IN THE COURT OF APPEALS OF TENNESSEE, AT JACKSON
_______________________________________________________
) JOHANNA TRAVIS, ) Tipton County Chancery Court ) No. 14,862
VS. Plaintiff/Appellee. ) ) ) C.A. No. 02A01-9707-CH-00163 FILED ) July 29, 1998 MARTIN L. TRAVIS, ) ) Cecil Crowson, Jr. Defendant/Appellant. ) Appellate C ourt Clerk ) ______________________________________________________________________________
From the Chancery Court of Tipton County at Covington. Honorable J. Steven Stafford, Chancellor
J. Thomas Caldwell, Ripley, Tennessee Attorney for Defendant/Appellant.
Cyburn H. Sullivan, Covington, Tennessee James H. Bradley, Covington, Tennessee Attorney for Plaintiff/Appellee.
OPINION FILED:
REMANDED
FARMER, J.
CRAWFORD, P.J., W.S.: (Concurs) LILLARD, J.: (Concurs)
1 This is a divorce case. The parties, Martin L. Travis (Husband) and Johanna Travis
(Wife), married in February 1984, separated in September 1995 and were divorced by final decree
entered in June 1997. Three children were born of the marriage: Joshua Daniel, born April 19, 1985,
Alexandria Faith, born August 18, 1987, and Nicholas Hunter, born January 3, 1993. Husband has
appealed from the final decree, challenging the correctness of the trial court’s decision to award sole
custody of the children to Wife. He has also raised additional issues relating to the children.
Husband and Wife were childhood sweethearts, having met when they were ages 7 and 6,
respectively. They attended high school together and were members of the same church where they
participated in various youth related activities. They married at ages 19 and 20. There were problems
throughout the marriage. Both parties testified to verbal abuse and physical altercations, sometimes
in the children’s presence. It was Husband’s testimony that the physical abuse was initiated by Wife
and that he responded only in self-defense. Wife described Husband as domineering and controlling.
Husband testified that for the first seven or eight years, his priorities were somewhat amiss with his
attention focused primarily on his work as opposed to his wife and children. After an accident
resulting in the loss of his job, however, he stated that he was in a position to spend more time with
the children and was consequently made aware of the importance of family and has since shifted his
priorities. Husband is in the printing business and at the time of trial was employed as an estimator
for a printing firm in Jackson, Mississippi, earning approximately $45,000 annually. Wife was the
primary caretaker of the children during the marriage and for a time also operated an in-home day
care, caring for up to 25 children.
Neither party has resided in the marital home, located in Covington, since May 1996.
Wife testified that she moved to Bartlett after the couple’s separation when her day care business
began to dwindle and she was caring for only three or four children. At the time of trial, Wife
operated an in-home day care from her residence in Bartlett, caring for four children and earning
between $300 and $350 per week. She currently dates a Bartlett police officer, Mr. Frank Lemmons.
The testimony was undisputed that much animosity
2 exists between Lemmons and Husband which, the record indicates, has affected the children, most
particularly the eldest, Joshua. The trial court conducted an in chambers conference with Joshua
who indicated a preference that his custody be awarded to Husband. Husband testified that he would
be willing to relocate to Tipton County if so ordered by the court in order to obtain custody of the
children. The children have a relationship with both their maternal and paternal grandparents all of
whom live in the Covington area, as well as other cousins, aunts and uncles.
The trial court was presented with the deposition
testimonies of three clinical psychologists, one who interviewed the children and Wife and
recommended that custody be placed with Wife, one who interviewed the children and Husband and
recommended that custody be awarded Husband and the final who offered no recommendation to
the court but who testified as Joshua’s individual therapist regarding the impact of the divorce on
him. There was conflicting testimony among the psychological experts as to whether Wife’s
relationship with Lemmons had negatively impacted the children.
