IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 13, 2002 Session

TROY DALE BUCKLES v.

SHIRA DAWN McKAY BUCKLES RIGGS

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

Shira Dawn McKay Buckles Riggs (“Mother”) and Troy Dale Buckles (“Father”) were divorced in

1994. Mother was awarded custody of the parties’ minor son. In 2001, Father first sought increased

visitation and then custody. Mother claimed Father was in arrears in his child support payments.

After a trial, the Trial Court concluded there had been no material change in circumstances and

custody should, therefore, remain with Mother. The Trial Court determined Father was in arrears

in his child support payments in the amount of $13,894. The Trial 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. MICHAEL SWINEY,J., delivered the opinion of the court, in which HERSCHEL P. FRANKS,J., and

CHARLES D. SUSANO, JR., J., joined.

Douglas T. Jenkins, Rogersville, Tennessee, for the Appellant Troy Dale Buckles.

Daniel B. Minor, Kingsport, Tennessee, for the Appellee Shira Dawn McKay Buckles Riggs.

Paul G. Summers, Attorney General and Reporter, and Warren A. Jasper, Assistant Attorney

General, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Human Services

ex rel. Shira Dawn McKay Buckles Riggs.
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OPINION

Background

Mother was granted an absolute divorce from Father in 1994. Mother was awarded

sole custody of the parties’ only child, a son, who is now nine years old. Father was awarded

visitation with his son with the following restrictions:

While exercising his visitations, defendant shall have another

suitable person, preferably his sister, drive him while he is exercising

his visitations until such time as he presents to the plaintiff a valid

Tennessee driver’s licence. Defendant shall at all times provide a

child seat in his automobile.... 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 visitation schedule

agreed to by the parties confirmed by the Court. Father also sought increased visitation. Father later

filed a Petition seeking to have Mother held in contempt of court for refusing to allow his visitation

with his son. In response, Mother asserted the parties had voluntarily altered the visitation schedule

and otherwise denied she was prohibiting Father from exercising visitation. Mother also claimed

Father should be denied any further overnight visitation. Father subsequently amended his Petition

and sought custody of the child, claiming there had been a material change in circumstances and a

change in custody would be in the child’s best interest. 

Mother filed a request for assistance in obtaining child support with the State of

Tennessee’s child support enforcement division. The State then filed a Petition for Contempt on

Mother’s behalf. The State claimed Father was $18,250 in arrears on his child support payments.

The State also requested an increase in the amount of child support. The State’s petition was

consolidated with the present action.

A guardian ad litem (“Guardian”) was appointed on behalf of the minor child, per

Father’s request. Father claimed the child had been physically abused by his step-father. After

conducting an investigation into the allegations of abuse, the Guardian prepared a written report

concluding the child had not been abused by the step-father. The Guardian 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 drinking any alcohol in the

presence of [the child], because it creates one of his primary sources

of stress and is not in his best interest. The Guardian ... also highly

recommends that [Father] refrain from being with [the child] at sports

bars and restaurants that serve alcohol for any longer than that time
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which is necessary 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 for the child that only serves to place the child in the

middle of battles such as this one. 

Mother testified she and Father divorced in 1994 after one year 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 knowledge, no child support was ever paid through the court, although some

child support payments were made directly to Mother. Mother acknowledged Father had cancelled

checks showing his child support payments totaling $5,756. Mother testified her mother was not

being truthful if she claimed to have given Mother child support payments she had received from

Father. 

Mother admitted she discouraged her son from having a relationship with Father and

that she stopped allowing Father visitation. Her reason for this was her fear for the child’s safety

since Father would take him to bars and drink alcohol while exercising visitation. According to

Mother, Father never called and asked for visitation after she stopped allowing visitation. Mother

stated she has no problem with Father exercising visitation so long as he does not drink alcohol.

Mother testified to her involvement with her son’s school activities and the progress he was making.

