# FILED

October 15, 1999 Cecil Crowson, Jr. Appellate Court Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

TIMOTHY SCOTT McCAIN, ) ) Plaintiff/Appellee, ) Rutherford Chancery ) No. 94DR-921 VS. ) ) Appeal No. LISAMARIEGRIM, ) 01A01-9711-CH-00634 ) Defendant/Appellant. )



### APPEAL FROM THE CHANCERY COURT FOR RUTHERFORD COUNTY AT MURFREESBORO, TENNESSEE THE HONORABLE ROBERT E. CORLEW, III, CHANCELLOR

For Plaintiff/Appellee : For Defendant/Appellant : PhillipM. George Charles G. Ward Smyrna, Tennessee Murfreesboro, Tennessee

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## REVERSED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

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## O P I N I O N

This appeal presents apost-divorce dispute over the custody of two children. When the parties were divorced in 1994 in the Chancery Court for Rutherford County, the fatheragreed that the mother should have sole custody of the children. Three years later, after learning that the mother and her new husband planned to
move to North Carolina, the father petitioned for a change of custody. Following a bench trial, the trial court concluded that there had been a material change in the children ’ s circumstances and that the father was comparatively more fit to have custody of the children. Accordingly, the trial court changed the custody of the childrento the father. The mother asserts on this appeal that the evidence does not support the trial court ’ s decision to change custody. We agree and, therefore,

reverse the trialcourt ’ s orderawarding custody of the childrento the father.

I.

LisaM. Grimand Timothy S. McCain were married in June 1986 in Davidson County. Ms. Grim, who was on active duty with the United States Army, was twenty years old at the time, and Mr. McCain was then twenty-two years old. Ms. Grim later transferred to the Tennessee National Guard, and Mr. McCain became employed as an air traffic controller at the Smyrna airport. They had two children together, Matthew who was born in February 1988 and Jessica who was born in January 1991. The parties separated inFebruary 1994 and laterexecuted amarital dissolution agreement providing that Ms. Grim would receive sole custody of the children and thatMr. McCain wouldpay $461.44 permonth inchild support. Ms. Grim filed her complaintfordivorce inthe Chancery Courtfor Rutherford County on the day after Mr. McCain executed the maritaldissolution agreement. In November 1994, the trial court entered an order granting Ms. Grim a divorce on the ground of irreconcilable differences and approving the parties ’ marital dissolution agreement. Accordingly, Ms. Grimand the two childrencontinued to liveinthe family home in Smyrna which

Page 3she receivedunderthe terms of the maritaldissolution agreement.

Ms. Grim married Darren Grim in September 1995. Mr. Grim is a career memberof

the UnitedStates Army assigned to the Golden Knights Parachute Team. Hehad been marriedpreviously and had two children from this marriage who lived in North Carolina. In May 1996, Mr. McCain married Sherry McCain, an elementary school teacher in Smyrna. Sherry McCain had been married before and had custody of two children from the previous marriage. The McCains, like the Grims, continued to live in Smyrna; however, in December 1996, the Grims moved to Nashville.

Ms. Grimended herfull-time employment with the National Guard in order to be more available to her children. Later, in 1997, Mr. Grim learned that had been transferred to Fort Bragg inFayetteville, North Carolina and that he was expected to report for duty there on December 1, 1997. The Grims decided to move to North Carolina in October 1997 in order to enable Ms. Grim to pursue some part-time employmentopportunities and to minimizethe disruption to the children ’ s schooling. Soon after Ms. Grim informed Mr. McCain of the planned move, Mr. McCain petitioned the trial court to change the existing custody arrangement because Mr. Grim “ has been abusive toward the children by engaging in activities that have caused themphysical and mental harm ” and because the Grims were “ threatening to
move the children again out of state to North Carolina. ” Ms. Grim responded by denying that Mr. Grim had abused the children and by admitting that she and Mr. Grimplannedto move to North Carolina. She also alleged that Mr. McCain had not been paying child support and that the amount of Mr. McCain ’ s child support payments should be increased because his income had substantially increased.

The trialcourt conducted abench trialon September 30, 1997. Following the conclusion of the proof, the trial court announced its conclusion that the parties ’ circumstances had changed significantly following the entry of the initial custody decree. In the court ’ s estimation, this change was brought about “ collectively ” by

Page 4(1) the remarriage of both parents, (2) the “ interactions ” of the children with their

step-parents, (3) Ms. Grim ’ s moves to Nashville and North Carolina during the children ’ s school year, and (4) the circumstances surrounding the “ lifestyles of each ofthe parties and their new families. ” After concluding that both step-parents and both homes were satisfactory, the trial court decided that Mr. McCain was comparatively more fitthanMs. Grimto have custody of the children and, therefore, that Mr. McCain should receive sole custody of the children. Ms. Grim has appealed.

