# FILED
December 5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

FAIRLY HUB BARD ADEL SPERGER, ) ) Plaintiff /Appella nt, )

) ) Rutherford Chancery VS. ) No. 95D R-1285 ) ) Appeal N o. DAVID ROBE

RT ADELSPE

RGER, ) 01A01-9705- CH-00206

) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE THE HONORABLE ROBERT E. CORLEW, III, CHANCELLOR

For the Plaintiff/

Appellant : For the Defendant/Appellee : Jon S. Jab lonski Dary l M. South Nashville, Tennessee Kidwell & South Murfreesboro, Tennessee



## REVERSED AND REMANDED

WILLIAM C. KOCH, JR., JUDG E-2- 

## O P I N I O N

This appeal pr

esents a custody and visitation dispute. The parties were declared divorced i n the Chanc ery C ou rt for Rutherford County, and the wife received sole custody

of the par ties’ th ree m inor children. Six months later, the wife moved to M iss iss ipp i, an d th e fat her pet iti one d fo r a ch ang e of c ust ody. Following
abench tria

l, the tr ial court granted the

father c ustodyof the children after c oncluding thatthere had been a ma

terial c hange of

circumstances and that placing the children in the father’ s cus tody w ould be in the ir best inte rests. T he mot her asser ts on this appeal that t

he evidence d oes not suppor t the tria l court’ s decision. We agr ee and, therefor e, reve rse the j udgmen

t.

I. Fairly H. Adelsperger and David R. Adelspe rger we re m arried on

April 22, 1989, in Mississippi where Ms. Adelsper ger’s f amily made its hom e. The parties f irst lived in Indiana near

Mr. Adelsperger’s fam

ily but later decided to move because, as Mr. Adelsper

ger put it, the y wis hed to “ to get awa y fro m m y fam ily.” Despite Ms. Ade lsperger ’s proposal to return to Mississippi where her family lived, the par ties decided t o move to Murfree sboro in stead.

The parties separated in October 1995, and Ms. Adelsperger filed for divorce in the Cha

nce ry Court for Rutherford County. Mr. A delsperger became concerned during the proce eding that M s. Adels perger m ight r e turn to Missi ssippi, but Ms. Adelsperger

assured hi m that

sh e had no present intention t o move and that his visitation with the c hil dre n was important to her. In Februar y 1996, the trial court declared the partie s divorced pursu an t to Tenn. Code Ann. § 36-4-129 ( 1996) and granted Ms. Adelsperger

custody of thechildren. The order granted Mr. Adelsperger extrem elygenerous vi sitation ri ghts but did not require Ms. Ade lsperger to obtain approval of

either the

trial cour t or her hus band befor

e movi ng.-3- The divorce w as far f

rom a mica ble, and t he parties c ontinued to return to court for p ost-trial

disputes con cerning how they s hould excha

nge the chi ldren dur

in g visitation, their

responsibil ities for

providing the childr

en clothing d

uring visita

tion, and the detail s of m

id-week and teleph one visitation. They also asked the trial court to intervene

in disputes i nvolving fam ily phot ographs and

overnight

guests in their homes

. The tria

l court eventually

found eac h of the par

ties to be in contem

pt, and both of them

spent brie f periods i n jail.

Ms. Adelsperger changed jobs after the divorce when her former em

ployer was acquired by anot

her com pany. She wentto wo rk for a c ar deale rship with

the expectat ion that sh e would work normal business hours. As it turned out, she was required to work six days a week with an ir

regular d ay off

during the

week, and she
was occasionally required to work at night. This schedule interfered with her parentingresponsibil ities, a nd Ms. Adelsperger

found it dif

ficult to find help w ith the children because she had no family or other close friends in the Middle Tennessee
area. She asked

Mr. Ade lsperger

for assistance wit

h th e ch ildren on several occasions, but he was never available to help her.

