1 M other ’s daught er f rom a pre vious m arriage also live d with M other and F ather d uring the ir marriag e, but her living arra ngem ents are not at issue in the pr esent c ustod y dispu te.



### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE January 9, 2002 Se ssion
MICHAEL WAYNE HOLEMAN v. DONNA RENE HOL EMAN
Appeal from the General Sessions Court for White County No. CV 2491 Steven C. Douglas, Judge

No. M2001-00622-COA-R3-CV - Filed October 24, 2002

After the trial court granted the parties a divorce , awarded them joint custody of their minor child, andgranted primary

physical custody

of Child to Motherfor the school ye ar, Father filed a motion to recon sider the

custody arrangement. Th

e trial c ourt deni ed the mot ion and F ather a

ppeals. We affirm t he decis ion of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Affirmed and Remanded

P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in whichB EN H. C ANT RELL , P.J., M.S., and D ON R. A SH , S P

. J., joined. Henry D. F

incher, Cookeville, Tennessee, for the appellant, Micha el Wayne Holeman. Allison M. Barker, Crossville, Tennessee, for the appe llee, Donna Rene Holeman.
OPINION

I. F acts
Michael Wayne Holeman (“ Father”) and Donna Rene Holema n (“Mother”) were married on January 17, 1991, and

lived in White County throughout their marriage. One child (“Child”) was born during the marriage on July 25, 1992. 1 The parties separa ted in June o f 1999, a

bout one month prior to Child’s seventh (7th) birthday.

Father f iled a complaint on June 18, 1999, seeking a divorce on the grounds of adu ltery , irreco ncilable

differences, and inappropriate mar ital conduct. Father

also sought custody of Child. Mother answered and counterclaimed.2 Fatherfiled a m otion asking th e trial co urt to allo w Ch ild , eight years o ld at the t ime, to test

ify duri ng the hearing. Th e trial co urt den ied the motio n, dete rmining that it was not in the best interest s of Child to tes tif y at the hearin g.
3 Adultery as a gro und fo r the div orce was no t dispu ted. Mother conceded adultery wi th Dr. Flint , although she asserted that

that relat ioshi p began wellaft er Mother and F ather were separated and after divorce proceedings were instituted.
-2- After the separation, Father moved in with his parents, a teac her and a semi-retired insurance agent, in a three bedroom home located in White County. Mother a nd Child co ntinued to

reside in the marit al home in

White County after the separ ation. Mother

and Fat her did not get al ong well, and there were a number of disagr eements , argu

ments, inst

ances of name calling and cursing, and two of these incidents resulted in Mother seekinga protective order, and after the la st she sought an assault warrant

against Father. Father

asserts t hese actions by

Mother we

re frivo lous and ta

ken to gain some advantage in this litigation.

Mother is a registered nurse, and afte r the parties’ separation she began working for Dr. F lint. She and he

r doctor employ er beg an a roma

ntic rela tionshipfour or five months before the divorce hearing and she testified at the hearing that they intended t o get married. After the alterc ation betweenMother a

nd Fathe r in Octob er, 2000 , Moth er and Child moved into the Putnam

County home of Dr. Flint.

The trial of the matter started on September 27, 2000, but was continued after the original judge re cu se d h im se lf . U lt im at el y, the trial was held on December 1, 2000. At trial, the parties ea ch offered evidence attempting to show that his or her home was the best location for the custodial placement of Child. The trial court heard testimony f rom Mother and Father as well as: (1) Doug Downs, minister of

the Cumber

land Heig hts Church

and lice nsed gu idance c ounselor

in Tennessee, who testified regarding his relationship with Mother and Father a nd his observations of Child’s relation ship with e ach par ent; (2) Child’s sec ond gra de teacher, who se classroom was next to that of Father’s mother, who testified that although both pare nts were invo lved in Child’s education, Father volunteered more in the classroom than Mother; (3) two nurses that worked with Mother, who testified that she was a good parent; (4) Fa ther’s parents, who testified that while either parent wa s fit t o raise the ch ild, Father was the better parent in their opinion; and (5) Mother ’s mother, who testifie d that in he

r opinion M other wa s the bette r paren t. 2

The tria l court granted a divorce to Fa ther on the grounds of adultery committed by t

h e Mother, 3 approved the division of the marital property a s stipulated by the parties, and a warded joint custody of Child to the parties and split primary residential custody based on the school year , stating in its final order:

The Court finds that it is in the best interests of the minor child that the parties be entitled to joint custody of the parties’ minor child, . . . . [Wife] shall have primary physical custody over [Chil d] during the school year, conditioned upon her not residing outof wedlock with Dr. Flint, or any other membe

r of the opposite sex that-3-

is not a member of

her family. [Fathe

r] shall be entitled to primary phy sical custody of [Child] during the summer months. Neither party shallhave overnight guests of the opposite sex in the presence of the minor child.

