# FILED

March 27, 1998 Cecil W. Crowson Appellate Cou rt Clerk RITA ANN LAYNE WAT ERS, )

) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9708-CV-00402 v. ) ) Marion Circuit STACY LAYNE, ) No. 7341 ) Defendant/Appel

lant. )

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, Tenn

essee 37405 ATTORNEY FOR THE DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE2 

### O P I N I O N
This is an appeal from th

e most recent of cu stody orders concerning A manda BrookeLayne ("the

child") who is the minor daughter of Stacy Layne ("the Father") and Rita Ann Layne Waters (" the Mother"). T he Circuit Court of

Marion County ordered t hat custody of the chil d be changed from the

Father to the Mothe

r and se t up a schedule for visit

ation wit h t he Father. The Father has appeale d to this court. On appeal, we must determine whether the trial court erredin finding that a chang e of circumstances had

occurred such that i

t should transfer custody of the child fr om the Father to

the M other. In addition, the Father challenges the visitation as scheduled by the trial c ourt cl aiming that the court erred in not granting "extended and frequent visit ation."

The record shows that t

he parties in this ca

se were divorced in January of 1988 after which time ensued a succe ssion of arrangeme nts regarding the cus

tody of their then three-year-old d

aughter. Custody was initially awarded to the

Mother. Thereafter, the Father petition

ed for cus t ody 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 visitatio

n to the Mother which was conditioned upon the chil d not coming into conta ct with Mr. Mardis. Subsequent to this, custody again changed when a series of agree

d orders provided that

the parties should hav

e joint custo d y. A final agreed order was entered in January of 1994 which provided that the Father and his then wife Judy L ayne w ould have custody of the child and that the Mother and her husband wou ld have visitatio n 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 tim e of the agreed order

which gave

custody to the Father. She asserted tha t the Father was no longer married and was not properly cari ng for t he child. At trial, the Mother explained that when she had remarrie d, the child

had wanted to live with her father and she agreed for the

Father and Judy La

yne to have custody of the child. However, she filed for a change of custody once she learned that the Father and Judy Lay ne
were divorced. The Mother, who received a small income from babysitting, said that she had been married to her current husband for three an d a half years and th at he liked the child and did not obje ct to her coming to live

withth em. The Mother3

claimed tha t she and Judy Layne to ok care of the child . When asked about t h e alleged incident with Mr. Mardis, the Mother asserted that these

accusations had not been pro ven . Nonetheless, s he testified that tho

ugh 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 marr ied the Mother in

November of 1993. He saidthat they were add

ing on to their h ome so that the chil d would have her own

room. He said that she wo uld be covered on his insurance once they had full custody. He testified that Evert

Mardis was his brot

her and that he came

around once or twice

a month to help fix things. Mr. Water s was awa re of the allegations against Mr. Mardis but saw no problem w ith taking the

child around him now. He did assert that Mr. Mardis "has not bee n 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 l

iving together in

March of 1996, the child remained wi

th her in the marita

l home. She said tha

t the child stayed wi

th her from March of 1996 u

ntil after the divorce

in February of 1997. During this time, though the Father occasi

onally gave the

child $10 or $15, it was Ms.

Layne who paid for the child's clothing a

nd doctor's appoi

nt ments. Ms. Layne

said that while the child lived with her, the child visited the F ather when he cam

e by the house during meal times but

she spent only about thre e nights with

the Father outside of the home

as he would on ly 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 attach

ed to one another. S he thought i t w as good for the child to remain in the house with her where she had her own room. Ms. L ayne admitted that she was angry at the Fa

ther for taking the

child from her. W

hen confronted with the realitythat she would not get c ustody of the child despi

te the outcome of the matter between the Father and the Mother, she s aid that "[t he Mother] will let me see her when he won't let me see her." Ms . Layne's sister, Debbie C hance testified and confirmed that, e

