FILED

September 21, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

GREGORY C. LURIE )

)

Petitioner/Appellant, ) Appeal No.

) 01A01-9807-CV-00376

v. )

) Sumner County Circuit

MICHELLE H. (LURIE) ) No. 11754-C

MANNING )

)

Respondent/Appellee. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT

FOR SUMNER COUNTY

THE HONORABLE TOM E. GRAY,

SITTING BY INTERCHANGE, PRESIDING

LAURA Y. GOODALL

113 WEST MAIN STREET

GALLATIN, TENNESSEE 37066

ROBERT TODD JACKSON

222 SECOND AVENUE NORTH

SUITE 419

NASHVILLE, TENNESSEE 37201

ATTORNEYS FOR PETITIONER/APPELLANT

MARK T. SMITH

KELLY & SMITH

121 PUBLIC SQUARE

GALLATIN, TENNESSEE 37066

ATTORNEY FOR RESPONDENT/APPELLEE

AFFIRMED AND REMANDED

PATRICIA J. COTTRELL, JUDGE

CONCUR:

CANTRELL, J.

KOCH, J.
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OPINION

This appeal involves the custody of two minor children. Following a bench trial,

the trial court ordered that the parents continue to have joint custody, but modified primary

physical custody and visitation. Both Father and Mother had sought sole custody, each alleging

a change of material circumstances warranting modification of their joint custody

arrangements. The Father asserts on this appeal that the trial court erred because he is

comparatively more fit than the Mother to have custody, and that the court incorrectly applied

the change of circumstances requirement. In the alternative, Father asserts the prior six-month

arrangement should be reinstated. We affirm the trial court's order.

I.

The parties were divorced on July 23, 1993, based on irreconcilable differences.

At the time of the divorce the parties had two minor children. In their marital dissolution

agreement, incorporated into the decree, the parties agreed to joint custody, with physical

custody evenly divided. Mother was to have primary physical custody from February 1 to July

31, and Father the rest of the year. The non-custodial parent had liberal visitation. The parties

lived under this arrangement until this action began.

On December 30, 1997, Father filed a petition for change of custody asserting a

material change in circumstances warranting change of custody. The petition specifically

alleged that Mother had remarried, and that her new husband acted inappropriately around the

children. On January 12, 1998, Mother filed an answer and counter-complaint, responding that

the conduct of the second husband was moot because they were already divorced. She

counterclaimed alleging that Father had remarried and moved into a “dilapidated” house in a

“dangerous” neighborhood. She also alleged that Father was an absentee parent due to his

work schedule, leaving primary care of the children to the stepmother. Both parties’ pleadings

included other allegations, which each maintained warranted modification of custody.

Father was due to return the children to Mother on February 1, 1998, and prior to

that date, Father requested a hearing on the issue of temporary custody. After a hearing on

January 20, 1998, the trial court ordered that custody remain the same but that the children
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continue to reside primarily with Father pending the final hearing of the case.

After an evidentiary hearing, conducted on May 15, 1998, the trial court issued an

order in which it found that it was in the best interest and welfare of the parties’ minor children

that they remain in the joint custody of both parents. The court ordered that mother have

increased physical custody from August 18 through May 31 of each year. The court’s order

also addressed the issues of visitation and child support. Father appeals the order of the trial

court granting Mother increased primary physical custody of the children.

II.

Cases involving a request for change of custody of minor children are particularly

fact driven. See Rogero v Pitt, 759 S.W.2d 109, 112 (Tenn. 1988). In such cases, the trial court

has the widest discretion to order a custody arrangement that is in the best interest of the child.

See e.g. Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. App. 1996); Tenn. Code Ann. § 36-6-

101(a)(2) (1996). Accordingly, it is well settled that the appellate court’s review of a trial

court’s findings in a custody dispute is de novo on the record, accompanied by a presumption

of correctness. See Nichols v. Nichols, 729 S.W.2d 713, 716 (Tenn. 1990); Hass v. Knighton,

676 S.W.2d 554, 555 (Tenn. 1984). An appellate court will not reverse such a decision, absent

an error of law, unless the appellate court finds that the evidence preponderates against the trial

court’s findings. Tenn R. App. 13(d); See Hass, 676 S.W.2d at 555; Masengale v.

Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995).

 III.

A decree awarding custody of children is res judicata and is conclusive on a

subsequent application to change custody unless circumstances have changed in a material way

so that the welfare of the children requires a modification of the previous order. See Long v.

Long, 488 S.W.2d 729, 731-732 (Tenn. App. 1972); Hicks v. Hicks, 26 Tenn. App. 641, 176

S.W.2d 371, 374-375 (1943). Courts are empowered to change custody “as the exigencies of

the case may require.” Tenn Code Ann. § 36-6-101(a)(1).

“Notwithstanding the importance of stability and continuity, intervening changes

in a child’s circumstances may require modifying an existing custody and visitation

arrangement.” Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. App. 1997).
1

 36-6-10 6. Child custody.--In a suit for annulment, divorce, separate maintenance, or in any other

proceeding requiring the court to make a custody determination regarding a minor child, su ch determination shall

be made upon the basis of the best interest of the child. The court shall consider all relevant factors including the

following where applicable:

(1) The love, affection and emotional ties existing between the parents and child;

(2) The disposition of the parents to provide the child with food, clothing, medical care, education and other

necessary care and the degree to which a parent has been the primary care giver;

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However, a custody order cannot be modified absent a showing of new facts or “changed

circumstances” which require an alteration of the existing order. See Woodard v. Woodard,

783 S.W.2d 188, 189 (Tenn. App. 1989). There is no hard and fast rule as to what constitutes

a change of circumstances. See Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. App. 1983).

However, “changed circumstances” includes any material change of circumstances affecting

the welfare of the child or children, including events occurring since the initial custody

decision or changed conditions which could not have been anticipated by the original custody

order. See Blair v. Badenhope, 940 S.W.2d 575, 576 (Tenn. App. 1996).

IV.

If the court finds that a material change of circumstances has occurred, then the

court will proceed to determine if the best interests of the child dictate a change in the existing

custody arrangement and to devise a custody arrangement that serves those interests. See

Adelsperger, 970 S.W.2d at 485.

“In child custody matters the paramount concern of the Court is the welfare of the

children and the rights of the parties will yield to that concern.” Dantzler, 665 S.W.2d at 387;

see also Contreras v. Ward, 831 S.W.2d 288, 289 (Tenn. App. 1991). In custody matters, the

determining facts are infinite in their variety and “the supreme rule to which all others should

yield is the welfare and best interest of the child.” Holloway v. Bradley, 190 Tenn. 565, 571,

230 S.W.2d 1003, 1006 (1950). In any proceedings requiring the court to make a custody

determination regarding a minor child, such determination shall be made upon the basis of the

best interest of the minor child. Tenn. Code Ann. § 36-6-106.

In determining the custody arrangement which will serve the best interest of the

children, the court will assess the comparative fitness of the parties seeking custody in light of

the particular circumstances of the case, considering the relevant factors, which are the same

in a modification proceeding as those criteria used in establishing the initial custody order.1
(3) The importance of continuity in the child's life and the length of time the child has lived in a

stable, satisfactor y environme nt;

(4) The stability of the family unit of the parents;

(5) The mental and physical health of the parents;

(6) The home, school and community record of the child;

(7) The reasonable preference of the child if twelve (12) years of age or older. The court may hear

the preference of a younger child upon request. The preferences of older children should no rmally

be given greater weight than those of younger children;

(8) Evidence of physical or e motional ab use to the child , to the other parent or to any other person;

and

(9) The character and behavior of any other person who resides in or frequents the home of a parent

and such person's interactions with the child.

See footnote 9.

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See Ruyle v. Ruyle, 928 S.W.2d 439, 442 (Tenn. App. 1996); Matter of Parsons, 914 S.W.2d

889, 893 (Tenn. App. 1995); Garrett, Tennessee Divorce, Alimony and Child Custody § 26-5

(1998 ed.).