The final decree indicates the parties stipulated that
grounds for divorce existed and that both parties were granted a divorce pursuant to statute. As
heretofore noted, the trial court awarded custody of the children to Wife, with Husband receiving
“standard visitation privileges as previously agreed by the parties.” Husband was ordered to pay
monthly child support. The decree instructed that Wife was to avoid any contact between Lemmons
and Husband regarding the children; that any discussions involving the children’s welfare were to
be conducted between the parties; and that all discipline of any type to the children was to be
administered by the parties only. Finally, the decree ordered the parties to continue Joshua’s
counseling sessions with Dr. Allen Battle “on an as needed basis until such time as Dr. Battle
discharges Joshua or until the court orders otherwise.”
In a memorandum opinion, the trial court made the
following factual findings as they relate to child custody:
Wife is
3 current l y d a t i ng a man named Frank Lemm ons. . . . She admits that she i s having sexual relatio ns with M r . Lemm ons but denies doing anythin g inappr opriate in the presen ce of t h e childre n. The Husba n d claims that the Wife is attempt ing to have M r . Lemm o n s take his place in the lives of t h e childre n. The Wife denies this. T h e Husba nd and M r . Lemm o n s have
4 h a d ver bal confro ntation s in the presen ce of t h e childre n.
Frank Lemm o n s testifie d on beh a lf o f Wife. H e stated that he loved t h e Wife and he and the Wife h a d done nothing inappr opriate in the presen ce of t h e childre n. He a l s o denied spendi ng the night at t h e Wife’s home while t h e childre n were present .
M r . Lemm o n s denied that he
5 h a d done anythin g to impair t h e childre n ’ s relatio nship w i t h t h e Husba nd. He claims to do a lot of things w i t h t h e childre n. He a l s o testifie d that he will always dislike t h e Husba nd and does n o t believe that he w i l l ever be able to resolve t h a t proble m.
Upon request of the Husba nd, the Court intervi ewed t h e parties’ oldest child, Joshua, in the presen ce of
6 t h e parties’ attorne y s . T h e Court found Joshua to be a v e r y intellig e n t child w h o loved b o t h h i s parents . He is extrem e l y concer n e d w i t h t h i s divorce and the adverse affect that it has had on him and his sibling s. He a l s o stated that his grades have gone down since t h e filing of the divorce . Joshua testifie d that it would be his prefere nce to l i v e w i t h h i s father.
7 T h e Wife testifie d that t h e parties cannot discuss anythin g civilly and are unable t o agree on any issues. T h is h a s resulte d in the parties experie ncing great difficul t y regardi ng the childre n since their separat ion.
Based upon the evidence before it, the court concluded:
T h e Court i s trouble d with various aspects of both parties’ lives. Howev er, it has no doubt t h a t b o t h parties l o v e
8 t h e childre n and in their o w n way, s e e k what t h e y believe to be best for t h e childre n.
T h e Husba nd has admitte d that t h e Wife is a good mother. Howev er, his concer n, as well as t h e concer n of the C ourt , involve s the Wife’s relatio nship w i t h M r . Lemm o n s . Additi onally, t h e Court i s trouble d with t h e lack of success t h a t Joshua h a s experie nced in h i s
9 school work since t h e separat ion.
On the other hand, t h e Court i s concer n e d w i t h t h e control that the Husba n d seems to want t o assert in all issues. T h e Court is also concer ned by t h e allegati ons of physic a l abuse a n d w i t h t h e Husba n d ’ s inexpli cable behavi o r exhibit e d toward t h e Wife during various argume nts.
T h e Court
10 does n o t believe that the childre n should b e separat ed but t h a t t h e y should remain togethe r. The Court a l s o does n o t believe that it would be in t h e childre n’s best interest s to move t o Jackso n , Missis sippi.
After entry of the decree, Husband filed a motion for
additional findings requesting that the court enter an order allowing him to take two of the children
as dependents for income tax purposes and requiring the parties to share travel expenses relating to
visitation by instructing that they exchange the children at a convenient location halfway between
Jackson, Mississippi and Covington. The trial court subsequently denied Husband’s request for a
sharing of travel expenses, but ordered that he be allowed to take the youngest child as a dependent
for income tax purposes.
