# FILED

September 21, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE GREGORY C. LURIE ) ) Petitioner/Appell

ant, ) 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 CIRCUI T COURT FOR SUMNER COUNTY THE HONORABLE TOM E. GRAY, SITTING BY INTERCHANGE, PRESIDING

LAURA Y. GOODALL 113 WEST MAIN STREET GALLATIN, TENNESS EE 37066 ROBERT TODD JACKSON 222 SECOND AVENUE NORTH SUITE 419 NASHVILL

E, TENNES SEE 37201 ATTORNEYS FOR PETITIONER/APPELLANT MARK T. SMITH KELLY & SMITH 121 PUBLIC SQUARE GALLATIN, TENNESS EE 37066 ATTORNEY FOR RESPONDENT/APPELLEE

AFFIRMED AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: CANTRELL , J. KOCH, J.

### -2- 

## OPINION

This appeal involves the custody of two minor children. F ollowing a bench trial, t he trial court ordered that the parents continue to have joint custody, but modified pri mar y 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 asse rts on this a ppeal that the tria l court erred be

cause he is comparatively

more fit than the Mother to h

ave custody

, and that the cour

t incorrectly

applied the change of cir cumst ances requi remen t. 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 Jul y23, 1993, based on i rreconcilable

differences. At the time of the divorce the p arties had two minor children. In their marital dissolution agreement,

incorporated into the dec ree, the p arties agreed to joint custody, with physica l 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 p etition f or change of cu stody asserti ng a material change in circ umstances warra nting change o

f custody. T

he petition specif

ically 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 di vorced. She counterclaimed

alleging that Father

had remarried a

nd moved into a “dila

pidated” house in

a “dangerous”

neighborhood. She also alleged that Father was an absentee parent due to his work schedule, leaving primary care of the childre n to the stepmothe r. Both part ies’ pleadi ngs inc lud ed o the r al lega tio ns, whi ch ea ch m ain tai ned warr ant ed m odi fic ati on o f cus tod y.

Father was due to return the children to Mother on February 1, 1998, and prior to that dat e, Fa the r req ues ted a hea rin g on t he i ssu e of t emp orar y custody. After a hearing on January 20, 1998, the trial c

ourt o rdered that custody remain the same but that the children

### -3-

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 tha

t 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 t hrough May 31 of each year. The court’s order also addressed theissues of visitation and child support. Father appeals the order of the trial court granting Mother increased primary physical custody of the children. II. Cases involvin g a request fo r change of custody of mi

nor 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 tria l court’s findings in a cust

ody 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 award

ing custody

of children is res j udicata and is conclusive on a subsequent

application to

change custody

unless circumstances have changed in a material way so that the welfareof 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 e xigencies of the case may require.” Tenn Code Ann. § 36-6-101(a) (1).

“Notwithstanding the importance of stab il ity and continuity, intervening chang es in a child’s circumstances may require modify ing an existing custod y an d visitation arrangement.” Adels

perger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn. App. 1997).1 36-6-10 6. Chil d custody.--In a suit f or annulment, divorce, separat e maintenance,

or in any other proceeding requiring the court to make a custody determinati on regarding a minor child, su ch determ ination shall be made upon the

basis of the best intere st of t

he chil d. The court shall consider all relevant f actors including the following wh

ere applicable: (1) The love,

affect ion and emot

ional t ies exi sting

between t

he parent

s and chil

d; (2) The disposi

tion of the paren

ts to pr ov ide the chi ld with food, clothing,

medical care, educ ation and other necessary care and the degree to which a parent has been the primary care giver; 