 In Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983), this court established some

guidelines for determining the best interest of a child:

We adopt what we believe is a common sense approach to custody, one

which we will call the doctrine of “comparative fitness.” The

paramount concern in child custody cases is the welfare and best

interest of the child. Mollish v. Mollish, 494 S.W.2d 145, 151 (Tenn.

App. 1972). There are literally thousands of things that must be taken

into consideration in the lives of young children, Smith v. Smith, 188

Tenn. 430, 437, 220 S.W.2d 627, 630 (1949), and these factors must be

reviewed on a comparative approach:

Fitness for custodial responsibilities is largely a

comparative matter. No human being is deemed

perfect, hence no human can be deemed a perfectly

fit custodian. Necessarily, therefore, the courts

must determine which of the two or more available

custodians is more or less fit than others. Edwards

v. Edwards, 501 S.W.2d 283, 290-291 (Tenn. App.

1973)(emphasis supplied).

Bah, 668 S.W.2d at 666.

In summary, the party seeking to change custody must show “(1) that the child’s

circumstances have materially changed in a way that could not have reasonably been foreseen

at the time of the original custody decision, and (2) that the child’s best interest will be served

by changing the existing custody arrangement.” Adelsperger, 970 S.W.2d at 485. The

paramount consideration in a custody proceeding is the best interest of the child or children.

See Bah, 668 S.W.2d at 665.

V.
2

 To the extent that Father’s argument regarding the burden o f proving ch ange of circumstances co uld

be interpreted as an argument that the court found the incorrect change of circumstances, Father has waived that

argument. At both the end of the January hearing and the beginning of the May hea ring, the court a nnounce d its

finding. In a pleading filed May 2, 1998, Father stated that on January 20, the court had found that there existed

a substantial and material change of circumstances in that the co-parenting arrangements were no longer working.

Further, at the May hearing the court stated: “So the Court has found a substantial and material change of

circumstances. So what we want to do today would be examining the factors that go in to what’s in the best interest

of the minor children, as well as custody, visitation, and support issues. So we’re pretty much limited to those

issues unless the attorneys identify other issues that we are to hear today. Any other issues other than those? ” Both

counsel resp onded n egatively.

3

 In a separate argument, while conceding that a change of circumstances was demonstrated, Father

submits that he pro ved the c hange s of circum stances alleg ed in his petition, but that Mother failed to prove the

chang es of circum stances alleg ed in her c ounter- p etition. He argues, without supporting autho rity, that this is

dispositive of the case based on his contention that only the party proving the existence of a material change of

circumstances can prevail in the resulting comparative fitness analysis. Without commenting on Father’s

characterization of the evidence adduced at trial, we wish to point out that this legal theory is not correct. As

stated above, o nce there is evidence of a material change of circumstances in the record, the trial court must weigh

the com parative fitn ess of the p arties, and d o what is in the best intere st of the child ren. 

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At the close of the January 20 hearing, and again at the beginning of the May 15 hearing,

the trial court found a substantial and material change of circumstances on the basis that the

custodial arrangement which had worked for a while was no longer working and that the parties

were no longer cooperative and working together in the best interest of the children2

.

The evidence does not preponderate against the trial court’s finding. The record clearly

demonstrates that the joint custody arrangement previously in effect had become problematic

only recently due to the parties’ contentious attempts to control various aspects of their

children’s school, church, and other activities.3

 The fact that a once satisfactory custody

arrangement has become unworkable can constitute a material change of circumstances. See

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

The parties were divorced in 1993. In September of 1995, Father married Carolyn Lurie,

who had three children from a prior marriage. The Luries had a child in February of 1996, and

at the time of the hearing Mrs. Lurie was expecting their second child. Mother married Jimmy

Manning, who was 18 years old at the time of the marriage. She divorced Mr. Manning in

August or September of 1996. During the marriage, a child was born to the couple. At the

time of the hearing, Mother was in a relationship with another man, and the two planned to get

married in the future but chose to wait to set a date until they completed pre-marital counseling.

The parties appear to have successfully managed their joint parenting responsibilities

under their agreed arrangement of equal primary physical custody for almost five years.

