FILED

March 5, 1997

Cecil W. Crowson

Appellate Court Clerk

ANTHONY LEE EDEN, )

)

Petitioner/Appellant, ) Appeal No.

) 01-A-01-9609-CV-00427

v. )

) Davidson Circuit

CHERYL ANN EDEN, ) No. 92D-3002

)

Respondent/Appellee. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE MURIEL ROBINSON, JUDGE

HELEN SFIKAS ROGERS

Jones & Rogers

Suite 1550, SunTrust Bank Building

201 Fourth Avenue North

Nashville, Tennessee 37219

ATTORNEY FOR PETITIONER/APPELLANT

MARY ANNE KEVIL

Kevil & Johnson

Belle Meade Office Park

4535 Harding Road, Suite 100

Nashville, Tennessee 37205-2120

ATTORNEY FOR RESPONDENT/APPELLEE

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
1

Court of Appeals Rule 10(b):

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or

modify the actions of the trial court by memorandum opinion when a formal opinion would have

no precedential value. When a case is decided by memorandum opinion, it shall be designated

"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any

reason in a subsequent unrelated case. 

2On 23 October 1996, the parties filed a joint motion for the consideration of post-judgment facts. The

parties asked this court to consider the fact that Mother moved to a new two-bedroom apartment and that the children

changed schools. We granted the motion on 25 October 1996.

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MEMORANDUM OPINION1

Petitioner/appellant, AnthonyLeeEden (“Father”),appeals a decision of the

Fourth Circuit Court of Davidson County. The court denied Father's petition to

change custody, increased his child support, took away his Wednesday night

visitation, and extended his summer visitation by two weeks. The facts out of which

this matter arose are as follows. 

The Fourth Circuit Court of Davidson County granted the parties an

absolute divorce in December 1993. Respondent/appellee, Cheryl Ann Eden

(“Mother”), received sole custody of the parties' three minor children. The court

ordered Father to pay $600.00 per month in child support and granted him visitation

every other weekend, Wednesday night, and one month a summer. 

 Father filed a petition to change custody on 17 October 1995. At that time,

Father lived in his brother and sister-in-law's five-bedroom house in Madison, owned

fifty percent of a cabinet business, and earned approximately $1,500.00 a month.

Mother and the children lived in a two-bedroom apartment, and Mother worked two

jobs earning approximately $1,700.00 a month. Mother quit her second job prior to

trial. The children were ages 10, 12, and 14.2

In the petition, Father alleged the children were left alone after school and

on certain evenings and they were frightened. He also alleged that Mother took the

children to a restaurant during happy hour so she could spend time with her friends.

Father alleged Mother had male friends stay the night when the children were at her

apartment and she engaged in sexual activities when the children were visiting Father.

Finally, Father alleged the children expressed a desire to live with him. In response,

Mother filed a counter-petition asking the court to raise the monthly child support,

to limit Father’s telephone calls to the children, and to enjoin him from attempting to
3

There was testimony the parties’ youngest son, Lyle, found a condom and wrapper in or by the bathroom

trash can and the daughter, Lindsey, found a condom wrapper in her bed.

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alienate the children's affections for Mother.

Both the parties and the children testified at the hearing. Following the

hearing, the trial court found, in pertinent part, as follows:

These parties were divorced by this Honorable Court on

November 16, 1993. We are fortunate to have the same parties,

the same children, the same lawyers, and the same judge.

I recall that this divorce case was bitterly contested; custody was

contested at that time. The issue of custody was resolved in favor

of the mother, the Court finding that to be the best interests of

these three children that custody remain with their mother.

At that time, there was a [sic] difficulty determining the earning

capacity of the father and the Court set the amount of six hundred

dollars as child support. I don’t know whether there was a

declaration in that final decree or not. I don’t think it was at the

time.

He owns his own business. There was some proof regarding

whether or not Mr. Eden owned this business and now, today, he

does own this business. In any event, at that point, I arrived at the

figure of six hundred dollars a month thinking that he was

underemployed at that time.

I think as of today this man is still underemployed; he seems to

have a lot of free time and the mother appears to work two jobs.

So I might suggest to Mr. Eden that maybe, if he can’t make

sufficient income on the cabinet business, maybe he ought to

consider a second job to help with the support of the children.

He is asking the court to be awarded custody of these children,

yet I have to be concerned about his financial situation in that

regard. It appears also today that the mother is strapped

financially due to the fact that the father’s child support, although

current, the amount of six hundred dollars is totally inadequate.

It appears from the proof that the mother has attempted to have a

single life, has had men friends and, on the occasions that she has

brought one to the home, she’s been criticized by the children.

However, there’s absolutely no evidence of misconduct on the

part of Ms. Eden in the presence of these children.

Its unfortunate that they found these objects but she denies that

she knew anything about them.3

 And there’s some discrepancy in

the court’s mind, although we do have an exhibit, whether or not
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this occurred. But, if it did, its not so sufficient as it would be

shocking to the Court.