II.

Ms. Grim asserts that the evidence preponderates against the trial court ’ s conclusion that there had been a material change in circumstances following the divorce and that the children ’ s interests would be best served by awarding custody to Mr. McCain. We agree thatno materialchange incircumstances has occurred.

Children have an ongoing need for continuity and stability in their parental relationships. See Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997); Hill v. Robbins , 859 S.W.2d 355, 358-59 (Tenn. Ct. App. 1993). 1 Accordingly, parents seeking alteration of an existing custody arrangement must
overcome a strong presumption in favor of the original custody award. See Taylor

v. Taylor , 849 S.W.2d 319, 332 (Tenn. 1993). To overcome this presumption, the parentmustdemonstrate first that the child ’ s circumstances have changed materially and second, that the child ’ s interests will be served best by modifying the existing custody arrangement. See Adelsperger v. Adelsperger , 970 S.W.2d at 485. The courts should not engage in a best interests analysis without first satisfying themselves thatthere has been amaterialchange inthe child ’ s circumstances.

Some ambiguity exists concerning the meaning of “ material change in circumstances. ” There are no hard and fast rules for determining when a change of circumstances will be deemed material. See Taylor v. Taylor , 849 S.W.2d at 327;

Page 5Dantzler v. Dantzler , 665 S.W.2d 385, 387 (Tenn. Ct. App. 1983). As a general

matter, a material change of circumstances must involve the child ’ s circumstances, notthe circumstances of either or both of the parents. It must also involve facts or circumstances (1) that arose after the entry of the custody order sought to be modified, see Turner v. Turner , 776 S.W.2d 88, 90 (Tenn. Ct. App. 1988), (2) that

were not known or reasonably anticipated when the underlying decree was entered, and(3) thataffectthe child ’ s well-being in some material way. See Geiger v. Boyle , No. 01A01-9809-CH-00467, 1999 WL 499733, at*3 (Tenn. Ct. App. July 16, 1999) (No Tenn. R. App. P. 11 application filed); Dalton v. Dalton , 858 S.W.2d 324, 326 (Tenn. Ct. App. 1993). Using these standards, we will now examine the four factual bases for the trial court ’ s conclusion that there had been a material change in circumstances inthis case.

A.

The Remarriage of Both Parties

The first factual basis for the trial court ’ s conclusion that there had been a material change of circumstance is that both Mr. McCain and Ms. Grim married again following their divorce. When the parties divorced in 1994, common experience indicated that they would marry again. 2 Because their remarriages were reasonably anticipated, they are not the sort of change of circumstances that will triggerareconsideration of an existing custody arrangement. See Arnold v. Arnold , 774S.W.2d 613, 618 (Tenn. Ct. App. 1989).

B. The Children ’ s “ Interactions ” with their Step-parents

Eventhough aparent ’ s remarriagewillnot, by itself, trigger a consideration of

a change of custody, the changes in the home environment brought about by a later marriage may amount to a material change of circumstances ifthese changes have a materially adverse effect on the child in some material way. See Tortorich v. Erickson , 675 S.W.2d 190, 192 (Tenn. Ct. App. 1984). Thus, a parent seeking to

Page 6alter an existing custody arrangement may trigger a fresh comparative consideration

of the parents ’ fitness by demonstrating thatthe custodial parent ’ s remarriage has or will have an adverse effect on the child. See Smithson v. Eatherly , 1999 WL 548586, at*5. We confess to having some difficulty discerning what the trial court was referring to whenitrested its conclusion that there had been a material change in the children ’ s circumstances on their “ interactions ” with their step-parents. The trial court could not have been comparing the children ’ s relationship with their step-parents because such comparisons, whileproper during the comparative fitness stage of the analysis, wouldhave been inappropriate when determining whether there hadbeen amaterial change in the children ’ s circumstances. Therefore, we can only conclude that the trial court was alluding to the “ swirly incident, ” the “ marker incident, ” and the manner in which Mr. Grim disciplined the children early in the marriage.

Allthese circumstances, takentogether, do notamount to a material change in the children ’ s circumstances because there is no evidence that they materially affected the children. 3 After hearing the proof concerning these matters, the trial court found the evidence “ favored neither party ” and that both step-parents and homes were “ satisfactory. ” The trial court also found that both step-parents cared for and were concerned about the children. While the trial court stated that the evidence “ hint[ed] at a less than perfect relationship ” between Mr. McCain and Mr. Grim, itdid not find, and the record does not contain evidence, that the relationship between the two men has affected or will affect the children ’ s circumstances in any materialway.

