# FILED April 6, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ GREG TOWNSHEND, Petitioner/Appellee, C.A. No. 02A01-9801-CV-00019 Vs. Shelby Circuit No. 149530-8 R.D. ERIN BLANDING BINGHAM, Respondent/Appel

lant.

__________________________________________________ __________________________ FROM THE SHELBY COUN TY CIRCUIT COURT THE HONORABLE D’ARMY BAILEY, JUDGE

Caren B. Nichol of

Memphis For Appellee Jeffrey A. Land

of Memphis For Appellant

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE This appeal involv

es a petition to modif

y child custody. Res

pondent-Appella

nt, Erin Blanding Bi ngha m (Mother), appe als from the orde

r of the trial cour

t granting the petit

ion to modify custody filed by Petitioner-Appellee, Thomas Gregory Townshend (Father).1 According to the final order of the trial court

, Mother filed an a

nswer to this

petition and also filed a count

er-petition for c

ontempt and to incr

ease child suppor

t. Neither one of

these documents is present in the record. 2 The parties were ma

rried on April 18,

1992. Father is cur

rently a refrigeration

repairman, and Mother is curren

tly unemployed hav

ing only a very spor

adic employment

history. Mother has been diagnosed as having a bipolar disorder. The parties’ only child, Caitlin Fran ces Townshend, was born January 22, 1993. After approximately four years of marriage, the parties

were divorcedby final decree entered March 12, 1996. The final decree of divorce incorporated

a Marital Dissolution Agreement which, inter alia , granted custody of the parties’ minor

child to Mother and granted Father reasonable visitation. On November 6, 1996, Father filed a Petition for Contempt, to Modify Final Decree of Divorce and for

Immediate Injunction. Inthis petition, Father requested, inter alia , that he be grantedspecific visitatio

n because Mother had prevented him from visiting the minor child and Mot her did not want him to have any contact with the minor child for a year. Mothe r subsequently

filed an answer to the petition. On November 13, 1996, Father filed a Petition for Temporary Emergency Custody and to Modify Custody asserting that a m aterial change in circumstances has occurred wa rranting that cus

t od y be changed. 1 The petition speci fically alleges that Mother

was using cocaine in the presence of the minor child and had taken the minor child to the home of one of Mother’s friends who is a professional dominatrix. On November 22, 1996, the trial court appointed a guardian ad litem to represent the child’s interests. An evidentiary hearing was held on April 11, 1997, and an order was entered

on April 22, 1997 granting emergency temporary custody to Father. On November 5, 6, and 10, 1997, a further evidentiary hearing was held, and on December 17, 1997, an order was entered changing custody of

the minor to Father. The order also required Father to pay $1,000.00 of the g uardian ad litem fee and Mother to pay $500.00 of the fee, and provided for each party to b e responsible for their own attorney’s fees. Mother has appeal ed and presents the following issues, as stated in her brief, for our review: (1) Whether the trial court used the proper s

tandard of revie

w to change custody of the minor child to the father. (2) Whether the preponderance of the evidence

supports the trial court’s decision to change custody of the minor to the father.3 (3) Whether the tria

l court erred in r

efusing to allow the attorney for the mother to adequately explore the ext ent o f the multiple per sonality

disorder of Patri

cia Clay, a key wit

ness against th e mother. (4) Whether the t

rial court erred in considering the report of the guardian ad litem

. In his brief, Father raises the issues of whether Mother’s appeal is frivolous and whether the trial court erred in not awarding him any attorn ey’s fees and in ordering him to pay twothirds of the guardian ad litem fee. Since this case was tried by the trial court sitting without a jury, we review the case de

novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law

. T.R.A.P. 13(d). This presumption applies i n child custody cases. Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984). We will consider Mother’s first two issues together. The petition to modify custody filed by Father was prompted primarily by allegations on the part of

Patricia Clay that Mother was using drugs in the presence of the minor child and that Mother had shackled the minor child to a sleeper sofa while at

Clay’s apartment on November 4, 1996. Mother vehemently denies these allegations of drug use and shackling, but admits that she did visit Clay, who she knew to be a professional do mi natrix, with the minor child and allowing the child to “play” with Clay’s “tools of the trade.” Mothercontends that the allegations by Clay are false and prompted by C lay’ s vindic tivenesstowards Mother du e to allegations by

