Martin v. Martin

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED
March 26, 1998

CAROLYN DRAKE MARTIN, ) C/A NO. 03A01-9708-GS-00323
Cecil Crowson, Jr.
) Appellate C ourt Clerk
Plaintiff-Appellant, )
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE LOUDON
) COUNTY GENERAL SESSIONS COURT
)
)
)
)
DONALD WAYNE MARTIN, )
) HONORABLE JOHN O. GIBSON,
Defendant-Appellee. ) JUDGE

For Appellant For Appellee

JEAN MUNROE LOREN E. PLEMMONS
Knoxville, Tennessee Lenoir City, Tennessee

LAURA RULE HENDRICKS
Eldridge, Irvine & Hendricks
Knoxville, Tennessee

O P I N IO N

VACATED IN PART
AFFIRMED IN PART
REMANDED WITH INSTRUCTIONS Susano, J.

1
 This is a divorce case. Following a bench trial, the

lower court took the parties’ issues under advisement. A week

later, the court filed its memorandum opinion. It subsequently

entered a final judgment, which awarded the parties joint custody

of their three children; designated Carolyn Drake Martin (“Wife”)

as the residential custodian during the school year and Donald

Wayne Martin (“Husband”) as the residential custodian during the

summer months; established co-parenting times for each parent;

awarded Wife monthly child support of $1,000, but reduced the

support to $250 per month during the summer months; and denied

Wife’s request for alimony and attorney’s fees. Wife appealed,

arguing that she should have been awarded sole custody, and that

the co-parenting times should be changed. She also contends that

the trial court erred in failing to award her rehabilitative

alimony and in failing to grant her request that Husband pay her

attorney’s fees. By a separate issue, Husband also challenges

the co-parenting times. In addition, he contends that the trial

court did not properly calculate child support.

I. Background

Wife filed for divorce on April 17, 1995. Following a

short-lived reconciliation, Husband filed an answer and

counterclaim. Both parties sought the sole custody of their

minor children, Zachary Scott Martin (DOB: December 9, 1985),

Kelly Hamlin Martin (DOB: June 28, 1988), and Erin Taylor Martin

(DOB: December 31, 1991). Wife also sought alimony and her

attorney’s fees.

2
 On February 28, 1997, the parties signed a marital

dissolution agreement. It was filed with the trial court the

same day. On March 10, 1997, new counsel for Husband filed a

motion to set aside the marital dissolution agreement and asked

for permission to pursue his counterclaim.

This matter proceeded to trial on March 17, 1997. At

the commencement of the trial, the court inquired of the parties

as follows:

What are we arguing about in this case,
everything?

Counsel for Husband, Ms. Plemmons, responded: “Custody, mainly,

Your Honor.” Counsel for Wife did not express any disagreement

with his adversary’s statement. The transcript -- some 235 pages

in length -- bears out counsel’s statement. There was

essentially no testimony regarding the parties’ property. At the

conclusion of the proof, and before argument, the trial court and

counsel engaged in the following colloquy:

THE COURT: Now, I want you to understand one
thing. Nobody has given me anything about
property at all except for one thing, $55,000
--

MR. HYMAN: $58,000.00.

THE COURT: Well, ever what it was, the
retirement thing.

* * *

THE COURT: Well, I am just telling you, that
is the only thing about property that I have
in here.

MR. HYMAN: There is a reason --

3
 THE COURT: This is a child custody case --

MR. HYMAN: That is right. There is a couple
of reasons for that, but --

THE COURT: Okay.

(A break was had.)

MR. HYMAN: Your Honor, please, we have got a
stipulation as to the property settlement.
Thirty days after entry of the final judgment
in this case, Mr. Martin will pay $20,000.00
as a lump sum rehabilitative alimony to Ms.
Martin. And with that understanding, that is
the only --

THE COURT: Well, really a property -- is it a
property division?

MS. PLEMMONS: Well --

MR. HYMAN: The personal property has already
been divided and the real estate has already
been equitably divided, that was sold a year
and a half ago, so that takes care of all the
property issues, I believe.

MS. PLEMMONS: It is going to be paid in full
as soon as the order is final, so I don’t
care if he wants to call it alimony, it
doesn’t matter. That is what it represents.
It is a cash payment for her to have now
versus a QDRO on the retirement.