Several months later, she received a job off er from a trucking company near her ho me in Mississi ppi that inc luded a highe r salary and mo re regula

r workinghours. When she attem

pted to disc uss this off

er with Mr. Adelsperger in late July 1996, Mr. Adelsper ger ref used to talk with her until he consulted hi s lawy er. In e arly August 1996, Ms. Ade lsperger

accepte d the job a

nd move d t o Mis sissippi after her lawyer informed her that s he was not

required to first obta

in the court’s permission to m ove.
Ms. Adelsper

ger’s decision to m

ove to Mississipp i sparked ne w disputes with Mr. Adelsperger. He file d a petition to change c ustody a

nd insisted on m

aintaining his weekend visitations. Ms. Adel sperger w as requir ed to drive

the childr

en from Mississippito Murfreesboro every other weekend because Mr. Adelsperger refused to meet Ms. Adelsperger somewhere along her rout e. Mr. Adelsper ger m ade no effort to visit the children i n Mississippi until Octob er 1996 when the trial court ordered him

to do so . The stress of the continuing litigation with Mr. Adelsperger and trave ling to Murf

reesboro every

other we ekend aff

ected Ms. Adelsper

ger’s j ob1 These cases were decided when F ed. R. Civ. P. 41(b) governed motions for involuntary dismissal. The language of F ed. R. Civ. P. 41(b) was substa ntially similar to Tenn. R. Civ. P. 41.02. In 1991, Fed. R. Civ. P. 41(b) was replaced with Fed. R. Civ. P. 52(c) which now permits motions for jud gment

on partial findings at any time. See 5 James W. Moore, et al., Moore’s Federal Practice and Procedure ¶ 52.14[1] (2d ed. 1996). -4- performance, and her ne w em pl oyer t ermi nated her

after tw o and one-ha

lf mo nths. She the n ac cep ted a job with her f ath er’s compa ny.

Mr. Adelsper

ger file d a petition

to change c ustody several day s after M s. Adelsperger

moved to Miss issippi

. He im plied that M s. Adelsper

ger had be en less than truthful when she stated during the divorce proceedi ngs that she did not intend to return to Mississippi a nd alleged that she had moved to M ississippi “ to lim it, impede, and reduce

. . . [his] e xtrem ely liberal visi tation, involvem ent, and relations hip with the minor ch ildren.” He also alleged that Ms. Adelsperger had been “deli vering the minor children to the child care fac ility in an unfit, unsanitar y, a nd unhealthy condition. ” Followi ng a hearingin Novem ber 1996, t

he trial c ourt filed

a detailed opinion conc luding that th e parties ’ circ umsta nces had c hanged materially since January

1996 and that the c hildren’ s interest s would be served be st by c hanging thei r custod y to Mr . Adelsp erger. The tria l court als o directe d Ms. Ade lsperger to begin paying $660 per month as child support. After Ms. Adelsperger moved back to Tennesse e from

Mississippi, the trial court entered an order stayi ng the chang e of custody pen ding thi s appeal.

II.

We first take up Ms. Adelsperger’s assertion that the trial court erredby fa

iling to g rant her Tenn. R . Civ. P . 41.02( 2) mot ion for invol

untary dismis sal at the clos e of Mr. Ade lsperger’s proof. We nee d not tarry long with this issue bec ause Ms. Adelsperger

elected to present her

proof rat her than torest on her

motion . Follow ing the denial of a Tenn. R. Ci v. P. 41. 02(2) m otion, the moving p arty

may stand on its motion and bring an appeal or present its evidence; it cannot do both. See Bitumino us Constr., Inc. v. Ruck

er Enters., Inc. , 816 F.2 d 965, 967 (4 th Cir. 19 87); DuPont v. Sout hern Nat’l Ba nk , 771 F.2d 874, 881 (5th Cir. 1985). 1 By proceeding with her proof, Ms. Ade lspe rger wa ived her op port unit y to tak e issu e with the tr ial co urt’s denial of h er Tenn. R. Civ. P. 41.02 (2) motion.-5- III.

The pivotal issue in this case involves the evidentiary foundation for the trial court ’s conclusions that the parties’ circum stances c hanged materially durin g the six months following their divorce and that their three children’ s interest s would be best served by re quiring them to live in T ennessee w ith their f ather ra ther than i n Mississippiwith the ir mother . We have deter mined that the e vidence doe s not support the trial court’s co nclusio n that Ms. Adelsper ger’s l ife has be come

so unstable sin ce the divo rce that she should los e custody of her children.

A.

No decisi ons i n divorce c ases requ ire a m ore delic ate touch t

han those involv ing child custo dy and v isitation. Courts m ust strive t

o devise cus t od y arrange ments that prom

ote the dev elopment of the children’ s relation ship with bot h parents and interfere as little as possiblewith post- divorce f amily decision- makin g. See Aaby v. Strange , 924 S.W .2d 623, 62 9 (Tenn. 1996); Taylor v. Ta ylor , 849 S.W. 2d 319, 331-32

(Tenn. 1993). T

hese deci sions are not int ended to re ward or to punish parents, see Barnhill v . Barnhil l , 826 S.W .2d 443, 45 3 (Tenn. Ct. App. 1991), and, in fac t, the interests of th e parents are secondary to t hose of th e children

. See Doles v. Doles , 848 S.W.2d 656 , 661 (Tenn. Ct . App. 1 992); Griffi n v. Stone , 834 S.W.2d 300, 302 (Tenn. Ct. App. 19 92).

