# FILED
March 5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk ANTHONY LEE EDEN , ) ) Petitioner /Appella nt, ) Appeal No.

) 01-A-01-9609-CV-00427 v. ) ) Davidson

Circuit CHERYL ANN EDEN, ) No. 92D-3002 ) Respondent/Appellee. )

COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE

APPEAL FROM THE CI RCUIT COURT FOR DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE

THE HONORABLE MURI EL ROBI NSON, JUDGE

HELE N SFI KAS ROGERS Jones & Rogers Suite 1550, SunTrust Bank Building 201 Four th Avenue

North Nashville, Tennessee 37219

ATTORNEY FOR PETITI ONER/APPELLANT

MAR Y AN NE K EVIL Kevil & Johnson Belle Meade Office Park 4535 Harding Road, Suite 100 Nashville, Tennessee 37205-2120

ATTORNEY FOR RESPONDENT/APPELL EE

AFFIRMED AND

REMANDED

SAMUEL L . LEWIS, JUDGE1 Court of Appeals Rule 10(b): The Court , wi th t

he conc urre nce of

alljudge s par ti cipat

ing in t he cas e, mayaff

irm, reve rse or modify the acti ons of the tri al court by memorandum op inion when a formal opinion would have no precedenti al val ue. When a case i s decided by memorandum opinion, it shall be designa ted "M EM ORA ND UM OPIN ION ," shall not be published, and shall not be ci ted or relied on for any reaso n in a sub sequ ent unre lated c ase. 2 On 23 O ctober 1996 , the parti es fil ed a joint motion for the consi deration of post-judgment f acts. The parti es asked t

his cour t to cons ider t

he fact that Mother moved to a new t wo-bedroom apartment and that the chi ldren chang ed sch ools. We grant ed th e moti on on 25 Oct ober 1996. -2- 

## MEMORANDUM OPINION 1 Petitione r/appella nt, Anth ony Lee Eden (“Father”), appeals a d ecision of the Fourth Cir cuit C ourt of Da

vidson County . The c ourt denied Father' s petition to changecustody , increa sed his chil d support, to ok away his Wedn esday

night visitation, and extended his summer visitation b y two weeks. The fac ts out of which this matter aros e are as follo ws.
The Fourth Cir

cui t C ourt of Davidson County granted the parties an absolutedivorce in December 1993. Respond ent/appellee, Cheryl Ann Eden (“Mother”), receive d sole custod y of th e parties ' three m

inor childr

en. T he court ordered Father t

o pay $60 0.00 per m

onth in child s upport and granted him visitation every other weeken d, Wednesday nigh t, and one month a summer.
Father filed a petitio n to chang e custody on 1 7 October 19 95. At that time, Father lived in his brother and sister-in-law's five-bedroom house in Madison, owned fifty percent of a cabine t business, and earne d approxim ately $1,500.00 a mont

h. Motherand the children lived in a two-bedroom apartm ent, and Mother

worked two jobs earning approximately $1,700.00 a m onth. Mother quit hersecond job prior to trial. T he children were a

ges 10, 12, and 14. 2

In the petitio n, Father alleged the children were le ft alone a fter scho ol and
on certain evenings an d they w ere fri ghtened. He alsoalleged th at Mother took the children to a restau

rant durin g happy h our so she c ould spend tim e with her friends. Father alleged M other had m

ale friends stay the night when the children were at her apartm ent and she engaged in sexual activities when the children were visiting Father. Fin all y, Father allegedthe children expressed a desire to live with him. In response, Motherfiled a c ounter-petition asking t he court toraise the monthl y child

support, to limit Father’ s telephone

calls to th e childre n, andto enjoin him f rom a ttemp ting to3 There was tes ti mony t he par ti es’ youn gest

son, Lyl e, f

ound a con dom and wr apper i n or by the bath room tra sh ca n and t

he daug hter , Li ndsey , f ound a con dom wrapper in h er bed. -3- alienate the children's affections for Mother.

Both the partie s and the ch ildren tes tified at

the heari ng. Follow ing the hearing, the trial

court foun d, in pert

inent part , as foll ows: Theseparties were divorc ed b y this Honora ble Court o n Novem ber 16, 1993. W e are fo rtunate tohave the sam e parties , the same children, the sam e lawyers, and the sam

e judge. I recall t hat this divor

ce case was bitte

rly c ontested; custody

was contested at thattime . The is sue of cust ody wa s resolved in favor of the mother, th e Cour

t findin g that to be t

he best inte

rests of these three children that custody rema in with their mother. At that time, there w as a [sic] difficult y dete rmini ng the ear

ning capacity of the father and the Court set the amount of six hundred dollars as child suppor t. I don’ t know whe ther ther e was a declara tion in that final dec ree or not . I don’ t think it was at th e time. He owns his ow n business. There w as som e proof re garding whether or not Mr. Eden own ed this busine ss and now, today, he does own this busi ness. In a ny eve nt, at that poin

