### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE September 8,

2000 Session
ANGELINA ROSE KEELE (ACOSTA- DELGADO) CLIFTON v. CARLOS ACOSTA-DELGADO

An Appeal as of Right from the Circuit Court for Davidson County

No. 93D-3662 Muriel Robinson, Judge

No. M2000-00253-COA-R3-CV - Filed November 15, 2000

This is a post-divorce

child cus tody dispute. The mother filed a petition to regain custody of the parties’ three children after she had entered into an agreed order in 1995 g rant in g custody to the defendant father. After hearing

tes timony on, inter alia , the father driv ing while intoxicat

ed with the children in the car with him, the trial court found a material change in circumstances, gra nted custody to the mother, and ordered the father to pay child support. The father appeals, arguing that there was not a mat erial change i n circumst ances suffi cient to war rant a change in custody, that the trial court inappropri

ately consi

dered his child

support arrearage prior to the 1995 agreed order, and that the trial court miscalculated his income, resulting in an unreasonably high child support award. We affirm, fin ding a materi al change in c ircumstan ces warranti ng a change in custody, and finding that the evidence does not preponderate against the award of child support.

Tenn.R.App.P. 3; Ju

dgment of the Circ

uit Court is Affirme

d. H OLLY K IRBY L ILLARD , J. , delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S.,and W ILLI

AM B. C AIN , J., joined.
John M. Cannon, Goodlettsville, Tennessee for Appellant, Carlos Acosta-Delgado
Stephanie C. Hatchett, Nashville, Tennessee for the Appellee, Angelina R ose Keele (AcostaDelgado) Clifton

OPINION

In this post -divorc e child custody case, Angelina Rose Keele (Acosta -Delgado) Clifton ("Mother") sought to rega in custody of

the parties’ th

ree boys from their father, Carlos AcostaDelgado ("Father"). M other and Father were divorced on January 11, 1994, on the grounds of irreconcilable

differences. At

the time of trial in January 2000, the oldest child, Jason, was ten years old, and the two younger boys, twins Joshua and Justin, were nine y ears old. Under the M ari tal Dissolution Agree ment si gned by the parties, Mother w

as granted prim

ary phy sical custody

of all three boys, wi th Fat her having visitation rights every other weekend. The Marital Dissolution-2-

Agreement

provided that the Father was o bligated to pay

$115.00 per week

to Mother as child support.

A year later, on January 9, 1995, Mother a nd Father signed an agreed order

modifying t

heir Marital Dissolutio n Agreemen t. The agreed order granted primary physical custody to Father, granted visitation rights to Mother every Thursday e vening and every other weekend, and provided that Mother would pay

child support to Father in the amount of $49.22 per week. The agreed order statedthat "the parties' [sic] have agreed that both parties are fit and proper persons to

have custody and control of the three minor children . . . ."

On March 16, 1999, Mother filed a petition seeking emergency custody

of the three children. In her petition, Mother asserted that Father used alcohol excessively, had been arrested for driving under the influence while the children were in the car with him,

had female companions that were

an unhealthy influence on the children, and was an habitual user of cocaine and other illega

l drugs. Mother also contended that Father had regularly de nied her visitat ion wit

h the children, that he showedundue favoritism to the older child, Jason, over the younge

r twins, that he all

owed Jason to physically

ass ault the younger twins, and that he refused to seek counseling f or Jason despite the fact that, on occasion, Jason had choked the younger chil dren. Moth er also argued that the ch ildren's school grades had declined as a result of Father's custody. Mother soug ht emergency

custody and permanent

custody, asked the

trial court to find Father in civil or criminal contempt for violating the agreed visitation schedule, and sought a judgment for past-due child support.

After finding that Father

was indigent, the trial court appointed counsel to represent Father withregard to the

criminal contempt

charges. Be

cause the appoin

ted attorney

could not represent Father with regard to the civil co ntempt charge, the issues were bifurcated for hearing by the trial court. Mother later amended her petition to drop the charge of civil contempt.The disposition of the criminal conte

mpt charge ag

ainst Father is no

t in the record be

fore this Court.

