# FILED
October 3, 199 7 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
NA NCY REN EE ) McREYNOLDS (DELBRIDGE), ) ) Plaintiff/Appellant, ) Bedfo rd Chancery No. 19,185 ) VS. ) A ppeal No. 01A 01-9702-CH- 00064 ) ROBERT IR VING McREY NOLDS, ) ) Defendant/Appellee. )
APPEAL FROM THE CH ANCERY COU RT OF B EDFOR D COU NTY

AT SHELBYVILLE, TENNESSEE THE HONORABLE TYRUS H. COBB, CHAN CELLOR

TERRY A . FANN R. STEVEN WA LDRON WALDRON A ND FAN N Murfreesboro, Tennessee Attorneys for Appellant
JOHN H. NO RTON, III NORTON & SMITH Shelbyv ille, Tennessee Attorney for Appellee

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. HOLLY K IRBY LIL LA RD, J.2

Nancy Renee McReynol ds Delbr idge (Mot her) appeals t he trial cour t’s order de ny in g her counterpetition to mod ify the joint cust ody arrangement previously agreed to by

the parties and set forth in thei r final divorce decree. For the reaso ns stated here inaf ter, we affirm the trial court’s judg ment.

T he Mother and Appellee Robert Irving McReynolds (Father) were divorced in Bedford County in July 1994. Per their ag reement, the final di vorce decr ee awarded the parties joint custody

of their two minor daught ers. Alth ough the decreeawarded the Mother primary physical c u stody of the chi ldren, the decr ee set forth an arr

angement whereby the children spentthree night s per week (Wednesday, Thursday, F riday) with the Father and the remaining four nights per

week w ith the Mother. Addi tionally , the decree permitted the Father to pick up the children and take them to church every othe r Sun day.

In March 1995, t he Father filed a petition tochange custod y in w hich he asked the trial court to ter minate the joint custody arran gement and to award him sole c ustody of the children. As grounds

for this chang e, the Father alleged that

the Mother was engaging in overnig ht visits

with a mal e friend whi le the childr en were present and, further, th at the Mother was consuming intoxicants around the children . The Father’s petition also described conflicts over joint custody issue s which had arisen between the par ties since the divorce.

The Mother answered and filed a co unterpetition in whic h she similarl y requested the trial cour

t to modify the j oint custody arrangement by

awardingher sole custody of the children. Th e Mothe r’s counter petition all eged that the foll owing mat erial chang e of circumstances

warrant ed modification of the j oint custody arrangement: That [the Father] const antly haras ses [the Mother] to the point where she has been forced to plac e a block on her telephone. That, further, [the Father] intenti onally pl aces the minor children of the parties in the mid dl e of an argument w ith [the Mother] even though [the Mother] has repeatedly advised him that doing so ca uses emotional har m to the children. That, [the Mother] has tried to cooperate with [the Fathe r] in every respect in order to assure that the children’s best interestsare3 preserved; however, [the Father’s] attitude makes cooperati on impossible.

The parties’ dau ghters were six and seven years old, respectively, in August 1996 when the custody

modification hear ing took pl ace. At the hearing, t he Mother testified that the Father’s hostility

toward her

had increased since the part ies’ divorce and had made the jointcustody ar rangementunworkabl e. Accordingto the Mother, t hese problems beg an in August 1994, t he month followi ng the divorce. When the Father ar rived at the Mother’s house on e day to pi ck up the chil dren, the Father discovered that a male friend of the Mother was there worki ng on an air conditioner. The Father became very hosti le and initiated a loud, ver bal confrontation w ith the man, whose name was Tom Delbridg e. The Father terminated the conf rontation only after Delbrid ge remin ded him that the chi ldren were pres ent.

After the Father file d his modificati on petition, th e Mo ther married Delbridg e and moved to the Rockv

ale community of neighboring Rut herf o rd County. The Mother’s relationship with the Father has continued to deter iorate sinc e the divorce. As recent ly as July1996, the month be fore the hearing, anoth er angry confrontation occu rre d between the Father and Delbridge at a ballpark. The Fath er coached the children’s softball team, and the Mother and Delbridge were there to watch t he game. After th e game, the Father and Delbridge argued over what time the Father was going to pick u p the ch ildren for visitati on the n ext evening. Again, w ith the chil dren present, t he Father became very loud and made threatening statements toward Delbri dge.

