# FILED
October 3, 199 7 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHVILLE JAMES O. WRIGHT, ) ) Responde nt/Appell ant, ) Davidson Circuit No. 92D-2402 ) v. ) ) Appeal No. 01A01-9701-CV-00040 KATHY WR

IGHT STOVA LL, ) ) Petitioner/Appellee. ) )

APPEAL FROM THE CI RCUIT COURT OF DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE

THE HONORABLE MURI EL ROBI NSON, JUDGE

For the Plaintiff/Appellee : For the Defendant/Appellant : Phillip Robinson Clark Lee Shaw Nashville, Tennessee Mary Arline Ev ans Nashville, Tennessee

AFFIRMED

HOL LY KI RBY LI LL ARD , J.

CONCURS: DAV ID R. F ARM ER, J.

SAM UEL

L. LE WI S, J.OPINION

This is a child custody case. The parties had entered into a Marital Dissolution Agreement in which they had joint custody of the minor child. After thefather’s remarriage, both the mother and father filed

petitions seeking custody. The father now appeals the trial court’s orde r awarding sole cust ody of the

parties’ child to the

mother. W

e affir m. James O. Wright (“Father”) an d Kathy Wr ight Stovall (“Mother”) were married in 1989. Their only child, Daniel Ryan Wright, was born in August 1991. At the time of Daniel’s birth, both parties were working full-time. When Daniel was born, Mother took off six week s to care

for him. Father was employed as a chef at the Opryland Hote l and worked un usuall y long hour s, 5 a.m. to 11 p.m. Mother r esumed her f ull-time job for approximately four weeks. After that she worked part-tim e in order to spend mo

re time w ith the pa

rties’ child. Mothe

r was cle arly the primary caregiver during this period. In June 1992, Mother told Father that she was considering a divorce . Father i mmediately quit his position at the hotel and became much more involved in raising the child. On e month

later, Father filed for a divorce, alleging irreconcilable differences. The

parties continued

to live together until the Final Decree of Divorce was ente red in January 1993. The divorce decree incorporated a Marital Dissolution Agreement (MDA) that provided for joint custody of the ch ild with Father designated as the primary physical custodia n. The MDA

provided that Fathe

r would pay all of the child’s medical bills and Mother would pay $250 per month in child support. After the divor c e, Father continued to reside in the marital residence and Mother moved less than one mile away. After the divorce decree was enter ed in January, 1993, the parties alternated care of Daniel. At that time Daniel spent slightly more time in Mother’s care, generally spending four nights a wee k withMother

and three with Father. However, under a fairly complicated schedule, the amount of time spent with

each pa rent wasroughly th

e same. Fa

ther te stified as to a few problems between the parties d

uring this t

ime, such as miscomm

unicatio ns regar

ding Dani e l ’s care, but the record indicates that the problems were minimal. This arrang ement co ntinued un til Father ’s remar

riage in July, 1994 . Fa th er’s new wife, Lucy, worked as a radio personality, which permitted her to be a t home during the workday, except for one day per week. Mother testified that, after Father ’s remarriage, the day-to-day ac tivities regarding Daniel became more difficult to work out, with Father’s new w ife bec oming over ly involved in the decision making. T he part ies began to disagree about issues such as which2

pediatrician to use and whether Daniel should be told that Santa Claus was make-believe. Mother complained that Father began excluding her from decision making. She stated that Father explained to her that he and Lu cy were forming a

new “fa mily unit;” Mother a

lso was dis turbed by

Fa the r telling Daniel that he now had “two mothers.” In the Spring of 1995, Father received a back injury which impacted his ability to work as

a chef. Thereafter, he and Lucy have depended on her income as a radio per sonality for the family’s income. In approxim ately Apr

il, 1995, D aniel wa s exposed to chicken pox. Father’s new wife Lucy

was pregnant, and had never had chicken pox. Exposure to chicke n pox would

have be en a hea

lth risk to the unborn child, so the parties agreed that Mother would have e xclusive care of

Daniel un

til the risk of Lucy contracting chicken pox had abated. This arrangement lasted for approximately a month. After this, Mother testified that Father insisted on a change in the visitation schedule that decreased her time with Daniel. The new visitation schedule included Daniel attending day c are on Thursda ys, even though Mother was off work on Thursdays and could c are for Daniel. When asked about his insistence that Daniel spend Thursdays in day care instead of Mother’s care, Father sa

id only that he wanted Mother to “keep the agreem ent.” Fat her ack nowledge d that he s ought to gradually increa se the time Daniel sp end in

the car e of he a nd his new

wife, Lu cy, and d

ecrea se the time Daniel sp ent with Mother. Mother complained that Father had changed the docume nt at Daniel’s day care center

listing persons the day care should notify if necessary, to list Father’s wife Lucy first and Mother last. Father e xplained that he ma

