### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs F ebruary

3, 2003 JEFF LANDOWSKI v. MARLA LAN DOWSKI (COLLINGS) Direct Appeal from the Chancery Court for Obion County No. 22,633 W. B. Acree, Jr., Circuit Court Judge, sitting by Interchange

No. W2002-01689-COA-R3-CV - Filed June 25, 2003

Father filed a petition to modify the

existing custody ag

reement. The trial court granted the petition and named Father as the primary residential custodian with the parties three minor children. Mother appeals and we a

ffirm. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed; and Remanded
D AV ID R. F ARMER , J., delivered the opinion of the court, in which H OLLY K. L ILLARD , J., joined and Alan E. H

ighers , dissents

. Marla Collings, Pro se. David L . Hamblen , Union City , Tennes see, for the Appellee, Jeff

Land owski. OPINION

Jeff Landowski (Father

) andMarla

Landowski (Collings) (Mother) w ere granted a divorce May 7, 2001. Th

e partie s had thre e minor c hildren, Brittan y, K ayla , and Nathan. The Marital Dissolution Agreement (MDA) provided that the pa rties would have joint custody and we re to b e co-residential parents of the minor children. Father wasto have primary custody of the children five (5) days one

week and four (4) day s the next and was ordered to pay child support.
F ather filed a petition on January 17, 2002, seeking to modify the custody

de cree an d requesting Mother be

require d to pay

a reaso nable am

ount of ch

ild support. Following the trial of this matter on May 29, 2002, the tria l court entered an order naming Father as theprimary re sidential custodian of the minor children. The trial cou rt set visitation for

Mother a nd order ed her to pay child support. Father’s previously ordered child support obligation was terminated. Mother appeals and raise s the following issue for our r eview: Whe

ther the trial cou rt erre d in findin g that a

materia l change in circumstances had oc curred which justified a change in custody.-2-

Our review o f the tria

l court’sruling i s de nov o with a p resumption of correctness. See T.R.A.P. 13(d). Accordingly , we may not re verse these findings unless they are co nt rary to the preponderance

of the evidence. Howeve r, with re spect to th

e trial c ourt’s legal conclus ions, our review is de novo with no pre sump tion of corr ectness. See Caudill v. Foley , 21 S.W.3d 203, 206 (Tenn. Ct . App. 1999). The threshold issue to be considered in a custody change is whether a material change in circumstances has oc curred since the initial cu stody determin ation. See Plac encia v. Placenc ia , 48 S.W.3d 732, 736 (Tenn. Ct. App. 2000). As stated recently by our supreme c ourt in Blair v. Badenhope , 77 S.W.3d 137 (Tenn. 2002): As the Court of Ap peals has acknowledged, “[t]here are no hard and fast rules for determini ng w hen a ch

ild’s cir cumstanc es have c

hange d suffic iently

to warra nt a change of his or her custody” Solima v. Solima , 7 S.W.3d 30, 32 (Tenn. Ct. App. 1998). Neverth

eless, the followi ng fac tors have formed a sound bas is to determine whether such a change has occurre d: the change has occurre d after the entry of the order sought to be modified and the chang e is not one

that was k

nown or r easonab ly anticipatedwhen the order was entered, see Smith v. Haase , 521 S.W.2d 49, 50 (Tenn

. 1975), a

nd the cha

nge of circumst ances is one that a

ffects t he child’ s w ell

being in a meaningful way , Hoalcraft v. Smith son , 19 S.W.3d 822 , 829 (Te nn. Ct. App. 1999). Id . at 150. The record presented

for our review contains a statement of the evidence. A review of the statement of the evidencereveal s that a school nur se testif

ied that o n one occ asion Br ittany became ver y ill at school with a 101 degree fever. The nurse called Mother to pick up the chi ld