### -4- However, a custody order cannot be modi fied abse nt a showing of new facts or “changed circum stan ces” 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 cir

cumstances. 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, includi ng 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 mat erial cha nge of circumstances has occurred, then the court will proceed to determine if the best interests of the child dictate a change in the existing

c ustod y arrangement and to devise a custody arra ngement 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. Wa

rd , 831 S.W.2d 288, 289 (Tenn. App. 1991). In custody matters, the determining facts are infini te 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, 1 006 (1950). In any proceeding s 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 arrangeme

nt 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, consider

ing the relevan

t factors, which a

re the same in a modification pro

ceeding as thos

e criteria used

in establish

ing the initial custody order. 1(3) The importanc e of conti

nuity in the c hild' s lif e and the l

ength of time th e child h as liv ed i n 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 commun ity r ecord of t

he chil d; (7) The reason

able pref erence of

the chi ld if t welve (12)

years of age or older. The court may hear the preference of a younger chi ld upon request. The preferences of older chil dren should no rmally be given greater weight than those of y ounger 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 charact

er and behavi

or of any other person who resides in or frequents the home of a parent and such per

son's intera ctions with t

he chil d. See footnot

e 9. 

### -5- See Ruyle v. Ruyle , 928 S.W.2d 439, 442 (Tenn. App. 19 96); Matter of Parsons , 914 S.W.2d 889, 893 (Tenn. App. 19

95); Garrett, Tennessee Divorce, Alimony and Child Custody§ 26-5 (1998 ed.). I n Bah v. Bah , 668 S.W.2d 663 (Tenn. App. 1983), this c ourt established s

ome guidelines for determining the best interest of a child:

We adopt what we bel

ieve is a com mon sen se ap pro ach t o cu sto dy, one which we will call the d octrin e of “comparative fitness.” The paramount

concern in child c

ustody case

s is the welfare a

nd best interest of the child. Molli sh v. Mollish , 494 S.W.2d 145, 151 (Tenn. App. 1972). There ar

e 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 the se factors must

be reviewed on a comparative approach: F itness for custodial re

sponsibilities is large ly a comparative matter . No human being is dee me d perfect,hence no human ca n be deemed a per

fectly fit custodian. Nece

ssarily, the

refore, the cou

rts 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 b ych anging the existing custody arrangement.” Adelsperger , 970 S.W.2d at 485. The paramount

consideration in a custody proceeding is the best interest of the c hild or children. See Bah , 668 S.W.2d at 665. V.2 To the extent th at Father’s argument regarding the burden o f proving ch ange of circu mstances co uld be interpret

ed as an argument

that t he court f

ound the i

ncorrect change of

circumstances , Father has wa ived 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 t

here existed a substanti

al and material

change of circu

mstances in that the co-parenting ar rangements were no longer working. Further, at the May hearin g the co urt st

ated: “ So the Court

has foun

d a substa

ntial and materi

al 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 chi

ldren, a s well a s custody , visi

tation , and suppor

t issu es. So we’ re prett

y much li

mited to thos e issues unless th

e attorneys

identify other issues t

hat we are to hear

today. Any oth

er issues ot

her than those? ” Both counsel resp onded n egatively.

3 In a separate argument, whil e conceding that a change of cir cumstances was demonstrated, Father subm its that he pro ved the c hange s of circum stances alleg ed in his petiti on, but that Mother f

ailed t o prove the chang es of circum stances alleg ed in her c ounter- p etition. He argues, wit hout suppor ting autho rity, that this is disposit ive of the cas e based on his contenti on that onl

y the party proving the existence of a material change of cir cums tances can prevail in the resulting comparative fitness analysis. Without commenting on Father’s character

izati on of the evidence adduced at tr ial, we wish to point

out that this

legal theo ry is no t cor rect . As stated above, o nce there is evidence of a material change of cir

cumstances i

n the record,

the tri al 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. 

### -6- At the close of the January

20 hearing, a nd again at t he beginnin g of the May 15 hea ring, the trial court found a subst antial 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 intere st of the children 2