On July 12, 1999, Father filed a petition for contempt

against Mother f

or failure to pay

child support according to the

1995 agreed order. The petition asserted that, as of May 3, 1999, Mother owedFather $11,074.50 in child support. Mother filed a response stating that she and Father had agreed that she would not pa

y the weekl

y child suppo

rt u nder th e agreed order. Nevertheless, on October 28, 1999, Mother was sentenced to thirty days inca rceration for her fa

ilure to pay child support. On October

29, the trial court entered an agreed order stating that Mother would be released from jail upon her deposit of $6,242.59 into the Circuit Court Clerk’s office. The money was paid, and Mother was released that day.

The hearing on Mother’s petition for custody was held on January 11, 2000. At the outset of the hearing, Mother testified in response to questions, from the attorneys as well as fr omthe trial court, about the reas on w hy she agreed to transfer physical custody of the boys to Father in 1995. Mother testified that, before the parties separated, she stayed at home with the children and did not work outside the home. After

Mother moved out with the children, shesaid she had great difficulties working and getting the children to day care. Although the

divorce decree in January 1994 provided1 After Ms. G ober rec ounted this co mment, the trial ju dge and th e witness had the following co lloquy: The Court: Is that the way he talks t o women? The W itness: We ll, no, not all the time, b ut, you know, C arlos is just – The Court: I don’t know Carlos, so I’m asking you. The Witness: I mean, t hat’s jus t Carlos’ nat

ure. The Court: Well, did that offend you? The Witness: Did it of

fend me? The Court: Yeah. The Witness: No.

-3- that Father would pa

y $115 per w

eek in child

support, Mother stated tha t Father refuse

d to pay it. She asserted that Father “continually harassed” her at her job, and that she was fired as a result of his harassment. Mother testified that, after losing her

job, she was unable to financially support the children and had no money to hire an attorney to enforce the child support order. Consequently , in January 1995, she agreed to a consent order g ranting physical custody of the boy s to Father.

The January 1995 order provided that Mother would pay Father child support in the amount of $49.22 per

week. Mother testified that she and Father orally agree d that Mother would not pay the child support listed in the January 1995 order because of F ather’s child support arrearage. Nevertheless,

when Mother filed her

petition to

change custody, Father responded by filing a petition for contempt, claiming

Mother had not paid

child support as required under the January 1995 order. Mother was jailed, and was released after she paid the alleged arre arage.
Mother then testified regarding Father’s interference w ith her visitation, as well as his vile language and behavior toward the boys and in their presence. She described Father se nding her on “wild goose chases” to Murfreesboro and other locations, purportedly to pick up the children. When Mother called to ask that the boys be ready w hen she got ther

e, Father resp

onded in the boy

s’ presencethat they wo

uld be there with th

eir “dick in their hand.” She asserted that Father favored the oldest son, Jason, permitting him to p lay bask etb all whi le n ot a llo win g the twi ns t o pl ay, encouraging

Jason to fi ght with the tw ins, calling the t

wins “faggots

. . . dumb-a’s . . .[a

nd] sissy girls,” and mocking the boys’ speech impediments.

Mother testified that, since the January 1995 consent order, she has remarried, and that she andher husband, Van

Clifton, have a two-year-old daughter. Mother stated that if she were awarded

cus tod y, she would stay

at home with the children. She stated that sheand her husband do not drink alcohol or take drugs, and that she would seek counseling for the boys if she were awar ded cus tod y. She maintained that her husband was a good stepparent.

Mother’s testimonyregarding Father’s language and behavior in the presence of the c hildren

was corroborated by other witnesses, including Father. Mother’s sister, Carrie Gober, was declared

a hostile witness in her

examination byMother’s counsel, because she remained friends with Father andoften visited him during periods of time in which Ms. Gober and Mother were estranged. She confirmed

that Father cal

led the boys n

ames like “dumbas s” and asked gir lfriends to “suck his dick” 1 within earshot of the ch

ildren. She testifi

ed that Father la

ughed about sen

ding Mother on a “

wild goose chase,” telling Mother that the children were in Murfreesboro when they were not. Ms. Gober-4-

stated that she had seen Father use cocaine on more than one occasion since he had taken custody of the boys.