C.

The Moves to Nashville and North Carolina

The third factual basis for the trial court ’ s finding that there had been a material change in the children ’ s circumstances was the Grims ’ move from Smyrna

Page 7to Nashville and their contemplated move from Nashville to Fayetteville, North

Carolina. The trialcourt ’ s relianceon these moves is misplaced. Moving, in and of itself, is not a change of circumstances that warrants modifying an existing custody arrangement. See Taylorv. Taylor , 849 S.W.2d at332; Adelsperger v. Adelsperger , 970S.W.2d at486 n.2. As withthe proof regarding the children ’ s relationship with their step-parents, the trial court compared the Grim household with the McCain household while determining whetherthe Grims ’ contemplated move to North Carolinawas a material change in circumstances. The court should have determined whether Ms. Grim ’ s leaving Smyrna could reasonably have been anticipated at the time of the original custody arrangement and whether her move would materially affect the children ’ s well-being.
Custody decisions should, to the greatest extent practicable, shield children from the adverse effects of divorce and should place the children in circumstances that provide them the best chance to develop into healthy, adjusted, and productive members of society. However, it is unrealistic for courts to undertake to devise custody arrangements thatwillshieldchildren from the vicissitudes of growing up in contemporary American society, including the prospect that their family may move from familiar to new surroundings. See Yeager v. Yeager , No. 01A01-9502-CV-00029, 1995 WL 422470, at*3 (Tenn. Ct. App. July 19, 1995) (No Tenn. R. App. P. 11 application filed).

It was not unthinkable at the time of the 1994 divorce hearing that Ms. Grim might at some point move away from Smyrna. Her military background and employment created this possibility. There is no evidence in the record that the original decision to award her custody was based on her assurance that she would not move from Rutherford County at any time in the future. Likewise, the record contains no evidence thatthe Grims ’ decision to move from Smyrna to Nashville or theircontemplated move to Fayetteville, North Carolinawillhave amaterially adverse effect on the children. The record also lacks evidence that the Grims ’ decision to

Page 8move fromSmyrnato Nashville or from Nashville to North Carolina were motivated

by any sort of

impropermotive. 4

D.

The Lifestyles of the Parties

The finalfactual basis forthe trialcourt ’ s finding thatthere had been amaterial change of circumstances was its comparison of the “ lifestyles of each of the parties and their new families. ” The court should have focused on the Grims to determine whetherany aspect of their current “ lifestyle ” was adversely affecting the children in

a material way. The trial court effectively answered this question in the negative whenitfound thatboth homes and step-parents were “ satisfactory. ”

We have carefully reviewed the evidence for any indication that living in the Grim household would adversely affect the children. While the record paints a picture of different home environments and clear differences between Mr. McCain and Mr. Grim, we find no evidence to support a conclusion that the children would be harmed, physically or emotionally, if they continued to live in the Grim household. To the contrary, Mr. Grim and Ms. Grim have made the children their top priority. Ms. Grim changed her work schedule to spend more time with the children. For his part, Mr. Grimhelps withthe children ’ s homework, is active in the PTA, helps get the children ready for school, and helps cook their meals. Both parents take the children roller skating, boating, snow skiing, bike riding, and to the movies.

Mr. Grim is an active member of the military who is attached to an elite parachute unit. He appears to be an active, rugged individual who enjoys horseplay and outdoor activities. He has involved himself in the children ’ s lives, and the childrenand Mr. Grimappearto have regard and affection foreach other. The early disagreements over proper discipline between Mr. Grim and Ms. Grim have been resolved, and there is no evidence that the children have been adversely affected in

Page 9anyway.

The evidence does not support the trial court ’ s conclusion that a material change of circumstances occurred between 1994 and 1997 warranting a reconsideration of

its earlierdecision to awardMs. Grimcustody of the parties ’ two children. Accordingly, the trial court erred by comparing the fitness of the Grim household and the McCain household, and by determining thatthe children ’ s interest would be best served by altering the existing custody arrangement and awarding custody to Mr. McCain.

III.

For the reasons stated herein, we reverse the order changing custody of the childrenfromMs. Grimto Mr. McCain and remandthe case to the trial court for the entry of an order denying Mr. McCain ’ s request for a change of custody. We tax thecosts of

this appeal to Mr. McCain forwhichexecution, if necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________ HENRYF. TODD, PRESIDING JUDGE MIDDLESECTION

__________________________________ BENH. CANTRELL, JUDGE

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