IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
October 16, 1998
PENELOPE LYNN RAYBURN, ) Cecil W. Crowson
) Appellate Court Clerk
Plaintiff/Appellant, )
) Appeal No.
) 01-A-01-9710-CH-00548
VS. )
) Cheatham Chancery
) No. 8718
GREGORY SHANE RAYBURN, )
)
Defendant/Appellee. )
APPEALED FROM THE CHANCERY COURT OF CHEATHAM COUNTY
AT ASHLAND CITY, TENNESSEE
THE HONORABLE LEONARD W. MARTIN, JUDGE
JERRY W. HAMLIN
110 Frey Street
Ashland City, Tennessee 37015
Attorney for Plaintiff/Appellant
STEVE D. GIBSON
112 S. Main Street
Ashland City, Tennessee 37015
Attorney for Defendant/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
KOCH, J.
CAIN, J.
OPINION
The trial court granted the husband an absolute divorce and gave him
custody of the parties’ three children. The wife argues on appeal that the trial court
erred by determining the issue of child custody without considering the mandatory
statutory factors found in Tenn. Code Ann. § 36-6-106. We affirm the trial court.
I. Marriage and Divorce
Gregory Shane Rayburn and Penelope Lynn Harding married on August
30, 1986. Two sons and one daughter were born to the couple: Joshua, born
November 14, 1987; Jonathan, born November 14, 1988, and Summer, born July 15,
1993. During the first ten years of their marriage, Mr. Rayburn worked at a number
of jobs, including work as a truck driver, while Ms. Rayburn took care of the home and
children.
In April of 1996, Ms. Rayburn began working part-time at the post office.
On May 16 of the same year, Mr. Rayburn observed Ms. Rayburn kissing another
postal employee, John Wayne Shearon at the back door of the post office. On June
1, 1996, Ms. Rayburn moved out of the marital home, taking the three children with
her. She filed for divorce several days later, claiming that the parties had encountered
irreconcilable differences in their marriage, or in the alternative, that Mr. Rayburn had
been guilty of inappropriate marital conduct.
Mr. Rayburn answered, and asked for sole custody of the three children.
He denied that he had been guilty of any inappropriate conduct, and claimed that his
wife had developed an inappropriate relationship with Mr. Shearon. We note that
while the present case was pending, Ms. Shearon filed for divorce against Mr.
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Shearon, naming Ms. Rayburn as her husband’s lover in the complaint. The
Shearons ultimately agreed to proceed on an uncontested basis, and the trial court
granted them a divorce on July 14, 1997.
The Rayburn divorce was heard on August 19 and 20, 1998. Eight
witnesses appeared and were subjected to vigorous cross-examination. The
witnesses included the parties themselves, Ms. Rayburn’s two sisters, a friend of Ms.
Rayburn’s, Mr. Shearon’s best friend, Ms. Shearon, and Mr. Rayburn’s mother.
Ample evidence was presented as to infidelities on the part of Ms. Rayburn, which we
feel it unnecessary to summarize here. There was no evidence of any improper
conduct by Mr. Rayburn.
During the cross-examination of Ms. Rayburn, she repeatedly denied
that there was anything improper in her relationship with Mr. Shearon, or that she was
“seeing” or “dating” him. She also denied ever spending the night with him, despite
eyewitness accounts that were highly suggestive of many nights of intimate contact
between them. The trial court warned her to be candid in her testimony, and stated
that her credibility would be a factor in the court’s decision on custody, but this did not
deter her from continuing to testify that she and Mr. Shearon were only friends.
At the conclusion of the hearing, the trial court awarded Mr. Rayburn a
divorce on the ground of inappropriate marital conduct, and also awarded him custody
of the three children. Ms. Rayburn was granted visitation rights, and was ordered to
pay child support. This appeal followed.
II. Matters of Statute
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The trial court is vested with wide discretion on questions of child
custody, and the appellate court will not interfere, except upon a showing that the trial
court abused that discretion. Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. App. 1993).
