failure to make specific child support payments was mitigated by the fact that Ms. Seibers and Mr. Clouse lived together for some time after Andrew's birth and, while together, Mr. Clouse paid most of the expenses.
We have proof that in the mother's home, there is a boyfriend or a paramour, or however you care to characterize it who lives there. However; there has been no showing that he is anything other than a fine young man. The fact that they are living together out of wedlock, is not withstanding. . . . There has been no disrepute that has been brought upon his character, or anything that would make the Court think that he would otherwise be a positive influence upon the child. . . . Within that idea, that the Court is required to consider, is the moral fitness or moral environment. . . . The Court is focusing on the present. . . . At the present, the best interest of the child. The testimony is the father is married to his wife living in the home, raising their children, actively involved in the children's life. The testimony on the other side, for the mother, is that she is living with her boyfriend. Pregnant by him outside of wedlock, with plans to marry; but, no concrete plans. No marriage date. They have made no arrangements to get married. . . . After they have dated for a year and lived together now a year. And. Her 6 months pregnant. . . . This Court . . . is [cognizant] to the fact that from the proof that it has heard, this is the mother's third man. The mother's third child, she has been married to none. . . . Then we look . . . at the physical surroundings. The testimony is that the father has provided a home that is large enough. Provides more ample room, and is also in the process of going to a home that had previously been destroyed by a lightning strike or had some damage. The proof was . . . a home that is large enough and capable enough to accommodate all of the children. On the flip side of that, the mother's physical surroundings show that . . . [t]here are only 2 bedrooms. One for them, and the other [for] what will be 3 children. . . . Who at the present provides [for] the child's best interest. In giving that, the Court applying what the legislature gives it to work with, and applying that as it heard the testimony. . . . Because of those factors, this is the Courts decision.
The conduct of one parent with another individual is a factor to consider in determining which custody arrangement is in the child's best interest. See Varley v. Varley, 934 S.W.2d 659, 666-67 (Tenn.Ct.App. 1996); Sutherland v. Sutherland, 831 S.W.2d 283, 286 (Tenn.Ct.App. 1991); Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn.Ct.App. 1991). Such relationships, when they affect the home environment of the child, are relevant to the issue of stability in the child's life. However, this factor is not the sole factor for determination. "The inquiry is factually driven and requires the courts to carefully weigh numerous considerations." Gaskill, 936 S.W.2d at 630. In review of the juvenile court's statements it is obvious that it considered the fact of cohabitation along with a number of others including overall fitness and living environment. In fact the juvenile judge appears to have based his determination largely on the living arrangements. While the lower court judge made note of the overall moral environment and the fact that Ms. Seibers lived with another man out of wedlock, he based his decision on far more than this one factor. We determine that the juvenile court correctly weighed the importance of all factors related to the parties and did not place an improper importance on this one factor. The juvenile court correctly applied the comparative fitness analysis and the preponderance of the evidence favored the granting of primary physical custody to the father.
IV. Conclusion
For the aforementioned reasons, the decision of the juvenile court awarding joint custody to the parents with primary physical custody going to the father is affirmed. Costs of this appeal are taxed to the mother, Kelly Seibers, for which execution may issue if necessary.