# FILED
December 22, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) WENDY ANN (JONES) GILLIAM , ) Bedford County Chancery Court ) No. 17,799 Plaintiff/Appella

nt, ) ) VS. ) C.A. No. 01A01-9801-CH-00031 ) SCOTT DAVID JONES , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Chancery Court of Bedford County at Shelbyville. Honorable Tyrus H. Cobb, Chancellor

Robert T. Carter , HENRY, McCORD, BEAN & MILL ER, P.L.L.C., Tullahoma, Tennessee Attorney fo

r Defendant/App

ellant. C. Kelly Wilson , Shelbyville, Tennessee Attorney for Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J.,W.S. : (Concurs) TOMLIN, Sp. J. : (Concurs)1 Gilliam married Da vid Gilliam in April of

1995. Jones married

Christina Topper in October of 1996.

Plaintiff Wendy Ann (Jones

) Gilliam appeals an order of the trial court removing the parties’ minor child

from her custody a

nd placing the chil

d in the custody of De

fendant Scott Dav

id Jones. For the reasons set forth below, we affirm the trial court’s modification of custody.

Gilliam and Jones were married in April of 1988. Bradley, the parties’ only child,
was born in March of 1 989. On May 1, 1992, when Bradley was

three years of age, the parties obtainedan uncontested divorce. At the time of the divorce, the parties agreed to share joint custody of Bradley. The final divorce decree, which incorporated the parties’ mar

ital dissolution agr

eement, provi d edthat Bradley should reside primarily with Gilliam but that Jones should have liberal visitation with Bradley as agreed upon by the parties. Gilliam and Jones deviseda schedule allowing Jones to have visitation with Bradley on Tuesdays, Wednesdays, Thursdays, a nd every ot her weekend through Monday night. Both parties remarried fo llowing th eir divorce. 1 From 1992 to 1997, Gilliam’s new husband David was attending college on a fu ll time basis at Tennessee Tech in Cookeville. Consequently, his contact with Gilliam and Bradley was limited during this period of time. In May of 1997, David graduated from college and began living in Tulla

homa with Gilliam andBradley on a full time basis. Three days after his graduation, David appeared at the home of Jones and handed Jones a letter stating that his Tuesday and Thursday visitation with Bradley was eliminated. Thereafter on June 24, 1997, Jones filed a petition to modify the parties divorce decree, seeking solecustody of

Bradley. After hearing the matter, the trial court entered an order granting Jones’ petition and Gilliam appeals.

In cases involving child custody, trial courts are afforded a great deal of discretion. See, e.g., Gaskill v. Gaskill , 936 S.W.2d 626, 631 (Tenn. App. 1996); Tenn. Code Ann. § 36-6-101 (a)(2) (Supp. 1998)(providing that the trial court “shall have the widest discretion to order a custody arrangement

that is in the best interest of the ch ild”). Consistent with this general principle, our review of the ruling of the tr

ial court in the inst

ant case is de novo on the record, accompanied by
a presumption of cor

rectness. See Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984); T.R.A.P. 13(d). Under this standard of review, we may only reverse the decision of the trial cour t if it i s contrary to the preponderance of the evidence. See, e.g., Masseng ale v. Massengale , 915 S.W.2d818, 819 (Tenn. App. 1995).
In order to entertain a petition to modify custody, the trial court must first find that there has been a material change in circumstances occurring subsequent to the court’s initial custody determination. See, e.g., Masseng ale , 915 S.W.2d at 819 (citing Dailey v. Dailey , 635 S.W.2d 391, 393 (Tenn. App. 1981). If the court finds that ther e has, in fact, be

en a material ch

ange in circumstances,

it then seeks to devise a custody arrangement that is in the best

interest of the child. See, e.g., Varley v. Varley , 934 S.W.2d 659, 665 (Tenn. App. 1996)(citing Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. App. 1993)); Tenn. Code Ann. § 36-6-106 (Supp. 1998). In determining wh at is in the best interest of the child, the court will assess the comparative fitness of the parties seeking custody in light of the particular circumstances of the case. See Ruyle v. Ruyle , 928 S.W.2d 439, 442 (Tenn. Ap

p. 1996); Matter of Parsons , 914 S.W.2d 889, 893 (Tenn. App. 1995).
Thus, in the instant case, we mus t first consider whether there has been a material change in circumstance

s justifying a modifi

cation of the par

ties’ existing custody ar

rangement. A material change in ci rc umstances may be caused by events occurring subsequent to the initial custody determination or

