Hollis v. Hollis ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
_________________________________________________
CARA ANNETTE HOLLIS, )
) Williamson Chancery No. 24097
Plaintiff/Appellee )
) Appeal No. 01A01-9704-CH-00178
vs. )
)
FREEMAN HARDIN HOLLIS, )
)
Defendant/Appellant )
_____________________________________________________________________
APPEAL FROM THE CHANCERY COURT OF WILLIAMSON COUNTY
AT FRANKLIN, TENNESSEE
THE HONORABLE HENRY DENMARK BELL, CHANCELLOR
CAROL L. SOLOMAN, Nashville, Tennessee
FILED
Attorney for Defendant/Appellant February 13, 1998
Cecil W. Crowson
VIRGINIA LEE STORY, Franklin, Tennessee Appellate Court Clerk
Attorney for Plaintiff/Appellee
OPINION FILED:
AFFIRMED
DAVID R. FARMER, J.
W. FRANK CRAWFORD, P.J.,W.S. (Concurs)
ALAN E. HIGHERS, J. (Concurs)
This divorce case involves the dissolution of the twenty-one year marriage of Cara
Annette Hollis (Wife) and Freeman Hardin Hollis (Husband). The trial court entered a final
decree declaring the parties divorced pursuant to T.C.A. § 36-4-129(b). 1 Husband has
appealed from the final decree, challenging the trial court's decisions regarding child
custody and alimony. For reasons as hereinafter stated, we affirm.
The parties married in June, 1975. Their union produced three sons: Nathan,
Timothy and Joseph who, at the time of trial (December 1996), were ages eighteen, fifteen
and thirteen, respectively. Wife was forty at the time of trial and in good health. She has
an eleventh grade education. Both before and after the marriage, she held various
minimum wage positions (mostly in sales). She became a full-time homemaker after the
birth of their first child, remaining so throughout the majority of the marriage. She
periodically undertook work outside the home, such as babysitting, and the position of
nanny for three years, when her children became of school age. She began her current
occupation of cleaning houses in 1991. She estimates monthly earnings of $600.00. She
identified total monthly expenses for herself and the children of $3,143.56. This figure
includes the first and second monthly mortgage payments on the marital home, which the
parties valued at $55,000.00 with an approximate equity of between $21,000.00 and
$26,000.00. Wife requested that the parties share joint custody of the children, with she
receiving primary physical custody. She asked to be allowed to remain in the marital home
until the youngest child turns eighteen or graduates from high school.
Husband was forty-four at the time of trial. He has been a federal government
employee, working as a supply technician for the Department of Defense, for
approximately twenty years. He earns additional income as a member of the National
Guard and supervising parties held at the Armory. Husband testified that during the
marriage his employment required out-of-town travel and overnight stays "off and on." For
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36-4-12 9. Stipu lated g roun ds an d/or de fense s - Gran t of divo rce. -
...
(b) The court may, upon such stipulations or upon proof, grant a divorce to the
party who was less at fault or, if either or both parties are entitled to a divorce,
declare the parties to be divorc ed, rathe r than aw arding a d ivorce to e ither party
alone.
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the past two years, his work has required him to be away from the home approximately two
weeks out of each month. Husband stated, however, that he has since trained a new
employee which will drastically reduce his out-of-town travel to only two or three nights per
month. He requested that he be awarded the marital home and sole custody of both minor
children. He explained that when out-of-town travel is necessary, the younger children
would be supervised by their oldest brother. He and his eldest son, who attends school
and works part-time, have a good relationship.
Wife stated that Husband's employment during the marriage required overnight
travel "quite often." She explained that when he is "on the road," he is away from home
Monday through Thursday or Friday as well as once a month for National Guard drills,
when he is away the entire weekend. Wife stated that sometimes Husband would be away
all night when monitoring a party held at the Armory.
Husband's 1995 federal income tax return indicates annual earnings of $40,414.00.
Husband's 1996 earnings statement through September reflects compensation of
$31,174.00. He receives an additional $219.00 per month for National Guard duties and
approximately $1,500.00 annually for monitoring parties at the Armory.
Upon hearing the evidence, the trial court entered a final decree as follows: In
addition to declaring the parties divorced, the trial court awarded the marital residence and
its accompanying indebtedness to Wife and ordered her to pay her own attorney's fees and
marital debt of approximately $6,000.00. Husband was awarded his pension, which the
parties valued at approximately $26,500.00, and ordered to pay all remaining marital
indebtedness incurred by either party prior to the hearing date, or approximately $8,000.00.