t, I arrive d at the f i gure of six hundred dollars a month thinking that he was underemployed at that tim e. I think as of t

o d ay this man i s still under emplo yed; he

seem s to hav e a l ot of f

ree time andthe mother appe ars to wor k two jobs

. So I mig h t sug gest to Mr. Eden that may be, if he can’t m ake sufficie ntincome on the cabinet business, may be he ought to consider a

second job to help wi th the suppor t of the chi ldren. He is asking the court to be award ed custo dy of t hese childr

en, yet I have to be conce rned about his financial situation in that regard. It appears also today that the m other is strapped financia lly due to the fac t that the

father’ s child suppor

t, although current, the amount of six hundred dollars is totally inadequate. Itappears f

rom t he proof that the mother has attem pted to have a single life, has had men f

riends and, on the occa sions that she has broug ht one to the hom

e, she’ s been cri ticized by the childr

en. However, ther e’s abs olutely no evidence

of mi sconduct on t

he part of Ms . Eden i n the presence of the se children. Its unfortunat

e that they

found these

objects but she deni es that she kn ew a nyt hi ng abo ut th em. 3 And there ’s som e discrep ancy i n the court ’s mind, although we do have

an exhibit, whether

or not-4-

this occurre d. But, if it did, its not so suf ficient a s it would be shocking to th e Court. I would just hope thatmay be Ms. E den ought to c lean her h ouse better if that, in fa ct, occurred. But she said tha

t she didn’ t know anythi ng about

it. And I ’m

a little bi tconcerne d about why these children would

not go directly to the mother with this i nstead of going to the father. The Courtfinds from

the proof p resented

that these children h ave been encourage d to dem

ean their mothe r and they’ ve set upon

the courseto force her to re linquish cust ody and they’ve been aided and abetted in this b y their father. The Cour t is not swa

yed by the testim ony of t he children. The Courtfi nds that the ir testim ony, while they

appear tobe bright children, some of the test

imony was so mew

ha t embellished a nd some of the situa

tions that w ere cre ated jus t did not mak e sense to the Court. Even if they happened, it seem ed like it was part of the plan developed between the children and the father. Mr. Eden, it appears, is totally depen dent on his brothe r and sister-in -law. He owns no ho me or vehicle. He comes before this Cour texactly the same way he came the last time. Hi s circum stances ha

ve not chang ed practi cally in any event. He owns stock in this corp oration of his brother and sister, yet it see ms like this c orporation is not doing the

business tha

t the Courthoped it would with in the pas t three years. Granting Mr. Eden custody

of these c hildr en woul d obviously put a financial drainon hi m but he say s that he co uld bear th at if the c hild support goes on as follow s. The Court feels that

the fathe r and the c hildren hav e conspire d to contrive aviable cus tody sui t in this re gard; however , they have failed in that re gard. T

he Court f

inds its to the

best interest of these children to remain with their m other. I’m g oing t o have to fine-tune the final decree because I need so me restrai ning orders . We’ re going to c ut the W ednesday night visitation due to the fact that these c hil dren have probably suffered some em

otional damage if Mr. Eden doesn’ t back off. I’m going to take

that visita

tion away . I’m

going to enj oin him from calling the

children; however , I’l l allow the children t o call him in the aft erno on when they com

e home from

school and at bedtime. But I’ m not

going to have it th e other w ay ar ound. There’ s some

discrepa ncy as to who’ s calling who. Mr. Eden will be under

a restra ining order. He’ll

be enjoi ned and-5-

restrained from

attem pt in g to aliena

te the af fections o f these children from the m

other and he’s en

join ed and res trained f

rom int erfe rin g wit h he r cus tod y. I’mgoi ng t o ex ten d th e su mmer vi sit s to the mont h of Jul y an d the first tw o weeks of

August. T

he children will be r

eturned to M s. Ed en two days before the children’s school starts. T hat leaves June for M s. Eden t o go on vaca tion to visit h er frie nds. During the time that the children are withtheir father, Ms. Eden will have the m

iddle wee kend in July

andher wee

kend in Augu st. If its not Mr. Eden’ s weeken d the childr en will be returned to Ms. Eden to go t

o school. Childsupport wi ll remain thesame throughout e xcept in the fall I’m going to increase this child support to seven hundred dollars per month i n addition to t

he ins ur ance pre mium

because I

have made the finding tha

t Mr. E den is under

emplo yed an d I don ’ t think it is to the m

other’ s benefit t

o work the

second job during the week bec aus e it tak es h er t ime away from her children, even though she needs t

he mon ey; so he needs to ante-up on that end. The incr ease wil l begin in the

month o f Septem

ber, 1996. Mr. Eden’ s request f

or adjust ment o f th e supp ort during t he six weeks that he has the children is denied. T he amount for the support of these t

hree chil dren in not s ufficien t enoug h to k eep the mort gage paid a

nd the utilit

ies going unti l the fall

whe n they’re not there; when they

are visit ing thei r fath er, so I can’t really consider t

hat. The cost of this cause will be pai d by Mr . Eden. Ms. Kevil is awardeda fifteen hundred dollar attorney fee , the balanc e to be paid to her

by her client.