de this ch ange be cause

Lucy could respond

more quickly in case of an emergency. Mother testified that Fathe r told her that it wa s his right t

o use Daniel as a “legal hammer.” Father de nied this remark. At this point Mother consulted an attor ney and f iled a pe tition in which she alleged that the problems which developed after Father’s rema rriage co nstitute d a change in circumstances and sought primary physical custody. Mother testified that, after she filed the petition, she had separa te conversations with Father and his wife Lucy. Mother testified t hat after these conversations she believedthat the parties had, for the most part, worked things out to retain j oint cust ody. Mother said that she told Father she wanted Daniel to reside primarily with her, and that Father told her he would consider it and pray about it. She testif ied that Fa

ther sugg ested tha

t they simpl

y use his attorney to document the agreed changes. Mother then stated tha t Father came to her house th e3

following Sunday morning and picked up Daniel. About fifteen minutes aft er pick ing up Dan

iel, he returned alone to Mother’s house and presented Mothe r with a proposed

agreement under

which Mother would re ceive “ standar

d vis itation;” every other weekend and one week night. Mother testified that Father told her that she had to “sign that piece of paper be fore I could see Daniel again.” When she refused, she testified that he told her

she would have to have her attorney set up a hea ring date in order to see Da niel. She stated that she was not permitte d to see D aniel fo r twelve days, unti l the trial court ordered that she be permitted visitation every wee kend. Mother stated that, after the trial court or

dered vi s itation, Father refused to permit Mother to speak with Daniel by telephone while Daniel was in Father’s care. Thereafter, Father filed a counter-petition, asserting that joint custody was no longer feasible and seeking sole custody. At trial , the par

tie s testified regarding their respective employment and ability to care for Daniel. At the time of

trial, Father was working reduced hours due to his back injury, and he and Lucy wer e depen dent on Lu cy’s inc ome as a r adio personality for

their family finances. Husband testified that

he anticipated once again being able to work full-time. He admitted having held eleven different chef pos itions at r

estaura nts throughout Nash

vill e over the past four years. Father emphasized

that Lucy was at ho me during the workday and could care for Da niel instead of sending him to day care. Father admitted that he was currently dependent on Lucy’ s income and that he and Lucy had undergone marital counseling, although both he and Lucy said their marriage was healthy. Mother has also remarried, but

her remarriage appare

ntly had little impa

ct on the r elationsh ip between the part

ies rega rding Da niel. M other’s new husband, Danny Stovall, works full-time, including eight hour s o n Sa turdays. Mother in dicated that she iscurren

tly workin

g two jobs, arriving home on Monday, Tuesday and Wednesday nights at approximately 8 p.m. At the time of the trial , Mother w as pregn ant with he r first c hild with Mr . Stovall. At trial, Mother proffered the testimony of a child psychologist, who opined that the visitation schedule in place at that time was damaging to Daniel, and that Daniel needed more time withMother. The psychologist expressed the opinion that Daniel related to Mother as primary care giver. The psychologist did not, however, interview Father or observe D aniel in his presence. At the conc lusion of th

e trial, t he trial c ourt awa

rded sole custody of

Daniel to Mother. The trial cou rt set for th its findi ngs and explained its reaso ning as fo llows: That the rema

rriage of [Fathe

r] and in tervent ion of the

st ep-moth er and4

changing of sched

ules initia

ted by [Fa

ther] ha ve cause d the jo int cust ody arrangement previously approved by the Court to become unwor kable. That until the arrangement became unworkable, both par ties shared custody of the child , but [Mother] had more time

with the child

which pattern was acquiesced in by [Father]. That the court takes into consideration the tender years doctr i ne but conc ludes it to be only one consideration which the Court is to consider pursuant to statute. That there is no evidence that either of t h e parties continues to have any lifestyle t hat would not be conducive and in the best interest of the welfare of the child. That

there is no evidence presented to the Court that either of the parties now uses illegal drugs even though there is evidence that both did so in the past. That the proof shows that the parties now have differe nt lifesty les at the

time of this hearing than the ones they had at the time of the divorce. That, taking into

consider ation the testimony o f all of th

e witness es, their demeano r, their a ttitudes, their controlling natures and expert testimony presented, the Court f

inds that b oth of the se partie s are fit and prop er pare

nts. That at this time, the Court finds that it is in the best interest of the child and evidence so indicates that so le and absolute custody of the minor child shall be awarded to the Mother, . . . . The trial court then set for th a vi sitation schedule in which Daniel resides primarily with Mother during the school year, a

