# FILED

October 27, 1998 Cecil W. Crowson Appellate Cou rt Clerk SHANNON RENEE THOMPSON, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9712-CV-00695 v. ) ) Sumner Circu

it BRAD KENT THOMPSON, ) No. 13822-C ) Defendant/Appel

lant. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE

THE HONORABLE THOMAS GOODALL, JUDGE

DENNIS W. POWE

RS McClellan, Powe

rs, Ehmling &

Dix 116 Public Square Gallatin, Tennessee 37066 ATTORNEY FOR PLAINTIFF/APPELLEE

F. DULIN KELLY ANDY L. ALLMAN Kelly & Kell

y 629 East Main Street Hendersonville, T

ennessee 37075 ATTORNEYS FOR DEFENDANT/APPELLANT

REVERSED IN PART, AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

The parties are the parents of two m inor children whose

custody isat issue in this post-divorce pr oceeding. The

trial court mo

dified the joint legal and p hysical custody arrange ment delineate

d in the parties' Ma

rital Dissolu

tio n Agreement

resulting in the

Mother being awar

ded primary

care and control of

the children. The Father now a ppeals the court's d

ecision to modify

custody as well

as its decision to awar

d the Mother part o

f her attorney f

ees. We reve

rse the decision of the court below b

oth with re gard to custody an d attorney fee s. Furthermore, we remand to the trial court the issue of whether the

child support paid to the Mother nee

d be increased.

I. FACTS AND PROCEDURAL HISTORY

Shannon Renee Gupton Thompson ("the Mother ") and Barry Ke nt Thompson

("the Father") w

ere divorced by

final decree ente

red July 18, 1995. The final decree inco

rporated a ma

rital dissoluti on ag reement (MDA) which provided that the p arti es "share joint le gal and physical c

ustody of their m

inor children," Zachary (bo

rn Oc tober 15, 1991) and W hitney (born Se

ptember 7, 1993), wit h neither party being designated as the primary l

egal custodian. Pursuant to the MDA, the Father had physical custody of the children every other week from Wednesday at 5:00 p.m. until Sunday at 6:00 p.m. and the Mother had physical custody from

6:00 p.m. on Sunday

until 5:00 p.m. on Wednesd ay. On the alternating weeks, the Father would have the children from Wednesday at 5:00 p.m. until Friday morning wh en he retur ned them to day

care and the Motherwould have them from Friday

afternoon when she

picked them up

from day care unt il Wedne sday at 5 :00 p.m. T he part ies alt ernate d major ho lidays withtheir children and each had two ful l weeks free of t

he other's custody

in the

summers. Regardingchild support, the MDA provided that the Father was to pay $460 per month to the Mother and that the parties "would review such child support payment pe riodic ally a nd make adjustments a

s they agree ne

ed to be made." The Father was

to maintain hea

lth insurance on the c

hildren and the parties were to each pay

half of the reasona

ble medical ex

penses and

deductibles.-3-

Atthe time of the

September 1997

hearing, the Fath

er continued to live in

the marital resi

dence, and

the Mother lived approximately one mile away . Bythis t i me, the parties had been functioning under the custody arrangement outlined in the MDA for ove

r two years.

The problems in this case seemed to h ave begun

when, by letter

dated October 4, 1996, the Mother

requested that the F

ather increase c

hild support to $730 per month. The Father state d that when he asked w

hat the increase

was for, the Mother responded tha t it was for "toilet

paper and groceries." After the Father denied the Mother's

requests for increased support, the Mother filed her "Petition for an Increase of Child Support and Amended V

isitation Schedule" on November 5, 1996. The court suggested in a subsequent order that the Mother amend her Petition in orde

r to make alle

gations with r

egard t o the need for a "primary custodial parent" a

s there was no

such designation

in the final decree.

The Mother filed an Am

ended Motion

on August 11, 1997 asking the courtto order that Zac

hary be enrolle

d in the elementa

ry school zoned f

or the Mother's residence. On August 26, 1997, t he court ordered instead that Zachary be enrolled in the school that was zoned for the Father's residence . On September

23, 1997, the Motheragainamended her pe tition as suggested by

the Courtasking the

court to award her primary physical custody

of the children and to establish a specif

ic drop-off and pick

-up time for vis

itation.

Atthe September

30, 1997 hearing, the Mothe r testified that she

made $1710 per month working at the Tenn essee School Board Ass ociation. S h e testified that the children we re in day care at La Pet ite Academy

which costs $543.40 per month an d f or which she was financially responsible. The Father testified that heowned a business. H e agreed that he ha

d paid the Mother $460 per month since the t

ime of the divor

ce. He said that

in addition, he car

ried the children's health insurance. He affirmed that, at the time the Mother r equested

an increase in support,

he had $43,000 in savings and tha t at the time of the hearing, he had at leas t $20,000.

