### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
STEPHEN PATTERSON v. SU SAN A. PATTERSON (YONA VICH)
An Appeal from the Chancery Court for Shelby County No. D25622-I; The Honorable Walter L. Evans, Chancellor

No. W1999-01544-COA-R3-CV - Decided June 1, 2000

This appeal arises from an order of the Chancery Court of Shelby County which changed

primary ph ysical custody of th

e parties’ minor c

hildren to the Mothe

r. The Father a

ppeals from th

e tria l court’s decision. Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

H IGHERS , J., delivered the opinion of the court, in which C RAWFORD , P.J., and F ARMER , J., joined. John B. Philip, CRISLIP, PHILIP & ASSOCIATES, Memphis, for Appellant, Stephen Patterson Stephen R. Leffler, LAW OFFICE OF STEH PEN R. L EFFLER, P.C., Memphis, for Appellee, Susan A. Patterson (Yonavich)
OPINION Stephen Patterson appeals fromthe decision of the Chancery C

ourt of Shelby

County which changed p ri mary physical custody of his two minor children to his former wife. For the reasons stated he

rein, we rever

se the decision of

the trial court. I. Facts and Procedural History Stephen Patterson and Susan A. Patterson were divorced p ursuant to a Final Decree of Divorce entered on September 11, 1995. At the time of the divorce proce edings, M s. Patterson residedin Metropolis, I

llinois. Ms. Patterson did notcontest the divorce nor the decision to give Mr. Patterson custody of the parties’ two minor children.

Ms. Patterson appare

ntly had no contact with her children for a period of time following her divorce. In or around M

arch of 1997, Ms.

Patterson, then having moved to Houston, Texas, sought and obtained limited visitation rights with her children. Her visits were limited to once a month and took place in Memphis. Her visitation rights were subsequently expanded to allow her to take the children out of state on certain holidays.1 In making his oral ruling at the heari ng of the matter, the Chance llor stated: “It’s a clo se case. T he Court w ill not make a final decision. The Court will leave custody as it is on a temporary basis and ask that you come back in one year.”

2 Subsequent

to thi s order, on

September 25,

1998, Stephen

Patters on remarri

ed. For purpos

es of clarity, his current wife will

be referred to by her name, Angela Patterson.
3 The 1999 hearing was conducted before a different chancellor than the 1998 hearing.
2 On January 16, 1998, Mr. Patterson filed a petition for contempt in the Chancery Court of Shelby County alleging that Ms. Patterson had failed to comply with the provisions of the Final Decree of Divorce. Specifically, he alleged th at Ms. Patterson had failed to pay child support as ordered in the final decree. Ms. Patterson answered the complaint and filed a counte

r-complaint in which she asked the court to give her custody of the parties’ children, c laiming that such a change
was in the best

interests of the children. As grounds for the change, Ms. Patterson alleged that Mr. Patterson had a

live-in girlfriend and her presence indicated a “contempt for the prior orders” of the court, as well as being indicative of Mr. Patterson’s “inability to control his behavi

or around his minor children.”

The petition for contempt and the counter-complaint seeking a change in custody were heard
on June 4, 1998. The tria l court issued an or

der in which the Pe

titio n for Change of Custody was denied based on the finding that no material change in circumstances existed. However, the court also determined that th

e matter should be

continued for one

year, at w

hic h tim e the question of custody would be reviewed. 1 Th e order al so stipulated that Mr. Patterson was not to have any female guest in

his home past 10:00 P.M. 2

The matter came to bere-heard in June of 1999, whereupon t he trial cou rt ordered a c hange of cus tod y. 3 The court found that it was in the best interests of the children for primary phy sical custody to be changed from

Mr. Patterson to Ms.

Patterson. In its oral ru ling follo wing the hear ing, the court stated:

The question iswhat has happene d since that time

[1998 hearing]? It appears that Mr. Patterson and t

he lady with

whom the Chancello

r had referre

d to, Ms. Angela, married in September of ‘98, and apparently Ms. Patterson moved into the residence with her t w o children. The new Ms. Patterson has two minor children, neither of whom is receiving child support from their natural father.

M rs. Patterson has sec

ured new employ

ment in a very

stable type

situatio n in Houston, although she’s living in an apartment. She has not remarried. She has no other children e

xcept these two - - t

wo young g

irls, who are ag

es seven and eig

ht.

It appears as though there ha s been some proble

ms that exist

between - - that has come between the natural mother a nd the stepmother. I

t does appear tha

t Ms. Yonavich, the former Mrs. Patterson, has called the home of the children on3

numerous occasions,and based on her t estimony,60 p

ercent of the time

she speaks with the stepmother rather than the natural father of these children, Mr. Patterson.

It appears as though Mr. Patterson is not employed presently and has not been employed since Febr uary but that since he’s had custody of these children he apparently

has love and devotion for these children , and app arently the natural mother has love and devotion for these children.

