### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE BENJAMIN ROBERT CRABTR EE V. JANICE L. REHBEIN CR ABTREE Direct Appeal from the Circuit Court for Hawkins County No. 8621 Hon. Kindall T. Lawson, Circuit Judge

No. E2000-00501-COA-R3-CV - Decided June 23, 2000

Mother sought change of custody from father due to alleged change of circumstances. T he Trial Judge refused to change custody and mother appealed. Tenn. R. App. P.3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed. F RANKS , J., delivered the opinion of the court, in which S USANO , J., and S WINEY , J., joined. Phillip L. Boyd, Rogersville, Tennessee and Randall A. Eads, Abingdon, Virginia, for Appellee. Stephen L. Gilly, Ki

ngsport, for Appe

llant.

OPINION

The Trial Judge refused to change custody of the minor child to the mother, and the mother has appealed.

The father and mothe

r were married

on August 23, 1997 in Sevier Coun ty, Tennessee, and one child was born

of that marriage . During the marri age, the mother mo

ved to Minnesota wi

th the minor child. There they resided with the mother’s father. The husband filed for divorce in May of 1998. The Trial Judge granted the divorce and awarded custody of the minor child to the father, and the order provided for extended visitation by the mother, including three months during the summer. The mother filed for a change of cus tody on August 12, 1999, alleging a material change in circumstances. Specifically, since the divorce she has r emarried and moved out of her father’s house, and she has also begun working at home. After hearing evidence on the issue, the-2-

Trial Judge refused to change custody of the minor, and the mother has appealed.

The standard of revi

ew in child custody

cases is de novo upon the record, of the Trial Court, accompanied by a

presumption of cor

rectness as to

findings of

fact, unless a preponderance of the evidence is

otherwise. Rule 13(d) T.R.A.P., Hass v. Knighton , 676 S.W.2d 554 (Tenn. 1984). In recognition of the importance of stability and continuity, cus to dy and visitation decisions, once made and implement ed are res judicata upon the facts in e

xistence or rea

sonably foreseeable

when the decision was made. Adelsperger v. Adelsperger , 970 S.W.2d 482 (Te nn. Ct. App. 1997); Young v. Smith , 246 S.W.2d 93 (Tenn. 1952).

Tennessee Code Annotated §36 -6-101(a)(1) e

mpowers courts to

change custody “as the exigencies of the case may require. ” Court s will change custody when the party seeking the change in custody proves th at the child’s cir

cumstances have

materially chang

ed in a way that could not have been foreseen at the time of the original custody decision, and the child’s best inter est will be served by changing the existing custodial arrangements. Adelsperger , a t 485; Musselman v. Acuff , 826 S.W.2d 920 (Tenn. Ct. App. 1991). Before engaging in this analysis, the Court must determine whether there has been a material change in circumstances. We observed in Wall v. Wall , 907 S.W.2d 829 (Te nn. Ct. App. 1995): Th is decision [regarding custody] is not changeable except for “change of

circums tances”which is defined as that which requires a change to preve n t substantial harm to the child. Custody is not changed for the welfare or pleasure of either parent or t o punish either parent, but to preserve the welfare of the child. Custody is not changed beca use one parent is a

ble to furnish a more commodious or pleasant environment than the other, but where continuation of the adj udicated custody will substantially harm the child. Id. at 834. In this case, the custodial parent’s circumstances have not changed. The mother has remarried and moved out of her father’s house, and she states her new job will allow her to work at home. Remarriage may constitute a mater ial change in

circumstances, as in the case of Tortorich v. Erickson , 657 S.W.2d 190, 192 (Tenn. Ct. App. 1984); where the custodial parent had remarried, creating a questiona

ble envir onment for the child. In this case, the mother’s remarriage has apparently

created a more

stable and better

home environment,

which is laudable; however, the Trial Judge concluded that the improvement i n the mother’s livin g conditions was not

sufficient to counteract the need for stability in the child’s life.

We affirm the jud

gment of the Trial

Court and remand a

t appellant’s cos

t.