Clay that Mother sto

le approximate

l y $400.00 from Clay when she came to visit Clay on November 4, 1996. Mother admits that she and the minor child went to visit Clay, who has a multiple personality disorder, on November 4, 1996. She admits that Clay was intoxicated at the time. She furthe r admit s that she knew Clay was a professional dominatrix and that Clay’s “tools of the trade” were lying aroundClay’s apartment. It

is also undisputed that the minor child was “playing” with the various items used by Clay as a

dominatrix. Mother denies that she went to Clay’s to smoke crack cocaine and denies that she shackled

the minor child

to the sleeper sof

a so she could use the drug. She states that the minor child had inquired as to what the handcuffs were used for and that she told her that the police use

them to “keep bad people from getting away.” She further states that she did place4

one end of the handcuffs around the minor child’s wrist and the other end around

her own, but released the handcuffs soon after. It is also undisputed that on November 4, 1996, Clay subsequently passed out on the sofa sleeper and that the m inor child fell asleep on the sofa sleeper. Some time afterward, Joe Phillips, an acquaintanc

e of both Mother an

d Cl ay, came over to Clay ’s apartment. Phill ips, Mother, and the minor child left Clay’s apartment

some time that even

ing while Clay was st

ill passedout on the sofa slee per. Mother left

a note for Clay and took a

smallamount of marijuana according to Clay and Phillips. Phillips states that he did n ot see anyone usin

g cocaine nor did it appear that Mother had been using such. Clay awoke the next morning andalleges that $422.00 was missing from the pocket of her blue jeans. Mother

denie s the alle gation that she stole the money from Clay. A few days later, Clay spoke to Father a nd t old him her version of what had transpired on November 4, 1996. Clay told Father that Mother smoked crack cocaine at her apartmen

t, that the child “played” with Clay’s dominatrix equipment, and that Mother shackled the child to the sofa sleeper, thus prompting Father to file the petition to modify custody. As previously stated, Father based his petition primarily o n t he above-allegations. He also based the petition on allegations by his brother, Bradley Townshend. Townshend testified that Mother introduced him to crack cocaine and that he and Mother had used crack cocaine together several times dur

ing 1996 at his mother

’s house where Father, Mother, and the minor child were living. During this time, Mother had moved in Father’s mother’s house even though the two were divorced because of an alleged dispute with her pare nts t hat resulted in them allegedly kicking her out of

their house. Mother and her mother deny that she was kicked out of their house. Mother contends that the proof pres ented to the trial court did not establish that there

were changed circum

stances justifying

a change in custo

dy. Instead, she a

sserts that the tria

l court erroneously applied

the comparative

fitness analysis rather than determining if there had been a change in circumstances to warrant a change in custody as required. Mother contends that Father failed to establis

h and the trial cou rt failed to require a showing that there had been a change in circumstances sufficient to justify a change in custody. She states that in order to establish a change in

circumstances, the trial court must have evidence of the circumstances of5

the parties at the time custody was awarded. Mother argues that the tr

ial court errone

ously limited the evidence to post- divorce matters,

thus preventing her counsel from developing the facts to show that no material changes in circumstances had o ccu rred since Fathe r agreed to Mother having custody of the minor child. Moreover, Mother argues tha t Father failed to m

eet his burden of s

h owi ng by a preponderance

of the evidence that a material change in circumstances had occurred to warrant

a cha nge in custody. She states that the evidence at trial revealed that there had n ot been a change in circumstances in that

Father agreed for her to have custody of the minor child when he knew that Mother

had used cocaine

prior to the divorc

e, that Mother kne

w Clay prior to

the divorce, and that she had visited Clay prior to the divorce. Furthermore, she contends that there

was a lack of credible eviden ce develope d at the trial to show that there had been a material change in circumstances. On t he other hand, Father asserts that Mother can not now contend that there was no change in circumstances since she did not make this contention at trial. He states that Mother’s counsel never asked the trial judge if he was finding that there was a significant chan ge in circumsta n ces. Nevertheless, Fa

ther asserts that

the evidence es

tablished that ther

e was a material change in cir cumstances justifying the change in circumstances. Father testified that he was unaware

of any drug use by M

other after 1994

until this was brought to his attention by other people espe cially Clay and his brother. Father also asserts that the undisputed proof of Mother’s hostility and hatred toward him and her attempts to

shut him out of the minor child’s life constitute a chan

ge in circumstances to warrant a change in custody especially when combined with Mother’s drug use. Father’s proof also showed that Mo

ther has a psychological disorder that she has left untreated, that she refuses to allow the child to participate in a n y extracurricular activities, that she is unemployed and has a very spo

radicemployment history. He further

asserts that Mother has either failed to take the minor child for her shot

s or failed to keep the records of

such, that Mother h

as never taken th

e child to the dentist, that s

he failed to

ensure that there was a specialist in place to care for the minor child’s congenital heart condition, and that Mother and her family, with whom she resides, have serious fights among one another. Father argues that

