IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

STEPHEN PATTERSON v. SUSAN A. PATTERSON (YONAVICH)

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

physical custody of the parties’ minor children to the Mother. The Father appeals from the trial

court’s decision.

Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

HIGHERS,J., delivered the opinion of the court, in which CRAWFORD, P.J., and FARMER,J., joined.

John B. Philip, CRISLIP, PHILIP & ASSOCIATES, Memphis, for Appellant, Stephen Patterson

Stephen R. Leffler, LAW OFFICE OF STEHPEN R. LEFFLER, P.C., Memphis, for Appellee,

Susan A. Patterson (Yonavich)

OPINION

 Stephen Patterson appeals from the decision of the Chancery Court of Shelby County

which changed primary physical custody of his two minor children to his former wife. For the

reasons stated herein, we reverse the decision of the trial court.

I. Facts and Procedural History

Stephen Patterson and Susan A. Patterson were divorced pursuant to a Final Decree of

Divorce entered on September 11, 1995. At the time of the divorce proceedings, Ms. Patterson

resided in Metropolis, Illinois. Ms. Patterson did not contest the divorce nor the decision to give Mr.

Patterson custody of the parties’ two minor children. 

Ms. Patterson apparently had no contact with her children for a period of time following her

divorce. In or around March 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 hearing of the matter, the Chance llor stated: “It’s a clo se case. The 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 this order, on September 25, 1998, Stephen Patterson remarried. For purposes 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 that Ms. Patterson had failed to pay child support as

ordered in the final decree. Ms. Patterson answered the complaint and filed a counter-complaint in

which she asked the court to give her custody of the parties’ children, claiming 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 behavior around his

minor children.” 

The petition for contempt and the counter-complaint seeking a change in custody were heard

on June 4, 1998. The trial court issued an order in which the Petition for Change of Custody was

denied based on the finding that no material change in circumstances existed. However, the court

also determined that the matter should be continued for one year, at which time the question of

custody would be reviewed.1

 The order also stipulated that Mr. Patterson was not to have any

female guest in his home past 10:00 P.M.2 

The matter came to be re-heard in June of 1999, whereupon the trial court ordered a change

of custody.3

 The court found that it was in the best interests of the children for primary physical

custody to be changed from Mr. Patterson to Ms. Patterson. In its oral ruling following the hearing,

the court stated:

The question is what has happened since that time [1998 hearing]? It appears

that Mr. Patterson and the lady with whom the Chancellor had referred to, Ms.

Angela, married in September of ‘98, and apparently Ms. Patterson moved into the

residence with her two children. The new Ms. Patterson has two minor children,

neither of whom is receiving child support from their natural father.

Mrs. Patterson has secured new employment in a very stable type situation

in Houston, although she’s living in an apartment. She has not remarried. She has no

other children except these two - - two young girls, who are ages seven and eight.

It appears as though there has been some problems that exist between - - that

has come between the natural mother and the stepmother. It does appear that Ms.

Yonavich, the former Mrs. Patterson, has called the home of the children on
3

numerous occasions, and based on her testimony,60 percent 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 February but that since he’s had custody of these children he

apparently has love and devotion for these children, and apparently the natural

mother has love and devotion for these children.

And in looking at all of the facts and circumstances, as the Chancellor

indicated in June, it was a close case, but in this Court’s opinion, it will be in the best

interests of these children that the custody arrangement be changed to where both

parties have joint custody with the primary residence of these children being with the

natural mother, Ms. Yonavich [Patterson].

. . . . .

But the court does 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 children can 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 order that the present appeal arises.

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 (Tenn. Ct. App. 1995) (citingDailey v. Dailey, 635

S.W.2d 391, 393 (Tenn. Ct. App. 1981)). If the trial court determines that there has, in fact, been

a material change in circumstances, the court then seeks to devise a custody arrangement 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 material change in circumstances, however, the petition to modify custody

must be denied. Our review of the trial court's ruling on a petition to modify custody is de novo on

the record, accompanied by a presumption of correctness of the findings below. See Hass v.

Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct.

App. 1996); T.R.A.P. 13(d). Thus, we may not reverse the ruling of the trial court unless it is

contrary to the preponderance of the evidence. See Hass, 676 S.W.2d at 555; Massengale, 915

S.W.2d at 819; T.R.A.P. 13(d).

