# FILED May 21, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ CARL WILLIAM STROUD, JR., Plaintiff-Appellee, Giles Chancery No. 8611 Vs. C.A. No. 01A01-9607-CH-00291 SANDRA FAYE STROUD, Defend ant-App ellant.

__________________________________________________ __________________________ FROM THE GI

LES COUNT Y CHANCERY COURT THE HONORABLE JIM T. HAMILTON, CHANCELLOR

Paul Bates; Boston, Bates & Holt of Lawrenceburg

For Appellee Robert D. Massey of Pulaski For Appellant

VACATED AND RE

MANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE HOLLY KIRBY L ILLARD, JU DGE This is a child

custody case. Defendant, Sandra Faye Stroud (Mother ), appeals from

the order of the trial court granting the petition to change custody filed by the plaintiff, Carl William Stroud, Jr. (Father).2 The parties were divorced by final decr ee entered July 11, 1994. The trial court granted Mother an absolute divorce fr om Father on the grounds of inappropriate marital conduct and grantedMother c ustody of t he parti es’ minor

child, He ath Elv in Stroud. At the time, Heath Stroud was three years old. The tr ial cour t ordered Father t

o pay $65. 00 per week in chil d support, but reserved judgment on visitation privileges for Father. On July 12, 1995, Father filed a petition seeking to changecust ody from M other to Father. In the pe

titio n, Father al leges that Mother contacted him in May of 1995 because she could not discipline Heath, and as a result, Heath lived with Father from May 1995 until July 9, 1995. Father alleges that Heath had repetitive sinus infections and terr ible dental problems and

was unruly wit

h no socia l skills, but

that Hea th underw ent a com

plete tur naround during the

time he lived with Father. Father alleges that there has been a material change in circumstances and that the best interests of Heath dictate a change in custody. On J uly 19 and 20 , 1995, the trial court held a pendente lite hearing and hea rd the following evidenc e: Fath er is an admit

ted alcoholic, but

quit drink

ing five mo nths befo

re the pe ndente lit e hearing. Father

has not paid the complete amount of the ordered child support, but he entered into an agreement with Mother concerning the ar rearage allowing her to apply his share of the marital property to the arrearage. Father lives out of wedlo ck with hisgirlfrie nd, Elsie B owles, in Morristown, Tennessee. Father is an automobile mechanic in Morristown making $250.00 per week. Father testified that Mother called him beca use Hea

th was unr

uly and ne eded some guidance. Heath lived with Father from May 1995 until July 1995 in Mor ristown. F ather testified that Heath had dental problems and frequent nose bleeds. He state d the Heath was unruly, timid, and scared of police men when he first moved to Morristown. In Morristown, Heath has his ow n bedroo m. Father testified that Mother’s house was “nasty” and that she had

a rat problem. He stated that she h as sewa ge runnin g in the fr

ont yard a nd that Mot

her is unf it to have custody of Heath because of the condition of her house. However, he admitted that the house wa s in the same co ndition when he lived there. He testified that Mother lived with her boyfriend and that they slept together in the same bed. Father presented evidence that

impeached Mother’s credibility and corroborate d his own3

testimony. Seth Doty, a former employer of Mother, testified tha t Mothe r was a manager of rental propert

ies for h is compan

y for thr ee year s. Doty stated that Mother collected $1,700.00 in rental charges and did not turn it in to the company. He stated that Mother was not truthful with him or

with her t

enants a nd that she

kept the t enants’ deposits. ElsieBowles, Father’s girlfriend, testified that Father has not had a drink in five months and that he is now a

hardworking man. She stated that shestays at home and takes care of the children, including her eighteen-year-old son who has cerebral palsy. Ms. Bowles testified that when Heath

lived with them from May to July 1995, he had poor manners and misbehaved and that when he l eft, he w as a well -liked, w ell-disc iplined c hild. She a dmitted tha

t Father li ves in her home, that she has the power to kick him out at any time, and that Father would have a hard time taking care of Heath if she kicked him out of her home. However, she testified that she would call Mother if Father ever left her homeor if she ever made Father leave he r home. She claims that she and Father would like to be married, but that if they got married she would no longer receive social security chec ks to pay for the care of her disabled son. Father entered a videotape into evidence tha t he claimed he found in a dresser

