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’ two minor children. Subsequently, when the mother was required to undergo brain

surgery, the mother and father agreed, and the trial court ordered, that the father would have custody

of the children until each child reached the age of twelve, at which point the child would decide with

which parent he wished to live. After recovering from the surgery, the mother filed a petition to

change custody citing, inter alia, the children’s desire 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 change of custody. From this

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; Judgment of the Chancery Court is Reverse and Remanded.

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which DAVID R. FARMER, J. and

BEN H. CANTRELL, P. J., M.S., joined.

Joanie L. Abernathy, Franklin, Tennessee, and Howell Forrester, Pulaski, Tennessee, for the

appellant Donna Roxbury Breeding Henson.

Samuel B. Garner, Jr., Pulaski, Tennessee, for the appellee Kenny Frank Breeding. 

OPINION

DonnaRoxburyBreeding(“Mother”) and Kenny Frank Breeding (“Father”) 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 retained custody of the boys, apparently without serious problems, until November

1997. At that time, Mother learned that she would have to undergo brain surgery. She did not know

if or when she would recover sufficiently to be the boys’ primary custodian. In light of this, the
1

Previously, Mothe r had filed a p etition seeking, inter alia, a change in custody, 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 appealed.

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parties entered into an agreement which was incorporated into an order entered by the trial court.

The agreed order gave custody of the boys to Father. The order forgave Father’s arrearage in child

support, stated that Mother would not pay child support, and provided that Mother would have

visitation every other weekend and “have the right to call the children or talk with them by phone

on any occasion that she wishes. . . .” The order then stated as follows:

At the time each of these children are twelve years of age they 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 the court will make that decision for them.

Thus, under the agreed order entered by the trial court, when each boy reached the age of twelve, he

would be permitted to state which parent he wished to live with and that preference would be

honored. 

Mother recovered from the brain surgery and was left with only minor disabilities that would

not interfere with her ability to be the boys’ primary custodian. Meanwhile, problems developed

between the boys and Father and between Mother and Father. In addition, Father indicated an intent

to move with Kenny and Austin to Birmingham, Alabama. Consequently, in December, 1999, the

boys ran away from Father’s home to Mother’s home.

On January 6, 2000, Mother filed a petition for change of custody,1 pursuant to the November

1997 agreed order. She alleged that Kenny and Austin had expressed a desire to live with her.

Mother argued that there had been a material change in circumstances since the November 1997

order, citing her improved physical condition, the boys’ dissatisfaction 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

and Austin began writing letters to Mother about their feelings and concerns. The boys would write

the letters at school and give the letters to a school friend, who lived near Mother, to deliver. After

Austin would not eat some soup made by his stepmother, Father pulled down his pants and spanked

him. Finally, the night before the hearing on Mother’s petition to change custody, the boys 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 hearing was held the next day, February 25, 2000. At the hearing, Mother testified that

around 9 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 bikes
2

Although children invo lved in custod y disputes are usually questioned in chambers by the trial judge, 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.

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over seven miles from Father’s house. They were finally intercepted by a police officer who

stopped them for riding their bikes at night without lights. After talking to Kenny and Austin,

Mother called her attorney, picked up the boys and called Father to tell him where they were and

what had happened. Father was unaware that the boys were not at his home until Mother called him.

 Mother testified that she was concerned 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 been doing poorly in school. She testified that she, not Father, provides inhalers

and other 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 school. 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 Martin College. She denied the assertion

by Father’s counsel that these items were bribes to get the children 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 felt they could not say while Father was

listening over the phone.

 Father also testified at the hearing. He admitted that he listens to the boys’ conversations with

Mother, but asserted that it was for their protection because they had run away before and because

he does not trust Mother. Father claimed that he heard Mother tell 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 boys’

conversations with Mother to ten minutes each. 

Father testified that when Kenny turned twelve he offered to allow Kenny to live with

Mother, but that she refused to take one boy without the other. Father admitted pulling down

Austin’s pants and spanking him with his hand, not a belt. However, he denied doing so simply

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

he was rude and disrespectful. Father contended that the boys’ behavior had worsened since Mother

filed her petition and that disciplining them had become more difficult. Father admitted that their

behavior also began to worsen after he told them he was considering moving with them to Alabama.

He contended that the boys 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. 

At the time of the hearing, Kenny and Austin were 13 years old and 111⁄2 years old,

respectively. They testified in open court and were questioned by the parties’ attorneys, with Mother

and Father outside the courtroom.2

 Kenny and Austin both testified that they no longer wished to

live with Father, but wished to live with their mother. Kenny and Austin testified about their
3

Inexplicably, the letters were not made part of the record.

4

The lengthy, accusa tory cross-exa mination of the children by M r. Garner, F ather’s counsel, would be

approp riate if it were cross-examination of an adult defendant in 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 custody

dispute between their paren ts.

