# FILED

May 25, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk ERIC G. LAUTENBACH, ) ) Plaintiff/Appellee, ) Appeal Nos. ) 01-A-01-9710-CH- 00595 v. ) 01-A-01-9703-CH- 00098 ) ) Cheatham Chancery ROBBIN L. LAUTENBACH, ) No. 7783 ) Defendant/Appel

lant. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR CHEATHAM COUNTY

AT ASHLAND CITY, TENNESSEE
THE HONORABLE LEONARD M. MARTIN, CHANCELLOR

MARY ANNE KEVIL Bellevue Professional Center 237 Old Hickory

Blvd., Suite 201 Nashville, Tennessee 37221-1353 ATTORNEY FOR PLAINTIFF/APPELLEE

CHARLES C. MORROW Charles C. Morrow & Associates 3221 Nolensville Road, Suite 102 Nashville, Tennessee 37211 ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

WALTER W. BUSSART, SPECIAL JUDGE-2- 

# OPINION

This case involves a post-divorce custody decision in which the lower court changed custody of a minor child f

rom he r mo ther to her father

. The child's mother has appe

aled raising

three issues. W

e affirm the

decision of the trial court with regard to each issue.

I.

Eric Lautenbach ("the

Father") and Robbi

n Lautenbach ("the

Mother")
were divorced in 1994 at whi ch time they

entered a Marita

l Dissolutio n Agreement

("MDA") which

provided that they

have joint custody

of their minor child, Amanda ("the child"), wit h the Mother being the primary c ustodian. However, the divorce decree and MDA were silent as to visitation, and in 19 96, the Mother filed a peti

tion requesting the cou

rt to set definite vis

itation for the Father

. The Father then filed a counter petition to ch

ange custody of th

e child to him. In addition, the Fat her moved for temporary visitatio n.

At the close of

the hearing, both attorneys submitted proposed orders. The order submitte

d by the Mother's attorney

was filed by th

e court on June 21 1996 ("the June 1996 Order"). However, on September 6, 1996, the court filed
a second order nunc pr

o tunc which was the order originally submitted by

the Father ("the September 1996 Order"). Thereafter, the court issued an Order of Correction

in which it stated that the latter order replaced the form

er June 1996 Order, since the form

er was entered in

error . In this latter Sept ember 1996 Order, which was entitled "Temporary Order," the court direc ted that the

Mother have temporary

custody of the chi

ld and set definite visitation for the Father. The order stated that " this case shall be re viewed a fter J uly 12, 1996, upon motion of either party."

After the Mother filed a M

otion to Amend T

empor ary Order on Visitation and for Increase

in Child Support, a hea

ring was held and custody was modified. T h is order ("the November 1996 Order"), which was also entitled "Temporary

Order," changed custody such that the Father

had primary

custody-3-

of the child with the

parties continuing to h

ave joint legal custody. The order set the visitation with the Mo ther at every weekend except the fifth successive weekend. The c

ourt reserved the i ssue of child support.

Finall y, the Mother filed a p etition to return the

custody of the chi

ld to her. After a hearing, the court entered an order on June 6, 1997 ("the June

1997 Order") finding that the

Father should be aw

arded sole custody

of the child, that visitation as previously ord

ered should rem

ain in force, and t

hat the Mothe r shouldhave a minimum of four weeks extended sum mer visitation. In addit

ion, the court ordered that the Mother should pay $200 per month chil d support to the Father. The court decree d that the June 199 7 Order shal l be final in all of it s terms.

II.

In her first issue, t

he Mother contends tha

t the trial cour

t erred in entering the September

1996 O r der some 77 days after the entry of the initial June 1996 Order. The

Mother's position is t

hat the cour

t did not have the authority to do this since the first order became final 30 days af

ter it was signed when no appeal was taken fro m this order. She maintains that the order can o

nly be c hanged by

either party's petition to the court for a chang e in custody, a process which gives the other party time to prepar

e and respond.
First, we point out that by issuing the September

1996 Order, the

court
was not changing its opinion but rather conform

ing its orderto reflect what it had intended original ly. As s tated, the court e ntered an Order o