A court’s efforts to fashion an arrange ment that will enable div orced par

ents to maintain a coope

rative r elationshipfor their

children’ s best inter

ests ar e all too often frus trat ed b y the li ngering pain, hurt, and anger that parents continue to feel toward each other. When the parents have drawn the battle lines over their children, there is, as a practical ma tter, little that courts can do otherthan impose and enforce
an uneasy arm istice. The cost of this for ced truce is mos t often bo rne by

the noncu stodial pare nt. Wh en parent s fight over the childr

en, it is a foregone conclusion that everyone i n the family loses.-6- Courts understa nd the trau matic effect that d ivorce has on child ren, see Hal l
v. Honeycu tt , 489 S.W.2d 3 7, 41 ( Tenn. C t. App . 1972 ), as wel l as th e chil dren’s need for contin uity an d stability

in their personal r

elationship s. See Hill v. Robbi ns , 859 S.W. 2d 355, 358-59 (Tenn. Ct. App. 1993); Contreras v . Ward, 831 S.W .2d288, 290 (Tenn. Ct. A pp. 199 1). M ost chi ldr en fi nd s tab ili ty by bondi ng with the custodial parent following a divorce. See McDaniel v. McDaniel , 743 S.W .2d167, 169 (Tenn. Ct. App. 1987). In recognition of the importanceof stabilit y and c ontinuity , custody and visitation d ecisions, once m ade and im plemented, ar

e res j udicata upo n the facts in existence or reasonab ly foreseeable wh en the deci sion was made. See Young v. Smith , 193 Tenn. 480, 485, 24 6 S.W .2d 93, 95 ( 1952); In re parsons , 914 S.W .2d 889, 893 (Tenn. Ct. App. 1995).

Notwiths tanding the importan ce of stability and continui ty, i ntervening changes in a chi ld’s circ umst anc es may r equ ire modifyi ng an existi ng custody and visitation arrangement. Tenn. Code Ann . § 36-6-101(a)(1) (Supp. 1997) empowers the courts to change c ustody“as t he exigenc ies of the case may re quire,” and courts will change cus to dy w hen the par ty see king to chang e custody

proves (1) that the chil d’s circum stances ha ve ma terially changed in a way that could not have been reasonably for ese en a t th e ti me of the ori ginal custod y decision , see Smith

v. Haase , 521 S.W. 2d 49, 50 (T enn. 1975) ; McDaniel v. McDaniel , 743 S.W.2d at 169, and ( 2) thatthe child’ s best inter ests will be served by

changing the

existing cu stody arrange ment. See Hall v . Hall , App. N o. 01A01- 9310-PB-0 0465, 1995 W L 316255, at * 2 (Tenn. Ct. App. May 25, 1995) (No Tenn. R. App. P. 11 application filed). Custody decisions a

re fact ually d riven and r

equire the careful considera

tion of
numer ous factors. See Holloway v. Bradley , 190 Tenn. 565, 571 , 230 S.W .2d1003, 1006 (1950); Scarbrough v. Scarbrough , 752 S.W .2d 94, 96 ( Tenn. C t. App. 1988). Since these dec isio ns often h inge on the parties’ credibility, appellate courts are reluctantto second-guess trial judges who have observed the witnesse s andassessed their credi bility. See Gilliam v. G illiam , 776 S.W .2d81, 84 (Tenn. Ct. App. 1988). Acco rdi ngl y, we decl ine to disturb c ustody de cisions unle ss they are base d on a materialerror of law o r t he eviden ce prepond erates again st them. See Hass v. Knighton , 676 S.W .2d 554, 55 5 (Tenn. 1984); Gask ill v. G as kill , 936 S.W .2d 626, 631 (Tenn. Ct. App. 1996); Griffin v. Stone , 834 S.W .2d at 301.-7- B.