THE COURT: Well, it might be taxable if you
call it alimony, income tax. You can call it
a property division and it won’t be taxable.
There will be a lot of difference to her.

MR. HYMAN: Well, we can call it -- that is
fine.

As noted later in this opinion, the parties also devoted very

little attention at trial to the subject of alimony, including

the topic of attorney’s fees.

The decree of divorce was entered April 2, 1997. After

reciting that each of the parties is entitled to a divorce on the

ground of inappropriate marital conduct, the decree provides that

4
“[n]o alimony should be awarded to either party, and each party

should bear their own attorney’s fees.” The court noted that it

found

...that [Mother] could match the income of
[Father] by working full time, as he does, if
she really decided to do so, as she has a
much better education than he has.

On the subject of custody, the trial court awarded

joint custody, with an interesting preamble:

Provided the Mother refrains from so many
bicycle trips and membership in the bike
club, then she is the best person to have
primary physical custody of the parties’
minor children during the school year. The
Court specifically finds that because it is
going to be necessary for the mother to work
full time and to also care for the children,
that she would not have the time she has been
devoting in the past to her bicycle hobby,
and still be a good mother; failing this,
then the Court most likely would look
favorably upon making a change. Accordingly,
the parties shall have Joint Custody of the
parties’ minor children..., with the primary
custody and primary residence during the
school year being with the Mother; the Father
shall have the primary custody and primary
residence from the second Monday in June of
each year until the third Sunday in August of
each year. Joint Custody is defined as equal
input by both parties as to decision making
for the children’s general welfare, health,
education and extra-curricular activities.

The final decree then borrows, essentially verbatim, some

fourteen paragraphs from the marital dissolution agreement

repudiated by Husband. The paragraphs are headed and/or deal

with the following subjects: the children’s IRS exemptions,

telephone calls to the children, the exchange of information

5
between the parents, exchanges of the children, transportation

arrangement regarding the children’s visitation, medical

expenses, behavioral injunction, Thanksgiving, Christmas,

Easter/Spring break, special holidays, Mother’s Day, and Father’s

Day.

The decree, in effect, approves the parties’ property

settlement as set forth in the marital dissolution agreement,

with the one modification as announced to the court regarding the

payment of $20,000 to Wife.

II. Standard of Review

In this non-jury case, our review is de novo upon the

record of the proceedings below; but the record comes to us with

a presumption of correctness that we must honor “unless the

preponderance of the evidence is otherwise.” Rule 13(d),

T.R.A.P. See also Hass v. Knighton, 676 S.W.2d 554, 555

(Tenn.App. 1983). Our search for the preponderance of the

evidence is tempered by the principle that the trial court is in

the best position to assess the credibility of the witnesses;

accordingly, such credibility determinations are entitled to

great weight on appeal. Massengale v. Massengale, 915 S.W.2d

818, 819 (Tenn.App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 566

(Tenn.App. 1991). In fact, this court has noted that

...on an issue which hinges on witness
credibility, [the trial court] will not be
reversed unless, other than the oral
testimony of the witnesses, there is found in

6
 the record clear, concrete and convincing
evidence to the contrary.

Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490

(Tenn.App. 1974).

7
 III. Applicable Law

Custody determinations by trial and appellate courts

are subject to a number of statutory provisions. The following

legislative enactments are pertinent to the facts of this case:

T.C.A. § 36-6-1011

(a)(1) In a suit for...divorce..., where the
custody of a minor child or minor children is
a question, the court may...award the care,
custody and control of such child or children
to either of the parties to the suit or to
both parties in the instance of joint custody
or shared parenting, or to some suitable
person, as the welfare and interest of the
child or children may demand,...

(2) Except as provided in the following
sentence, neither a preference nor a
presumption for or against joint legal
custody, joint physical custody or sole
custody is established, but the court shall
have the widest discretion to order a custody
arrangement that is in the best interest of
the child. Unless the court finds by clear
and convincing evidence to the contrary,
there is a presumption that joint custody is
in the best interest of a minor child where
the parents have agreed to joint custody or
so agree in open court at a hearing for the
purpose of determining the custody of the
minor child....

