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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
FEBRUARY 16, 2005 Session LORRIE LISA CROWE v. KYLE ERIC CROWE
Direct Appeal from the Chancery Court for Weakley County No. 16,869 R. Lee Moore, Jr., Chancellor

No. W2003-02864-COA-R3-CV - Filed July 14, 2005

This appeal arises out of a divorce. The trial court awarded the mother a divorce on the stipulated ground of adultery, named the mother primary residential parent of the parties' youngest child, named the father primary residential parent of the parties' second oldest child by consent of the parties, set child support payments for both parties, divided the marital property, awarded mother alimony in futuro, and denied the mother's request for attorney's fees. The mother appeals the denial of her request for attorney's fees, and the father cross-appeals the naming of the mother as the primary residential parent of the parties' youngest child, the child support amount set for the mother, the division of marital property, and the award of alimony in futuro. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part and Remanded ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY M. KIRBY , J., joined. L. L. Harrell, Jr., Trenton, TN, for Appellant Larry Rice, Laura D. Rogers, Memphis, TN, for Appellee

OPINION Facts and Procedural History Kyle E. Crowe ("Father" or "Appellee") and Lorrie L. Crowe ("Mother" or "Appellant") were married on December 22, 1981, in Gibson County. Father had one previous marriage, and this was Mother's first marriage. The parties had three children of the marriage: Charles Adam Crowe (d.o.b. 2/24/1984) ("Adam"), Kyle Jacob Crowe1 (d.o.b. 6/7/1986) ("Jacob"), and Sarah Ashley Elisabeth Crowe (d.o.b. 9/3/1991) ("Sarah"). At the time of trial, Mother was forty-two years old and Father was forty-six years old. During the 1980's, Mother worked as a secretary and as a retail management recruiter. Mother eventually began working independently as a retail management recruiter out of her home. In 1987, Mother obtained her college degree from the University of Tennessee at Martin in secondary education with an emphasis on English. Subsequently, she taught in Brownsville and Union City, Tennessee. In October 1992, Mother was in a plane accident wherein her plane hit a tree while landing at the airport in Obion County. This accident resulted in several injuries to Mother including a broken neck causing paralysis from the chest down, a broken tailbone, and face disfigurement requiring plastic surgery. Since then, Mother has required the insertion of two metal rods along her spinal column and has experienced pressure sores because of her paralysis. She has retained her mobility through the use of a wheelchair and scooter and is able to drive her Dodge Caravan, which is wheelchair accessible. Additionally, Mother is now able to perform most household chores with little difficulty, except for vacuuming and sweeping floors. After the accident, Mother entered the Cane Creek rehabilitation facility. She worked parttime for Father, performing secretarial functions. Mother also worked part-time as a teacher at an exit-option program in Dresden, Tennessee, in 2000. As of the hearing on November 18, 2002, Mother held a temporary teaching position which had an annual salary of approximately $29,000.00 per year. She requires two courses to make her teaching certificate current. At the beginning of the marriage, Father attended law school at the University of Memphis, formerly Memphis State University. After completing law school, Father began working for the Hill, Boren & Strickland law firm while Mother worked as a retail management recruiter. Then, for approximately one year, Father worked for another attorney, Jeff Garrety. In the later 1980's, Father joined the United States Marine Corps but was honorably discharged shortly afterward. While Father was in the Marine Corps, Mother, Adam, and Jacob moved in with her parents in Dyer, Tennessee, and when Father was discharged from the Marine Corps, he also lived with Mother's parents for a short time. After moving out of Mother's parents' home, Mother's parents helped the parties purchase a home in Martin, Tennessee. Since 1996, Father has worked on his own as an attorney. The parties stipulated that Father's gross income per month is $20,000.00.
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The parties entered a consent order naming Father the primary residential parent of Kyle Jacob Crowe. -2-