The Mother stated that shecould only think of o ne substantial change-4-

in circumstances since 1995 when the pa rties agreed to

share custody which was th at Zachar y, her oldest child, had started school. When the Mother was questioned regarding

her concern about th

e feasibility

of joint custody with her son in school , she ga ve the f ollowi ng test imony: I just have a fear for when he gets a little older that -- I mean, I can see him, "W

ell, no , Teach er, I d on't h ave my homework. I was at my da d's last n ight and I w as at my mom' this night, so it's at

my dad's, and I don't have

my book because I left it here." I can see something like that happening, and I just think it is a real strain on him

to be in one place one night or two nights and then another place two other nights.
T he Mother did confirm that she and the Father live a mile apart and that Zachary's school is a little m ore than a mile from

her residence and a half of mile from the Father's reside

nce. She testified that the parties had been able to work out holiday visitation

witho u t problems under the prior custody

arrangement

. She saidthat she could

only remember once in the past where the parties had rearranged their sched uled time with the childr en.

When asked why she had asked for pri mary car e of the children,

the Motherr ep lied that "there is n othing like the nurturi

ng of the mother . . . and [she] just fe[lt] tha

t [she was] the

one that, the majority of the time, takes them to the docto r, and

[she] cook[s] for them when [she] ha[s] t

hem, and [she] just feel[s] that [she] can ta

ke care of them

like a mother s

hou ld." The Mother did agree that the Father is a

good parent and that he

had done a good job pro

viding for the children bot h financially and emotional ly.

When the Fathe r was a sked what p roble ms they had experi enced with the current custody

arrangement

, he made the follow

ing statement: "I don't see any prob lems at all. I

t's going very sm

oothly. The ch

ildren know, yo

u kn ow , when, you know, my daddy comes and picks m

e up. They know

exactly who is coming to get them, and you know, it go es over fine." Later, in response to a question from the bench, the Father

stated that the

actual weekly

exchange of the children was also w

orking out well. However, he ha d, at an earlier dep

osition, given several reasons

why the Mother should n ot be the primary care giver. He had stated that he fe

lt that the children w

ere in a more

stable environm

ent with-5-

him and at his

home, that the Mother had moved three times since the divorce, and that the Mother did not give adequate atten

tio n to the children's extracurricular activiti es.

In its final order, the trial court found that there had been a suf ficient

c hang e of circumstan

ces since the entry

of the final decre

e to modify c

ustody such that, while

the p arties shall retai

n joint custody,

the Mother is to have primary care and control of

the children. The Court's order awarded the Father visitation every other

weekend and

provided for nightly phone visitation. Based upon the Father's 1996 ta x return showing incom

e of $85,000 plus add

itio nal inco me by way of

depreciation

deductions, the cour

t set child support at $1 ,492 per month. The co

urt stated its fin ding that, at the tim e the Mother ma

de the request for additional child support, the Father had $40,000 in savings. However, it was the court's position that based on the shared c ustody

arr ang ement

at that time, the child support payments need not be retroactive. Rather, they should begin on November 1, 1997. Furthermore, the court found that since the Father ha

d in excess of $20,000 in the bank at th e time of the hearing, the Mother should not be responsible for all of her attorney fees. Thus, the court ordered the F

ather to pay $3000

of the attorney

fees i ncu rred by the Mother.

II. STANDARD OF REVIEW
Appellate review of custody cases is de no vo upon the record of t he trial court, accom

panied by a presu

mption of the cor

rectness of the fin

ding, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984); Nichols v. Nichols , 792 S.W.2d 713, 716 (Tenn. 1990). In cases where the iss ue is modificat ion of custod y, the burden is on the non-custodial parent to pro ve cha nged ci rcum stances. Musselman v. Acuff , 826 S.W.2d 920 , 922 (Tenn. Ct.App. 1991).

III. CUSTODY-6- On appeal, the Fathe

r first asserts tha

t the trial court er

red in finding th at there was a mater

ial change in circum

stances warrant

ing a change of custod y. Even if there we re a materia

l change, it is

the Father's positi

on that he is the proper parent t

o have primary care and control of the ch ildren. Because we agree with the Father tha t there was no chan

ge of circumst

a nces wa rranting a changeof custody, we

find it un necess ary to address the question of which parent is more

fit.

