### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Novem ber 13, 200 2 Session
TROY D ALE BU CKLES v
. SHIRA DAWN Mc KAY BUCKLES R IGGS
Appeal from the Chancery Court for Hawkins County No. 14402 Thomas R. Frierson, II, Chancellor

FILED JANUARY 14, 2003

No. E2002-00649-COA-R3-CV

ShiraDawn McKay

Buckles Riggs (“Mother”) and Troy Da le Buckles (“Father”) were divorce d in 1994. Mother was awarded custody of the parties’ minor son. In 2001, Father fir st sought increased visitation and then custody. Mother claime d Fathe r was in a rrear s in his chil d support p ayments. After a trial, the Trial Court concluded there had been no ma terial change in circumstances a nd custody should, therefore, remain with Mother. The Trial Court determined Father was in arrea rs in his child

support payments in the amount of $13,894. The T rial Court also prohibited both parties from drinking alcohol “while in possession of the child.” Father appeals. We modify the judgment to require the parties to undergo counseling , and affirm as modified.

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

Affirmed As Modified; Case Remanded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., and C HARLES D. S USANO , J R ., J., joined. Dougla s T. Jenkins, Rogers ville, Te nnessee , for the

Appellan t Troy Dale Bu ckles.

Daniel B . Minor, K

ingspor t, Tenne ssee, fo

r the App ellee Shi

ra Dawn McKay Buckle s Riggs

. Paul G. Summers, Attorney Gene ral and Reporter, and Warren A. Jasper, As sistant Att orney Genera l, Nashville, Tennessee, for the Appellee Stateof Tennessee, Department of Human Service s ex rel. Shira Da

wn McKay

Buckle s Riggs

.-2- OPINION Background

Mother was granted an absolute divorce f rom Father

in 1994. Mother

was awarded sole custody of the par

ties’ only child, a son, who is now nine y ears old. Father was awarded visitation with his son

with the f

ollowing restric tions:

While exercising his visitation s, defendant shall have another suitable person, prefer

ably his sister , drive him while he is exercising his visitation s untilsuch ti me as he p resents to the pla

intiff a v alid Tennessee driver’s licence. Defendant shal l at a ll times provide a child seat in hi s autom obile.... Defendant shall not have been drinking any alcohol or

taking any

mind influencing substances either before or during the time he exercises his visitations with the minor child ....

Father filed a Petition in January of 2001, seeking to have a new vis itation schedule agreed to by the parties confirmed by

the Court. Father also sought increased visitation. Fa ther later filed a Petition seeking to have Mother held in contempt of court for r efusing to allow his visitation withhis son. In response, Mother asserted the parties had volun tarily altered the visita tion sche dule and otherwise denied she was proh ibiting Father from exercising visitation. Mother also claimed Father should be deniedany furthe r overnight visitation. Father subsequently amended his Petition and sought custody of

the child, claiming there had been a material change in c ircumstances and a change in custody

would be in the child’s best interest.

Mother filed a r equest fo r assistance in obtaining child support with the State of Tennessee’s child support enforcement division. The State then filed a Peti tion for Contempt on Mother’s behalf. The State claimed Father was $18,250 in arre ars on hischild supp ort pay ments. The State also r equested a n increase in the amount of child support. The State’s petition was consolidated with the present action.

A guardian ad litem (“Guardian ”) was app ointed on behalf of the minor child, per Father’s request. Father claimed the child had bee n physically

abused by his step-fa

ther. After conducting an investigation into the allegations of abuse, the Guar d ian pr epared a written report concluding the child had not been abused by the step-father. The

Guardia n also concluded it

would be in the child’s best interests to remain with Mother. The Guardian went on to recommend:

That the Father ... refrain from drink in g a ny a lcohol in the presenceof [the child], because it creates one of his primary source s of stressand is not i n his best inter est. The G

uardian ... also hig

hly recommends that [Father] refra in from being with [the

child] at sp orts bars and restaurant s that serve a lcohol fo r any longer than that time-3- which is nece ssary to eat a meal and that those meals be eaten at tables rather than at the bar, because this is another source of conflict and stress fo

r the chi ld that only

serves t o place t h e chi ld in the middle of battles such as this one.

