### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE December 7,

2000 Session DONNA ROXBURY BREEDING (HENSON) v. KENNY FRANK BREEDING
An Appeal from the Chancery Court for Giles County No. 7928 Jim T. Hamilton, Judge

No. M2000-00952-COA-R3-CV - Filed April 5, 2001

This is post-divorce custody dispute. In the original divorce decree, the mother was awarded custody of the parties’ tw o minor chi ldren. Sub sequently, wh en the moth er was requir ed to undergo brain
sur gery, the mother and father agreed, and the trial court ordered, that the father would have custody of the children until each

child reached th

e age of twelve

, at which point the

child would decide

with which parent he wished to live. After rec overing from t he surgery

, the mother filed a

petition to change custody citing, inter alia , the children’s d esire to live with

her and the children’s worsening behavior, which included running away from the father’s home. The trial court denied the mother’s petition, finding no material change in circumstances warranting a cha nge of custody. Fromthis order, the mother now appeals. We reverse and remand, finding that the trial court applied the incorrect standard in light of the prior agreed order. Tenn. R. App. P. 3; Ju

dgment of the Chanc

ery Court is Reve

rse and Remanded.

H OLLY K IRBY LILLARD , J., delivered the opinion of the court, in which D AVID R. F ARMER , J. and B EN H. C ANTRELL , P. J., M.S., joined.

JoanieL. Abernathy, Franklin, Tennessee , and Howell Forrester, Pulaski, Tennes see, for the appellant Donna Roxbury Breeding Henson. Samuel B. Garner, Jr., Pulaski, Tennessee, for the appellee Kenny F rank Breeding.
OPINION

Donna Roxbury Breedin

g(“Mother”) and Kenny Frank Breeding (“Fa ther”) divorced in 1993

. Both Mother and Father have since remarried. At the time of the divorce, Mother was granted custody of the parties’ two minor sons, Kenny, born in September, 1986, and Austin, born in August, 1988. Mother reta

ined custody

of the boys,

apparently

without serious pro

blems, until November 1997. At that time, Mother le

arned that she wo

uld have to underg

o brain surger

y. She did

not know if or when she would recover sufficiently to be the boy s’ primary

custodian. In light of this, the1 Previous ly, Mothe r had filed a p etition seeking, inter alia , a chan ge in cu stody, which was denied after a

hearing on January 5, 2000. This petition is not part of the record on appeal, and the trial court’s ord er was app arently not appeal

ed.
-2- parties entered into

an ag reement which wa

s incorporated in

to an order enter

ed by the tri

al court. The agreed

order gave custody

of the boys to

Father. The ord

er forgave F

ather’s arrea

rage in child support, stated that Mother would not pay child support, a nd provided that Mother would have visitation every other weekend and “have the rig ht to call the children or talk with them by phone on any occa

sion that she wishes . . . .” The order then stated as fol

lows:

At the time each of these

children are twe

lve years o

f age they should be allowed t

o decide which par

ent they wish

to be with. If the children cannot or will not decide what parent they

wish to be with then t

he court will make

that decision for

them.
Thus, under the agreed order entered by the trial court, when each boy reached the ag e of twelve, he would be permitt

ed to state which parent he wished to live with and that preference would be honored.

Mother recovered fro

m the brain

surgery and

was left with only

minor disabilities th

at would
no tinterfere with h

er ability to

be the boys’ primary cu

stodian. Meanwhil

e, problems d

evelope d betweenthe boys and Father and between Mother and Fa ther. In addition, Father indicated an intent to move with Kenny

and Austin to Birmin

gham, Ala bam a. C ons equ ent ly, in December, 1999, the boys ran away from F

ather’s home to Mother’s home.

On January 6, 200 0, Mother fi led a petit ion for chan ge of cu sto dy, 1 pursuant to the November 1997 agreed o rder. She alleged that Kenny and Austin had expressed a desire to live with her. Mother argued that there h ad bee n a material change in circumstances since the November 1997 order, citing her improved physical condition, the boy

s’ dissatisfactio

n with living with

their father, the incident in which they ran away to Mother ’s home, and Kenny’s precipitous drop in grades. She also criticized Father’s care of the boys, particularly with regard to Austin’s asthma.