The law is well settled that "where a decree has been entered a

warding custody of children, that decree is res ad judic ata [sic] and is c

onclusive in a subsequent

application t

o change custody unless some new fact has occurred which has altered the circumstances in a material way so that the welfare

of the childrequires a

change in custody." Nichols , 792 S.W.2d at 715-16 (citing Dodd

v. Dodd , 737 S.W.2d 286, 290 (Tenn. Ct. App.1987)). This court has discussed "changed circum

stances" as follow s: This decision [regarding custody] is not changeable exce p t for "change of circum

stances" which is defined as that which requires a change to prevent s ubstantial harm

to t he child. Custody is not chang

ed 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

on e p arent is able to furnish

a more com

modious or

pleasant environm

ent than th e other, but where continuation of the adjudicated custody will subst

antially harm

the child. Wall v. Wall , 907 S.W.2d 829, 834 (Tenn. Ct . App. 1995).

The statutory standa

rd for modify

ing chi ld custody is em

bodied in section 36-6-101 of the Tennessee Code and provides fo r "modification a s the exigencies of the case ma y require." T

enn. Cod e Ann. § 36-6-101(a) (Supp.1998). Our supreme court has defined "e xigencies" under the

st atute as follows: facts and conditions which ha ve emerged si nce the decree, new facts and changed c

ondition s which wer e not determined and could not be anticipated by the decree; and tha

t the dec ree is final and conclusiv e upon all the facts a n d conditions which existed and upon which the decree was made.-7-

Smith v. Haase , 521 S.W.2d 49, 50 (Tenn. 1 975); see also McDaniel v. McDan iel , 743 S. W.2d 167, 168 (Tenn. Ct. App. 1987). In other words, as articulated by this court in the cas e of a party's attempt to m

odify an alim

ony agreemen t, "[c]hanges in circumstances are not material if such changes were contemplated

by the parties at

the time they

entered into the ali

mony and support agreement." Seal v. Seal , 802 S.W.2d 617, 620 (Tenn. Ct. App. 1990).

To reit era te, the trial cour t found that there has

been a "sufficient changeof circumstan

ces" and modifi

ed custody such tha

t, whil e the pa

rties retained joint custody, the Mother was awarded primary care and control of the minor children.

After a caref

ul review of the

record, we find

that the record in this case does not support a concl usion that there has be en a change of circumstances which warrants the ch ange of physical custody

of the children. Atth e hearing, the Mother testified that she knew of only one changed circumstancewhich was thatthe oldest child Zac hary had starte

d school. While the Mother speculated that this might in the future pose a logistical problem for the child r egardi ng his abilit y t o keep up with his books and homework, there

was neither allegation nor proof that the child

was having problem

s with school due to the custody ar

rangement. I

ndeed, the evidence was that Zachar y's school

was just over a mile from the Mother's residence and a hal f of mile from

the Father's

. Moreove r, at the time that they enter

ed the joint phys

ical custody agreement,

the parties certainly contemplated the fact that Zachary wou

ld start school when he reached the appr opriate age, thereby

precluding this change

of circumstancefrom, in and of itse lf, just ifying a change of cust ody. See Smith v. Haase , 521 S.W.2d a

t 50; Seal , 802 S.W.2d a

t 620.

Our courts have held that

the mere fac

t that joint custody

is not working and is adversely aff

ecting children m

ay be a change o

f circumstanc

e whi c h justifies modifyin g custo dy. See, e.g., Rubin v. Kirshner , 948 S.W.2d 742 , 745 (Tenn. Ct. App

. 1997). However, the facts in this case simply do no show that the joint custo dy agree ment was not working for these parties. Both parties testified that there ha

v e been few proble

ms with the jo

int physical custo

dy arrangement

including exchanging the children from on e home to the other and scheduling holiday visitation

. The Mother remembered only one tim e in which-8-

the parties had needed t o re-arrange the custo dy schedule. The Fat her commented

that the children were well-ad justed to the a rrange ment and always knew which parent was coming to pick them up from day care.

Itmay be the better practice to specifically provide in an MDA for a primary physical custodial parent. Such was not done in this case a nd b y approving the MDA in

the Final Decree of

Divorce, the tri

al court approved the pure joint custody

arrangement

.

The Mother asserts that since the trial court's order retained joint legal custody , the court did not actually modify custody in this case. The Mother claims she already had more responsibility

for the children unde

r the MDA and thus the court's award to her of primary care of the ch ildre n was not a material change. Custody has both a legal and a physical asp ect. See Ford v. Ford , No. CA 1123, 1987 WL 28394 ( Tenn. Ct. App.1987) (distinguishin g betwe en physical and legal custody in a case where t

he appellant only ap

pealed the

issue of physi cal custo dy). When se ction 36-6-101(a)(1 ) of the code provide s for "modification [of a custody decree] as the exigencies of the case may require," it is referring to