Husband presents the following issues on appeal:
I. The Court erred in
11 awardi n g custody of the parties[ ’] three childre n to the wife.
II. The Court erred in failing t o require t h e parties t o jointly share t h e childre n ’ s transpo rtation expens es.
I I I . T h e Court erred in failing t o allow t h e Husba nd two (2) of t h e childre n as depend ents for income t a x purpos es.
We first address the issue of child custody. Our
primary concern is the best interests of the Travis children. The standard of review is in accordance
with Rule 13(d) T.R.A.P. which provides for a de novo review accompanied by a presumption of
correctness of the trial court’s findings of fact, unless the evidence preponderates otherwise. E.g.,
12 Whitaker v. Whitaker, 957 S.W.2d 834, 838 (Tenn. App. 1997).
We are guided in our decision by certain guidelines
previously established by case law as well as those factors set forth by statute. These aides in
making our determination were addressed by the court in Whitaker as follows:
In child custody a n d visitati o n cases, t h e welfare a n d b e s t interest s of a child are the paramo u n t consid eration s and t h e rights, desires, a n d interest s of the parents become second a r y . Neely v . Neely, 7 3 7 S.W.2d 5 3 9 , 5 4 2 (Tenn. App.19 87). In Bah v. Bah, 6 6 8 S.W.2d 6 6 3 (Tenn. App.19 83), the
13 Court establis h e d some guideli nes for making t h e determ ination of best interest :
W e adopt what w e believe is a commo n sense approa ch to custod y, one which we will call the doctrin e of “comp arative fitness. ” The paramo u n t concer n in child custody cases is t h e welfare a n d b e s t interest of the child. Mollis h v. Mollis h, 494 S.W.2d 1 4 5 , 1 5 1 (Tenn. App.19 7 2 ) .
14 There a r e literally thousa nds of things t h a t must b e taken i n t o consid eration in the lives of young childre n , Smith v . Smith, 1 8 8 Tenn. 4 3 0 , 4 3 7 , 2 2 0 S.W.2d 6 2 7 , 6 3 0 (1949), a n d these factors must b e review ed on a compar ative approa ch:
Fitness f o r custodi a l respon sibiliti es is largely a compar ative matter. N o human being i s deemed
15 perfect, hence n o human can be deemed a perfect ly fit custodi a n . Necess a r i l y, therefo re, the courts must determ i n e which of two o r more availab l e custodi ans is more or less fit than others.
Edwar ds v. Edwar ds, 501 S.W.2d 2 8 3 , 290-91 (Tenn. App.19 7 3 ) (empha s i s supplie d).
Bah, 6 6 8 S.W.2d at 666.
T h e trial court must a l s o consid er the
16 factors as set forth in T.C.A. § 36-6- 1 0 6 (1996):
36-6- 1 0 6 . Child custod y. -- In a suit f o r annulm e n t , divorce , separat e mainte nance, or in a n y other procee d i n g requiri ng the court to make a custody determ ination regardi ng a minor child, such determ ination shall be made upon t h e basis of the best interest of the child. T h e court shall consid er all relevan t factors
17 includi ng the followi n g where applica ble:
(1) The love, affecti on and emotio nal ties existin g betwee n the parents a n d child; (2) The disposi tion of t h e parents t o provide t h e child w i t h food, clothin g , medica l care, educati on and other necess a r y c a r e and the degree t o which a p a r e nt h a s been t h e primar y caregiv er; (3) The import ance of continu
18 ity in t h e child’s life and t h e l engt h of time t h e child h a s lived in a stable, satisfac t o r y enviro nment; (4) The stabilit y of the family unit of t h e parents ; (5) The mental a n d physic a l health of the parents ; (6) The home, school a n d commu n i t y record of the child; (7) The reason a b l e prefere nce of t h e child if twelve ( 1 2 ) years of age o r older. T h e court m a y
19 h e a r t h e prefere nce of a younge r child upon request . The prefere nces of older childre n should normal ly be given greater weight t h a n those o f younge r childre n; ( 8 ) Eviden ce of physic al or emotio n a l abuse to the child, to the other par e nt or t o a n y other person; and (9) The charact er and behavi or of a n y other person w h o resides i n or freque nts the
20 home of a p a r e nt a n d such person’ s interact i o n s w i t h t h e child.