The situation worsened between the parties and between the boys and Father. Father began listening in on an extension to the boys’ telephone conversations with Mother. As a result, Kenny andAustin began writing letters to Mother about their feelings and concerns. The boys wou ld write the letters at school and

give the letter

s to a school friend, who lived near Mother, to deliver. After Austin would not eat some s

oup made by h

is stepmother, Fath

er pulled down his

pants and spanked him. Finally, the night

before the hea

ring on Mother’s

petition to

change custody, the boy

s again ran away from Father’s home, sneaking out of a window after dark and riding over seven miles toward Mother’s home, until they were intercepted by a police officer.

The hear ing w as h eld the nex t da y, February 25, 2000. At the hearing, Mother testified that around9 pm the night

before, she received a phone call from the boys telling her that they

were at a Quik Mart store near her home, and that they had run away from Father’s home, riding their bikes2 Although children invo lved in custod y disputes are usually questioned in chambers by t

he trial j udge, in order to encourag e them to sp eak ope nly and withou t being intimida ted, these child ren testified in op en court a nd were questioned at length by the attorneys.
-3- over seven miles from Father’s house. They were finally intercepted by a police off icer wh o stoppedthem for riding their bikes at night without lights. After tal king to Kenny and Austin, Mother called her attorney, picked up the boy s and called Father to tell him where they we re an d what had happened. Father was unaware that the boy s were not at

his home until Mother

called him.

Mother testified that she was concer ned about the boys’ welfare because Father failed to adequately care for

them, because they had run away more than once while living with Father and because Kenny had b

een doing poorly

in school. She testified that she, not Father, provides inhalers andother medicine for Austin, who suffers from borderline anemia in addition to asthma. She also testified that she pays the boys’ school monthly so they can eat breakfast at school, because they usually do not eat breakfast before leaving for sc hool. Mother

acknowledged buying normal gifts for the boys, said she

and her husband were building a playhouse for Kenny and Austin, as well as for her stepson, and that the family had a membership at Ma

rtinCollege. She denied the assertion by Father’s counsel

that these items we

re bribes to

get the childre

n to say they

wanted to live with her. Mother denied telling Kenny and Austin to start

writing her letters, but admitted that she had spoken to them about writing to her about things they fe lt they could n ot say while Father was listening over the phone.

Father also testified

at the hearing.

He admitted that he

listens to the boy

s’ conversations wi

th Mother, but asserted that it was for their protection because they had run aw ay before and because he does not trust Mother. Father cla ime d th at h e hea rd M oth er t ell the boys to talk to their school counselor and begin

writing letters to use in the custody suit. Father maintained that Mother called the boys more often since filing her petition to change custody , and that he has had to limit the boy s’ conversations with Mother to ten minutes each.

F ather testified that whe

n Kenny turn

ed twelve he off

ered to allow Ken

ny to liv e with Mother, but that she refused to take one boy without the other. Father admitted pul ling dow n Austin’s pants and spanking him with his hand, not a belt. However, h

e denied doing so

simply because Austin refused to eat the soup made by his wife; he asserted that he punished Austin bec

ause he was rude and disrespectful. Father contended that the

boys’ behavior had worsened since Mother filed her petition

and that disciplinin

g them had becom

e more difficult.

Father admitted

that their behavior also began to worsen after he told them he was considering moving with them to Alabama. He con ten ded tha t th e bo ys were excited when he first talked to them about the prospect of moving, and that only after they spoke with Mother did they say that they did not want to move.

A tthe time of the hea

ring, Kenny

and Austin were 1 3 years old a nd 111⁄2 year

s o ld , res pect ive ly. They testified in open court and were questioned by the parties’ attorney s, with Mother andFather outside th

e courtroom. 2 Kenny and Austin both testified that they no longer wished

to live with Father, but w

ished to live with the

ir mother. Kenny

and Austin test

ified ab out their3 Inexpli cably, the let

ters wer e not made par

t of th e record.

4 The lengthy, accusa tory cross-exa mination of the children by M r. Garner, F ather’ s cou nsel, w ould be approp riate if it w

ere cross-exami

nation of an adul

t defendant i

n a criminal

proceeding, but does not befit a proceeding in which the trial co urt seeks to elicit the views and feelings of children who are unfortunately in the midst of a cust ody dispute between their paren ts.