the preceding statut

ory language indi

cating a decree r

eflecting the court's award of

"the care, custo

dy and control" of m

inor children. Te

nn. Code Ann. § 36-6-101(a)(1) (Supp. 1998). It is indisputable that the a

rrangement for physical custody or "care" of the children to which the parties h

ad agreed in their MDA was greatly altered by the court's order. T he Fa ther wen t from spending almost half of his time with the children to spending every other weekend with them. W

e therefore rej ect the Mother's c ontention th at custo dy was not modified by the trial co urt's final order. In conclusion, we fin

d that the trial court's order m

odified the custody arrangement

to whic h the pa

rties had agreed in their MDA. W e hold that the evidence preponderates against a finding that, since the time that the parties entered their agreement, circumstances have changed such that custody need be modified to prevent substantial harm to the children. Sincethe proof was that the parties' prior custody arrangemen t was w orking well, we r einstate the custody arrangement as set out in t he MDA and incorporated by the final decree.-9- IV. ATTORNEY FEES
Lastly we turn to the trial court' s award of attorne y fees. As st

ated, followingthe court's ass ertion t hat it found that the F

ather had in excess o

f $20,000 in the bank at the time of the hearing, it concluded that the Mother shouldnot be responsible for all of her attorney fees. The court then ordered the Father to pay $3 000 of the Mother's a ttorney fees.

Tennessee Code Annotated § 36-5-103 governs the a ward of attorney fees in case s invo lving alimony, child support and custody. That statute provides as follows: The plaintiff spouse may

recover from

the defendant spouse, and the spouse or o ther person to whom the custody of the child, or children, is awarded may rec over from the other spou se reasonable attorne y fees incurre

d in enforcing any decree for alimony

and/or child

support, or in regar

d to any suit or action concernin

g the adjudication of

the custody or the change of custody

of any child, or

children, of the

parties, both upon the original divorc e hearing and at any

subsequent hearing, which fe es may b e fixed and allowed by th e court, before whom su ch actio n or proceeding is pen ding, in the discretion of such co

urt.
Tenn. Code Ann. § 36-5-103(c) (Supp. 1998). The

statute by its

language limits the trial court's disc

retion to award attorney

fees to "the spouse . . . t

o whom the custody of the

child, or children, is awarded." Id. Indeed, this courthas stated that "[t]his statute a

uthorizes an awar

d of attorne

y's fees to a party who successfully pur

sues or defends

a change of custody petition." Bjork v. Bjork , No. 01A01 -9 702-CV-00087, 1997 W L 653917, at *7 (Te

nn. Ct. App. 1997) ( citing D v. K , 917 S.W.2d 682, 686 (Tenn. Ct . App. 1995)). O ther opinion s have held that section 36-5 -103 entitles only the "prevail

ing" part y to attorney fees. Brewer v. Weibel , Nos. 02A01 -9703-CH-0 0067, D145 91-1, 199 8 WL 158779, at *2 (Tenn. Ct.App. 1998) (reversing the trial court's award of attorney fees to the mother in

a case where the

father had succes sfully sought a cha nge of custody from the m

other to him); see also Wallace v. Wallace , No. 02A01-9702-CH-000 29, 1998 WL 74256, at *6 -7 (Tenn. Ct. App. 1998).

Based on the statute itself and the foregoing case law and based on this-10-

court's conclusion that there were not c hanged circums

tances tosupport a change of cus tody, we find t

hat section 36-5-103(

c) does not authorize

an award o f attorney fee s to the Mother. W e therefore reve

rse the trial court

's decision to awardthe Mother $3000

of her attorney fees and we reject her assertion that s

he shouldbe awarded any

of the expenses of

this appeal. Although we recognize the financial inequalit

y of the parties , this fact can be considered with re

gard to childsupport. S ee Ten n. Code Ann. § 36-5 -101(d) (Supp. 1998) . Under the parties' MDA, the Father

was paying only

$460 per month to th

e Mother and the Motherwas complete

ly respons ible for the cost of day care which was over $500. The MDA envisione d changed econom

ic circumsta

nces an d assumed future agreements between the part ies. Agreem

ent on child support wa

s not forthcoming

and the Mother petiti

oned for an increase. In view of the action

of this court relati ve to the custody and attorney fee issues, this case is remanded to the trial court for

further considera

tion of th e Mothe r's November 1996 petition for increa

sed child support.

V. CONCLUSION

For the foregoing reasons , we reverse the tria l court's modif

ication of custody as well as its award

of attorn ey fees to the M other. We rem

and this

causeto t he Sumner

County Circuit C

ourt for determ

ination of the issue of whether the child support paid by the Father to the Mother should

be increased. Tax the costs o n appea l to the partie s equal ly.

______________________________________ WILLIA M B. CAIN, JUDGE

CONCUR:

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.

_________________________________________ WILLIA M C. KOCH, JR., JUDGE-11-