IN T H E C O U R T O F A P PE A L S O F T E N N E S S E E A T N A S H V IL L E F IL E D Ma rch 30, 2000
A N G E L A J OA N W A G N E R , ) C e c il C ro w s o n , J r. ) A p p e l la t e C o u rt C le rk Plaintif f/A ppellant, ) ) A ppeal N o. ) M 1999-01045-C O A -R 3-C V V S. ) ) R utherford C hancery ) N o. 98DR -570 R O D N E Y K E IT H W A G N E R , ) ) D efendant/A ppellee. )
A P PE A L E D F R O M T H E C H A N C E R Y C O U R T OF RUTHERFORD C OUN TY AT MU RFREESBORO, TENN ESSEE
T H E H O N O R A B L E R O B E R T E . C O R L E W , III, C H A N C E L L O R
JON S. JABL ONSK I 2400 C restmoor Road, S uite 315 N ashv ille, Tennessee 37215 A ttorney for Plaintiff /A ppellant
FRA NK M. FLY P. O . Box 398 M urfreesboro, Tennessee 37133-0398 A ttorney f or Def endant/A ppellee
A F F IR M E D A N D R E M A N D E D
BEN H. CA NTREL L, P R E S ID IN G J U D G E , M .S .
C O N C U R: K OCH, J. COTTREL L, J. O P IN IO N
T he trial court granted the parties a div orce, ordered joint custody
of the parties’ minor son, and div ided the marital property . O n appeal, M s.
W agne r contends that the trial court’s aw ard of joint custody on an alternating
w eek basis w as improper, that the division of marital property w as inequitable,
and that the trial court’s order requiring her to bear one-half of the child’s
medical insurance w as improper. W e disagree and aff irm the trial court’s
jud g me nt.
I.
R odney W agner, an employ ee of D igital E quipment C orporation,
and A ngela W agner w ere married in A ugust of 1990. In O ctober of 1990, after
tw elv e and one-half y ears of employ ment w ith D igital E quipment C orporation,
M r. W agner w as off ered a termination package consisting of back pay f or
accumulated “sick time,” “v acation time,” and salary based on length of
employ ment. M r. W agner accepted the off er and subsequently started his own
bus ine ss, L an C onn ect s.
T he parties’ marriage produced one son, C hristopher T ay lor
W agner, w ho w as born in 1993. The testimony in this case indicates that w hile
the parties were married, M s. W agner w as the primary caretaker of the child.
A lthough M s. W agner testified that M r. W agner had no inv olv ement in h is so n’ s
life, other testimony indicated that M r. W agner’s inv olv ement in his son’s life
-2- w as lim ite d du e to his ef f orts t o st art hi s ow n bu sin ess . T he child w as diagnosed
w ith att ent ion def ici t hy perac tiv ity dis order.
T he parties separated in 199 8. A t this time, the parties agreed to a
temporary arrangem ent of joint custody on an alternating w eek basis. D uring
this agreed joint custody arrangem ent, M r. W agner had the child put on
medication for attention deficit hy peractivity disorder. The child’ s teachers
testified that after the child began taking the medication they noticed an
im me dia te d if f erenc e in his beh av ior, at ten tio n sp an, a nd f ocu s.
In M ay of 1998, M s. W agner filed a complaint for absolute div orce
citing irreconcilable diff erences, inappropriate marital condu ct, and cruel and
inhuman treatment. M r. W agner answe red the complaint denying these
all eg ati ons and pray ing f or dis mi ssa l of the com pla int .
A fter a hearing, the trial court awarded M s. W agner a div orce on the
grounds of inappropriate marital conduct. The parties were awarded joint
custody of their son on an alternating w eek basis. M r. W agner w as designated
the primary cu stodial parent w ith full and sole responsibility f or making non-
emergency health care, school, and religious decisions concerning the child. M r.
W agner w as ordered to pay child support of $728.00 per month, a sum equal to
10.5% of his monthly income. The trial court further ordered that the parties be
equally responsible for payment of the costs of m edical insurance for the child.
