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IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

FILED
August 24, 1999 Cecil Crowson, Jr. Appellate Court Clerk

THOMAS MICHAEL HALE, III,

) ) Plaintiff-Appellee, ) ) ) ) ) v. ) ) ) ) ) ) TAMMY RENEE HALE, ) ) Defendant-Appellant.)

C/A NO. 03A01-9809-PB-00284

APPEAL AS OF RIGHT FROM THE CUMBERLAND COUNTY PROBATE AND FAMILY COURT

HONORABLE JAMES A. BEAN JUDGE

For Appellant MICHAEL W. BINKLEY Nashville, Tennessee (Appeal Only)

For Appellee CRAIG P. FICKLING Ronald Thurman & Associates Cookeville, Tennessee

O P I N IO N

AFFIRMED AND REMANDED 1

Susano, J.

This is a divorce case.

The trial court granted Thomas

Michael Hale, III ("Father") a divorce by judgment entered January 24, 1997. At the time of the divorce, the defendant, For this reason, the

Tammy Renee Hale ("Mother"),1 was pregnant.

issues of the unborn child's custody and related matters were reserved in the divorce judgment "by the parties['] mutual agreement." On April 18, 1997, Mother gave birth to Vadah Marie Following a hearing on July 13, 1998, the trial

Hale ("Vadah").

court awarded Father sole custody of Vadah with specified visitation rights being awarded to Mother. She appeals, urging

one issue, involving two concepts, that she states as follows:

Whether the record preponderates against the trial court's factual finding that the father is more stable than the mother (and hence a comparatively better-fit custodian for the infant daughter) and whether the trial judge abused his discretion in awarding custody to the father based upon all relevant factors.

I.

General Factual Overview

The parties met in Nashville in 1993.

Mother had moved

there2 in 1987 following her graduation from high school in Rome, Georgia. Father was also living in Nashville, but was originally He lived in Nashville for three years, before

from Crossville.

moving back to Crossville following the parties' marriage in October, 1995.

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In the divorce judgment, Mother was restored to her maiden name of

Kemp. Mother was born in Nashville. Her family subsequently moved to Rome, Georgia. She has many relatives in the Nashville area.
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The parties experienced problems in their marriage and originally separated at a time not clearly identified in the record.3 While the parties were separated, Father learned, in The parties resumed

July, 1996, that Mother was pregnant.

cohabitation, apparently in Crossville, for two weeks, after which Mother once again removed herself from the marital residence and returned to Nashville. seven months. She was there for six or

The parties were divorced on January 20, 1997.

Two weeks after the divorce, the parties got back together in Crossville. Mother was still pregnant. According to

Father, the parties remained together this last time "until three or four months after the baby was born."

Mother and Vadah moved to an apartment on Old Hickory Boulevard in Nashville in October, 1997. In June, 1998,

approximately a month before the final custody hearing on July 13, 1998, Mother and Vadah moved in with Mother's parents in Rome. Her father operates a Lee Fried Chicken franchise. She

testified that she had worked a few days a week at the restaurant since returning to Rome.

Father -- Thomas Michael Hale, III -- had moved to Huntsville, Alabama, from Crossville two weeks before the most recent hearing below. law. He moved there to work for his brother-in-

He testified that he "book[ed] golf vacations into He further testified that prior to

Crossville and Huntsville."

making the move to Huntsville, he had traveled back and forth
As can be seen from the dates that are known, the parties lived together as husband and wife for less than a year.
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between Crossville and Huntsville for four or five months in connection with his new job. He lives with his sister, his

employer/brother-in-law, and their daughter in a three-bedroom house near Huntsville. Prior to leaving Crossville, Father had

worked at a golf course there.

II.

Applicable Law

Our review of this non-jury case is de novo upon the record of the proceedings below; however, that record comes to us with a presumption that the trial judge's factual findings are correct. Rule 13(d), T.R.A.P. We must honor this presumption

unless we find that the evidence preponderates against those findings. 1984). Id.; Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.

Our de novo review is subject to the well-established principle that the trial judge 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).

A trial court has broad discretion regarding a custody determination.4 Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn.App.

1997); Marmino v. Marmino, 238 S.W.2d 105, 107 (Tenn.App. 1950);

Mother attempts to argue that this is a modification case rather than an original award of custody, citing an alleged oral understanding between the parties -- not memorialized in a signed writing -- that Mother would have sole custody. We disagree. The judgment now before us on this appeal is the original final award of custody in the divorce suit.

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Varley v. Varley, 934 S.W.2d 659, 665 (Tenn.App. 1996).

We will

not disturb such a determination unless the record reflects an "erroneous exercise of that discretion." S.W.2d 739, 744-45 (Tenn.App. 1989). Mimms v. Mimms, 780

"Absent some compelling reason otherwise, considerable weight must be given to the judgment of a trial court in a divorce proceeding in respect to the credibility of the parties and their suitability as custodians." Id. at 744.

There are "[n]o hard and fast rules...for determining which custody and visitation arrangement will best serve a child's needs." (Tenn.App. 1996). Gaskill v. Gaskill, 936 S.W.2d 626, 630 A custody determination is "factually driven"

and "requires the courts to carefully weigh numerous considerations." Id. The overriding consideration is the best Id. See T.C.A.

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