Between 1992 and 1997, for various periods of time, the children’s paternal grandmother kept
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the children after school, Father’s new wife babysat with Mother’s new child, the daughter of

the stepmother spent a night at Mother’s house, and Mother and her second husband took all

of the children, including stepmother’s children, on an outing. Even recently, Father had asked

Mother if she or her fiancé could accompany the son and his stepbrother to an event. During

one spring and summer when Mother had physical custody, she arranged for Father to help

coach their son’s baseball team while she was the team mother. During the summer of 1997,

the stepmother kept the children while Mother taught half days in summer school. The parties

operated under an agreement that if one of them was going to be unavailable during their time

of custody or visitation, the other had the opportunity to have the children. The children

regularly attended church with both parents. Teachers testified that in the past the parents had

cooperated in school matters.

After the children returned to their father’s household in August, 1997, the cooperative

parenting situation deteriorated. The daughter entered first grade and the son entered fourth

grade at the same public magnet school that they had been attending. A few weeks after school

started in September, 1997, the daughter experienced difficulty in reading. As a result of the

teacher’s concern, the daughter went to live with Mother for two weeks, and Mother, a teacher,

worked with her intensively, resulting in an improvement in the child’s reading ability. Father

disputes that the improvement was due to Mother’s effort. The son also chose to stay with

Mother during these two weeks.

At some point in this fall term, the stepmother indicated to the school guidance counselor

that she would prefer that the children were in a different school. When the assistant principal

asked Mother about any intent to change schools, Mother indicated she was unaware of any

such discussions. Mother asked that school officials and teachers not share confidential

information about the children with anyone, including the stepmother, other than herself and

Father. The assistant principal testified that she considered this request appropriate and that

it was consistent with the school’s policy.

In late October or early November, the son asked to meet with the counselor. She called

Father to ask permission to talk to the son, and Father requested a meeting with her. Father and

stepmother met with the counselor and discussed Mother, her premarital relationship with her
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second husband and her second marriage, which had ended over a year before this meeting. The

counselor described Father as painting a picture questioning the mother’s moral character.

In early December, Father requested a meeting with the assistant principal to discuss

problems. He and the stepmother met with the assistant principal for approximately 1 1⁄2 hours,

during which time he told her about Mother’s early life, including things the assistant principal

considered demeaning, and about Mother’s second marriage to a very young man. At this

meeting, on December 7, the father indicated he did not intend to seek full custody since he

didn’t think it was necessary. 

The guidance counselor continued to keep in touch with the children and knew that

custody was to change to Mother on February 1. She never saw anything to indicate adjustment

problems with the upcoming return to Mother’s custody. 

Father received a copy of a letter dated December 12 from Mother’s attorney to the

school explaining that it would be inappropriate for the school to provide the stepmother with

access to the children’s files or any information regarding the children. Within three or four

days of receiving the letter, Father went to his lawyer. However, Father testified that the letter

did not upset him. He further stated that it was not entirely true that he decided to seek custody

because of the letter, stating that, upon receipt of the letter, he had discussed the issue with his

9-year old son who asked him to seek custody.

A dispute arose about the children’s visitation with the mother over Christmas and the

school holidays. Father again received a letter from the mother’s attorney. Upon advice of his

own lawyer, Father allowed the children to visit their mother in accordance with the parties’

past practice and agreement. A dispute also arose over the children’s participation in Christmas

programs at both Mother’s church and Father’s church.

On December 30, 1997, Father filed a petition to modify custody asking the court to

award him sole custody. Mother answered and counter complained seeking sole custody.

At the January 20 hearing on Father’s temporary custody petition, the teachers and school

officials who testified indicated the children had been doing well. They reported, however,

some changes in behavior by both children after the Christmas break. Both children’s teachers

attributed the changes in behavior to things going on outside school. The daughter became
4

The written order ente red Janua ry 29 states that the father is award ed tempo rary custody. However,

the court’s comments from the bench at the close of the hearing are consistent with the court’s May 7 clarification

of that January 29 order wherein the court set aside that portion of the earlier order which awarded temporary

custody to the father. The court stated it had ne ver award ed tempo rary custody, but merely extended the current

situation pending consideration of all factors.

