Gaskill v. Gaskill

• Decision Date: 09 August 1996
• Citation: Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. App. 1996)
• Parties: Willa Jean GASKILL, Plaintiff/Appellee, v. Steven Wayne GASKILL, Defendant/Appellant.
• Court: Tennessee Court of Appeals

Page 626

936 S.W.2d 626

Willa Jean GASKILL, Plaintiff/Appellee, v. Steven Wayne GASKILL, Defendant/Appellant.

Court of Appeals of Tennessee Middle Section.

Aug. 9, 1996 Permission to Appeal Denied by Supreme Court Dec. 2, 1997.

Mark A. Rassas, Rassas & Rassas, Clarksville, for appellant.

Kevin C. Kennedy, The Kennedy Law Firm, Clarksville, for appellee.

OPINION

KOCH, Judge.

This appeal involves the custody of a four-year-old girl. After slightly more than two years of marriage, the mother filed a divorce petition in the Chancery Court for Montgomery County requesting custody of the parties' only child. Following a bench trial, the trial court declared the parties divorced and awarded custody to the mother. The husband asserts on this appeal that he is comparatively more fit than the mother to have custody. We agree and, therefore, reverse the trial court's award of custody to the mother.

I.

Willa Jean Gaskill and Steven Wayne Gaskill met at a bar near Fort Dix in New Jersey. Mr. Gaskill was a 22-year-old serviceman, and Ms. Gaskill was a 25-year-old single mother with a son who was approximately three years old. They began seeing each other, and their daughter, Briahna, was born in March 1992. Mr. Gaskill was discharged from the Army a few months later, and the couple moved to Florida where they were married in June 1992.

The couple lived near Orlando with Mr. Gaskill's mother immediately after their marriage. They moved into their own apartment three months later and shortly thereafter moved to Albany, Georgia where Mr. Gaskill found work as an industrial electrician. He worked at several different jobs because the work required long hours and the projects were of short duration. Ms. Gaskill also worked outside the home but primarily spent her time taking care of her two young children.

The parties' relationship deteriorated, and they separated in September 1994. Mr. Gaskill moved back to Florida to be near his family. He found work managing a Radio Shack store and moved into a condominium that he now shares with his girlfriend who is a full-time nursing student. Instead of moving back to New Jersey where her parents reside, Ms. Gaskill and her two children moved into a trailer park in Clarksville to be near a high school girlfriend. She found work as a convenience store clerk on the evening and night shift and frequently left her children with male friends while she worked.

Ms. Gaskill resisted Mr. Gaskill's attempts to visit his daughter because she was concerned that Mr. Gaskill and his family would try to take the child back to Florida. Apart from one brief visit in February 1995, Mr. Gaskill did not see his daughter until July 1995 when the trial court granted him visitation in Florida for one month. Soon after picking up his daughter, Mr. Gaskill noticed that she was experiencing pain when she urinated. A pediatrician confirmed that the child was suffering from vaginitis and prescribed medication for the problem. According to Mr. Gaskill, the vaginitis was "90 percent gone" when he returned his daughter to her mother.

The child developed a case of head lice in August 1995 soon after she returned to Clarksville. Ms. Gaskill blamed the problem on Mr. Gaskill and claimed that her daughter returned from Florida "with a head full of lice." Mr. Gaskill insisted that his daughter did not have head lice while she was in Florida and stated that there were no reports of head lice among her Florida playmates. Ms. Gaskill obtained medicated shampoo for her daughter and stated at trial that she was treating her daughter's hair and bedding at least once a week "because the eggs or nits ... can reinfest."

Mr. Gaskill had overnight visitation with his daughter two days before the divorce hearing. He learned at that time that she was again complaining about pain when she urinated and also noticed several suspicious bruises on her legs, arms, and abdomen. Dr. Quentin Humberd, a board-certified pediatrician, examined the child on the day before trial. He confirmed that her vaginal area was irritated and, when informed that she had been treated for vaginitis, stated that he would not have expected the condition to come back by itself. He attributed the reoccurrence of the infection to inappropriate bathing, lack of general cleansing or hygiene, or physical touching or fondling abuse.

Dr. Humberd also discovered that the child still had a moderate number of nits ¹ in her hair. He testified at trial that he would not expect a child to still have nits after being treated with anti-lice shampoo for two months because the "treatment itself is very effective." He also explained that when one of his patients required treatment for head lice more than twice, he called the parents in for a talk with the clinic staff "because there is obviously a lapse in communication or treatment."

Dr. Humberd's examination also confirmed the existence of suspicious bruises on the child's legs. Based on their color, he estimated that they had been inflicted between two and five days before his examination. Their location and distribution also made him suspicious that they were not the result of normal childhood but rather were intentionally inflicted. ² The child's condition was reported to the Department of Human Services as required by state law when Mr. Gaskill could not explain how his daughter had been bruised. ³

Despite its concern about Ms. Gaskill's parenting skills, the trial court determined that Mr. Gaskill had failed to prove that Ms. Gaskill was an unfit parent. Accordingly, it awarded Ms. Gaskill custody and directed Mr. Gaskill to pay $220 per month in child support. The trial court requested the parties to work out a visitation plan but invited them to submit proposals if they were unable to agree. Accordingly, the October 13, 1995 divorce and custody order left the issue of visitation open. The trial court mailed the parties a letter on October 24, 1995 containing its decision with regard to Mr. Gaskill's visitation rights, but an order embodying this decision was not entered until January 4, 1996. ⁴

II.

Divorce affects children profoundly by undermining their sense of stability and well-being. Thus, custody 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 needs. 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 third-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).

Courts customarily devise initial custody and visitation arrangements by engaging in a "comparative fitness" analysis which requires them to determine which of the available custodians is comparatively more fit than the other. In re Parsons, 914 S.W.2d 889, 893 (Tenn.Ct.App.1995); Bah v. Bah, 668 S.W.2d at 666. In undertaking this analysis, the courts must understand that parents, whether married or not, are human beings, each with his or her own virtues and vices. Sherman v. Sherman, App. No. 01-A-01-9304-CH-00188, slip op. at 9, 1994 WL 649148 (Tenn.Ct.App. Nov. 18, 1994) (No Tenn.R.App.P. 11 application filed). Therefore, the courts should not measure either parent against the standard of perfection. Bah v. Bah, 668 S.W.2d at 666; Edwards v. Edwards, 501 S.W.2d 283, 290-91 (Tenn.Ct.App.1973).

Since stability is important to any child's well-being, the courts have emphasized the importance of continuity of placement in custody and visitation cases. Taylor v. Taylor, 849 S.W.2d at 328; Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn.Ct.App.1991). Continuity, however, does not trump all other considerations. Depending on the facts, a parent who has been a child's primary caregiver may not necessarily be comparatively more fit than the other parent to have permanent custody of the child.

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, 685 (Tenn.Ct.App.1995). Thus, we review these decisions de novo on the...