### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 6, 2002

Session DONNA MAN CUSO-BERTONE v. MICHAEL E. BR ASWELL Appeal from the Circuit Court for Wilson County No. 02-11490 Clara Byrd, Judge

No. M2002-00025-COA-R3-CV - Filed F ebruary 6, 2003

The mother of a fourteen y ear old male child appeal s the action of the trial judge in deny ing her Petition for a change of custody . The trial court found that n o mate rial c hange of circumstances had been established by the evidenc e that would justify chang e of custody. We af firmthe action of the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and Thomas W. G RAHAM , S P . J., joined. Jon S. Jablonski, Nashville, Tennessee, for the appellant, Donna Mancuso-Bertone.
Jessica Da

wn Dugg er, L

ebanon, Tenness ee, for

the appe llee, Michael A. B raswell

. OPINION
This divorce and

custody litigati on bega

n in Wilson County , Tennes see, the n continued in the Court of Common Plea s of Northumberland County, Pennsy lvania, and now continues in the Circuit Court of Wilson County, Tennessee. From the begi nning, th

e partie s have been unable to agree on anything with the result being that three separate tria l courts have been compelled to spell out, in meti culous de

tail, the c ustody and visita

tion rights and obl

igation s of these

parents

. The parties areparents of Steven Braswell, now fourtee n years of age, and were divorced by Order of the Circuit Court of Williamson County, Tennessee in March 1992. On August 3, 1993, following a Petition b y D onna Br aswell ( Rogers ) to move to Pennsy lvania with Steve

n Brasw ell and a Counter- Petition by

Mi ch ael Allen Braswell for chang e of custody, the Circ uit Court of Williamson County, Tennessee, a dopted an agreement of the par ties whereby

the mot he r retained custody of Steven and was allowed to remove the child to Pennsylvania subject to extensive visitation privileges spelled out in the Order. This Order wa s not entered of record until December 10, 1993.-2-

Thereafter, extensive litigation between the parties occurred before t he Court of Common Pleas of Northumberland County, Pennsy lvania, resulting in a final Order of that court entere d July 5, 2000, by Judge Ba

rry F . Feudale, Senior Judge, together with a Supplemental Order of November 29, 2000, transferring the case to Wilson County , Tennessee. These two orders provide:
FINAL ORDER OF COURT
AND NOW, this 5th day of July , 2000, aft er hear ing the t estimony provided and in consid erat ion of the stip

ulation tha

t Father would hav e primar

y ph ysi cal cust

ody of Steven

M. Braswell, born January

29, 1988, we enter the following Final and Comprehe nsive CustodyOrder of Court:
1. The Father, Michael Braswell, shall have primary phy sical custody of Steven, with the Mother, Donna Mancuso, having partial custody as outline in t

he following par

agrap hs:
2. Exclusive of the Chr istm as and spring break, and summer school recess , partial c

ustody shallbe give

n to the Mother one full weekend the second weekend of

every month. Stev en shall b e made a vailable to be placed on the first available flight on Fr idays fr om 2:00 p.m. and shall be returned on the last arrival at the airpo rt no la ter than 9:00 p.m. I

n th e eve nt there is a school holiday on the F riday or Monday of the assigned weekend Mother w ill be allowed to have extended weekend par

tial custody

on said weekend with the same departure and return times being applica ble.
3. Mother

shall be responsi

ble for th e costs of said airline transportation and Father shall insure that Steven is made available for said flig hts.
4. Mother sh all have Steven du

ring the summer school rec ess no later than five (5) day s after school is completed and shall return Steven to his Father

no later than se ven (7) da ys prior t o scho ol res umin g. Father and/or the school district

that Steven is attending shall provide Mother with a copy of

the sc hool calendar as s oon as such is available. The costsof the fli ght during the su mmer scho ol rece ss shallbe borne by the