* * *

(d) It is the legislative intent that the
gender of the party seeking custody shall not
give rise to a presumption of parental
fitness or cause a presumption in favor or
against the award of custody to such party;
provided, that in the case of a child of
tender years, the gender of the parent may be
considered by the court as a factor in
determining custody after an examination of
the fitness of each party seeking custody.

* * *

1
The 1997 amendments to T.C.A. § 36-6-101 are not applicable to this
case, as they were enacted after the date of the trial below.

8
 T.C.A. § 36-6-106

In a suit for...divorce,...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.

The paramount consideration in all custody determinations is the

best interest of the child or children. Id. See also Bah v.

Bah, 668 S.W.2d 663, 665 (Tenn.App. 1983). A trial court has

broad discretion in making custody and visitation decrees.

Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn.App. 1996).

9
 A trial court also has broad discretion in determining

whether and to what extent an award of alimony is appropriate.

See T.C.A. § 36-5-101(a)(1). See also Loyd v. Loyd, 860 S.W.2d

409, 412 (Tenn.App. 1993). In making an alimony determination, a

court should be guided by T.C.A. § 36-5-101, particularly the

provisions of T.C.A. § 36-5-101(d)(1). An award of attorney’s

fees is an award in the nature of alimony. Wallace v. Wallace,

733 S.W.2d 102, 110 (Tenn.App. 1987); Dover v. Dover, 821 S.W.2d

593, 595 (Tenn.App. 1991).

Generally speaking, neither a custody nor an alimony

determination will be reversed on appeal unless the record

reflects that the trial court has abused its discretion. Marmino

v. Marmino, 238 S.W.2d 105, 107 (Tenn.App. 1950).

IV. Analysis

A. Joint Custody

Wife argues that the trial court erred in awarding

joint custody. She contends that the award is inappropriate for

a number of reasons: neither party asked for joint custody; the

parties did not agree to joint custody; the parties, because of

the animosity between them, cannot be expected to work together

as is required in a joint custody arrangement; appellate court

decisions of this state have generally disfavored awards of joint

custody in contested cases; Wife was the primary caregiver; and,

finally, that the trial court “abused its discretion in

fashioning a custody and visitation order to punish...Mother for

riding her bicycle.”

10
 T.C.A. § 36-6-101(a)(1) clearly and unequivocally

empowers a court to award joint custody if “the welfare and

interest of the child or children [so] demand.” Id. Contrary

to Wife’s argument, this power is not limited to those situations

where the parties agree on joint custody. Such an agreement is

important in that it gives rise to a statutory presumption that

joint custody is in the best interest of the children -- a

presumption that can then only be overcome by “clear and

convincing evidence.” Id. In the absence of such an agreement,

and even in those cases where neither party asks for joint

custody, a court has the “widest discretion to order a custody

arrangement that is in the best interest of the child,” with no

“preference [or] presumption for or against joint legal custody,

joint physical custody or sole custody.” T.C.A. § 36-6-

101(a)(2). (Emphasis added.)

It is true that this court has expressed reservations

regarding joint custody, see Dodd v. Dodd, 737 S.W.2d 286, 289-90

(Tenn.App. 1987); and Malone v. Malone, 842 S.W.2d 621, 623

(Tenn.App. 1992); however, the holdings in those cases do not

amount, as a matter of law, to a blanket denunciation of joint

custody arrangements. Such a position would be at odds with the

clear language of T.C.A. § 36-6-101(a). In the Dodd and Malone

cases, the court held that, under the facts of those cases, the

evidence preponderated against a finding that joint custody was

in the best interest of the subject children. Wife reads Dodd

and Malone too broadly. It should also be noted that T.C.A. §

36-6-101(a) has been amended since those two decisions to more

11
clearly delineate the power of a trial court to grant joint

custody if the evidence warrants such an arrangement.

As to Wife’s other arguments regarding the trial

court’s joint custody determination, they all address the real

issue before us on this subject: Does the evidence preponderate

against an award of joint custody? We find that it does not.

The only professional who testified in this case was

John Kandilakis, a clinical psychologist who holds a doctorate in

clinical psychology. Dr. Kandilakis saw the parties and their

children pursuant to an agreed order referring them for a custody

evaluation. Dr. Kandilakis was called2 as a witness on behalf of

Wife.