Mrs. Gober’s son Troy

also testif

ied, conf irming that he had heard Father make sexual commentsabout women in t he b oys’ pres ence and tha t he had hear d Fat her c all the boys “sissy, little girl, faggo

t” and that Fathe

r would grab the

boys by their heads and je

rk them.

There was considerable testimony regard ing Father’s e

xcessive drinking

and incidents in which he drove intoxicated with the children in the car with him. Ms. Gober testified that she had

seen Father “obviously drunk” in the presence of the parties’ c hildren, and had on occasion driven the children herself because Father was “too drunk to drive them,” and that she had seen Father drive the children while

under the influence of alcohol. In his testimony, Father admitted that he had been arrested t hree ti mes for driving under the influence of alcohol. The first arrest occurred in 1985, prior to the parties’ divorce, and was later dismissed. Father’s seco nd arrest occur

red in February 1997 in Wilson County for driving under the influence, child endan germent, and resisting arr est. T he indictment following that arrest indicates that Father had his three children and another chil d in the car with

him when he was arrested. The child endangerment charge was later dr opped, and Father pled gu

ilty to driving

under the influen

ce and resisting

arrest.

Father’s third arrest occ

urred in Davidson

County on April 10, 1999. During the trial court’s hearing, two police officer s, the parties’ old

est son, and Mother’s thirteen-year-old nephew testified

as to the events of that night. Father, his three sons, and the thirteen-year-old ne phew spent the evening at a

bow lin g all ey. The first police officer was working off-duty a s a security guard at the bowling alley. He testified that the night of the arrest was the second time in two weeks that he had

seen Fathe r drinking a nd acting in a belligerent manner. On the night in question, Father let the children bowl wh ile he was drinking in the bar. After some time had passed, the four children stoppe d bowling and came into the bar. The police officer told Father that the children were no t allowedin the bar . Father reacted in a belligerent fashion and did not immediately remove the children from the bar. The nephew testified

that Father said

that he was “goi

ng to sm ack th at ‘MF’ing cop” whe n the off icer told him to remove the children from the bar. The nephew stated that, as Father and the children left the bowling alley, F ather said “I’m going to run over these pigs.” The police officer working as the security gua rd called the police to prevent

Father from leaving the bowling alley with the children in the car. After Father got into the car to drive, with the children in the car, the nephewtestified that Father “burned out” and “sped around the bowling alley” bef ore being stopped by

a police car

with its lights on. Th

e police office

r then administere

d field sobriety tests and arrested Father. The nephew testified that, at this point, Father began “jerking away and fighting” the arresting officers , so one of t hem “slammed him dow n and put the cuff

s behind his back. ” Father later r

egistered a blo

od-alcohol conte

nt of .22. The boy

s stayed tha

t night wit h Crystal, a sixteen year old girl who worked at the bowl ing alley . The nephew testified that, when Father returned home the

next morning from ja

il, “he had an

open beer in his hand and was drinking it.”-5-

Father testified that

he served the required jail time and was on probation as of the date of the hearing. He asserted that he had no t ha d an yt hing to drink for over eight months prior to the hearing, and attended Alcoholics Anonymous meetings once a

week as required under the terms of his probation.

Father asserted that Mother’s husband, Van Clifton, physically mistreated the children whe n they were at Mother’s home. The testimony was di sputed r egarding incidents at Mother’s home. The parties oldest son, Jason, testified that Mr. Clifton onc e kicked him in

the back, causin

g him to falldown several steps. On cross-examination, Jason ackn owledged that he, Jason, had been slapping his younger brother, and when Mr. Clifton attempted to stop Jason, J ason ran from him. Jason also testified tha t, on anot her occasion, Mr. Clifton spanked him with a yardstick, breaking it in half. Jason acknowledged that Father disciplines the boys by spanking them with a belt. Mr. Clifton also testified about these events. He testified that he did not kick Jason down the steps. He said that he looked out the window and “Jason had one of his brothers up in the corner on the deck kicking him like you’d punt a footba ll.” When Mr. C lifton came out to stop the altercation, that Jason ran from him and tripped going down the stairs to the d eck. Mr. Clifton acknowledged spanking Jason with a ya

rdstick but said tha

t he is a transplan

t patient and must limi t his physical activities.