And in looking at all of the facts an d circumsta nces, as the Chancellor indicatedin June, it was a close case, but in this Cou

rt’s opinion, it will b

e in the best interests of these c hil dren that the cust ody arran gement be chan

ged to where bo

th parties have joint custody with the primary residence of these children being with the natural m other, Ms.

Yonavich

[Patterso n].

. . . . . But the court d oes feel that the intrusion into this relationship by the stepmother

has had a negative impact on the mother/father relationship as it relates to these two children and that these c hildren ca n best identify and maintain the relationship

of parent and children with the primary custody

of these children resting with the natural mother.

It is from this or

der that the pres

ent appeal arise

s. II. Law and Analysis When considering

a petition to

modify custody, the threshold issue is whether there has been
a material change in circumstances occurring subsequent to the initial custody determination. See Massengale

v. Massengale, 915 S.W.2d 818, 819 (T enn. Ct. App. 1995) ( citing Dailey v. Dailey , 635 S.W.2d 391, 393 (Tenn. Ct. A pp. 1981)). I

f the trial court d

etermines that the

re has, in fact, been a material c hange in circumstances, the court then seeks to devise a custody arrang ement that

is in the best interests

of the child. See Varley v. Varley , 934 S.W.2d 659, 665-66 (Tenn. Ct. App. 1996) (quoting Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993)); Tenn.Code Ann. § 36-6-106 (Supp.1998). Absent a materia l change in

circumstances, however, the petition to modify custody must be denied. Our review of the trial court' s ruling on a petit ion to modify custo

dy is de novo on the record, accom

panied by a

presumption of cor

rectness o f the findings below. See Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984); Gaskill v. Gaskill , 936 S.W.2d 626, 631 (T enn. Ct. App. 1996); T.R.A.P. 13(d). Thus , we may not reverse the r

uling of the tria

l court unless it is contrary to the preponde rance of the evidence. See Hass , 676 S.W.2d at 555; Massengale , 915 S.W.2d at 819; T.R.A.P. 13(d).

"Cha nged circumstances" includes an y material change of circumstances affecting the welfar e of the child or children including new fac ts or c hanged conditions which could not be anticipated4

by the former decree. Dalton v. Dalton , 858 S.W.2d 324, 326 (Tenn. Ct. App. 1993). The presence of the word“material” indicates that the change must be significant. See B LACK ’ S L AW D ICTIONARY 991 (7 th ed. 1999). Although such a finding may be implicit, the trial court’s order changing

custody did n

ot state that a material change of

circumstances h

ad occurred. We

are somewhat tro

ubled by this

fact in that the trial court failed

to spec ify the factors which caused it to conclude that a custody change, an undeniably

traumatic

event, was warranted. We are, therefore, left to review the trial court’s oral ruling in order to ascertain the basis for the order changing custody

. App aren tly, the primary basis for the custody

change was the

alleged interf

erence with Ms. Patterson’s relationship with her children. Ms. Patterson cites to numerous instances where her role
as the natural mother was met w ith interference by Mr. Patterson, as well as Mr. Patterson’s new wife, Angela. Not

unexpectedly, both Mr. Patterson and Angela Patterson testified that they never attempted or intended to interfere with Ms. Patterson’s role as the children’s mother.

We should poi nt out that there are no allegations that Mr. Patterson is in any way an un fi t parent. In fact, the trial court specifically found that Mr. Patterson “has love and devotion for these children.” The record indicates that the children were happy and well-adjusted while living with Mr. Patterson. Therefore, we are convinced that the change of custody was not warranted base d on any argument that th

e children would b

e ina better

home situation if placed with their natural mother.

Our review of the record leads us to conclude that this case is the product of the natural and notunexp ect ed consequences of divorce. See Arnold v. Arnold , 774 S.W.2d 613, 618 (T enn. Ct. App. 1989)(noting that

when a marriage is dissolved by divorce, it is impossible for the children of the marriage to enjoy the same relationship with both parents as might be en joyed if both

parents reside in the same home.). Those consequences are exacerbated where, as in the prese nt case, one of the parents, es pecial ly the custodial parent, remarries. The custodial parent is met with the resp onsibility

of insuring that t

he non-custodial p

arent’s rights

are maintained.

While there is n o definitive indication that Mr. Patte rson del iberately

interfered with

his former wife’ s interaction with their children, there very well mi ght have been so

me instances in whi

ch he could

have taken actions different from the cours e he chose. Such actions on his part might have produced better communicat ion betwe en the parties, thereby avoiding the present situation. However, we find nothing in the record to in dicate that the la

ck of communicati

on constituted a ma

terial change

in circumstances.

As for the role of the stepmother in the children’s lives, we are not persuaded that this serves
as a basis for a change of custody. The trial court f ound that the “intrusion into this relationship by the stepmother has had a negative impact on the mother/father relationship as it relates to these two children.” Again, we are faced with a natur al consequence of divorce. Having remarried, Mr. Patterson’s new wife does, by necessity, ha ve a role in the children’s lives. It is understandable that Ms. Patterson is disturb

ed by the pr

ospect, real or p

erceived, that h

er role as the moth

er is bein g diminished. However, it is far from clear that Angela Patterson took any affirmative

steps to inject4 Ms. Patter son has made much of the f act tha t Mr. Patt

erson is not the person corresponding with her regarding the childre

n. While t

he lack of

communicat

ion between the parents is unfo rtunate, it is only one factor among many w e must consid er.