-3- T he court aw arded the marital home to M s. W agner and the parties’
ow nership of f if ty perce nt o f the sto ck i n L an C onn ect s to M r. W ag ner. T he trial
court designated as m artial property $40,245 of M r. W agner’s IR A account,
$2,860 of M r. W ag ner’s checking account w ith N ations B ank, $9,019 of M r.
W agner’s 401K account, $1,300 of M r. W agner’s F irst A merican C hecking
A ccount, and $368 of M r. W agner’s account with E ducator’s C redit U nion. The
court then aw arded M s. W agner half of M r. W agner’s IR A account and M r.
W agner the rest of the marital property in the accounts. T his appeal follow ed.
T he issues M s. W agner has raised on appeal are (1) w hether the trial
judge erred in his custody determination; (2) w hether the div ision of m arital
property w as equitable; and (3) w hether the trial court erred in ordering M s.
W agner to bear one-half of the expense of the child’s m edical insurance.
II. C ustody A rrangement
M s. W agner contends in her brief on appeal that the trial court’s
aw ard of joint custody on an alternating w eek basis w as improper. In addition,
M s. W agner argues that it w as error for the trial court to grant M r. W agner the
authority to make non-emergency health care, school, and religious decisions
w ith regard to the child. W e note that the proper standard of appellate rev iew in
child custody cases is de nov o upon the record w ith a presumption of correctness
of the trial cou rt’ s f ind ing s. See H ass v. K nighton, 676 S.W .2d 554, 555 (T enn.
1984). B y w ay of statute, courts hav e the authority to aw ard child custody in a
div orce proceeding “to either of the parties to the suit or to both parties in the
-4- instance of joint custody or shared parenting, or to some suitable person, as the
w elfare and interest of the child or children may demand . . . .” T enn. C ode A nn.
§ 36-6-101(a)(S upp. 1999). This custody determination must be based first and
foremost on the best interest of the child or children and can involv e
consideration of a multitude of f actors that can affect the child’s best interest.
S e e N ichols v. Nichols, 792 S.W .2d 713, 716 (T enn. 1990); R og er o v . P itt, 759
S .W .2d 109, 112 (T enn. 1988); Bah v. Bah, 668 S .W .2d 663, 666 (T enn. C t. A pp.
1983). In addition, w e must accord the determination of the trial court great
deference on appeal because the trial court had the opportunity to observ e the
manner and demeanor of the w itnesses at trial w hile our rev iew is limited to the
w ritten record. J ones v. J ones, N o. 01-A -01-9601-C V 00038 , S umner C ounty
(T enn. C t. A pp. filed S eptember 11, 1996, at N ashv ille) (citing Town of A lamo
v. F orcum-J ames C o., 327 S.W .2d 47 (1959)).
T his C ourt has prev iously adopted the doctrine of comparativ e
fitness to determine the most suitable custodian for children of tender y ears. W e
stated
F itness for custodial responsibilities is largely a comparative matter. N o human being is deemed perfect, hence no human can be deemed a perfectly fit custodian. N ecessarily , therefore, the courts must determine w hich of tw o or more available custodians is more or less fit than others . . . . T o the extent the ‘tender years’ doctrine has continued efficacy it is simply one of m any factors to be considered in determining custody , not an uny ielding rule of law . The only rigid principle is and must be that the best interests of the child are paramount in any custody determination.