. The evidence does not preponderate against the trial court’s finding. The re cord clearly demonstrates that the joint custod y arrang ement previously

in effect had be

come problematic only recently d

ue to the parties’ contentious att empts to con trol various aspe cts of their children’s school, church, and other ac tivities. 3 The fact that a once satisfactory custody arrangement

has become unwor

kable can constit

ute 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 hadthree children f

rom a prior marriage. The Luries had a child in Februar y of 1996, and at the time of the hearing Mrs. Lurie was expecting their second child. Mother married Jimmy Manning, who was 18 y ears old at the time of the mar

riage. She divor

ced Mr. Manning

in August or Se ptember of 1996. During the marriage, a child was born to the couple. At the time of the hearing, Mother was in a relations

hip 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-marita l counseli ng. The parties ap pear to have successfully managed their joint parenting re sponsibilities under their agre ed arra ngement of equa l primary ph

ysical cust

ody for almost five yea

rs. Between 1992 and 1997, for various periods of time, the children’s paternal grandmother kept

### -7-

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 husba

nd took all of the childr en, includ ing stepmot her’s child ren, on an ou ting. Eve n rec ent ly, Father had asked Mother if she or her fiancé could accompany the son and his stepbrother to a n event. During

one spring and

summer when Mother had p hysical cus

tody, she ar

ranged for Fa

ther to help coachtheir son’s baseball team while she was the team mother. During the summer of 1997, the stepmother kept the children while Mother taug

ht half days in summer school. The parties operated under an agreement

that if one of

them was going t

o be unavailable

during their time of custody or visitation, the other had the o pportunity to have the children. The children regularly attendedchurch with both parents. Teachers testified that in the past the parents had cooperated in sc

hool matters. After the children return

ed to their fathe

r’s household in Au

gust, 1997, the cooperative parenting situation deterior ated. The daug

hter ente red first g rade and the son e

ntered fourth grade at the same p ublic magne t school th at they had been attending. A few weeks after school startedin September, 1997, the daughter ex perienced di fficulty in rea ding. As a result of the teacher’s concern, the da

ughter went to liv

e with Mother for t

wo weeks, and Mother, a teacher, workedwith

her intensively, resulting

in an improvement in the child’s reading ability. Father disputes that th e improv ement was due to Mo ther’s effort. T

he son also chose t

o stay with Mother during the

se 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 askedMother about any

intent to change

schools, Mother in

dicated she was unaware of any such discussions. Mother asked that school off ic ials 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 approp riate and that it w as co nsi ste nt w ith the sch ool ’s p oli cy. 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

### -8-

secondhusband 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 char acter. In early Decem

ber, Father reques

ted a meeting wit

h the assistant prin

cipal 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 se

cond marriage

to a very y

oung man. At this meeting, on December 7, the father indicated he did not intend to seek fu ll cust ody since he didn’t think it was necessary. The guidance counselor continu ed to kee p 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 Dece mber 12 from

Mother ’s attorney to the school explaining that it would be inappropriate for the school to provide the step

mother with

accessto 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 didnot upset him. He fu

rther 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-yea r ol d so n wh o as ked him to s eek c ust ody. 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 accorda nce with the pa

r ties’ past practice and agreement. A dispute also arose over the children’s pa

rticipation in

Christmas programs at both Mother’s church and Father’s church. On Decembe r 30, 1997, Father filed a p etition to modify

custody ask

ing the court to

awar d hi m so le c ust ody. Mot her a nsw ered and cou nte r com pla ine d se eki ng so le c ust ody. At the January 20 hearing on Father’s temporary

custody petition, the teachers and school officials who testified indicated the children had bee n doing well. They reported, however,

somechanges 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 d aughter beca

me4 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 consis tent with the

court’ s May 7 clari

ficat ion of that January

29 order wherein the

court set as

ide that port

ion of the earl

ier order which aw a rded 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 test

ified tha t after t he January heari

ng 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 th e same time. Fathe

r was concerned that

Mother would be uncomf

ortabl e me etin g with him,

and asked, wit

hout consulti

ng Mother, if i

t was possibl

e to meet individually with the parents. He testi fied the psycholog ist’s office called b ack and ca nceled the a ppointm ent. After the final hear

ing, the cour

t made a specific f

inding that

Father’s re

asons for not ke

eping the appoint

ment as ordered were not credibl e. The court found t

hat Father brought

up the appointment

in his Janua

ry tes timon y, stating his concern was for the welfare of t he 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. 