Mother admits to taking the child to the home of a known professional dominatrix and to plac ing the handcuffs on the child. Furthermore, he submits that Mother6

admits to allowing the chil d to stay in Clay’s residence and to sleep on the same bed as Clay who was intoxicated and passed out. Given the foregoing, Father asserts that the preponderance of the evidence warranted the change in custody. A decreeawarding custody of children is res judicata and is conclusive on a subsequent application to change custody unless some new fact has occurred wh ich has al tered the circumstances in a material way to make the welfare of the child req uire a change in custody. Long v. Long , 488 S.W.2d 729, 731-32 (Tenn. App. 1972); Hicks v. Hicks , 26 Tenn. App. 641, 176 S.W.2d 371, 374-75 (1943). Thus, a custody order cannot be changed absent a showing of

new facts, or “chan

ged circumstanc

es,” which requi

re an alteration

of th e original custody award. Woodard v. Woodard

, 783 S.W.2d 188, 189 (Tenn. App. 1989). Child custody cases present primarily factual, not legal questions. Rogero v. Pitt , 759 S.W.2d 109, 112 (Tenn. 1988). Although there is no hard and fast rule as to what co

nstitutes a change in circumstances, Dantzler v. Dantzler , 665 S.W.2d 385, 387 (Tenn. App. 1983) , it is well settled that th

e best interest of

the child is the par

amount considera

tion in a child custody

case. Contrera s v. Ward , 831 S.W.2d 288, 289 (Tenn. App. 1991). In Wall v. Wall , 90 7 S.W.2d 829 (Tenn. App. 1995), this Court discussed “changed circumstances”:

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 ha v e primary responsibility

for rearing the child. This decision of the Court is notchangeable exc

ept for “change

of circums tance s” which is definedas tha t 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 c

hild. Custody is not ch anged because one parent is able to furnish a more commodious or pleasant environment

than the other, bu

t where contin

uatio n of the adjudicated custody will substantially harm the child. Id. at 834 (citation omitted). The party seeking a change in custody has the burden of proving by the preponderance of the evidencethat a change in custody is in the child’s best interest. Musselman v. Acuff , 826 S.W.2d 920, 922 (Tenn. App. 1991). In child custody cases, the welfare and best interest

of the child are the paramount concern and the determination of the child’s best int

erest must turn on the particular facts of each case. Akins v. Akins , 805 S.W.2d 377, 378 (Tenn. App. 1990) (citing Holloway v. Bradley , 190 Tenn. 565, 570-72, 230 S.W.2d 1003, 1006 (1950)). In Holloway ,7

the Court stated: The determining facts in these adoptionand custody cases

are so infinite in their

variety that th e reported decision in one case is of little aid or assistance in settling the next. The supreme ruleto which all others

should yield is th e welfare and b est interest of the child. Holloway , 230 S.W.2d at 1006. In Bah v. Bah , 668 S.W.2d 663 (Tenn. App. 1983), the court established some guidelines for determining the best interest of a child:

We adopt what we believe is a common sense approach

to custo dy, one which we will call the doctrine of “compara tiv e fitness.” The paramount concern in child custody c ases is the welfareand best interest of the child. Molli sh v. Mollish , 494 S .W.2d 145, 151 (Tenn. App. 1972). There are litera ll y thousands of things thatmu st be taken into consideration in the lives of young children, Smith v. Smith , 188 Tenn. 430, 437, 220 S.W.2d 627, 630 (1949), and these factors must be reviewed on a comparative approach:

Fitness for custodial re sponsibilities is largely a comparative matter . No human being is deemed perfect, hence n o hu man can be deemed a perfectly fi t custodian. Necessarily, therefore, the courts must d

e termine which of two or more available custodians is more or less fit than others. Edwards v. Ed

wards , 501 S.W.2d 283, 290-91 (Tenn. App. 1973) (emphasis supplied). Bah , 668 S.W.2d at 666. As previously noted, there are no hard and fast rules as to what constitut es a change in circumstances.

However, Tennessee

court’s have based modification of child custody decrees

on the following crit

eria: the chara

cter of the custo

dian; the conduct o

f the custodian; an d the child’ s welfare. W. Walton Garrett, Tennessee Divorce, Alimony & Child Custody § 2 6- 5 (1997). Mo ther’s actions in taking the minor child to Clay’s apartment, a woman who wa s intoxicated at the time and who she knew to be a professiona l dominatrix, in allo

wing the child to remain in

the apartment, and in allowing the child to “play” with Clay’s dominatrix equipment call in to question her character and conduct and, most importantly, the child’s wel fare

. Moreo ver, the drug allegations against Mother, her mental condition, her hostility and hatred towardFather, her desir

e to keep the child

from fostering a relationship with Father, her actions withregard to the child’s health and participation in extracurricular activities, her employment history, and her

paranoia in general

bring her character and conduct and the child’s welfare under stricter scrutiny.8 Admittedly, there

were conflicts

in the testimony. Whe

n the resolution of

the issues in

a case depends upo

n the truthfulness

of witnesses, the t

rial j udge who ha s the opportunity to observe the witnesses in their manner and demeanor while testifying is in a far better position than this Court to decide

those issues. McCaleb v. Saturn Corp. , 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn. App. 1997). The weight, faith, and credit to be given

to any witness’s te

stimony lies in the fir

st instance with the trier

of fact, and the credibility accorded will be given great weight by the appellate court. Id .; In re Est ate of Walton v. Young , 950 S.W.2d 956, 959 (Tenn. 1997). The record is replete with several instances of behavior on

