### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 10, 2002 Session CAROLINE ELIZAB ETH SMITH v. MARK O. SMITH Direct Appeal from the General Sessions Court for Sumner County

No. 2509-G Barry R. Brown, Judge

No. M2001-00689-COA-R3-CV - Filed May 16, 2002

This is an appeal by appellant Caroline Elizabeth Smith from an order of t he trial court which provided that the custody of t he minor c

hildren o f Caroline Elizab eth Smith and Mark O. Smith shall remain in the

custody of

Mark O. Sm

ith. We a ffirm the trial cou rt. Tenn. R. App. P. 3, Appeal as of Right; Judgment of the General Sessions Court Affirmed and Remanded I RVIN H . KILCREASE , JR ., Sp. J., deliver ed the opinion of the

court, in which W ILL IAM B. C AIN and P ATRICI A J. C OTTRELL , J J., joined. Gary M. Williams, Hendersonville, Tennessee, for the a ppellant, Caroline Elizabeth Smith. Michael W. Edwards, Hendersonville, Tennessee , for the appellee, Mark O. Smith. OPINION Background This appeal involves a petition for change of custody of two (2) minor children, Jessica Anne Smith, born March 11, 1985, and Sarah Jayne Smith, born September 10, 1986, from their father, appellee, Mark O. Smith (“Father”) to their mother, appellant, Caroline Elizabeth Smith(“Mother” ). On June 27, 1996, the Father was granted an absolute divorce from the Mother on the ground of inappropri ate m arital conduct. The trial court awarded joint custody of the pa rties’ minor children, Jessica Anne Smith and Sarah Jayne Smith, with primary placement with the Father. The provisions of the Final Decree of Divorce restrained both parties from possessing or consuming drugs or alcohol in the presence of the children.-2-

After the d i vorce f

rom the Fa

ther, the Mother ma

rried a nother ma

n and divo

rced him in October, 1999. In May, 1999, the Mother moved into the home of the Father and their two (2) dau ghters

. The reason that she returned to the Father's home is disputed. According to the Father, the Mother had surgery

in April, 1999. The Father said that he felt it would help the Mother if she mov ed in withhim and their daughters. The Mother testified that she did not know the reason that the Father insisted that she live with him, but her illness was not the reason. While the Father and Mother lived together, after their divorc e, they h ad an intimat e relationship. Further, the Mother assisted with the housekeeping and care of the children. However, the Father was the primary care provider for the children. On May 5, 200 0, the Fath er was charged with domesti c violence based on a complaint filed by the Mother. However, the charge wa s subsequently dismissed. On May 23, 2000, the Mother was ordere d to move f rom the Fa

ther’s h ome within ten (10) days as a result of a Detainer Warrant filed against her by the Father. Howe ver, the Father allowed the Mother a

n addition al ninety

(90) day s to remain

in the home . The Mother moved from the home in August, 2000. Subsequent

to the divorce and while the Father and Mother were living together during the years 1998-1999, the Father drank alcoholic beverages and smoked marijuana . However, the Father denied that he or anyone else used marijuana in the prese nce of the minor

children, Jessica or Sarah, or that he was ever intoxicated in the presence of the children. The Mo th er complained that the Father took several trips and left the childre n with her. However, the Final Decree of Divorce provides that if

the Father

is in need of a babysitter the wife shall be g iven the r

ight of fir st refusa

l. Prior to the Smith's divorce, the Father drank alcoholic beverages and smoked ma rijuana. The trial court in a

supplemental order entered on August 8, 1996, issued a "mutual restraining order restraining both parties from allowing anyone who is intoxicated or under the influence of illegal drugs while the minor children are in their care."[sic] The minor children, Jessica and Sarah, testified that they never saw their father or anyone else intoxicated, under the influence of drugs, or use ma rijuana in their presence. The Mother te stified th at the Fat her rec eived e- mails on his home computer which contained pornogra phic material and he would s how her t his mater ial. Howe

ver, the Mother pa

rticipat ed in this activity by sending humorous pornographic e-mail to the Father. The humorous p ornogra

phic e-mails the Father received were fr om his friends and co-worke rs. There is no evidence that the children ever saw the humourous pornographic e- mail.-3-

Jessica, a minor c hild

of the parties, is satisfied living with her Father. Sa

rah, a mi nor child of the part ies, testi fied tha

t she is satisfied living with her Father, but has no opinion as to whether she wants to live with her Mother or Father. The trial court, in its order entered on December 27, 2000, found that there had not been a material or

substantial change of circumstances in the custodial management a nd refused to change custody of the parties’ minor children from the Father to the Mother. On Marc h 9, 2001, t

he Mother

filed a N otice of

Appeal o f the Ord

er of the trial Cour

t.

Standard of Review This case was tried before the Court without a jury. C h ild custody cases are reviewed by this court in

the same manner as other non-jury civil cases. Bass v. Knighton , 676 S.W. 2d 554, 555 (Tenn. App. 1984). Our review is pursuant to Tenn. R. App. P. 13(d) which provides in pertinent part that review of fi ndings of f act by the trial cou rt in civil actions shall be de novo upon the record of the trial court accompanied by a presumption of the corr ectness of the finding, unless the preponderance

of the evidence i s otherwi se. No pr esumption

of corr ectness attache s to the t rial court’s legal co nclusions

. Doles v. Doles ,848 S.W. 2 d 656, 661 (Tenn. Ap p. 1992); York v. Vulcan Materials Co. , 63 S.W. 3d 384, 387 (Tenn Ct. App. 2001). Our de novo review is also subject to the well-es tablished

principle that the tr

ial cour t is in the best position to assess the credibility of the witnesses; accordingly, such determinations are entitled to great weight on appeal. Thompson v. Adcox , 63 S.W. 3d 783, 787 ( Tenn. Ct. App. 2001). Analysis The Mother argues that there has been a mat erial change in circumstances aff ecting the welfareof the children since the Final Decree of Divorce and the supplemental order s of t he trial court. Further, the Mothe r argue s that bec ause

the alleg ed chan ge in

circumstances, custody of the children should be changed from the Father to her. The trial cou

rt, at a b ench tri al, considered the testimony of the Mother, the Father, the minor children and the exhibits and concluded that there had not been a ma terial or substantial change

in the custody arrangement and declined to change custody from the Father to the Mother. The Mother’s main complaint about the Father’ s conduc t was his use of alcoholic beverages and marijuana. Howeve

r, the Mot her testi fied tha

t the Fathe

r drank a lcoholic beverages and used marijuana prior to and after their divorce. The refore, no change in his conduct has occur red.-4-

The Mother claims she became the primary care taker of the children when she returne d to the home of th

e Father . The Father claim s that he c ontinued t o be the pr

ima ry care taker of the children while he and the Mother lived together. The trial judge resolved the issues of credibility of the witnesses in favor of the Father. We defer to the tria

l judge’s determin ation of th e credibili ty of the witnesses. Massengale v. Massenga le , 915 S.W. 2d 818, 819 (Tenn App. 1995) Our examination of

the evidence persuades us to conclude that the evide nce preponderates in favor of

th e trial court ’s decision that there has not been a material or substantial cha nge of circumstances in the custodial arrangement to warrant a cha nge in custody of

the children from the Father to the Mother. Conclusion We affirm the judgment of the trial court. This case is remanded to the trialcourt for such furth erproceed ings as may be necessary. Costs of this appeal are assesse d against the appellant Caroline Elizabeth Smith and her surety, for which execution may issue, if nec essary.

______ _______ __________________

_ Irvin H. K

ilcreas e, Jr., Sp . J.