FILED

March 27, 1998

Cecil W. Crowson

Appellate Court Clerk

RITA ANN LAYNE WATERS, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9708-CV-00402

v. )

) Marion Circuit 

STACY LAYNE, ) No. 7341

)

Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY

AT JASPER, TENNESSEE

THE HONORABLE BUDDY D. PERRY, JUDGE

RITA WATERS, PRO SE

2570 Alvin York Highway

Whitwell, Tennessee 37397

BARBARA L. BROERSMA

P.O. Box 4362

Chattanooga, Tennessee 37405

ATTORNEY FOR THE DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
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O P I N I O N

This is an appeal from the most recent of custody orders concerning Amanda

Brooke Layne ("the child") who is the minor daughter of Stacy Layne ("the Father")

and Rita Ann Layne Waters ("the Mother"). The Circuit Court of Marion County

ordered that custody of the child be changed from the Father to the Mother and set

up a schedule for visitation with the Father. The Father has appealed to this court.

On appeal, we must determine whether the trial court erred in finding that a change

of circumstances had occurred such that it should transfer custody of the child from

the Father to the Mother. In addition, the Father challenges the visitation as

scheduled by the trial court claiming that the court erred in not granting "extended

and frequent visitation."

The record shows that the parties in this case were divorced in January of 1988

after which time ensued a succession of arrangements regarding the custody of their

then three-year-old daughter. Custody was initially awarded to the Mother. Thereafter, the Father petitioned for custody alleging that the child had suffered abuse at

the hands of one Evert Mardis. The court awarded the Father temporary custody of

the child and granted visitation to the Mother which was conditioned upon the child

not coming into contact with Mr. Mardis. Subsequent to this, custody again changed

when a series of agreed orders provided that the parties should have joint custody.

A final agreed order was entered in January of 1994 which provided that the Father

and his then wife Judy Layne would have custody of the child and that the Mother

and her husband would have visitation every weekend. 

The action before us began when, in February of 1997, the Mother petitioned

for custody of the child claiming that circumstances had changed since the time of the

agreed order which gave custody to the Father. She asserted that the Father was no

longer married and was not properly caring for the child. At trial, the Mother

explained that when she had remarried, the child had wanted to live with her father

and she agreed for the Father and Judy Layne to have custody of the child. However,

she filed for a change of custody once she learned that the Father and Judy Layne

were divorced. The Mother, who received a small income from babysitting, said that

she had been married to her current husband for three and a half years and that he

liked the child and did not object to her coming to live with them. The Mother
3

claimed that she and Judy Layne took care of the child. When asked about the

alleged incident with Mr. Mardis, the Mother asserted that these accusations had not

been proven. Nonetheless, she testified that though Mr. Mardis might have

occasionally been around the child, he had never been alone with her.

Ricky Waters, the Mother's current husband, testified that the child had been

regularly visiting his home since he married the Mother in November of 1993. He

said that they were adding onto their home so that the child would have her own

room. He said that she would be covered on his insurance once they had full custody.

He testified that Evert Mardis was his brother and that he came around once or twice

a month to help fix things. Mr. Waters was aware of the allegations against Mr.

Mardis but saw no problem with taking the child around him now. He did assert that

Mr. Mardis "has not been close enough to even touch her at all."

Judy Layne confirmed that she and the Father divorced in November of 1996.

She testified that once she and the Father stopped living together in March of 1996,

the child remained with her in the marital home. She said that the child stayed with

her from March of 1996 until after the divorce in February of 1997. During this time,

though the Father occasionally gave the child $10 or $15, it was Ms. Layne who paid

for the child's clothing and doctor's appointments. Ms. Layne said that while the

child lived with her, the child visited the Father when he came by the house during

meal times but she spent only about three nights with the Father outside of the home

as he would only let her come these few times. Ms. Layne testified that the Father

had not been giving her money to pay the mortgage payments for the house in which

she and the child lived and in which she, the child, and the Father had lived together

since October of 1994. Regarding her relationship with the child, Ms. Layne claimed

that they were attached to one another. She thought it was good for the child to

remain in the house with her where she had her own room. Ms. Layne admitted that

she was angry at the Father for taking the child from her. When confronted with the

reality that she would not get custody of the child despite the outcome of the matter

between the Father and the Mother, she said that "[the Mother] will let me see her

when he won't let me see her." Ms. Layne's sister, Debbie Chance testified and

confirmed that, every day for the past three years, she had taken the child to school

for her sister Ms. Layne.
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The Father testified that he had held the same job for the past eleven years. At

the time of the trial, he lived with his current wife Deborah Ann Layne and the child

in a three bedroom house. Prior to this, he had lived in a one bedroom apartment for

ten or eleven months which was all he could afford. During this time, he

acknowledged that the child stayed with his ex-wife Judy Layne in their former home.

