Lentz v. Lentz, C

• Decision Date: 06 October 1986
• Docket Number: No. C,C
• Citation: Lentz v. Lentz, 717 S.W.2d 876 (Tenn. 1986)
• Court: Tennessee Supreme Court
• Parties: Teresa Ann LENTZ, Appellee, v. Gary Benton LENTZ, Appellant. A. 123 717 S.W.2d 876

Page 876

717 S.W.2d 876

Teresa Ann LENTZ, Appellee, v. Gary Benton LENTZ, Appellant.

No. C.A. 123

717 S.W.2d 876

Supreme Court of Tennessee at Knoxville.

Oct. 6, 1986.

Rehearing Denied Nov. 10, 1986.

A. Thomas Monceret, William C. Cremins, Knoxville, for appellant.

Judith R. Whitfield, DePersio & Whitfield, Oakridge, for appellee.

OPINION

COOPER, Justice.

Teresa Lentz brought this action seeking a decree of divorce from Gary Lentz, primarily on the ground of cruel and inhuman treatment, and seeking custody of the three minor children born during the period of marriage. Gary Lentz filed a cross-complaint seeking a decree of divorce on the ground of adultery, and also seeking custody of the children. During the proceedings the parentage of the youngest child became an issue. At the insistence of Mr. Lentz, a blood-grouping test was made which showed that Mr. Lentz was not the father. The chancellor granted Mr. Lentz a decree of divorce and custody of the two oldest children. Custody of the youngest child was left with Mrs. Lentz under the belief that the chancery court is without jurisdiction to award custody of a child to anyone other than the mother, where it is proven that the husband is not the father of the child. We agree with the giving of custody of the youngest child to Mrs. Lentz, but do so on the basis that it is in the manifest best interest of the child, not on the basis that the chancery court does not have jurisdiction to award custody of the child.

Chancery court has jurisdiction of divorce actions, and has the authority to decree custody of minor children under the control of either of the parties. The grant of custody can be to one or both of the parties, or to some suitable agency or person, as the welfare and interest of the minor children may require. See T.C.A. 36-6-101. In divorce proceedings involving the protection of minor children, the court sometimes is called upon to resolve a factual issue with respect to paternity, but a finding that the husband is not the father of one of the children born during the marriage period does not affect the jurisdiction of chancery court to protect the child. While the parentage of a child is a major, and often the determinative, factor in deciding who shall have custody of the child, the overriding issue is what is in the best interest of the child. See Bryan v. Bryan, 620 S.W.2d 85, 87 (Tenn.App.1981); Bevins v. Bevins, 53 Tenn.App. 403, 383 S.W.2d 780 (1964). See also Logan v. Logan, 26 Tenn.App. 667, 176 S.W.2d 601, 603 (1943), wherein it is pointed out that:

All our cases recognize that the welfare of the child is the paramount consideration, and that ordinarily a child's welfare will be better fostered with its parents than with other persons.

Support of the child, if custody is placed with someone other than the natural parent, is the...