### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 2000 Session TANYA R. (WENGER) KIBBY v. JA SON M. KIBBY Appeal from the Circuit Court for Sequatchie County No. 6790 Buddy D. Perry, Judge

No. M1999-00906-COA-R3-CV - Filed August 31, 2000

This appeal presents a dispu te of custody, visitation, and attorney fees. The pa rties are parents of one child, Ian Kibby, who is the subject of this dispute. The father wa s awar ded primary custody wh en the parties divorced in May of 1996. The mother filed a Petition for Contempt an d Modification seeking primary residential placement of Ian and later requested that the court refer

this matt er to mediation. The f

ather filed a co

unter-petition re

questing a chan

ge in the moth

er’ s visitation privileges and a ttorney’s f

ees. The trial court

dismissed the mother’s petition but granted the father’s petition reducing the mother’s visitation rights. The court also refused to refer this matter to mediation and did no

t award attorney

fees to the fathe

r. The mother now a

ppeals the court’s dismissal of her

petition, failure to refer the matter to mediation, and change in visitation; the father also appeals the failure of the trial court to award attorney fe es to him. We agree

with the trial court on all issues

and affir m its ruling . Wealso award attorney’s fees necessitated by this appeal to the father and rema

nd to the trial cour

t for a determina

tion of this amount. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded
W ILLI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., and P ATRICIA J. C OTTRELL , J., joined. Mit chel l A. Byrd, Cha tta noo ga, T enn ess ee, f or t he ap pel lan t, T anya R . (W enge r) Ki bby.
M. K eit h Da vis , Du nla p, T enn ess ee, f or t he ap pel lee , Ja son M. K ibb y. OPINION I. FACTS
Tan ya R. Kibby (“the mother”)

and Jason M. Kibby (“the father”) were divorced on 6 May 1996 in Walker County, Georgia. Their only c hild, Ian Kibby, was

born on 1 February 1995. The Georgia court awarded primary custody of Ian to the father, granting the mother standard visitation-2-

privileges.Three months following the final divorce decree, in July of 1996, the mother filed a Complaint for Modification in Sequatchie County, Tennessee seeking primary custody of Ian. As a result of this complaint, the p arties entered

into an agreed

order on 4 June 1997.

This orde r providedthat primary custody would remain with the father ; however, themother’s visitation was increased from a sta

ndard v isitation schedule to a schedule which included visitation every other week from Wednesday to Sunday and a dditional summer visitation.
Four months following e

ntry of the a

greed order,

the mother filed a

Petition for Contempt andModification, whic

h is at issue here. She, once again, sought primary residential placement of the child. The court held a hearing on the Petition for Modification on 10 July 1998, but reserved its ruling until October of 1999 so that all

parties could undergo a custodial evaluation. On July 1, 1999, a lmost a year

after the hear

ing in the case,

the mother filed a

motion to refer pa

rties to mediation. At the hearing, the mother testified that she and the father were having problems with the visitation schedule and she had lost visitation as a result. She also alleged that thefather had made harassing phone calls and se nt her harassing

letters. In a

ddition, there wa

s test imony of c igarette burns on Ian. The mother alleged that these burns were made by the father, and she placed a medical record in evidence which stated

that Ian told a doctor that his father burned him with a cigarette.She also claimed that the Department of Human Services wascalled regarding the burn; however, there was no record of

an investigation

of this incident. On cross-examinati

on th e mother admitted that she was actually denied no visitation, the weekends had just become confused. She also admitted that she did not attempt to contact the father to straighten out any misunderstanding regarding visitation since “phone calls do notgo very well.” There was no evidence that the father’s phone calls were harassing, and the only letter placed in the recordwas a letter from the father attemptin

g to explain the fa

ther and stepmothe

r’s attempts

t o potty-train Ian and requesting the mother ’s assistance regarding the pattern set by the father in the potty trainin

g process. The father testified that he had remarried and ha d anot her ch ild b y his ne w wife . In addition, there we re two other child ren living in the h

ousehold, these c

hildren being fr

om his wife’s first marriage. The father

and stepmother both worked, so Ian and his younge r sister wereboth placed in d ay car e du rin g the week days he w as i n hi s fa the r’s cus tod y. The father further testified r egarding two alleged burns on Ian’s face. The first burn apparently

occurred some ti

me in December o

f 1997. When the fa

ther obtained cus

to dyof Ian fol lowing the mother’s visitation, he noticed a small round burn mark on Ian’s chin. The fa the r contacted the emergency

room andwas informed that, as this was not an emergency, they would not have time to see Ian. Therefore, the father took Ian to the polic

e station to file

a police report and have pictures taken of the mark. This picture and the police report were placed in evidenc e.-3-

