### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 8, 2002 Session

RENEE SHELBY GR

IFFITH v. JAMES AL DEN GRIFFITH

Appeal from the Chancery Court for Montgomery C ounty No. 94-76-499 Michael R. Jones, Judge, by Interchange

No. M2001-02369-COA-R3-CV - Filed Septem ber 12, 2002

Renee Shelby Griffith (“Mother ”) and James Alden Griffith (“Father”) were divorced in 1995. Mother originally wa s awarded primary physical custody

of the parties’ two minor children. Father later sought a chang e of cust

ody . The Tri al C ourt gran te d F at he r’ s m ot io n t o m od if y cu st od y, finding that a material change in circumstanc es had occurred and that a chang e of cu stody woul d

serve the best interests of the children. Mother appeals . We affir

m, in part, and vacate, in part, and remand.

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

Affirme d, in part, a

nd Vacated, in part; C ase Rem anded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in whichH OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

Roger A. Maness, Clarksville, Tennessee, for the Appellant, Renee Shelby G riffith.
Rodger N. Bowman, Clarksville, Tennessee, f or the Appellee, James Alden Griffith.1 The record shows the parties agreed to the is sue of the cust ody of the Chil dren i n a Marit al Di ssol uti on Agreement whi ch was i ncorporated by refer ence the reto i n the Divor ce Decree.

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Background

The parties were divorced in June 1995. The Final Dec ree of Divorce (“Divorce Decree”) granted the parties joint custody of their two minor

children (“Childr

en”), w ho, at the time of this opinion, are approximately ag es 13 and11. 1 The Divorce Decree aw arded Mother primary physical custody and g

ranted Father visitation. The record on appeal shows that what followed the entry of the Divorce Decree wa s a contentiou s battle between the parties over custody of the Children.

Father

filed a Motion to Amend Final Decree as to Custody in September

1996. This motion was based, in part, on Father’s allega tions that Mother, a

registered

nurse, w as addic ted to prescription drugs a

nd that Mot

her had t ested pos itive for

drugs in a test performed by

her employer
, a hospital. Mother admitted, in her response to the motion, that she had fail ed a random drug test in January 1996. After a heari ng on th is motion, the Trial Court entered an Order in May 1997, denying Father’s request to modify custody but gr

anting Father an increa se in visitation.

In May 1998, Father again filed a motion for c hange of custody

(“Motion to Modify Custody”) asking the T rial Court to make him the primary phy sical custodian of the Children and requesting an immediate ex parte ord er f or t emp ora ry cu st ody. In the motion , Father alleged that Mother ag ain was abusing prescription drugs and ha d been discharged from her job a s a nurse. Father also alleged

the Children’s physical

safety c ould be in danger due to Mother’s drug abuse.

For reasons unclea

r from the record, the Motion to Modify Custody was not heard by the Tria l C ourt forover a ye ar. In June 1999, Father filed a Motion for Immediate Hearing alleging the Children were in imminent dan g er while in Mother’s custody because Mother had recent ly attempted su icide while the Children were at home and because Mother had been discharged from employ ment twic e inthe past y

ear due to her drug abuse problem. Fathe r, in November 1999, filed another Motion for Immediate H earing a lleging that Mother had driven while under the influence with the Children in the car. The Trial Court held a hearing and entered an Orde r in De cembe r

1999, gr anting Father te

mporary phy sical cu stody

of the Chil dren bas ed upon these allega tions.

The Trial Court held t wo hear ings in January and Marc h 2001 on F ather’ s Motion to Modify Custody. The Trial Court only considered pr

oof regarding

events that had occurred after the May 1997 Orde

r. Mother testifie d she had

a substance abuse

problem w

hich beg an appro ximately in January 1996. Mother testified she became addicted to pres cription drugs when her phy sician prescribed

her Mepergan after

she underwent surgery

related to Chron’s Disease. Mother claimed the last time she took a drug that was not prescribed to her was October 1996. The proof also shows-3-

Mother, a registered

nurse, lost several hospital jobs due to her drug problem. At the time of the hearin gs in 2001, Mo ther had gradu ated fr

om paral egal sc

hool and w as employed b y Cigna I nsurance Company as a medica

l investigator.

