Opinion
No. M2005-01757-COA-R3-CV.
June 28, 2006 Session.
Filed on September 27, 2006.
Direct Appeal from the Chancery Court for Rutherford County; No. 04-9276DR; Hon. Royce Taylor, Chancellor.
Judgment of the Chancery Court Affirmed.
Daryl M. South, Murfreesboro, Tennessee, for Appellant.
R. Price Nimmo, Nashville, Tennessee, for Appellee.
Herschel Pickens Franks, P.J., delivered the opinion of the court, in which D. Michael Swiney, J., joined, and Charles D. Susano, Jr., J., filed a Dissenting Opinion.
OPINION
In this divorce case, the Trial Court awarded primary custody of the parties' minor children to the father. The mother appealed and we affirm the Trial Court's Judgment.
In this divorce action, the sole issue on appeal concerns the propriety of the Trial Court's awarding primary custody of the parties' minor children to the father.
This divorce action was instituted by the father on September 7, 2004, and the parties entered into an Agreed Order on October 18, 2004, whereby the parties agreed that, pending trial, they would share the marital residence and share parenting responsibilities, but would sleep in separate bedrooms. In the Order, the wife acknowledged having an extramarital relationship, and agreed to refrain from having the children around that person. They attended mediation and settled some issues, and the issues left for trial were: who would obtain the divorce; the custody and co-parenting of the children; child support; division of certain property; alimony; attorneys fees; and payment of court costs.
In the wife's Answer and Counter-Complaint, she admitted that she had committed adultery, but asserted that the husband was guilty of improper conduct, and that she had been the primary caregiver for the children throughout their lives, and sought custody, as well as child support and alimony.
A trial was conducted on May 16, 2005, and numerous witnesses testified, including the parties' eldest daughter, Amanda Fongnaly, age 17, who testified outside the presence of the parties.
Following the evidentiary hearing, the Trial Judge said that he had looked at the various factors, and that the overriding factors were the wife's affair, which "goes to the character of the wife and the situation that's put the children in", but that was "balanced somewhat" by the preference expressed by Amanda. The Court found that both parties were fit and proper parents, and both loved the children and had a good relationship with them. The Court said that the wife's relationship with the children was warmer and that she was more of a caregiver, and that the father was more of a traditional father. The Court stated that there would be a joint arrangement "to some extent", and named the father as the primary parent, "simply because I think that that's in the best interest of the children when I have looked at all the factors that fall into place." The Court gave the mother co-parenting time every other weekend, every Thursday night, and equal time during holidays. The Court granted the husband the divorce, divided the parties' property and held that the wife should pay child support of $525.00 per month, but that she was also entitled to an award of alimony, which offset the child support award for 24-months.
Amanda testified that she did not want to express a preference, but added if she had to choose, she would say her mother.
On appeal, the wife asserts that the Trial Court erred in awarding primary residential care of the children to the husband, as he was not shown to be the more fit parent, but as this Court has previously explained:
According to Tennessee law, the court is required to determine which parent is a comparatively more fit custodian. The court's primary concern is the welfare of the minor child, and the determination of custody turns on the particular facts of each case. The Tennessee Constitution grants the legislature the authority to enact divorce statutes. With regard to child custody determinations, T.C.A. § 36-6-106 lists factors that a trial court is to consider in making a "comparative fitness" analysis as follows:
(1) The love, affection and emotional ties existing between the parents and child;
(2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(3) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; . . .
(4) The stability of the family unit of the parents;
(5) The mental and physical health of the parents;
(6) The home, school and community record of the child;
(7) The reasonable preference of the child if twelve (12) years of age or older. . . .
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; . . . .
(9) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child; and
(10) Each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.
T.C.A. § 36-6-106 (Supp. 2000).
Lee v. Lee, 66 S.W.3d 837 (Tenn.Ct.App. 2001).
We review a trial court's determination regarding child custody under an abuse of discretion standard. Herrera v. Herrera, 944 S.W.2d 379, 385 (Tenn.Ct.App. 1996). As explained in that case:
This Court is of the opinion that the findings of the trial court should be given great weight as they relate to issues surrounding child custody. "Absent some compelling reason otherwise, considerable weight must be given to the judgment of the Trial Court [in a divorce proceeding] in respect to credibility and suitability" of the parties as custodians. The trial courts are vested with a wide discretion in matters of child custody, and the reviewing courts will not interfere except upon a showing of erroneous exercise of that discretion. The trial court enjoys a substantial advantage in having the opportunity to see, hear and evaluate the parents suitability as custodians.