The following day, the father took Ian to a prescheduled appointment with a psychologist for developmental testing. The psychologist also noticed the burn mark on Ian’s chin, identified it as a possible cigarette burn and talked with the child regard ing how he received the burn. The psycholog

ist, Gail Carson Webb, testified on the witness stand that Ian told her he received the burn from the mother’s husband, David Lawson, and that Ian showed a great amount of hostility toward Mr. Lawson. The psychologist further testified that the bur n looked relatively fresh, onl y a few days old, and that she was obligated to contact the Department of Human Services regarding this matter. The father and Ian’s dayca re worker both testified that Ian ha d no mark on his chin prior to being taken to his mother for vis itation. The mark w

as only notic

ed upo n Ian’s return. In addition, the mother did not report the burn or seek treatment for Ian while he was in her custody

. Regardinga

second mark, which the mother alleges Ian had on his chin in May of 1998, the father testified that he never saw this mark and h as no actual knowledge of the mark or how Ian received it. (It was during

this time that the mother did not r eturn Ian to h

is father at the a

ppropriate time, buttook Ian camping at a location unknown to his father for several days. The father ha d no idea where Ian was and

required court assistance to have him returned.) The mother and her husband bothtestified to seeing the mark and that it looked like a cigarette burn similar to the December burn. In addition, medical records reflected that Ian was seen by a doctor for the mark on his chin and that he told the doctor his f

ather burned him.

There was furth

er testimon y regarding these two burns from the father’s landlord, Sandra Ramsey. Ms. Ramsey testified that she overheard Ian telling h

is daycare worker that David L awson, the mother’s husband, gave him the burns. Additional testimonyin the r ecord reflect s that the father t

ried on numerous o

ccasions to communicate with the mother to clear up various problems with visitation or make slight changes in visitation when there was a conflict with his or his wife’s schedule. The mother refus ed to call the father on the tel

ephone and made l

ittle or no effort

to cooperate in any

visitation adjustments that needed to be made. She had even taken the child t o locations unknown to the father on two occasions and ma

de no attempt to con

tact the father t

o let him know where

Ian was. She had also gone to the pick up site on seve ral occasions,

waited for Ian and filed police reports even though she just had visitation the week before and knew he would not be there. At no time

did she attempt to call the father to work out any visitation discrepancies.
In addition to the psy

chologist Ia

n saw for testing

at the recommend

ation of his fathe

r, all parties were also seen by a psy chologist at the request of the judge for a court ordered cus todia l evaluation. The psychologist, David A. Solovey, examined both households including all children i n the father’s household and both current spouses. He recommended that primary residen tia l custody remain with the father and that the mother have significant visitation. He also recommended mediation and counseling for the parents and counseling for the mother to address her depression. The psychologist’s recommendations did not address any of the child abuse issues. There was also testimony from the father, Ian’s stepmother, and his daycare worker that I an suffered from personality

and emotional cha

nges following

visits with his

mother. Ian’s father and stepmother

testified that

he became withdrawn and did not interact wi

th the other childr

en normally-4-

following his visits. He also refused to eat the food placed in front of him, wanting candy and cokes instead. Ian’s daycare worker testified that I an was withdrawn and distant from the other children following his visits. These wit nesses all testifie

d that after a fe

w days I an would return to normal. II. ISSUES The issues on appeal are (1) whether the trial court erred in deny ing the mother’s motion for mediation; (2) whether the court erred in dismissing t he mother’s complaint requesting custody and/or modification of the Jun e 4, 1997 courtorder; (3) whether the court erred in changing the mother’s visitation to limit h er time with the child as opposed to expanding this visitation; (4) whetherthe court erred in awarding primary residential plac ement of Ian to the father; and (5) whether the court should have awarded the father reasonable attorney fees in his matter. With reg ard to all of these issues, we affirm the trial court’s ruling. III. CUSTODY AND VI SITATION The law which governs changes in custody orders is very well settl ed and requi res a change of circumstances so that thepresent situation is no longer in the best interest of the child. Further, great deference is given to the trial judge reg arding custody decision.
In recognition of t

he importance of

stabil ity and continuity, custody and visitation decisions, once made and implemented, are res judicata upon the facts in existence or reasonably foreseeable when the dec ision was made.