She agreed family counseling was needed, and denied her 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 on to testify, however, that instead of paying the child support into court, he paid

Mother directly at her request. Father claimed he made all of his required child support payments

over the years in cash or from various different bank accounts. Father, however, had no canceled

checks prior to April of 1999 showing that any payments had been made.

With regard to the allegations of physical abuse, Father testified his son told him

about being kicked by his step-father. Father reported the alleged abuse to the proper authorities.

A proceeding then took place in Juvenile Court regarding these allegations. Father claims his son

denied any abuse and “told a totally different story in court.” Those proceedings then were

dismissed. After those proceedings were dismissed, Father claims his son told him he lied in

Juvenile Court because Mother said she would whip him until he bled if he told the truth. In light

of his son’s admission, Father apparently was able to have the Juvenile Court proceeding reopened.

Father denied ever being drunk around his son. He also denied that his drinking of

alcohol in any way affected their relationship. 

Jerri McKay (McKay) is Mother’s mother. McKay testified her grandson spent a lot

of time with her up until he was five years old. When Father exercised his visitation rights, he would

give his child support payments to McKay when picking up or dropping off the child. In turn,

McKay would give the money to Mother. Father would make these payments by cash or check.
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McKay admitted she kept no records as to how much child support she had received from Father and

given to Mother. McKay claims her grandson told her his step-father had abused him. When this

happened, McKay forwarded this information to the authorities. McKay never witnessed any

problems between Father and son. The child never appeared to her to be afraid of Father. McKay

claimed to have seen bruises on the child which the child indicated were caused by his step-father.

When she asked Mother about the bruises, Mother did not seem concerned. McKay stated Mother

acknowledged the bruises came from the child’s step-father shaking him. McKay described the stepfather as very controlling. McKay acknowledged Mother was a fit parent, and she knew of no reason

for the child to be taken away from Mother.

Steve Nelson (“Nelson”), an officer with the Rogersville Police Department also

testified. Nelson 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 problem. When he arrived, Mother was irate and Nelson had trouble getting her under

control. The child did not want to go with Father. Nelson tried to calm everyone down and the child

eventually agreed to go with Father. Nelson then told Mother to get the child’s clothes out of her

car so they could be given to Father. When she got the clothes, Mother started screaming and

cussing. Nelson told her he would 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 Elementary

School, also testified. Chambers testified the parties’ child had difficulty getting 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 when Father was going to exercise visitation. According to Chambers, the child

needed a structured environment where rules were followed. Chambers noted the child had been

working hard at improving his ability to get along with other children and that his grades had

improved, but a “fresh start” would be easier for him. Chambers testified Father’s drinking and

taking the child to bars was a stressor for the child and needed to stop. According to Chambers,

Mother is very active in the child’s school activities. To her knowledge, Father has never been to

a school function. 

MatthewSmith (“Smith”), a New Services Officer with the Hawkins County Juvenile

Court was called as a witness for Father. According to Smith, the parties’ son told Smith that

Mother and his step-father had instructed him to lie about the allegations of abuse. Although the

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 witness was Betty Barrett (“Barrett”), a former child abuse investigator with

the Department of Human Services. Barrett investigated the child’s allegations that his step-father

had hurt him. Barrett interviewed and physically examined the child but found no evidence of abuse.

Barrett also interviewed Mother and the step-father. Barrett concluded the allegations of abuse

“were absolutely unfounded, as unfounded as any case I ever worked.” 
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The guardian ad litem, Michelle Green (“Green”) also testified. Green is an attorney

in private practice in Rogersville and previously was an assistant district attorney who, among other

things, prosecuted child abuse cases. Green interviewed Father and the child. During the initial

interview, the child did not claim he had been kicked. The only person who mentioned 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. Green concluded there

had been no physical abuse. She also 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 has trouble sleeping. He’s got a knot in his neck ... because of stress. And he can’t lay

down and sleep because of it. The fact that his father drinks bothers him ....” Green stated the child

did not feel safe when his father drank alcohol because 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 drank too much and whether he should get in the car with him. Green recommended custody

remain with Mother. She also stated Father should refrain from drinking alcohol in front of the

child. Green suggested if Father and son go out to eat, they should not sit at the bar. Finally, Green

strongly recommended counseling for the entire family and noted both parties should refrain from

interrogating the child. 