* * *
The true test for the award of custody is to arrive at the point of deciding with whom to place the child in preparation for a caring and productive adult life. It is noted by this Court in Koch v. Koch, 874 S.W.2d 571, 575 (Tenn.Ct.App. 1993), that the welfare and best interest of the children are of paramount concern in custody cases. Fitness for custodial responsibilities is a comparative matter that the trial court is required to make. Nowhere is the presumption of correctness of the trial court's conclusions more applicable than in matters of child custody where the surrounding testimony is complex and involved and frequently filled with disputes and acrimony. As noted by the Tennessee Supreme Court in Cecil v. State ex. rel. Cecil, 192 Tenn. 74, 237 S.W.2d 558, 559 (1951):
In cases involving child custody, the decision of the Trial Judge who saw and heard the witnesses, is to be given great, if not controlling effect, and we will interfere only where we find a palpable abuse of discretion, or a judgment against the great weight of the evidence.
Cecil, 237 S.W.2d at 559.
Id. at 385-386 (citations omitted).
The wife argues that the Trial Court's decision was erroneously based on her admitted adultery. It is well-settled that in custody cases, the court will not use the custody of the child as a reward or punishment to the parent. Long v. Long, 488 S.W.2d 729 (Tenn.Ct.App. 1972). As we have explained, "[s]exual infidelity or indiscretion does not ipso facto disqualify a parent from being awarded custody. However, when the parent's sexual activities or indiscretion involve neglect of the minor child, such neglect may be considered in relation to the best interest of the minor child." Sutherland v. Sutherland, 831 S.W.2d 283 (Tenn.Ct.App. 1991). The mother correctly notes that neglect was not shown in this case.
The factors to be considered by the court are those listed in Tenn. Code Ann. § 36-6-106, previously quoted. The husband points out the Court should also consider the statutory scheme regarding parenting plans listed in Tenn. Code Ann. § 36-6-404(b), which provides these factors to be considered:
(1) The parent's ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;
(2) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child; . . .
(8) The emotional needs and developmental level of the child;
(9) The character and physical and emotional fitness of each parent as it relates to each parent's ability to parent or the welfare of the child;
(10) The child's interaction and interrelationships with siblings and with significant adults, as well as the child's involvement with the child's physical surroundings, school, or other significant activities; . . .
(15) Each parent's employment schedule, and the court may make accommodations consistent with those schedules; and
(16) Any other factors deemed relevant by the court.
Factors 3, 5, 6, 7, 11, 12, 13, and 14 are repetitive of the factors contained in Tenn. Code Ann. § 36-6-106.
The Trial Judge stated that he had considered all of the relevant factors, and did find that both parents were fit and proper, and both loved the children and had a good relationship with them. He also found the wife's relationship with the children was "warmer". While the Trial Court obviously considered the affair as it reflected on the wife's character, he did not base the entire decision on this factor, as the wife claimed. The wife's affair was just one of the factors which the Court considered, as is proper.
The evidence does not preponderate against the Trial Court's findings, when all of the factors are reviewed. Regarding the additional factors listed in Tenn. Code Ann. § 36-6-404(b), the only one which is relevant here is the factor dealing with the parties' character as it relates to each parent's ability to parent or the welfare of the child, and as the Trial Court found, wife's affair reflected on this due to the situation in which it placed the children.
As we have previously explained:
Creating a parenting plan is one of the most important decisions confronting a trial court in a divorce case. Courts must strive to devise parenting plans that promote the development of the children's relationship with both parents and interfere as little as possible with post-divorce family decision-making. The needs of the children are paramount; the desires of the parents are secondary. Parenting plans should never be used to punish or reward the parents for their human frailties or past mis-steps, but rather they should be used to advance the children's best interests by placing them in an environment that best serves their physical and emotional needs.
There are no hard and fast rules for devising a parenting plan. The process is factually driven and requires the courts to carefully weigh numerous considerations. The Tennessee General Assembly and the courts have identified many of the factors that trial courts should consider.