Whitaker, 957 S.W.2d at 837-38.
As heretofore noted, the record before us indicates that
the two oldest Travis children, Alexandria and Joshua, ages 9 and 12 respectively, at the time of trial,
were both interviewed by clinical psychologists regarding the impact their parents’ divorce has had
on them. From the psychological reports, as well as the testimonies of the parties, we conclude that
Alexandria is coping sufficiently with her parents’ estrangement, due in some degree to the fact that
her older brother serves as sort of a “buffer” between her and the family situation. Dr. Battle
testified that Alexandria is “doing quite well” and is not exhibiting any psychological problems other
than those normally expected of any child whose parents are in the throes of a divorce. Nor does the
record reflect any unusual or significant adjustment problems for the youngest child, although he was
not interviewed psychologically due to his age. The record, however, does suggest that Joshua has
been severely impacted by the divorce and has endured much emotional turmoil as a result. There
was testimony in the record that Mother’s employment in the Covington area, running a children’s
day-care, was no longer feasible after the parties’ separation because children were taken out of the
day care. However, instead of seeking employment in the area in which the children had grown up
and the area in which their extended family was located, Mother moved the children to the Bartlett
area, near Mr. Lemons, and remained unemployed for a significant period of time. There is nothing
in the record indicating that this move was in the best interest of the children; indeed, the record
indicates that the move created more turmoil for children already caught between two parents in
conflict. The record also indicates that Mr. Lemmons disciplined the children by “whipping” them.
On the other hand, Dr. Stacey L. Dixon testified that Alexandria divulged to her that her father
21 “doesn’t give me my asthma medicine” and “when I cough it drives him crazy and he slaps me on
my face.” She also told Dr. Dixon that her father does not take her to the doctor when she is sick
when she is with him. We do not find the evidence to preponderate against the trial court’s grant of
custody of Alexandria and Nicholas to mother.
Dr. Battle, Joshua’s therapist, testified that Joshua
exhibited “extreme concern about the anger that exists between mother and father. . . . anxiety and
sadness that is evoked by the disruption of his home and his family. . . . grave concern about his
mother having an affair with another man. . . . [and] the desire to live with his father while at the
same time he feels frustrated in doing so and fearful that he won’t [be] able too.” Dr. Battle
continued:
I n Joshua I just see him i n essence in a state of transiti on. In other words, he has n o t solidifi ed into anythin g. It is simply sort of psycho logical upheav al, as though o n e had a contain e r of water i n which the dirt h a s settled
22 out of t h e bottom so you have clear water at the top and dirt at t h e bottom, a n d s omeo n e c o m es in with a stick a n d stirs t h e whole thing up and t h e n everyth ing is j u s t t op s y- t u r v y, b u t there is n o resoluti on in Joshua ’s mind at this point except insofar as he decided as of the last time I s a w h i m a n d even indeed before t h e n that he would rather l i v e w i t h h i s
23 father becaus e that would b e more in keepin g with t h e goals and the values that he h a s been taught.
Dr. Battle believed Joshua had been “psychologically disturbed,” but believed any damage done
could be healed with further therapy. He believed Alexandria had faired better during this family
trauma due to her age and the fact that Joshua, her older brother, had created a certain degree of
security for her. Dr. Battle did not find Joshua to exhibit any “deep psychopathology” and believed
his disorder environmentally produced. He concluded that Joshua had “sufficient intelligence, grasp
of the situation and of himself to be eminently capable to make an informed decision. And I find
that his reasons for living with his father are not silly, trivial, childish reasons that might be given
by a child for the benefit of their own gratification . . . .” When questioned as to the effect on Joshua
if custody was divided and he was raised apart from his two siblings, Battle responded, “[o]ne does
not like to have that division of siblings under conditions where everything else is equal.” Battle said
this was particularly the case if the children were to be raised hundreds of miles apart.