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IN T H E C O U R T O F A P PE A L S O F T E N N E S S E E A T N A S H V IL L E F IL E D Ma rch 30, 2000
A N G E L A J OA N W A G N E R , ) C e c il C ro w s o n , J r. ) A p p e l la t e C o u rt C le rk Plaintif f/A ppellant, ) ) A ppeal N o. ) M 1999-01045-C O A -R 3-C V V S. ) ) R utherford C hancery ) N o. 98DR -570 R O D N E Y K E IT H W A G N E R , ) ) D efendant/A ppellee. )
A P PE A L E D F R O M T H E C H A N C E R Y C O U R T OF RUTHERFORD C OUN TY AT MU RFREESBORO, TENN ESSEE
T H E H O N O R A B L E R O B E R T E . C O R L E W , III, C H A N C E L L O R
JON S. JABL ONSK I 2400 C restmoor Road, S uite 315 N ashv ille, Tennessee 37215 A ttorney for Plaintiff /A ppellant
FRA NK M. FLY P. O . Box 398 M urfreesboro, Tennessee 37133-0398 A ttorney f or Def endant/A ppellee
A F F IR M E D A N D R E M A N D E D
BEN H. CA NTREL L, P R E S ID IN G J U D G E , M .S .
C O N C U R: K OCH, J. COTTREL L, J. O P IN IO N
T he trial court granted the parties a div orce, ordered joint custody
of the parties’ minor son, and div ided the marital property . O n appeal, M s.
W agne r contends that the trial court’s aw ard of joint custody on an alternating
w eek basis w as improper, that the division of marital property w as inequitable,
and that the trial court’s order requiring her to bear one-half of the child’s
medical insurance w as improper. W e disagree and aff irm the trial court’s
jud g me nt.
I.
R odney W agner, an employ ee of D igital E quipment C orporation,
and A ngela W agner w ere married in A ugust of 1990. In O ctober of 1990, after
tw elv e and one-half y ears of employ ment w ith D igital E quipment C orporation,
M r. W agner w as off ered a termination package consisting of back pay f or
accumulated “sick time,” “v acation time,” and salary based on length of
employ ment. M r. W agner accepted the off er and subsequently started his own
bus ine ss, L an C onn ect s.
T he parties’ marriage produced one son, C hristopher T ay lor
W agner, w ho w as born in 1993. The testimony in this case indicates that w hile
the parties were married, M s. W agner w as the primary caretaker of the child.
A lthough M s. W agner testified that M r. W agner had no inv olv ement in h is so n’ s
life, other testimony indicated that M r. W agner’s inv olv ement in his son’s life
-2- w as lim ite d du e to his ef f orts t o st art hi s ow n bu sin ess . T he child w as diagnosed
w ith att ent ion def ici t hy perac tiv ity dis order.
T he parties separated in 199 8. A t this time, the parties agreed to a
temporary arrangem ent of joint custody on an alternating w eek basis. D uring
this agreed joint custody arrangem ent, M r. W agner had the child put on
medication for attention deficit hy peractivity disorder. The child’ s teachers
testified that after the child began taking the medication they noticed an
im me dia te d if f erenc e in his beh av ior, at ten tio n sp an, a nd f ocu s.
In M ay of 1998, M s. W agner filed a complaint for absolute div orce
citing irreconcilable diff erences, inappropriate marital condu ct, and cruel and
inhuman treatment. M r. W agner answe red the complaint denying these
all eg ati ons and pray ing f or dis mi ssa l of the com pla int .
A fter a hearing, the trial court awarded M s. W agner a div orce on the
grounds of inappropriate marital conduct. The parties were awarded joint
custody of their son on an alternating w eek basis. M r. W agner w as designated
the primary cu stodial parent w ith full and sole responsibility f or making non-
emergency health care, school, and religious decisions concerning the child. M r.
W agner w as ordered to pay child support of $728.00 per month, a sum equal to
10.5% of his monthly income. The trial court further ordered that the parties be
equally responsible for payment of the costs of m edical insurance for the child.
-3- T he court aw arded the marital home to M s. W agner and the parties’
ow nership of f if ty perce nt o f the sto ck i n L an C onn ect s to M r. W ag ner. T he trial
court designated as m artial property $40,245 of M r. W agner’s IR A account,
$2,860 of M r. W ag ner’s checking account w ith N ations B ank, $9,019 of M r.