. . . Tenn. Code Ann. § 36-6-1 01(a)(1)(Supp. 1997) empowers th

e courts to

change custody “as the exigenc

ies of the case

may require,” an d courts wi ll change custody when the party seeking to change custody proves (1) that the child’s circumstances have materially changed in a way that could not

have been reasonably foreseen at the time of the original custody decision, and (2) tha t the child’s best interests will be served by changing the existing custody arrangement. Custodydecisions are factually driven and require the car eful consideration of numerous factors. Since these de cis ion s of ten hin ge on the part ies ’ cre dib ili ty, appellate courts are r eluctant to second-guess trial judges who have observed witnesses and assessed their credibility. Accordingly , we decline to disturb custody decisions un less theyare based on a material error of law or the evidence preponderates

against them. Adelsperger

v. Adelsperger , 970 S.W.2d 482, 485 (Ten n . Ct. App. 1997) (citations omitted).
We cannot find tha t the evi dence preponderates against the trial court’s decision to leave primary custody with the father and r educe visitation of the mother. The findings of t he trial court which are dependent upon determining the credibility

of witnesses are entitled to great weight on appeal. Town o f Alamo v.1 In June of 2000 the Tennes se e General Asse mbly enacted Tennes see Publi c Law 889 amending Titl e 36, Chapter 6 of the Tennessee Code. This amendment made parenting plans appli cable statewide;

however this amen dme nt was no t funded by the G eneral A ssembly

. See 2000 Tenn. Pub. Acts 889. -5- Forcum-JamesCo. , 205 Tenn. 478, 483, 327 S.W.2d 47, 49 (1959). The reasonfor this is that the trial judge alone has the opportunity to observe the manner and demeanor of the witness while testifying. Indeed, the trial judg e, on an issue which hinges on witnesscredibility, will not be reversed unless there is found in the record concrete and convincing evidence, other t han the oral testimony

of the witnesses, which contradicts the trial court’s findings. Tennessee Valley Kaolin Corp. v. Perry

, 526 S.W.2d 488, 490 (Tenn. App. 1974).
Bowman v. Bow man , 836 S.W .2d 563, 566 (Tenn. Ct. App. 1991). The

trial judge was a

ble to witness the manner and

demeanor of the w

itnesses and dete

rmine their

tru thf uln ess and cred ibi lit y. The record contains ample evidence from the fat her and other witnesses to find a change of circumstances that makes the mother’s previous visitation arrangement not i n Ian’s best i ntere st. In addition, there is virtually no evidence to warrant a change of

primary custody to the mother. As we cannot find a preponderance of

the evidence against the

trial court’s ruling, we affirm its decision regarding custody and visitation in this matter. IV. MEDIATION The mother requeste

d a referral to

mediation pursuan

t to Supreme

Court Rule 31 and Tennessee Code Annotated se ction 36-6-401 (Su

pp. 1999). We find th

at, pursuant

to Rule 31, this decision was within the judge’s discretion, and there was no abuse of discretion on the part of

the judge in denying the

request for mediation. Further, sectio n 36-6-401 does no

t apply to Sequ

atchie Cou nty, the county

in which this

litigation arose1 ; therefore, there is no requirement that the court follow th i s statute. The judg e had the opportun

ity to hear te

stimony and vi

ew the parties to determine the likelihood that mediation would be successful. Based on evidence in the record, we can find no abuse of

discretion on the part of the judge. Therefore, we also affirm the court’s decision not to refer this matter to mediation. V. ATTORNEY FEES
Tennessee Code Annotated section 36-5-103(c)(Supp. 1999 ) govern s the award of any attorney fees in proceedings reg arding child custody. This statute provides th

at a spouse may

recover reaso

nable attorney

fees incurred i

n any action concerning the

adjudication of the custody of any child, or children, of the parties, both upon the original divorce hearing and at any subseque nt hearing before whom such action or

proceeding is p

ending, in the dis

cretion of such c

ourt.-6-

Stubbs v. Stubbs , No. 02A01-9703-CH-00050, 1997 WL 730247, at * 4 (Tenn. Ct. App. Nov. 25, 1997). The trial judge, af ter viewing all w

itnesses and evide

nce, determined

not to award attorney fees to the father. As there were allegations of child abuse and a request for modification from

both parties, we find n

o abuse of discre

tion on the part of t

he trial judge in

denying a

ttorney’s f

ees. However, as in the Stubbs case, Appellant, the mother, instigated actions on both the trial and appellate levels. The mother