Father had an affair with a secretary at his office, Amy Turnbow ("Turnbow"), and, as a result, Turnbow and Father have a daughter, Katie, born out of wedlock. Father has no intention of marrying Turnbow, and Turnbow still works for Father. The parties separated in October 2000 when Mother learned of the affair with Turnbow. Mother continued to live in Martin, Tennessee, until about August 2002. At that point in time, she moved to Dyer, Tennessee, with their daughter, Sarah, into a new home, which Mother's father purchased. Though the testimony indicated that Sarah was well-established in Martin, by all accounts, she has also thrived in Dyer, making good grades in school, having many friends including a first cousin, Hope, who is almost Sarah's age, and being involved in cheerleading, softball, and piano. In November, 2000, Mother filed a complaint for divorce, alleging grounds of irreconcilable differences, inappropriate marital conduct, and adultery. Father filed his answer and countercomplaint, alleging inappropriate marital conduct. After a hearing on the issue of naming a primary residential parent for Sarah, the trial court awarded Mother an absolute divorce based on the stipulated ground of adultery, designated Mother the primary residential parent of Sarah, and designated Father the primary residential parent of Jacob. After hearings on the issues of marital property, alimony, child support, and attorney's fees, the trial court divided the marital property, awarded Mother alimony in futuro in the amount of $3,500.00 per month, set Mother's child support obligation at $405.00 per month and Father's child support obligation at $2,100.00 per month, and denied Mother's request for attorney's fees. After the trial court denied both parties' post trial motions, Mother filed an appeal with this Court, presenting the following issue for our review: I. Whether the trial court erred when it denied Mother an award of attorney's fees and necessary court expenses.

Father filed a cross-appeal and presents the following issues for our review: II. III. IV. V. Whether the trial court erred in naming Mother the primary residential parent of Sarah; Whether the trial court erred in making an equitable distribution of the marital property; Whether the trial court erred when it ordered Father to pay Mother alimony in futuro in the amount of $3,500.00 per month; and Whether the trial court erred when it calculated Mother's child support obligation for Jacob.

For the following reasons, we affirm in part, reverse in part, and remand for further proceedings. Standard of Review This Court has previously articulated the standard by which we review decisions of custody and visitation:

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[A] determination of the best residential placement for a child must turn on the particular facts of each case. Nicely v. Nicely, No. M2001-02182-COA-R3-CV, 2003, Tenn. App. LEXIS 214, at *12 (Tenn. Ct. App. Mar. 14, 2003). When we review a determination of child custody by a trial court, we are mindful of the following: Custody and visitation determinations often hinge on subtle factors, including the parents' demeanor and credibility during the divorce proceedings themselves. Accordingly, appellate courts are reluctant to second-guess a trial court's decisions. Trial courts must be able to exercise broad discretion in these matters, but they still must base their decisions on the proof and upon the appropriate application of the applicable principles of law. D v. K, 917 S.W.2d 682, slip op. at 8-9 (Tenn. Ct. App. 1995), perm. app. denied (Tenn. Feb. 5, 1996). Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996); see also Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). "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." Rice v. Rice, 983 S.W.2d 680, 682 (Tenn. Ct. App. 1998) (citations omitted); see also Adelsperger, 970 S.W.2d at 485. "[W]e decline to disturb custody decisions unless they are based on a material error of law or the evidence preponderates against them." Adelsperger, 970 S.W.2d at 485 (citations omitted). Mueller v. Mueller, No. W2004-00482-COA-R3-CV, 2004 Tenn. App. LEXIS 770, at *8-9 (Tenn. Ct. App. Nov. 17, 2004). This Court has also previously stated the standard governing our review of child support issues: Child support issues are entrusted to the trial court's discretion. Campanali v. Campanali, 695 S.W.2d 193, 196 (Tenn. Ct. App. 1985). This discretion is now circumscribed by the child support guidelines promulgated by the Tennessee Department of Human Services pursuant to Tenn. Code Ann.

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