5

Father testified that after the January hearing he had called Dr. Little’s office ab out their procedure and

was informe d that Dr. Little w ould mee t with both pa rents at the same time. Father was concerned that Mother

would be uncomfortable meeting with him, and asked, without consulting Mother, if it was possible to meet

individually with the parents. He testified the psycholog ist’s office called b ack and ca nceled the a ppointment.

After the final hearing, the court made a specific finding that Father’s reasons for not keeping the appointment as

ordered were not credible. The court found that Father brought up the appointment in his January testimony,

stating his concern was for the welfare of the child. The court found that Father had a de sire to be controlling so

he did not take the child to the psyc hologist as or dered. T he court sp ecifically found that Fa ther’s telepho ne call

to the psycho logist’s office caus ed the canc ellation of the ap pointmen t.

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more tearful and upset. A few days before the hearing, the assistant principal saw the daughter

in the school office. She was crying and upset, and her finger was hurt. While the assistant

principal was trying to comfort and calm her, the 6-year old daughter, still crying, said, “my

daddy said I was supposed to tell you that I want to live with my daddy.”

Other disputes arose during the late fall of 1997, which need not be catalogued here. As

an example, at one point Father instructed his children and stepchildren not to talk to Mother,

at least not about anything that went on in his home. The testimony in the record clearly

establishes the deterioration and eventual dysfunction of the prior custody arrangement and its

negative effect on the children. After the lengthy hearing, the trial court ordered that the parties

continue to have joint custody, with possession to remain with the father with previouslyordered visitation with the mother, pending a final hearing.4

VI.

At the January 20 hearing, Father testified that an appointment with a psychologist had

been arranged for the parties’ daughter. The appointment, which was arranged approximately

three weeks before the January 20 hearing, after Father’s petition was filed, was set for

February 4.

At the close of that hearing, the court gave very explicit instructions:

The court orders Mr. Lurie to keep the appointment

of [daughter] with Dr. Shannon Little. Both parents

are to participate as Dr. Little directs, and the

records of Dr. Little will be available to both

parents.

However, Father did not take his daughter to the February 4 appointment with Dr. Little.5
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Both the daughter and son were seen later by another clinical psychologist, Dr. Sanger, who

testified at the May 15 hearing. She was originally contacted to evaluate the daughter, and had

her first session with the daughter in March.

Dr. Sanger stated that the daughter had a very positive attachment to her mother, her

father, and her stepmother. She also felt positively toward Mother’s second husband. The

daughter presented herself as happy and well integrated into her family situation, although there

were stresses around the custody dispute, the daughter was aware of the tensions, and was

concerned about having to answer questions about the situation.

Dr. Sanger also saw the son and reported that he also had a positive attachment to his

father, his mother, and his stepmother and that these were important relationships to him. She

stated that the son identified with Father. She indicated the son was guarded and careful with

his words on the topic of the custody dispute but did not acknowledge any anxiety about that

situation or the court proceedings. 

Dr. Sanger testified that she thinks it detrimental for children to hear negative things

about their parents. She had told the parents, when asked about the son testifying, that in

general she had reservations about children being put in a situation where they have to state a

preference for one parent versus the other, and that there are risks to the children in such

situations. She also stated it was important that parents be careful about what information they

share (regarding the issues in the custody dispute) with a child and that such information should

be developmentally appropriate. She would, in general, question the appropriateness of going

through actual pleadings or reviewing recorded conversations with a 9-year old. However, she

felt that giving a mature child an appropriate forum to express his strongly-held feelings might

be appropriate in some situations.

In general, Dr. Sanger found both children to be happy and well-adjusted with positive

attachments to both parents.

VII.

After the January hearing, cooperation deteriorated even further. There were disputes

over clothing, dental visits, telephone call from Mother to the children, chaperoning field trips

and other issues. A dispute about visitation over spring break resulted in further hearings
6 He testified tha t the taping of the children’s conversatio ns resulted from his misund erstanding o f his

attorney’s instructions. Father stopped taping the conversations between M other and children after being so

instructed by his lawyer, and no recorded conversations were admitted into evidence.