### -9- more tearful and upset. A few days before the hear ing, the assistant principal saw the daughter in the school of

fice. She wa s crying and upset, and her finger wa s hurt. While the assistant principal was trying

to comfort and ca

lm her, the 6-y

ear old daughte

r, still cryi

ng, said, “my daddy said I was supposed to tell y ou 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 Fathe r instructed his ch

ildren and stepch

ildren not to talk

to Mother, at least not about anything that went on in his home. The testimony in the rec ord c learl y establishes the deterioration and eventual dy

sfunction of the pr

ior custody a

rrangement an

d its negativeeffect on the children. After the lengthy hea ring, the trial court ordered that the parties continue to have joint custody, with possession to remai n with the fat her w ith prev iou slyordered vis itation wi th the mot her, pendin g a final heari ng. 4 VI. At the January 20 hear ing, Father testified that an appointment with a psychologist had been arranged for

the parties’ daughter. The appointment, w hich was arrang

ed approximately three weeks before th

e January 20

hearing, afte

r Father’s peti

tio n was filed, was set for February 4. At the close of tha

t hearing, the c

ourt 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 t h e records of Dr. Little w ill be available to both parents. However, Father did not take his daughter to the February

4 appointment with Dr. Little. 5

### -10-

Both the daughte

r and son we re seen later by another clinical psy chologist, Dr. Sanger, who testified at the May 15 hearing. She was originally contacted to evaluate the daughter, a nd 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 stepmothe r. She also felt positive ly toward Mother’s second husband. The daughter presented herself as happy and well integrat ed i nto her family situation, although there

were stresses around the custody dispute, the daughter was aware of the tensions, a nd w as concerned about having to answer questions about the situation. Dr. Sanger also saw

the son and repor

ted that he also ha

d a positive attac

hment 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 c ustody dispute

but did not acknowledge any anxiety a bout that situation or the court proceedings. Dr. Sanger testified that she thinks it detrimental fo r child ren to hear n egative thi ngs about their parents. She had told the parent s, when a sked about the son t estifying , 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 chi

ld and that such inf

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

going through actual pleading

s or reviewing r

ecorded conver

sations with

a 9-year old. However, she felt that giving a ma

ture child an appr

opriate forum to e

xpress his strongly

-held feelings might be appropriate i

n 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 deterior ated e ven further. There were disputes

over clothing, denta

l visits, telephone call from Mother to the children, chaperoning field trips andother issues. A dispute about visitation over spring break resulted in furthe r hearings6 He testified tha t the taping of the children’s conversatio ns resulted fro m his misund erstanding o f his attorney’s instructions. Father stopped taping the conve rsati ons between M other and children after being so instruct ed by his lawy

er, and no recorded convers ations were admi tted into ev

idence. 

### -11- before the cour

t. In late Januar

y, Father began taping t

elephone conver

sa tions between Mother and himself and between Mother and the children. 6 The childrenwere aware of the tape recorder, andthe 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 notto informtheir mother that her conversations were being taped, but he thought his son was well aware th at if he ment ioned the re cording Mot her might al ter what she was saying. The parties di d 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 periodfrom 1992-1997, Mother made an effort to have daily contact with the children during those periods whenFather had primary custody . She would visit with the children after school

oreat lun ch with one of them. She was a frequent visitor to the school and attended schoo l events. If she wasunable 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 ha d primary

custody. He

stated he did not te

lephone the childr

en at Mother’s hou

se because, out of respect, he wanted to give her her ground with the children. He felt he deserved the same res pect. He als o stated th e children c ould call h im if they neede d somethin g. It is also generally agreed that Mother wa s responsible for arra

nging and ta

king the children to medical and dental appointments, up until January 1998. Mother also testified that for s ever al ye ars she had attended most practices and every rec ital for her daughter’s dance classes. She had s

imilarly atte

nded her son’s spo

rting events. She testified, however, that after the January 20 hearing, she wa s notinformedby 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 ins

tituted a practic

e of unplugging

their telephone in the evenings so that their family dinner time a nd B ible study would not be interrupted. This resulted in Mot her being unabl

e, on some

occasions, to talk to her

children,

### -12-

thereby preventing her

from maintaining her practice of daily contact with the children. F ather considered