He claimed that this was best so that the child could have her own bedroom and

maintain her routine. He testified that he went by every afternoon and had dinner

with the child. He claimed that, during this time, he was giving Judy Layne enough

money to pay the mortgage with some left over to pay for the child's clothes.

According to the Father, the child is doing fine living with him and his new wife.

Now that the child lives with him and his new wife, his mother-in-law takes her to

school. The Father gets home everyday by 3:30 or 4:00, eats with the child and then

spends time with her. It was his testimony that his ex-wife Judy and not the Mother

was the primary provider for the child over the past years. However, he did agree that

the Mother cared for the child when she was in the Mother's custody. He said that

since 1994, in addition to seeing the Mother every weekend, the child saw her any

other time that she wanted.

Linda Frizzell, the Father's current mother-in-law confirmed that she has fixed

the child's breakfast and taken her to school every morning since her daughter

married the Father which was only three weeks prior to the trial. She testified that the

child seems happy and healthy. She also said that she picks up the child in the

afternoons. Deborah Layne, the Father's current wife testified that she is an x-ray

technologist. She claimed to have a good relationship with the child: together they

play ball, ride bikes and walk, and study for the child's school.

At the close of all the proof, the trial judge articulated the applicable legal

standard as follows:

I have to determine if there has been a change of circumstances. If there

has been a change of circumstances, what would be in the best interest

of the child, it would require me to give custody to the [M]other, then

I am compelled to do so. If there has not been a change of

circumstances then the child has to remain with the [F]ather. And I

think the issue for me in this case is the divorce from a stable care

provider for a child a change in circumstances sufficient to justify me

removing the child from the father and giving the child to the mother.

The judge voiced his opinion that if it were an option, he would award custody to
5

Judy Layne who has been the obvious "caretaker and provider over the past few

years." However, it the final order, custody was transferred to the Mother due to the

fact that the Father, "as many fathers, allowed his wife to be the primary care giver

while he earned a living." The court ordered that the Father should have visitation

every other weekend from Friday 6:00 p.m. to Sunday 6:00 p.m. and six continuous

weeks during the summer during which time the Mother would have alternate

weekends with the child. In addition, the parties would alternate major holidays.

Finally, the court expressed concern over the attitude of the child's step-father

regarding the abuse of the child and thereby restrained the Mother and the step-father

from allowing the child to be around Evert Mardis. The court stated that a finding

that the child has been in the presence of Evert Mardis was a sufficient circumstance

for immediate termination of the Mother's custody.

A court's determination concerning custody, either initially or upon a petition

for modification, is factually driven. Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn.

1988). Trial courts, therefore, have wide discretion in awarding custody and

appellate courts will not interfere with lower courts' decisions except upon a finding

of abuse of discretion. Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). The

law is clear that an appellate court is to review a custody decision de novo with a

presumption of correctness of the findings of fact of the trial court. Nichols v.

Nichols, 792 S.W.2d 713, 716 (Tenn. 1990). Such a decision will not be reversed

absent an error of law, unless the appellate court finds that the evidence

preponderates against the trial court's findings. Tenn. R. App. P. 13(d); see Hass v.

Knighton, 676 S.W.2d 554 (Tenn. 1984).

The law provides that a trial court's initial award of custody is "subject to such

changes or modification as the exigencies of the case may require." Tenn. Code Ann.

§ 36-6-101(a)(1) (1996 & Supp. 1997). The court must determine if there has been

"a material change in circumstances that is compelling enough to warrant the

dramatic remedy of changed custody." Id. "'Changed circumstances' includes any

material change of circumstances affecting the welfare of the child or children

including new facts or changed conditions which could not be anticipated by the

former decree." Dalton v. Dalton, 858 S.W.2d 324, 326 (Tenn. App. 1993) (quoting

Hicks v. Hicks, 176 S.W.2d 371 (Tenn. App. 1943)). Finally, this court has held that

the burden is on the non-custodial parent to prove changed circumstances. Blair v.
6

Badenhope, 940 S.W.2d 575, 576 (Tenn. App. 1996). Once the court determines

there has been a material change in the conditions, it "should consider the effect on

the child of changing his or her surroundings." Hall v. Hall, No.