Father presente d three is sues on ap peal. We discus s the foll owing two issues together: 1) “[w ]hether the trial court er red in cont

inuing to retain custody

of the minor

children w ith the Mothe r”; and 2) “[w ]hether

the trial cour

t erred i n reducing Father's weekday visitation and restric ting tele phone cal ls to the c hildren.”

“The doctrine of res judicata

bars a se cond suit bet

ween th e same pa rties
on the same cause of action with respect to all issues which we re or could have been brought in the former suit.” Wall v. W all , 907 S.W .2d829, 832 (Tenn. App. 1995). An award of custody is res judicata, absent a fin ding of a “change in ma terial circumstances affec ting the welfare of the children.” Woodard v. Woodard , 783 S.W.2d 188, 189 (Tenn. App. 1989).-6-

Whentwo people

join in conceiving a child, they select that chil d’s natural parents. When they dec i d e to separate and divorce, they give up the p rivilege o f jointly rearing the child, an d the divorc e co urt must decide which parent will have primary responsibil ity for rearing t he child. This deci sion of the Court i s not cha ng eab le e xce pt for “cha ng e of cir cums t ances” which is defined as that w hich requir es a chang e t o prevent substantial harm to the child . Custody

is not changed for the we lfare or pleasure of either

parent or to punish either pa rent, but to preser ve the we lfare of

the child. Custody

is not chang ed because

one parent is able to f

urnish a m

ore com modious or pl easan t environm ent than the oth er, but where cont inuation of the adjudicate d custod y will substan tially harm the chil d. Wall, 907 S.W.2d at

834. Tennesse e Code Annotated sec tion 36-6-10 1(a) prov ides, in pertinent

part, th at a

custody decree “ shall remain within the control of the court and b e subj ect to such change or modification as the exigencies of the case may require.” Our Supreme Court has inter pre ted “e xigencies” as follow s: “f acts and conditions which hav e eme rged since

the decree, new fac ts and chang ed condition s which were not determ

ined and cou ld not be ant icipated b y the de cree; a

nd that the decree is final a

nd conclusiv e up on all thefacts an d conditions which existe d and upon w h ich the decree was ma de.” Smith v. Hasse , 521 S.W .2d 49, 50 ( Tenn. 1975)(quotin g Hicks v. Hicks , 26 Tenn. App. 641, 176 S.W. 2d 371 (1943)).

Motherinsists and w e agree th at the fac ts com plained of by Fat

her could have been and were, to a grea t extent, anticipat

ed by th e final de cree. At the tim e of the divorce

hearing, the trial court found that Father was underemploy ed and that it
was necess ar y to deviate from the child support guidelines. In addition, the court awardedFather t

he ma rita l residenc e and orde

red him to satisfy

Mother’ s equity interest in th e property . The c ourt divided the m arital de

bts equitably betw een the parties. At the most recent hearing, t h e court found once again that Father was underemployed

and concluded that the child support was inadequate. We think it was reasonabl e to anticipa

te that a s ingle m

ot her in Mother’s position after the divorce would have to live

in an apar

tment ins tea d of a large home, would have to work outside the hom

e to support her self

and the chi ldren, a

nd would fi nd it neces sary to leavethe children at home for some peri od of time between the tim e the children arrived home f

rom sc hool and the t

ime M other arr

ived hom e from work. F urther, it
was reasonab le to anticipat e Mother w ould attem

pt to have so me sor

t of rela tionship-7-

withher peer s including m en and w omen. W e also think it was rea sonable to anticipat e at the tim

e of the div orce the c hildren w ould want a room of their ow n with lots of area

to play, the y woul d not be content with the modest recreation Mother couldprovide, and they w ould long for extr as Mother could not af ford. It was not, ho wever, reasonable to anticipate that Father would hire a private investigator t o follow Mother; w ould keep a journal on Mother which include d his com munic ations withthe childr

en concer ning courtproceedi ngs, deposi tions, and Mother’ s activitie s; would follow Mother to work ; and wou ld fax to the general work area of her place of em ploym ent harsh a

nd inappropr

iate lett ers from the childr

en.
Father contends tha

t we should

apply t he “c omparative fit

ness” doctrine as setforth in Bah v. B

ah , 668 S.W .2d663, 666 (Tenn. App. 1983). We disagree. In a sim ilar cas e, Judge S usano speak ing for the