Father testified that he was involved at the children’s school an d helped them with the ir homework. The principal at the b oys’ school, Patty Evans, testified that she saw Father daily and that he regularly attended meetings reg arding the children. Ms. Evans said that the b oys’ grades

were usually go

od and that their a

tt endance was av erage. Both Ms. Evans and the boys’ special education teacher testified that Father was an involved, supportive parent and that the boys seemed happy to see him. In her testimony, Mother acknowledg ed that “when [the children’s] daddy’s sober, I don’t doubt that he’s a good father.”

At the hearing, th

ere was also test

imony on both

parties’ allegations regarding child support arrearage s, as well as Father’s income. Father testified that he is self-employed, doing painting and remodelin g. During Father’s direct examination, the trial judge q uestione d him regarding his income:

By Mr. Cannon [at

torney for Fath er]:

Q. What is your gross annual income? A. I haven’t had – being self-employed I haven’t re all y h ad a gross because I’m getting started. Since I filed taxes it was almost $10,000 last year and the yea

r before also. Q. That’s $10,000 that you actually made? A. A year, ri

ght. Q. Over and above y our cost and expens

es? A. Right.-6-

THE COURT: That’s r

idiculous. THE WITNESS: Tha

t’s what it is. THE COURT: Then I can impute $25,000. * * * THE COURT: He does

n’t keep record

s? THE WITNESS: I don’t have records. I f iled – it was about $10,000. THE COURT: That’s what you filed on but thatdoesn’t mean that’s what you make. THE WITNESS: That’s what I made. THE COURT: Wait a minute. Y ou don’t want me to

think that you are not

a credible witness because here you have three children that you have supported and paid rent and done all this stuff – THE WITN E SS: I have worked for the landlord and he knocks my re nt off and I didn’t file that. THE CO URT: W ill y ou be quiet and le t me ma ke a s tate ment[ ?] THE WITN ESS : Ok ay. THE COURT: If you don’t s how that you have sufficient income to support the children, then we might

as well stop this right now. And if you’re going to tell me all you make

is $10,000, t hen we might as w ell stop the case r

ight now becaus

e you’re not – you’re not – y ou’re not financially able to care for three childre n. THE WITNESS: Well, I didn’t consider th

e rent that I’ m not payi ng because he – I pay 650 a

month for my rent. I do – I pa int an apartment for him and he’ll knock

a mo nth – that pays my rent. He owns like 25 houses and duplexes. Ever y time I paint one, he knocks off – THE COURT: Give me a straight answer on your income, sir. Mr. Cannon, did you go over – this is ve

ry crucia l – THE WITNESS: I’d say 25,000 a y ear. THE COURT: Sir, yo

u need to be quiet w

hil e t he Court’s talking. That’s part of your pro ble m he re. Y ou d on’ t re spe ct t hos e th at t ry to hel p you out in a ny wa y. Now, as his lawyer, I want y ou [Mr. Cannon] to develop his finances here, because if he’s going to te

ll me he makes on 10,

000 a year

, I cannot ves

tcustody of these children ba

ck with him.

After the hearing, the t

rial court o

bserved that, at the time of the January 1995 order transferringcustody from Mother to Father,had the trial court known the ci rcumstances, it w

ould have been “very hesitant about changing custody” and found that the consent order in January 1995 “was probably a mistake.” She faulted Mother for agree ing to c han ge cu sto dy, knowing of Father’s drinking habits, instead of having the child support provision of the original divorce decree enforced. Citing Father’s exce ssi ve drinking, use of drugs, DUI arrests, foul langua ge and disrespectful behavior, the trial court

awarded custody to Mother. Father was ordered to attend parenting classes for four mo nths. He also was enjoined from drinking alcohol while he has the children, from transporting the children in a c ar while under the influence of alcohol or any other intoxicant, and from using foul or disrespectful language in the children’s presence. Mother w as awarded

$127.62 per week in child suppo

rt. As to the past arrearages, the trial court found that Mother owed Father-7-

$4,740 in child support arrearages, and Father owed Mother $5,287.62 in child support ar rearages. Con seq uen tly, the offset sum of $547.62 was awa rded to Mothe r. From this order, Father now appeals.