The court went on to award vis itation t o Fa ther every Wednesda

y ni ght (to a

llow Child to attendChurc h), Fri day evenin g until Sun day eve ning on the first weekend of the month, and Saturday noon until Sundaynoon on the second, third, and fifth weekend of each month during the school year

as well a s all in-se

rvice da ys. Mother wa s award

ed the sa me visitat ion while the child residedwith Father during the summer. The trial court a warded each parent

two weeks of uninterr upted visitation in th

e summer a

nd divided

holiday s.
In findings from the bench at the close of

the trial, approximately two months before the f inal order was ente red, the court aw arded Father a

divorce on the stipulated g

round of a

dult ery. In addition, the court found,

I am going to award joint

custody to the pare

nts. I am going to g

ive the mom primary physical custody, conditioned on her moving back to he r pare nts residence, or another residence of her

choice, unless, sh

e and the doctor should

ch oo se to ma rr y. But. She will not

be allowed to be living at the doctor’s home without the benefit of marriage. . . . You will move out ma’am, until such time as y ou get married. Appare ntly taking the trial court’s admonition to heart, Mother and Dr. Flint were mar ried on December 15, 2000. After the entry of the trial court’s finalorder on January 30, 2001, Father fileda moti on to recons ider t he tri al cou rt’s r ulin g based on Mot her’s i nterv ening b igamou s marr iage
on Decemb er 15, 20 00. Father arg ued in his motion to reconsider that Mothe

r’s marr iage to Dr. Flint was big amous bec ause she was not div orced f

rom Fath er until the court entered its final order and that this was another example of Mother flaunting the law and putting he r wishes above the interest s of Child. The trial court

consider ed the mot

ion on Janua

ry 29, 2001 a

nd after hearing argume nts, denied the motion and determined that Father:

has failed to prove facts sufficient to support a chang e in the minor child’s residential
sc hedule from the schedule announced by this court on December 1, 2000, and se t forth in the Final Decree . . . .

Father filed a tim ely noti ce of ap peal, presen ting t he fol lowi ng issues for our review: (1) whether the trial court er red in finding that primary

physical custody

of Child should be with Mother; (2) whether the trial co urt erred in r efusing to allow Child to testify on the issue of his custodial4 Fatherargues that the trial co urt abu sed its d iscretio n in its refusa l to allow Child to tes tif y. Tenn. Code Ann. § 36-6- 107(7) pl aces the decis ion of whe ther to h ear the prefe rence of a min or ch ild rega rding custod y within the t rial
cou rt’s discre tion. See al so Gil li am v. Gil li am , 776 S.W.2d 81, 88 (Tenn. Ct. App. 1988) (e xplain ing t hat “the trial court has wide d iscretio n in de termin ing whe ther it should take the testimo ny of a minor chi ld, and onc e thi s decis ion has been mad e his disc retion w ill be rev iewed only for gro ss abu se”); Ha ll v. Ha ll , 489 S.W .2d 3 7 (T enn. C t. App . 197 2). The
reco rd he rein refle cts no a buse of disc retion b y the trial co urt in this reg ard.
-4- preference; 4 and (3) whether the trial court

erred by failing to change its final ruling de spite Mother’s remarriage on Dece

mber 15, 2000.

II . Standar

ds for Cust

ody Arrang ements

In a suit for di vorce, courts are authorized to award the c are, custody , and control of any minor children to either parent, to both parents in a joint or shared custody arrangement, or

to some other suitable person, as the welfare and interest of the children require. Tenn. Code Ann. § 36-6- 101(a)(1). In maki ng custody decisions, courts have “the widest discretion to order a custody arrangement

that is in the best interest of the child.” Tenn. Code Ann. § 36-6-101(a)(2). A court’s determination regar

ding cu stody

must be mad

e upon the basis of the be st intere st

of the child. Tenn. Code Ann. § 36-6-106(a).
Thus, by statute as well as c ase law, the we l fare and best interest of the children ar e the paramou nt conce rn in cust ody determin ations, a

