### IN THE COURT OF APPEALS OF TE NNESSEE AT KNOX VILLE Jul y 11, 200 5 S es sio n

De AN GELO B EETHO VEN NE WMA N v. LISA MIC HELLE MY ATT

Direc t Appeal from the Circ uit Court for Washin gton County No. J3757 Hon. Robert G . Lin coln, Circuit Judge

No. E2004-02890-COA- R3-CV - F ILED AUGU ST 22, 2005

The father filed a

Petition t o chang e custody o f m inor son from mother to father. Upon he aring evidenc e, the Trial Court held there had bee n a material chang e of circ umstances and it wa s in the c hil d’ s b e st i nte re st t o a wa rdc us tod y

to the fathe r. On app e a l, w e a ff ir m.

Te nn. R . A pp. P .3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uit

Co ur t A ffirm e d.

H ER SCH EL P I CKE N S F RAN KS , P.J ., delivere d the opinion of the court, in which C H A RLES D. S US ANO , J R ., J ., and D. M I CH A EL S WI NEY , J ., joined.
Christ op he r P . Ca

pp s, Mo rrist ow n, Te nn e sse e , f or app e lla nt. M. Stanley

Givens, Johns on City , Tenne ssee, f or appe llee.

OP IN ION

I n this custo dy

dispute, the Trial Judge c hang ed the c ustody of the c hild from the mothe r t o th e fathe r, a ndthe mothe r h a s a pp e a le d to thi s Co urt.
The c hild was born on Ap ri l 4 , 1 9 9 2 , and plaintiff f ather filed a Petition for L eg itimation on J une 10, 1998, alleg ing that he had be en voluntarily pay ing support to mother since the child’s birth, and ha d maintained st eady contac t and visitation with t he child. The Petition a lle g e d th a t th e mothe r h a d mo ve d to Ha mbl e n Co un ty wi th the c hil d, a nd

fathe r d e sir e d to e sta

bli shWhil e the a ttorney s were prese nt for the in ca mera interview, appar ently

no court re porter 1 was pre sent, as we have no tr an s cr i p t of that hea ring , which we have r

uled is mandatory . The hearing w as we ll in advanc e of the actual trial, and the Trial Court obviouslyg ave no w eig ht to the in camer a hea

ring . We conclude that the failure to have a court re porter pr esent to t ra n s cr i b e the he ari ng wa s h arm le ss e rr or un de r the c ir c ums ta nc e s.

-2- reg ular visitation with his son.

The parties enter ed an Ag ree d Orde r on Aug ust 31, 1998, leg itimating the child and g ra nti ng c us tod y

to t he mothe r. Th e fathe r w a s g ra nte d s ta nd ardvis itatio n a ndor de re d to pa y c hil d support. On April 5, 2004, t he father filed a Petition for Chang e of Custody , and alleg ed that a substantial and mate rial cha ng e of c ircumstance s had arisen since the origina l custody order , and that it was in the child’s best intere sts that he be in t h e cu s t o d y o f hi s father . At the behe st of the mother, a G uardia n Ad L item was appointed f or the c hi l d , t o i n v es t igate the cir cumstance s of the child and re port it to the Court. The Court conducted a prolong ed trial wit h numerous witnesses testify ing. A t the conclusion of the e videntiary hear ing, the Court rende red a n oral opinion which was re duced to writing and inc orporated in the Court’s Orde r on Aug ust 20, 2004 finding that it was i n t h e c h i l d ’ s b e s ti n t e r e s tt o b e p l a c e d i n t h e f a t h e r ’ s c u s t o d y. The Court, in its Memorandum, found re g arding the fa ctors enume ra t ed in Tenn. Cod e An n. § 36 -6 -1 06 , th e pa rt ie s w e re e qu a l on se ve ra l f a c tor s in c lud ing lov e a nde mot ion a l ti e s, stabilityof family , mental and phy sical health of parties, etc. The Court note d that he intervie wed the child in chambe rs in the pre sence of the a ttorney s, but that he could g ive little cr ed en ce to the child’s pref

ere nce beca

use the child was so upse t, and the only pref ere nce he expressed wa s to say that he like Morr istown. 1

The Court said the f

actor s reg arding the disposition of the parents to provide for the c hil d’ s n eeds , the de g re e to w hic h a pa rt y ha s b e e n p ri mary

c are g ive r, a ndthe pa

re nt’ s p a st perf ormanc e of pa

renting responsibilities, were the most important factors to c onsider. The Court noted that since kinde rg arte n, the child had missed 17- 31 day s of school ea ch y ear , that his gr ades wer e “hor rendous” , and that he ha d been diagn o s ed b y a socia l worker with ADHD. The Court stated that it was “disturbe d” that a c hild who had bee n passed to the f ifth g rade could only

rea d and do math at a f

irst or second g rade level.
The Court stated the mother had known of the child’s ADHD diag nosis since Marc h 2004, and also kne w that tutoring (by way of Resourc e) had helped in the past, but had failed to g ive the c hil d a ny

fu rthe r tut or ing sin c e the dia g no sis . T he Cou rt fo un d th e fathe r a sk e d th e mothe r t o let him have the c hild f

