# FILED September 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

LISA DIANE WAGNE

R, )

) Plaintiff/Appellee, ) Appeal No. ) 01A01-9804-CV-00215 ) ) Sequatchie Circui t CHARLES BRADLEY GASTON, ) No. 6307 ) Defendant/Appel

lant. )

)

APPEAL FROM THE CIRCUI T COURT FOR SEQUATCHIE COUNTY

THE HONORABLE THOMAS W. GRAHAM PRESIDING

STEPHEN T. GREER,

P.C. 10B RANKIN AVENUE NORTH P.O. BOX 758 DUNLAP, T

ENNESSEE

37327 ATTORNEY FOR PLAINTIFF/APPELLEE AUBREY L. HARPER, E SQUIRE 114 NORTH COLLEGE STREET P.O. BOX 588 McMINNVILL

E, TENNES SEE 37111-0588 ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: CANTRELL , J. CAIN, J.1 The order states that Mother had lived in an abusive marriage during the course of her marriage with Father. 2 

## Opinion In this case, Mr. C

harles Bradley G

aston (hereafter “Father”) appeals the trial court’s denial of hi s request that the ex isting child custody orde

r regarding his three minor

children be modifie

d to grant him custody. We affirm the order of the trial court. Lisa Diane

Wagner (h ereafter “Mothe r”) filed for divor

ce on May 20, 1993, alleging cruel and inhuman treatment. The parties were divorced following a trial in January of 1994, and the final order was entered on February 11 , 1994. 1 As part of that orde r Mother was grant

ed exclusive custody of

the couple’s three m inor child ren. Visitation was provided for Father on a very l imited basis. At first he was gran ted 6 hours of visi tation per we ek, to late r expand to 8 hours per w

eek. Five months after entry of the final order, Mother was granted an order of protection

enjoining Father from coming around he r, abusingher, or threaten ing to abuse her. Eight months after entry of the final order, Father filed a Petition to Modify requesting

that he be granted custody or, in the alternative, increased visitation. On August

6, 1997, Father filed another motion requesting “standard visitation” during the

pendency of his Petit

ion. Earlier tha

t year, the parties had ente red an Agreed Order concernin g counseling for t he three children. A fte r discovery disp utes, sub stitutions of counsel, and hearings on other

issues not relevant to this appe

al, this matter w

as tried. The trial court found that there had n ot been a material

change of circumstances since the final dec ree of divo rce to justify the requested modification

of c ustody. Howe ver, the court did f ind that there had bee

n a3

material change of circumst ances s uff

icient to justify a mo

dification of the visitation arrangement. Accordingly, Father was denied custody, but he was granted increased visitation. In its order, the trial court gave specific instructi

ons
re g arding visitation, including allocating various hol idays. The court a

lso limited Father’s visits to the children’s school to once per month and for the sole purpos e o f having lunch with his children. The court also strictly prohibited Father, during his visitation pe riods, from tape r

ecording, videotapi

ng and photographing

the children for inv

estigative purposes. Father now argues that t he trial c ourt erred by denying him sole custody of the couple’s three mino r children. I. Cases involving a request fo r change of custody of minor children are particularly

fact driven. See Rogero v. Pitt , 759 S.W.2d 109 , 112 (Tenn. 1988). In such cases, the trial co urt has the widest discr etion to order a cust

ody arrangement

that is in the best inte

rest of the child. See e.g. Gaskill v. Gaski ll , 936 S.W.2d 626, 631 (Tenn. App. 1996 ); Tenn. Code An

n. § 3 6-6-1 01(a)(2) (1996). Accordingly,

it is well settled that the appellate court’s review of a trial court’s findings in

a custody dispute i s de novo on the record, acc ompanied by

a presumption of correctn ess. See Nichols v. Nichols , 729 S.W.2d 713 , 716 (Tenn. 1990); Hass v. Knighton , 676 S.W.2d 554 , 55 5 (Tenn. 198 4). An appellate court will not

reverse such a decisio n, absent an error of law, unless the appellate court finds that the evidence preponderat es a gainst th e trial cou rt’s findings. Tenn. R. App. P. 13(d); See Massengale v. Mass engale , 915 S.W.2d 818, 819 (Tenn. A