very day for the past

three years, she

had taken the child to school for her sister Ms. Layne.4

The Father testified that he had held the sa me job for the

past eleven years. At the time of the

trial, he lived with his curre

nt wife Deborah A

nn Layne and the chil

d 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 c ould afford. Dur

ing 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 chi ld cou l d have her own bedro om and maintain her routine. He testified that he went by ev ery aftern oon and had dinner withthe child. He cla

imed that, during thi s time, he was givi ng Judy Layne enough

mon ey to pay the mortgage w ith some left over to

pay for the child' s clothes

. A ccording t o the Father, the child is doing fine living with him and his new wife. Now that the child lives w ith him and hi s new wife, his m other-in-law tak

es her to school. The Father gets h ome everyday by 3:30 or

4:00, eats with the child a nd then spends time with her. It was his testimony that his ex-wife Judy and not the Mother

was the primary provider f or 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 see ing the Mother every wee kend, the child saw

her any other time that she w

anted.

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

and taken her to schoo l every morning sinc e her daughter married the Father which w as only three weeks

prior to the trial.She testified that the childsee ms happy and h ealthy. She also sa id that she picks up the c hild in the afternoons. Debor ah 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 bike s and walk, and study for the child's scho ol.

Atthe close of all the proof, the tria l judge articulated the applicable legal standard as follows : I have to determine if ther e has been a

change of circumstances. If there has been a change of ci

rcumstances, wh

at would be in the best

interest of the child, it would require me to give custody to the [M]other, then I am co mpelled to do so. If there has not been a

change of ci rcumstances then the child has t o remain with the [F]ath er. And I think the issu e fo r me in this case is the divorce from a stable care pr ovider for a child a change in circumstances su

fficient to j ustify m e removing the child from the f ather and giving the child to the mother.
The judge voiced his opinion t hat if it were an o

ption, he would awa

rd custody to5

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 whilehe earned a living." The court ordered that the Father s hould hav e visitation every other weekend fr

om Friday 6:00 p.m.to Sunday 6:00 p.m. a nd six continuous weeks during the summer dur ing which time the Mo

th e r would have alter

nate weekends with the child. In addition, the parties wou l d alternate major holidays. Finally, the court expressed concern over the attitu de of the child's step-father regardingthe abuse of the child and thereby re strained the Mother and the step-father from allowing the child to be around Evert Ma rdis. The court st

ated that a finding that the child has been in the presence of Evert Mardis was a sufficient circumstance for immediate ter

mination of the Mothe

r's custody.

A court's determination conc erning custody, eithe

r initially or upon a pe

tition for modification, is fa ctu ally driven. Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988). Trial courts, therefor e, have wide disc

retion in awarding c

ustody and appellate courts will not interfere with lower courts' decisions e

xcept upon a finding of a buse of discretion

. Suttles v. Suttles , 748 S.W.2d 427, 429 (Ten n. 1988). Th e law is clear that an appellate c ourt is to revi ew a custody decisio n de novo with a presumption

of correctness of the findings of f act of th e trial court. Nichols v. Nichols , 792 S.W.2d 713, 716 (Tenn. 1990). S uch a de cisi on will not be reversed absent an error of law,

unless the appellate

court finds th at the evidence preponderates against the trial co urt's findings. Tenn. R. App. P. 13(d); see Hass v. Knighton , 676 S.W.2d 554 (Tenn. 1984).

The law provides thata trial court's initial award of custody is "subject to such changes or modification as the exigencies of the case may require." T

enn. Code Ann. § 36-6-101(a)(1) (1996 & Supp. 1997). The court must determine if there has been "amaterial change in circums tan ces that is compelli ng enough to warrant the dramaticremedy of changed custody." Id . "'Changed circumstances' includes any
m ater ial change of circumstances affecting the welfare of the child or children including new facts or changed con ditions wh ich could not be anticipated by t

he 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 toprove changed circum stances. Blair v.6

Bad enhope , 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 ch ild of changing his or her surroundings." Hall v. Hall , No

. 01-A01-9310-PB-004 65, 1995 WL 316255 at *3 (Tenn. App. 1995). And f inally, "if there has been a materia

l change of circums

tances and if both par

ties would be fit parents, the court should

determine which pa

rent would be comparative ly more fit." Id.