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before the court.

 In late January, Father began taping telephone conversations between Mother and

himself and between Mother and the children.6 The children were aware of the tape recorder,

and the son would sometimes turn it on himself. Father or stepmother would turn the recorder

on for the daughter’s conversations. Father could not recall whether he had told his children

not to inform their mother that her conversations were being taped, but he thought his son was

well aware that if he mentioned the recording Mother might alter what she was saying.

The parties did not agree on many things in their testimony, each having his or her own

interpretation of events. However, their testimony and that of others establish that during the

period from 1992-1997, Mother made an effort to have daily contact with the children during

those periods when Father had primary custody. She would visit with the children after school

or eat lunch with one of them. She was a frequent visitor to the school and attended school

events. If she was unable to make personal contact during a day, she telephoned the children

in the evening. On the other hand, Father seldom telephoned the children during those times

Mother had primary custody. He stated he did not telephone the children at Mother’s house

because, out of respect, he wanted to give her her ground with the children. He felt he deserved

the same respect. He also stated the children could call him if they needed something.

It is also generally agreed that Mother was responsible for arranging and taking the

children to medical and dental appointments, up until January 1998. Mother also testified that

for several years she had attended most practices and every recital for her daughter’s dance

classes. She had similarly attended her son’s sporting events.

She testified, however, that after the January 20 hearing, she was not informed by Father

of upcoming events or activities in her children’s lives. Father started communicating

information to her by certified mail. In one situation, he mailed her notice of a cancellation on

the same day of the meeting. Father and stepmother instituted a practice of unplugging their

telephone in the evenings so that their family dinner time and Bible study would not be

interrupted. This resulted in Mother being unable, on some occasions, to talk to her children,
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thereby preventing her from maintaining her practice of daily contact with the children. Father

considered Mother’s telephone calls to the children disruptive and maintained they sometimes

upset the children.

The parties’ 9-year old son testified at both hearings. At the first hearing, he was asked

who asked him to testify. He stated, “I was kind of the main deal so I sort of had to be here.

Because one of the main reasons to be here, we were thinking that we had to have at least one

of the children that would be able to testify.” The son also stated he had been given the letters

involved in this litigation by his father “to see if I think they are ridiculous, because he thinks

they were.” The son was given Father’s petition and Mother’s counter-petition to review by

Father. As to his review of his mother’s pleading, the son testified that he and his father went

over the document and that Father needed to get evidence to contradict statements in the

counter-petition. 

The son testified that he has a good relationship with both his father and his mother, with

his stepmother, and with his step siblings and his half brothers. He loves both his parents and

his stepmother and likes his mother’s fiancé and his child. He enjoys being at his mother’s

house and enjoys being at his father’s house. He stated his preference was to live at his father’s

house.

The son also stated that he had turned on the tape recorder when he talked to his mother

because he thought some of the conversations she had with the children were inappropriate and

needed to be presented to the court. He was unable to remember any specific conversation he

thought was inappropriate. He also stated that he listened to the taped conversations with his

mother a few times because he happened to be in the room with his father and stepmother while

they were playing the tapes. Father did not remember the son ever listening to any tapes at

home. When the son would return from visits with Mother, he would tell Father and the

stepmother about events that happened, and the stepmother would take notes. The son stated

he told her what to write down.

VIII.

After hearing all the testimony in this matter, the trial court made extensive findings. The

court observed that during the time Mother was married to her second husband, “she was not
7

 At the close of the January hearing, the court stated it did not give a great deal of weight to the

testimony concerning actions of the mother’s second husband because those things happened in the past and the

father had not come forw ard at that time and alleged a chan ge of circumstances.