Mother for Steven’s flight to Pennsylvania a nd by Father for the r etu rn trip with each parent being responsible for making t he respective fli ght arr

angeme nts. 5. Mother

s hall have partial custody of Steven every

Christmas from either December 20-26 or December 26-31, with Mother having the Christmas Ev e p eriod on odd yea rs. Costs of the flights and-3- arrangements will be

shared by the

parents as set forth in paragra ph four (4).
6. Mother

shall have the right

to spend f ive full days with Steven during the Easter/spring break period of school recess. Said is contingent on Mother traveling to Ten

nessee t o spend tim

e with Stev en alt hough Mother may make spe cial trip s w ith Steven (i.e. travel to Florida, Disney Word etc.) Costs of same will be borne by Mother.
7. Mother

shall be allowed regular

telephone contact with

Steven which expense shall be her responsibility. Father shall be responsible for the cost of initiating and pay

ing for one tele phone ca ll a week with said callnot to exce ed five ( 5) minutes . Said call shall be initiated every Tuesday of each we ekexcept during Mother’s periods of partial cu st od y. Also Fat

her shall be resp onsible

forfacilitating internet Email a ccess in his home so Mother and son can communicate on a regula r basis.
8. Father

and Mother shall have shared legal custody which

means they eachshall communi cat e regarding major decisions involving education, medic al and religi ous issues. Also, such shared legal custody means that educational and medical service providers should provid e acce ss to both parents to documents and information regarding Steven in accordance with their own reasona ble p olici es and procedu

res. Bo th paren

ts shall ad visethe other parent when the child is scheduled for any

pre-arranged medic al service and if suc h is an emergency

as soon as practicable thereafter

. 9. Neither

parent shall make derogatory comments about the other in the presenceof the ch

ildand shall instruct others to refrain from making such comments in the child’s presence.
10. This is a Final Custody Order of Court and will be subject to review in accordance

withthe applicable state statutory and case law and the uniform Ch

ild Custody

Jurisdictio n Act.
ORDER
AND NOW, this 29 th day of Novem

ber, 200 0, after

Record A

rgumen t held on this date, the Petition of the mother Donna Mancuso, for Recusal, a second requ est for a Stay of Proc eedings, and Request for Rehearing , which was filed November 28, 2000 is hereby DENIED.1 Simp ly stated, the child has lived Prim arily with his f ather in Tenness ee sin ce our Order of Court dated Ju ne 11 , 1999. On Jul y 5, 2000, we ent ered an Order of Court , whi ch was reach ed purs uant to a Sti pulation of the par ti es that the fat her w ould h ave Pri mary Cust ody of Stev en Bras well

(d.o. b. 1/29/88). Mo ther now alleges s he never agree d to any suc h Stipu lation. M other , whos e cred ibility and undu e influenc e on h er son have b een so rely tested during these P roce eding s (See transcr ipt o f Proceedings hel d on Jun e 29, 2000 a nd Febru ary 17, 2000) wil l s ay or do a nything to put the c hild’s father, thi s Court, and today ev en her f ormer counselin a bad l ight . Today she bold ly asserted her last of 4 or 5 att orneys since 1997 was inef fect ive and bl atant ly deni es the July 5, 2000 Order, as t o fath er having pri mary cus tody , wa s co nse nsu al. Asi de f rom t h e fact the O rder reflects the Ord er was “in considera t ion of th e Stipul ation that the f ather would have pri mary phys ical custody of Stev en” w e reference the Transcript of June 29, 2000 pg. 27, L. 10-20, pg. 28, L. 1-15, pg. 32, L. 20-24 and pg. 64, L. 20-24 (“ You[r] Honor, my cl ient today made a signifi cant concession declini ng to pursu e her Primary Cust ody”) . Despi te c lear and un equiv oc al evid ence that refl ects both knowledge and voluntariness of the S tipulatio n the m other toda y bold ly asserts the contra ry. As to her asserti ons about thi s Court an d Request f or Recusal as set forth in her Motion, as we stated at t he hearing, t

he tr ansfe r to Tennessee will de facto accomplish t he same. In any event, there are no exigent circums tances or any ot her assertio ns set forth in moth er’s req uests to M odify, tha t justify this Co urt’s int erven ti on and we are sat isf ied th at t he Courts in Tenness ee, wher e the ch ild ha s li ved and att ended schoolfor the last 1 1⁄2 years and where mother, father and child li ved for several years (and where the Tennessee Co urt as rece ntly as Au gust 19 93 e ntered a Cu stody O rder ) are the mor e app rop riate and conv eni ent

for um.