Trial courts have broad discretion to fashion parenting plans that best serve the interests of the children. They must, however, base their decisions on the evidence presented to them and upon the proper application of the relevant principles of law. While we are reluctant to second-guess a trial court's decisions regarding a parenting plan, we will not hesitate to do so if we conclude that the trial court's decision is not supported by the evidence, that the trial court's decision rests on an error of law, or that the child's interests will be best served by another parenting arrangement.
Shofner v. Shofner, 181 S.W.3d 703, 715-716 (Tenn.Ct.App. 2004) (citations omitted).
As the Trial Court found, the statutory factors weighed slightly in the husband's favor, and the Court appropriately fashioned a parenting plan which also gave the wife ample time with the children. We conclude, the Trial Court based its plan on the children's best interests, and the evidence does not preponderate against the Trial Court's findings. Tenn. R. App. P. 13(d).
Under the abuse of discretion standard, a trial court's ruling "will be upheld so long as reasonable minds can disagree as to propriety of the decision made." Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). We affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed to Vienqrhone Vickie Fongnaly.
Appendix Hearing May 16, 2005 Testimony of Kevin Kham Fongnaly ("the husband") (Direct Examination) * * *
Q: Mr. Fongnaly, did there come a time when you learned your wife was having an affair with a man named Ivie?
A: Late 2003. When my wife graduate from beauty school, I want to congratulate her. And she said, no, you don't have to go. You save your vacation and PTO and you stay at work. And I believed her. I think she's not going to do anything.
And after that I come home from work and I ask her, who go over your graduation beauty school. And she say, Darrell Ivie, my boss, go. I just not really serious about she hang around this man. And there be times she would come home when get out of work at 11:30 at night, and she's supposed to be home about 12:15. And she come 2:00, 1:00, sometime 4:30. And she didn't show me the check, she don't want to show me the check. She say, overtime, overtime. But I didn't see any overtime.
And she ask me the one night, Kevin, did you pay for the FBI or somebody follow me. And my friend take a break at the building, and they saw that somebody take my picture, I mean, my car picture. I say, if you didn't do anything, you feel clean. You don't worry about it. If you do something wrong, it you problem. I don't know what you talk about.
And I get up, come to the downstairs, fix to go to work, and she follow me to the bathroom. And she get in the bathroom and lock on the door. And she point at me, you really do that. You hired somebody to follow me? I said, please, let me finish my necessary thing and leave me along. I fix to go to work. I cannot finish me — please let me go out, Vickie, I have to go to work. And she pointed like this (indicating), tell me the truth. I say, if you do something, you know what you doing. I don't have to tell you.
After that, I get up from the bathroom. I cry. She smack on my back, but not hurt, but to hurt my feelings. I run out. Amanda heard that. What's going on, Dad, and Mom? She come down. And Vickie said, he hire somebody to follow me.
* * *
Q: Did there come a time when you and someone from work went to look for her car somewhere?
A: One day I cry; I'm sad. And I come closer to my friend, Randy Pepper. I ask him, Randy, would you help me? What's your problem, he said. I have a big problem in my house. My wife hang around —
* * *
Q: Did you and Randy go somewhere together?
A: I ask him to drive to van to come take the picture of her car in the apartment that she spend the time with her boyfriend.
Q: Did you go with him to take the picture?
A: With Randy. Randy drive. I very shaky. I'm so nervous that day.
Q: All right. And at the deposition your wife admitted that she had been having a sexual affair with Mr. Ivie; is that correct?
A: Yes, she admit that.
* * * (Cross-Examination) * * *
Q: You are concerned that your wife had a relationship with Mr. Ivie —
A: Yes.
Q: — is that true?
A: Yes.
Q: And she acknowledged and admitted that she had a limited relationship with Mr. Ivie the last time we were in Court, didn't she, back last September?
A: Yes, she admit that.
* * * Testimony of Vienqrhone Vickie Fongnaly ("the wife") (Direct Examination) * * *
Q: All right. Now, you have admitted that you have an ongoing affair with a Mr. Ivie from your work; is that correct?
A: Yes, sir.
Q: Have you told people that you and he intend to marry?
A: No, sir. Because people gossip. You know how they is.