Dr. Kandilakis made the following recommendations:

...essentially, I felt that both parents were
committed and emotionally capable of being
involved in an active way with their
children, so I recommended joint custody.
And by that I meant that they could
participate in the important decisions
involving their children’s lives that related
to education, their religious participation
and their health and medical needs, things
like that.

Q. Doctor, recognizing that even with the
joint custody decree that the children under
Tennessee law are not split fifty/fifty --

A. Right.

Q. -- as far as their time, did you reach a
conclusion as to which of the two parents
should be designated as the primary
residential custodian?

2
He testified by deposition.

12
 A. Yes. I recommended that during the
school year that they remain with the mother,
the mother’s place of residence, with ample
time for the father to also see the children.
Now, that has to be worked out I think in
terms of the particulars, but I felt that
they should continue to have the mother’s
home as the primary place of residence, at
least during the school year. During the
summer, I felt they could alternate, you
know, from, you know, maybe split one week
with the father, one week with the mother.

The witness expressed some reservations as to whether the parties

would cooperate with respect to their joint custody

responsibilities, but thought that a joint custody arrangement

should be given an opportunity to work. He generally found both

parents to be fit custodians, but acknowledged that Wife appeared

to have been the primary caregiver.

On the subject of joint custody, the trial court also

had before it the parties’ marital dissolution agreement of

February 28, 1997, in which they had agreed on joint custody. It

is true that Husband refused to be bound by the written agreement

of February 28, 1997. He did so with the comment, “I believe

everybody has an opportunity to change their mind.” He gave no

other explanation and certainly did not indicate that his

signature was obtained by fraud or legal duress. While the

parties were not bound by the disavowed marital dissolution

agreement, see Harbour v. Brown for Ulrich, 732 S.W.2d 598, 599

(Tenn. 1987), the trial court could certainly consider it as

evidence of what is the appropriate custody decree in this case.

Can it be seriously argued that what the parties thought was in

their children’s best interest as of February 28, 1997, is not

13
some evidence of the appropriate custodial arrangement as of

March 17, 1997, the date of the hearing? We think not.

When the evidence is considered in toto, we cannot say

that it preponderates against joint custody in this case. While

it does appear that Wife was the primary caregiver, this is only

one of the factors set forth in T.C.A. § 36-6-106. We share Dr.

Kandalakis’ misgivings as to whether the parties can or, more

importantly, will work together for the benefit of their

children; however, their animosity in this case is not so severe

as to absolutely militate against joint custody. Hopefully, the

parties will put aside their personal differences in the past in

order to make decisions that are in the best interest of their

children in the future. As an outside entity, we can only hope

so.

While it is obvious that the trial court was concerned

about the effect of Wife’s bicycle riding hobby on the children

-- and we will discuss this further later in this opinion -- we

can find no convincing evidence that this concern motivated the

court to award joint custody in this case. We suspect that Dr.

Kandalakis’ testimony was the main motivating factor.

B. Alimony

While alimony, including attorney’s fees, was clearly

an issue made out in the pleadings, the parties chose to spend

very little time at trial on this subject. As previously

indicated, the main focus in this case was on custody and, to a

much lesser extent, grounds for divorce. The parties spent very

14
little time on alimony-related evidence and, as earlier

indicated, almost no time on the division of their property.

Wife presented an affidavit of income and expenses reflecting a

monthly net income of $1,158.42 and anticipated expenses of

$2,145. Her counsel asked her no questions regarding any of the

18 expense items reflected on the affidavit. Examination by

opposing counsel and the court only focused on her monthly gross

income, which apparently fails to reflect a recent pay raise.

Husband also presented an affidavit touching on his

income and expenses. Excluding an anticipated child support

expense of $935, his expenses are reflected as being $2,408.16;

but this figure includes an expense item of $700 that Husband

admitted he is not currently paying. His affidavit reflects a

monthly net income of $2,378.05. Other than the questionable

$700 item, none of the expense items shown on his affidavit were

inquired into by either counsel.

Wife testified that she had paid her attorney a fee of

$7,500 and court reporters’ charges of $50.