nd the g oal of an

y custody decision is to place the child in an environment that will best serve his needs. Parker v. Parker , 986 S.W.2d 557, 56 2 (Tenn. 1999); Lentz v. Lentz , 717 S.W.2d 876, 877 (Tenn. 198 6); Luke v. Luke , 651 S.W.2d 219, 221 (Tenn. 1983). Th

e Gener al Assemb ly

has found

that “[t]he

best inter ests of the child are served by
a parenting arr

angeme nt that be st maintains a child ’s emotio nal gr owth, health and stability, and physical care.” Tenn. Code Ann. § 36-6-40 1(a). Th e aim of a custodia l arrangement

is to promote the child’s welfare by

creating an environment that promotes a nurturing relation ship wi th each parent. Aaby v. Strange , 924 S.W.2d 6 23, 629 (Tenn. 1996 ). Both t he legi slature a

nd the cou

rts have recognized the importance of stability andconsistency in a c

hild’s life and, theref

ore, in child custody arra

ngements. Tenn. Code Ann. § 36-6-401(a)(1) ; Aaby , 924 S.W.2d at 627.
Where, as here, both parents seek custody , the child’s best interest is to be determined by using an analy sis of the comparative fitness of each parent in lig ht of the particular

circumstances of the case. Parker , 986 S.W. 2d at 5 62 (ci ting In re Parsons , 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995)); Ruyle v. Ruyle , 928 S.W.2d 439, 442 (Tenn. Ct. App. 1996); Gaskill v. Gaskill , 936 S.W.2d 626, 630 (Ten

n. Ct. App. 1983); Bah v. Bah , 668 S.W.2d 663, 665-66 (Tenn. Ct. App. 1983). The comparative fitness analysis rec ognizes that no parent, as no per son, is per fect, that each parent has strengths and weaknesses, and that each ma y contribute diffe

rently to the child’s deve

lopment. Earls
v. Earls , 42 S.W.3d 877, 885 (Tenn. Ct. App. 2000 ); Gaskill , 936 S.W.2d at 630. Custody decisions
are not intended to either reward or punish parents. Earls , 42 S.W.3d a t 885; Gaskill , 936 S.W.2d at 630.-5-

In the case before us, the trial court awa rded both parents joint custody. While in sol e custody arrangements the

custodia l parent has the so le and exclusive prerogative to make major life decisions regarding the child, Rust v. Rust , 864 S.W.2d 52, 55 (Tenn. Ct. App. 1993), joint custody arrangements necessarily imply a “sharing

of parental responsibility f or decisions regarding ca re, abode, education, health, andother matters of general welf are of the child.” Shepher d v. Metc alf , 794 S.W.2d 348, 351 (Tenn. 1990); Hoefl er v. Hoefler , No. M1998-00966-COA-R3-CV, 2001 Tenn. App. LEXI S 225, at * 7 (Tenn. Ct. App. Apr. 5, 2001) (no Tenn. R. App. P. 11 application filed).

Even though a

joint custo dy a

rrang ement is or

dered, i t is still nec essary

for the c ourt to determine where the child will reside. Tha t deci sion is customarily made by determining which parent will have primary physical custody an d b y determining the amount of visitation the other p arent will have. Under the legislature’s new ter minology, the cour

ts determine a resident

ia l schedule, which designates the primary residential parent and designates in which par ent’s home the child will reside on given day s during the year. Tenn. Code Ann. § 36-6-402(5). In the case bef ore us, the trial court essentially de termined that the child would reside with his mother during the school year and with his father during the summer. Each parent was giv en liber

al visitat ion during

the time the child was resi ding with

the other parent. Thus, the trial court awarded joint custody , divided primary re sidential custody based on the school ye ar, and g ave libe ral visita ti on to the non-residential parent. The trial court made seve ral gener al statem ents fro m the benc

h prior to announc ing the r

ulings or ally , stating

in part:

The testimony basically showed that the se two parties do not have a good relation ship with each other. There was not much testimony directed to either on e of them as being unfit parents. It is clear to the Court that both of these parties love [Child ]. And. Care

for [Child]. A

nd. Want what is best fo r [Child]. It is not possible for me to put him in both of your homes, full time. . . .

Father’s objection is to the determination that child’s best interests were served by residing primaril y with Mother during theschool year , thereby g iving Mother “the majority”of residential placeme nt. Before the trial court, Father took the position that primary residential custody during the week should remain with one parent during the scho ol year, a

nd he does not take a different position on appeal. He asks that he be given primary custody of Child.