Mother’s telephone calls to the children disruptive and maintained they sometimes upset the children. The parties’ 9-y

ear old son testi fied at bot h hearings. A t the first hearing, he was asked who askedhim 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 theywe re.” The son was given Father’s petition and Mother’s counter-petition to rev iew b y Father. As to his review of his mother’s pleading, the son testified that he and his father went

over the document and th

at Father needed t o get evidence to contradict statements in the counter-petition. The son testified that he has a good rela tionship with both his f

ather and his mothe

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

parents and his stepmother and lik

es his mother’s fia

ncé and his child.

He enjoys be

ing at h is mothe r’s house andenjoys being

at his father’s ho

use. He stated his

preference w

as to live at his

father’s house. The son alsostated 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 conver sation he thought was inappropriate. He also stated that he listenedto the taped conve rsations with his mother a few times because he happened to be in the room with his father and stepmother wh

ile 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 not7 At the close of the January he

ar ing, the cour

t stat ed 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. 

### -13- making decisions which we re in the best interests of her children.” The court found that since Mother had divorce d the second husband (a year a nd a half earl ier), any futur e dealings between those two would not adversely affect the minor children. 7 The trial court found

that the problems w

ith the joint custody

arrangement h

ad arisen only when Father became

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

alous of the rela

tionshipbetween the children and the stepmother. He further found t hat Father had invol ved the parties’ son in the dispute be tween the partie

s, 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 secondhusband. The cour t also specifica lly

found that both parties have strong personalities, which he characterized as controlling and m

anipulative, and t

hat neither was a

credible witness

. In essence, the court refused to grant to either party the custody modification he or she requested, i.e ., s ole cus tod y. The trial court sp ecifically found that it was in t

he best interest of the minor children that

they remain in the joint custody of the parents and that t

he parents make joint decisions reg

arding major me

dical problems of

the chil dren. However, he found it was not in the best in

te r est of the children that the children continue to reside with each parent for six months

. We are of the opinion that the evi de nce does not preponderate against the trial court’s finding that the best interest of the children would be served by continuing joint legal custody butmodifying the

primary phy

sical custody

arrangement f

rom a half-year basis to a school-y ear 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 ty

pe of control issues which had previously occurred. In vie w of the stres sful situation which developed in the fall of 1997 regarding school issues and whi c h escalated to all i

ssues to the extent the

children’s beha

vior changed, w

e agree it is in

the best interest of the children to remain in one parent’s primary physical custody for the school y ear.

### -14- 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 eac h other’s residences, specific isolated examples of punishmenteach thought inappropriate, and other matters. No one’s interes ts, particularly those of the minor childr

en, would be serv

ed by our de

tailing those cla

ims h erein. The trial court’s order reflects careful considera tion 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 min

or children that th

ey be in the j oint custody o f the parents with the primary cu

stodian being Mic

helle Lurie M

anning from the 1 8thday of Aug ust to the 31 day of May each year

and the father

being the primary physica l custodian from the 1st of June to the 17th day of A

ugust each y

ear.” In ru

li ng on variou s post-trial motions, the court denied Fath er’s Ten n. R. Civ. P. 59 motion, stating it had given a great deal of emphasis in its final decision to the best interes t of the children a

nd had looked at ma

ny facto rs in mak ing 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 th

e standard as fol

lows: Custodydecisions are factually driven and require the car efu l consideration of numerous factors. See Holloway v. Bradley , 190 Tenn. 565, 571, 230 S.W.2d 10 03, 1006 (1950); Scarbrough v. Scarbrough , 752 S.W .2d 94, 96 (Tenn. A pp.1988). Since the

se decisions often hinge on the par ties' credibility, appellate courts are reluctant t o sec ond-guess trial judges who have observed the witne sses and assessed their credibility. See Gilliam v. Gilliam , 776 S.W.2d 81, 84 (Ten n. A pp. 198 8). Acco rdi ngly, we decline to disturb custody decisions unless they are based on a material error of law or the evidence preponderates against them. See H ass v. Knighton , 676 S.W.2d 554, 555 (T enn.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 revi

ew Father’s ar

guments on appea

l, which ess ent ial ly a rgue that the evidence preponderates against the trial court’s decision. At