We cannot say, from the meager evidence before us, that

the evidence preponderates against the trial court’s

determination that Wife was not entitled to alimony, including

attorney’s fees. Wife is employed; her income, without her

recent pay raise, but coupled with Husband’s child support

payment of $1,000 per month, gives her a monthly net income of

approximately $2,158.42. Husband is left with $1,378.05 in

income to pay his essentially unchallenged expenses of $1,808.16.

15
Wife testified that she wanted to open a day care center, but

gave no details. The trial court was impressed by the fact that

Wife has a degree in elementary education and hence the ability

to earn more than she is currently earning. She presently drives

a bus for, and teaches in, a headstart program in Knox County,

during nine months of the year. She does not work in the summer.

When the provisions of T.C.A. § 36-5-101(d)(1),

especially the factors set forth at (A) through (L), are

considered in this case, we cannot say that the evidence

preponderates against the trial court’s denial of rehabilitative

alimony for Wife. The trial court heard and saw the witnesses.

It was in the best position to judge the credibility of the

parties when they gave testimony relating to the various alimony

factors.

In view of the fact Wife received $20,000 from the

property settlement, and an undisclosed distribution of assets

from the remainder of the division of property,3 we find that the

evidence does not preponderate against the trial court’s decision

that Husband should not be obligated to pay Wife’s fees. On the

meager record before us, that decision can be justified by Wife’s

lack of need, Husband’s inability to pay, or both.

The issues of rehabilitative alimony and attorney’s

fees are found adverse to Wife.

C. Co-parenting Time and Child Support

3
The decree of divorce simply provides that each party will receive the
property in his/her possession, as earlier divided by them.

16
 As previously indicated, the trial court awarded

Husband primary custody of the children “from the second Monday

in June of each year until the third Sunday in August of each

year.” Because of this, the court decreed that Husband’s child

support obligation would decrease to $250 in the summer months.

He awarded co-parenting time as follows:

CO-PARENTING VISITATION: Co-Parenting
Visitation shall be as follows

WEEKENDS: The Father shall have co-parenting
time with the parties’ minor children during
the school year on weekends from Friday at
6:00 p.m. until Sunday at 6:00 p.m., for five
weekends out of every eight; he is to present
a schedule to the Mother at least fourteen
days prior to the exercise of any co-
parenting visitation period.

SUMMER WEEKENDS: During the months of June,
July and August, the Mother shall have co-
parenting visitation with the parties’ minor
children each weekend during said summer
months, except for two weekends which shall
be reserved to the Father for his vacation
period. The Mother shall also have an
additional vacation period of one full 7-day
week for a vacation time. Each party will
provide to the other at least thirty day
notice of the time they desire for their week
long vacation periods.

Husband contends that his increased time with the children

dictates that he should pay less child support. He relies upon

the Supreme Court decision of Jones v. Jones, 930 S.W.2d 541

(Tenn. 1996), and the unreported decision of this court in the

case of Casteel v. Casteel, 1997 WL 414401 (Tenn.App., July 24,

1997), application for permission to appeal pending. Both

parties complain about their co-parenting times. Wife seeks

reversal of the trial court’s co-parenting scheme, while Husband

17
urges us to maintain his five-out-of-eight-weekends entitlement,

but suggests that the children should reside primarily with him

during the school year.

Husband was given visitation with his children five out

of every eight weekends during the school year despite his

testimony that he has to work on some weekend days. On the other

hand, Wife’s time with the children on weekends during the school

year is limited to three out of every eight weekends even though

she testified that she does not work any weekend days.

Husband was given residential custody of the children

during the summer months even though he testified that he plans

to be off from work in the summer for only three weeks. On the

other hand, Wife’s time with the children in the summer under the

court’s judgment will be limited despite the fact she does not

work during the summer months.

Weekends during the school year and the summer period,

will be important times for the parent-child relationship in this

case because the children are not in school during these periods.

This is in contrast to the Monday - Friday time frame during the

school year when the bulk of the children’s time is devoted to

their schooling. While Wife is the residential custodian of the

children during this time, her involvement with them is limited

by their school schedule and her work schedule. The court’s

decrees regarding weekend and summer visitation, while appearing

to be fair, actually give Husband a disproportionate share of the

children’s free time.