II I. B est I nterestsand Compa

rative F itness

The determination of the chi ldren’s best interest must turn on the particular facts of each
case. Akins v. Akins , 805 S.W.2d 377, 378 (Tenn . Ct. App. 1 990) ( citi ng Holloway v. Bradley , 190 Tenn. 565, 570-72, 230 S.W.2d 1003, 1006 (1950)). “There are literally thousands of things that must be taken into consideration in the lives of young c hildren, and these factors must be reviewed
on a comparativ e approach.” Bah, 668 S.W.2d at 666. When called upon to order a custod y5 Tenn . Code Ann. § 3 6-6-106 (Supp . 1999 ) states: In a sui t for

annulment , divor ce, separ ate maint enanc e, or

in any other proceeding requiri ng the court to ma ke a cu stody d eterm ination r egard ing a m inor ch ild, such deter minatio n shall be made upon the basis of the best interest of the ch ild. T he co urt shall consider all rel evant factors i ncluding the f ollowi ng where appl icable: (1) The l ove, aff

ecti on and emot

ional ti es ex ist

ing betwe en t he par ents and chi ld; (2) The dis po sition of t he parent s to provi de the chi ld wit h food, cl othin g, medical care, educat ion and other

necessary care and the degree to which a parent has been the primary caregi ver; (3) Th e imp ortan ce of c ontinu ity in the child 's life and the le ngth of time t he chil d has li ved in a stable, sa tisfactory e nviro nme nt; pro vided , that whe re there is a fi ndin g, u nder § 36- 6-106(8) , of child abuse, as defined in § 39-15-401 or § 39-15-402, or ch ild s exual abus e, as def ined in § 37- 1-602, by one (1) paren t, and that a non- perpet rat ing paren t ha s re located i n orderto f lee the perpetrati ng pare nt, that such reloc ation sh all not we igh aga inst an aw ard o f custod y;

(4) T he stability of the family unit of t he paren ts; (5) T he mental and physical health of the pare nts; (6) The h ome, s chool and commun it y re cord of the chi ld; (7) Th e reas ona ble preference of the chi ld if t welve (12) year s of age or older. The court may hear the pref

erenc e of a yo unge r child u pon requ est. Th e pre ferenc es of o lder c hildren should normally be given greater weight than t

hose of younger children; (8) Eviden ce of

physi cal or emot ional abuse to t he chil d, to t

he other parent or

to any other person; provided, that where there are all egations that one (1) parent

has committed chi ld abuse, [as define d in § 39- 15-401 or§ 39-15-402], or chil d sexual abuse, [ as defi ned in § 37 -1-60 2], ag ainst a family member, the court shall consider all evi dence relevant to the phys ical and emotional

saf ety of the chi ld, and dete rmin e, by a cl ear pr epondera nce of the evi dence, whether s uch abu se ha s occu rred. The cour t shall includ e in its dec ision a w ritten findin g of all ev idenc e, and all f inding s of fa cts connected thereto. I n addition, the court shall, where appropriate, refer any i ssues of abuse to t he juvenile court for further p roceed ings;

(9) The character and behavior of any othe r pers on who r esi des i n or f requen ts the home of a paren t an d such pers on' s i nter acti ons wi th t he chi ld. (10) Eac h par ent's past an d po te n tial for future performanc e of parenting resp onsibilities, including the willingn ess and ability of ea ch of the pare nts to facilita te a nd encourage a close and continuing pare nt-child re lationsh ip between t he chil d and the other parent, consistent with the best int eres t of

the chi ld.

6 See Parker , 986 S.W .2d at 562 (listi ng factors t o be considered).

-6- arrangement, a court must consider many factors, some of which are set out in statute, 5 and some of which have been developed through c ase law. 6