Mother testified she and Father divorced in 1994 after one yea r of marriage. Father was ordered to pay

child support in the amount of $50 per week which was to be paid through the court. To Mother ’s knowle dge, no child supp ort was ever p aid throu gh the c ourt, although som e child support pa

yme nts were ma

de directly t

o Mother. Mother acknowledged Fa ther had cancelled checks showing his child support payme nts totaling $5,756. Mother testified h er mother was not bein g truthful if she claimed to have given Mother child support pay ments she had received from Father.

Mother

admitted she discouraged her son from h aving a relationship with Father and that she stopped allowing Father visita tion. Her reason f or this wa s her fe ar for th e child’ s safety since Father would take him to bars and drink alcohol while exercising visitation. Acco rding t o Mother, Father never called a nd asked for visitation after she stopped allowing visitation. Mother st ated she has no

problem w ith Fathe

r exercis ing visita

tion so long

as he doe s not drink

alcohol. Mother testified to her

involvement with her son’s school activities and the progress he was ma king. She agreed family

counseling was needed, and denied he r current husband had

in any way

harmed her son.

Father

acknowledged

he was ordered to pay

$50 per week into the registry of the court. He went o n to te stify , howeve r, that ins tead of p aying the c hild suppor

t into cour

t, he paid Mother di rectly at her r equest. Father c laimed he made all o f his req

uired ch ild suppor

t pay ments over the year s in cash or from various different bank acc ounts. Father, ho wever, had no canceled checks prior to April of 1999 showing that any payments had bee

n made.

With regard to the allega tions of p hys ical abu se, Fath

er testif ied his son

told him about being kick ed by h is step-f ather. Father r

eported the alleg ed abuse

to the pro

per authorities. A proceeding then took place in Juvenile

Court regarding these alleg ations. Father claims his son deniedany abuse a

nd “told a totally differe nt story in court.” Those pr oce edings then w ere dismissed. After th ose proc eeding s were d ismiss ed, F ather c laims his so n told him he lied in Juvenile Court because

Mother sa

id she would whip him

until he bled if he told the truth. In light of his son’s a

dmission, F ather a

pparent ly w as able t

o have the Juvenile Court proceeding reopened.

Father deniedever being drunk around his son. He also denied that his drinking of alcohol in any wa

y affected their relationship.

Jerri Mc Ka y (M cK ay) is Mother’s mother. McKay testified her grandson spent a lot of time with her

up until he was five ye ars old. When Fath er exerc ised his vis itation ri ghts, he would give hi s ch il d su ppo rt p ayme nt s t o Mc Kay w hen pi cki ng u p or dro ppi ng o ff t he c hi ld . In turn , McKay would give the money

to Mo ther. Father would make these pay ments by cash or c

heck.-4-

McKay admitted she kept no records as to how much child support she had received from Father and given to Mother. M cKay

claims her gr

andson tol d her his s tep-fa ther had abused h im. When this happened, Mc Ka y f

orwa rded this information to the authorities. McKay never witnessed any problems between Father and son. The child neve r appeared to her to be afra id of Father. McKay claimedto have seen bruises on thechild whic h the chil d indicat

ed were caused b y hi s step-father. When she asked Mother about the bruises, Mother did not seem concerned. McKay state d Mother acknowledged

the bruises came from the child’s step-father sha king him. McKay

described the stepfather as very c ontrolling. McKay acknowledged Mother was a f it parent, andshe knew of no reason for the child to be taken away from Mother.