The proof shows Mother, over the Memorial Day weekend in 1999, stuck

her wris t witha knife and needle and drew blood. Mother cut her wrist at home while the Children were asleep. Thereafter, Mother was hospi talized for a few day s. Mother denied this was a suicide attempt and characterized it

as a way to get a ttention. M other te stified sh e did this to her self bec ause she and her boyf

riend had discussed breaking up. Mother, since approximately 1993, has been under the care of a psy

chiatrist who prescribed her an anti-depre ssant, Prozac.

On Halloween 1999, Mother drove the Children a

nd some of their friends from her boyfriend’shome to her home after the Children had trick-or-tre ated that even ing. O ne of the Children’s friends testified Mother had fallen asleep at her boyfriend’s house

and that it was difficul

t t o wake M ot he r s o t he y co ul d l ea ve . W hi le ba ck in g h er ve hi cl e o ut of he r b oyf ri en d’ s d ri ve wa y, Mother hit a mailbox. Mother te stified th is was an a

ccident and that t

his was the

onlyout-of-theordinary event that occurred while she drove the Children and their friends home. The Children and another mi nor, who was riding in the car with Mother, howeve r, testified Mother’s driving frightened thembecause not only ha d she hit a mailbox, but she also drove spora dically, near ly hit another vehicle, and, once Mother reached her neighborhood, allowed the older Child, then age 11, to drive her vehicle. The proof also shows Mother appeare d hung-over and had slurred speech the following morning.

Mother

denied drinking more than approximately 2 beers that eve ning and testified that she simply was tired at the e nd of a long day . Mother’s boyfr iend t estified

he did not r

ecall seein g Moth er dri nkin g alcoh ol th at even ing whi le the Chil dren we re tri ck-or- treat ing.

The proof in the record on appeal shows that, at the time of the January and March 200 1 hear

ings , Fat her lived with h is gi rlfr iend , Tam

my Joiner , in a

house loca ted n ext -door t o Father’s parents. The recor d shows Father and Joiner have a child whowas then approxima

tely 2 yearsold. The proof

shows Father, Joiner, and the paternal grandparents pa rticipated in caring for the Children. Father testified the Children are awa re that he and Joiner are not married.

Thereafter, the Trial Court entered an opinion (“Firs t Orde r”) on Father’s then pending Motion toModify Custody . The Trial Court granted Father’ s motion, stating , in the Fi rst Order, as follow s:

The Courttherefore finds that the “stupid” event of Memorial Day and the drinking and driving on Hallowe en clea

rly demonstr ate that there has been a chang e of circumst ances. F urther th eseevents clearly establish that the physical safe ty of the children w as jeopardized by t

he mother . Therefore it isclearly in the bes t interes t of the children that the primary residential parent be the father.2 The recor d on appeal does not cont ain any pr oof

regar ding w hether Fathe r was co nvicted of do mestic assault of Tamm y Joiner.

3 The record on appeal does not disclose why the Juvenil e Court was exercising jurisdicti on over Father’s and Joine r’s mino r child.

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The testimony of [one

of the Children] demonstratedthat the paternal grand

parentslikewise contribute to the every da y well being of the children. “Poppa takes m e to the bus.” The paternal grand parentslive next do or to the father. The children are doing well in public school, [sic] act ive in school activities and extracurricular activitie s.

The Trial Cour

t also found in the F

irst Order that, while it could not condone Father’s cohabitation withhis girlf

riend “a s morally

benefic ial,” it f

ound the “ [C]hildren r

egard Tammy Joiner a s their stepmom and she certainly performs the functions of a parent.”

