1

FILED

October 2, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

REX M. MASSENGALE, SR., ) C/A NO. 03A01-9503-CV-00086

) HAMILTON COUNTY CIRCUIT COURT

Plaintiff-Appellant,)

)

)

v. )

) HONORABLE ROBERT M. SUMMITT,

) JUDGE

)

)

AUDREY L. MASSENGALE )

(WILLIAMSON), )

)

Defendant-Appellee. ) AFFIRMED AND REMANDED

A. CHRISTIAN LANIER, Chattanooga, for Appellant

PHILLIP A. LAWRENCE of POOLE, LAWRENCE, THORNBURY, STANLEY &

MORGAN, Chattanooga, for Appellee

O P I N I O N

Sus a no, J .
1

The child's mother married Scott Williamson on November 18, 1994.

2

Since the issues before us pertain directly to the parties' child, the

parties will be referred to in this opinion as "Mother" and "Father."

2

This is a post-divorce proceeding involving the custody

of the parties' one minor child, Rex M. Massengale, Jr., whose

date of birth is September 20, 1985. The parties were divorced

by the "Final Judgment and Decree" of the Dade County, Georgia,

Superior Court entered on October 19, 1993. That document

approved and adopted the parties' agreement that the child's

custody should be vested with his mother, Audrey L. Williamson1

(Mother2). The instant controversy was initiated by the child's

father, Rex M. Massengale, Sr. (Father), on November 16, 1994,

not quite 13 months after the divorce, when he filed a petition

to change the child's custody. After a bench trial, the trial

court dismissed the Father's petition. Father appeals, raising

two issues:

1. Was there a sufficient change in

circumstances to warrant a change

in the custody of the parties'

child?

2. Should the trial court have ordered

that the parties submit to drug

testing?

In order to justify a change in a custodial

arrangement, there must be "such a change in circumstances as

will directly affect the welfare of the minor." Dailey v.

Dailey, 635 S.W.2d 391, 393 (Tenn. App. 1981). As in all non-
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jury cases, a trial court's determination on this issue is

reviewed by us de novo; however, the record developed below comes

to us accompanied by a presumption of correctness that we must

honor unless the evidence preponderates against the findings of

fact supporting the lower court's judgment. Hass v. Knighton,

676 S.W.2d 554, 555 (Tenn. 1984). In making our de novo review,

we "do[] not pass on the credibility of witnesses." Bowman v.

Bowman, 836 S.W.2d 563, 567 (Tenn. App. 1991). "Credibility is

an issue for the trial court who saw and heard the witnesses

testify and is therefore in the premier position to determine

credibility (citation omitted)." Id.

We have carefully reviewed the evidence in this case. 

The testimony of the witnesses tending to support the Father's

petition for change of custody was sharply disputed by the

testimony of the Mother and the witnesses called by her. These

conflicts required the trial judge to evaluate the credibility of

the witnesses who appeared before him. He resolved these

credibility issues in favor of the Mother. Not having seen these

witnesses in person, we are not in a position to say that he was

wrong in his assessment of the witnesses' credibility. As we

have previously indicated, credibility of the various witnesses

is for the trial court.

The main thrust of the Father's petition, although

certainly not the only basis, was the Mother's alleged drug use. 

On this point, the Father relied heavily on the testimony of his

son, who expressed his preference that he be allowed to live with

his father. The child was nine years old at the time of the
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hearing. The trial court received the child's testimony

regarding his preference although he was not required to do so,

given the child's age. See T.C.A. § 36-6-102. With respect to

the child's testimony on the subject of the Mother's drug use,

that testimony was circumstantial in nature. It did not impress

the trial judge:

And he's a smart boy and he knows what to say

to try to get custody changed, he's that

intelligent and I just couldn't believe

everything he said.

I don't think anything happened over there

that's been proven by the preponderance of

the evidence. I realize that it gets us all

excited that we don't want this to happen. 

If I thought it were happening I certainly

would do something and I certainly would

charge her not to ever do any of this or stay

around anybody like this. This boy is going

to be there and he's intelligent but I just

can't believe that what he would infer happen

did happen without more. I mean all adults

are denying, there was no one that came in

here that I recall adult that told there was

anything improperly going on as far as drugs.

The trial court did not find the child's circumstantial drug use

testimony to be credible. We do not know whether it was or not--

we were not present at the hearing. Again, we emphasize that we

must defer to Judge Summitt's assessment of credibility.

Considering the importance of credibility in this case,

we cannot say that the evidence preponderates against the trial

court's findings of fact supporting its conclusion that there had

not been a sufficient change in circumstances to justify a change

in custody.
3

The motion was subsequently reduced to writing and filed in the trial

court.

5

On the second day of a two-day hearing, Father orally3

moved the court to enter an order requiring the parties to submit

to drug tests at the expense of Father. The trial court denied

his request. We do not believe that a sufficient predicate was

demonstrated to justify the ordering of drug tests. There was no

direct testimony that Mother had used drugs since the parties'

divorce. The testimony alluded to by Father to justify drug

tests, i.e., Mother's loss of weight, the child's testimony that

he found a marijuana-like substance in their house, and his

testimony that Mother took bags of "sugar like stuff" to a back

room, did not require the trial court to order drug tests. 

Father's motion for drug tests addressed itself to the sound

discretion of the trial court. We cannot say that it abused that

discretion. See Tenn. R. Civ. P. 35; Cf. Walker v. Walker, 656

S.W.2d 11, 16 (Tenn. App. 1983).

The judgment of the trial court is affirmed. This case

is remanded to the court below for the collection of costs

assessed there and such other proceedings as may be appropriate,

consistent with this opinion. Costs on appeal are taxed to the

appellant and his surety.

_________________________________

Charles D. Susano, Jr., J.

CONCUR:
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_______________________________

Herschel P. Franks, J.

_______________________________

Don T. McMurray, J.