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making decisions which were in the best interests of her children.” The court found that since

Mother had divorced the second husband (a year and a half earlier), any future dealings

between those two would not adversely affect the minor children.7

The trial court found that the problems with the joint custody arrangement had arisen only

when Father became critical of Mother’s decision-making concerning her second husband and

when Mother became jealous of the relationship between the children and the stepmother. He

further found that Father had involved the parties’ son in the dispute between the parties,

including this litigation, and had gone to the children’s school and related his version of

Mother’s past behavior with the young man who became her second husband. The court also

specifically found that both parties have strong personalities, which he characterized as

controlling and manipulative, and that neither was a credible witness.

In essence, the court refused to grant to either party the custody modification he or she

requested, i.e., sole custody. The trial court specifically found that it was in the best interest

of the minor children that they remain in the joint custody of the parents and that the parents

make joint decisions regarding major medical problems of the children. However, he found

it was not in the best interest of the children that the children continue to reside with each

parent for six months.

We are of the opinion that the evidence does not preponderate against the trial court’s

finding that the best interest of the children would be served by continuing joint legal custody

but modifying the primary physical custody arrangement from a half-year basis to a school-year

basis with liberal visitation accorded each parent. See, e.g., Rubin v. Kirshner, 948 S.W.2d 742

(Tenn. App. 1997); Barnhill v. Barnhill, 826 S.W.2d 443 (Tenn. App. 1991). In structuring the

arrangement herein, the trial court gave thorough and detailed directions to the parties in an

effort to avoid the type of control issues which had previously occurred. In view of the

stressful situation which developed in the fall of 1997 regarding school issues and which

escalated to all issues to the extent the children’s behavior changed, we agree it is in the best

interest of the children to remain in one parent’s primary physical custody for the school year.
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In this case, the trial court was faced with conflicting evidence concerning the fitness of

Father and Mother as parents. As stated above, both sides made efforts to disparage the

character and fitness of the other, cataloguing the missteps of the other and the virtues of their

own situations. They criticized each other’s residences, specific isolated examples of

punishment each thought inappropriate, and other matters. No one’s interests, particularly

those of the minor children, would be served by our detailing those claims herein. The trial

court’s order reflects careful consideration of the parties’ evidence. Ultimately, the court

concluded that “weighing the many factors for consideration of custody, the court finds that it

is in the best interest of the minor children that they be in the joint custody of the parents with

the primary custodian being Michelle Lurie Manning from the 18th day of August to the 31 day

of May each year and the father being the primary physical custodian from the 1st of June to

the 17th day of August each year.” In ruling on various post-trial motions, the court denied

Father’s Tenn. R. Civ. P. 59 motion, stating it had given a great deal of emphasis in its final

decision to the best interest of the children and had looked at many factors in making that

determination, and was still of the opinion that its earlier order was in the best interest of the

children.

As set out earlier, our review of the trial court’s decision is subject to well-established

rules. In the recent case of Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn. App. 1997),

this court stated the standard as follows:

Custody decisions are factually driven and require the careful

consideration of numerous factors. See Holloway v. Bradley, 190

Tenn. 565, 571, 230 S.W.2d 1003, 1006 (1950); Scarbrough v.

Scarbrough, 752 S.W.2d 94, 96 (Tenn. App.1988). Since these

decisions often hinge on the parties' credibility, appellate courts are

reluctant to second-guess trial judges who have observed the

witnesses and assessed their credibility. See Gilliam v. Gilliam,

776 S.W.2d 81, 84 (Tenn. App.1988). Accordingly, we decline to

disturb custody decisions unless they are based on a material error

of law or the evidence preponderates against them. See Hass v.

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

936 S.W.2d 626, 631 (Tenn. App.1996); Griffin v. Stone, 834

S.W.2d at 301.

970 S.W.2d. at 485.

It is with this standard in mind that we review Father’s arguments on appeal,

which essentially argue that the evidence preponderates against the trial court’s decision. At
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the hearings in this matter, Father explained that his goal in seeking custody was continuity for

the children. He felt that Mother’s second marriage, which resulted in divorce, as well as her

new relationship, did not provide stability in the children’s environment. It was his opinion

that Mother and her fiancé, by delaying their marriage, were failing to provide the children a

family unit such as he and his wife could provide. The record substantiates the stability of

Mother’s relationship with her children and her efforts to maintain it. There is nothing in the

record to indicate that the children were negatively affected by her changes in marital status.