f Correction clarifying that the June 199 6 Order was ente red in error. Ru

le 60.01 of the Tennessee Rules of Civil Proc edure provides that " [c]lerical m istakes in judgments , orders or other par ts of the record, a

nd errors therein arising f ro m oversight or omissions , may be corre cted by the court at any time on its own initiative or on motion of an

y party and a

fter such notice,

if any, as the

cour t order s." (emphas is added). As the c ourt stated prior to t

he enactment of

the rules: All courts have th e right, a nd it is their duty, to make their-4- records speak the t rut h, and a court, therefore, in a proper case, of its o wn moti on, may or der a nunc pro tunc en

try to be made; . . . And the lapse of time bet wee n the announcement

of judgment and th

e making of this motion is of no importance; that which is im portant is, that the

proof be clear and convincing that the

judgment whic

h it is sought to have entered is the o ne pronounced in t he cause. McCow n v. Quillin , 48 Tenn. App. 162, 175, 344 S.W .2d 576, 582 (1960 ). From the trial court's Order of Correction, it is clear that the court's error in signing the June 1996 Order arose from oversight or omission

. See Pennington
v. Pennington , 592 S.W.2d 576 , 578 (Tenn.App. 1979). Therefor e, pursuant to Rule 60.01, the court ha

d the author

ity to i ssue the Order of C orrection and to enter the September 1996 Order nunc pro tunc.

In actuality, the

two orders are a

lmost identical in substance. One order provides that the Father enjoy his one-full-weeken

d-per-two-m

onths visit with the child during the even m onths beginning in June of 1996 and that the

Mother enjoy hers during the odd months beginning in July, and the otherorder provides for the con verse. H owever, it seems t hat bot h propo sed ord ers embod y asingular ruling by the trial cour

t. For that reason, the M

other's insinuation th

at she was not given time to pre

pare and respond bef

ore this change is

non-sensi cal. The court was not re-evalua

ting its decision and

therefore did not ne

ed new proof or argument on beha

lf of the parties.

Finall y, the Mother challeng ed t he timing of the cour t's corrective action asserting that the order became final after 30 days. Rule

60.01 provides that the court may correct errors "at any time." Therefore, the court was justified in entering the S eptember 1996 Order some

77 days following

the erroneous entry of the initial order.

III.
Next, we address the Mother's contention that the trial court erred in changing the custody without showing that the Mother was an unfit and improper personto have custody of the child. In the N

ovember 1996

Order wh ich-5-

modified custody, the court summarily stated that "the tem porar y order of September

6, 1996 should be mo

dified." In the June

1997 Order, the

court stated only that custody should remain with the Father. Howe ver, the court's pronouncements

from the bench indicate that it made the requisite finding for a modification of custo dy.

Itwas not necessary

for the court to find

that the Mother wa

s an unfit and improper mother. Rather, courts a re empowere

d to modify cust

ody "as the exigencies of the case may require." Tenn. Code Ann. § 36-6-101(a)(1)(1991). The party seeking to change cus tody must show "(1) that the child's circumstances have materia lly change d in a way that could not have been reasonably

foreseen at the time of the original custody deci sion, see Smith v. Haase , 521 S.W.2 d 4 9, 50 (Tenn.1975); McDaniel v. McDaniel , 743 S.W.2d [167, 169 (Tenn.App.1987) ], and (2) that t he child's best

interests will be served by changing the existing c ustody arrangem

ent ." Adelsperger v. Adelsperg er , 970 S .W .2d 482, 485 (Tenn. A pp.1997). "'Chang

ed circumstanc

es' includes any materialchange of circum-stances affecting the welfare of t he chil d, including
new factors or change

d conditions which coul

d not be anticipated by

the custody order." Blair v. Badenhope , 940 S.W.2d 57 5, 57 6 (Tenn.App.1996 ) (citing Dalton v. Dalton , 858 S.W.2d 324 (Tenn.App.1993)).

