# FILED April 24, 1998 Cecil W. Crowson Appellate Cou rt Clerk STACIE LEIGH NORRIS, ) ) Rutherford Juvenile Court Plaintiff/Appellant, ) No. 17599 ) VS. ) Appeal No. ) 01A01-9706-JV-00242 JEFF WINDROW, ) ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE JUVENILE COURT OF RUTHERFORD COUN TY AT MURFREESBORO, TE NNESSEE HONORABLE LARRY BR ANDON, JUDGE
Clark Lee Shaw 2525 Lebanon Road Nashville, Tennessee 37214 ATTORNEY FOR PLAINTIF F/APPELLANT R. Steven Waldron 202 West Main Street Murfreesboro, Tennessee 37130 ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WALTER W. BUSSART, JUDGE-2-

STACIE LEIGH NORRIS, ) ) Rutherford Juvenile Court Plaintiff/Appellant, ) No. 17599 ) VS. ) Appeal No. ) 01A01-9706-JV-00242 JEFF WINDROW, ) ) Defendant/Appellee. )



## O P I N I O N
This appeal is from

an order of the Juvenile Court committing custody of a child born out of wedlock to the natural father of the child.

The child, Chaz Ryan Windrow was born on May 29, 1991. On November 6, 1991, the Juvenile Court entered an

agreed order

of paternity

requiring payment of support by the father, butcustody was not mentioned in the order. The mother continued t o have custody and the father was allowed visitation.
On January 31, 1993, the father petitioned for custody. On March 8, 1995, the mother counterclaimed

for leaveto remove to Michig an with her husband, for increase in child support and modification of visitation.

On April 25, 1995, the father’s petition for custody was denied but mother

was required to give 30 days advance notice of any move to Michigan.

On November

27, 1996, custody

was changed to the father. On December 16, 1996, the mother filed notice of appeal. The appeal was dismissed because the question of child support
was pending in the Trial Court. On February 11, 1997, an ag reed order was entered relieving the mother of child supp ort. On March 10, 1997, a second notice of appeal was filed from the November 27, 1997, order of custody as finalized by the agreed order of February 11, 1997.-3- The mother presents the following issues for review:

1. Whether

the Trial Court considered facts that were res judicata

and previously

conclusive from a

previous applicat ion to change custo dy without new facts occurr ing, which altered the circumstances in a material way to make the welfareof the c hil d require a cha nge in custody

and, thus, committed reversible error in awar din g custody to the Appellee. 2. Whether

there was a mate

rial change in circumstances,

exposing the child to a s ubs tantial risk, justif yingt he change in custody to the Father/Appellee, Jeff Windrow. 3. Whet her

the preponderance of the evidence su pports the Trial Court’s decision to change custody of the parties minor child to the Father/Appellee, Jeff Windrow.
The record contains

a verbatim transcript of proceedings on April 20, 1995, and March 13, 1996, but no transcript of proceedings on other dates. On November 6, 1996, the Juvenile Judge recused himself, and a special jud ge pres ided a nd rul ed upo n all m atter s ther eafte r. In support of his judgment entered on November 27, 1996, the Special Judge filed a memorandum which incl udes the fol lowing:

This Court has reviewe

d the origin

al Tr anscript of CourtProceeding filed with the court of the proceeding of April20, 1995, listened to the proof adduced by both parties at the hearing held in this cause on March 1 3, 1996, considered

the oral and written arguments of counsel for the parties and base d upon the foregoing, the court finds as follows: 1. The Resp ondent, Stacie Leigh Carpenter is not a credible witness. The Court finds it impossible to believe any statement made by Mrs. Carpente r.
- - - - It appears to the Cou

rt that she was inte

ntionally untruthful and as a result the Court chooses to re

ly heavily u po n the testimony of the proof adduced through other witnesses of both p

arties adduced a

t trial.

- - - - 3. The Petit ion to Modify and Change Custody indicates that Mrs. Carpenter has re sid ed at six (6) different addresses during t he past four (4) years and there being no answer or denial of th e same in the record, the Court considers said statement to be admitted in this case. 4. It appears to the Court that Mrs. Carpenter and her children are residing in what is apparently an abusi ve-4- relat ionshipwith her current spouse, Buck Carpenter. The record reflects that

this abuse existed as early as June 1, 1994.

- - - - There is evidence that Mrs. Carpenter is under the care of a physician for her emotional difficulties and that she takes Prozac and Xanax for her problems. There is some evidence that the c hil dren of the parti es have witnesse

d the abuse conduct between the Carpenters and it is significant to the Courtthat the abuse has

escalated to the

point where Mrs. Carpenter has indicated to her relatives that it would be best for her, an adult, to w

ith draw. T he Court consider s this escalated abuse to be a significant and material change in the homeenvironment

warranting an alteration of custody in this case.
- - - - 8. There are numerous other facts in the re cor d which reflect poorly

upon Mrs,. Carpen

ter’s fitness

to provide what is in the best interest of her son, Chaz. Many of t hese were present on April 20, 1995; howe ver, th e Court on that occasionsaw fit to allow Mrs. Carpent er a n opportunity to improve upon her marriage, her financial affairs, and her personal affairs. It

appears to the Cou

rt at this time that she has not taken ad vantag e of that opportunity and that all of these matters have mate

rially and s

ubstantially

changed since April20, 1995 for the worse. Mrs. Carpenter has exacerbated the issue by displ

aying her unwillingness to te

ll t he truth in this matter as well

as her unwilling

ness toabide by orders of the Court with regard to custody and visitation. 9. It appears to the Court that the Peti tioner, Jeff Wi ndrow, is a fit and proper person to have custody of the parties minor

child, Chaz Ryan Windrow; that Mr. Windrow is a caring father; that

Mr. Windrow has gone to tremendous expense of monies and time to

exercist visitation a

nd share in the upbringing of his son; that Mr. Windrow is inter ested in the physical,

emotional, mental, educatio n and spiritual wel

l being of his son . It fur

ther appears tha

t Mr. Windrow will cooperate with M r s. Carpenter to allow her to share in the upbringing of this child. Conclusion It i s the considered opinion of the Court that Chaz Ryan Windrow, born May 29, 1991, is entering a p eriod where he will needstabil ity. Due to the material and subs tanti al changes that ha ve occurred in th

e home environment

of the Respondent,

Sta cie Ca

rpenter, it is the decision of t his Cou rt t hat cus tod y should be changed from her to the Petitioner, Jeff Windrow. A judgment was e

ntered in accor

dance with this mem

orandum.-5- First Issue Lack of Evidence of Changed Circumstances
The Special Judge adequately informed himself of previous circumstances, and he heard evidencewhich is not preserved in this record but which is summarized in the me morandum, whi ch l att er ev ide nce a deq uat ely s upp ort s th e cha nge i n cu sto dy.

Second Issue Risk to Child
The evidence cited i

n the memorandum a

dequately supports the finding that

the welfare of the child is being prejudiced by continued custody of the mother.

Third Issue Preponderance of Evidence The evidence preponderates in favor of the decision of the Special Judge.

The judgment of the Juvenile Court is affirmed. Costs of this appeal are taxed against the mother and her sur

ety. The ca

use is remanded to

the Juvenile Court for fur ther necessary proceedings. 

### AFFIRMED AND REMANDED.

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

_____________________________ WALTER W. BUSSART, JUDGE-6-