On appeal, Father

raises three pr

incipal issues.He argues fir st that the trial court erred when it considered cir

cumstances prior

to the 1995 agre

ed order in

deciding to grant custody to Mother. Second, Father contends that the trial court erred in findin g a sufficient mate rial change in circumstances to j ust ify t he m odi fic ati on o f th e agr eed o rder and awar d cu sto dy to Mot her. Last ly, Father argues that the

trial court misca

lculated his

annual income, resulting in an unreasonab ly high award of child support.

As in all child custody

cases, we revie

w the trial court’ s decisions de novo upon the record beforethis Court, accompa nied by a pr

esumption of corr

ectnessin the trial court’s factualfindings. See Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984); Whitaker v. Whitaker , 957 S.W.2d 834, 838 (Tenn. Ct. App. 1997). In child custody cases, the welfa re and best interests of the children are the paramount concerns. Whitaker , 957 S.W.2d at 837; Tenn. Code Ann. § 36-6-106 (1996). The determination of the childre n’s best interests must turn on the particular facts of each case. See Taylor v. Taylor
, 849 S.W.2d 319, 326 (Tenn. 1993); In re Parsons , 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995).

Father’s first

argument is based upon the doctrine of res judicata . He argues tha t res judicata should bar the trial court from considering any of the circumstanc es surrounding the January 1995 agreed order changing custody to Father, and pointsto statements by the trial judge characterizing the agreed order as a “mistake.”

When an order is issued

granting custody of children to one parent over the other, that decree is res judicata

and is conclusive as to the issues in question at the time the order is issued. See Dodd

v. Dodd , 737 S.W.2d 2 86, 290 (Te nn. Ct. App. 1987), appealed on other grounds after remand
, 1991 WL 10970 (Tenn.

Ct. App. Feb. 5, 199 1); Wal ker v. Walk

er , 656 S.W.2d 11, 16 (Te nn. Ct. App. 1983). A decree granting custody, then, should not be d isturbe d “unless some new fact has

occ urred which has altered the circumstances in a material way so that the we lfare o f the chil d requires a change in custody.” Dodd , 737 S.W.2d at 290.

The doctrine of res judica ta is a principle of cla im preclusion that p

romotes finality

in litigation. See Lien v. Couch , 993 S.W.2d 53, 55 (Tenn. Ct. App. 1998). Res ju dica ta bars “a second suit betwe

en the same

parties . . . on the same cause of action with respect to all the issues which wer e or could have been litigated in the former suit.” Id. at 56. It does not prohibi t “reexamination of the same questionbetweenthe same parties when the facts have changed or new facts have occurred that have altered the parties’ legal rights and relations.” Id. The doctrine of res judicata is not applicable in this case to bar the trial court from considering the facts surrounding the January 1995 a greed o rder. In her petition, Mother alleged a material change in circumstances which warranted a change in custody. In orde r to make this determination, it was necessary for the tr ial court to ascertain the circumstances surrounding the January 1995 order, including Father’s refusal-8-

to pay child

support under the original decree. Thus, it is a “reexamination of the same question” in light of new facts. See id. This issue is without m erit.

Father next argues that there was not a material chan

ge in circumstances sufficient to warrant

a change in custo

dy. Father

contends that the trial court punished him for his drunk driving by awarding custody to Mother, and that it was required to credit his testimony that he stopped drinking in May 1999, since this testimony was unrefuted.

In Tennessee, there is a strong preference for maintaining continuity in a chi ld’s life by preserving an initial custody order and not moving the child from one parent to the other

. See Placenciav. Placencia , 3 S.W.3d 497, 503 (Tenn. Ct. App. 1999). Howev er, c ust ody can be changed upon a showing that

there has been a material change in circumstances. See id. at 499; Massengalev. Massengale , 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995); Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995). The change in circumstances must be such that the welfare of the child is directly affected. See Massengale , 915 S.W. 2d at819 (citin g Dailey v. Dailey , 635 S.W.2d 391, 393 (Tenn. Ct. App. 1981)). Further, the change in circumstances must present a risk o f “substantial harm” to the child in order to justify

modification of the

original c

ustody order. See Wall
, 907 S.W.2d at 834. The court should only

consider the inte

rests of the child, and it should not revoke a custody order to punish a parent for wrong doing. See id.

