Rule 10 of the Rules of the Court of Appeals of Tennessee provides: 

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This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion would have

no precedential value. When a case is decided by memorandum opinion it shall be designated

"MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any

reason in any unrelated case.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 4, 2004 Session

WENDY KING (GRAHAM) v. TIMOTHY KING

Direct Appeal from the Circuit Court for Warren County

No. 9859 Charles D. Haston, Judge

No. M2002-01202-COA-R3-CV - Filed September 9, 2004

The trial court denied Mother’s petition to change custody of the parties’ minor children from Father

to Mother. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and

Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

and HOLLY M. KIRBY, J., joined.

Clark Lee Shaw, Nashville, Tennessee, for the appellant, Wendy King Graham.

Keith s. Smartt, McMinnville, Tennessee, for the appellee, Timothy King.

MEMORANDUM OPINION1

Wendy King Graham (“Mother”) and TimothyKing (“Father”) were divorced in 1999. After

numerous hearings, the trial court awarded custody of the parties’ four minor children to Father in

January 2000, and Mother was awarded liberal visitation. Mother appealed and this Court affirmed
The genesis of this custody battle is outlined in King I as follows:

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On December 15, 1998, the trial court granted temporary legal custody of the parties' four minor

children to the Department of Children's Services with temporary physical custody to remain with

Mother. On June 8, 1999, the parties were granted a divorce on the grounds of inappropriate marital

conduct. On November 24, 1999, the court ordered that physical custody of the children be removed

from Mother and be placed with the paternal grandparents, Cecil and Evelyn King. Finally, on January

28, 2000, the trial court awarded physical and legal custody to Father, and the court granted liberal

visitation to Mother.

King, 2001 WL 1035175, at *1.

The Texas court dismissed Mother’s petition for lack of jurisdiction.

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the trial court’s determination. King v. King, No. M2000-00424-COA-R3-CV, 2001 WL 1035175

(Tenn. Ct. App. Sept. 11, 2001)(hereinafter, “King I”).2

Mother remarried and relocated to Texas. In April and May 2001, the trial court amended

Mother’s visitation to provide a three week visitation period at Mother’s home in Texas. In June

2001, Mother failed to return the children to Father at the end of the three week period. Mother also

filed a petition in Texas for a change in custody of the children from Father to Mother. On June 25,

2001, Father filed a petition for contempt in the trial court. On June 26, 2001, the trial court asserted

continuing jurisdiction over the matter and ordered the children returned to Father. 

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In July 2001, Mother petitioned the trial court to change custody of the children from Father

to Mother. The trial court denied Mother’s petition, appointed a guardian ad litem to represent the

children, and ordered the parties and the children to undergo evaluation by a forensic psychologist

or psychiatrist. In March 2002, after multiple hearings and after considering the testimony and

documents submitted by several experts, the trial court denied Mother’s petition. Mother again

appeals to this Court. 

Issues Presented 

Mother raises the following issues, as we slightly restate them, for review by this Court:

(1) Whether trial court abused its discretion in failing to change custody from

Father to Mother;

(2) Whether trial court erred by awarding some discretionary costs to Father.

Additionally, Mother requests attorney’s fees on appeal.

Father neglected to include a Statement of the Issues in his brief. We consider an issue

waived where it is argued in the brief but not designated as an issue. Childress v. Union Realty Co.,
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97 S.W.3d 573, 578 (Tenn. Ct. App. 2002). Accordingly, Father has waived issues not designated

as such in his brief. 

Standard of Review 

Our review of a trial court's conclusions on issues of law is de novo, with no presumption of

correctness. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002). Our review of a trial court's

finding on issues of fact is de novo upon the record, accompanied by a presumption of correctness

unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Kendrick, 90 S.W.3d at 569.

Where the trial court makes no specific findings of fact on a matter, we must review the record to

determine where the preponderance of the evidence lies and accord no presumption of correctness

to the conclusion of the court below. Kendrick, 90 S.W.3d at 569.

Analysis

A party petitioning for modification of a valid child custody order must demonstrate a

material change of circumstances has occurred which makes a change in custody in the best interest

of the children. Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003). Thus, the court must utilize

a two-part test in determining whether a change in custody is warranted. Id. First, it must determine

whether a material change of circumstances has occurred that affects the children’s well-being. Id.

Second, if it finds a material change of circumstances, the court must utilize the factors enumerated

in Tennessee Code Annotated § 36-6-106 to determine whether a change in custody is in the best

interests of the children. Id.

In this case, it is clear from the record that both parties have engaged in alienating the

children from the other parent. We do not find it necessary to reiterate the details of the underlying

relationship between the parties which are contained in King I. Clearly, this is a case wherein the

accusations are flying and the courts and, more importantly, these children, have become vehicles

for continued, escalating hostilities. Upon review of the entire record, we find no material change

of circumstance that warrants reconsideration of the trial court’s custody award. The

recommendation of one of the several experts in this case was that custody of the two older children

remain with Father while custody of the two younger children be changed to Mother. The trial court

addressed this recommendation as follows:

Although well-intended and thoughtful testimony has emerged recommending

that two of the four minors should be relocated with the mother, the [c]ourt, upon

considered reflection, has concluded that what the minors need now most of all is

each other. 

We agree with the trial court. Mother simply has failed to carry her burden of demonstrating

that the trial court erred in denying her petition to change custody. Further, we cannot say the trial

court abused its discretion in its award of discretionary costs in this case. 
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Holding 

We affirm the judgment of the trial court in all respects. In light of the foregoing, Mother’s

request for attorney’s fees on appeal is denied. Costs of this appeal are taxed to the Appellant,

Wendy King Graham, and her surety, for which execution may issue if necessary.

___________________________________ 

DAVID R. FARMER, JUDGE