pp. 1995); Haas , 676 S.W.2d a t 555. A decree awarding custody of children is res judicata and is conclusive on

a subsequent application to change custody unless circumstances have changed4

in a material w

ay so that the welfare of the children requires a modification of the previous order. See Long v. Long , 488 S.W.2d 729, 731-732 (Tenn. App. 1972); Hicks v. Hicks , 26 Tenn. App. 641, 176 S.W .2d 371, 374-375 (1943). Courts are empowered

to change custody

“as the exigencies of the c ase may r equire.” Tenn Code Ann. § 36-6-101(a)(1). “Notwithstand

ing the importance

of stability and

continuity, inte

rvening changes in a child’s circum stances may

require modif

ying an existing cu stody and visitation arrangement.” Adelsperger v. Adelsperger , 970 S.W.2d 482 , 485 (Tenn. App. 1 997)

. However, a cus tody order canno

t be modified ab sent a showing of

new facts or “changed

circumstance s” which require a n alteration of the existing order. Id. There is no hard and fast ru le a s to what constitutes a change of circumstance s. See Dantzler v. Da ntzler , 665 S.W.2d 385 , 387 (Tenn. App. 1983). H owever, “changed circ umstances” inc

ludes any ma

terial change of circu ms tance s affecting the we lfare of the child or children, includ ing events occurringsince the initial custody decision or changed conditions which could not have been anticipat

ed bythe original custo dy order. See Blair v. Bade nhope , 940 S.W.2d 575, 576 (Tenn. App. 1996). Onl y if the court finds tha t a material c

hange of circum

stances ha s occurred, will t he cou rt pro ceed t o dete rmi ne if the b est interest of the c hild dictates a change in the ex isting cu stody arrangem ent and to devise a cus

tody arrangement that serves th ose interests. See Adelsperger , 970 S.W.2d a t 485. II. The parties in

t his case had a less th

an amicable parti

ng, and their postdivorce interac tion has continued to be c ontentious, involving ongo ing litigation. At the time of the divorce, the trial court, after considering the e vide nce2 Father does not obj ect to corporal p unishment itself

and expressed a desire

that he be allowedto use corporal punishment to discipline the children when they are with him. He had been under

court order prohibiting him from using such punishment since the pendency of the original divorce

complaint. 5 presented, strictly limited Father’s visitation with the children. After some time, Motherallowed greater visit ation, including overnight stays. She discontinued this practice, howe

ver, when she

learned thatFather had been aud io taping the children extensivel y. She was concerne d that Father was a

ttempting to undermine her rela

tionship with the child

ren. In his efforts to document hi s allegati ons about Mother’s treatment of the children, Father beg an, soon af ter the div orce, tapin g the chil dren’s accounts to him of Mo ther’ s conduct and of various events in their lives. Father recorded forty to sixty tapes, sixty to ninety minutes in length each. He testified that they consisted primarily

of statements o

f the children about things Mother had done

or things that had happene d t o the children. Both psychologists who testified opi ned that such activity by the Father c

ould undermine the

child ren’ s relationship with Mother. Father also too k p hotographs, and had some taken by a professional photographer, of the children, ge nerally in their

underwear

or naked, purporte

dly to show bruis es or r ashes. The court determ ined that the photograp

hs did not demonstrate

anything outside the normal fo r active children.

The psychological testimonywas that such rep e titive photographing of the children could se

nd inappropriate

messages to the chil dren, again u ndermining the children’s relationship with their mother. Father’s claim of a material change in cir cumstances rests on his allegations that Mother had abuse d the children by inflicting excessive corporal punishment

on the children. 2 The children’s sc hool guidance counselor

and two6

trained psychologists who had int erviewed or counse

led the children t

esti fied that they had not observed evidence of abuse. The court heard the two older

c hildren in chambers. Both said that Mother had s panked them, but

th e spankings had occurred a long time ago. Both children indicated that they were happy, and loved both pa rents. Having heard all of the testimony the trial judge announced his findi ng from the bench that “I don’t think there’ s a physical abuse p roblem here at all.” The trial courtfound no change of circumstance, thereby holding that Fatherhas failed to meet his burden of proof. The trial court’s findings of fact are e ntitl ed to the presumption of correctness