18
 We find that the evidence preponderates against the

trial court’s decision on co-parenting times and the physical

custody of the children in the summer. We vacate so much of

paragraph 4 of the decree of divorce as provides that the primary

custody and primary residence of the children shall be as

follows:

...with the primary custody and primary
residence during the school year being with
the Mother; the Father shall have the primary
custody and primary residence from the second
Monday in June of each year until the third
Sunday in August of each year.

In lieu of the vacated portion of the decree, we find and hold

that the primary custody and primary residence of the children

shall be with Wife throughout the year. We hasten to add that

our decision should not be read as a blanket condemnation of

splitting custody between the school year and the summer months.

In some cases it may well be the appropriate judgment; we simply

hold that it is not appropriate in this case.

In addition, we vacate that portion of the trial

court’s decree regarding co-parenting visitation, weekends, and

summer weekends as earlier quoted in this opinion. In lieu of

the vacated portion, we substitute the following provision from

the parties’ marital dissolution agreement:

CO-PARENTING: The Father shall have
reasonable and liberal co-parenting
visitation privileges with the parties’ minor
children at such times to include, but shall
not be limited to, the following schedule:

19
 WEEKENDS: The Father shall have co-parenting
time with the parties’ minor children on
alternating weekends, beginning on Friday at
7:00 p.m. until Sunday at 7:00 p.m. Whenever
school is in session (in the district where
the minor children reside) then the Father
shall pick up the parties’ minor children
directly from school (at dismissal) on
Fridays, and shall ensure the children’s
return to school (on time) on the following
Monday (or Tuesday, if the Monday is a school
holiday). Beginning on September 1, 1997,
then the Father shall be allowed to keep the
children until school begins on Tuesday
(while ensuring that they go to school on
Mondays).

WEEKDAYS: the Father shall have co-parenting
time with the parties’ minor children on
alternate Wednesdays from 6:00 p.m. to 9:00
p.m.

* * *

SUMMERS: The Father shall have co-parenting
time with the parties’ minor children for a
period of six weeks each summer, to be taken
in two three-week segments, with the Mother
having the parties’ minor children during the
period between the two three-week segments
for a period of at least 14 consecutive days.
The Father shall notify the Mother by the
first day of May of each year as to the time
during which he wishes to exercise his summer
co-parenting time.

Again, we recognize that the parties are not bound by the marital

dissolution agreement; however, we believe that the above

provisions are in the best interest of the children and more in

keeping with the work and school schedules of the parties and

their children.

On the subject of the Wife’s bicycle hobby, we find

that the evidence preponderates against the trial court’s finding

and holding on this subject, as expressed in the divorce decree.

The oldest child testified that his mother had never left the

20
children alone to go bike riding. Certainly, there was no

evidence that the children had been adversely affected by this

wholesome activity. It is true that a neighbor testified that,

on numerous occasions, she saw Wife leave with her bicycle

strapped to her car and that she did not return until after

midnight. It was the witness’ opinion that she had left the

children “home alone” on these occasions in order to pursue her

bicycle hobby. This testimony flies in the face of the son’s

testimony and is contrary to Wife’s testimony. Even

acknowledging the trial court’s favored position with respect to

credibility, we cannot ignore the son’s testimony. He had

absolutely no incentive to lie; in fact, he testified that he

loved both of his parents and expressed no preference as to the

parent with whom he lived. Accordingly, we hereby vacate so much

of the divorce decree as provides as follows:

Provided the Mother refrains from so many
bicycle trips and membership in the bike
club, then she is the best person to have
primary physical custody of the parties’
minor children during the school year. The
Court specifically finds that because it is
going to be necessary for the mother to work
full time and to also care for the children,
that she would not have the time she has been
devoting in the past to her bicycle hobby,
and still be a good mother; failing this,
then the Court most likely would look
favorably upon making a change.

In view of our holding on primary custody in the

summer, we vacate so much of the trial court’s decree as reduces

Husband’s child support obligation in the months of June through

August to $250. Husband will pay child support of $1,000 per

month, January through December.

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 Except as modified by this opinion, the decree of

divorce is affirmed. This case is remanded to the trial court

for the entry of an order memorializing the changes set forth

herein. Costs on appeal are taxed half to each party.

__________________________
Charles D. Susano, Jr., J.

CONCUR:

______________________
Herschel P. Franks, J.

______________________
Don T. McMurray, J.

22