Becau se the deter mination of where a child’s best interest lies is the result of the consideration of a nu mber of fac tors in the context of a specific factual situation, Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997), it is particularly fact-driven. Rogero v. Pitt , 759 S.W.2d 109, 112 (Tenn. 1988). Trial courts must exercise broad discretion in child custody matters. Parker, 986 S.W.2d at 563. Such decisions often hinge on the trial court’s assessment of the demeanor and credibility of the parents and other witnesses. Adelsperger , 970 S.W.2d at 485. Co ns eq ue nt ly, appella

te court s are re

luctant to second- guess a trial court’s determination regarding custody and visitation. Nelson v. Nelson , 66 S.W.3d 896, 9 01 (Tenn . Ct. App. 2 001); Rutherfor d-7-

v. Rutherfor

d , 971 S .W.2 d 955, 956 (T enn. C t. App . 1997 ) (quo ting Gaskill , 936 S.W.2d at 631). Ac co rd in gl y, this cour

t will dec lin e to di sturb the custody decision of the tri al court

herein u nless that decision is bas e d on a mate rial err or of law

or the evidence p

reponde rates a gainst it. Adelsperger , 970 S.W.2d at 485.

We have reviewed the evidence pr esented in this case. Our first observation is that the evidencefully supports the court’s comment that the p arents do not have a good r elationsh ip with eachother. After their separation, Mother and Fathe r had a number of

disputes which degenerated into name ca

lling and worse. The par

ties diff ered on t heir recollections and interpretations of these interactions. Mother sought protective orders twice, which we re dismissed. She tookout an ass ault warrant against Father, and asserts it wasFather’s behavior during the incident leading to the warra nt which convinced her to leave the marital home and move in with the doctor because she was frightened. Suffice

it to say that neith er pare nt was a p articula

rly good ro le model f

or Child in t

heir deali ngs with each other. T he reco rd alsosupports the trial court’s finding regar ding each parent’s love and care for their son. Neither pa rent was shown to be unfit.

The testimony at trial revea led that both parents were fit, although bo th parties acknowledged

making p arenting decis ions that ma y not have been in

the best interest of Child. The testimonyfurther established that Child had a strong relationship with his half-sister who res ided withMother, and that Mother had done nothing to discourag e Child’s relationship with his paternal grand parents

. Although the parents disagreed a nd presented conflicting evidence r egarding each’ s involvement

in Child’s education, including who s igned more homework, the trial court resolved these differences. Each

was shown to be

involved in Child’s e ducation . At the time of trial, Child hadbeen living primarily

with Mother during the school week and was d

oing well in school. Child hadbeen at tendi ng the s ame sch ool wh ere his patern al grand moth er taugh t, and th e trial court ord ered that Child rema

in in that sc

hool. The

evidenc e showed

that Fat her wasmore ac tive in Child’s religious upbringing. Father’ s father was a ch urch eld er, and F ather ha d become active in churc h and i n Child’s church activities. The trial court’s custody and visitation arrangement accommodated Child’s church activities.

Father argue s that Mothe

r abuse d legal processes to gain an advantag e over Father in the divorce and custody dispute. The tria l court heard

testi mony on t hese i ssues and was able t o jud ge the credibility of the

witnesses. Although the trial court made no specific finding of fact regarding the protect

ive orde rs and as sault

warran t, we can infer that the trial court determined that, wha tever th e r ea l c ir cu ms ta nc es , t he y di d n ot we ig h i n f av or of or ag ai ns t e it he r p ar ty.
Father also arg ues that M other inte

rfere d with his te

lephone v

isitation wit h Child and otherwis e acted to undermine Father’s relationship with Child. Again, the parties’ interpretations of various incidents differ, but the evidence establishes that both parents made derog atory re marks about and to the other in the presence of Child. The trial cou rt made no specific finding of fact regarding either p arent’ s ability

to encourage a good r

elationship betweenChild and th e other p arent. We infer tha

t the tria l court fo und that, c omparat

ively , neither

parent w as consid

erably bett eror considerably w orse than the other in this regard.7 Th is cour t has not be en as ked t o rul e on the i ssu e of w heth er Mother ’s marri age t o Dr. Fl int was v ali d and, according to the rec ord, nei therwas the trial cou rt. W e note , howe ver, that e ntry of a judgment is generall y necessary (con tinued ...)
-8- Father’s final argument comes down to his assertions that Mother is l ess fit tha

n he is bec ause of her rel ationship

with Dr. F

lint, which bega

n after the part ies’ sep aration . A pare

nt’s sex ual infidelit y does not disqualify

that parent from receiving custody of his or her child. Varley v. Varley , 934 S.W.2d 659, 6 66-67 (Tenn. Ct. App. 1996). When such activities, however, involveneglect of
or other harm to the child, such adverse impact on the child is a valid consideration in deter mining the child’s b est