. Approximately one hour had passe d and the mother had still not arrived to pick up the child. The nurse then called Mr. Landowski who a rrived immediately a

nd took the child home. Mother testified that she w as sick he

rself tha t day and ther efore d id notgo immed

iately to school but arrive d some fifteen minutes after Father had picked up the child and c alled Father to check on the child’ s condition. The evidence before us does not indicate that Mother informed the nurse that she was ill at the time that she received the call. I n fact, the nurse testified

that it was her understanding that Mother would be picking the minor child up immediately a nd that is why she waited a s long as she didto call F ather. T

he nurse further testifie d that on on

e occas ion sh e had ca

lled th e Mother

to report the poor hyg iene of Kay la, stating that her hair was dirty and that she had a n odor about her person. On that oc casion the nurse s ent a note home to Mother detailing the condition of the child. Kayla’skindergarten

teacher described Kay

la as a bright but “sad little girl.” She testified that Father attende d the par

ent/teac her conf erence in the spr ing and Mother a ttended i n the fall. She testified that Father

seemedconcer

ned abou t the child and very interest ed in her progre ss at scho ol. She noticed a

difference in the child’s hy giene and completion of her homework assignments, stating that when she was with Father she was clean, well groomed and had her school work and when she was with Mother she was not as clean and did not bring her wor k with her, having on many occasions left her

backpa ck at home . She furt

her testi fied tha

t Kay la was i napp ropriately dre ssed-3-

at school, stating that she wore short sleeves and summer attire during the winter and that those were on occasions when Mother had the child with her. In reviewing Mother’s testimony, it is noted that Mother did not deny or attempt to rebut the testimony regarding the child’s poor h ygiene, groo ming, completion of homework assignments and arriving a t school without her backpack. Father testifie d that he h ad rema rried a nd has a si x yea

r old stepdaug hter. He described a normal day

with his ch

ildren a s coming

home from work, helping the children with their homework, he and his wif

e prepa ring the ir supper , giving

the child ren bath s and ge

tting the m ready f or be d. Althou gh Moth er was scheduled to have the children an equal amount of time each week, per the divorce decree, he testified that she rare ly kept the children a

nd, according to a calendar he kept, the children were with him approximately ninety-five percent (95%) of the time. He testified there were many occasions whenMother promised to pick the children up and visit with them on the weekends and she would either call just before time to pick the children up and

cancel or not show

up. This was very upsetting

to the children. He described several occ asions when he picked the children up from school and found that they did not have their ba

ckpack s after b eing with their mo ther and did nottake the

ir homewo

rk to sch ool after staying with her. He testified that Mother did not have a loving relationship with the children and there was never any showing of affection between Mother and children. Father further testified that on numerous occasions he had found a susp icious odor on the children. On one occasion a co-worker, who ha d worked as a sheri ff ’s deputy, descr ibed it as the smell of m arij uana on th

eir cloth es. He a lso testif ied that Mother wou ld bring the child ren to his workplace when she was suppo sed to hav e them so that she could run errands. He described this as causing him difficulty

as he had no place to care for the children while at work. Mother testified that she did not smoke marijuana, that she occasionally

smoked cigarettes butnot in the presence of the children. A revie w of her testimony indicate s that she did not deny or give any explanation as to Husband’s testimony regarding her

failure to pick up the children at her allotted time, dropping them off at hi s workplace wh en they were su pposed to b e with her

or his description of her relationship with the children. She did testify that one reason the children spent more time

withthe husba

nd was be cause

of her work schedule but that her schedule ha d changed. Having conducted a de novo review of this record , the ma jority concludes that the preponderance

of the evidence supports a

chang e of cust

ody and that a

chang e is in the b est inter est of the minor children. It is alway s helpful to this Court when the trial court s make speci fic fi ndin gs of fact. Otherwise, our review is to determine whe re the preponderance of the e vidence lies without a presumption. See Ganzevoort v . Russell , 949 S .W.2 d 293, 296 (T enn. 1 997) ( citi ng Kemp v. Thurmond , 521 S.W.2d 806, 808 (Tenn. 1975)). However, it is apparent that the trial court co uld nothave reached i ts conclusion without crediting the testimony of Father and the witnesses that testified in his behalf. The trial judge, having had the oppor tunity to observe the

witnesses and ju dge t heir deme anor

is in a bette r pos ition than this C ourt t

o mak e det ermi natio ns of

cred ibili ty . We reco gniz e that ther

e is a strong presumption in favor of an existing custody agreement. See Hoal

craft v. Smithson , 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). However, the record reflects that the parties-4-

were divorced on May 7, 2001, and F ather filed his petition some eight (8) months later on January 17, 2002. This matter was heard on May 29, 2002. Therefore, the original custody arrangement had been in place a relatively

short period of time. The ju dgmen t of the trial court is affirmed and the costs of this cause are taxed to the Appellant, Marla Landowski (Collings)

.

___________________________________ DAVID R. FARMER, JUDGE