Steve Nelson (“Nelson”), an office r with the Rogers ville Polic e Depar tment also testified. Nels on was present on two occasions when the child was being given to Father for visitation. On the first occasion, Nelson went to the scene after someone called the police indicating there was a pr

oblem. When he arrived, Mother was irate and Nelson had trouble getting her under control. The child did not want to go with

Father . Nelson tr

ied to ca lm every one down a

nd the chi ld eventua lly agreed to go with Fathe

r. Nelson then told M other to g et the ch ild’s clot hes out o f her
car so they could be

given to Father. When she got the clothes, Mother started scr eaming and cussi ng. Nelson tol d her he w ould arrest her for disorderly

conduct if she did not stop. According to Nelson, the second situation was much like the first.

Susan Chambers (“Chambers”), a school counselor at Hawkins County Ele mentary School, also testified. Chambers testified the parties’ child had difficulty g etting along with other children and, at

one point, was failing a couple of classes. The child would get anxious towards the end of the week wh en Fa ther wasgoing to exercis e visitati on. Acco rding to Chambers , the chil d needed a structured environment wh e re rules were followed. Chambers noted the c hild had been working hard a t imp rovin g h is ability to get along with other children and that his grades had improved, but a “fresh start” would be eas ierfor him. Chambers testified Father’s drinking and taking the child t o bars wa s a st ressor f or the ch ild and ne eded to st

op. Acco rding to Chambers , Mother is v ery

active in the child ’s school

activitie s. To her kn owledg e, Father has ne ver bee n to a school function.

Matthew Smi th (“ Sm it h” ), a N ew Se rv ic es Of fi ce r w it h t he Ha wk in s C ou nt y Juvenil e Courtwas called as a witness for F ather. Ac cording to Smith, the parties’ son told Smith that Mother and his step-father had instructed him to lie about the allegations of a buse. Althou gh th e Juvenile Court petition had been dismissed, based on this new information, an ex parte order was entered by the Juvenile

Court Judge restraining Mother and step-father from threatening or coercing the child as to his testimony.

The next witnes s was Be

tty Barrett (“Barre

tt”), a forme

r child a buse inve stigato

r with the Department of Human Services. Barrett investigated the child’s allegations that his step-father had hurt him. Barrett interviewed and phy sically examined the child but found no evidence of abuse. Barre tt also inter

viewed M other and the step -fathe r. Bar rett concluded th

e alleg ati on s of abuse “were absolutely

unfounded, as unfounded as any case I eve

r worked.”-5- The guard ian ad lite m, Michell e Gree

n (“Gre en”) al so testified. Green is an attorney in private practice in Rogersville and pre viously was an assistant district attorney who, among other things, prosecuted child abuse cases. Gree n interviewed Fat

her a nd the child. During the initial interview, the child did not claim he had been kicked. The only person who mentione d this alleged incident was Father. Green interviewed the child several more times. She also interviewed Mother and the step- father , as well as Mother’s parents and the child’s babysitter. Gre

en concluded there had been no physical abuse. She a lso concluded the child is “in the middle of a very ‘ serious tug of war’ ... between Mother and Father ... the child is under so much stress it’s not even funny. He tells me he h as tro uble s leepi ng. He’s got a knot in his neck ... because of stress. And he can’t lay down and slee

p becau se of it. T

he fact that his fa

ther drin ks bother s him ....” Gr

een stat ed the ch ild didnot feel safe when

his father drank alcoholbecause the child was not old enough to know how much was too much. During the interviews, the child asked Green repeatedly what he should do if his dad dran

k too much a

nd whethe

r he shoul d get in

the car with him. Green recommended custody remain with Mother. She also stated Father should refrai n from drinking alcohol in front of the child. Green s ugge sted if Father and

son go out to eat, they

should not sit at the bar. Finally, Green strongl y recommended

counseling for t

he entir e family and noted

bothparties should refrain from interrogating the child.

The final witn

ess was Thomas Riggs (“Riggs”), the child’s step-father. Riggs marr ied Mother in 1995. Riggs has contributed to the child’s support ever since he marr ied Mo ther. Riggs denied ever striking or kicking the c hild in an inappropriate manner.

