FILED

April 24, 1998

Cecil W. Crowson

Appellate Court 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 APPEALS OF TENNESSEE

AT NASHVILLE

APPEAL FROM THE JUVENILE COURT OF RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

HONORABLE LARRY BRANDON, JUDGE

Clark Lee Shaw

2525 Lebanon Road

Nashville, Tennessee 37214

ATTORNEY FOR PLAINTIFF/APPELLANT

R. Steven Waldron

202 West Main Street

Murfreesboro, Tennessee 37130

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED.

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

BEN H. CANTRELL, JUDGE

WALTER W. BUSSART, JUDGE
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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,

but custody was not mentioned in the order. The mother continued to 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 leave to remove to Michigan 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 agreed order was entered relieving the

mother of child support. 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.
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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

application to change custody without new facts occurring,

which altered the circumstances in a material way to make the

welfare of the child require a change in custody and, thus,

committed reversible error in awarding custody to the

Appellee.

2. Whether there was a material change in

circumstances, exposing the child to a substantial risk,

justifying the change in custody to the Father/Appellee, Jeff

Windrow.

3. Whether the preponderance of the evidence

supports 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 judge presided and ruled upon all matters thereafter. In

support of his judgment entered on November 27, 1996, the Special Judge filed a memorandum

which includes the following:

This Court has reviewed the original Transcript of

Court Proceeding filed with the court of the proceeding of

April 20, 1995, listened to the proof adduced by both parties

at the hearing held in this cause on March 13, 1996,

considered the oral and written arguments of counsel for the

parties and based upon the foregoing, the court finds as

follows:

1. TheRespondent, Stacie Leigh Carpenter is not

a credible witness. The Court finds it impossible to believe

any statement made by Mrs. Carpenter.

- - - -

It appears to the Court that she was intentionally

untruthful and as a result the Court chooses to rely heavily

upon the testimony of the proof adduced through other

witnesses of both parties adduced at trial.

- - - -

3. The Petition to Modify and Change Custody

indicates that Mrs. Carpenter has resided at six (6) different

addresses during the past four (4) years and there being no

answer or denial of the 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 abusive
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relationship with 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 children of the parties have witnessed the abuse

conduct between the Carpenters and it is significant to the

Court that 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 withdraw. The Court considers this

escalated abuse to be a significant and material change in the

home environment warranting an alteration of custody in this

case.

- - - -

8. There are numerous other facts in the record

which reflect poorly upon Mrs,. Carpenter’s fitness to provide

what is in the best interest of her son, Chaz. Many of these

were present on April 20, 1995; however, the Court on that

occasion saw fit to allow Mrs. Carpenter an opportunity to

improve upon her marriage, her financial affairs, and her

personal affairs. It appears to the Court at this time that she

has not taken advantage of that opportunity and that all of

these matters have materially and substantially changed since

April 20, 1995 for the worse. Mrs. Carpenter has exacerbated

the issue by displaying her unwillingness to tell the truth in

this matter as well as her unwillingness to abide by orders of

the Court with regard to custody and visitation.

9. It appears to the Court that the Petitioner, Jeff

Windrow, 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 and share in

the upbringing of his son; that Mr. Windrow is interested in

the physical, emotional, mental, education and spiritual well

being of his son. It further appears that Mr. Windrow will

cooperate with Mrs. Carpenter to allow her to share in the

upbringing of this child.

Conclusion

It is the considered opinion of the Court that Chaz

Ryan Windrow, born May 29, 1991, is entering a period

where he will need stability. Due to the material and

substantial changes that have occurred in the home

environment of the Respondent, Stacie Carpenter, it is the

decision of this Court that custody should be changed from

her to the Petitioner, Jeff Windrow. 

A judgment was entered in accordance with this memorandum.
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First Issue

Lack of Evidence of Changed Circumstances

The Special Judge adequately informed himself of previous circumstances, and he heard

evidence which is not preserved in this record but which is summarized in the memorandum,

which latter evidence adequately supports the change in custody.

Second Issue

Risk to Child

The evidence cited in the memorandum adequately 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 surety. The cause is remanded to the Juvenile Court for further necessary

proceedings.

 AFFIRMED AND REMANDED.

___________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________

BEN H. CANTRELL, JUDGE

_____________________________

WALTER W. BUSSART, JUDGE
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