or the summer to g et him tutored at Sy lvan L earning Ce nter, but the mother ref used. Also, the Court sa id the school rec ords wer e self-e x planatory , and that it was “ hard to lea rn when y ou’re not at school.”-3- The Court conc luded that a substantia l a n d ma teria l c h an g e o f

c irc umstances ha d been established, and tha t the child’s poor school r ecor d was “ controllable by the par ent who has primary custody and at this point that happens to be mother .” The Court further not ed the mother

did not work, but wa s supposed to be st arting a job the foll owing Monday , and that the f ather and his wife wer e in a be tter p o sition t o car e for the child. Further, that the f ather had a be tter work e thic, and had so ug ht tutoring for

the child, and he further found that the mother’ s excuses for the poor attendanc e we re not credible, and that the m other had smoked around the child, both at hom e and in the car , which contr ibuted to the child’s aller g ies and he alth problems.

Th e Cou rt

ob se rv e d th a t th e c hil d h a d ti e s in th e Was hin g ton Cou nty c omm un ity beca use he ha d lived there until he was in ki nderg arte n, and had f riends and f

amily there , as we ll as c hu rc h a ndba ll t e a m a sso c ia tio ns
.

The issues for

revie w ar e:
1

. W h et h ert h e t ri al co u rt er re d i n fi n d i n g t h at a m at er i al an d s u b s t an t i al ch an ge of circ umstances ha d occur red?
2. Whether the trial c ourt err ed in fa i l i n g to give proper weig ht to the fac tors enumer ated in Te nn. Code Ann. §36-6- 106?
3. W het her th e tr ia l c ou rt e rr e d in fi nd ing that th e be st i nte re sts of the c hil d would be ser ved by

chang ing c ustody

from mother to father?
I n c hil d c us tod y

c a se s, app e llate re vie w i s de novo upon the re cord w ith the p r e s u m p t i o n o f c o rr e c t n e s s o f t h e T r i a l C o u r t ’ s f i n d i n g s o f f

a c t

. T e n n
. R

. A p p
. P

. 1 3 (d ); Hass v. Knighton , 676 S.W .2d 554, 555 (Tenn.1984)

.

Th e fathe r h a s th e bu rd e n o f e sta bli sh ing a ma te ri a l c ha ng e of c ir c ums ta nc e s, a ndin this reg ard, w e have said:

Although the re is no conc rete defi n i t i o n for what constitutes a material chang e of c ir c ums ta nc e s, th is Cou rt ha s e nu me rate d s e ve ra l f a c tor s th a t sh ou ld b e take n in to consideration when determining whe ther such a chang e has occur red. I n g ener al, the ch an ge m u s to cc u r a ft ert h e e n try o f t h e o rd er s o u gh t t o b e m o d i fi ed an d t h e c h an ge cannot be one that wa s known or re asonably anticipated w hen the or der w as ente red. I n ad d i t i o n , t h e m at er i al ch an ge o f c i rc u m s t an ce s m u s tb e ach an ge i n t h e c h i l d 's circ umstances, not the c ircumstance s of either or both of the pa rents. F inally , the chang e must aff

ect the c hild's we ll-being in a material way

. Hoalcraft v. Smithson , 19 S.W .3d 822, 829 (Tenn. Ct. App. 1999)( citations omitt ed).

I n this case , the evidence established that over the ensuing 6 y ear s after the orig inal-4-

c us tod y or de r w a s p ut d ow n, that the c hil d ha d de ve lop e d sig nif ic a nt pr ob le ms i n s c ho ol b othwi th g rade s and attenda nce. T his circumstanc e could n o t h ave been a nticipated/fore seen w hen the or ig ina l or de r w a s e nte re d, be caus e th e child h a d n ot y e t st art e d s c ho ol. Al so , th is i s a c ha ng e in the child’s circ umstances and not that of t he parents, and it also has affec ted hi s well-being , since he is not able to per form in school at his appr opriate g rade level. Educ ation is an important part of a child’s de velopment, and he has not rec eived a dequate help or a ttention in thi s are a.

Gi ve n th e pr oo f tha t w a s p re se nte d r e g ard ing the c hil d’ s st ru g g le s in sc ho ol a ndhis inabilityto function with his peers, a nd his excessive absenteeism eac h and every y ear , a basis wa s established for

the Court’s finding that a substantial and mate rial cha ng e of ci rc u mstances ha s occur red since the entry

of the orig inal order . The e vidence does not preponde rate ag ainst the Trial Court’s finding in this reg ard. Te nn. R. App. P. 13(d).

Mother also a

rg ues the Trial Court did not g ive proper consideration to the statutory fac tors enumer ated in Te nn. Code Ann. §36-6- 106 reg arding custody decisions. Those fa ctors ar e:

(1) The love, af

fec tion and emotional ties exi sting be tween the pare nts and child; (2) The dispositi on of the pa rents to provide the child with food, clothing, me dical car e, education a nd other nece ssary car e and the de g ree to which a pa rent ha s been the primary

car e g iver; (3) The importance of continuity in the child' s life and the le ng th of time the child has lived in a stable, satisfa ctory environment; . . . (4 ) T he sta

bil ity of the fa mil y

un it o f the pa

re nts ; (5 ) T he me nta l a ndph y sic a l he a lthof the pa re nts ; (6) The home, school and c ommunityrec ord of the c hild; (7) The rea sonable prefe renc e of the child if twelve ( 12) y ear s of ag e or olde r. The court may hear the prefer ence of a y oung er c hild upon request. The pref ere nces of older c hildren s h o u l d normally be g iven g reater we ight than those of y oung er children; (8) Evide nce of phy sical or emotional abuse to the c hild, to the other pare nt or to any other pe rson; . . . (9) T h e c h ar a c te r a n d b e h a v io r o f a n y o th e r p e r s o n w h o r e s id e s in o r f r e q u ents the home of a pare nt and such pe rson' s interac tions with t he child; and (10) Ea ch par ent' s past and potential for futu re p er fo rmanc e of pa renting-5- re sp on sib ili tie s, inc lud ing the wi ll in gne ss a ndabil ity of e a c h o f the pa

re nts to fac ilitate and encourag e a c lose and c ontinuing par ent-c hild relationship betwee n the child and the other

pare nt, consistent with the best interest of the c hild.
A r e vie w o f the Tria l Cou rt ’s fi nd ing s d e mon str a te s th a t th e Tria l Co urt di d, in f a c t, pr op e rl y c on sid e r a ndc omm e nt o n e a c h of the statut ory fa c tor s. Th e Cou rt fo un d tha t a s to c e rt a in fac tors, namely

love and aff

ection, stability of the fa milyunit, and mental and phy sical hea lth of the pare nts, that the parties we re e ssentially equal. The Court found t he child had expressed a liking for Morristown, but that he had be en so clea rly torn about the decision and so traumatized by it, that the Court ga ve little cre dence to his prefe renc e.

As to the rema ining fac tors, the Court f ound there wer e no alleg ations of abuse , and nothing r eg arding the charac ter of other persons in the hom e which conce rned the Court, such that the main fa ctors whi ch influenc ed the Court’s de cision were those dea ling with the disposition of the pa re nts re g ard ing pr ov idi ng for th e ch ild ’s ne e ds , th e c hil d’ s h ome , s c ho ol, a ndc omm un ity rec ord, and the pare nts’ potential for f uture pe rformance of par enting responsibilities. The C o u rt found that these fac tors milit ated in favor of gra nting custody to the father, primarily based upon the mothe r’ s la c k o f c on c e rn/he lp w ith the chi ld ’s sc ho ol p ro ble ms, his po or a tte nd a nc e re c or d w hil e in her c are , and her poor ex ample set by her own school/work history . The e vidence preponde rate s in favor of

these finding s. Tenn. R. App. P. 13(d).
Whil e continuity

of plac ement is one of the fac tors to be considered, a s the mother arg ues, thi s d o es n ot outweig h all of the other fac tors, espec ially

wher e the pr oof re g arding the child’s strug g les in school is so persuasive. We c onclude the T rial Court p ro p er l yanaly zed the app ro pr ia te statut ory

fa c tor s, a ndthi s is su e is w ith ou t me ri t. Having satisfied t h e requirement r eg arding a substantial and mate rial cha ng e of circ umstances, the Trial Court the n determined what wa s in The child’s best intere sts, util izi ng the statutory fac tors as discussed. The Tri al C o urt conc luded that the mandated fa ctors re quired a chang e of c ustody

from the mother

to the fathe r, as suc h was in the be st interests of the c hild.
Be cause custody

decisions ar e fa ctually

driven a nd often a

re de termined by

the c re dib ili ty

of the te sti mon y , app e lla te c ou rt s a re he sit a nt t o r e ve rs e the tr ia l c ou rt s’ de c isi on s b e c a us e the trial judg e wa s able to obse rve the witnesses testify and judg e their c redibility

. Adelsperge r v. Adelsperge r , 9 70 S.W. 2d48 2 ( Te nn . Ct . A pp . 1 99 7) . T hu s, the a wa rdwi ll b e up he ld un le ss i t is “base d upon a material err or of law o r t h e ev i d en ce preponde rate s ag ainst” it. Id. at 485. As we observe d in W

hitaker v. W

hitaker , 957 S.W .2d 834 (Tenn. A pp. 1997). “N o wher e is the pre sumption of cor rec tness of the trial c ourt’s conclusions more applicable than in matters of child custody wher e the s u rr o u n d in g te s ti mo n y is c o mp le x a n d in v o lv e d a n d f r e q u e n tl y f

il le d w ith d is p u tes and acrimony .”, which has previously been quote d in He rre ra v . H e rre ra , 944 S.W .2d 379 (Tenn. A pp. 1996). We conc lude t hat t he Trial Court proper ly chang ed custody , and we aff irm the J udg ment of the Tria l Co urt.-6- Th e c a us e is r e ma nd e d, wi th the c os t of the app e a l a sse sse d to L isa Mic he lle My a tt.

______________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.