I would just hope that maybe Ms. Eden ought to clean her house

better if that, in fact, occurred. But she said that she didn’t know

anything about it. And I’m a little bit concerned about why these

children would not go directly to the mother with this instead of

going to the father.

The Court finds from the proof presented that these children have

been encouraged to demean their mother and they’ve set upon the

course to force her to relinquish custody and they’ve been aided

and abetted in this by their father. The Court is not swayed by the

testimony of the children.

The Court finds that their testimony, while they appear to be

bright children, some of the testimony was somewhat embellished

and some of the situations that were created just did not make

sense to the Court. Even if they happened, it seemed like it was

part of the plan developed between the children and the father.

Mr. Eden, it appears, is totally dependent on his brother and

sister-in-law. He owns no home or vehicle. He comes before this

Court exactly the same way he came the last time. His

circumstances have not changed practically in any event.

He owns stock in this corporation of his brother and sister, yet it

seems like this corporation is not doing the business that the

Court hoped it would within the past three years. Granting Mr.

Eden custody of these children would obviously put a financial

drain on him but he says that he could bear that if the child

support goes on as follows.

The Court feels that the father and the children have conspired to

contrive a viable custody suit in this regard; however, they have

failed in that regard. The Court finds its to the best interest of

these children to remain with their mother.

I’m going to have to fine-tune the final decree because I need

some restraining orders. We’re going to cut the Wednesday night

visitation due to the fact that these children have probably

suffered some emotional damage if Mr. Eden doesn’t back off.

I’m going to take that visitation away. I’m going to enjoin him

from calling the children; however, I’ll allow the children to call

him in the afternoon when they come home from school and at

bedtime. But I’m not going to have it the other way around.

There’s some discrepancy as to who’s calling who.

Mr. Eden will be under a restraining order. He’ll be enjoined and
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restrained from attempting to alienate the affections of these

children from the mother and he’s enjoined and restrained from

interfering with her custody.

I’m going to extend the summer visits to the month of July and

the first two weeks of August. The children will be returned to

Ms. Eden two days before the children’s school starts. That

leaves June for Ms. Eden to go on vacation to visit her friends.

During the time that the children are with their father, Ms. Eden

will have the middle weekend in July and her weekend in August.

If its not Mr. Eden’s weekend the children will be returned to Ms.

Eden to go to school.

Child support will remain the same throughout except in the fall

I’m going to increase this child support to seven hundred dollars

per month in addition to the insurance premium because I have

made the finding that Mr. Eden is underemployed and I don’t

think it is to the mother’s benefit to work the second job during

the week because it takes her time away from her children, even

though she needs the money; so he needs to ante-up on that end.

The increase will begin in the month of September, 1996.

Mr. Eden’s request for adjustment of the support during the six

weeks that he has the children is denied. The amount for the

support of these three children in not sufficient enough to keep

the mortgage paid and the utilities going until the fall when

they’re not there; when they are visiting their father, so I can’t

really consider that.

 The cost of this cause will be paid by Mr. Eden. Ms. Kevil is

awarded a fifteen hundred dollar attorney fee, the balance to be

paid to her by her client.

Father presented three issues on appeal. We discuss the following two

issues together: 1) “[w]hether the trial court erred in continuing to retain custody of

the minor children with the Mother”; and 2) “[w]hether the trial court erred in

reducing Father's weekday visitation and restricting telephone calls to the children.”

“The doctrine of res judicata bars a second suit between the same parties

on the same cause of action with respect to all issues which were or could have been

brought in the former suit.” Wall v. Wall, 907 S.W.2d 829, 832 (Tenn. App. 1995).

An award of custody is res judicata, absent a finding of a “change in material

circumstances affecting the welfare of the children.” Woodard v. Woodard, 783

S.W.2d 188, 189 (Tenn. App. 1989).
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 When two people join in conceiving a child, they select that

child’s natural parents. When they decide to separate and

divorce, they give up the privilege of jointly rearing the child, and

the divorce court must decide which parent will have primary

responsibility for rearing the child. This decision of the Court is

not changeable except for “change of circumstances” which is

defined as that which requires a change to prevent substantial

harm to the child. Custody is not changed for the welfare or

pleasure of either parent or to punish either parent, but to preserve

the welfare of the child. Custody is not changed because one

parent is able to furnish a more commodious or pleasant

environment than the other, but where continuation of the

adjudicated custody will substantially harm the child. 

Wall, 907 S.W.2d at 834. Tennessee Code Annotated section 36-6-101(a) provides,

in pertinent part, that a custody decree “shall remain within the control of the court

and be subject to such change or modification as the exigencies of the case may

require.” Our Supreme Court has interpreted “exigencies” as follows: “facts and

conditions which have emerged since the decree, new facts and changed conditions

which were not determined and could not be anticipated by the decree; and that the

decree is final and conclusive upon all the facts and conditions which existed and

upon which the decree was made.” Smith v. Hasse, 521 S.W.2d 49, 50 (Tenn.

1975)(quoting Hicks v. Hicks, 26 Tenn. App. 641, 176 S.W.2d 371 (1943)).