5 At the end of the cross-examination of Austi n the trial judge

comme nted, “W ell all right Austin, keep making these good grades you might want to be

a lawyer one of these days. Y ou think you w ould?” N ot surprisingly, A ustin’s response was “No.”
-4- decision to run away the night before. They said that they c limbed out of their bedroom window and, using flashlights, rode their bikes down the highway toward their mother’s house. The boys said that they ran away b

ecause they

were tired of the

living situation at

Father’s h

ome and wanted to live withMother. They said th at Father did not l

isten tothem, did not support some of their acti

vities, sometimes punished and yelled at them without a reason, and listened in on their telephone conversations with Mother even th ough they a

sked him not to. Austin testified that Father pulled down his pants a nd gave him a “ whipping” with a belt, because he refused to eat so

me soup that his stepmother

made. He said tha

t he refused to ea

t the soup because h e was sick and that the “whipping” left bruises on him. When askedwhy he wrote letters 3 to his mother, Austin testified, “I had to get it

off my mind I f

elt so bad and I

thought she need

ed to know.” He sa

id that he could nottell her on the telephone because “my dad was listening” and that he “couldn’t say nothing on the phone without daddy jumping all over me after it was over.” Kenny testified that the night he and Austin ran away he had been punished for receiving an “F” in gym class. He asserted that his grades have dropped while living with Father, but conceded that his grades had been g o od until the custody petition. Austin testified that he was also being punishedthe night they

ran away.

Austin also

testified t hat he is sick much of the time and that Mother buys his medic

ine for him. He ass

erte d that M oth er t ook bet ter care of h im. The boys testifiedthat

they did not eat brea kfas t at the ir Fa the r’s hou se b efor e sch ool beca use it i s to o ear ly.

In response to

rigorous cross-

examination by

Father’s couns

el, 4 the boys denied delibera tely failing classes, denied that Mother suggested that they write letters to

her, denied that M

other told themwhat to write i n the letters, denied writing letters to Mother for her to use in the custody proceeding, denied that Mother promised to buy

them items such as toys and a playhouse if they
cam e to live with her, de nied that Mother on

ly recentl y began c alling them ever

y nig ht, denie d engaging in very long telephone conversations withMother every night, denied running away from Father’s home simply to avoid being punished, and denied crying a nd screaming in t

he courthouse after the prior court hearing at Mother’s suggestion. 5 When asked if there was anything each boy wantedthe trial judge to know, Kenny responded, “I just want to go to my mom’s house that’s all,” andAustin said, “I just want to go with

my mom. I don’t kn ow why I can’t. That ’s where I belon g. She cares for me.”-5-

In its written order, the trial court stated that, because of Kenny and Austin’s ag e and mat uri ty, their wishes must be considered. Nevertheless, Mother’s petition for change of custody
was dismissed. The tria

l court found that M

other failed to c

arry her b urden of proof th

at a material change in c irc ums tan ce ha d oc curr ed w arra nti ng a c han ge of cus tod y. From this order, Mother now appeals.

Our review of this case is governed by Rule 13( d) of t he Tennessee Rul

es of Appellate Procedure, which provides that review of findings of fact by the trial court shall be de novo upon the record of the trial court

, accompanied by

a presumption of c

orrectness of th

e factual findin

gs, unless the evidencepreponderates otherwise. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s decisions on issues of law are reviewed de novo , with no presumption of correctness. Id.

Ord ina ril y, th e primary inquiry when considering a petition to modify custody is whether there has been a mat erial change in circumstances since the entry of the order sought to be modified. Hoalcraft v. Smithson , 19 S.W.3d 822, 828 (Tenn. Ct. App.1999), perm. to appeal denied May 15, 2000. In orde

r to b e considered a material change in circumstances, the facts or circ umstances involved must affect the child’s well-being in a material way. Id. at 829 . If the trial court fi

nds a material change of

circumstances, it must then consider whether modifying custody would be in the best interest of the child. Id. at 828. A child’s preference is one factor to be con sidered in determining custody. Id. at 829; King v. King , No. 01-A-01-9803-CV00116, 1999 WL 267007, at *5 (Tenn. Ct. App. May 5, 1999).

