Killion v. Killion

• Court: Court of Appeals of Tennessee
• Decided: June 25, 1999
• Docket: 03A01-9807-CH-00229
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE FILED June 25, 1999 AT KNOXVILLE Cecil Crowson, Jr. Appellate C ourt Clerk

DRUCILLA GAY KILLION, ) GREENE CHANCERY ) (No. 97000150) Plaintiff/Appellee ) ) NO. 03A01-9807-CH-00229 v. ) ) HON. THOMAS R. FRIERSON, II JIMMY DALE KILLION, ) CHANCELLOR ) Defendant/Appellant ) AFFIRMED

David L. Leonard, Greeneville, for Appellant.

L. Kirk Wyss, Morristown, for Appellee.

OPINION

INMAN, Senior Judge

The custody of two children is the principal issue in this case. A secondary

issue involves the monetary valuation of a mobile home. The Chancellor awarded

custody of the children to their mother, and ordered the father to pay her $9,000.00

for her marital interest in the mobile home. Father appeals, insisting that the

evidence preponderates against the judgment.

Our review of the findings of fact made by the trial Court is de novo upon

the record of the trial Court, accompanied by a presumption of the correctness of

the finding, unless the preponderance of the evidence is otherwise. TENN. R. APP.

P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996).

The parties have three sons, Derek, age 15, Chad, age 12, and Bryan, age 11.

When Wife filed her complaint in July, 1997, Derek was residing with his father;

his younger brothers remained with their mother. The custody of Derek was awarded to his father and is not an issue on

appeal.

When the parties separated, Wife, with Chad and Bryan, moved into a house

owned by Wendell Thacker who was disabled as a result of injuries sustained in

a car crash in which his wife was killed. It is the relationship between Wife and

Thacker of which Husband complains; he insists that the clear preponderance of

the evidence proved that Wife and Thacker were engaged in a meretricious

relationship which was so blatant as to render her unfit to have the care and

custody of Chad and Bryan.

I

Wife testified that she performed housekeeping services for Thacker; that

they occupied the same residence; that she had “given him friendly kisses;” that

they did not have a sexual relationship; that they vacationed together, with their

children, in Florida and Gatlinburg. Her relationship with Thacker was enquired

into exhaustively, and no evidence was presented of her parental unsuitability other

than her relationship with Thacker.

The Chancellor observed that the Wife’s association with Thacker had the

appearance of impropriety, but specifically found that her relationship with him

was not sexual or intimate. The preserved testimony is somewhat jarring on this

point, but we are mindful that what may seem to be often is not. The credibility of

Wife, a major factor, was the prerogative and responsibility of the Chancellor,

whose finding is well-nigh conclusive. Galbreath v. Harris, 811 S.W.2d 88, 91

(Tenn. App. 1990). The Chancellor recognized the well-known and oft-expressed

rules respecting the best interests of the children, and the comparative fitness of the

parents. In re: Parsons, 914 S.W.2d 889 (Tenn. 1995).

The evidence does not preponderate against the award of custody.

2 II

Husband complains that the evidence preponderates against the finding that

the market value of the residential mobile home was $18,000.00.

Wife testified that the mobile home, with the additions of two porches, two

rooms and a closet, was worth $25,000.00. Husband testified that the mobile home,

with an above-ground swimming pool, was worth $7,300.00. Husband’s father

owned the land on which the mobile home was located.

The mobile home was awarded to Husband, who was ordered to pay Wife

$9,000.00 for her marital interest. No proof was offered other than the testimony

of the parties as to the value of the mobile home, and we cannot find that the

judgment is contrary to the preponderance of the evidence.

The judgment is affirmed at the costs of the appellant and the case is

remanded for all necessary purposes.

_______________________________ William H. Inman, Senior Judge

CONCUR:

_______________________________ Herschel P. Franks, Judge

_______________________________ Charles D. Susano, Jr., Judge