### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 15, 1999 Sessi

on SUZETTE MARIE ELDER v. SIDNEY LEE ELDER
Appeal from the Circuit Court for Franklin County No. 98-50-CV J. Curtis Smith, Judge

No. M1998-00935-COA-R3-CV - Filed September 14, 2001

This appeal involves a post-divorce custody dispute precipitated by the custodial parent’s decision to accept a job in Te

xas. The custodia

l parent request

ed the Cir cuit Court for Franklin County to permit the parties’ children to accompany him to Texas an d to adjust the visitat ion arrangement

s accordingly. The non-custodial parent respond ed by re questing the trial court to change custody. Following a bench trial, the trial court declined to change the existing custody arrangement and permitted the custodial parent to move to Texas. On this appeal, the non-custodial parent takes issue withboth the deni al of her petition to change custody and the approval of the custodial parent’s
move to Texas. We have determined that the record supports both of these decisions and, therefore, affirm the trial c

ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W ILLIAM C. K OCH , J R ., J., deli vered the opinion of the court, in which WILLIAM B. C AIN and P ATRICIA J. C OTTRELL , JJ., joined. Tamra Lee Smith, Shelbyville, Tennessee, for the appellant, Suzette Marie Elder. Robert L. Huskey, Manchester, Tennessee, for the appellee, Sidney Lee Elder.
OPINION

I.

Suzette Elder and Sidney Elder

were divorced

in April 1997. Mr. Elder received custody of their two pre-teen children. Ms. Elder received defined visitation rights and was ord ered to pay child support. Ms. Elder did not remarry and continued to operate a daycare center in Winchester. Mr. Elder later rema

rried, and he, hi

s new wife, and th

eir combinedfour children also remained in the Winchester area.1 Taylor v. Taylor

, 849 S.W.2d 319, 328 (Tenn. 1993) ; Gorski v. Ragains , No. 01A01-9710-GS-00597, 1999 WL 511451, at *4-5 (

Tenn. Ct. App. J

uly 21, 199 9) (No T enn. R. A pp. P. 11 application filed); see also National Interdisciplinary Colloquium on Chil d Custody, Legal and M ental Health Perspectives on Child Custody Law: A Deskboo k for Judges § 5:1, at 51 (1998).
-2- While the parties, for themost part, we nt on with their lives following the divorce, they experienced

some difficulty adjusting to the role of divor ced parents. The

ir children, as is

most often the case, have born

e the brunt of thes

e problems. Ms. Elde

r had problems

reaching the children by telephone and visiting them at school. The parties squabbled frequently about visitation. They were also unable to agree

on the proper app

roach to raising t

heir children. Ms . El der particular ly disagreed with the manner in w

hich Mr. Elder’s n

ew wife physical

ly d isciplined the par

ties’ daughter. Apparently their daughter did not get along well with her stepbrother and believed that her stepmother was not treating her fairly.

Mr. Elder began l ooking for a better job because he had a larger family to support. In January 1998, after looking close to home without much success, he accepted a higher paying job in Houston, Texas as

a project schedu

ler in the oil

and gas industry. Thereafter, Ms. Elder filed a petition in the Circuit Court for Franklin County asserting that she was not receiving the visitation she was entitledto under the divorce decree. Mr. Elder then filed a petition requesting the trial court to authorize his relocation to Texas and to adjust Ms. Elder’s visitation rights accordingly. Ms. Elder
re sponded with a petition requesting the trial court to change custody or to deny Mr. Elde r permission to move th e chi ldren to Texas be cause moving to Te

xas would not be in th

eir best interests. Following a benchtrial in February 1998, the trial court determined that Ms. Elder had not provedthat a change of custody was warranted or that moving to Texas was not in the children’s

best interests. Accordingly, the trial court permi

tted Mr. Elder to move the children to Texas and modified the visitation arrangements to accommodate the move. On this appeal, Ms. Elder insists that the trial court erred bynot granting her petition to change custody and by permitting Mr. Elder to move the childre

n to Texas.

II. M S . E LDER ’ S P ETITION TO C HANGE OF C USTODY
Ms. Elder’s first argument is that the trial court erred by failing to recognize a material change in the children’s circumstances following Mr. Elder’s rema rriage. Specifi

cally, she asser

ts that her daughter’s diff

iculties with her stepmother and stepbrother provide ample grounds for changing custody. We disagree.
A.

Because of the importance

placed on stability

and continuity of pl

acement, 1 there is a

strong presumption in favor of an existing custody decision. Taylor v. Taylor , 849 S.W.2d at 332 ;-3-

Hoalcraft v. Smithson , 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). In fact, a custody decision, once made and implemented, is res judicata upon the facts in existence or reasonably foreseeable when the decision was made. Young v. Smith , 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Solima v. Solima , 7 S.W.3d 30, 32 (Tenn. Ct. App. 1998); Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997).

Life in contemporary society is, however, rarely static. Accordingly, our sta tutory and decisional law empowers the courts to alter custody arrangements when intervening circumstances require modifications. Tenn. Code Ann. § 36-6-101(a)(1) (Supp.2000) (stating that custody decrees
are “subject to such changes or modificationas the exigencies of the case may require”). Thus, the courts may modify an existing custody arrangement when required by unanticipated fa ct s or subsequently

emerging conditions. Smith v. Haase , 521 S.W.2d 49, 50 (Tenn. 1975); Adelsperger
v. Adelsperger , 970 S.W.2d at 485. In the interests of stability in the child’s life, a court should not alter an existing custody arrangement until (1) it is satisfied that the c hi ld’s circumstances have changed in a material wa y since the entry of the presently operative custody decree, (2) it has carefully compared the current fitness of the parents to be the child’s custodi an, and (3) it has concluded

that changing the existing custody arrangement is in the child’s best interests. Gorski v. Ragains , 1999 WL 511451, at *3.

Ther e are no bright line

rules for deter

mining when a chan

ge of circumstan

ces wil l b e deemed material enou gh to warr ant changing an existing custody arrangement. Taylor v. Taylor , 849 S.W.2d at 327; Solima v. Solima , 7 S.W.3d at 32. These decisions turnon the unique facts of eachcase. As a general matter, however, the following principles illuminate the inquiry. First, the change of circumstances must involve the child’s circumstances r ather than those o

f either or both parents. Hoalcraft

v. Smithson , 19 S.W.3d at 829. Second, the changed circumstances must have arisen after the entry of the custody order sought to be modified. Turner v. Turner , 776 S.W.2d 88, 90 (Te nn. Ct . App. 1988). Third , the changed cir

cumstances must no

t have been rea

sonably anticipatedwh en the underlying decree was entered. Adelsperger v. Adelsperger , 970 S.W.2d at 485. Fourth, the circumstances must affect the child’s well-being in some material way. Hoalcraft v. Smithson , 19 S.W.3d at 829; Dalton v. Dalton , 858 S.W.2d 324, 326 (Tenn. Ct. App. 1993).

A finding of a material change in the child’s circumstances is the threshold d etermination that
a trial court must

make. Placencia v. Plac encia , 48 S.W.3d 732, 736 (Tenn. Ct. App. 2000). If the party seeking the change of custody cannot demonstrate

that the child’s circumstances have changed in some material way, the trial court should not proceed to re-examine the comparative fitness of the parents, Caudill v. Foley , 21 S.W.3d 203, 213 ( Tenn. Ct. App. 1999), or

engage in a “bes

t interests of t he child” analysis. Rather, in the absence of proof of a material change in the c hild’ s circumstances,

the trial court should simply decline to change custody. Hoalcraft v. Smithson , 19 S.W.3d at 828.

B.-4-

Ms. Elder’s request for a change of custody rests solely on her children’s relationship with their new stepmother and stepbrother. She takes issue with Mr. Elder’s new wife’s approac h t o discipline and points out that th e children, espe

cially the partie

s’ daughter, does not like her slightly olde r stepbrother. At the time of the hearing, the children were not getting alon g and wer e apparently “tat

tling” frequently

on each other out

of vindictiveness

. This court has held freque ntl y that remarriag e alone is not the so

rt of material ch

ange in circumstances that will trigger a re-examination of an existing custody arrangement. E.g., Fulbright
v. Fulbright , No. E2000-02040-COA-R3-CV, 2001 WL 839692, at *9 (Tenn. Ct. App. July 25, 2001); Smithson v. Eatherl y , No. 01A01-9806-CV-00314, 1999 WL 548586, at *5 (Tenn. Ct. App. July 29, 1999) (No Tenn. R. App. P. 11 applicat ion filed); Arnold v. Arnold , 774 S.W.2d 613, 618 (Tenn. Ct. App. 1989). However, the changes in a c

hild’s home

environment following a parent’s remarriage

may amount to a ma

ter ial change in the c

hild’s circumstan

ces if they are a

dversely affecting the child

in some material way. Richardson v. Richardson , No. W2000-02374-COA-R3- CV, 2001 WL 687074, at *3 (Tenn. Ct. App. June 14, 2001) (No Tenn. R. App. P. 11 application filed); McCain v. Grim , No. 01A01-9711-CH-00634, 1999 WL 820216, at * 3 (Tenn. Ct. App. Oc t. 15, 1999) (No Tenn. R.

App. P. 11 applicat

io n filed); Davenport v. Dav enport , No. 03A01-9804- CV-00154, 1998 WL 880915, at *2 (Tenn. Ct. App. Dec. 17, 1 998) (No Te nn. R. App. P. 11 application filed

); Tortorich v. Erickson , 675 S.W.2d 190, 192 (Tenn. Ct. App. 1984).

Mr. Elder’s second marriage was only seven months old when the trial court conducted the hearin g in this case. There is abundant evide

nce that the membe

rs of the new fami

ly were still adjusting to each other. The children were vying for attention and for favored status, and the parents, particularly

Mr. Elder’s new wife, were being protective of their own children. Mr. Elder’s daughter and his new wife had clearly not adjusted to each other. Mr. Elder’s new wife had slapped her stepdaughter

on more than one occasion and on another occasion had shaken her so hard that it left bruises. These incidents

did not repeat the

mselves after Mr

. Elder and his

new wife agreed on more appropriate ways to discipline the children.

Ms. Elder also

complains about another incident when the children were c

aught playing with kitchen knives in the house. The evidence indica tes that this

was a spontaneous occurrence that has notbeen repeated. Mr. Elder and his new wife did not condone the behavior and, in fact, punished all the children. This single incident of misbehavior does not provide a strong e noug h reason to revisit a settled custody arrangement. Cf

. Adelsperger v. Adelsperger , 970 S.W.2d at 487 (holding that a single incide n t of fallible beha vior does not supply

a strong enough re

ason to re-adjudi

cate custody).

Trial courts necessar

ily have broad disc

retion to fashion custody andvisitation arrang ements that best suit the unique circumstances of each case. Parker v. Parker , 986 S.W.2d 557, 563 (Tenn. 1999); Suttles v. Suttles , 748 S.W.2d 427, 429 (Tenn. 1988); Helson v. Cyrus , 989 S.W.2d 704, 707 (Tenn. Ct. App. 1998). It is notour role to “twea k [these decision

s] . . . in the hopes of achieving
a more reasonable result than the trial court.” Eldridge v. Eldridge , 42 S.W.3d 82, 88 (Tenn. 2001). A trial court’s decision regarding custody or visitation should be set aside only when it “falls outside2 Act of April 22, 1998, ch. 910, 1998 Tenn. Pub. Acts 637, codi fied at Tenn. Code Ann. § 36- 6-108 (Supp. 2000).

3 The Act provided that it ta ke effect upon becoming law, and the Governor signed t

he bill on May 7, 1998. Act of April

22, 1998, ch. 910, § 2, 1998 Tenn. Pub. Acts 637, 640.

4 Neither the trial court

nor the la

wyers should be

faulted f or not invoki

ng Tenn. Code Ann. § 36-6-108 dur ing the trial court

proceedings because it became effective only five days before the tri al court entered t

he final or

de r. However, the parties ad dressed T enn. Co de Ann . § 36-6-1 08 in their appellat e briefs . The stat

ute became eff

ective while the case was st

ill pendi ng in the t

rial cour t and, as rem edial legislatio n, is applicab le to proce edings filed before its effecti ve date. Caudill v. Foley , 21 S.W.3d at 208; Adams v . Adams , No. 01A01-9711-CV-00626, 1998 WL 721091, at *3 (Tenn. Ct. App. Oct. 16, 1998) (N o Tenn. R. App. P. 11 app lication filed).

5 We note par

ent het ica ll y th at our

dec is ion on t his is sue woul d have b een

the same if we had used the principl es (continu ed...)
-5- the spectrum of ruling

s that might reasona

bly result from an application of

the correct legal standards to the evidence found in the record.” Eldridge v. Eldridge , 42 S.W.3d at 88.

It is not difficult to un

derstand Ms. Elder’s concern about how her children have been fairing withMr. Elder and his new wife. She had good cause to object to the manner in which Mr. Elder’s
new wife had tried to discipline her daughter. But as far as this record shows, similarincidents have notoccurred since

Mr. Elder requested his new wife to follow a different course when disciplining the children. While we do not condone the stepmother’s co nduct, we d ecline to find tha t these incidents, in a nd of themselves, amount to a material change in the children’s circumstances that require a reconsideration of the initial custody decision. Based on this record, we have no reason to conclude that the trial court based its decision not to change custody on the wrong legal principles or on an incorrect application of these principles to the facts of this case.

III. M R . E LDER ’ S M OVE TO T EXAS
Ms. Elder also takes issue with the trial court’s decision to permit Mr. Elder to relocate the children to Texas. She asserts that the evidence does not support the trial court’sconclusions that Mr. Elder’s decision to move to Texas was not vindictive and t hat moving the children to Texas would not expose them to a threat of specific and serious harm. We ha ve d etermined that the evidence fully supports the trial court’s decisionto permit Mr. Elder to move the c hildren to Texas.

When this case was tried in February 1998, the principles governing the relocation of children were derived e

xclusively from Aaby v. Strange , 924 S.W.2d 623 (Tenn. 1996). However, before the trial court en

tered its fin

a l order, the Tenn

essee General

Assembly enacte

d a statute providing a procedure and the governing principlesfor relocation c ases. 2 Tenn. Code Ann. § 36-6- 108 took effect on May 7, 1998 3 and, therefore, governed the trial court’s order that was filed on May 12, 1998. 4 Accordingly, we will review Ms. Elder’s challeng e to the trial court’s relocation decision using Tenn. Code Ann. § 36-6-108. 55 (...continued)

contained in the Aaby v. Strange decision.
-6- Tenn. Code Ann . § 36-6- 108(d) reflects a legislatively mandated presumption in favor of relocating custodial parents who spend “the greater amount of time with the child.” It provides that

The parent spending the g reater amount of time with the child sh

all be permitted to re

locate with the ch

ild unless the cour

t finds: (1) The relocation does not have a reasonable purpose; (2) The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of a change of custody; or (3) The parent’s motive for relocatingwith the child is vind ictive in that it is intended t o defeat or deter visitation rights of the noncustodial parent or the parent spending less time with the child.

Should the trial court find that

any one of

the three circumstances identified in Tenn. Code Ann. § 36-6-108(d) exists, it must then de termine whether

the proposed relo

cation is in the child’s best interests using the factors included in Tenn. Code Ann. § 36-6-108(e).

Even though the trial court did not apply Tenn. Code Ann. § 36-6-1 08 when it render ed its decision, its findings are consistent with a conclusion that Ms. Elder failed to prove that any of the three circumstances identified in Tenn. Code Ann. § 36-6-108(d) exist. The trial court concluded, in effect, that Ms. Elder had failed to prove either th

at the move to Texa

s posed a threat of

specific and serious harm to the children [Tenn. Code Ann. § 36-6-108(d)(2)] or that Mr. Elder’s motive for moving to Texas with the children was vindictive in that it w as intended to defeat or deter her visitation rights [Tenn. Code Ann. § 36-6-108(d)(3)]. The evidence supports the trial court’s conclusion.

Mr. Elder testified that he and his new family were “liv ing from week-to-

week.” Because his employer was in the process of cu tting back and layi

ng off employees,

he was not sure ab

out his employment

future due to his low seniority among his co-workers. Because of his larger family and cloudedemployment future, he began investigating job opportunities inthe Huntsville, Alabama area because he preferred

to remain in Franklin County. Mr. Elder’s search for local employment was unsuccessful,

but he heard through word of mouth about a job opportunity in Houston. When he pursuedthis lead, the Hous ton company offe

red him a job and an over 40% increase in salary. Mr. Elder stated that

his decision to accept

the job was “stric

tly economical” a

nd was motivated by

his desire “to provide for my whole family.” Like the trial court, we have no reason to doubt that Mr. Elder needed to incre

asehis income to maintain the standard of living he wanted to provide for his family. Accordingly, the record fully supp

orts the conclusio

n that Mr. Elder ha

d a reasonable purpose for moving [Tenn. Code Ann. § 36-6-108(d)(1)].-7-

Ms. Elder failed to present any evidence demonstrating the sorts of specific and serious harm described in Tenn. Code Ann. § 36-6-108(d). Because these circumstances are not intended to

be
an exhaustive list of the circumstances that justify denying a custodial parent’s request to relocate,
we have reviewed t

he record in an e

ffort to identify a

ny other evidenc

e that t h e children might be exposedto some

sort of other spec

ific harm in Texa

s that they would not

be exposed to in

Franklin County. We have found no such circumstances. Accordingly, we agree with the trial court’s conclusion that Ms. Elder failed topresent evidence to support her claim that the children will be exposed to a thre

at of specific a

nd serious harm if

they accompany M

r. Elder to Texas

. Finally, we turn to Ms. Elder’s assertion that Mr. Elder is being vindictive and that his chief motive for moving to Texa s is to frustrate he

r visitation rights.

There is no questio

n that th e relationship

between Mr. Elder and

Ms. Elder from the

ir divorce in Apri

l 1997 through the February 1998 hearing had not

been harmonious.

It is also evident that Mr. Elder had not been as supportive of Ms. Elder’s efforts to visit with the children in person and by telephone as he should have been. However, on balance, Mr. Elde r’ s conduct does not require us to conclude that he accepted employment in Houston to get back at Ms. Elder and to frustrate her efforts to visit her children.

This court understand

s full well that it will not be ea

sy for Ms. Elder to

be separated by such a distance from

her two young children. However, when parents decide to divorce, they surrender the marital privilege

of jointly rearing

their children, a

nd the courts

must apportion the child-raising responsibilities between them. Wall v. Wall , 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995). Once the courts have fashioned a

custody and visitat

ion arrangement

in which one pare

nt is awarded primary physical custody, the decisions regarding the children’s education and residence fall to the custodial parent. Rust v. Rust

, 864 S.W.2d 52, 55 (T

enn. Ct. App. 1993) . Ms. Elder certainly may continue to visit the children and take part in their lives, but sh

e may not, under th

e facts in this rec

ord, insist that they be kept near her.

IV.

We affirm t he judgment and remand the case to the trial court for whatever further proceedings may be required. We ta x the costs

of this appeal to Suz

ette Marie Elder

and her surety for which execution, if necessary, may issue.

_____________________________ WILLIAM C. KOCH, JR., JUDGE