filed the second r

equest for chan

ge in custody

only four and one half months after an agreed order regarding custody and

visitation had been entered into by both parties andsigned by

the judge. She once again alleged a material chang e in circumstances had occurred in the four and one half months since the agreed order was entered. In a ddition, she stated that the father was in contempt of court for failure to abide by the restraining order, visitation schedule, and insurance. However, the proof in this matter showed her allegations to be without any foundation or merit. She testified to two instances where she had been denied her visitation. But upon review of her cross examination and testimony of the father, it was obvious that she had not actua lly bee n deniedvisitation. In t

he first instance

, the weekends fo

r her visitation ha

d become confused due to an extended summer visitation period. Instead of calling in an attempt to straighten this matter out withthe father, the mother went to the pickup location every

weekend. She accepted her visitation on th e incorrect weekend, then returned the following weekend, knowing the c hild would not be brought because she had had her visitation the week before, and fi led a re port at the police department

stating that the father was in violation of a court order for not bringing the child on the appropriate

weekend. However, the mother never attempted to discuss this problem with the father at the time of pickup nor were any phone calls ever made tostr aigh ten out the sch edu le. App aren tly, the father was n

ot aware for some

time that the visitat

ion schedule had g

one afoul. On the second occa

sion, the mother te

stified that she misse d her Memorial Day visitation com ple tel y. However, on cross examination and direct examination of the father, it was shown that, once again, this was m

erely a mix up about times and was actually the mother’s mistake. The father andhis wife bot h had to work on Memorial Day and requested the mother take the child early on Sunday night rather than Monday morning to prevent problem s with the father and stepmother’s work schedule. The mot

herrefused to cooperate and insisted that they follow the court order exa ctl y. The ch ild was brought by the stepmother at 8:00 on Monday morning per court order; however, the mother did not arr ive until 9:00. At tha

t point, the child ha

d been taken to

his father’s place of employment so the step mother coul d go to work T he father th en called an d left a mess age on the mother’s answering machine informing her of where the child was taken, but the mother never calledto arrange another pick up. Both of these mix ups in visitation were caused by a combination of honest mistake and lack of communication on the part of the mother. On one other occasion, when the father was confused about the date for picking up Ian and was not at the pick up location when the mother arrived, she took Ian to a location unknown to the father and failed to notif

y him fo r over 24 hours. The father did not determine the location of the child until the following day and had to send an o

fficer to retri

eve him due to

the restraining order-7-

against the father. The

mother never att

empted to contact

the father to let h

imknow whereIan was, tell him that he had missed his pick up time, or work out a suitable arrangement to return Ian to his father. The mother was completely unsuccessful in showing any change of circumstances that might rem otely ju stify a change in the child’s primary custodial residence from the father to her. Then, after the trial, the mothe

r, probably

knowin g tha t she had shown no e vidence of chan

ge in circumstances to justify her complaint, asked for court ordered mediation. This request was denied. After the court’s final rul

ing, the mother f

iled this appeal requesti

ng that the cour

t of appeals order mediation and a pa

renting plan as w

ell as anger ma

nag ement and parenting classes with a psychiatri st. She argued that these are reasonable conditions and restrictions that should have been placed on their visitation by the trial judge. She further argued that he

r time with Ian should have been expanded rather than limited and that the court was in error in continuing primary re sidential placement

with the father. However, the appellant cites no evidence in the record showing a material change of circumstance such that a change in the primary custodial

residence would be in the child’s best interest. Appellant’s appeal focuses solely on the court’s failure to follow section 36-6-401 of the Code to require me

diation and paren

ting classes. No

where in the appe

al were facts po

inting to a change in circumstances nor were facts relating to the c hild’s bestsinterests discussed. Her allegations and appeal focused primarily on relationship problems between her an d the father and their new familie

s. Just as the mother’s petition to change the custody arrangeme nt proved unsuccessful at trial due to lack of evidence, this appeal is a pure credibility challenge withoutmerit. Thus, we grant the father attorney fees

necessitated by this appeal. We further remand this matter to the trial court for a determination of the amount of attorney fees to award the fa ther.
IV.
We affirm the trial j udge on all issue s. The evidence in t

his case did not preponder

ate against the trial judge’s finding that custody shou

ld remain with the father and that the mother’s visitation should be reduced fro

m a more liberal vi

sitation agree

d to in th e pre vious order to a standard visitation schedule. We also find no abuse of discretion on the part of the judge in deciding not to refer this matter to mediation and not to award attorney fees to the father. However, we find that an award of attorney

fees necessita

ted by this ap

peal is just and equ

itable and reman

d this issue to the trial judge for a determination of the amo unt of at tor ney fe es t o aw ard t o th e fat her, Jas on M . Ki bby.

__________________________________________ WILLIA M B. CAIN, JUDGE