Atthe close of the trial, the l o wer court articulated the appropriate legal

s ta ndard for modifying custody. After reviewi

ng the evidence for a

"change of circumstances," the courtdetermined thatthere 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. La

yne's sister, the

Father and the Mothe

r all revealed, this particular marriage was of great significance to the child. Ms. Layne was her primary care giver for over three yea

rs. It was Ms. L

ayne who prepared

the child each day f

or school. Itwas Ms. Layne w

ho shopped with the chil d and took her to he

r appoin tments. 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 specificlanguage of the January 1994 agreed order indicates that parties contemplated the child be un der the care of Ms. Layne as a circumstance of t

he Father's custody. The

order provided that "[t]he parties have agreed that the custody of the said minor child sh

all be placed with t

he Defend ant Stacy La yne and wife, Judy Layne ." (emphasis added ). We conclude

that a preponderanc

e of the evidence supports the court's finding that the divorce of the Father from Ms. Layne was a material change in cir cumstance which was no t anticipated by th e custody order.

In addition, we find

that the evidence does not preponderate a gainst the lower court's decision to transfer custody to the Mother a s the compa

ratively more fit custodian under the changed circumstances. At the time of trial, the Mother had been in a marriage for t

hree years. Both she a nd her husband desired that the child live withthem in their home where they were adding on a room for th

e child. Due to

the Father's job, it appears tha t his wife of

three weeks at the

time of the trial,

Ms. Deborah Lane, and

no t he, was the prim

ary caregiver w

hen the child was in hi s custody. While there was no evidence that the child was su ffering great har

m in the7

home with her father a

nd her new stepmother, it wa s within the court's

discretion to modify custody such that th e child's m other and not her new step-mother be her primary caretaker.
Lastly we ad dr ess the Father's c ontention that the low

er court erred in not granting him visitation which w as more extended an

d frequent. The l

aw is clear: in

s tructuringvisitation, the welfare and best interest of the child are the par amoun t considerations

and that the

rights, desires an

d interests of the par

ents 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 noncusto dial parent. Taylor v. Taylor , 849 S.W.2d 319, 332 (Tenn. 1993); Tur ner v . Turner , 919 S.W.2d 340, 346 (Ten n. App. 1995). In the case a t bar, we findthat visitation as str

uctured by

the court below gives the Father substantial time withthe child. See Jahn v. Jahn , 9 32 S.W.2d 939, 942 (Tenn . App. 1996). As stated, the court ordered that the Father shou ld have visitation eve

ry other weekend

a nd for six continuou s weeks during the su mmer during which the Mother wo ul d ha ve alternate weekend visitation with the child. In addition, the court's orde r provided that the parties would altern ate major holidays.

We realize that this

visitation plan is not as

extensive

as certain of the v

arious arrangements

between the parties in previous years many of which were joi nt custody arrangements. However, the very nature of single-parent custody is that the custodial parent is given the "primar

y control and responsib

ility for the up

bringing of the parties' children." Dodd v. Dodd , 737 S.W.2d 286,

289 (Tenn. App. 1 987) (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 responsibili

ty of thecustodial parent comes that parent's "sole prerogat ive to make the signif icant decisions conce

rning the child's education, residence, religious training, and medical care." Rust v. Rust , 864 S.W.2d 5 2, 55 (Tenn. App. 1993) . It follows that t he non-custodial pare

nt's rights and obligations arising from the parent-child relationship are diminished. Where, as in this case, the visit

ation structured by the trial court permits the maintenanceof the parentchildrelationship, there is no abuse of discre tion on the part of the lower court. We8

therefore uphold the

lower court's ru

ling with regard to v

isitation.

In conclusion, we find that the evidence does not preponderate against the trial court's findings with regar d to custody and

visitation in th is case. Thus, we affir m the decisi on of the lower court to place custody with

the Mother. We a

lso uphold the Father's visitation

with the child as it w

as structured by the t

rial 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