"Changed circumstances" includes anymaterial change of circumstances affectingthewelfare

of the child or children including new facts or changed conditions which could not be anticipated
4

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 BLACK’S LAW DICTIONARY

991 (7th ed. 1999). 

Although such a finding may be implicit, the trial court’s order changing custody did not state

that a material change of circumstances had occurred. We are somewhat troubled by this fact in that

the trial court failed to specify 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. 

Apparently, the primary basis for the custody change was the alleged interference with Ms.

Patterson’s relationship with her children. Ms. Patterson cites to numerous instances where her role

as the natural mother was met with 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 point out that there are no allegations that Mr. Patterson is in any way an unfit

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 based on any

argument that the children would be in a 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

not unexpected consequences of divorce. See Arnold v. Arnold, 774 S.W.2d 613, 618 (Tenn. 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 enjoyed if both parents

reside in the same home.). Those consequences are exacerbated where, as in the present case, one

of the parents, especially the custodial parent, remarries. The custodial parent is met with the

responsibility of insuring that the non-custodial parent’s rights are maintained. While there is no

definitive indication that Mr. Patterson deliberately interfered with his former wife’s interaction with

their children, there very well might have been some instances in which he could have taken actions

different from the course he chose. Such actions on his part might have produced better

communication between the parties, thereby avoiding the present situation. However, we find

nothing in the record to indicate that the lack of communication constituted a material 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 found 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 natural consequence of divorce. Having remarried, Mr.

Patterson’s new wife does, by necessity, have a role in the children’s lives. It is understandable that

Ms. Patterson is disturbed by the prospect, real or perceived, that her role as the mother is being

diminished. However, it is far from clear that Angela Patterson took any affirmative steps to inject
4

 Ms. Patterson has made much of the fact that Mr. Patterson is not the person corresponding with her regarding

the children. While the lack of communication between the parents is unfo rtunate, it is only one factor among many we

must consid er. 

5

 Ms. Patterson also cites to the fact that the children refer to their stepmother as “Ms. Angela Mommy.” She

contends that this fact shows the confusion that exists, and is evidence that her role as mother is b eing diminishe d. We

refuse to engage in analysis of why children use the names they use. Such an attempt on our part would ultimately be

inconclusive.

6

 Ms. Pa tterson argue s that Brumit is inapplicable in light of the adoption of T.C.A. § 36-6-106(10) which

provides as a factor in custody determination “[e]ach parent's past and potential for future performance o f parenting

responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and

continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.”

We consider the rationale of Brumit, namely that alleg ed interferen ce with pare ntal rights and denigration of the parental

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 considerations. Our consideration of all the factors in T.C.A. § 36-6-106 leads us to 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 children. In fact, there is ample evidence in the record to indicate that

the contrary is true. The testimony is clear that Angela Patterson speaks with Ms. Patterson

frequently regarding the children, including instances in which she has called Ms. Patterson to

inform her 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 to trivialize Ms. Patterson’s perceptions of the situation, we do not believe

the record supports her argument that Angela Patterson was attempting to displace 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, the only basis for the change advanced by the father was

the mother's alleged interference with his visitation and her denigration of his role as the child’s

father. The court rejected the father’s request for a change of custody finding that there was no

evidence that the circumstances of the parties and their child had changed since the divorce in a way

that would require 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 interfered with, that conduct

could be addressed by the trial court through its contempt power and in other ways. Those same

remedies are equally applicable in the present case.

Under Tennessee law there is a strong presumption in favor of continuity of placement. 

Aaby v. Strange, 924 S.W.2d 623, 627 (Tenn. 1996); Gaskill, 936 S.W.2d at 631; Taylor v. Taylor,

849 S.W.2d 319, 328, 332 (Tenn.1993); Hill 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 decree has been entered awarding custody of children, that 
6

decree is res judicata and is conclusive in a subsequent application to 

change custody unless some new fact has occurred 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 alsoMusselman v. Acuff, 826

S.W.2d 920, 922 (Tenn. Ct. App. 1991) ("the trial judge must find a material change 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. 

Finally, even if a material 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 indication that their welfare has ever been an issue.

Ultimately, in a custody dispute, the children’s best interests must prevail. The evidence contained

in the record fails to provide a reasonable basis for a change of custody. Any problems with

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 primary physical custody

is reversed. The original custody arrangement is re-instated, with primary physical custody of the

minor children 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.