This c ase, however, involves a unique situation. The order sought to be modified is an agreed order, entered

in light of Mother’s then-impending brain surgery. As an explicit condition of the grant of custody to Father, the parties ag reed:

At the time eachof these childre n are twelve y

ears of age th

ey should be

allowed to decide which parent

they wish to be with. If the children cannot or will not decide what parent they

wish to be with then t

he court will make

that decision for

them.

This condition was not simply a side agreement entered into by the parties, it was adopted by the trial court as part of its November 19, 1 997 order . In the hearing below, while there were questions regarding the reasons for theboys’ preference, both were consistent, even a damant, in maintaining that they wanted to live with Mother.

When an agreed cus

tody order c

ontempla tes a certain condition as a circumstance of the custody arrangement, a change in this condition may be a mat e rial change in circumstances sufficient to warrant a modification of custody. In Waters v. Layne , No. 01A01 -9708-CV -00402, 19

98 WL 136129 (Tenn. Ct. App. Mar. 27, 1998), t h e agreed order between the parties provided that “[t]he parties have agreed that the custody of the said minor child shall be placed with the Defendant [father] and wife Judy Lay ne.” Id. at 4. The Court found that the father’s marriage to Judy Lay ne had be en of great sig

nificance to the

child, because Jud

y Lay ne had been the c

hild’s primar y6 On remand, if the children are required to testify, they should be questio ned, prefer ably by the trial jud ge, in

a manner appropriate f or children i

n a custody dis

pute.
-6- caregiver for over t hree years. The Court concluded that the specific languag e of the agreed order “contemplated

the child be under the care of Ms. [Judy ] Layne as a circumstance of the [f]ather’s
cus tod y. . . .” Id. Consequently, despite the fact that the father had again re married, his divorce from JudyLayne was a material change in circumstances. The court then affirmed the trial court’s award of custody to the mother.

In this case, the language adopted by the trial cour t in its November 1997 order indicates that at the point the boys reach

age twelve, the

issue of custody

will be revisited regardless of whether circumstances have changed. Indeed, the language in the order states expressly tha

t, at that point, the boys’ preference will be honored. Clearly this provision was included “as a circumstance of the Father’s custody.” Waters , at *4.

Whilethe preferenc

e of the children

is always a f

actor to be considered, in light of the express provision in the November 19 97 order, in this

case the children’s preference must be given additi onal w eight. To do otherwise would undermine the ability of parties to enter into a consent order and be confident

that the agree

d-upon terms, ado

pte d by the trial

court, will be hono

red in future proceedings. In this situation, at the least, the boys’ dec ision that they

wish to live with Mother must be deemed a material change in circumstances suf fici ent to warrant a c

hange in
cus tod y. This is particular ly so in view o

f the evidence o

f the boys’ e

motional state and actions resulting from their desire to move back to Mother’s home, now that she has sufficiently recuperated from her brain surgery. Despite the mandatory language of the November 1997 order, the trial court mus tretain the ability to consider the best interest of the children. Regardless of t he boys’ stated preference, the trial court must determine whether changing custody bac k to Mother would not be in their best inter est. As part of thi s dete rmination, the tria l court must conside

r the willingness

of each parent

to encourage a close and contin uing relationshi

p with the other parent. See Tenn. Code Ann. § 36-6- 106(a)(10)(Supp. 2000). This is importantin light of the trial court’s sta tement in its order

that “both parties have made derogatory remarks about one another to their minor children.” Equally important is Father’s admission that he voluntarily listens in on an extension to the b oys’ telephone conversations with Mother, which was not addressed by the trial court in its order. Such behavior is clearly in contravention of Mother’s “right to unimpeded telephone conversations” with the boys; itun dermines Mother’s relationship with the children and must cease. Tenn. Code Ann. § 36-6

- 110(a)(1)(Supp. 2000). The childr en should not have t

o resort to transmi

tting secret le

tters to the non-custodial parent in

order to speak freely. On remand, this issue should be addressed by the trial court. 6-7-

The decision of the trial court is reversed and remanded for further proceedings consistent withthis Opinion. Costs are taxed to the appellee, Kenny Frank Breeding , and his surety, for which execution may issue if necessary.

___________________________________ HOLLY K. LI

LLARD, JUDGE