W agner’s 401K account, $1,300 of M r. W agner’s F irst A merican C hecking
A ccount, and $368 of M r. W agner’s account with E ducator’s C redit U nion. The
court then aw arded M s. W agner half of M r. W agner’s IR A account and M r.
W agner the rest of the marital property in the accounts. T his appeal follow ed.
T he issues M s. W agner has raised on appeal are (1) w hether the trial
judge erred in his custody determination; (2) w hether the div ision of m arital
property w as equitable; and (3) w hether the trial court erred in ordering M s.
W agner to bear one-half of the expense of the child’s m edical insurance.
II. C ustody A rrangement
M s. W agner contends in her brief on appeal that the trial court’s
aw ard of joint custody on an alternating w eek basis w as improper. In addition,
M s. W agner argues that it w as error for the trial court to grant M r. W agner the
authority to make non-emergency health care, school, and religious decisions
w ith regard to the child. W e note that the proper standard of appellate rev iew in
child custody cases is de nov o upon the record w ith a presumption of correctness
of the trial cou rt’ s f ind ing s. See H ass v. K nighton, 676 S.W .2d 554, 555 (T enn.
1984). B y w ay of statute, courts hav e the authority to aw ard child custody in a
div orce proceeding “to either of the parties to the suit or to both parties in the
-4- instance of joint custody or shared parenting, or to some suitable person, as the
w elfare and interest of the child or children may demand . . . .” T enn. C ode A nn.
§ 36-6-101(a)(S upp. 1999). This custody determination must be based first and
foremost on the best interest of the child or children and can involv e
consideration of a multitude of f actors that can affect the child’s best interest.
S e e N ichols v. Nichols, 792 S.W .2d 713, 716 (T enn. 1990); R og er o v . P itt, 759
S .W .2d 109, 112 (T enn. 1988); Bah v. Bah, 668 S .W .2d 663, 666 (T enn. C t. A pp.
1983). In addition, w e must accord the determination of the trial court great
deference on appeal because the trial court had the opportunity to observ e the
manner and demeanor of the w itnesses at trial w hile our rev iew is limited to the
w ritten record. J ones v. J ones, N o. 01-A -01-9601-C V 00038 , S umner C ounty
(T enn. C t. A pp. filed S eptember 11, 1996, at N ashv ille) (citing Town of A lamo
v. F orcum-J ames C o., 327 S.W .2d 47 (1959)).
T his C ourt has prev iously adopted the doctrine of comparativ e
fitness to determine the most suitable custodian for children of tender y ears. W e
stated
F itness for custodial responsibilities is largely a comparative matter. N o human being is deemed perfect, hence no human can be deemed a perfectly fit custodian. N ecessarily , therefore, the courts must determine w hich of tw o or more available custodians is more or less fit than others . . . . T o the extent the ‘tender years’ doctrine has continued efficacy it is simply one of m any factors to be considered in determining custody , not an uny ielding rule of law . The only rigid principle is and must be that the best interests of the child are paramount in any custody determination.
Bah v. Bah, 668 S.W .2d at 666 (citations omitted).
-5- In the present case, the trial judge m ade detailed finding s of f act
regarding the issue of custody . T he trial judge found that, although the bond
betw een M s. W agner and the child w as slightly greater than that between M r.
W agner and the child, M r. W agner w as more stable. The trial court based this
finding on M s. W agner’s history of im pulsiv e actions and expenditures
ev idenced by the record. The trial court further noted that M s. W agner continues
to suff er from psy chological problems for w hich she takes medication on a daily
basis. T he trial court pointed out M s. W agn er’s confrontational and exclusiv e
demeanor in court regarding issues of custody w hereas M r. W agner appeared
much more amenable to a continuation of an appropriate relationship w ith each
parent. In a ddi tio n, the trial court noted that continued joint custody w as an
app ropriat e pe rman ent sol uti on.