drawer of t he bedroom suite after he moved from Pulaski, Tennessee to Morr istown. Fathe r testified that he di d not make the tape and did no t know of it s existence prior to the divorce. On the other hand, Mother testified that Father filmed the videotape and that he wa s drinking at the time. She claims that he indicated what he wanted her to do, but that his voice never is heard on the videotape. She said that he kept the videotape in his underwear drawer in their dre sser in the bedroom. She also stated that Father threatened her with the tape. She claims that Heath was

never present during the filming of the video, but that he walked through the room

once and was in another room. Howeve r, she stated that Heath has never seen he r engage in any lewd behavior. Mother lives in Pula ski, Tennessee a nd, at the time of the pe

ndente lite hearing, worked third-shift at a plan t, which r equired her to pla ce Hea th in child care from 10:30 p.m. until 12:00 p.m. the next d ay. She te stified th at Heath was well-adjusted

at the child care center and neve r used foul language. Mother admitted that her boyfriend stays overnight approximately once a week while Heath

is there, but she said her boyfriend was not a regular in the house. Mother4

testified that she h as wet we ather sp rings in he

r yard, but not a se wage pr oblem. She

also testified that she does not have a rat problem, but that she lives next to open fields and one time had a field mouse in her home. Mother testified that

the reason she let Heath live with Father from May until July 1995

was beca use Fatherwas supposed to enroll Heath in a summer camp. However, Heath never attendedcamp. WhenFather w ould not return Heath to Mother’s custody, she had a custodial interfe rence w arrant

issued ag ainst him. Mother testifi ed that Fathe

r threa tened he r with a gu

n in front of Heath and physic ally assaulted her. Bec ause of t his incide nt, she ha d an aggr avated a ssault wa

rrant iss ue d against him. Mother

presented

testimony that she was a loving mother and that Heath was happy and in good health. She presented evidence that Heath wa s healthy and had n ormal tee th. Michelle Chap man, Heath’ s day care owner, testified that Heath wa s a normal child who had no disciplinary problems . Mother a lso calle d her son- in-law, B obby Able s, who te stified tha t Father told him that he (Father) made thevideotape of Mother and asked Ables if h

e wante d to see it. Ables testified that Heath was a normal child and that Mother’ s house wa s clean. Angela A bles, Bobby Ables’s wife and Mother’s daughter, testified that Father knew of the videotape before the divorce and used it to threaten Mother. After the pende

nte lite he aring, the trial c ourt dete rmined tha

t Mother had credibi lity problems

. The trial court also fou n d that Mother was w orking thi rd-shift and was o nly with Heath fro m noon until 10:00 p.m. five or six days per week and that Heath spent some ni ght s away from home. The trial court also stated that it was impressed with Father’s rehabilitation from alcohol abuse. The trial court concluded that Heath’s best interests dictated an award of temporary custody to Father and found that the “totality of the evidence demonstrated clear a nd convincing evidence that a change of cir cumstances has occurred.” On September 22, 1995, Mother filed an answer that denied the material allegations of the petition. Mother claims that she let Heath live with Father from May 1995 until July 9, 1995

so that Father could reestablish a relationship with Heath. She alleges that Father used lies a nd trickery to obtain her consent and that Father used this ti m e with Heath to gain permanent custody. She argue s that Father has unclean hands and cannot recove r. In addition, Mother5

alleges that Father is living w ith and is supported by a woman to whom he is not married and that this situat ion would have an adverse effect on Heath. Finally, Mother ave rs that a videotape that Father offered into evidence had bee n altered and had portions deleted. She alleges tha t Father represented to the court that he did not make the tape and did no t know of it s existence before the divorce. However, Mother claims that Father filmed the tape prior to the divorce. The case was heard before the chancery court, sitting without a jury, on October 9, 1995. The trial cou

rt consid ered th e testimo ny from the pendente lite hearing and also heard ne w evidenc e: James Dennis Mooney, senior vi ce-pre sident at T hird Nati onal Bank , testifie d on beha lf of Mother. He stated that she had a very good reputation

in the community for telling the truth. He admitted that he only knew her through banking activities and did not know her socially. Dr. Charl es Burge

r, Heath ’s doctor

in Pulaski, stated tha

t Heath w as in normal health withnormal hygiene. He had no reservations about Moth er being the prima ry custod ial pare nt. J.O. Scroggin, Jr. testified that he employed Mother as a secretar y and bookkee perfor his real estate business and that she had a good reputation for te lling the truth. How ever , Scroggin stated that Mother quit her job with his company after a disagreement about Mother ’s competin g rental