In addition tothe Father’s confrontations w ith Delbri dge, the Mother testified that th e Father had made joint custody diff icult in other ways. For example, the Mo ther testi fied that the Father had enrolled the c hildren in a soccer camp and other programs without f irst consulting the Mother. Generally , the Father is 3 5 to 40 minutes late returning the children to the Mother’s

house. A disput e also arose after the divorce over w hether the Father had paid his share of the children’s child-care expenses. The Mother testi fied that she block ed4

her telephone from recei ving calls from the Father beca use he called s o many times w hen the Mother had t he girls that the Mother

felt the Father w

as harassingthem.
Despite these conflicts

with the Father, the M other acknow ledged that both children
wer e heal thy a nd were very good students. Alth ough both chil dren are student s in the Bedford County sc hool syste m, and both the Mother and Delbridg e are employed by the school system, the Mother and Del bridg e live o ver 30 mile s away in Ruth erf ord Co unty. Acco rdin gly, on the three school mornin gs each week when she has the childr en, the Mother drivesover 60 mil es round tri p to Bedford County . The Mother ex pressed a desire to enroll the c hildren in Rutherford C ounty school s the follow ing school year. The M other also acknowled ged thatthe Father’s problem of returning the children late began after the Mothe rmoved to Rutherford County . Despite theinconveni ence to the Father and the extra travel t ime for

the children , on the weekends when the Father was permitted to take the children to church on Sunday morning, the Mother stil l insisted that the Father return the children at the scheduled time on Saturday evening. The Mother justified this deci sion by expl aining that her time w ith the chil dren was “ very precious” t o her.

In his testimony , t he Fat her acknowledged that he had engaged in ho stile confrontations w ith Delbri dge, includi ng the inci dent at the ballpa rk the month before the hearing, but the Fa ther denied being the ag gressor in these situations. The Father believed that the initi al confrontation w ith Delbri dge occurred befor e the parties’ divorce
was final. The Father

testified that th ere was hostility be tween the par

ties at the ti me of the divorce and that, if anything, he was not as vocal in his animosity now as he us ed to be. The Father beli eved that the Mother put the block o n the phone, not because his calls
were harassin g, but bec ause the Mother did not want him to talk to

the children . The Father admitted telli ng the Mother about the child ren’s socce r camp on the Friday before the Monday the camp started, and he admitted often returning the children as m uch as 20 minutes late. The Father t estified, h owever , that he alone handl ed the responsi bility of transportingthe children between his house in Bedford Coun ty and the Mother’s house in5

Rut herford Cou nty. The Father further testified that the chil dren had always attended school and church in Bedford Count y and that most

of their relat ives li ved there.

The Father filed hi s petition to change custody primarilybecause of his obj ection to the Mother’s overnight visits with Delbridge in the presence of the children. Now that the Mother and Delbridge were married, this asserted ground for mo dif icat ion no longer existed. In closingarguments, t here fo re, the Father ’s attorney argued that no

material ch ange in circumstance had been show n and that the joi nt custody a rrangement sh ou l d be continued, “w ith the exc eption that [the F ather] ought t o have the abi lity on his Sund ays when he takes

the children to church, to keepthem over that Saturday night, so t hat the [children] are not on the road f our or five times during that two-day period.”

At the conclusi on of the custody he aring , the trial court orall y ruled t hat it was declining to terminate the joint custod y arrangement. In doing so, the trial court specifically rejected the W ife’s claim that hostility between the parties co nstituted a chang e of circumstance which warranted a chang e of custody. The trial cour t instead found that [T]here was hostility

at the time [of] the d ivorce .

. . .

. . . .

. . . I don’t see that there has been any increase in hostility since the ti me of the separation. I think it probably has lessened. In determining that continuati on of the joint custody arrangement was in the children’s best interests, t he court stated:

. . . I have n’t heard any

proof that[joint custody] has adversely affected these children. Both parents say the chil dren are happy; the chi ldren are heal thy. The court found that joint cu stody sh ou ld be continued at least for the nex

t school year because the children were closer to their school when they stayed with the Father at his home in Bedford County. That way, the children only had to make the 64-mile round trip three days per week

rather than five days per week. The tr ial court s ubsequently entered a writt en order setti ng forth its rulings on the custody issue and rel ated issues.6

The Mother has appeal ed, challeng ing vi rtually every ruling a nd finding contai ned in the trial cour

t’s wr itten order. Specifically , the Mother contends thatthe fo llowing rulin gs and findings are in error:

C.