eastern section, stated: Father invites us to compare the relative parental fitness of the parties. This i s clearl y the a ppropriate

analy sis on an initial custody determination whenthere ar e com peting appli cations fo r custody, Bah v. Bah , 668 S.W .2d 663 (T enn. App. 1983) ; but in amodification case, this s uggestion “ puts the ca

rt before the horse. ” In such a c ase, we must f ind a m aterial and substant ia l changein circumstances as described above bef o re we can considera change of custody. If there has not

been a m aterial and substantial change of circumstances as generall y desc ribed in Musselma n and Aaby , we should go no further. Rector v. Rec tor , No. 03-A-01-9604-CV-00123, 1996 WL 539767, at *2 (Tenn. App. 25 Sept. 199 6). Thi s court has also held th at the fir ststep in any change of

custody
case is to deter

mine whether there has been a “m aterial change in either the p arents'
or the child's condition.” Maxwell v. Christian , No. 01 -A-01-9 209-GS- 00364, 1993 WL 19406 4, at *4 (T enn . App. 9 June 1993). In the pre sent case , Father failed to establish a m aterial cha nge in c ircu mstan ces suffici ent to wa rran t a ch ang e in cus tod y. Thus, it is the opi nion of this court that there is no need toproceed f urther w ith the compa rative f itness ana lysis.

Father also relies very heavily

on the childr

en’s te stimonies in his at

tempt to change custody. “ Such testimony ‘ may be consider ed’ bu t is not co mpelling.” Wall, 907 S.W.2d at 834. The dem eanor an d credibili ty of t he children were of param ount significa nce in this case. Great w eight should b e given to th e trier o f facts’ determinati on as to cre dibilit y.-8-

As in all non-j ury ca ses, a tr ial court’ s determ

ination on [ change of custody ] is re viewed by us de novo ; h owever, t he record developed below come s to us acco mpani ed by a presum ption of correct ness that we must honor unless the evidence preponderates against the finding s of fact suppo rting the lo wer cour t’s ju dgment

. In making our de novo re v iew, w e “do [] not pa ss on the credibi l ity of witnesses.” “Cr edibility is an issue for the trial courtwho saw and he ard the w itnesses te stify and is theref ore in the premier position to determine cr edibility.” Massengale v. Masse ngale , 915 S.W .2d 818, 81 9 (Tenn

. App. 1995) (quoting Bowman v. Bowman , 836 S.W.2d 563, 567 (Tenn. A pp. 1991))(citations omitted).

The evidence prese nt ed establi shes that th e only m aterial change in circumstances which has occ urred since the entry of the initial decree and which could not have rea sonably

been antic ipated ar

e those which Fathe

r and the children contrived in an eff

ort to fash

ion a viable custody suit. We agree with the f

indings of the trial court and f

ind no m erit to ei ther of F ather’ s first tw o issues.

Fathe r’s third issue

is “[w] hether the trial court erred in deviating f

rom t he statute an d guidel ines in in creasing ch ild supp ort.”

The trial cour

t found a t the orig inal divorc e hearingand in the in stant proceedin g that Father was underemploy ed. The evidence established that Father owned fifty

percent o f

a cabinet compa ny whi ch had gross profits of $113,377.0 0 in 1995, but that he elected to b e an em ployee of thecompa

ny and d raw a net monthly in come of only $1,50 0.0 0. Father ’s broth er and sist er-in-la w provided

Father w ith
ahome a nd Florida

vacations, and the com

pany pr ovided his vehicle. Father p aid no rent, electricity, c ar paym ents, car insurance, or home ow ner’s insurance.

We are of the opinion that given the ev idence in t his case the trial court correct ly found that t

here we re approp riate re asons for deviating f

rom t he guideline s. Here, the tria

l cou rt ma

de writt en findings a s to its rea sons for de viating fr om the guidelines as requir

ed by st atute. Ten n. Code Ann. § 36-5- 101(e)(19 96). The se includ ed Father’s underemploy ment, the equity betw een the parties as Mother wa s having to work a seco nd job, and t he best in terest of th e children

. We ar e of the-9-

opinion that the trial

court’ s determ

ination that

Father s hould pay

support in e xcess of the guide lines is ful ly suppor ted by t he recor d. This is sue is with out me rit.

We have also considered Mother’s motion for finding of a frivolous appeal and find it t

o be without

mer it.
It, therefore, res ults tha t the ju dgm ent is in al l mat ters aff irme d, and the
causeis remanded to the trial court for anyfurther necessar

y proc eedings. Costs on appeal ar e taxed to p etitioner

/appellant , Anthony

Lee Eden.

____________________________________ SAMUEL L . LEWIS, JUDGE

CONCUR:

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

_____________________________________ WI LL IA M C. K OCH , JR. , J.