### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON February 20, 2001 S ession LORRIE JEAN BARNES v. RICHARD DARYL BARNES, JR. A Direct Appeal from the Chancery Court for Madison County No. 51563 The Honorable Don H. Allen, Judge, Sitting by Interchange

No. W2000-01285-COA-R3-CV - Filed April 18, 2001

Father filed a petition for change of custody of the par ties’ three minor children. After an evidentiary

hearing, the trial court found that there had been a material change of circumstances and that a change of cu

stody to Fath

er was in the best interest of the children. Mother has appealed. We affirm. Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and H OLLY K IRBY L ILLARD , J., joined. Michael L. Weinman, Henderson, For Appellant, Lorrie Jean Barnes Mary Jo Middlebrooks, Jackson, For appellee, Richard Daryl Barnes, Jr.
OPINION

Lorrie Jean Campbell (formerly Lorrie Jean Barnes) (Mother) and Richard Daryl Barnes, Jr. (Father) were divorced by order entered January 13, 1997. Mother received custody of the parties’ three minor chil dren : James Daryl Barnes, born December 25, 1986; Richard Blake Barnes, born December

25, 1989; and Jesse

Katherine Barne

s, born May 14, 1991. Father was granted visitation. Father remarried in April 1998 and subsequently moved to West Carrollton, Ohio, where he now lives with his wife and her teenaged son. On June 14, 1999, Father filed a motion for change of custody of the three minor children. The motion alleges that

since the grantin

g of the divorce,

there has occur

red a ma terial change of circumstances warranting a change of custody in that

Mother has allowe

d Don Patrick Campb

ell to live in the household

with the minor children wit hout the benefit of

marriage. The mo

tion also alleges that Mr. Campbell abuses alcohol and becomes violent when drinking, that said

Campbell has threatened one

of the minor childr

en, that said Campb

ell, while drunk, pushedBlake Barnes off the porch in

March of 1999, and that a relative of Mother contacted Father because of her concern1 Mr. Cam pbell wa s apparen tly convic ted of abu sing M rs. Campbell and was require d to att end counseli

ng sessions as part of that

convicti on. Followi

ng the thi

rd incident

of abuse which oc curred withi n a month of his marr

iage to Mrs. Campbell , Mr. Campbell’ s parole was revoked and he was r

emanded to stat

e custody.
2 The children apparently t old the Guardian ad Litem that Mr. Campbell hel

d a phalli

c object i

n front of his groin an d told the c hildren th at this was w hat he w as going to “stick into th eir mom .”

3 The partie s’ oldest

child t old theGuardian ad Litem that he want ed to conti

nue to li ve with his

mother so he could “p rotect her.” -2- for the welfare of the children. The motion also asserts that Mother has had eight di ffere nt residences with the minor children since the divorce was granted, that the oldest child, normally a good student, is having trouble at school andwith his health bec ause of stress-r

elated problems,

that the children have had ongoing problems with head lice and that Mother interferes with Father’s visitation in variou

s ways.
An evidentiary hearing was held March 4, 2 000 and proo f was introduced supporting the ab ove- stated allegations in the motion. In addition, proof was introduced concerning Campbell’s use of alcohol and drugs and his resorting to violence while under their influence. Campbell had repeatedly

assaulted Mother and is presently incarcerated as a result of such an assault. 1 The record reflects that Mother, while living with Campbell in the household with the chil dren, became pregnant withCampbell’s child, and after the child’s birth, she and Campbell married. The violence between Mo therand Campbel l was of such an extent that at least one of the children has hidden in the bathroomduring a fight, and another child has had stre

ss-related hea

lth problems. The Guardian ad Litemreported

that the children

advised her that C

ampbell made inappropria

te sexual comment

s in front of them 2 and that they fear for their Mother’s safety. 3 Evidence wa s also introduced that Mother continues to smoke i

n the home and in her automobile in spite of the fact that the youngest son has asthma. At the c onclusion of the ev

identi ary hearing, the trial court, in granting Father custody, recited his findings, which were made part of the order for change of

custody entered May 26, 2000. The findi

ngs provide in par

t:

. . . Ms. Barnes has . . . e

xposed these child

ren toa lot of things since June of ‘98. She’s allowed this Mr. Campbell, Mr. Donald Patrick Campbell, to move in with her. . . ..
In October

of ‘98, he committe

d a Domestic Assau

lt against her. She continued to live with him, continued to expose her children to this verbal and abusive behavior that Mr. Campbell was. . . guilty of. Ms Campbell even admitted that the children were exposedto drugs and alcohol. Mr. Campbell had a cocaine problem. . . .
I n June of ‘99, while

she had custody of

the child ren, sh e again was assaulted by Mr. Don Campbell. This time, apparently, he wa s placed on some kind of probation and was ordered to - - t o-3- receivetreatment through Teen Challeng e . Apparently, he didn’t follow through with that. Bu t y et, sh e continued to hav e him come back t o the home. And even though he was in violation of hi s probation, he came back to the home. And then, she turns around and marries this person in November of ‘99. This is the person who has exposedher childrento - - to violence, that has been abusive and has made some very inappropriate comments in front of her children and she turns aroundand marries him and lets him live therein the home with these - - these three young children. Then, in December of ‘99, just a month after she’s married thi s guy, he assaults her again. And she was very hesitant ab ou t doing anything about it and I don’t understand why. But, she waited until January of 2000 before she ev en filed a report about it and, of course, he was, at that time, convicted of it. He adm itted to i t. His probation was violated. You know, she never has given up on him. And I submit that the only reason she’s giving up o n him now is because he’s revoked and in jail. I think it’s kind of interesting that when she was asked by the - - when the Guardian ad Litem’s report was done andshe was asked about w hether or not - - u

pon his release from jail, whether or n

ot she would allow hi

mto come

back and she said I don’t know; I don’t know. Well, that’s frightening to t he Court

. You k now, this is somebody that’s been convicted three different times of assaulting her, that’s been abusive in from of her children, and she’s wil

ling to take him back again. I just don’t understand that.
The Order also enjoins “Mother from al lowing the minor children to be in the presence of Don Patrick Campbell at any time.”
Mother has appealed, a

nd the sole

issue on appeal is

whether the trial court erred in granting a change of custody.
Since this case was tried by the court sitting without a jury, we review thecase de novo upon the record with a presumption of correctness of the findings of fact by t he trial cour t. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).
The threshold issue in a motion to modify custody is whether there has been a material change in circumstances since the initial custody determination. See, e.g. , Placencia v. Plac encia , 3 S.W.3d 497, 499 (Tenn. Ct. App. 1999); Massengale v. Masse ngale , 915 S.W.2d 818, 819 (Tenn. Ct. App.1995); Dailey v. Dailey , 635 S.W.2d 391, 393 (Tenn. Ct. App.1981). Once the trial court determines that the petitioner has demonstrated a material change in circumstances, the court next determines what custody arrangement is in the best interests of the chi ld

. See, e.g. , Placencia , 3 S.W.3d at 499; Varley v. Varley , 934 S.W.2d 659, 665-66 (Tenn. Ct. App.1996);T.C.A. § 36-6-106-4-

(2000 Supp.). Unless

the trial c ourt finds a material change in circumstances, however, the court must deny the petition to modify custody. See Placencia , 3 S.W.3d at 499.
The non-custodial parent has the burden of p roving a ch ange of circumstances. See, e.g., Nichols v. Nichols , 792 S.W.2d 713, 714 (Tenn. 1990); Musselman v. Acuff , 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991 ). Because an original custod y decree is res judicata , there is a strong presumption in favor of the custodial parent which the non-custodial parent can only overcome by demo n strating that the alleged change in circumstances is “material.” See Taylor v. Taylor , 849 S.W.2d 319, 322 (Tenn. 1993); Nichols , 792 S.W.2d at 715-16. This Court has said that a material change in circumstance

s exists “where con

tinuati on of the adjudicated cust ody will substa

ntially harm the child.” Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995)(citations omitted).
Based upon the evidence in the record, we hold that the trial court properly found a material change in circumstances in this case. T he remed y of chang ed custody is

dramatic, and it is

only appropriate

where thechange in the child’s circumstances is compelling. See Musselman v. Acuf , 826 S.W.2d 920,

922 (Tenn . Ct. App. 1 991). We believe such compelling circumstances exist here. There is ample evidence in the record to support the alle

gations of the mot

ion and, togethe

r with the proof of numerous residences in three years and the instability of

Mother’s financial situation, the evidence supports the trial c ourt’s finding of

a material chan

ge of circumsta

nces. Having proper

ly found a material chang e of circumstanc es, the trial cour

t then correctly

found that a chan

ge in custody was in the children’s best interest.
T.C.A. § 36-6-106 (S upp. 2000) requires th e trial cour t, in maki ng a determination of t he best interest of the children, to consider all relevant factors and provi des g uidance for the court’s consideration. T

he statute provide

s: § 36-6-106. Child custody
In a suit for a

nnulment, divorce, separ

atemaintenance, or

in any other proceeding requiring the court to make a custody determination rega rdin g a minor child, such determination shall be made upon the basis

of the best interest o

f the child. The c

ourt shall consid er all relevant factors including the following whe re applicable : (1) The lo ve, affectio

n and emotional ties existing between the parents and child; (2) The disposit

ion of the parents to p

rovide the child w

ith food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary care giver; (3) The importanc e of continuity in the child's life and the length of timethe child has lived in a stable, satisfactory-5- environment;provided, that wherethe re is a finding, under § 36-6-106(8), of child abuse, a s defined in §§ 39-15-401 or 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) pare n t, and that a non-pe rpetrating par

ent has relocate

d in order to flee the perpetratin

g parent, that su

ch relocation sha

ll not weigh agai nst an aw ard o f cus tod y; (4) The stability

of the family

unit of the parent

s; (5) The mental an

d physical he

alth of the paren

ts; (6) The home, school and community record of the child; (7) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preferenc

e of a young

er child upon request. The preferences of older children should normally be given greater weight than those of y ounger children; (8) Ev idence of physical or emotional abuse to the child, t o the other parent

or to any other

person; provided, that where there are allegations that one (1) parent has committed child abuse, [as defined in §§ 39-15-401 or 39-15-402], or child sexual abuse, [as de

fined in § 37-1- 602], against a fa mily member,

the court shall co

nsider all evidence relevant to the physical and emotional safe ty of the child, anddetermine, by a clear preponderance of the evidenc e , whether such abuse has occur

red. T he court shall include in its decision a written finding of all evidence, and all findings of facts connect e d thereto. In addition, the court shall, where ap pro priate, refer any issues of abuse to t

he juvenile court

for further pro

ceedings; (9) The character and behavior of any other person who resides in or frequents the home o f a p arent and su ch person's interactions with the child; and (10) Each parent's past an d potential for future performance of parenting responsibilities, including the willingness and ability of eachof the parents to

facilitate and e

ncourage a cl

ose and continuing parent-child

relatio nsh ip between the ch ild and the other pa

rent, consistent with the best interest of the child. T.C.A. § 36-6-106 (2000 Supp.). In applying th

e statute to the ca

se at bar, we ag

ree with the trial court ’s findings that a change in custody to Father is in their best interests. Theevidence establishes several statutory factors which-6-

militate against Mother’s continued custody of the children. Mr. Camp

bell’s presence

in the home poses a serious thr

eat to the physical and

mental well-being of the children, and Mother has failed to provide the children wi th a stable home environ ment. Fi nally, we note that Father’s situation appears quite stable. He is gainfully employed a nd has recently moved into a larger home which can more easily accommodate the three chi ldre n. He appears motivated, yet realistic, about the dif fic ult ies he w ill face in i nte grat ing t he ch ild ren i nto a new hom e and com mun ity.
In support of

her position, Mothe

r cites the leng

th of time the children have lived with her andthe difficulty

of uprootin

g th em from their current situation and moving them to another community

in another state.

While we agree

that it may be

a challenge f

or the children to

adapt to a new home and new s

chools, we believ

e that the move will res ult in a far more st able home environment

for the children in the long run. It can hardly be easy for a child to move seven times in a spa n of thr ee yea rs, even if t hos e mo ves are w ith in a part icu lar com mun ity.
Mother points to the children’s exemplary school records as evidence that remaining in her custody is in their best interests. The fact that these children are excellent students, through all the upheaval in their lives, app ears to be less be

cause of Mother’ s supervision th an because they are intelligent,

resilient children. Motheradmitted that she had only been to a few of the children’s parent-teacher

conferences. It is not clear whether the rea

son Mrs. Campbell has faile d to attend all of the children’s conferences is because she was u ninterested or unable to attend, or that as she testified, “they would do so well in school” that “the teachers didn’t really need to speak with” her. Given the little supervis

ion the children a

ppear to need vis-a-vis th

eir schooling, we are not inclined to believe that Moth

er is the reason f

or their success

. Mother also argues that the trial court failed to consider the wishes of her o ldes t child in making its custody determination. Certainly, the court may ta

ke into considera

tion the “reasona

ble preference

of the child if twelve (12) years of ag e or older. ” T.C.A. § 36-6-106(7) (2000 Supp.). However, in this case, we concur in the trial court’s findings that the preference of the oldest child, Daryl, should be viewed w

ith skepticis m. T he Guardian ad Litem repor t indicate s that, alt hough Daryl “expressed a def

inite preferen

ce to remain . . . w

ith his Mom,” he also stated “that he planned to protect his Mom from Campbell.” Evidence prese nted at trial that D

aryl wante

d to stay with h

is mother in order to protect her from her new husband was uncontradicted. Thi s is but further evi den ce t hat the chi ldr en w oul d su ffer sub sta nti al h arm if t hey w ere t o st ay in Mot her’ s cu sto dy.
Mother also asserts that the tr

ial court failed t

o make specific

findings regarding the factors set outin T.C.A. § 36-6-106. Although the court did not specifically invoke the statute in its Order, it is apparent that the court based its ruling on statutory factors. The statute d oes not r equire that courts enumerate each

of the ten factors in court findings or eve

n consider each

of the ten factor

s in every case.
Fin all y, Mother claims the tri a l court disregarded the recommendation of the Guardian ad Litem, and based its ruling in part on evidence which is not supported by the reco

rd. While it is

true-7-

that the Guardian did

not recommend a change of custody, it is simply a recommendationwhich the court may consider but is not required to follow.
As to evidence the court may have considered which was not in the re cord, specifically that the trial court judge indicated he believed Mother “probably has a drug and alcohol problem,” the trial court acknowledges that there is no evidence of such a problem except her close association withMr. Campbell. Howe ver, given the o

verwhelming ev

identiary f

indin gs which are

supported by the record in this matter, it does not appear that the cour t’s statement pl ayed any part in its decision. The evi

dence simply

does not preponde

rate against th

e trial court’s f

indings. Therefore, w e affirm the Order of the trial court changing custody of the parties’ minor children to Fat her. C osts of app eal ar e asse ssed t o the a ppell ant, Lo rrie Jean Campbell, and her surety.

__________________________________________ W. FRAN K CRAWFORD, PRES IDING JUDGE, W.S

.