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.

LISA MARIE GRIM, ) 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:

Phillip M. 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 a post-divorce dispute over the custody of two children.

 When the parties were divorced in 1994 in the Chancery Court for Rutherford

County, the father agreed 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

children to 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 trial court’s order awarding custody of the children to the father.

I. 

Lisa M. Grim and 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 in February 1994 and later executed a marital dissolution

agreement providing that Ms. Grim would receive sole custody of the children and

that Mr. McCain would pay $461.44 per month in child support. Ms. Grim filed her

complaint for divorce in the Chancery Court for Rutherford County on the day after

Mr. McCain executed the marital dissolution 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. Grim and the two children continued to live in the family home in Smyrna which

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she received under the terms of the marital dissolution agreement.

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

member of the United States Army assigned to the Golden Knights Parachute Team.

 He had been married previously 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. Grim ended her full-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 in Fayetteville, 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

employment opportunities and to minimize the 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 them physical 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.

Grim planned to 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 trial court conducted a bench trial on 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

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(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

of the 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 fit than Ms. Grim to 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 that no material change in circumstances 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

parent must demonstrate 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 that there has been a material change in the 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;

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Dantzler 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,

not the 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) that affect the 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 in this 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

trigger a reconsideration of an existing custody arrangement. See Arnold v. Arnold,

774 S.W.2d 613, 618 (Tenn. Ct. App. 1989).

B.

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

Even though a parent’s remarriage will not, 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 if these 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

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alter an existing custody arrangement may trigger a fresh comparative consideration

of the parents’ fitness by demonstrating that the 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 when it rested 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, while proper during the comparative fitness

stage of the analysis, would have been inappropriate when determining whether there

had been a material 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.

All these circumstances, taken together, do not amount 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, it did 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

material way.

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

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

Carolina. The trial court’s reliance on these moves is misplaced. Moving, in and of

itself, is not a change of circumstances that warrants modifying an existing custody

arrangement. See Taylor v. Taylor, 849 S.W.2d at 332; Adelsperger v. Adelsperger,

970 S.W.2d at 486 n.2.

As with the proof regarding the children’s relationship with their step-parents,

the trial court compared the Grim household with the McCain household while

determining whether the Grims’ contemplated move to North Carolina was 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 that will shield children 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 that the Grims’ decision to move from Smyrna to Nashville or

their contemplated move to Fayetteville, North Carolina will have a materially adverse

effect on the children. The record also lacks evidence that the Grims’ decision to

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move from Smyrna to Nashville or from Nashville to North Carolina were motivated

by any sort of improper motive.4

D.

The Lifestyles of the Parties

The final factual basis for the trial court’s finding that there had been a material

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

whether any aspect of their current “lifestyle” was adversely affecting the children in

a material way. The trial court effectively answered this question in the negative

when it found that both 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. Grim helps with the 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

children and Mr. Grim appear to have regard and affection for each 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

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any way.

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 earlier decision to award Ms. Grim custody 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 that the 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

children from Ms. Grim to Mr. McCain and remand the case to the trial court for the

entry of an order denying Mr. McCain’s request for a change of custody. We tax

the costs of this appeal to Mr. McCain for which execution, if necessary, may issue.

______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

__________________________________

BEN H. CANTRELL, JUDGE

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