propert ies. Phyllis Morrow Stroud, Father’s previous wife, t estif ied that sh

e saw Fat her drun k in June 1995 and t

hat Fathe r told her in June 1994 that he had

a videotape that would help him get Heath. Pamela Pridmore, Father’s stepdaughter, testified that Father told her that he had raped Mother, that Father told her he made the videotape, that Father s aid the vi deotape was his insurance policy and his blackmail material, and that Father had shown the videotape to her husband and her brother. She said that she he ard Fat her’s vo ice on the videotap e. She als o stated that she has seen Father smoke marijuana. Ron Pridmore, Pamela Pridmore’s husband, testified that Father showed him the videotape and that Father

appeared on the videotape “playing with hisself [sic] in the bathroom.” He stated that Father’s voice was on the tape and that Father told him he was going to use the videotape to get custody of Heath. Mother testified again at trial and stated that her work shift had changed to second- shift, which is 4:00 p.m. to 12:30 a.m. She also testified that Father had criminal convictions for DUI6

and public intoxication and tha t Father served seven years in prison for stealing ca rs. She admitted t

hat Hea th’s bed i s in her bedroom and that her boyfrie nd stays w ith her wh

ile Heat h is asleep in the same room. She also admitted that she had never taken He ath to the dentist. The trial court granted Father’s motion and changed custody from Mother to Father. In its order, t

he trial c ourt state d, “[B]a sed upon th e court’ s ob servation of the demeanor of the witne ss, the court ha s re-co ncluded t hat the de fendant , Sandra

Faye Strou d, has co nsidera ble credibi lity problems. The court affirmatively finds that the videotape previously introduced as evidenc e in this cause was made by the defendant, Sandra Faye Stroud, in the absence of Carl William Stroud, Jr.” The trial court then said, “The court re-emphasizes its favorable impression with the petitioner, Carl William Stroud, Jr., with regard to his having rehabilitated himself as well as his credibility.” The trial court awarded perma nent custody of Heath to Father and awarded reasona ble visita tion to Mothe

r. The tr ial cour t did not or

der chil d support p ayments. Mother appealsthe judgme

nt of the tr

ial cour t and pre sents one

issu e f or our review: Whether the trial court erred by changing the custody of the parties’ minor child from Mother to Father. Ou r rev iew of the findings of fact by the trial court is de novo upon the recor d, accompanied

by a pres umption of

the corr ectness of the trial court’s findings. Unless wefind that the evidence preponderates aga inst these finding s, we must affirm, absent error of law. T.R.A.P. 13(d). When the resolution of t he i ssues in a case depends upon the truthfulness of witnesse s, the trial judge who has the opportunity to observe thewitnesses in their manner and demeanor while testifying is in a far better p osition tha

n this Court

to decide those issues. Mays

v. Brighton Bank , 832 S.W.2d 347, 351-52 (Tenn. App. 1992). The weight, faith, and cre dit to be given to any witness’s testimony lie in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appe llate court. Id . at 352. It is well-settled in this state that where a decree has been entered awarding custody of

a child, that

decree is res judicata

and conclusive in a subsequent application to change custody unless there has been a material ch ange of c ir cumstanc es such th at the we lfare o f the chi ld requires a change of custody. In re Parso ns , 914 S.W.2d 889, 893 (Tenn. App. 1995) (citing Long v. Long , 488 S.W.2d 729 (Tenn. App. 1972)). T here is no hard and fast rule as to what constitutes cha nged circum stances. Dantzler v. Dantzler , 665 S.W.2d 385, 387 (Tenn. App.7

1983). In Wall v. Wa ll , 907 S.W.2d 829 (Tenn. App. 1995), this Court discussed “changed circumstances”:

When two peopl e join in conce iving a child, they select that child’s natural

parents . When the

y decide to separ ate a nd divorce, they give up the privilege of jointly rearing the child, and the divorce court must de cide which parent will have primary responsi bility for rearing the child. This decision of the Cou

rt is notchan geabl e except for “c hange of circumst ances”which is definedas that which re quires a change to prevent substantial harm to the c hild. Custody is not changed for the welfare or pleasure of either parent or to punish either parent, but to preser ve th e welfare of the child. Custody is not changed becaus e on e parent is able to furnish a more commodious or pleasant environment

than the o ther, but where continuation of the adjudicated custody will substantially harm the child. Id . at 834. The party seeking a change in custody has the burden of pr oving by the preponderance of the evidence that a change in custody is in the child’s best interest. Musselman v. Acuff , 826 S.W.2d 920, 922 (Tenn. App. 1991). In child custody cases, the welfare a nd best interest of the child is the paramount concern and the determination of the child’s be st interest must turn on the particular facts of each case. In re Parso ns , 914 S.W.2d at 893. In Holloway v. Bradley , 230 S.W.2d 1003 (Tenn. 1950), the Court said:

The determin

ing fact s in these adoption and custody cases are so infinite in their variety that the reporte d decisio n in one case is of littleai d or ass istance

in settling

the next. The supr

eme rule to which all others should yield is the welfare and best interest of the child. Id

. at 1006. In Bah v. Bah , 668 S.W.2 d 663 (Te nn. App. 1 983), the

Court esta

blished so me guidelines for determining the best interest of a child:

We adopt what we believe is a common sense approach

to custody, one whic h we will call th e doctrine of “comparative fitness.” The paramount co ncern in child custody cases is the welfareand best interest of the chi ld

. Mollish v. Mo llish , 494 S.W.2d 145, 151 (Tenn. App. 1972). There are literally thousands of t hin gs that must be taken into consideration in the lives of young children, Smith v. Smith , 188 Tenn. 430, 437, 220 S.W.2d 627, 630 (1949), and these factors must be reviewed on a comparative approach: Fitness for

custodia l respons ibilities is largely a comparative matter . No human being is deemed perfect, hence no human can be deemed a perfectly fit custodia n. Nece ssarily, t

herefo re, th e cou rts must dete rmi ne which

of two or m

ore ava ilable custodians is more or less fit than others.8 Edwards v. Edwards , 501 S.W.2d 283, 290- 91 (Tenn. App. 1973) (emphasis supplied.) Bah , 668 S.W.2d at 666. Mother first argues that Father came into the court wit h “unclean hands,” and therefore , the trial cou

rt should have reject ed his petition. The doctrine of “unclean hands” does not

necessa rily repe l a petit

ion rega rding the welfar e of a ch ild beca use the w elfare

of the ch ild predominates over any offended dignity of the court. Haynes v. Haynes , 904 S.W.2d 118, 120 (Tenn. App. 1995 ); s ee a lso Strube v. Strube , 379 S.W.2d 44, 48 (Tenn. App. 1963). We believe that the trial co u rt properly allowed the hearing to proceed de spite the allegations of “unclean hands.” Mother also asserts that the “tend er yea rs doctrine” is applicable in this cause. The General Assembly has addressed the “tende r years doctrine”: It i s the legislative intent that the gender of the party see kin g custody shall not g ive rise to a presumption of parental fitness or cause a presum pti on in fa vor or ag ainst the a ward of custody to such party; provided , that in the case of a child of

tender y ears, the gender of the par ent may be consider ed by the c ourt as a factor in determining custody after an examination of the fitness of each party seeking custody. T.C.A. § 36-6-101(d) (1996). While the “tender years do ctrine”is not a co ntrolling f actor, it is certain ly something

that sh ould be considered by the court in making an award of c ustody. Malone v. Malone , 842 S.W.2d 621, 6 2 3 (Tenn. App. 1992 ). Howev er, the c ourt must st ill make an examination of the fitness of each par ty. We believe

that the c entral is sue in this c aseis whether there has been a material change of circumst ances su ch that the welfa re of th e child requ ires a change of custody. See In re Parsons , 914 S.W.2d at 893. Mother argues that there has been no mater ial change in circumstances that would warrant a change in custody. Father

argues that

circumstances have changed in a material way concerning M other’s work schedule, Mother’s new boyfriend, Mother’s lack of control over Heath, and his own re habilitation. Father did not present testimony concerning Mother’s work schedule at the time of the divorce, so we ca

nnot tell ho w much Moth er’s wor k sc hedule

has changed. However, by the time of trial, Mother wa s workin g secon d-shift instead of third-shift. If anything, her work schedule has improved.9 Fa ther also argues that Mother’s new boyfriend presents a material change o f circumst ances. Mother admitted that her boyfrie nd spends the night a

t her home

when He athis present , but she denied that Heath has seen them engage in any sexual activity. Mother’s cohabitation is troubling to this Cour t. Howeve

r, Mother ’s cohab itation is o nly one of the factors to consider. Musselman , 826 S.W.2 d at 922. W e also not e that Fat her live s with

his girlfriend outof wedlock. We know of very few c ases in this state where custody has been awarded to a parent living with a partner out of wedlock, and we be lieve tha t neither of these situationsis ideal. Father