After t he hear ings held in January and Marc h, 2001, but before the First Order was entered, Mother filed a motion asking the Trial Court to reopen proof. I n thi s motion, Mother alleged that since the March

2001 hearing, Father and his girlfriend, Joiner, had stopped dating and Father and the Children were no longer living in their home. The motion alleged Father had bee n convicted of domestic assault of Joiner.

The Trial Court granted Mother’s motion to reopen proof and he ld aheari ng in August 2001. At th

is hearing, Joiner

testifie d that on Ma

rch 9, 2001, afew day s after t he last hearin g, Father asked her to move out of the ir home a nd leave their 2-y ear-old child in his care. Joiner refused. Thereafter, Joiner and Father had a n argument during which Joiner alleged Father hurt her when he grabbed he

r arm while she was holding their child. The record shows the Children were not present

when this occurred. Subsequently , Father was arrested for assault, and as par t of his conditional release upon making bond, Father was not allowed to be near Joiner or enter his and Joiner’s home. 2 Joiner also testifie d that prio

r to the March 2001 assault, Father frequently dr

ank alcohol and that while drinking, Father had violent episodes with her. The proof also shows that on the date of his assault arrest, Father remove d the vehicle Joiner had been using, thereby

leaving her withoutany transporta

tion. At the time of the August 2001 hearing, Father and Joiner were living separa tely , and thei

r child ha d been c ommitted to

the custo dy o f the Juven

ile Court. 3

Thereafter, the Trial

Court ente

red an Order (“ Second Or

der”) i n which it held Mothe r had “not pre sented sufficien t proof wh

ich would cause the Court to ch ange, alter or amend its [F

irst Order].” The Second Order incorpor ated the First Order by reference thereto. The Sec ond Order did not address specifically the issue of Father’s alleged a ssault of Joiner.
Mother appeals.-5- Discussion

On appeal and

although not exactly stated a s such, Mother raises the following issue: whether the Trial Court erred in granting Father’s Motion t o Modify Custody . Father raises no additional issues on a

ppeal but contendsthat, pur suant to Ten n. Code An n. § 36-5- 103(c), he is entitled t o recove r his attor ney 's fee s incurr

ed on app eal.

Our review is de novo upon the r ecord, a ccompan ied by a presum ption of c orrect

ness of the findings of fact of the Trial Court, unless the preponde rance of the eviden ce is o therwise. Tenn. Rule App. P. 13(d); Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001). A Tri al Court’s conclusions of law are subject to a de novo review with no presumption of corre ctness. Southern Constructors, Inc. v. Loudon County Bd. of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).

The Trial Cour

t’s prior cust ody de terminat

ion is res judic

ata and is, therefore, conclusive unless it isshown tha t “some new fact has occurred which ha s altered the circumstances in a material way

so tha t the welfar e of the child requires a chang e of custody.” Hoalcraft v. Smithson
, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). Tenn. Code Ann. § 36-6-101(a)(1) provides that custody determinations are subject to modification “as the exigencies of the case may

require.” Cou rts afford a strong presumption in favor of the e xisting custody arrang ement. Hoalcraft v

. Smithson , 19 S.W.3d at 829.

On appeal, Mother contends the Trial Court should have eng aged in a comparative fitness analysis betwee

n the parties in determining Father’s Motion to Modify Custody. The comparative fitness te st, by itself, does not control modifications of existing custody orders. See id. at 828-30 . Instead, the person see king a change of cu stody has the burden of establishing: (1) a material change of circumstances ha s occurr ed which was not re asonably

forese eable a

t the time of the original custody

determination; and (2) the child’s best interests will be served by the change of

cu st od y. Id. at 8 28. This Cou rt furthe r define d “mater

ial chan ge of c ircumsta

nces” a s those circumstances of the child which affect the well-being of the child, as opposed to circu mst ances affecting the parents. Id . at 829. If the trial court finds that the moving party has not

established a material change of circumstances, then the trial court need not make the second inquiry involving whether the change of custody

would serve the child’ s best inte rests. Caudill v. Foley , 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999).