nd primar ily with Father du

ring the s ummer mont

hs. The tr

ial cour t also included the following in its Order: That the R

esponde nt, James Otis Wright, Jr., and his cu rrent sp ouse, Luc y Wright, shallbe ENJOINED AND RESTRAINED from attempting to alienate the affections of the minor child from the Petitioner [Mother]. Father now appeals the trial court’s award of sole custody to Mother. On appeal, Father first as serts tha t the trial court erred in finding that there was a mater ial change in circumstances warranting a change in c ustody. Father also asserts that, even if there were

a material change i n circum sta nces, the preponderance of the e vidence did not support the trial court’s decision to award sole custody to Mother. In child custody cases, a

ppellate review i s de novo upon the record, with a presumption of the correctness of

the trial court’s factual findings. Tenn. R. App. P. 13(d); Hass v. Knighton , 676 S.W.2d 554 , 555 (Te

nn. 1984) ; Dalton v. Dalton , 858 S.W.2d 324, 327 (Tenn. App. 1993). Father asserts first that the trial court erred in determining that there was a material change in circumstances justifying a cha nge in cus tody. In e ssence, Father a sserts tha t the par ties should return to ajoint custody arrangement. However, in his counter-petition before the trial court, Father asserted that joint custody “is no longer workable or feasible, nor is it in the best interest of the minor child of the parties.” At trial, Father testified that the joint custody arrangement in place since the divorce decree had not worked. Mother testified that the joint custody arrangement had not worked5

since Father’s remarriage. At trial, Mother testifiedabout a number of incidents which she alleged indicated that joint custody had not worked since Father’s remarriage

. These included Lucy’s over-involvement in the parties’ decision s regar

ding Dani el, Father’s unilateral changes to the visitation schedule to reduce Mother’s time with Daniel, and Father’s insistence that Daniel spend time in day care on da ys Mother was available to care for him. Mother also complained of instance s whic h she alleged indicated that Father sought to have Lucy replace her asDaniel’s mother, such as pl acing Lu cy first

o n the day care’s list of persons to notify, and telling Daniel that he had “two mother s.” Mothe r further cited Father’s refusal to allow her to see Daniel without a cour torder and, after the trial court ordered visitation, his refusal to permit her to speak with Daniel by telephone. Where the parties have agre ed up on joint custody and the arrangement later becomes unworkable, this is a sufficient change of circ umstances to warrant a re-evaluation of the custody arrang ement. See Dalton v. Dalton , 858 S.W.2d 324, 326 ( Tenn. Ap p. 1993); Dodd v. Dodd , 737 S.W.2d 286, 290 (Tenn. App. 1987). The practical problems of joint custody have been repeat edly acknowledged

by this court, especially if there is hostility between the two parents. See Winchester

v. Winchester , No. 02A0 1-9604-C H-00092, 1997 WL 61 508 (Ten n. App. Fe

b. 14, 1997 ); Jones v. Jones , No. 01-A-01-9601-CV00038, 1996 WL 512030, at *4 (Tenn. App. Sept. 11, 1996). Father notes that the Marital Dissolution Agreement entered into by the parties states that the minor child will reside p rimarily with him. Ho wever, the proof establish ed that, u ntil Father insisted

on a new visitation schedule that decreased Mother’s time with Da niel, the child spent virtually equal amounts of time with each parent, spending slightly more time with Mother. This Court has repeatedly emphasized the importance of sta bility forch ildren inv olved in divorce. See Williams v. Williams , No. 01A01-9610-CV-00468, 1997 WL 272458, at * 7, Tenn. App. May 23, 1997); Contreras v . Ward , 831 S.W.2d 288, 290 (Tenn. App. 1991) (quoting Sartoph

v. Sartoph , 31 Md. App . 58, 354 A .2d 467, 47 3 (Md. 197 6)) (“I n short, when all go es well w ith child ren, stabili ty, not change, is in their best interests.”). However, the testimony indicates that Daniel’s curren

t situation is un stable, with significant conflict between his parents. To succeed, joint custody “require[s] a harmonious and cooper ative relationship between both parents.” D odd v. Dodd , 737 S.W.2d at 290. Both parties testified that joint custody had become unworkable, although eachsaw the other

as the problem. The psychologist hired by Mother testified that Daniel’s behavior6

worsened as the conflicts between

his parents increased. The record contained sufficient evidenc e to support

the trial court’s decision

to re-evaluate

the custo dy arra

ngement. After it is determined that a material change in circ umstance s has occurred, s ufficie nt to

warran ta re-evaluation of the custody arrange ments, the trial court must perform a comparative fitness analysis to make a custody determination. See Williams , at * 7. The trial court’s findings in making a comparative fitness analysis were cursory in this case : That, taking into consideration the testimony of all of t he witnes ses, thei

r demeanor, their at titudes, their controlling natures and expert testimony presented, the Court finds tha t both of these par