During the in chambers conference, Joshua informed
the court that he did not like the school that he transferred to in Bartlett as well as the one he attended
in Covington and that he didn’t “know if it’s just because of this divorce, I’ve been making Fs, and
its not great.” When asked whether he looked out for his little brother and sister, he replied “I keep
them in the corner of my eye all the time.” He stated that if he “had a choice,” he would “probably
want [he and his siblings] to live with [his] dad. . . . I would just like that better, I would think.”
When asked if there was “[a]ny particular reason” for his choice, Joshua explained that “some of it
is Frank.” He stated, “every time my dad drops us off, [at his mother’s, after visiting], [Frank’s] got
24 to carry on something.” Joshua said that Frank was always calling his dad bad names. He related
an incident where Husband had returned the children to Wife’s house after visiting. Lemmons was
present and “started calling [his] dad names.” He continued, “[m]y sister threw down her shoes and
jumped in my dad’s arms, and my brother was clinging on to his legs until my mom came out there,
and she told my dad to let go. . . . My sister wouldn’t let go. It was just hard.” Joshua said he
sometimes worried about his mother and father and was “always” concerned about his brother and
sister and felt as though he had to take care of them. Joshua said that Lemmons disciplined him and
his siblings by spanking them. He preferred it when Lemmons was not present at his mom’s home.
We recognize that divided custody arrangements
generally do not serve the best interests of the children and that, if at all possible, decisions regarding
custody should be made so as to avoid this particular result for children who deserve no less than
other children whose parents remain united. As stated in W. Walton Garrett, Tennessee Divorce,
Alimony and Child Custody § 24-15 (1997), “[t]here is a strong presumption that the welfare of the
children will be best served by keeping the children together.” This presumption, however, is to be
“viewed in light of the particular facts and circumstances surrounding each child custody case.”
Hollis v. Hollis, No. 01A01-9704-CH-00178, 1998 WL 57537 (Tenn. App. Feb. 13, 1998).
We are cognizant of the fact that Joshua’s preference
is not binding, but is one of the factors to be considered in a custody determination. Smith v. Smith,
No. 01A01-9511-CH-00536, 1996 WL 526921 (Tenn. App. Sept. 18, 1996); Hardin v. Hardin, No.
03A01-9711-GS-00507, (Tenn. App. May 19, 1998). Given the relationship between Joshua and
Mr. Lemmons and between Joshua and his father, we find it to be a particularly significant factor in
this case. Having reviewed this record, we find that there is strong evidence in favor of Father being
awarded custody of Joshua. However, our careful review of the chancellor’s discussion with Joshua
convinces us that Joshua’s expressed preference to live with his father was based on Joshua’s
assumption that custody of all the children would be awarded to father. As previously discussed, the
children are very close and Joshua feels protective toward his younger siblings. We do not believe
he envisioned them being separated. Therefore, we conclude that this case should be remanded to
allow Joshua to express to the trial court whether his preference would be the same if he and his
25 siblings are separated. The record before us does not contain evidence of the effect of split custody
on the children and whether or not it would be in their best interest. Therefore, we are of the opinion
that this case be remanded to the trial court to conduct a further hearing on the issue of custody
pursuant to T.C.A. § 27-3-128 and to consider all factors concerning custody of these children. The
trial court shall also make any further determinations concerning child support, visitation and the
allocation of tax deductions as the circumstances require.
We commend the trial court for including in the final
decree that Wife is to avoid any contact between Mr. Frank Lemmons and Husband regarding the
children and that all discipline of any type to the children be administered only by Husband or Wife.
In view of our remand, the second issue presented by
Husband is pretermitted. Costs of this appeal are taxed to Mr. Travis.
____________________________________ FARMER, J.
______________________________ CRAWFORD, P.J., W.S. (Concurs)
______________________________ LILLARD, J. (Concurs)