We must also presume that the court was correct in finding the husband to be the
most suitable person to exercise custody, unless the evidence preponderates
otherwise. Rule 13(d), Tenn. R. App. Proc.
The appellant’s primary argument is that the trial court did not consider
the statutory factors for determining child custody, and that it did not provide any
logical basis for its decision, except for its determination that the wife lacked credibility
because of her unwillingness to answer embarrassing questions.
She cites us to Tenn. Code Ann. § 36-6-106 which states:
Child custody.-- In a suit for annulment, divorce,
separate maintenance, or in any other proceeding requiring
the court to make a custody determination regarding a minor
child, such determination shall be made upon the basis of the
best interest of the child. The court shall consider all relevant
factors including the following where applicable:
(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. The court may hear the
preference of a younger child upon request. The preferences
of older children should normally be given greater weight than
those of younger children;
(8) Evidence of physical or emotional abuse to the
child, to the other parent or to any other person; and
(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.
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We note that the statute indicates that these factors are not all
applicable in every case, and that there may be other applicable factors that are not
specifically described.
If, as the appellant insists, the trial court did not consider the factors that
were relevant in reaching its decision, that would be abuse of its discretion. However
we can presume such consideration if the record contains evidence sufficient for the
trial court to determine where the best interest of the children would lie. Without going
into too much detail, we can state that there is enough evidence in this record for that
determination.
We have read the transcript of the trial, and we are satisfied that there
are strong ties of love and affection between the children and both parents, although
the middle child, Jonathan, was angry at his mother, and blamed her for the breakup
of the family. We are also satisfied that while the mother had been the primary
caregiver during the marriage and the father had assumed the role of breadwinner,
both parents have proven themselves to be capable caregivers during the period of
separation.
III. Comparative Fitness
Fitness for custodial responsibilities is largely a comparative matter.
Edwards v. Edwards, 501 S.W.2d 283 (Tenn. App.1973); Bah v. Bah, 668 S.W.2d 663
(Tenn. App. 1983). Thus the grant of custody to one parent is not equivalent to a
finding that the other parent is unfit, but only that the best interest of the child is
served by placing him or her with the parent who is more capable of exercising that
responsibility.
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If the factors we have so far referred to place the parties in a fairly even
balance, the question of character must tip that balance in favor of Mr. Rayburn. As
this court said in Gaskill v. Gaskill, 936 S.W.2d 626, 634 (Tenn. App. 1996), “[a]
parent’s honesty reflects on his or her fitness to be a good custodian.” Thus it was not
error for the trial court to consider the wife’s truthfulness under oath in determining
child custody.
A child learns as much by example as by precept, and it is up to the
parent to set a good example. Ms. Rayburn (now Ms. Shearon) did not set a good
example when she began an affair with a married man, and moved out of the marital
home, taking the three children with her, and she did not set a good example when
she rejected her husband’s attempts at reconciliation. While, as this court said in
Varley v. Varley, 934 S.W.2d 659, 666-7 (Tenn. App. 1996), “a parent’s sexual
infidelity or indiscretion does not, ipso facto, disqualify that parent from receiving
custody of his/her children,” such acts may be relevant to the question of character,
and thus to comparative fitness.
The appellee also points out that the wife did not take any steps to
protect her children from her own father, Neal Harding, a convicted child molester,
until the husband “raised a fuss” about it. Since he is “a person who resides in or
frequents the home of a parent” the Court has discretion under the statute to consider
the character and behavior of Neal Harding. Tenn. Code Ann. § 36-6-106(9).
Taking these and other factors into account, we cannot say that the
evidence preponderated against the determination of the trial court.
III.
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The order of the trial court is affirmed. Remand this cause to the
Chancery Court of Cheatham County for further proceedings consistent with this
opinion. Tax the costs on appeal to the appellant.
____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
_____________________________
WILLIAM B. CAIN, JUDGE
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