01-A01-9310-PB-00465, 1995 WL 316255 at *3 (Tenn. App. 1995). And finally, "if

there has been a material change of circumstances and if both parties would be fit

parents, the court should determine which parent would be comparatively more fit."

Id. 

At the close of the trial, the lower court articulated the appropriate legal

standard for modifying custody. After reviewing the evidence for a "change of

circumstances," the court determined that there had been such a change. At the time

that the January 1994 agreed order was entered, the circumstances were not only that

the Father was married, but that he was married to Judy Layne. As the testimony of

Judy Layne, Ms. Layne's sister, the Father and the Mother all revealed, this particular

marriage was of great significance to the child. Ms. Layne was her primary care giver

for over three years. It was Ms. Layne who prepared the child each day for school.

It was Ms. Layne who shopped with the child and took her to her appointments.

Perhaps the greatest evidence of their relationship is that when the Father moved out,

the child remained under Ms. Layne's care for almost an entire year. Moreover, the

specific language of the January 1994 agreed order indicates that parties

contemplated the child be under the care of Ms. Layne as a circumstance of the

Father's custody. The order provided that "[t]he parties have agreed that the custody

of the said minor child shall be placed with the Defendant Stacy Layne and wife,

Judy Layne." (emphasis added). We conclude that a preponderance of the evidence

supports the court's finding that the divorce of the Father from Ms. Layne was a

material change in circumstance which was not anticipated by the custody order. 

In addition, we find that the evidence does not preponderate against the lower

court's decision to transfer custody to the Mother as the comparatively more fit

custodian under the changed circumstances. At the time of trial, the Mother had been

in a marriage for three years. Both she and her husband desired that the child live

with them in their home where they were adding on a room for the child. Due to the

Father's job, it appears that his wife of three weeks at the time of the trial, Ms.

Deborah Lane, and not he, was the primary caregiver when the child was in his

custody. While there was no evidence that the child was suffering great harm in the
7

home with her father and her new stepmother, it was within the court's discretion to

modify custody such that the child's mother and not her new step-mother be her

primary caretaker. 

Lastly we address the Father's contention that the lower court erred in not

granting him visitation which was more extended and frequent. The law is clear: in

structuring visitation, the welfare and best interest of the child are the paramount

considerations and that the rights, desires and interests of the parents are secondary.

Neely v. Neely, 737 S.W.2d 539, 542 (Tenn. App. 1987). The courts do recognize

that it is important for the parent-child relationship to be maintained between a child

and the noncustodial parent. Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn. 1993);

Turner v. Turner, 919 S.W.2d 340, 346 (Tenn. App. 1995). In the case at bar, we

find that visitation as structured by the court below gives the Father substantial time

with the child. See Jahn v. Jahn, 932 S.W.2d 939, 942 (Tenn. App. 1996). As

stated, the court ordered that the Father should have visitation every other weekend

and for six continuous weeks during the summer during which the Mother would

have alternate weekend visitation with the child. In addition, the court's order

provided that the parties would alternate major holidays. 

We realize that this visitation plan is not as extensive as certain of the various

arrangements between the parties in previous years many of which were joint custody

arrangements. However, the very nature of single-parent custody is that the custodial

parent is given the "primary control and responsibility for the upbringing of the

parties' children." Dodd v. Dodd, 737 S.W.2d 286, 289 (Tenn. App. 1987)

(commenting unfavorably on joint custody and noting that "[t]here needs to be one

residence, one haven in all the storms of life, including those storms whipped up by

the winds of divorce.") Along with the responsibility of the custodial parent comes

that parent's "sole prerogative to make the significant decisions concerning the

child's education, residence, religious training, and medical care." Rust v. Rust, 864

S.W.2d 52, 55 (Tenn. App. 1993). It follows that the non-custodial parent's rights

and obligations arising from the parent-child relationship are diminished. Where, as

in this case, the visitation structured by the trial court permits the maintenance

of the parentchild relationship, there is no abuse of discretion on the part of the lower court. We
8

therefore uphold the lower court's ruling with regard to visitation.

In conclusion, we find that the evidence does not preponderate against the trial

court's findings with regard to custody and visitation in this case. Thus, we affirm the

decision of the lower court to place custody with the Mother. We also uphold the

Father's visitation with the child as it was structured by the trial court. The costs of

the appeal are taxed to the Father.

_________________________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_____________________________________

BEN H. CANTRELL, JUDGE

_____________________________________

WILLIAM C. KOCH, JR., JUDGE