### -15-

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 he

r 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 relatio

nship with her child

ren and her eff

orts to maintain it. T

here is nothing in

the record to indicate that thechildren were n egatively 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 characte

r than Mother base

d on her relations

hip with the teenager she later married. Father was aware of that relationship from late 1992 or early 1993. We certainly do notcondone Mother’ s relationship with a minor. However, for over four years, Fa ther was not

so con cern ed ab out Mot her’ s mo ral char act er t hat he s ough t cu sto dy. In a ddition, the best interest analysis re

quires considera

tion of many f

actors which may

affect a child’s well-being. Father also argues that

he was concerned about the conduct of Mother’s second husband aroundthe 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

significan t enough to warrant his seeking custody . In fac t, the evidence d emonstrates a co

rdial relationshi

p between the two f

amilies during Mo

ther’s second ma

rriage. At the

time that Father file

d his petition, Mother had been divorced from her secondhusband f

or fiftee n to sixteen

months. We agree with the trial cour

t that any fu

ture dealings be

tween Mother and

her second husb

an d regarding their child would not adversely aff ect the children. From the r ecord, it appears that Father’s petition for sole custody was trigg ered by the contentious situation which had developed as a

result of his spreading derogatory information about Mother to school of

ficials and Mothe

r’s request

that information about

the children not be shared by school official s 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 wha

t he characterized as Mother’s attempts to dictate

in an area he co

nsidered his famil

y 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-yea

r 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 determin ing a cus tody award.

See 1998 Tenn. Pub. Act s, ch. 1003. That provision, n ow codifi

ed at Tenn. Code Ann. §36-6-106(10), requires the court to consider “each pare nt’s past and pot ential for fut ure perfor

mance of parenting responsibilities, including the willingness and abili ty of each of the parents to facili tate 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 statut ory amendment had already been adopted in case law. 

### -16- 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 enco urag e th e chi ldr en t o lo ve an d res pect each pare nt e qua lly. 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 b oth parents. 8 See Wright

v. Stovall , No. 01A01-9701, 1997 WL 607508 at *7 (Tenn. App. 1997). These parents were a

ble to exercise

their co-parenting responsibilities harmoniously for

a long time, with ben

eficial r esults to t heir children. Th ey are to be

commended for the

ir successful,

if not alway

s e as y, efforts . Their later ina bility to deal

with each other o

r with issues related to the children cre ated the situ ation which let to this litigation. In turn, the litigation itself increase

d the level of cont

entiousness, all wi

th a detrimental effect on the children. In determinin

g how to best redu

ce those detrimental effects, the trial court considered many factors, includi

ng ways to r

educe the opport

unity for co

nfronta tions and di sputes between the parents. The trial court’s order herein does that and is care ful ly structured to further the best interest of the children. XI. Bearingin mind the mandate of a co mparative f itness test, and having reviewed the entire voluminous record in this case, wehave reached the conclusion that the evidence does notpreponderate against the find ing by the tr

ial court that con

tinued joint custody

with increased phys ica l cu sto dy t o Motheris in the best interest of the children. The trial court considered

carefully all t he relevan t factors and the testimony of t

he witnesses, ga

ve their testimonythe weight and c redit that the cou

rt felt the te stimony deserved, and fashioned a detailed custody

arrangement t

o further serve

the children’s in

terests.

### -17- For the reasons stat ed 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 t

axed to the Appella

nt.

___________________________________

PATRICIA J. COTTRELL, JUDGE CONCUR:

_____________________________ BEN H. CANTRELL, PRESIDI NG JUDGE, M. S.

______________________________ WILLIA M C. KOCH, JR., JUDGE