T he trial court’s aw ard of decision making authority to M r. W agner
w as based on the court’s determination that M r. W agner w as better able to deal
w ith others including school personnel, doctors, church associates, neighbors,
and business associates. The trial court then noted that M s. W agner has little
church association, a confrontational relationship w ith school personnel, and
long “mad spells” w here she stops interacting w ith others w ho take positions for
w hic h sh e do es n ot c are. T hes e f ind ing s are s upp orted by the record.
In light of the foregoing, it is the opinion of this court that it is in the
best interest of the child that he be giv en the opportunity to m aintain w arm and
close relationships with both parents in the form of joint custody. In addition,
-6- the trial court’s aw ard of decision-making authority to M r. W agner w as
appropriate in light of the ev idence in the record.
III. Division of the M arital Property
M s. W agner next contends that trial court’s div ision of marital
property w as not equitable. S pecifically , M s. W agner argues that the trial court
erroneously classified marital property as separate property. W e disagree.
T enn. C ode A nn. § 36-4-121 defines marital and separate property :
(b)(1)(A ) “M arital property” m eans all real and personal property, both tangible and intang ible, acquired by either or both spouses during the course of the marriage up to the date of the f inal div orce hearing and ow ned by either or both spouses as of the date of f iling of a complaint f o r div orce, excep t in the case of fraudulent convey ance in anticipation of f iling, and including any property to w hich a right w as acquired up to the date of the f inal div orce hearing, and v alued as of a date as near as reasonably possible to the final div orce hearing date.
(B ) “M arital property” includes incom e from, and any increase in v alue during the marriage of , property determined to be separate property in accordance w ith subdiv ision (b)(2) if each party substantially contributed to its preserv ation and appreciation and the v alue of v ested pension, retirement or other fringe benefit rights accrued during the period of the m arriage. ...
(2) “S eparate property ” means: (A ) A ll real and personal property ow ned by a spouse before marriage; (B ) Property acquired in exchang e for property acquired before the marriage; (C ) Income from and appreciation of property ow ned by a spouse before marriage ex cept w hen characterized as marital property under subdiv ision (b)(1); and (D ) Property acquired by a spouse at any time by gif t, bequest, dev ise or descent.
T enn. C ode A nn. § 36-4-121(b)(1)(A )-(B ); (b)(2).
-7- M s. W agner first takes issue with the trial court’s classification of
the majority of M r. W agner’s termination package as separate property . M s.
W ag ner asserts that the entire package w as marital property and should hav e
been div ided equally. W e note that the termination package consisted of salary
f o r M r. W agner’ s accumulated sick time, vacation time, and length of
employ ment. A f ter receiv ing the m oney from this packag e, M r. W agner
deposited the funds into an account with M errill L y nch and then transferred the
funds to an account w ith E ducator’s C redit U nion. M r. W agner had w orked for
D igital E quipment C orporation for over tw elv e y ears prior to his marriage to M s.
W agner. M r. W agner w orked for D igital E quipment C orporation for only f our
months w hile he was m arried to M s. W agner. A s such, the v ast majority of M r.
W agner’s accumulated sick pay and v acation pay amassed prior to his marriage
to M s. W ag ner.
T he T ennessee S upreme C ourt has previously held that marital
property includes retirement benefits, both v ested and unv ested, which accrue
during the ma rriag e. C ohen v. C ohen, 937 S .W .2d 8 23, 8 30 (T enn . 199 6). T he
C ourt further held that
1. O nly the portion of retirement benefits accrued during the marriage are marital property subject to equitable div ision.
2. R etirement benefits accrued during the m arriage are marital property subject to equitable div ision ev en though the non-employ ee spouse did not contribute to the increase in their v alue.
3. T he v alue of retirement benefits must be determined at a date as near as possible to the date of the div orce.
-8- Id. at 8 30. A lth oug h th e C ourt w as ref erring to ret irem ent ben ef its , w e find the
reasoning and holding applicable in the case at bar as the package receiv ed by
M r. W agner w as analogous to a retirement benefit package.
