IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

BENJAMIN ROBERT CRABTREE V. JANICE L. REHBEIN CRABTREE

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. The Trial

Judge refused to change custody and mother appealed.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

FRANKS, J., delivered the opinion of the court, in which SUSANO, J., and SWINEY, J., joined.

Phillip L. Boyd, Rogersville, Tennessee and Randall A. Eads, Abingdon, Virginia, for Appellee.

Stephen L. Gilly, Kingsport, for Appellant.

OPINION

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

mother has appealed.

The father and mother were married on August 23, 1997 inSevierCounty, Tennessee,

and one child was born of that marriage. During the marriage, the mother moved to Minnesota with

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 custody on August 12, 1999, alleging a material

change in circumstances. Specifically, since the divorce she has remarried and moved out of her

father’s house, and she has also begun working at home. After hearing evidence on the issue, the
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Trial Judge refused to change custody of the minor, and the mother has appealed.

The standard of review in child custody cases is de novo upon the record, of the Trial

Court, accompanied by a presumption of correctness 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, custody and visitation

decisions, once made and implemented are res judicata upon the facts in existence or reasonably

foreseeable when the decision was made. Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn. Ct.

App. 1997); Young v. Smith, 246 S.W.2d 93 (Tenn. 1952).

Tennessee Code Annotated §36-6-101(a)(1) empowers courts to change custody “as

the exigencies of the case may require.” Courts will change custody when the party seeking the

change in custody proves that the child’s circumstances have materially changed in a way that could

not have been foreseen at the time of the original custody decision, and the child’s best interest will

be served by changing the existing custodial arrangements. Adelsperger, at 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 (Tenn. Ct. App.

1995):

This decision [regarding custody] is not changeable except for “change of

circumstances” which is defined as that which requires a change to prevent

substantial harm to the child. Custody is not changed for the welfare or pleasure of

either parent or to punish either parent, but to preserve the welfare of the child.

Custody is not changed because one parent is able to furnish a more commodious or

pleasant environment than the other, but where continuation of the adjudicated

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 material 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 questionable environment 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 in the mother’s living conditions was not sufficient to

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

We affirm the judgment of the Trial Court and remand at appellant’s cost.