As pertinent to this appeal, the Trial Court calculated Father’ s chi ld support obligation starting

Februa ry 11, 1994, t

o be $20,5 00. The Tr

ial Court t

h en stated the “evidence preponderates in favor of a finding that between February 1994 and April 1999 , [Father ] sporadic ally paid [Mother] ch

ild suppor t in cash. The evidenc e also sup ports a f inding th at these

cash pay ments totaled $ 850.00. B eginning in Apr il of 1999 ... [Father

] paid child support by means of c heck

... [tot aling] $5,756.00." After giving Fa ther credit for these pay

ments, t he Trial Court concluded Father was $13,894.00 in arrears.

With regar

d to Fathe r’s req uest for a chang e in custo dy, Father claimed t here wa s a mater i al chang e in circumstance s becaus e: (1) Mo ther had remarr ied; (2) t he home e nvironme nt with Mother and step-father was not safe; (3) Mother ha d denied Father vi sitation; a nd (4) F ather c ould provide a more structured environment

. Addressing these variou s contentions, the Trial Court stated:

Remar riage of eithe

r paren t does not, of itself

, constit ute a change of circumstances that wou ld warra nt a change of custody or parenting time . Arnold v . Arnold, 774 S.W.2d 6 13 (1989). “However, the possible change in home environment caused by such
remarr iage is a factor to be considered in determining whe ther or not there has been a

material change in circumstances that would war rant an alteration of custody a rrangements”, Tortorich v. Erickson , 675 S.W.2d 190 (1984). As noted above, [Father’s] petition filed in the-6- juvenile court of Hawkins County, Te nn essee , was dismissed. The evi dence preponderates against a finding that the minor child ha s sustained any mental or phy sical abuse by Mr . Riggs. Instea d, the evidence supports a finding that [the child] enjoys a positive, healthy and appr opriate relation ship with hi s stepfa ther, Mr . Riggs

. Pursuant to T.C.A. 36-6-106 , in any proce eding requiring the trial court to make a custody determination regarding a minor c hild, the Court may

consider as a rel evant fa

ctor a pa rent’s w illingne ss and ability to facilitate and

encoura ge a c lose and c ontinuing

parent/ child relation ship betwee

n the chil d and the other

parent, all consis tent with the best inter

ests of [the] child. A material change of circumstances must be a change in the child’s circumstanc es, and not the circumstanc e s of either or both parents. Hoalcraft v. Smithson , 19 S.W.3d 822 (1999). Though [M other] unil aterall y pr evented certain parenting time in favor of [Father], such conduct reflected ac rimony and a deterioration of the

rela tions hip be

twee n [Moth er and Fat her], all insufficient to establish a material change of circumstances so a s to warrant a modification in the parenting arr angement.
Fi na ll y, regarding [Father’ s] assertion thatas [a] parent he can provide a more suitable a nd structured home environment for the child , [Fathe r] failed to show that a continuation of the adjudicated parenting arra

ngement will substantially har m the child. Accord

ingly , this Court concludes that there has not occurred a material chang e in circumstances since the Final Judgment of Divorce so as to warrant a modification in the primary r esidential parent status.

* * * *

A primary conc ern of [Mother ] i s [Father’s] continuing consumption of alcohol while in the presence of the minor child. The guardian ad

litem reiterated such concern in her r eport and testimony during trial. The evidence supports a finding that [Father] consumes alcohol in the presence of the c hild at various restaurants during parenting time. [Father] also transport s the child after having consumed alcohol. ... Tennes see cour ts may im pose necessary conditions regar

ding pa renting responsi bilities, e ach desi gned to promote and p rot ect the best interest of the child. Either party ’s failure to abide by a c ourt’s order regar ding pro hibited us e of alcohol and drugs w

hile in the

possessio n of the child may result i n either a
c hange in custody or neither pa rent receiving custody , Thompson v. Thompson , 1995 LEX IS 645 (Tenn. App., 1995). This Court-7- concludes that

an appropriate condition

for parenting by

both parties is that th ey are

prohibited from using, consuming or permitting the use, by designa

ted car egiver s, of alcohol while in possession of the child.