The trial cour

t’s dec ision that the c hildren’ s interest s would be b est served by changing their cust

ody fr om Ms. Adelsper

ger to Mr. Adelsper

ger appea rs to rest on four factu al conclusions. The trial court found that after the initial divorce decree, Ms. Adelsperger demonstrated (1) financial instability

affect ing her abi lity tocare fo r her children, (2) em

otional insta

bility apparent from her

“ra pid” decisi on to mo ve to Mississippiafter st ati ng six months earl ier that s he did not intend to mo ve, (3) indiffe rence towar d the care of her children, e specially the you ngest child, and (4) hostility towar d Mr. Adelsperge

r’s visi tation righ

ts. The evidence simply

does not support the trial court ’s conclusions that Ms. A delsperge r was unst able, ind

iffere nt, or hostile.

M S . A DELSPERGER ’ S C HANGES IN E MPLOYMENT
While Ms. Adelsperger has changed jobs three tim es since th e divorce

in February 1996, the

circum stances sur

rounding the se jobs are

more consistent with the circumstances facing m

any ne wly s in gle paren

ts than wit

h a conclusi on that Ms. Adelsperger has acted irresponsibly since the divorce. Her first j ob change was occasioned by the sale of her em ployer to another

compa ny. She found a higher payingposition, but her wor k schedule proved to be inconsis tent with her responsibilities as a single mothe r. Wh en she wa s unsuccess ful inobtain ing help,
even from Mr. A delsperger, she acceptedanother job in Mississippi that enabled her to live closer to work, have a more manageable work schedule, and obtain assistance from her family . Her performance on this job was und ermi ned by t he continuin g pressure of this litigation and Mr. Adelsperger’s stubborn insistence that she hon or the vi sita tion provisio ns in the ori ginal divorc e decree . Event ually, she acce

pted a job with her father.

On the surfa

ce, Ms. Adelsper

ger’s employment history appears u nstabl e . However, changes in emplo ym ent are c omm

on in today ’s wor

kplace, and thus the2 See Tay lo r v. Taylor , 849 S.W.2d at 332 (holding that “removal is not, in and of itself, a

change of circumstances suf ficient to justify modification of the custody order”). -8- possibility

thatMs. Adelsperger might change j obs after the divorce is something that the partie s and the co urt should ha ve foresee n at thetime

of the divor

ce. W hile the quicksuccession of jobs m igh t not have be en forese eable, t he recor d contains no proof that Ms. A delsperge

r did not hav e some

soundbasis for her employment decisions or that any of her em plo ym ent changes have adversely affected her chil dren. While her income has decreased, there is no evidence that she was no t providing for the children or that she was looking to Mr. Adelsperger for additional support to offset th e decrea se in her i ncome . Thus, rather t han being a sign of “instabilit y,” we view Ms. Adelsperger’s em ployment history

as evidence of a new ly divorced mother with three children attem pting to find some equilibrium between her obligations t

o her em ployer and to her c hildren.

M S . A DELSPERGER ’ S M OVE TO M ISSISSIPPI
While the trial court recognized that Ms. Adelsperger’s m ove t o Mississ ippi
was not, by

itself, a cha nge in c ircu mstan ces tha t wou ld wa rran t a ch ang e in cus tod y, 2 itconcluded t

hat her “ rapid” de cisionto mov e to Mississippi provided additional evidence of her “instability .” We find n othi ng impul sive or pre cipitous ab out Ms. Adels perge r’s decision to accept a job in Mississippi. In addition, we do not view her decision to accept this job as an indication that she had been untrut hful when she told the trial court and Mr. Adelsperger in early 1996 that

she was no t planning to m ove back to Miss issippi.

Ms. Adelsperger applied for a job at the truck dealership in Mississippi a t the
same time

she applie d for a j ob with the car dea lership in T enne ssee. S he did not pursue the Mississippi j ob after she obtained the Tennesse e job. H owever, when the work hours at the

car dea lership pr oved to be dif

ferent than what

she expec ted, she pursued the Mississippi job again at her father’s insistence. The Mississippi employer gave her an extremel y short

period of t

ime to decide whether she would accept the job. After tryingunsuccessf ully to d i scuss the o pportunity with Mr. Adelsperger, she acce

pted the j ob because

it provided a higher salary, better working hou rs, a nd a n op por tun ity t o li ve c los er to her f amily.-9- The circum stances sur

rounding the

Mississippi job offe

r require d Ms. Adelsperger

to respon d quickl y. She sought t he advice of her lawyer a nd attempted to discuss the offer with Mr. Adelsper ger befor e accept ing it. Ms. Adelsper

ger should not be faulted because th e company offering t he job demanded a quick ans wer. She took thesteps reasonably required of a person in her situation to make sure that she
was makin g a s oun d, le gal ly p ermi ssible decision. Neither her decis ion nor the
manner in which she m ade it dem onstrates “insta

bility. ” If any

thing, it demonstrates focus and the ability to take advantage of opportunities when they arise.