claims that Mother

cannot control Heath and that she request ed his hel p, a clai m that Mother den ies. Dr. Charles Burger, Heath’s pediatrician, a nd Michelle Chapman, the supervisor

at Heath’s day care, testified that Hea th was in good health andwell-behaved. We do not believe that Father has shown a material change in circ umstances on this issue. Father also impre ssed the t

rial cou rt with his r

ehabilita tion from a

lcoholism. Although

we believe that

Father’s rehabilitation is a factor to conside

r, like the “tender years do ctrine, ” it is not a cont

rolling fa ctor. The

fact tha t the non- custodia

l parent has impro ved himself o r herself, standing alone, does not constitute such a chang e in circumstances that would warrant

a change in custody. Short v. Short , No. 03A01 -9506-CH-001 68, 1995 WL 728521, at *2 (Tenn. App. Dec. 11, 1995). The main piece of evidence on which the pa rties and the trial court focused was the videotape. At the end of the proof, counsel for Father stated, “If she (Mother) had someone make that tape, she is an unfit mother. Anyone who would engage in that type of behav

ior is unfi t. If Bill St

roud (Fa ther) took the film of her, he’s likewise unfit.” It appears as if the trial court’s decision was mainly based upon the credibility of

the parties and the videotape. The trial court specifically found that Father did not make the vide otape and that Mother was not credible. The videotap e shows Mo ther fon dling and t ouching herself a

nd is a shocking display of vulgarity. We cannot condone such conduct on the part of the pa rticipants in the taped production. However, we must disagree with the trial court’s trea tment of the videotape. In the first place, we conclude

from our review of the record tha t the evid ence pr eponder ates aga inst the trial court’s finding that Father did not make the videotape. Heath appears in the tape and is obviousl

y three y ears old

or less, e stablishin g that the tape wa s made wh

ile the parties were10

still marri ed. A lthough the trial court felt that Mother was not credible, the trial court did not comment on the parade of witnesses who testified that Father made the videotape, possessed the videotape before the divorce, and bragged a bout using the videotape as blackmail. In thesecond place, even if the trial court was correct in its conclusion that Father did not

make the tape, the tape itself doe s not pres ent a mate rial cha nge that a ffects Heat h’s well-being. While the tape shows Heath walking by the camera as Mother lifts her nightgown and also shows Heath bathing withMother, there is nothing to indicate that he witnessed the vulgar activities depicted on the tape. Sexual infidelit

y or indiscretion does not ipso facto disqualify a parent from having custody of a child. Mimms v. Mimm s , 780 S.W.2d 739, 745 (Tenn. A pp. 1989) . This Court has previous ly noted that

we do not s it as moral a

rbiters making judg ments on wh at is acc eptable social behavior, but we must consider a parent ’s conduct to the extent that the interest of the child is concerned. In re Parso ns , 914 S.W.2d at 894. Custody may be changed if the behavior of the custodial parent clearly posits a danger to the physical, menta l, or emotional well-being of the child. Aaby v. Strange , 924 S.W.2d 623, 629 (Tenn. 1996). The tape in and of itself does not pose such a danger. We reiterate that Heath’s best interests are the primary concern

of this Court and should also be the main focus of both Father and Mother. Unfortunately, their actions do not support such an intention. Neither parent has demonstrated a high degree of responsibility, nor have they shown that their interests are secondary to Heath’s. The y should understand that an alternative to parental custody is foster care if the interest of the c hild warrants such an action. From our revi ew of the

record in this cas e, we find that the ev idence preponderates agains tthe trial court’s finding that there has been a materia l change of circumstances tha t
warran ts a change in custody. Therefore, the order of the trial court changing custody is vacated, and the trial court shall order that Mother cannot pe rmit any men f

riends to spend the night with her while Heath is in the home and shall in no way enga ge in any s exual activity while Heath is in the home. We also are

of the opi nio n tha t this case require s a close

supervis ion by the c ourt to pr otect the best interest of the minor child. This case is remanded to the trial court fo r instructions to refer this matter to the Tennessee Dep artment o f Human Se rvices f or full investigation of the living arrangements of both Mother and Father and all other facts pertaining11

to their ab ility and w illingnessto care for the minor child. The trial court shall also determine

a visitation schedule for Father and shall require the Department

of Human Services to monitor the custody and visitation arrangements for an extended peri od of time with peri odic rep orts to the court. Costs of the appeal are assessed aga inst the appellee.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ HOLLY KIRBY L ILLARD, JU DGE