. . . [T]he Court speci fically [fin ds] that there ha s n ot occurred su ch a material and substantial change i n circ ums t ances as to war rant the entry of a modification ord er changing custody from joint to sol e. There is no pr oof that joint custody has had an adverse i mpact on the we lfare of the children. D. The Cour

t, though findingsome hostili ty betw een the parties, does

not find that the hostility level has

increased since the time of the parties’ d ivorce. E. The Court does find some slight change in circumstanc es due to the move by [the Mother] of her residence to Rutherford C ounty, Tennessee. According ly, on those alternating weeks w hen [the Father] has the right to take the children to church on Sunday , he wil l not be oblig ated to return the children from the time he recei ves them on Wednesday at 5 : 00 p.m. until the following Sunday at 1:00 p. m. F. The p art ies should con tinue to share the joint custod yof their chil dren, at least for the next year since [th e Mother] testified that th e children w ill be attend ing Bedford County schools for thecurrent 1996- 1997 school year. Should [the Mother] choos e to enroll t he children i n some school system oth er than the Bedford C ounty school system for th e 1997-1998 school year, eit her party may petition the court to modify the join t custody s ituation at that time. G. The part ie s are ordered to continue the child support agre eme nt as specified in th eir marital dissolution agreementwith [theFather] beingordered to cont inue paying $500.00 p e r month as child support . . . . The Court specifically finds that, due to the joint custody arra n gement, this is an ap pro priate case for deviating from the Tennessee Child Support Guidelines. H. Each party shall pay his or her o wn att orne ys fees and litig ation expenses

.

If this were an appea l from a n original custody p roceed ing, we might be hesitant

to affirm the trial cour

t’s decisi on to award these parties joint custody of their chil dren, given some of the difficulties related by the parties at the hearing. We note, however, that the parties agreed to this arrangement i n the fina l divor ce de cree and t hat t his is now a proceeding to modify that arrangement. In a proceeding to modify a prior custody order, the party seek ing a chang e of custody has the burden of prov ing a m ateria l change in7

circumstances

compelling enough to warrant such a change. See Mus sel man v . Ac uff , 826 S.W.2d 920, 922 (Tenn. App. 1991); se e al so T.C.A. § 36-6- 101(a)(1) ( 1996) (providi ng that trial cour t retains j urisdicti on over custody order s subject to s uch changes
or modif ication as “exigenci es” of ca se may requ ire). A cha nge o f circumstances warranti ng a modification of custody incl udes “any mate rial ch ange of circumstances affecti ng the welfar e of the child or children”and requires a showi ng of “new facts or changed conditions w hich could not be anticipated by the former decree. ” Dalt on v. Dalton , 858 S.W .2d 324, 326 (Tenn . App. 1993).

In Massengale v. Massengale , 915 S.W.2d 818 (Tenn. A pp. 1 995), this co urt set forth the applicabl e standard for revi ewing a trial cour

t’s determinat ion of the issue of changed circumst ances in a custod y modif ication proceed ing:

In ord er t o ju sti fy

a change in a

custodial ar rangement, there must be “such a ch ange in circumstances as will directly affect the welfare of the minor.” Dailey v . Dailey , 635 S.W.2d 391, 393 (Tenn. App. 198 1). As in all non-j ury cases , a trial court’s determination on this issue is r eviewe d by us de no vo ; however, th e r ecord devel oped below comes to us accompanied by a presumption of correctness th at we must honor unless the ev idence preponderates against the fin dings of fact supporting the lo wer cour t’s judgment. Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984). In making our d e novo review, we “do [ ] not pass on the cre dibi lity o f witnesses .” Bowman v. Bowman , 836 S.W.2d 563, 567 (Tenn. App. 1991). “Credibility is an issue for the trial court wh o saw and heard the w itnesses test ify and is therefore in the premier position to determine credib ility (citation omitted).” Id

. Massengale , 915 S.W.2d at 819.