The Trial Court, in the First Order, held that Father had carried his burden of proving a mate rial c hange in cir cumst ances s uch th at a cha nge in custody was war ranted. The Trial Court specific ally

found that Mother’s apparent suicide attempt over Memorial Day weekend in 1999 and her reckless driving while under the influence of an intoxicant over

Halloween in 1999 constituted

a material change of circumstanc es. The record shows Mother attempted to gloss-over

her suicide attempt and flatly denied the

drunk driving incident. It is clea r from the First Order thatthe Trial Court, in making t

his deter mination, d

id not find

Mother to

be a credible witness, holding, in pertine nt part, a s follows:-6- [M]other testified that her d rug ab use probl em bega n in January 1996 when her doctor

prescribed meprogan

thereby blaming her doctor for her addiction. Themother further testified that she was asked to resign a position due to missing nar

cotics. She blamed her “hot test” on a mix up of

samples. She either quit or was terminated from an other position due to giving a medication to a patient based

on an oral instruction of a doctor; she blamed this discharge on a failure to place

these ins tructionsfor Ada van and D eme rol on th e pat ient’s chart. . . . The mother also blamed the husband for the children’s testimony in refere nce to the Halloween episode. When confronted

with absolute proof of her drinking and driving, the mother testified that it did not occur. The mother failed and fail s to accept responsibility for her own a cts. These acts have endange red the lives of the children and others.

The mother was not a teenager dee ply in love with her f

i rst love when she committed her “stupid” act of cutting herself. She was 33 years of

ag e, a reg istered nurse and the mother and careta ker of two small children. . . . As a result the mother was committed a n d removedfrom the home to re ma in in a h os pi ta l f or ap pr ox im at el y 4 days. The Court ca

nnot find that the mother

considered the welfare of her children at all when she acted out to get the attention of her boy friend. . . .

With respect to the Halloween episode, the First Orde r also characterized Mother’s denial of t h e Children’s account of what occurred as ha ving “no credibility .”

The Tr ial Court’ s finding that a mat

erial ch ange in

circumst ances e xists such as t o warrant a chang e in custo dy w as based upon its obs ervatio n of the pa rties at t he hear ings, and its comparison of

the demeanor of all thewitnesses, including Father and Mother. Trial c ourts, when determining custody matters, take into ac count a n umber of fact ors, “‘i ncluding

the pare nts’ demeanor and credibility during

the . . . proceedings.’” Nelson v. Nelson , 66 S.W.3d 896, 901 (Tenn. Ct. App. 2 001) ( quot ing Gaskill v. Gaskill , 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)). “Unlike this Court, the trial court observed the manner and d emeanor

of the wit

nesses a nd was in th

e best position to evaluate their credibility .” Union Plan ters Na t’l Bank v. Island Mgmt. Auth., Inc. , 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). The trial court’s determinations regarding credibility are accorded deference by

this Court. Id. ; Davis v. Liberty Mutual Ins. Co. , 38 S.W.3d 560, 563 (Tenn. 2001). “[A]ppellate courts will not re-evaluate a trial judge’s asse ssmen t of witne ss credi bility absent clear and convincing

evidence to the contrary .” Wells v. Tennessee Bd. of Reg ents , 9 S.W.3d 779, 783 (Ten

n. 1999). Based u

pon th e re cord before us and the defere nce we afford the Trial Court’s assessment of the parties’ demeanor and cr edibility, we hold the e vid ence does not prepond erate against the Trial Court’s factual finding that Mother ’s conduct, on at lea st two occasio ns, showed a disregard for the we lfare of the Children. Accordingly , we hold that the Trial-7-

Courtdidnoterr in ho lding tha t Father carrie d his burde

n of esta blishing that a mat

erial ch ange in circumstances had occurred.