5 Ms. Patterson als o cites to t he fact tha

t the chil dren refer

to their stepmother as “Ms. Angela Mommy.” She contends that thi s fact shows

the confusi

on that exis

ts, and is evidence that

her role as mother is b eing diminishe d. We refuse to engage i

n analys is of why children

use the names the

y use. Such an at

tempt on our

part woul

d ultima tely be inconclusiv

e.
6 Ms. Pa tterson argue s that Brumit is i nappli cable i n lig ht of t he adopt ion of T.C. A. § 36-6-106(10) which provides as a fact

or in cus tody dete

rminati on “[e]ac

h parent' s past an d potential for f

uture per

for mance o f p arenting responsibilities, including t he w illingn ess and ability of each of t he parents to facilit

ate and encourage a close and continuing parent-child relationshi p between the child and the other parent, consistent with the best interest of t he child.” We consider the rationale of Brumit , namely that alleg ed interferen ce with pare ntal rights and denigrati on of the parenta

l role is not alone sufficie nt to justify a chang e in custody, to b e viable. The aformentioned statutory section is only one of several consider

ations. Our conside

ration of all t he fact ors in T.C. A. § 36-6-106 l eads us t

o conclude

that Ms. Patterson ’s allegations, eve n if true, do not j ustify the extreme remedy allo wed by the tria l court.

5 herself as the mother to these ch

ildren. In fa

ct, there is ample

evidence in the record to indicate that the contrary i

s tru e. The testimony is clear that Angela Patterson speaks with Ms. Patterson frequently

regarding t he children, incl uding instances

in which she has ca

lled Ms. Patterson to informher of activities in which the children will be involved. 4 Every indication is that the Angela Patterson has taken an active role in helping maintain

the relationship

between mother and children. 5 While we do not wish t o trivia lize Ms. Patterson’s perceptions of the situation, we do not believe the record supp orts her argu ment that A ngela Patte rson was att empting to displ ace her as the children’s mother.

The allegations in this case are similar to those contained in Brumit v. Brumit , 948 S.W.2d 739 (Tenn. Ct. App. 1997). 6 In that case, t he only basis f or the change advanced by the father was the mother's alleged interference with his visitation and her denigration of his role as the c hild’s father. The court rejected the father’s request for a change of cu stody finding that there was no evidence that the circumstances of the parties and their child had changed since the divorce in a way that w ould req uire a change in the basic custodial arrangement. The court also noted that to the extent the record supported a finding that the father’s role was being interfer ed with, that conduct could be addressed by the trial court through i t s contempt power a

nd in other way

s. Those same remedies are equally applicable in the present case

. Under Tennessee law there is a strong presumption in fav or of c ontinuity of placement. Aaby v. Strange , 924 S.W.2d 623, 627 (T enn. 1996); Gaskill , 936 S.W.2d at 631; Taylor v. Taylor , 849 S.W.2d 319, 328, 332 (T enn.1993); Hil l v . Robbins , 859 S.W.2d 355, 358 (Tenn.App.1993). Even though T.C.A. § 36-6-101(a)(1) allows a trial court's initial award of custody to be modified, it is clear that: where a decre e has been enter

ed awarding c

ustody of ch

ildren, that6 decree is res judicata and is conclusive in a subsequent application to change custody unless some new fact has occurr ed which has altered the circumstances in a material way so that the welfare of the child requires a change of custody.

Griffin v. Stone , 834 S.W.2d 300, 301-02 (Tenn. Ct. App. 1992). See also Musselman v. Acuff , 826 S.W.2d 920, 922 (Tenn. C t. App. 1991) ("the trial judge must f

ind a material cha

nge in circumstances that is compelling enough to warrant the dramatic remedy of changed custody ."). The only change that has occurred in this case is Mr. Patterson’ s remarriage. That is not a sufficient change to warrant the trial court’s actions.

Fin all y, even if a materia

l change did

exist, we are not persuaded that taking these children from their home in

Memphis was in their

best interests. These children have resided with their father since the divorce. The record provides no i ndication that their welfare has ever been an issue. Ult ima tel y, in a custody

dispute, the children’s best interests must prevail. The evidence contained in the recor d fails to provide a reasonable bas

is for a change

of custody.

Any problem

s wit h visitation or Ms. Patterson’s parental rights should have been addressed in a manner which

was less traumatic and intrusive to the children’s lives.
Conclusion For the foregoing reasons, the decision of the trial court changing primar y physical custody is reversed. The original custody arrang ement is re-instated, with primary physical custody of the minor chil d ren to be with Stephen Patterson. Costs of this appeal shall be taxed to the appellee, Susan A. Patterson, for which execution may issue if necessary

.