Based on the tr ial court ’s find ing that no m aterial chang e of circumstance had occurred since the parties’ divorce, we affirm the trial c ourt’s denia l of the Mother’s counterpetiti on to ch ange cust ody. In the past, we have held th at the “unwor kability of joint custody because of the recalci trance of one or bot h partners” may constit ute a change of circumstances

warrant ing a chang e of custody. Da lton v. D alton , 858 S.W.2d 324, 326 (Tenn. App. 1993); accord Cheek v. C heek , No. 03 A01-9503-CV-0 0092, 1995 WL 507793, at *2 ( Tenn. App. Aug. 29, 1995), perm. app. denied (Tenn. Jan. 8, 1996) ; Phillips v . Phillips , No. 01A01-9407- CH-00363, 1995 WL 336973, at *3 (Tenn. App. June 7, 19 95).1 As am end ed, th e sta tute p rovide s tha t: Except as provi ded in t he fol lowi ng sentence, neit her a prefe rence nor a p re su m ptio n fo r or ag ain st jo int le ga l c us tod y, joi nt phy sical custody or sole custody

is est abli shed, butthe court shall have the wi dest di screti on to order a custody

arrange ment that is i n the best int eres t of the chil d. Unless the court fi nds by clear and convi ncing e vid ence to t he co ntr ar y, 8 In th e presen t case, how ever, the t rial court found that, if anythi ng, the hosti lity between the parties had actually lessened since the time ofthe final divorce decree and, thus, that
no material chang e of circumstance had been shown. The tria l court als o found no evidence that the children had been adver sely affected by

the joint custody arran gement. In accordance with theforego ing stand ard of review, we must presum e that t hese f indings are correct , unless the ev idence preponderates otherw ise.

We recogniz e that the evi dence concernin g the level of hostilit ybetween theparties in this case was disputed at t he custody hea ring. The tr ial court, howev er, was in a position to evaluate the credibili ty of the w itnesses at th e hearing, an d the court apparently resolved this dispute in favor of the F ather. As in Massengale , “we can n ot say that th e evidence prepon derate s against the trial court’s f indings of fact supporting its conclus ion that there had not been a sufficient changein circumstances to just i fy a cha nge in custody.” Massengale , 915 S.W.2d at 820.

At the custody

hearing, t he Father acknow ledged that there had been disagreements

between the part ies relat ing to the children’ s clothing , exchangi ng the children for visi tation, and other matters. According ly, theevidence w as undisputed that the parties have expe rience d some problems w ith the joint custody ar rangement. In DeVault v. DeVault , No. 01A01-9601- CV-00012, 19 96 W L 482968, at *3 (Tenn. App. Aug. 28, 1996), however, thi s court rec ently held that an awar d of joint cus tody is not precluded by the fact that the parties may

experienc e some problems w ith the joint custody
ar rang ement; an award of joint custody does not require that the parties be on friendly terms. This holding was based, in part, on th e legisl ature’s 1996 amendment of the child custody statut es, an amendment w hich effectivel y eliminat ed the judicia lly-c reated presumption against j oint custody awards w hich prev iously ex isted in thi s state. DeVault , 1996 W L 482968, at **2-3 (citing 1996 T enn. Pub. Acts. 1046). 1the re is a presumption thatjoi nt cust ody i s in t he best i nter est of a minor ch ild where t he parent s have agr eed to j ointcustody or so agr ee in ope n court at a hearing fo r the pur pose of det erminin g the cust ody ofthe minor chil d.

. . . The burden of p roof nece ssaryto modify an order

of joi nt cust ody at a subseq uent pr oceeding shall be by a preponder ance of t he evi dence. T.C.A. § 36-6 -101(a)(2) (1996).