-4- IT IS FURTHER ORDERED that Donna Mancuso’ s Emergency Petition for Modification of Custody and Appointment of a Gua rdian Ad Litem is DENI

ED.
The Order of Court dated Decemb er 5, 2 000 sc hedul ing a Hearing Officer’s Conferenceon Donna Mancuso’s Petition for Modification of Custod y i s VACATED. Pursuant to 23 Pa.C.S.A. § 5348, the father Michael Braswell’s request this Court relinquish jurisdiction to Tennessee is hereby G RANTED.
The Northumberland

County Court Admin

istrator shall tra nsmit this and the Order of July 5, 2000, a s well as D efenda nt’s Hea ring Me morandum , 1 which se

ts forth the case’s Procedural History , to the appropriat e C ourt of Juri sdiction in Hermitage, Tennessee.

On May 16, 2001, Donna Mancuso-Bertone, “Mother,” filed a Petition against Michael A. Braswe ll, “Father,” in the Circuit Court for Wilson County, Te nnessee, m a king extensive factual allegations and seeking a change of custody of Steven tog ether with attorney ’s fees and costs. On June 27, 2001, Father filed a fifteen pag e Answer and Cou nte r-Petition denying e ssentially the factual allegations of the Petition and as se rt in g t ha t M ot he r w as in co nt em pt of th e J ul y 5 Order of the Court of Common Pleas of Northumberland County, Pennsy lvania.
The factual assertions of this May 16, 2001 Petition, the denials of such assertions in the June 27 Answer of the Father, toge ther with the factual allegations of his simultaneous Counter-Petition-5-

and the denial by the Mother of such factual allegations provided the issues upon which the August 7, 2001 hea

ring wa s held

before the Circuit Court of Wilson County, Tennessee. O n September 18, 2001, the Circuit Court of Wilson County, Tenness ee entered an Order deny ing the Petition for Change of Custody, and, after the subsequent denial of Her Motion to Alter or Amend, Mother timely appealed. Appell ant/Mothe r ass e rts on appeal that the evidence prepondera tes against the judgment of the trial court as to change of circumstanc es and that the trial court erred in modifying the Pennsylvania Orde

r relative to visitation.
The Ju ly 5 , 2 00 0 j ud gm en t o f t he Co ur t o f C om mo n P le as of No rt hu mb er la nd Co un ty, Pennsy lvania is res judic

ata as to every

fact actually

litigated or which might

h ave been litigated pr io r t o i ts en tr y.

The doctrine of res judic

ata bars a second suit betweenthe same parties on the same cause of action with respect to all issue s which we re or could have been brought in the former suit. Massengi ll v. Scot t , Tenn.1987, 738 S.W.2d 62 9; Stacks v. Saunde rs , Tenn.App.1990, 812 S.W.2d 587. Judgmentin a forme

r action conclude s not only

facts a ctually liti gated , but facts which might have been litigated. Gregory v. Grego ry , Tenn.App.1990, 803 S.W.2d 242.
Wall v. Wall , 907 S.W.2d 829, 832 (Tenn. Ct. App. 1995).
This Court h as held, r

ely ing on a decision of the Ma

ry land Cour

t of Appe als, that:
The custody

of childr en should not be distu

rbed unle ss there is some strong reason affecting the welfare of the child. To justify a cha nge of custody , the change in conditions must have occurred which affects the welfare of the child and not that of the parents. The reason for this rul e is that the stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child gen erally fa r outweighs any

alleged advantage

which might accrueto the chi ld as a res ult of cus todial ch ange. In sh ort, whe n all goe s well with childre n, stabilit y, not chang e, is in the