Review of findings of factin childcustody cases "s hall be de novo upon the record o f the trial court, accom panied by a presu

mption of the correctnes s of the finding, unless the pr eponderance of the evidence is otherw ise." Tenn. R. App. P. 13(d ); Hass v. Knighton , 676 S.W.2d 554 , 555 (Tenn.1984). In the case at bar, the prior custody ar

rangement as set out in the MDA was th at the p arties had joint custody with the Mother as the primary custodian. We find that the evidence does not preponderate against a finding that circumstances changed such that the best interests of Amanda Lautenbach were served by modifying the custody arrangem en t s o the Father was the primary custodian. Both parents were custodians; the court just changed the primary custodian.

At the Novembe

r 1996 hearing, the Mother testified that she was-6-

having problems with t

he child. She could not make the child listen, obey , take directions or "settle down" to d o her homework. The Mother said that her own mother, Mary Hay

nes, assisted her i

n helping the child wit

h homework bec ause the child minded Ms. Ha y nes better. At the hearing Ms. Hay

nes testified that, after being absent from

the child for six we

eks, she noticed a bi

g difference in the child: the child "pulls tantrums, she pouts, she won't

mind. She sits and she'll grab the door -- go t hrough the room a

nd slam the door.She'll tear up things in her room

and she comes back out and she's sorry, but then she starts all
overagain. . . . She d o[es]n't mi nd her mother,

she doesn't mind

me." Ms. Haynes stated that this behavior was particularly bad when the child returned from visit ing her Father. The Father testified that the child exhibited none o f these behavioral problems whenshe was in hiscustody. He claimed that since the child 's bir th, th e chil d's Mo ther h as had probl ems controlling and disciplining her and that the Mother has consistently requested that he control and discipl

ine her.

In addition, there was proof that the child was no

t doing well in school. The Father testified that the Mother rea ds at a fourth grade

level and that she has difficulty comprehending many things. H e expre ssed his concern that the Motherwas "trying to t

each [ the child ] to read and wr ite and do mathem

atics, when she has a real hard tim e doing it herself. " The Mother indica ted that she
was able to give adequate help to the child with her

homework. H

owever, it is apparent that the judge was concerned

about the Mother's a

bility to help the c

hild in this area. It was after this hearing that the court issued the Temporary Order changing custody

to the Father. At t

he close of the hear

ing, the court m

ade the following statem

ent: I'm simply trying to find something that will work better for the child than what t

he two of you ar

e telling me w

ill work. Neither one of you are te lling me that this

child is doing well and this child is happ y, you're both havi ng this problem. So, let' s try someth

ing different; that

something different is going to be that the child is fixing to go live with her father.

At th e May 1997 hearing held upon the Mother's petition to ret ur n-7-

custody to her, the

Mother testified th

at when the child was with the Father , she
was not given breakfast n or was she allowe

d to talk to the Mother on t he phone. T he c hild verified that she did not have breakfa

st every m

orning while living withher father. Th

e Father said that h

e and the child ate breakfa

stdaily until the past few weeks when

the child began to stay

in bed causing them to r un late. When this happened, th e Father sent extra snac ks to school with t he child.

The Father testified and the Mother admi tted that she would not

talk to the Father about the child's behavioral problems. Despite the fact that the child
was having problems i

n school and had been dia gnosed with Attention D eficit H yp eractive

Disorder, the Mot

her was uninterest

ed in the Father's plan to investigate the possibi

lity of enrolling the child in

a private school. She stated that she did not want to hea r anything about th

is school. The Mother

was candid about the fact that

she had been emotion

al in front of the chi

ld with regard to the child's change of cu stody to her Father and th at this had upset t he child.

There was testimony

from both

the child's grandmother, Ms. Haynes, and a friend

of the Moth er's t hat th e chil d had a brui se whi ch she claime d came from being spanked by the Father. The Father denie d having bruised the

child in this way. Re

garding this matt

er, the child's te stimony

was ambiguous.While she asserted that her

Father spanked her

when he was drinkin

g, she told the court that her father punishes herby putting her in time-out. Moreover, she testified that a bruise on her arm fr om falling off t

he swing set was he

r first bruise. T

he depo- sit ion of Todd Love, a so cial counselor from

DCS, was ente

red into evidence. After the Mother filed her comp

laint, Mr. Love

interviewed the c

hild, concluded that no ab use had taken place, and closed the investigation. It was clear that the child's desi

re was to live

withher Mother. W

hen asked the reason for her preference, she stated that she has more fun there.
Following the June 1997 hearing he ld u pon the Mother's petition to return the custody