In this appeal, Father also asserts that he should have been awarded custody because he

is of higher moral character than Mother based on her relationship with the teenager she later

married. Father was aware of that relationship from late 1992 or early 1993. We certainly do

not condone Mother’s relationship with a minor. However, for over four years, Father was not

so concerned about Mother’s moral character that he sought custody. In addition, the best

interest analysis requires consideration of many factors which may affect a child’s well-being.

Father also argues that he was concerned about the conduct of Mother’s second husband

around the children. Father admitted he knew about the conduct he now objects to, with one

exception, almost immediately after each event, and, again, did not deem it significant enough

to warrant his seeking custody. In fact, the evidence demonstrates a cordial relationship

between the two families during Mother’s second marriage. At the time that Father filed his

petition, Mother had been divorced from her second husband for fifteen to sixteen months. We

agree with the trial court that any future dealings between Mother and her second husband

regarding their child would not adversely affect the children.

From the record, it appears that Father’s petition for sole custody was triggered by the

contentious situation which had developed as a result of his spreading derogatory information

about Mother to school officials and Mother’s request that information about the children not

be shared by school officials with the stepmother. Mother had also expressed to Father her

strong feelings that Father, rather than the stepmother, should be making parental decisions and

dealing with the school. Father equally strongly resented what he characterized as Mother’s

attempts to dictate in an area he considered his family business.

It is also apparent from the record that once battle was joined, the children’s best interest

became secondary. Father’s involvement of his 9-year old son in the details of the litigation,
8

 Effective M ay 18, 19 97, anoth er factor was a dded to the list of those to be considere d by the cou rt in

determining a custody award. See 1998 Tenn. Pub. Acts, ch. 1003. That provision, now codified at Tenn. Code

Ann. §36-6-106(10), requires the court to consider “each parent’s past and potential for future performance of

parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage

a close and continuing p arent-child rela tionship betw een the child and the other parent, consistent with the best

interest of the child .” The policy enunciated in that statutory amendment had already been adopted in case law.

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to the point of going over the pleadings, discussing strategy about evidence, and having the son

tape his conversations with his mother, did not serve that child’s best interests. Those actions

clearly did not encourage the children to love and respect each parent equally. See Varley v.

Varley, 934 S.W.2d 659, 667-668 (Tenn. App. 1996). Nor did they further preservation of the

children’s relationship with both parents.8 See Wright v. Stovall, No. 01A01-9701, 1997 WL

607508 at *7 (Tenn. App. 1997). 

These parents were able to exercise their co-parenting responsibilities harmoniously for

a long time, with beneficial results to their children. They are to be commended for their

successful, if not always easy, efforts. Their later inability to deal with each other or with

issues related to the children created the situation which let to this litigation. In turn, the

litigation itself increased the level of contentiousness, all with a detrimental effect on the

children. In determining how to best reduce those detrimental effects, the trial court considered

many factors, including ways to reduce the opportunity for confrontations and disputes between

the parents. The trial court’s order herein does that and is carefully structured to further the

best interest of the children.

XI.

Bearing in mind the mandate of a comparative fitness test, and having reviewed the

entire voluminous record in this case, we have reached the conclusion that the evidence does

not preponderate against the finding by the trial court that continued joint custody with

increased physical custody to Mother is in the best interest of the children. The trial court

considered carefully all the relevant factors and the testimony of the witnesses, gave their

testimony the weight and credit that the court felt the testimony deserved, and fashioned a

detailed custody arrangement to further serve the children’s interests.
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For the reasons stated above the order of the trial court is affirmed, and the case is

remanded to the trial court for whatever further proceedings may be necessary. The costs of

this appeal are taxed to the Appellant.

___________________________________

PATRICIA J. COTTRELL, JUDGE

CONCUR:

_____________________________

BEN H. CANTRELL, PRESIDING 

JUDGE, M. S.

______________________________

WILLIAM C. KOCH, JR., JUDGE