Fi na ll y, the Trial Court entered a parenting plan for the parties which ve sted Mother wi th the sole
au thorit y to make “major” decisions with regard to the c hild’s education, non-emergency health care, religio us upbring

ing, an d extracu

rricula r activit ies.

Father appeals various aspects of the Trial Court’s ruling. In p articular, Father appealsthe Trial Court’s refusal to transfer custody of the child to him, as well as the Trial Court’s granting to Mother the sole right to make “major” decisions in the child’s life. Father appeals the ruling that he was in arrears $13,894 in child sup port and the prohibition on his consuming any alcohol when exercising visitation. Finally , Father argues the Tria l Court erred in failing to order family counseling. The State appeals the amount of

child support a rrear age, c laiming Father wa s in arrears $20,500.

Discussion

The factua

l finding s of the Tr

ial Court a

re acc orded a p

resumptio n of corr

ectness , and
we wil l n ot overturn those factual findings unless the evidence preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de novo standardof review, according no def erence to the conclusions of law made by the lower courts.” Southern

Constructo rs, Inc. v. Loudon County Bd. Of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).

We first add

ress the Tria

l Court’s c onclusion

that ther e was no m

aterial chang e in circumstances which w ould warr ant a change in custody . In Kendrick v. Shoemake , No. E2000- 01318-SC-R11-CV, 2002 Tenn. LEXI S 489 (Tenn. Nov. 1, 2002), our Supreme Court set forth the appropr iatestandard to be applied when making such a custody determination. Specifically , the Court stated: The principal issue in this case concerns the proper standard to be ap plied to a petition to modify custody from one parent to the other parent. This issue is largely resolved by our

recent decision in Blair v. Badenhope , 77 S.W.3d 137 (Tenn. 2002). Blair involved a
cus tody dispute between a parent and a non-par ent. We conclud e d that o nce a valid order of custody has been issued, subseque n t custod y modification proceedings should apply the “standard typ ically applied in parent-vs-p are nt modific ation ca ses: that a material chang e in circumstance s has occurred, w hich make s a ch ange in custody in the child’s best interests.” 77 S.W.3d at 148. As explained in Blair , the “threshold issue” is whether a material-8- change in circumstances has occurr e d after the initial custody determination. 77 S.W.3d at 150. While “[t]here are no hard and fast rules for dete

rmining when a child’s cir

cumstanc es have changed sufficie ntly to warrant

a change of his or her custody,” the following factors have formed a sound basis for determining whe ther a material change in circumstances has occurred: the change “has occurr

ed after the entry of

the order sought to be

modified,” the change “is not one that w as known or reasonably anticipated when the order was entered,” and the change “is one that aff ects the child’s w ell-being in a meaningful way .” Id. (citations omitted). We note that a parent’s change in circumstances may be a material change in circumstance s for the purposes of modi fying custody if such a c hange affects the child ’s wel l-bei ng.
Kendrick , 2002 Tenn. L EXIS 489 a

t *7, *8 (f

ootnotes o mitted). I

f a mater

ial chan ge in circumstances has been found, then a Trial Court must n ext

determine whether custody modification is in the child’s best interests. Id . at *9.

Relying on Wall v. Wall , 907 S.W.2d 829 (Tenn. Ct. App. 1995), t he Trial Court defined“change of circumstance s” to require a showing of substantial harm to the child. In Wall , this C our t stated that an initial custody determination is not “cha ngeable except for ‘chang e of circumst ances’ which is defined as that which requires a change to prevent substantial harm to the child.” Id . At 834. I n Kendrick , however, the Supreme Court did not require a showing of substantial harm in order

to establish a material change of circ umstances. When making the custody determination in the present case, the Trial Court did not have the benef it of the Kendrick

opinion released over eight months after the Trial Court’s ruling.