Mother’s part tha

t warrant a change in custody for the best interests of theminor child. Taken together, we cannot say that the evidence preponder ates agai nst the finding of th e trial court that

a material chan

ge in circumstances has occurred and that the best interests of the minor child are served by the award of custody to Father. Mother’s next issue is whether the trial court erred in refusing to allow the attorney for Mother to adequately explore the extent of the multiple personality disorder of Patricia Clay, a key witne ss against Mother. The menta l capacity of a w

itness may be an imp

ortant factor in assessing his or her credibility. Neil P. Cohen et al., Tennessee Law of Evidence § 617.1, at 439 (3d ed. 1995); see Ten n. R. Evid. 617; see generally State v. Barnes , 703 S.W.2d 611 (Tenn. 1985). Clay’s mental capacity at the time of t he occu rrence and at tr

ial was important in determining her credibility. Mother asserts that the trialcourt erred by not allowing her attorney to fully develop th

e extentto which Clay, a ke y witness against he

r, suffered fr

om multiple personality

disorder. She contends that her attorney, if allowed, would have been able to

elicit

more tes timony from Clay which could have altered the trial court’s perception of h er as a credible witness. Mother argues that the trial court did not avail its elf of the necessary information needed to rightfully judge the credibility of Clay. The record reflects that at one point in the attorney ’s cross -examination, the judge questioned the extent of the attorney’s exploration of the witness’s mu

ltiple personality

disorder. However, the record does not indicate tha t the j udge limited the cross-examination, and Mother’s attorney delved into the witness’s mental condition apparently to his satisfaction. In anyevent, if there had been an improper ex clusion of evidence by the trial court, the record is clear that9

Mother’s counsel never made an offer of proof of any kind. Thus, this Court cannot rule on the admissibility

of evidence when we don’t know what the evidence is, and in the absence of an offer of proof and the inclusion of the testimony in the record, thi s Court cannot consider the alleged err or. Davis v. Hall , 920 S.W.2d 213, 218

(Tenn. App. 1995) . This issue is with ou t merit.

Mother’s last issue for review is whether the trial court erred in consi dering the report of the guardian ad litem. The record reveals that the trial court, on January 31, 1997, entered by

consen tan amended orde r appointing a gua

rdian ad litem in wh

ich the parties sp

ecific all y waivedany hearsay objection to theguardian ad litem’s report. We note that neither party has referred us to t

his court order. T

his issue is totally wi

thout merit. Father presents the issue of whether the trial court erred in not awarding him attorney fees and in requiring him to pay two-thirds of the guardian ad litem’s fee. T.C.A. § 36-5-103(c) (Supp. 1998) authorizes in the court’s discretion an award o f attorney’s fees to a party who successfully pursues or defends a petition for change of custody. See D v. K , 917 S.W.2d 682, 686 (Tenn. App. 1995) ; Gaddy v. Gaddy , 861 S.W.2d 236, 241 (Tenn. App. 1992). The trial court’ s grant or denial o f an award of at

to rney’s fe es should be just and equitable under the circumstances. Sherrod v. Wix , 849 S.W.2d 780, 785 (Tenn. App. 1992). As for guardian ad

litem fees, Tenn.

R. Civ. P. 17.03 author

izes the tria

l court in its discretion to award a rea sonable fe e for guardian ad litem service. Tenn. R. Civ. P. 54.04(2) specifically

includes guardian ad litem fees in the class of allo wable discretion

ary costs. As with the award of attorney’s fees, the trial court is allowed broad discretion in the award of guardian ad litem fees. McK

eehan v. M

cKeehan , No. 02A01-9407-CV-165, 1995 WL 695124, at *3 (Tenn. App. Nov. 21, 1995). On appeal, an appellate court may disturb the trial court’s award of attorney’s fees and guardian ad litem fees only upon a clear showing of abuse of discretion

on the part of the trial court. Salisbury v. Salisbury , 657 S.W.2d 761, 770 (Tenn. App. 1983). From a review of

the record, we cannot say that the trial court abused its discretion in the award of guardian ad litem

fees and the denialof attorney fees. Furthermore, we believe that the respective parties should bea r the expense of

their own att orney’s fees for this appeal. We decline Father’ s request to decla re this a frivolous

appeal.10 Accordingly, the judgment of the trial court is affirme d, and the case is

remanded to the trial court for such further proceedingsas may be necessary. Costs of appeal are assessed against the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE