F IL ED

Jul y 30, 1998

C eci l C r o w son, Jr .

A ppel l a t e C our t C l e r k

IN THE COURT OF APPEALS 

AT KNOXVILLE

WANDA ORTIZ DeGROOT ) GREENE COUNTY

) 03A01-9707-CV-00279

Plaintiff-Appellee )

)

)

v . ) HON. KINDALL T. LAWSON,

 ) JUDGE

) 

MICHAEL DeGROOT )

 )

Defendant-Appellant ) AFFIRMED AND REMANDED

FRANCIS X. SANTORE and FRANCIS X. SANTORE, JR, OF GREENEVILLE FOR

APPELLANT

EDWARD L. KERSHAW OF GREENEVILLE FOR APPELLEE

 O P I N I O N

 Goddard, P.J. 

The controversy in this appeal concerns the award of

custody of Andrew, the parties' two-year-old son, to the mother.

The father appeals, raising two issues and several subissues, all of which may be re-stated to contend that the

evidence preponderates against a finding that it is in the best

interest of Andrew that custody be awarded to the mother.
2

The record shows that the mother has four other

children by previous marriages, three by David Arietta, one by

Jerry Cutshaw, a daughter Ashley who lives with the mother, and

one by Michael DeGroot, Andrew. She also has a daughter,

Samantha, by Timothy Campbell, the party with whom she was living

at the time of the divorce, even though they were not married. 

The record also shows that previously the mother was an unfit

parent. Thereafter, however, it appears, and she demonstrated to

the Trial Judge that she had reformed her life, as shown by the

evidence which supports the following finding of fact by the

Trial Court:

Now, it comes to the more difficult question of

custody. You know, there's no way that you can put any

monetary value on this, obviously. This is the hardest

thing -- one of the -- probably the hardest thing that

I have to do as a judge. This case has problems that

tend to complicate matters a great deal more than maybe

your average case; and that is that the parties live in

different states and visitation is hard, and it's just

a bad situation. But the court is faced with it; and

of course, the Court can't move the parties or

anything. We have to deal with them where they are.

I have several factors to consider, which counsel

has handed me a copy of and which we deal with a lot. 

I think -- I would find that both parties love this

child. I don't -- I don't question that. Emotional

ties -- due to the way this case has progressed, the

child has been with the mother. Rightly or wrongly,

that has been the case. And so there is -- I would

find that there is a strong emotional tie between the

mother and the child based on the proof that we have

here, and that is a consideration. There is also,

according to the proof, a strong tie between the child

here and the other child of the mother, and that's a

consideration. The mother apparently has provided

pretty much all of the food, clothing, medical care,

education and everything for the child, to date. I'm

not saying that the father could have done much better,

but that's the facts, and that's the way it comes to

this Court. The Court has to consider the continuity
1

The Trial Judge was obviously referring to Mrs. DeGroot's present,

not past, conduct.

2

At the time of trial the father had only seen Andrew on two or

three occasions for a total period of approximately two hours.

3

of the child's life and how -- what matters would be

involved in who would get custody. The health of the

parties appears to be good on both sides. There's no

physical or emotional abuse that I'd find that would

factor into this case. There has been considerable

proof relating to character of the mother,

particularly. And of course, there's some proof

relating to the character of the father and the BAQ and

whether he -- that honesty question. The Court has

considered all of these factors. And based on the

proof -- and I -- it's a tough question. But I have

not heard anybody say that the mother is not a good

mother. 1 Based on everything, I'm going to award

custody to the mother.

Our review of the record persuades us that the evidence

does not preponderate against the Trial Court's finding of fact

and, given the fact that the father and his family live in

Wisconsin and are virtual strangers to the child, 2 we concur in

his conclusions of law based thereon.

In light of this we believe this is an appropriate case

for affirmance under Rule 10(a) of this Court.

In reaching our determination, we have not overlooked

the specific acts of misconduct set out in the father's appellate

brief. (See appendix.) In connection therewith, we observe that

some are not disputed: (a), (c), (e), (i), (j), (k); some of

which are disputed: (g), (m), and others questionable or only

partially true: (b), (d), (f), (h), and (l).
4

In conclusion, we point out two things. First, an

award of custody is never final, but subject to change by the

court as warranted by changing circumstances. In this regard we

suggest that if the father exercises visitation privileges

accorded him, resulting in a bonding with his son, and the mother

persists in her illicit relationship with Mr. Campbell, the Court

might, upon proper petition, find that it is in the best interest

of Andrew that his custody be awarded to the father. Second, we

suggest it may be appropriate for the Trial Court to appoint the

Department of Human Services to monitor the mother's conduct with

periodic unannounced visits to determine whether she has

continued to be rehabilitated or reverted to her previous

conduct.

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for such other

proceedings, if any, as may be necessary and collection of costs

below. Costs of appeal are adjudged against Mr. DeGroot and his

surety.

_______________________________

Houston M. Goddard, P.J. 
5

CONCUR:

________________________________

Charles D. Susano, Jr., J.

________________________________

William H. Inman, Sr.J.