Father correctly notes in his brief that “[ t]he f acts of this case are hotly disputed.” The Trial Cour

t’s findin g that no

mate rial c hange

in circumstance s existed suc h as to wa

rrant a change in custody

was base d upon its observation of the parties at the hearings, and its comparison of the deme anor of a

ll the witnesses, including Father and Mother. Tria l courts, when determining custody matters, take into account a number of factors, “including the paren ts’ d emeanor and credibi lity

during the . . . proceedings.” Nelson v. Nelson , 66 S.W.3d 896, 9 01 (Tenn. Ct. App. 2001) (quot ing Gaskill v . Gaskill , 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)). “Unlike t his Court, the trial court observed the manner and demeanor of the witnesses an d w as in the b est positio n to evaluat e their credibility.” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc. , 43 S.W.3d 498, 502 (Tenn. Ct . App. 200 0). A tria l court’sdetermin ati ons reg arding credibility are accorded deference by this Court. Id. ; Davis v. Liberty Mutual Ins. Co. , 38 S.W.3d 560, 563 (Tenn. 2001). “[A]ppella

te courts wi ll not re- evaluat e a trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary .” Well s v. Tenne ssee Bd. of Regents , 9 S.W.3d 779, 783 (Tenn. 1999). The Tria

l Court concluded th

ere had been no phys ical abu se of the child, and the chil d
curren tly enjoy ed a “po sitive, he althy

and appr opria te rela tionship with his stepfather....” The evidence does not preponderate ag ainst the factual findings made by the Trial Court.-9- In light of these and other factua l finding s made by

the Tria l Court, the

re is no need to remand this ca se for a d etermination of whether or not there has been a material change of circumstances in accordance with the standard set forth in Kendrick

. It is clear from our Supreme Court’s Opinions in Blair and Kendrick that a showing of risk of substantial har m i s not essential to e stablishing a material change of c ircumstances. Based on our review of the entire record, and in light of the Trial Court’s factual determinations which are not contrary to the pr

eponderance of the evidence, we hold Father did not establish a material chang e in circumstances. This is so even thou gh he is not required to show that a change in custody is necessary

to prevent substantial harm to the child in order to show a material change of circumstances. We, therefore, affirm t h e Trial Co ur t’ s r ef

us al to ch an ge cu st od y.
The Trial Cour

t’s conc lusion tha

t Father was $13,8 94 in arr

ears also invol ves a factual determination inasmuc h as the child support either was or was not paid. Mother admitted receiving $850 in cash payments a nd Father clearly

proved an additional $5,756 in pay ments. The Trial Court credited Father with these pay ments against the total amount of child support owed. Mother de ni ed re ce iv in g a ny further chi ld support pay ments. Fa

ther cla imed to ha

ve made a

ll pay ments, although he had no additional documentary pr oof to support this contention. Had Father paid child support through the court as required by the initial or de r, this would not have been an issue either at trial or on appeal. Based on the de meanor and credibility

of the witnesse s, the Trial Courtwa s f

re e t o c ho os e t o b el ie ve Mo th er ’s te st im on y th at no ad di ti on al pa ym ents had been received, or to believe Father that all pay ments had been made. The Trial Court chose to credit the testimonyof

Mo ther. We cannot conclude that the preponderanc e of the evidence is against the factual finding reached by the Trial Court that Father was $13,894 in arrear s.
The State argues the Trial Court should have treated the $6,606 credited to Father as
a gift because he failed

to pay the child support into the court as r equired by the or

iginal order. The Stateargues Father

should be found to be the full $20,500 in arrears. I n light of the fact Mother does notdeny rec eiving the $6,606 in child support and that this sup port was u sed for necessiti es in raising the child, we believe the Trial Cour t properly c

haracterized these sums as child support as opposed to g ifts. I

n sh ort, we affirm the Trial Court’s holding that Father was in arrears in the amount of $13,894.