The final witness wasThomasRiggs(“Riggs”),the child’s step-father. Riggs married

Mother in 1995. Riggs has contributed to the child’s support ever since he married Mother. Riggs

denied ever striking or kicking the child in an inappropriate manner. 

As pertinent to this appeal, the Trial Court calculated Father’s child support

obligation starting February 11, 1994, to be $20,500. The Trial Court then stated the “evidence

preponderates in favor of a finding that between February 1994 and April 1999, [Father] sporadically

paid [Mother] child support in cash. The evidence also supports a finding that these cash payments

totaled $850.00. Beginning in April of 1999 ... [Father] paid child support by means of check ...

[totaling] $5,756.00." After giving Father credit for these payments, the Trial Court concluded

Father was $13,894.00 in arrears. 

With regard to Father’s request for a change in custody, Father claimed there was a

material change in circumstances because: (1) Mother had remarried; (2) the home environment with

Mother and step-father was not safe; (3) Mother had denied Father visitation; and (4) Father could

provide a more structured environment. Addressingthesevarious contentions, the Trial Court stated:

Remarriage of either parent does not, of itself, constitute a

change of circumstances that would warrant a change of custody or

parenting time. Arnold v. Arnold, 774 S.W.2d 613 (1989).

“However, the possible change in home environment caused by such

remarriage is a factor to be considered in determining whether or not

there has been a material change in circumstances that would warrant

an alteration of custody arrangements”, Tortorich v. Erickson, 675

S.W.2d 190 (1984). As noted above, [Father’s] petition filed in the
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juvenile court of Hawkins County, Tennessee, was dismissed. The

evidence preponderates against a finding that the minor child has

sustained any mental or physical abuse by Mr. Riggs. Instead, the

evidence supports a finding that [the child] enjoys a positive, healthy

and appropriate relationship with his stepfather, Mr. Riggs.

Pursuant to T.C.A. 36-6-106, in any proceeding requiring the

trial court to make a custody determination regarding a minor child,

the Court may consider as a relevant factor a parent’s willingness and

ability to facilitate and encourage a close and continuing parent/child

relationship between the child and the other parent, all consistent with

the best interests of [the] child. A material change of circumstances

must be a change in the child’s circumstances, and not the

circumstances of either or both parents. Hoalcraft v. Smithson, 19

S.W.3d 822 (1999). Though [Mother] unilaterally prevented certain

parenting time in favor of [Father], such conduct reflected acrimony

and a deterioration of the relationship between [Mother and Father],

all insufficient to establish a material change of circumstances so as

to warrant a modification in the parenting arrangement. 

Finally, regarding [Father’s] assertion that as [a] parent he can

provide a more suitable and structured home environment for the

child, [Father] failed to show that a continuation of the adjudicated

parentingarrangement will substantially harm the child. Accordingly,

this Court concludes that there has not occurred a material change in

circumstances since the Final Judgment of Divorce so as to warrant

a modification in the primary residential parent status. 

* * * *

A primary concern of [Mother] is [Father’s] continuing

consumption of alcohol while in the presence of the minor child. The

guardian ad litem reiterated such concern in her report and testimony

during trial. The evidence supports a finding that [Father] consumes

alcohol in the presence of the child at various restaurants during

parenting time. [Father] also transports the child after having

consumed alcohol.... Tennessee courts may impose necessary

conditions regarding parenting responsibilities, each designed to

promote and protect the best interest of the child. Either party’s

failure to abide by a court’s order regarding prohibited use of alcohol

and drugs while in the possession of the child may result in either a

change in custody or neither parent receiving custody, Thompson v.

Thompson, 1995 LEXIS 645 (Tenn. App., 1995). This Court
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concludes that an appropriate condition for parenting by both parties

is that they are prohibited from using, consuming or permitting the

use, by designated caregivers, of alcohol while in possession of the

child. 