of the child to her,

the court stated its f

inding as follows: The court finds that as between these two paren t s that the best interest of this chil d is served by lea

ving the child withthe father. This father seems to be, b ased upon the testimony in the Court and obser

vation of the witn

ess, this-8- parent is better equipped to d

o a better job of pro viding the thi ngs this child needs. T here is no question in th

e Court' s mind about the love the m

other has for the ch

ild. . . . The problem is [the child] is not doing well under the m oth er's full time super

vision. And the father, it seems to the court, has a much better, more reasonab

le approach to the w

elfare of this chil

d. The court then entered a final decree aw arding sole custody

of the child to the Father.

T he evidence supports a f inding that circum

stances had mat

erially changed for this child. She was not doing well in school, either aca demically or behavi orally. In addition, she was exhibiting poor behavior in the company

of her mother and maternal grandmother. There was proof that the Father was more capable of controlling the

child as well as of

assisting her with he

r school work. In addition, the eviden

ce indicated that the

Father was m

ore wil l ing to address the ch ild's diagnoses of Attention Deficit Hyperactive Disorder and her
c onsequential potential need for a different school. In light of these changed circumstance s, the court made the determina

tion that the best inter

ests of the childwould be best served by placing her in

the custody of

her father. We find that the evidence doe s not preponderate a gainst this conclusion.

IV.

Finall y, the Mother argues th at the trial court er red in changing the custody of the child follo

wing a proceeding that wa s held upon a motion to modify visitation. A month after the September 1996 Order was entere d , the Motherfiled a motion to

modify visit

ation and increase child su pport. Without having filed any respo

ns e to the Mother's m

otion, the Father came to the November

21, 1996 hearing. The Mo th er claims that there was no m

ention of changing custody and that she was not prepared to defend on the custody issue.

We agree that the record indicates that there was no

formal notice that custody would be an issue at the Nove

mber 21, 1996

hearing. Nor wa

s custody the reason the parties

were initially

in court. When t

he judge asked, "[w]hat

are-9-

we here on?", the M other' s attorney expressed his client's desire to modify visitation and increase child supp ort. Th e Father's attor ney requested th

at the childbe appointed a guardi an and then stated that the child had been exp osed to
some si tuations: "we don't k now whether they

are significant en

ough for the court to have another full hearing on the issue of primary custody."

However, during the

November 1996 hearing, when asked by the court what it should do, the Fat her sta ted that if the child w ere with him du

ring the week, he could help

her study. Inde

ed, by the evidence the parties presented at this hearing, it is clea

r that, once into the

hearing , they became aware that custody was the issue and put on evidenc e of the child's cir cumstances. Furthermore, as outlined above, the trial court did not make

its modificatio

n of custody final until after the s econd May 1997 hearing which w as held for the sole purpose of determining custody. Therefore, in light of the par ticular circumstances of this case, we find that the Mother had adequa

te opportunity to prepare and present evidence on the custody issue.

We are aware that

a parent's right to

custody of his or h

er child is protected by the United St ates Constitution. U.S. Const. amend. XIV . A parent must have notice of the is sues which the court will decide at

hearings involving his or her child in order t o adduce evidence. Thorne v. Thorne , 344 So.2d 165 (Ala.Civ.App.1977). However, here the court never granted the Moth er sole, permanent

custody. Inste

ad, there were

a series of

hearing s where custody remained an issuefor review. We do not believe t hat, under these ci

rcumstances, the Mother's constit

utional right was viol

ated.

V.

The decision

of the trial court is aff

irmed in all re spects. Pursuant t o Rule 60.01, the court ha

d the authority to issu e its Order of Correction and to enter its September

1996 O rd er nunc pro tunc. F urthermore,

we uphold the court's subse quent decision to modify custody of the child to the Father based upon the two he arings that took place. The costs of appeal should be divided equally between the Moth er and the Father.-10- ___ _______________________ _______ _ WALTER W. BUSSART, SPECIAL JUDGE

CONCUR:

__________________________________ HENRY F. TODD, PRE

S. JUDGE, M.S.

__________________________________ BEN H. CANTRELL, JUDGE