ties are fit and pr oper par ents. That at this time, t he Court finds that it is in the best interest of the child and evidence so indicates that sole and absolute custody of the mino r child shall be awarded to the Mother. . . . The trial court also included in its order the following injunctive relief: That the R

esponde nt, James Otis Wright, Jr., and his current spouse, L

ucy Wright, shallbe ENJOINED AND RESTRAINED from attempting to alienate the affection of the minor child from the Petitioner [Mother]. Many factors are taken into account in making the compar ative fi tness analysis. See Tenn. Code Ann. § 36-6-106. In this case, Daniel clearly loves both parents. Both parents have provided him with nece ssities. During Daniel’s infancy, Mother was clearly the primar y care giver. However, sinc e the divorce, the time spent with each parent has bee n roughly equal, with Daniel spending slightly more time with Mother. Mother proffered the testimony of the psychologist, who testified that Daniel related to Mother as the primary care giver and was distressed at the prospect of leaving Mother to go to Father’s house. However, the psychologist had not interviewed Father or seen how Daniel and Father relate to each other. Both parents have re

married . Mother a

nd her new husband

were expecting

a child a t the time of trial. Father and Lucy h ad a 6-month old son. Father and Lucy have obtained some marital counseling, but both

testified that their marriage is healthy. Father and Lucy are currently dependent

on Lucy’s income, due

to Father’s ba ck injury , but ther e is no indi cation th at they a re unabl e to provide for

Daniel. Lucy’s work enables her to be at home muc h of the time, where shecould care for Daniel. Father’s job history is somewhat unstable, with numerous job changes. At the time of trial, Father w as workin g only par t-time, because of

his injury, butanticipated going back to work full-time. There was no proof as to his work schedule when he returns to full-time work. Mother’s job history is stable, with continued employmentat Tennessee Christian Medical7

Center. However, at the time of trial, Mother was working t wo jobs, arr iving home at 8 p.m. on Monday, Tuesday

and Wed nesday n ights. Her husband also worked long hours. The record did not indicate whether this would continue after the Stovalls’ baby was born. Looking at these factors alone, the question regarding custody is quite close. H oweve r, i t should be noted t

hat the tr ial cour t, in addition to awarding custody, enjoined Father and Lucy from “attempting to aliena

te the af fection s o f the minor child” from Mother. In Varley v. Varley , 934 S.W.2d 659 (Ten

n. App. 19 96), this Co

urt affi rmed an a

ward of custo dy to the father, prima rily because of the mother’s “blatant attempt to alienate the affections of the children from their father.” Varley , 934 S.W.2d at 667. The father testified that the children had bee n told that “Dad’s bad” and had hit and yelle d at the father, with tacit encouragement from the mother and her family. In addition, the mother

had enc ouraged

the child ren’s r elationsh ip with her par amour, Mr . Ligon, wh

ile discouraging their relationship with their father. The Court stated: The record

also suggests that the children have been encouraged to develop a positive relation sh ip with Mr . Ligon, which is not to be impugned except to the extent that such is detrimental to the children’s relationship with their own father. Id . at 667. The Court then observed: We believe it [is] in the best interest of these children that they maintain a loving and nurturing relation ship with bothparents. In light of the record, we do not believe that such can be accomplished by an award of custody to Wife at this time. Id

. at 668. Therefore, where one parent has attempted to alienate the affections of the child from the other p ar ent, and h as attemp ted to subs titute a th ird pers on for the

other pa rent, thismitigates in favor of an award of custody to the other parent, in order

to prese rve the c hild’s re lationship with both parents. In this case, the record supports the trial court’s implicit finding that Father had engaged in attempts to alienate Dan iel’s affections from Mother, and to have Lucy in ef fect supplant Mother instead of being simply a loving stepparent. The record is undisputed that Father insisted that Daniel stay in day care on Thursdays, when Mother was off work andcould ca

re for h im. For a time, Father refused to permit Mother to see Daniel, until court-ordered visitation was imposed. Father refused to permit Mother to

speak with Daniel

by teleph one, and

attempte d to expla

in this by stating that the calls were distressing to Daniel. After his remarriage , Father told Daniel that he had “two mothe rs” and asked Daniel’s day care to contac tLucy beforecontacting Mother, purportedly because Lucy could get there more quickly. As stated in Varley , it is in Daniel’s best interest to “maintain a loving8

and nurturing relationship with both parents,” and we agree with the trial court’s implicit finding that this is best accomplished by awarding custody of Daniel to Mother. The award of sole custody to Mother is therefore affirmed. Mothe r seeks at torney’s fees on appeal. We do not find an a ward of attorney’s fees appropr iate in thi s case, a

nd so dec line Mothe

r’s req uest. The decision of the trial court is affirmed. Costs are taxed to the Appellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR: DAVID R. FARMER, J. SAMUEL L. LEWIS, J.