Finally, the Trial Court entered a parenting plan for the parties which vested Mother with the sole

authority to make “major” decisions with regard to the child’s education, non-emergency health care,

religious upbringing, and extracurricular activities.

Father appeals various aspects of the Trial Court’s ruling. In particular, Father

appeals the 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 support and the prohibition on his consuming any

alcohol when exercising visitation. Finally, Father argues the Trial Court erred in failing to order

family counseling. The State appeals the amount of child support arrearage, claiming Father was in

arrears $20,500.

Discussion

The factual findings of the Trial Court are accorded a presumption of correctness, and

we will not 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 standard of review, according no deference

to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County

Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

We first address the Trial Court’s conclusion that there was no material change in

circumstances which would warrant a change in custody. In Kendrick v. Shoemake, No. E2000-

01318-SC-R11-CV, 2002 Tenn. LEXIS 489 (Tenn. Nov. 1, 2002), our Supreme Court set forth the

appropriate standard 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 applied 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

custody dispute between a parent and a non-parent. We concluded

that once a valid order of custody has been issued, subsequent

custody modification proceedings should apply the “standard

typically applied in parent-vs-parent modification cases: that a

material change in circumstances has occurred, which makes a

change 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
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change in circumstances has occurred after the initial custody

determination. 77 S.W.3d at 150. While “[t]here are no hard and fast

rules for determining when a child’s circumstances have changed

sufficiently to warrant a change of his or her custody,” the following

factors have formed a sound basis for determining whether a material

change in circumstances has occurred: the change “has occurred after

the entry of the order sought to be modified,” the change “is not one

that was known or reasonably anticipated when the order was

entered,” and the change “is one that affects the child’s well-being in

a meaningful way.” Id. (citations omitted). We note that a parent’s

change in circumstances may be a material change in circumstances

for the purposes of modifying custody if such a change affects the

child’s well-being.

Kendrick, 2002 Tenn. LEXIS 489 at *7, *8 (footnotes omitted). If a material change in

circumstances has been found, then a Trial Court must next 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), the Trial Court

defined “change of circumstances” to require a showing of substantial harm to the child. In Wall,

this Court stated that an initial custody determination is not “changeable except for ‘change of

circumstances’ which is defined as that which requires a change to prevent substantial harm to the

child.” Id. At 834. In Kendrick, however, the Supreme Court did not require a showing of

substantial harm in order to establish a material change of circumstances. When making the custody

determination in the present case, the Trial Court did not have the benefit of the Kendrick opinion

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

Father correctly notes in his brief that “[t]he facts of this case are hotly disputed.”

The Trial Court’s finding that no material change in circumstances existed such as to warrant a

change in custody was based upon its observation of the parties at the hearings, and its comparison

of the demeanor of all the witnesses, including Father and Mother. Trial courts, when determining

custody matters, take into account a number of factors, “including the parents’ demeanor and

credibility during the . . . proceedings.” Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App.

2001) (quoting Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)). “Unlike this Court,

the trial court observed the manner and demeanor of the witnesses and was in the best position to

evaluate their credibility.” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498,

502 (Tenn. Ct. App. 2000). A 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 assessment of witness credibility absent clear

and convincing evidence to the contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783

(Tenn. 1999). The Trial Court concluded there had been no physical abuse of the child, and the child

currently enjoyed a “positive, healthy and appropriate relationship with his stepfather....” The

evidence does not preponderate against the factual findings made by the Trial Court. 
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In light of these and other factual findings made by the Trial Court, there is no need

to remand this case for a determination 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 harm is not essential

to establishing a material change of circumstances. Based on our review of the entire record, and

in light of the Trial Court’s factual determinations which are not contrary to the preponderance of

the evidence, we hold Father did not establish a material change in circumstances. This is so even

though 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 the Trial

Court’s refusal to change custody.