interest. Id .; Mimms v. Mimms , 780 S.W.2d 739, 745 (Tenn. Ct. App. 1989). In the
case before us, Mother not only became invol ved in an affai r with another man while the divorce procee dings were pending, she chose to move in with her paramou r, taking Child with

her, after the initial date for the hearing which wa s postponed, but b efore t he fin al hear ing. Al thou gh we do not condone Mother’ s decisio n, that situ ation doe s not per serequire a determ ination t hat Fa th er is compara tively more fit than Mother to pr ovide Child

with the c are he needs. There is no evidence in the rec ord that Ch

ild was ha rmed by these tempora ry living a rrang ements. See In re Parsons , 914 S.W.2d 889 (Tenn. Ct. App. 1995). Mother’s relationship with Dr. Flint, and more par ticularl y its effect on Child’s welfare, is one of the many factor s the trial cou rt may consider in de termining comparative fitness a

nd the child’s best interests

. Nelson , 66 S.W.3d at 90 2; Varley , 934 S.W.2d at 666-67.

The trial court heard testimony from both M other and Father, as well as a host of other witnesses and fashioned a custody arrangement designed to serve Child’s best interest. The trial judge is ina far better position than this court to observe the demeanor of the witnesses and re solve the issues in the ca se that a re base d on the tr

uthfulne ss of the witnesses. McCaleb v. Saturn Corp. , 910 S.W.2d 412, 4 15 (Tenn . 1995); Lee v. Lee , 66 S.W.3d 837, 851 (Te nn. Ct. App. 20 01) (rehearingdenied Oct . 29, 2001) ; Whitacker v. W hitacker , 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997).

Trial courts necessar ily have broad discretion to fashion custody andvisitation

arrangements in light of the unique circumstanc es of eac h case. A trial court’s determination on those issues should be set aside only when it “fallsoutside the spectr um of rulings that m

ight re asonably

result from an application of the correct lega l standards to the evidence found in the record.” Eldridge v. Eldridge , 42 S.W.3d 82, 88 (Tenn. 2001). The evidenc e herein does not p reponde rate against the trial court’s determination that Child’s best interests were furthered by an awa rd of jo in t c us to dy, division of primary r

esidential custody on

the b asis of the school yea r, designation of Mother as primary re sidential custodian for the school ye ar, and the award of liberal visitation.

IV. Motion to Alter or Amend Father sought an amendment of the cour t’s final order, asking the court the award primary custody to hi m b ec au se Mo th er ha d, pr io r t o t he en tr y of the final ord er here in, marri ed Dr. F

lint. Father argued t his m arriage was bigamous 7 an d, co ns eq ue nt ly, showed Mother’s disregard for the7 (.. .cont inu ed) before it becomes effecti ve, Tenn. R. Civ. P. 58.02, unless t he court otherwi se dire cts. In some ci rcumsta nces, divorces have been det ermined t o be effe ctiv e before ent ry of the f inal decree, or

the def icie ncy has been r emedie d. Vesselsv. Ves sels , 530 S.W .2d 71 (T enn. 1975); McCow n v. Qu illin , 48 T enn. A pp. 1 62, 3 44 S .W .2d 5 76 ( 196 0); Daniel v. Daniel , No. 02A 01-9 606 -CH -001 35, 1 998 Te nn. Ap p. LE XIS 106 (Te nn. Ct. A pp. F eb. 1 2, 1998) (no Ten n. R. App. P. 11 appli cati on filed); Miller v. Prent ice-Mil ler , No. 01- A-01 -950 5-C H-00225, 1995 Tenn . App. LEXIS 711 (Tenn. Ct. App. Nov. 1, 199 5) (no Tenn. R. Ap p. P. 11 application fil ed).
-9- law and r esulted in continuation of

the living arrangement prohibited by the court. The trial court declinedto amend the custody ar rangement previously

ordered. We affirm that decision. The trial court could have concluded that Mother’s marriag e resulted from her des ire to comply with that court’s earlier order

rather than a disregard f

or legal processes. I

n any eve nt, nothing in the record leads to the conclusion that Mother’s marriage harmed or affected Child as opposed to the alternative of moving elsewhere with Mother.

V. Conclusion

After a thorough review of the rec ord, we affirm the trial court’s judgment fa s hion ing an appropr iatecusto dy arrange ment . The costs of the appeal are taxed to Father, Micha el Wayne Holeman, for which execution may issue if necessary

.

___________________________________ PATRICIA J. COTTREL L, JUDGE