changed conditions that could not be anticipated at the time of the original order. See Blair v. Badenhope , 940 S.W.2d 575, 576 (Tenn. App. 1996)(citing Dalton v. Dalton , 858 S.W.2d 324, 326 (Tenn. App. 1993)). In the instant case, the parties initially agreed on a joint custody arrangement und

er which Bradley

would reside prima

rily with Gilliam but would stay with Jones on Tuesdays, Wednesdays, Thursdays, and every other we ekend until Monday evening. It appears that this arrange

ment worked rela

tively well until

May of 1997 when Gilliam, through her
new husband, informe

d Jones that she wou

ld no longer allow Br

adley to visit him on Tuesdays and Thursdays. Following this incident, the level of cooperation between the parties decreased. The parties no longer communicated directly with each other as they had done in the past. Rather, Gilliam’s new husband spoke with Jones on behalf of his wife regarding matters involving Bradley. Bothparties appear to concede that, for whatever reason, the cu stody arrang ement that they had agreed to at the time of the divorce was no longer working out. As we have previously held, the fact that a once satisfactory join

t custody arrange

ment has become

unworkable can constitute a material change of circumstances. See Dalton , 858 S.W.2d at 326 (citing Dodd v. Dodd , 737 S.W.2d 286, 290 (Tenn. App. 19 87)); Long v. Croxdale , No. 03A01-9801-CH-00007, 1998 WL 481976, at *22 In 1998, the statute was amended to add the factors contained in subsection ten. See

1998 Tenn. Pub. Acts ch. 1003, § 1. We recognize that subsection ten was not a part of the statute when the tr

ial court ruled on

Jones’ petition to modi

fy custody

. We nevertheless

discuss the factors contained in subsection ten because we find that they ar e among the many relevant factors that, even under the prior version of the statute, may be consider ed when determining what is in the best interest of the child. n.1 (Tenn. App. Aug. 18, 19 98). Thus, because the parties’ divorce decree did not anticipate that jointcustody would become unworkable, we find tha t there has b een a material c hange in circumstances allowing the trial court to reexamine its prior custody order.

We next consider whet

h er the evidence preponderates against the trial court’s finding that it is in Bradley’s best interest to remove him from the custody of Gilliam and place him in the custody of Jones. The criteria for modifying custody decrees are substantially the sa

me criteria

upon which custody decrees are originally made. W. Walton Garrett, Tennessee Divorce, Alimony and Child Custody § 26-5 (1998 ed.). When determining what is in the child’s best interest, the court will consider all relevant factors, including the following:

(1) The love, affection an d emotional t ies existing between the parents and child; (2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver; (3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment

. . . . (4) The stability o f the family unit of

the parents; (5) The mental an

d physical health o

f the parents; (6) The home, school and community record of the child; (7) The reasonable

preference o

f the child if twelve (12) years of age or older. The

court may hear the prefe

rence of a young

er child upon request. The preferences of older children should normally be given greater weight than those of younger children; (8) Evidence of physical or emotional abuse to t he child, to the other parent or to any other person . . . . (9) The character and beha vior o f any other person who resides in or frequents the home of a parent and such person’s interactions with the child; and (10) Each parent’s past

and potential for future performance of parenting responsibilities, including the willingness and ability of eachof the parents

to facilitate and encourage a close and continuing parent-chi ld relationship betw een the child and

the other parent

, consistent with the best interest of the child. 2

Tenn. Code Ann. § 36-6-106 (Supp. 1998); See also Gaskill , 936 S.W.2d at 630 (providing further examples of factors that may be relevant when making a child custody determination).We consider each of these statutory factors separa tely. In the instant case, it is undispute d that there is a gre at deal of love an

d affection betw

een Bradley and b

oth Gill iam an d Jones. It also appears t

hat Bradley has a

loving relationship

with both of his step pare nts. Both Gilliam and Jones are wil ling and able

to provide and care for Bradley. Although Gilliam has been Bradley’s primary custo

d ial parent, Gilliam and Jones have shared child rearing responsibilities fairly equally. Both parents have provided a stable home environment for Bradley. H owever, Gilliam desires to relocate her family to Murfre esboro, away from Bradley’s friends and family. There is no indication that either parent has any physical or mental problems affecting Bradley’s welfare. The parties agre e that Bradley is a

n exceptional ch

il d who ha s achieved succ ess in both academics and athletics. He appears to be a happy child who has adjusted we ll t o the situation created by Gilliam and Jones. Neither party alleged that the other had abused Bradleyin any way. There was evidence, however, that David, Gilliam’s new husband, was both mentally and ph ysically abusive toward his former wife.