Father claims the Trial Court erred when it allocated to Mother the sole rig ht to make major decisions with regard to the child’s education, non- emergenc y health ca re, religious upbri nging, and extracurricular activities. A Trial Court is vested with the power to allocate parental responsibilities. Among the criteria to consider are:

(2) The history of p articipation of each parent in decision making in each of the following areas: phy sical care, emotional st ab il it y, intellectual and moral development, health, educat ion , extracurricular

activities, and religion; and whe ther e ach parent attended a court ordered pare nt education seminar;-10- (3) Whether the p arents have demonstrated the ability and desire to cooper

ate with one another in decision making regarding the child in each of the following areas: phy sical car e, em otional st ab il it y, intellectual and moral deve lopme nt, health, education, extracurricular activities, and religion; and
(4) The par ents' ge ogr a phic proximity to one another, to the extent that

it affects their a

bility to make tim

ely mutual de cisions. Tenn. Code Ann. § 36-6-407(c)(2)-(4).

On appeal, Father

argue s the Tria

l Court w as i n error because Mother’s proven f ailure to cooperate “mandates his inclusion in the decision making process to promote

his relat ionship wit

h the child and

prevent misuse of t

he mo th er’s decision making power.” While it is true Mother recent ly has thwa rted Fa ther’s a bility to exercis e visitation, Mother’s claimed basis for doing so was Father’s persiste

nce in drinking alcohol w hen exerc ising vis itation. I n our opini on, both

parties have demonstratedan inability

to get along with each other, a nd the blame does not lie solely with Mother. The proof shows Mother has been the primary decision maker onthese various topics. Further, proof in the re cord show s that the p arties ha ve demons trated th

eir lack of ability and desir e to coope

rate withone another in decision making rega rding the child. We do not believe theTrial Court erred in holding that Mother should continue to make these major decisions in this child’s life.

Father takes issuewith the Trial Court’s prohibiting his drinking any alcohol while exercising visitation. Father admits the Trial Court had the authority to manda te such a prohibition. He ar gu es , h ow ev er , t ha t t he Tr ia l C ou rt er re d b ec au se th e r ul in g c am e a bo ut si mp ly because o f Mother’s “campaign for total temperance.” From the

facts se t forth at length a bove, it is undeniab le that Father ’s drinking caus es a sig nifican t amount of

stress in h

is son’s life. Regardless of whether
or not Mother

is on a “c ampaig n for tota l tempera nce,” b ecause

of the nega tive effect Father’s drinking has on this child, the facts undeniably show that havi ng both p arents a bstain from drinking alcohol when in po ssession of the child is in the child’s best interest. On appeal, Father does not argue otherwise. In light of the f oregoing, we

believe the Trial Court was correct in its ruling on this issue. We n ote that a s the child gets old er, ther e may well come a time when this restriction is no longer necessary , and Father is free to request modification or elimination of this prohibition at that time.

The final issu e on appe al is Fat her’s a rgumen t that the T

rial Co urt erred i n not requiring the part

ies to unde rgo counseling. The Trial Court did not address whe ther or not counseling was appropriate. On appeal, Mother does not argue counseling is not needed. If f act, she does not addre ss this issue. At trial, about the only thing the pa rties could agree on was that counseling was needed. We agree. The Trial Court’s judgment is mod ified so a s to require the parties to undergo counseling. Therefore, on remand, the Trial Court is instructed to enter an order requiring the parties and their son to obtain appropriate counseling.-11- Conclusion

The judgment of the Trial Court is affirmed as modified, and this cause is remanded to the Tr ial C ourt f or suc h furt her pro ceedin gs as may be r equired consistent with this Opinion, and for collecti on of the c osts below . The cos ts on appe al are a ssessed a gainst t he Appellant, Tro y D ale Buckles, and his surety

.

___________________________________ D. MICHAEL

SWINEY, JUDGE