Wife was awarded custody of Joseph and Husband custody of Timothy. As to custody, the
court held, “[t]hat Joseph and Timothy will be together for the entire summer school
vacation with Wife having visitation/custody for the first half and Husband having
visitation/custody the second half. That Timothy and Joseph will also be together on all
school holidays with the parties having custody/visitation on alternating holiday periods,
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including weekends during the school year." The court ordered Husband to pay child
support of $323.00 per month based on the court's findings that Husband has a gross
earning capacity of "approximately $3,500.00 per month" and that Wife's gross earning
capacity is "approximately $1,300.00 per month, assuming a forty hour week as a house
cleaner." Husband was to continue providing health insurance for both minor children and
pay two-thirds of their uncovered medical expenses. Finally, Husband was ordered to pay
Wife $620.00 per month as alimony in futuro.
Husband identifies the issues on appeal as follows:
I. Whether the Chancellor abused his discretion in separating the
two brothers, who were close in age, without any evidence that
such separation would be in the children's best interest.
II. Whether the Chancellor abused his discretion in failing to award
custody of the two minor children to the father based upon a
comparative fitness analysis and the children's preference.
III. Whether the Chancellor abused his discretion in awarding
alimony in futuro to the wife where the wife is relatively young,
in good health, and where financial rehabilitation is feasible.
IV. Whether the husband should be awarded his attorney's fee on
appeal incurred on behalf of the children.
Wife has raised the similar issue of whether she should be awarded her attorney's fees
incurred in this appeal.
Husband's first two issues address the awarding of custody and will be considered
together. Husband contends that the trial court erred in dividing custody of the two minor
children. He asserts that the record reflects both young men's preferences to reside with
their father. He also notes the undisputed acrimonious relationship currently existing
between the eldest child and Wife which, according to Husband, will "severely handicap []"
the youngest child's relationship with his oldest brother if the custody award is allowed to
stand. Finally, Husband insists that there was no showing that the younger child's best
interests are served by custodial placement with the Wife or that the best interest of either
of the two minor children are served by physically separating them. It is asserted that the
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potential damage which may result from such separation is not minimized by the court's
"well-meaning gesture" requiring the two young men to spend vacations and holidays
together.
Our review of the trial court's decision regarding custody is de novo on the record
with a presumption that the trial court's findings of fact are correct unless the evidence
preponderates otherwise. E.g., Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. App. 1996);
Rule 13(d) T.R.A.P. The Gaskill court's discussion of child custody decisions merits
repeating here:
[C]ustody and visitation arrangements are among the most important
decisions confronting a trial court in a divorce case. The needs of the
children are paramount; while the desires of the parents are secondary.
Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn.1986). Custody should never be
used to punish or reward the parents, Turner v. Turner, 919 S.W.2d 340, 346
(Tenn.Ct.App.1995); Long v. Long, 488 S.W.2d 729, 733 (Tenn.Ct.App.
1972), but rather should promote children's best interests by placing them in
an environment that will best serve their physical and emotional needs. See
Luke v. Luke, 651 S.W.2d 219, 221 (Tenn.1983).
No hard and fast rules exist for determining which custody and
visitation arrangement will best serve a child's need. Taylor v. Taylor, 849
S.W.2d 319, 327 (Tenn.1993); Dantzler v. Dantzler, 665 S.W.2d 385, 387
(Tenn.Ct.App. 1983). The inquiry is factually driven and requires the courts
to carefully weigh numerous considerations. Nichols v. Nichols, 792 S.W.2d
713, 716 (Tenn. 1990); Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn.1988).
Among these considerations are:
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 thirty-party support; the
associations and influences to which the child is most likely to
be exposed in the alternatives afforded, both positive and
negative; and where is the greater likelihood of an environment
for the child of love, warmth, stability, support, consistency, care
and concern, and physical and spiritual nurture.
Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.Ct.App.1983); see also Tenn. Code
Ann. § 36-6-106(Supp.1995).
Gaskill, 936 S.W.2d at 630.
The record reflects that the parties have remained in the same household up until
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the time of the divorce hearing. The record further reveals much friction among these
family members once the divorce proceedings ensued, with the exception of Joseph whom
it appears has remained for the most part neutral. Arguments were not uncommon and
Husband recalled instances of Wife's verbal abuse toward him with the children present.
There were also instances where Wife would leave the home (no longer than overnight) to
go to a nearby friend's home, according to Wife, because of the stresses and pressures
felt in the home during this time. Both parties confessed to extramarital affairs.
Since Wife’s filing for divorce, Husband agrees that he has taken a more active role
with the children and household chores and, in Wife's words, he "suddenly started doing
everything." Wife testified that she had a good relationship with all of her children prior to
the time she filed for divorce. Wife admitted that her relationship with her two eldest sons
had since become "strained." She attributed this to Husband's attempts to "involve" the
children in the divorce and "sway" their positions. She stated that Husband did not
encourage the children to be respectful of both parents. Husband's testimony was to the
contrary.
Timothy testified that he desired to reside with Husband. Joseph did not testify.
Timothy stated that, prior to the divorce filing, Wife primarily escorted him to his various
activities, but since that time, his father had played a more active role in these events.
Timothy stated that during the marriage, his father "did the best he could . . . whenever he
was there." Timothy acknowledged Joseph's love for his mother and agreed that they were
"pretty close." Husband testified that he has a good relationship with all three of his
children.
In contending that he is the better fit parent to care for his two minor sons, Husband
notes Wife's absences from the home, her verbal abuse and, according to him, her
"emotional inability to control her life and perform her parental obligations" at the present
time. In his favor, Husband points to the fact that he has changed both his household
routine and job requirements in order to best parent his children "in the face of divorce."
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On appeal, Wife does not disagree with the trial court's divided custody award, noting that
the two children will continue to reside in the same community, attend the same school
system and have similar activities within the community.
The trial court's decision necessarily implies a finding that both parties are "fit"
custodians since each was awarded custody of one child. The record supports this
determination. As to the divided custody arrangement, Husband correctly cites to W.
Walton Garrett, Tennessee Divorce, Alimony and Child Custody § 24-15 (1997) in
proposing that "[t]here is a strong presumption that the welfare of the children will be best
served by keeping the children together." This presumption, however, must be viewed in
light of the particular facts and circumstances surrounding each child custody case. The
record indicates that prior to the divorce proceedings, Wife was the primary caretaker of
these children and that their relationships with each other were good. Upon a thorough
review of the record, we find no indication that Joseph possesses any hostilities toward his
mother (or father for that matter). The current custody arrangement allows Joseph to
continue to reside in the home that he has always known and to be cared for by his primary
caretaker. It is the hope of this court that Joseph and his mother will continue to pursue a
healthy relationship. Clearly, animosity is present in Timothy's relationship with his mother.
He expressed a strong desire to reside with his father and at the age of fifteen, his desires
merit consideration. An award of custody of Timothy to W ife under these circumstances,
we believe, quite possibly could have a detrimental effect upon the presently healthy
relationship between Wife and Joseph. Timothy and his father share a healthy
relationship. Husband's testimony convinces the court that his employment now requires
less travel. This fact, accompanied by the fact that the eldest son continues to reside with
Husband as well, leads this court to conclude that custody of Timothy was properly
awarded to Husband and that such is in his best interest.
Husband's next issue concerns the award of alimony in futuro to Wife. He contends
that the record supports a finding of Wife's ability to be economically rehabilitated. T.C.A.
§ 36-5-101(d) identifies various factors for the trial court to include in its consideration of
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whether alimony, of any kind, is appropriate. Of these, the fundamental concerns are need
and the ability to pay. Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. App. 1993). The record
clearly establishes that Husband's earning capacity is superior to that of Wife. Granted,
she is of relatively young age and healthy. However, she has spent the majority of her
marriage being a homemaker and caretaker of her children, as well as others. She does
not possess a high school degree or its equivalency. Her income as a housekeeper, even
if employed full-time, as calculated by the trial court, is $1,300.00 per month. Her needs
alone were established in excess of $2,000.00 per month. The record, too, establishes
Husband's ability to pay. Husband has not argued his inability in this regard. He merely
contends that an award of alimony in futuro is contrary to the express language of the
alimony statute which requires first a showing that the economically disadvantaged spouse
cannot be rehabilitated. We are satisfied that the record supports the trial court's award of
alimony in futuro to Wife at $620.00 per month.
Both parties have requested that they be awarded their attorney's fees incurred in
this appeal. Based on our decision, we deny Husband's request, but find it appropriate to
grant Wife's request. The issues in this case primarily concern custody of the parties'
children. We have affirmed the awarding of custody as determined by the trial court. The
court in Sherrod v. Wix, 849 S.W.2d 780 (Tenn. App. 1992), holds that "requiring parents
who precipitate custody or support proceedings to underwrite the costs if their claims are
ultimately found to be unwarranted is appropriate as a matter of policy." Sherrod, 849
S.W.2d at 785.
It results that the judgment of the trial court is affirmed and this cause remanded for
further hearing to determine the appropriate amount of attorney's fees to be awarded Wife
on appeal. Costs are assessed against the appellant, for which execution may issue, if
necessary.
________________________________
FARMER, J.
CONCUR:
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_________________________________
CRAWFORD, P.J.W.S.
_________________________________
HIGHERS, J.
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