on appeal, unless the

preponderance of t

he evidence is other

wis e . Tenn. R. App. P. 1 3(d) We see nothing in the record to contradict the trial court’s finding. We, therefore, uphold the trial court’s c

onclusion that there has not been a material change of ci rcums tances sufficient to justify a change of

c ustody. Because there ha s not been a materia

l change of circums

tances, it is unnecessary and would be imprope r for this court to und ertake a compara

tive fitness analysis. See Adelsperger , 970 S.W.2d a t 485. III. Father also argues that he did not receive a fair trial because the trial court allegedly decided the case be

fore all of the evidence was heard, apparently based

on comments the court m ade prior to hearing

the testimony of two of the children. This issue is without merit. Father had filed a motion to allow the three children, aged 8, 7, and 4, appear either in open court or in chambers, to expr ess their prefere

nce regarding custody. At trial the court heardte stimony from Father, Mother, Father’s new wife, Mother’s boyfriend, th e c hildren’s guidan ce counselor and two3 From the context of the entire discussion, thecourt was refe rring to Mother’s a

bility to call her other witnesses and put on proof if Father met his initial burden. 7 psychologists. At various points in the hearing, the a

ttorneys and the

court had discussions about the remaining witnesses for each side (Mother intende d to call

a number of witnesses who were waiti ng to testify), includ

ing discussions of the burden of proof. At the close of Father’s other proof, he indicated an intention to call the two older children, then aged 8 and 7, as witnesses. Mother objected to the chi ldren test

ifying because of the potential traumatizing effect on them. The court expressed con

cerns about having suc

h young children testif

y, and said: All right. I’ll talk to t he two oldest child ren. I said I would, and I will. I don’ t think its going to affect m

y decision, I’ll le

t you know and you 3 can put your other proof on, O.K? ... [M]y decision right now is

that the burden has not been met. My further decisio

n is that there is [a

] need to extend visitation, that you have met the burden of es tablishing that you a

re fi t to have more extended visitation. The trial court then spoke with the two older children in chambers withthe parties, their counsel and t he court reporter pres ent. Father’s objectio n on appeal appears to be related to the comments quoted above. At various points during the hearing, which la

sted late into the eve

ning, the court and counsel consulted o n the order of

proof, whether w

itnesses would be neces sary o r cumulative, and s imilar issues rela

ted to the conduct of th

e hear ing. As par t of deciding whether to allow the children to appear as wi tnesses, th e court assessed wh ether Father had m

et his burden to that poi

nt. Giving Father every opportunity to prove his case, the court acceded to Father’s request and hear d from

the children in cham

bers. After he

aring from the children, the court made its finding that Fatherhad not demonstrated a material change of circumstances. We find no error on

the part of the tria

l co urt. Additionally, on appeal, Father has not articulated how he was in an y way prejudiced by the court’s actio ns. See Memphis Bd. of Realtors v. Cohen , 7 868

S.W.2d 951, 953 (Tenn. App. 1989); Tenn. R. App. P. 36(b). IV. The trial court herein fashioned an order which wa s consistent with the testimony. The children wer e affected by the c

onflict between the

ir parents and the continuing litigation w hich encouraged Fat

he r to t ape and photograph the children. Both psychologists rec ommended increase

d v isitati on with Father, a

nd both recommended that t he ta pin g and photographing cea se. One also recommended limitations on Father’s visits to school. Mother favored increased visitation with Father as long

as the taping, photogr

aphing, and

other efforts to alienate the childre n from her were stopped. This was, in essence, the trial court’s order. For the reasons stated a bove we affirm the order o f the trial court. Thi s
case is remanded to the tr ial court for what

ever fur ther proceedings may be necessary. Costs o

f this appeal are a

ssessed to the appella

nt.

_____________

_ ________________

_ PATRICIA J. COTTRELL, JUDGE CONCUR:

_____________________________ BEN H. CANTRELL, P . J., M.S.

_____________________________ WILLIAM B. CAIN, JUDGE