2 W e l ikewi se decli ne to add ress t he issue of whet her t he tr ial court erred in modif yi ng the Father’ s visi tat ion sch edu le on th e we ek end s he take s the childre n to c hurc h. Alt hough the Mother r aised t his i n her stat ement of t he issue s present ed for r evi ew, t he argument port ion of t he Mother’ s bri ef fai ls t o set fort h her content ions with re spe ct to this iss ue. A cco rding ly, this issue is wa ived. See Bla ir v. Bade nhope , 940 S. W .2d 575, 576-77 (T enn. App. 199 6); T.R.A.P. 27. I n any event, we fi nd the trial co urt’s re solu tion of this iss ue to be an equi tabl e one. 9 Although we affirm the trial court’s or der denying a ch ange of custody, we remind the parties that the trial court is em powered to r evisit i ts decision if future circumstances warrant. As this court previously has cautioned parties,

[T]he Trial Cou rt retain s the po wer to chan ge the f o rm of cust ody. Such change w ill undoubtedl y militat e against the custodial rights of one of t he parents. It therefore behooves both parents to strive mightily to make joint custody work. Gray v . Gray , 885 S.W .2d 353, 355 (Tenn . App. 1994).

Inasmuch as the trial court al ways retains jur isdiction t o modify its c hild custody orders, we reg ard as superfluous the trial court’s rul ing that, “ [s]hould [theMother] choose to enroll the c hildren in s ome school system other than the Bedfor d County sc hool syste m forthe 19 97-1998 school year , either part y may peti tion the court to modify the joi nt custody situation at

that time.” We know of no procedural impediment to eit her party filing
a f uture pe tition to chang e custody. The trial cour t may only

grant such a petition, ho wever, if the petitioner meets the burden of pr oving th at a material c hange o f circumst ance has occurred w hich justifies changing custody. Mus sel man v . Ac uff , 826 S.W.2d 920, 922 (Tenn. App. 1 991). Althoug h we question whether th e Mother’s d ecision to change the children from Bedf ord to Rutherford County schools would constitu te such
a change in c ircumstances, we note that this issue is not proper ly before thecourt at this time. 2

In light of our

affirmance of the trial court’s dec ision to conti nue the j oi nt custody arrangement, we affirm the tr ial court’ s decision not to increase the Father’s child support obligat ion at th is time. Per the parties’ marital dissolution agreem ent, the final divorce10

decree required the Father to pay $500 per month in child supp ort. Admittedly, this amount is less than the presumptive amou nt established by the Child Support Guidelines. Due to the continued joint custod y arrangement, however, the trial court properly found that this was an ap propriate cas e for deviati ng from the Guidel ines. See Gray v . Gray , 885 S.W .2d 353, 356 (Tenn . App. 1994).

We also affirm the tr ial court’ s decision t o deny the Mother’s

request for a n award of attor ney’s fees and costs. Tennessee C ode Annotated secti on 36-5-103(c) gover n s award s of atto rney’ s fe es in proc eed ings re lati ng to c hild supp ort a nd ch ild cu stod y:

T he plaintiff spouse may recover from the defend an t spouse, and the spouse or other per son to whom the custody of the child, or children, is awa rded may recover from the other spouse reasonable attorney fees i ncur red in enforcingany decree foralimony

and/or child support, or in regard to any suit or action concer ning the adjud ication of the custody or the change of custody of any child, or children, of the parties, both upon the origi nal divorce hearing and at any subseq uent hearing, wh ich fe es may be fixed and allow ed by the cour t, before whom su ch action or pr oceeding is

pending, in the discretion of such court. T.C.A. § 36-5-103(c) (1996). Courts have held that, under the foregoing statute, a part y who successfully

pursues or

defends a change of custody petiti on is entitl ed to an award of attorney’s fees. See D v. K , 917 S.W .2d 682, 686 (Tenn . App. 1995); Gaddy v. Gaddy , 861 S. W.2d 236, 241 (Tenn. App. 1992 ); Fenley v . Fenley , No. 03A01-9604- CH-00121, 1996 WL 469683, at *4 (Tenn. App. A ug. 19, 1 996). In the present case, however, the Mother did not succes sfully purs ue her counterpet ition to modify custody because the petition was denied. According ly, we agree w ith th e trial c ourt that the M other was not entitled to an award of attorne y’s fees.

As a final matter, we deny the Father’s motion for damages for f rivolous appeal. See Anderson v. Dean Truck Line , 682 S.W .2d 900, 902-03 (Te nn. 1984).

The trial cour

t’s judgment is hereby

affirmed. Cos ts of thi s appeal are tax ed to Appe llan t, f or whic h exec utio n ma y issue if ne cess ary.11 HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

LILLARD, J.