M S . A DELSPERGER ’ S I NTEREST IN THE C HILDREN ’ S H EALTH
The trial court also concluded that Ms. Adelsperger demonstrated indifference toward the child ren’s health after the di vorce. The con clusion was based on two incidents reported t o Mr. Adel sperger by em ployees of the children’s day care provider. The fir st inci dent involved a single occasion when Ms. Adelsperger brought her youngest to daycare w ith a dirty diaper and severe di aper ras h. She requested that the da

ycar e worker change the

boy’ s diaper a

nd told her that she had not had enough ti me to do it herse lf. The second inci dent invol ved one occa sion during the sum

mer when Ms. Adelsperger brought all

the childr en to day care bar

efoot and asked the daycare workers to put on their sho es and soc ks. Charges that a parent is deliberately indifferent to a child’s hy giene mer i t serious attention. In this ca se, howe ver, the re is no c redible evidence t hat Ms. Adelsperger

has been an ina

ttentive m

other. T he parties’ younges t son is appa rently susceptible

to diaper rash. He had sle ptthrough the night befor e the diape

r incident , and Ms. Adelsperger was reluctant to wake him . The daycare reported that the c hild
was happyand adjus ted despite his diaper

rash and th at the ra sh eventually improved underMs. Adelsperger’s care. The daycare w orker s wh o testifie d at the hea ring stated that the boy had no signs of neglect or abuse.

Perm itting smal l children

to go baref

oot during t he summe

r is neither
rema rkablenor surpri sing. It i s a com mon occurre nce, and

thus bringingthe children to dayca re one day

without their shoes an d socks is si mp ly not a n indication

of parental inattentiv eness. T hus, onecase of d

iaper ra sh, witho utevidence of repea ted,-10-

untreated episodes, coupled with one incident of permitting the children to go without shoes during t

he summer, does not ris e to the le vel of a m aterial change in circ umst anc es re qui rin g a ch ang e in cus tod y.

M S . A DELSPERGER ’ S A TTITUDE T OWARD V ISITATION
Notwiths tanding Ms. Ade lsperger ’s repe ate d a cknowledg ment o f the importanceof t he c hildren’s relationship with Mr. Adelsperger, the trial court concluded that she displayeda “som ewhat authorita rian atti tude with r

espect to t

he children” and a “ callous disr egard for the need of

the children t

o continue their very close relations hip with their fathe r.” We find litt

le evidenc e of this a

ttitude in th e record. To the contrary, w e find that Ms. Adelsperger took appropriate step s to maintain the children’s relationship with their father.

The record co n tains no evidence that Ms. Adelsperger interfered with Mr. Adels perge r’s visitati on before s he moved to Mis sissipp i. I f anyt hing , the record indi cates th at Mr. A delsperge r did not tak

e advantag e of all hi s visitation opportunities and was nev er available to help Ms. Adelsperger with the children when she ask ed f or h is ass is tan ce. Aft er M s. A del sp erg er mo ve d to Mississippi, she regularl y drove the children all the way back to Murfreesboro for visitation after Mr. Ade lspergerrefused to even cons ider meeting he r somewhere along the way. A parent intent on int

erferi ng with a f

orme r spouse’ s visitation would n ot drive fo r hours every other we ekend fro m Miss issippi to T ennessee to ensure that the children had a chance to be with their father.

The courts may cha

nge custody

if a custodial parent moves to another state in order to interf ere vindic tively

withthe no n-cus todi al par ent’s visitation o r if ther e is specificproof th at the move will cause s erious ha rm to the child

. See Aaby v. Strange , 924 S.W.2d at 629. We find no credible evidence that Ms. Adelsperger was acting vindicti vely w hen she moved to Mississippi or that the children have been harmed by the move. Acc ordingl y, ne ither the m ove to Missis sippi nor Ms. Adels perge r’s motiva

tion for m

oving provide

grounds for

the trial court to ch ange cus tod y.-11- IV.

We reverse

the judgm

ent awar ding custody of the children to Mr. Adelsperger and rem and the ca se to the tr ial court f

or furthe r necessa ry pr oceedi ngs c onsistent withthis opinion. We ta x the costs o f this appe al in equal proportions to Fairly Hubbard Adelsperger and her surety and to David Robert A delsperger for which execution, if necessary, m ay issue.

_________________ ____________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_________________

________________ BEN H. CANTRELL, JUDGE