Q: If people are gossiping there, they didn't get it from you?
A: People might, jealous people might say something about, you know, that's a natural comment everywhere.
Q: All right. Would it be okay with you if the Judge ordered that neither you nor your husband should have overnight guests while the children are present unless that person is related to you or your husband by blood or marriage? Would that be okay with you?
A: I don't understand what you mean, sir.
Q: All right.
A: I'm sorry.
Q: After your divorce and you're a single woman, do you think it would be appropriate for you to have your boyfriend spend the night with you while your children are in the house?
A: No.
Q: And it wouldn't be right for your husband, if he had a girlfriend, to have her spend the night while the children are in the house?
A: No.
Q: Okay. So, you're in agreement that if the Court ordered that, that would be fine with you?
A: Yes, sir. But after long term, I see whoever I want.
Q: All right. I don't believe I understood what you just said.
A: I said, after long, in the future, in the future — not now, not next month, not next couple months — I talk about in the future, long-term future, whoever I want to marry, whoever I want to see if my decision, or his decision, whatever you want to do.
Q: Well, would you agree that obviously if you got married, it would be okay for your husband to be there with you while the children are there?
A: If he want to, I don't mind. But my children, yes, I want them to be with me.
Q: All right. But not until after you're married?
A: What do you mean, sir, after I'm married?
Q: Well, do you plan on marrying Mr. Ivie?
A: I don't know. I didn't say that I plan to marry him. I don't know.
Q: But you don't plan on having him in your home overnight while your children are there?
A: Yes, sir. I don't want that.
* * *
Q: All right. This was 1995, 1996. Is that when you started having affairs —
A: No, sir. During that time I was housewife.
Q: Housewives can't have affairs?
A: I didn't say I had an affair.
Q: All right. When did you start having your affair?
A: Last year or year before last year.
Q: Year before last year?
A: Last year, I think.
Q: Could it have been in 2003?
A: No, sir.
Q: It had to be 2004?
A: Yes, sir.
Q: You spent weekends with your boyfriend?
A: When I am alone, yes.
Q: Have you had your boyfriend at your house?
A: No, sir.
* * *
Q: Your husband was very upset when he learned of your affair, was he not?
A: He upset, but he angry, too —
Q: He was upset and angry?
A: Yes, he was.
* * * (Cross-Examination) * * *
Q: All right. And you acknowledge you began a relationship with Mr. Ivie last summer; is that true?
A: Yes, sir.
Q: And you and Mr. Ivie had one occasion where you each were at the bowling alley one time at the end of last summer; is that true?
A: Yes, sir.
Q: Have you brought the children around Mr. Ivie around the children whatsoever during the pendency of this divorce? During this divorce, have you brought the children around Mr. Ivie?
A: No, sir.
Q: All right. Has Mr. Ivie been around the children at all?
A: No, sir.
Q: Have the children ever seen you or Mr. Ivie act inappropriately in any way?
A: No, sir.
* * *
I cannot concur in the conclusion of the majority opinion, i.e., that the evidence does not preponderate against the trial court's judgment designating the husband as the primary residential parent of the parties' minor children. My review of the record persuades me that the trial court went against the overwhelming weight of the evidence favoring an award of primary custody to the wife for one reason and one reason only, i.e., because of the wife's admitted adulterous relationship during the marriage. I believe the trial court premised its decision on an incorrect interpretation of the law and/or made a factually-erroneous decision.
The trial court rendered its opinion from the bench following the close of proof. The court's opinion is approximately eleven pages long. However, it includes only a very brief statement of the court's rationale for naming the husband instead of the wife as the primary residential parent. That section, in its entirety, is as follows:
In looking at the various factors, the major factors that are the overriding consideration in this matter are the — obviously this affair that has taken place. It goes to the character of the wife and the situation that's [sic] put the children in. And then that's balanced by the preference of the oldest child somewhat.
The other factors, both of these parents are fit and proper parents. Both of them love their children. Both of them evidently have a very good relationship with the children. I would probably characterize the mother's relationship and [sic] being more of the care giver and a warmer relationship with the children; the father is more of the traditional father. Respect and honor, I think is what we expect of the children with the father.
I am going to try to arrange a joint arrangement to some extent. But I'm going to name the father as the primary parent in this situation, simply because I think that that's in the best interest of the children when I have looked at all the factors that fall into place.