In the present case, the termination package benef its accrued almost
entirely before the parties w ere married. A fter the parties w ere married and M r.
W agner receiv ed the package, M s. W agner did nothing to substantially
contribute to its preserv ation or appreciation. Therefore, we cannot f ind that the
trial court erred in finding that only $368.00 of the $25,368.00 in the E ducator’s
C redit U nion A ccount w as marital property .
M s. W agner next contends that the trial court erred in finding that
only $2,860.00 of M r. W ag ner’ s N ati ons B ank acc oun t w as m arita l prop erty . A t
the time the parties w ere married, M r. W agner had an account w ith F irst
A merican w ith a balance of $13,477.00. A fter the marriage, M r. W ag ner took
$12,000.00 from that account and opened another account with F irst A merican
as “doing business as” L an C onnects account. A f ter th e pa rties sep arate d, M r.
W agner transferred this account to N ations B ank. W hen the account w as opened
at N ations B ank, it had a balance of $30,102.45. How ev er, at the time of the
div orce hearing, the account had a balance of only $16,337.00. T he trial court
correctly determined that $13,477.00 of this account w as M r. W agner’s separate
property. S e e T enn. C ode A nn. § 36-4-121(b)(2)(A ). In add iti on, w e note that
marital property must be “v alued as of a date as near as reasonably pos sible to
the final div orce hearing da te.” Tenn. C ode A nn. § 36-4-121(b)(1)(A ).
T herefore, the trial court correctly utilized the v alue of the account as of the date
-9- of the div orce hearing, $16,337.00, for purposes of determining the amount of
marital property in the account. T he trial court correctly determined that only
$2,8 60.0 0 of the account w as marital property and thus subject to equitable
div isi on.
IV . M edical Insurance
M s. W agner next contends that the trial court erred in requiring her
to bear one-half of the ex pense of the medical insurance for the child. W e note
initially that this C ourt has prev iously held that the C hild S upport G uidelines
require the obligor parent to pay f or the children’s medical insurance in addition to whatev er other child support mig ht be required. T he courts hav e little discretion w ith regard to this obligation and may only depart from the g uideline’s requirements if they make w ritten, specific finding s concerning w hy it w ould be unjust or inappropriate to require a particular obligor paren t to pay f or the chi ldren ’ s m edi cal ins uranc e.
C arden v. Card en, N o. 01-A -01-9502-C H 00042, C off ee C ounty (T enn. C t. A pp.
filed N ov ember 22, 1995, at N ashv ille) (citing T enn. C omp. R . & R egs. r. 1240-
2-4 -.04 (1)(a)). H ow ev er, in the present case, the parties enjoy joint custody of
the child and neither party falls w ithin the definition of an “obligor” as set out
in the g uid eli nes . S e e T enn. C omp. R . & R egs. r. 1240-2-4-.03(1). In fact, the
guidelines state that they are “designed to apply to situations w here children are
liv ing primarily w ith one parent . . . . In situations w here ov ernight time is
div ided more equally betw een the parents, the courts w ill hav e to make a case-
by -case determination . . . .” T en n. C om p. R . & R eg s. r. 1240-2-4-.02(6). In the
case at bar, w e find that the handling of the m atter of health insurance for this
minor child w as w ithin the discretion o f the trial cou rt. See D ill v. Dill, N o.
-10- 02A 01-9810-G S -00272, H ardin C ounty (T enn. C t. A pp. file d A ugust 2, 1999,
at Jackson). In light of the foregoing , the trial court did not abuse its discretion
in ordering the parties to equally share the cost of the child’ s medical insurance.
T he judgment of the court below is a f f irmed and the cause remanded
to the C hancery C ourt of R utherford C ounty for any further proceeding s
necessary. T ax the costs on appeal to the appellant, A ngela J oan W agner.
C O N C U R:
W I L L IA M C . K O C H , J R ., J U D G E
P A T R I C IA J . C O T T R E L L , J U D G E