Next, we address whether the Tri al Court correctly

found that a change in custody would serve the best

inte rests of the Children. See Hoalcraft v. Smithson , 19 S. W. 3d a t 8 28. In making child cus tody

determin ations, tr

ial cour ts “‘should promote

childre n’s b est in terests by placing them in

an envir onment tha

t will best serve their phy sical and emotional needs.’” Nelson v. Nelson
, 66 S. W.3d at 901 (quot ing Gaskill v . Gaskill , 936 S.W.2d at 630). Tenn. Code Ann. § 36-6- 106(a)(1)-(10) sets forth the factors a t ri al co ur t i s t o u se wh en de te rm in in g c hi ld cu st od y. Relevant to this issue

is Tenn. Co de Ann. § 3 6-6-108( a)(8) w hich prov ides:
(a) I n a suit fo r annulme

nt, divorc e, separ

ate maintenance, or in any other proceeding requiring the c ourt to make a custody determination regarding a minor child, such determination shall be made upon the basis of the best interest of the child. The court s hall cons ider all relevant factors including the following w here applicable:

(8) Evi dence o f phy sical or e motional a

buse to the

child, to the other pa

rent or to any other person

. . . . The court shall include in its d ecision a written finding of all evidence, and all findings of fact conn ected th ereto

. (emphasis added).

The Trial Cour

t, despi te hear ing evi dence o f Fathe r’s arr est an d charge for dome stic assault of Tammy Joi ne r, his the n live-in g

irlfrie nd and moth

er of his you

ngest child, fail ed to addressthese allegati ons in its Second Order. Tenn. Code Ann. § 36–6-106(a)(8) is mandatory and provides that th e Trial Co urt “shall” make a written finding of evidenc e and findings of fact concerning the allegations and proof of abuse pre sented to the Trial Court. See Nelson v. Nelson
, 66 S.W.3d at 90 2 (rema

nding to t he trial c ourt for

a deter min ation of the mino

r childre n’s best interest s, pursuant to Tenn. Cod e Ann. § 3 6-6-106( a)(8), due to all egatio ns that fa ther phy sically abused mother).

Father’s abuse of his then-girlfriend, Tam my J oiner, if

any , weigh s heavily

in this custod y d etermina

tion as suc

h abuse isreleva

nt to the be st intere sts of the C hildren, especia lly in light of the proof that Joiner lived with Father and the Children for a substantial period of time and Joiner participated in caring for the Children, who regarded her as their step-mot her. The implications of such abuse, if true, are far-reaching with resp ect to the

relation ship Fath

er has w ith the mother of the Children’s half-sibling and the relationship Father has and will have with the Children. Accordingly , we vacate the portion of the Trial Court ’s jud gment t hat a ch ange of custody would serve the Children’s best interests and remand this matter to the Trial Court to make a written finding regarding the alleg ations of abuse by Father of Joiner as required by Tenn. Code Ann. § 36-6- 106(a)(8). The Tria

l Court, after comply

ing with Tenn. Code Ann. § 36-6-106(a)(8), then shall make-8-

a determination, after c onsideri ng all relevant factors, as to whether a c hange of custody

will serve the child ren’s be st intere st.

The remaining issue on appeal is Father’s r equest for an award

of his attorney’sfees incurred on appeal pursuant to Tenn. Code Ann. § 36-5-103(c). In the e xercise of our

discretion and in light of our decision to vacate a portion of the Trial Court’s judgment, we decl ine to award Father’s attorne

y’ s fees. See Smith

v. Smith , 984 S.W.2d 606, 610 (Tenn. Ct. App. 1997) (holding that an award of attorney ’s fees incurred on appeal would not be appropriate where both parties wer e partially succe ssful on appeal).

Conclusion

The Trial Cour

t’s judg ment that a

material change in circumstance s has occurr ed is affirmed, but the por

tion of the judgmen t rega rding w hether a chang e in custo dy w ould serv e the bes t in terests of t he Children is vacated. This cause is remanded to the Trial Court for further procee dings as required, consistent with this Opinion, and for collection of the costs below. The costs on appeal are equally assessed against the Appellant, Renee Shelby Griffith, and her surety , and the Appellee, James Alden Griffith.

___________________________________ D. MICHAEL

SWINEY, JUDGE