As I read this opinion, it is clear to me that "obviously" the "major factor" in the trial court's decision was the wife's affair.
It has long been the law in this state that "[i]n custody cases the Court shall not use the custody of the child as a reward or punishment to the parent, but shall be governed by the welfare of the child." Long v. Long , 488 S.W.2d 729, 733 (Tenn.Ct.App. 1972) (citing Carrere v. Prunty , 257 Iowa 525, 133 N.W.2d 692 (1965)).
In Sutherland v. Sutherland , 831 S.W.2d 283 (Tenn.Ct.App. 1991), we noted that
[s]exual infidelity or indiscretion does not ipso facto disqualify a parent from being awarded custody. However, when the parent's sexual activities or indiscretion involve neglect of the minor child, such neglect may be considered in relation to the best interest of the minor child.
Id. at 286 (emphasis added). See also Parker v. Parker , 986 S.W.2d 557, 563 (Tenn. 1999); Varley v. Varley , 934 S.W.2d 659, 666-67 (Tenn.Ct.App. 1996); Lance v. Lance , No. 01A01-9801-CV-00036, 1998 WL 748283, at *3-4 (Tenn.Ct.App. M.S., filed October 28, 1998); Holeman v. Holeman , No. M2001-00622-COA-R3-CV, 2002 WL 31397344, at *6 (Tenn.Ct.App. M.S., filed October 24, 2002); Cummings v. Cummings , No. M2003-00086-COA-R3-CV, 2004 WL 2346000, at *8 n. 5 (Tenn.Ct.App. M.S., filed October 15, 2004). We have not hesitated to reverse an initial award of custody when it appeared that custody was placed with a parent because of the other parent's extramarital affair in a situation where there was no showing that the parties' child was neglected or otherwise adversely impacted by the affair. See, e.g., Sutherland , 831 S.W.2d at 287.
In the case at bar, the trial court stated that it "would probably characterize" the wife as "being more of the care giver." The court also found that she had "a warmer relationship with the children." There is an abundance of evidence to support both of these findings. The court also noted that the oldest child, in her testimony, had stated a preference that her custody be awarded to her mother. While not mentioned in the trial court's opinion, it should be noted that this oldest of the parties' four children, then age 17, said she thought that she along with her three siblings should live with their mother. The other three children did not testify.
The trial court did not state any "custody" findings adverse to the wife except her extramarital affair. I find that the evidence overwhelmingly supports an award of custody to the wife. There is no evidence that the wife's affair involved neglect of her children or that the children were adversely impacted by the affair. In fact, there is very little in the record regarding the affair and absolutely nothing that indicates neglect or an adverse effect on the children. See attached appendix. In fact, the evidence clearly shows that the children are doing well in school and otherwise flourishing with their mother as the primary care giver.
I have reluctantly concluded that the trial court's decision not to award the wife primary residential custody status was based solely upon the affair and that the trial court decided that the primary care giver with "a warmer relationship with the children" should not have primary custody solely because of her sexual activities with one man. I believe the trial court's decision was based upon an interpretation of the law that is at odds with the clearly-stated pronouncements of the appellate courts of this state.
I recognize the trial court said that the affair "goes to the character of the wife." That is all the court said on the subject of the wife's "character." It did not state how the affair was a mark against the wife's character or why the court thought it was. If the court is saying that a person who has an affair — regardless of the circumstances and regardless of whether the affair caused the participant to neglect a child and regardless of whether the affair adversely affected the child — is disqualified from being a primary custodian, this is contrary to the law as set forth in this dissenting opinion. If, on the other hand, the trial court is basing its judgment on a finding of neglect or other adverse impact on the parties' children, there is simply no evidence in the record to support such a finding. In the final analysis, the evidence, in my judgment, clearly preponderates against the trial court's award of primary custody to the husband.
I would reverse the award of custody to the father, grant custody to the wife, and reverse the trial court's decision with respect to the marital residence so as to grant ownership of the property to the wife with her assuming the monetary obligation in connection therewith that was previously imposed upon the husband. In proposing this modification of the division of property, I note that the parties agreed at trial that the ownership of the house should accompany the award of primary custody.
I respectfully dissent.