The Trial Court’s conclusion that Father was $13,894 in arrears also involves a

factual determination inasmuch as the child support either was or was not paid. Mother admitted

receiving $850 in cash payments and Father clearly proved an additional $5,756 in payments. The

Trial Court credited Father with these payments against the total amount of child support owed.

Mother denied receiving any further child support payments. Father claimed to have made all

payments, although he had no additional documentary proof to support this contention. Had Father

paid child support through the court as required by the initial order, this would not have been an

issue either at trial or on appeal. Based on the demeanor and credibility of the witnesses, the Trial

Court was free to choose to believe Mother’s testimony that no additional payments had been

received, or to believe Father that all payments had been made. The Trial Court chose to credit the

testimony of Mother. We cannot conclude that the preponderance of the evidence is against the

factual finding reached by the Trial Court that Father was $13,894 in arrears. 

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 required by the original order. The

State argues Father should be found to be the full $20,500 in arrears. In light of the fact Mother does

not deny receiving the $6,606 in child support and that this support was used for necessities in

raising the child, we believe the Trial Court properly characterized these sums as child support as

opposed to gifts. In short, 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 right to make

major decisions with regard to the child’s education, non-emergency health care, religious

upbringing, 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 participation of each parent in decision

making in each of the following areas: physical care, emotional

stability, intellectual and moral development, health, education,

extracurricular activities, and religion; and whether each parent

attended a court ordered parent education seminar;
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(3) Whether the parents have demonstrated the ability and

desire to cooperate with one another in decision making regarding the

child in each of the following areas: physical care, emotional

stability, intellectual and moral development, health, education,

extracurricular activities, and religion; and

(4) The parents' geographic proximity to one another, to the

extent that it affects their ability to make timely mutual decisions.

Tenn. Code Ann. § 36-6-407(c)(2)-(4).

On appeal, Father argues the Trial Court wasin error because Mother’s proven failure

to cooperate “mandates his inclusion in the decision making process to promote his relationship with

the child and prevent misuse of the mother’s decision making power.” While it is true Mother

recently has thwarted Father’s ability to exercise visitation, Mother’s claimed basis for doing so was

Father’s persistence in drinking alcohol when exercising visitation. In our opinion, both parties have

demonstrated an inability to get along with each other, and the blame does not lie solely with Mother.

The proof shows Mother has been the primary decision maker on these various topics. Further, proof

in the record shows that the parties have demonstrated their lack of ability and desire to cooperate

with one another in decision making regarding the child. We do not believe the Trial Court erred

in holding that Mother should continue to make these major decisions in this child’s life.

Father takes issue with the Trial Court’s prohibiting his drinking any alcohol while

exercising visitation. Father admits the Trial Court had the authority to mandate such a prohibition.

He argues, however, that the Trial Court erred because the ruling came about simply because of

Mother’s “campaign for total temperance.” From the facts set forth at length above, it is undeniable

that Father’s drinking causes a significant amount of stress in his son’s life. Regardless of whether

or not Mother is on a “campaign for total temperance,” because of the negative effect Father’s

drinking has on this child, the facts undeniably show that having both parents abstain from drinking

alcohol when in possession of the child is in the child’s best interest. On appeal, Father does not

argue otherwise. In light of the foregoing, we believe the Trial Court was correct in its ruling on this

issue. We note that as the child gets older, there 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 issue on appeal is Father’s argument that the Trial Court erred in not

requiring the parties to undergo counseling. The Trial Court did not address whether or not

counseling was appropriate. On appeal, Mother does not argue counseling is not needed. If fact, she

does not address this issue. At trial, about the only thing the parties could agree on was that

counseling was needed. We agree. The Trial Court’s judgment is modified so as 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. 
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Conclusion

The judgment of the Trial Court is affirmed as modified, and this cause is remanded

to the Trial Court for such further proceedings as may be required consistent with this Opinion, and

for collection of the costs below. The costs on appeal are assessed against the Appellant, Troy Dale

Buckles, and his surety. 

___________________________________ 

D. MICHAEL SWINEY, JUDGE