In this case, there

was ample eviden

ce of a materia

l c h ange in circums

tances sufficie

nt to justify a change in custody. The evidence showed that, since the January 1995 consent order, Father hadusedcocaine, called the children demeaning names, undermined Mother’s visitation by sending her on “wild goose chases,” regularly used vile a nd profane language in the children’s presence, made coarse sexual remarks in their presence, regularly became intoxicated while the c hildren were in his care, drove intoxicated wi th the children in h

is car, and resis

ted arrest for d

riving while intoxicated. In the face of such evidence, for Father to ar guethat the trial court was required to leave the children in his custody, because his testimony that he had c hangedhis ways was “unrefuted,” defies common sense. His promises of reform ring hollow when viewed in light of a course of conduct demonstra

ting persistent d

isregard of his

obligation to act

in his children’s b

est interest.

Father argues next that, even a ssuming a material ch ange in circumstances, changing custody

was not in the best interest of the children. See, e. g., Wil liams v. William

s , No. 01A01-9610-CV00468 at **8-**9 (Tenn.

Ct. App. May 23, 1997) . He points to evide nce that Mr. Clifto

n physically abusedthe boys by kicking Jason and spanking the boys with a y ardstick. He also notes testimony from the school principal and the boys’ teacher that Father is an involved and supportive parent. As acknowledged

by Mother in her testimony, Father may be a good parent when he is sober. This does notoutweigh themany instanc es in which Father demonstrated flagrant disregard for the well-be ing of his children. More

over, the eviden

ce regarding

the alleged ab

use by Mo

ther’s husb and was disputed. The trial court a pparently c

redited Mr. Clifton ’s explanation of th e events, finding that he had“not in the past done anything that would be detrimental to these children. .. .” The trial cou rt, of course, is in the best position to determine the credibility of the witnesses. See Collins v. Howmet2 In response to Father’s assertion that he could not afford health insurance for his children, the trial judge observed that he came to court wearing expensive gold jewelry

.
-9- Corp.
, 970 S.W.2d 941, 943 (Tenn. 1998). Consequently, we find no error in the trial court’ s decision to award custody to Mother.

Father’s l ast

contention on appeal is that the trial court erred in calculating his income, resulting in an unreasonably high award of child support. Father a rgues that the trial court forced him to testify to an income higher than w hat he actually

makes. He contends that the trial court forced him to testify

to an income of $25 ,000 per ye ar, when in fact

that is the amount of

his gross receipts for his pai nting and rem odeling business. He a sserts that he was forced to testify to the higher level of income by the

trial court’s threat to take custody of the children away from him. He argues that this was an abus e of d iscretion by the trial judge a

nd demonstrates th

e bias she held against him from the beginning of the custody hearing. I ndeed, the trial judge was openly skeptical of Fath er’s tes tim ony, particularly his assertion that he supported himself and the parties’ children

on only $10,000 a

year from

his self-employ

ment. 2 It is the trial judge’s job to ev aluate the witnesses’ credibility. In this case, the trial judge apparently imputed an income of about $25,000
to Father, because she ultimately set his child support obligation at $ 553 per month. The C hild SupportGuidelines publishe d by the Tenn

essee Departme

nt of Human Servic

es indicate that a

gross income of $25,761 p

er year sh ould be imputed if th

e person obliga

ted to pay ch

ild support fails to produce ev idence of his or her income and there is no other credible evidence of the obligor’s income or income potential. See Rules of Tenn. De pt. of Human S ervices , Chap . 1240-2- 4.03(3)(e). The record does not reflect that Father provided any evidence, other than his own tes tim ony, that his income was lower than$25,000. Under these circumstances, we cannot conclude that the trial judge e

rred in imputing $

25,000 of gross

annual income to Father. The decision of the trial court is affirmed.

The decision of the trial court is affirmed. Costs are assessed against Appellant, Carlos Acosta-Delgado, and his surety, for which execution may issue if necessary.

___________________________________ HOLLY KIRBY L

ILLARD, JUDGE