ir best int erest. Contreras v. W

ard , 831 S .W.2 d 288, 290 (T enn. C t. App . 1991 ) (cit ing Sartoph v. Sartoph , 354 A.2d 467, 473 (Md. Ct. App. 1976)).
Before a trial c ourt is just

ified in changin g custod

y of a child, it must

be satisfied that such change is required in order to pre vent substantial harm to the child.
When two peopl e join in

conceiving a child, they

select that child’s natural parents

. When they decide to sepa rate and divorce, they

give up the privilege of jointly rearing the child, and the divorce c ourt must decide which parent will have primary responsi bility for rea ring the child. Thi s decisio n of the Court is not-6-

chang eable

except for “change of c ircumstan ces” which is defined as that which requires a change to prevent substantial harm to the child. Custody is not changed for the welf are or p leasure

of eithe r paren t or to puni sh either

parent, but to preserve the welfare of the child. Custody is not changed

because one parent

is able to f

urnish a more commodious or pleasant environment than the other, but

where continuation of the adjudicated custody

will substantially harm the child. Contreras v. War d , Tenn.App.1991, 831 S.W.2d 288.
Wall , 907 S.W.2d at 834.
This case revolves almost exclusively a round disputed issues of fact. It is review ed on appeal, de novo , with the findings of fact made by the trial court be ing pre sumed to be

correct unless the prepond

erance of the ev idence i s otherwi se. Tenn . R. App. P. 1 3(d); Hass v. Knighton , 676 S.W.2d 554 (Ten

n. 1984). It is w ell settle d that in cases tried without the intervention of a jury, the judgment of the tri al judge as to the c

redibilit y of witnesse s is acco

rded g reat we ight on a ppeal. After all, t he tri al jud ge has the opportunity to observe the manner and demeanor of witnesses as they te st if y, while this Court is limited to a written transcriptof the testimony. Koch v. Koch , 874 S.W.2d 571 (Tenn. Ct . App. 199 3); Doe A. v. Coffee County Bd. of Educ. , 925 S.W.2d 534 (Tenn. Ct. App. 1996). Judged by these standar ds, the evidence offered by App ellant in

support of

her petition to change custody falls far

short of that necessary

to overturn the judgmen

t of the tr ial cour t. Practic ally nothing of

significance

is disclosed by

the rec ord to hav e occur

red sinc e July

5, 2000, w

hich coul d form a basis for change of custody . Appellant claims that Steven’s stepbrother has an out of wedlock chi ld that stays in the home of Appellee . She further claims that Mt. Juliet Christian Academ y , where Steven has atte nded for two ye ars, is an inadequate school; that Steven has a learning disability and is af flicted with Att e ntion Deficit Hyper active Disorder; that he is allowed by Appellee to play in the sch ool band and to play footba ll; that Appellee has to help him with his homework. Appellee den ies that Steven’s alleged A.D.H.D. is not being a dequately tre ated; denies that Mt. Juliet Christian Academ

y isan infer

ior schoo l; admits to the band and foo tball act ivities; and admits that he helps Steven with his homework. The trial court heard extensive evidence on these f actual is sues, just as Judge Barry

F. Feudale had done prior to the July 5, 2000 Order in Pennsylvania

. In Wall , after review of the recor d, this Court held:
After hearing conflic ting te stimon y and resolving issues of credibility, the Trial Judge has determined that continuance of court-orde red custod y will not substantia lly harm the child. T he ev idence d oes not pr

eponder ate ag ainst this conclusion, and indeed it supports this conclusion.
Wall , 907 S.W.2d a

t 834. Exac tly t

he same i s true in

this case and

we will not disturb the judgment of the trial court.-7-

Appellant complains that the trial court improperly altered the Pennsy

lvania Order relative to visitation . She is har

dly in a position

to compla

in of this change , as the a

djustmentsmade by the trial judge in the visitation schedule are wi thin the rather broad scope of the issues drawn in the Petition for Cha nge of Custod y and the Cross-Petition filed by Appellee. Certainly

the evidence does not preponderate against the action of the trial court. The judgment of the trial court is in all respects affirmed.

___________________________________ WILL IAM B. CAI

N, JUDGE