5

At the end of the cross-examination of Austin the trial judge comme nted, “Well 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 climbed 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 because they were tired of the living situation at Father’s home and wanted to live

with Mother. They said that Father did not listen to them, did not support some of their activities,

sometimes punished and yelled at them without a reason, and listened in on their telephone

conversations with Mother even though they asked him not to. Austin testified that Father pulled

down his pants and gave him a “whipping” with a belt, because he refused to eat some soup that his

stepmother made. He said that he refused to eat the soup because he was sick and that the

“whipping” left bruises on him. When asked why he wrote letters3 to his mother, Austin testified,

“I had to get it off my mind I felt so bad and I thought she needed to know.” He said that he could

not tell 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 good until the custody petition. Austin testified that he was also being

punished the night they ran away. Austin also testified that he is sick much of the time and that

Mother buys his medicine for him. He asserted that Mother took better care of him. The boys

testified that they did not eat breakfast at their Father’s house before school because it is too early.

In response to rigorous cross-examination by Father’s counsel,4 the boys denied deliberately

failing classes, denied that Mother suggested that they write letters to her, denied that Mother told

them what to write in 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

came to live with her, denied that Mother only recently began calling them every night, denied

engaging in very long telephone conversations with Mother every night, denied running away from

Father’s home simply to avoid being punished, and denied crying and screaming in the courthouse

after the prior court hearing at Mother’s suggestion.5 When asked if there was anything each boy

wanted the trial judge to know, Kenny responded, “I just want to go to my mom’s house that’s all,”

and Austin said, “I just want to go with my mom. I don’t know why I can’t. That’s where I belong.

 She cares for me.” 
-5-

In its written order, the trial court stated that, because of Kenny and Austin’s age and

maturity, their wishes must be considered. Nevertheless, Mother’s petition for change of custody

was dismissed. The trial court found that Mother failed to carry her burden of proof that a material

change in circumstance had occurred warranting a change of custody. From this order, Mother now

appeals. 

Our review of this case is governed by Rule 13(d) of the Tennessee Rules 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 correctness of the factual findings, unless

the evidence preponderates 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.

Ordinarily, the primary inquiry when considering a petition to modify custody is whether

there has been a material 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 order to be considered a material change in circumstances, the facts or circumstances

involved must affect the child’s well-being in a material way. Id. at 829. If the trial court finds 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 considered 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 case, 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 agreed:

At the time each of these children are twelve years of age they 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 the 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, 1997 order. In the hearing below, while there were questions

regarding the reasons for the boys’ preference, both were consistent, even adamant, in maintaining

that they wanted to live with Mother. 

When an agreed custody order contemplates a certain condition as a circumstance of the

custody arrangement, a change in this condition may be a material change in circumstances sufficient

to warrant a modification of custody. In Waters v. Layne, No. 01A01-9708-CV-00402, 1998 WL

136129 (Tenn. Ct. App. Mar. 27, 1998), the 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 Layne.” Id. at 4. The Court found that the father’s marriage to Judy Layne

had been of great significance to the child, because Judy Layne had been the child’s primary
6

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 for children in a custody dispute.

-6-

caregiver for over three years. The Court concluded that the specific language of the agreed order

“contemplated the child be under the care of Ms. [Judy] Layne as a circumstance of the [f]ather’s

custody. . . .” Id. Consequently, despite the fact that the father had again remarried, his divorce from

Judy Layne 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 court 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 that, 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.

While the preference of the children is always a factor to be considered, in light of the

express provision in the November 1997 order, in this case the children’s preference must be given

additional weight. To do otherwise would undermine the ability of parties to enter into a consent

order and be confident that the agreed-upon terms, adopted by the trial court, will be honored in

future proceedings. In this situation, at the least, the boys’ decision that they wish to live with

Mother must be deemed a material change in circumstances sufficient to warrant a change in

custody. This is particularly so in view of the evidence of the boys’ emotional 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 must retain the

ability to consider the best interest of the children. Regardless of the boys’ stated preference, the trial

court must determine whether changing custody back to Mother would not be in their best interest.

As part of this determination, the trial court must consider the willingness of each parent to

encourage a close and continuing relationship with the other parent. See Tenn. Code Ann. § 36-6-

106(a)(10)(Supp. 2000). This is important in light of the trial court’s statement 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 boys’ 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;

it undermines Mother’s relationship with the children and must cease. Tenn. Code Ann. § 36-6-

110(a)(1)(Supp. 2000). The children should not have to resort to transmitting secret letters to the

non-custodial parent in order to speak freely. On remand, this issue should be addressed by the trial

court.6
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The decision of the trial court is reversed and remanded for further proceedings consistent

with this Opinion. Costs are taxed to the appellee, Kenny Frank Breeding, and his surety, for which

execution may issue if necessary. 

___________________________________ 

HOLLY K. LILLARD, JUDGE