Mother insists and we agree that the facts complained of by Father could

have been and were, to a great extent, anticipated by the final decree. At the time of

the divorce hearing, the trial court found that Father was underemployed and that it

was necessary to deviate from the child support guidelines. In addition, the court

awarded Father the marital residence and ordered him to satisfy Mother’s equity

interest in the property. The court divided the marital debts equitably between the

parties. At the most recent hearing, the court found once again that Father was

underemployed and concluded that the child support was inadequate. We think it was

reasonable to anticipate that a single mother in Mother’s position after the divorce

would have to live in an apartment instead of a large home, would have to work

outside the home to support herself and the children, and would find it necessary to

leave the children at home for some period of time between the time the children

arrived home from school and the time Mother arrived home from work. Further, it

was reasonable to anticipate Mother would attempt to have some sort of relationship
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with her peers including men and women. We also think it was reasonable to

anticipate at the time of the divorce the children would want a room of their own with

lots of area to play, they would not be content with the modest recreation Mother

could provide, and they would long for extras Mother could not afford. It was not,

however, reasonable to anticipate that Father would hire a private investigator to

follow Mother; would keep a journal on Mother which included his communications

with the children concerning court proceedings, depositions, and Mother’s activities;

would follow Mother to work; and would fax to the general work area of her place

of employment harsh and inappropriate letters from the children.

Father contends that we should apply the “comparative fitness” doctrine as

set forth in Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. App. 1983). We disagree. In

a similar case, Judge Susano speaking for the eastern section, stated:

Father invites us to compare the relative parental fitness of

the parties. This is clearly the appropriate analysis on an initial

custody determination when there are competing applications for

custody, Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983); but in

a modification case, this suggestion “puts the cart before the

horse.” In such a case, we must find a material and substantial

change in circumstances as described above before we can

consider a change of custody. If there has not been a material and

substantial change of circumstances as generally described in

Musselman and Aaby, we should go no further.

Rector v. Rector, No. 03-A-01-9604-CV-00123, 1996 WL 539767, at *2 (Tenn. App.

25 Sept. 1996). This court has also held that the first step in any change of custody

case is to determine whether there has been a “material change in either the parents'

or the child's condition.” Maxwell v. Christian, No. 01-A-01-9209-GS-00364, 1993

WL 194064, at *4 (Tenn. App. 9 June 1993). In the present case, Father failed to

establish a material change in circumstances sufficient to warrant a change in custody.

Thus, it is the opinion of this court that there is no need to proceed further with the

comparative fitness analysis.

Father also relies very heavily on the children’s testimonies in his attempt

to change custody. “Such testimony ‘may be considered’ but is not compelling.”

Wall, 907 S.W.2d at 834. The demeanor and credibility of the children were of

paramount significance in this case. Great weight should be given to the trier of

facts’ determination as to credibility. 
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As in all non-jury cases, a trial court’s determination on [change

of custody] is reviewed by us de novo; however, the record

developed below comes to us accompanied by a presumption of

correctness that we must honor unless the evidence preponderates

against the findings of factsupporting the lower court’s judgment.

In making our de novo review, we “do [] not pass on the

credibility of witnesses.” “Credibility is an issue for the trial

court who saw and heard the witnesses testify and is therefore in

the premier position to determine credibility.” 

Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995)(quoting

Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn. App. 1991))(citations omitted).

The evidence presented establishes that the only material change in

circumstances which has occurred since the entry of the initial decree and which

could not have reasonably been anticipated are those which Father and the children

contrived in an effort to fashion a viable custody suit. We agree with the findings of

the trial court and find no merit to either of Father’s first two issues.

Father’s third issue is “[w]hether the trial court erred in deviating from the

statute and guidelines in increasing child support.”

The trial court found at the original divorce hearing and in the instant

proceeding that Father was underemployed. The evidence established that Father

owned fifty percent of a cabinet company which had gross profits of $113,377.00 in

1995, but that he elected to be an employee of the company and draw a net monthly

income of only $1,500.00. Father’s brother and sister-in-law provided Father with

a home and Florida vacations, and the company provided his vehicle. Father paid no

rent, electricity, car payments, car insurance, or home owner’s insurance.

We are of the opinion that given the evidence in this case the trial court

correctly found that there were appropriate reasons for deviating from the guidelines.

Here, the trial court made written findings as to its reasons for deviating from the

guidelines as required by statute. Tenn. Code Ann. § 36-5-101(e)(1996). These

included Father’s underemployment, the equity between the parties as Mother was

having to work a second job, and the best interest of the children. We are of the
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opinion that the trial court’s determination that Father should pay support in excess

of the guidelines is fully supported by the record. This issue is without merit.

We have also considered Mother’s motion for finding of a frivolous appeal

and find it to be without merit.

It, therefore, results that the judgment is in all matters affirmed, and the

cause is remanded to the trial court for any further necessary proceedings. Costs on

appeal are taxed to petitioner/appellant, Anthony Lee Eden.

____________________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_____________________________________

HENRY F. TODD, P.J., M.S.

_____________________________________

WILLIAM C. KOCH, JR., J.