Finally, the court must cons ider “[t]he cha

racter and beh

avio r of any other person who resides in or frequents the home of a parent and suchperson’s interactions with the child” as well as “[e]ach pa

rent’s past and po

tential for futur

e performance

of parenting res

ponsibili ties , including the willingness and ability of eachof the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent

with the best interest of the child.” Tenn. Code Ann. § 36-6-106(9), (10) (Supp. 1998). With respect to Gilliam’s new husband, the t

rial court found a

s follows:
[T]he Court is convinced

from a preponderance of the evidence that he is in the process of attem pting to alienate th

is child from his father, trying to assume that role himself by blotting out his name on the report card, listing himself as somebody in an emergency to call, by being spokesman about wh en he’s going to se

e the child

or when the visitation is going to occur. . . .

. . . . the Court

is convinced that he attempted to influence a witness in this case, whichis dangerous business. I’m convinced that he attempted to influence his ex -wife a nd those things go to h is credibility about l

eveling with the Cou

rt. Also, I have an impression from the evidence -- a clue from the evidence that he

is also in the process of disrupting the relationship

that Mr. and Mrs. Jone s had b efore he got into -- the former Mrs. Jones, the child’s mother. They had a good relationship for a divorced coupl

e in working this visitation three and four days aweek, but he stopped that. So I’m afr aid he’s disrupting that relationship.

. . . .

. . . . We had two paren

ts that were work

ing together rea

l well until the stepfather

got into the picture . That’s what it boils down to.

This finding is well supported by the evidence. At trial, Gilliam’s new husband David admitted that he listed himself inste

ad of Jones as Bra

dley’s father on

an emergency c

ontact f o rm, that he used white-out to remove Jones’ name from one of Bradley’s report cards so that Gilliam could sign the card instead of Jones, and that he got very upset when Bradley’s baseball coach gave a picture order form to Jones rather than to Gilliam. It was also alleged at trial that, on at least one occasion, David didnot allow Jones to speak with Bradl ey on the telephon

e and that he told

Bradley’s baseball coach that the child’s last name is Gilliam when in fact his last name is Jone

s. It was further

alleged that, since Gilli am’s current husband graduated from college and returned to Tullahoma, Gilliam has stopped providing Jones with information regarding Bradley’s school and athletic activitie

s. In light of this testimony, we c

onclude that the tr

ial court had ampl

e evidence with

which it could

have found that David has atte

mpted to alienate B

radley from Jone

s.

This court has previously expressed great concern where one parent has at tempte d to alienate a

child from the child’s other parent. In Wright v. Stovall , No. 01A01-9701-CV-00040, 1997 WL 607508 (Tenn. App. Oct. 3, 1997), we w ere presented w

ith factsvery similar to those of the case at bar. The parties in Wright agreed at the time of their divorce to share joint custody of their minor child. See id. at *1. This arrangement worked well until the father remarried and he and his new wif

e began e xcluding the mother from the child’s life. See id. Among other things, the mother complained that the father had removed her nam e from an eme

rgency contact card at the child’s day care center

and replaced it with the name of the father’s new wife. See id. at *2. We first noted that “where one parent has attempted to alienate the affec tions of the child from the other parent, and has attempted to su bstitute a third per

son for the other p

arent, this mitigate

s in favor of
an award of custody to the ot her p arent, in order t

o preserve the c

hild’s relationshi

p with both parents .” Id. at *6. We then affirme d the trial court’ s finding that the fa ther had attempte

d to alienate the child from

his mother andconsequently held that, under such circumstances, an award of sole custody to the mother was in the best interest of the child. See id. at *7.Similarly, in Varley v. Varley , 934 S.W.2d 659 (Te nn. App. 1996), we were presented

witha case in which th

e mother had blata

ntl y att empted to alienate the children from their father. See id. at 667. In Varley , we commented as follows:

When loved by both parents, ch ildren should be taught to love and respect each parent equally. This reciprocation, in turn, will garner self respect and a positive self image in the children. Th e record in this case lends absolutely no reason as to why the children should not be encouraged to respect and love their father. . . . Th e record also suggests that the children havebeen encouraged to develop a positive relat ionshipwith [the mother’s boyfriend], which is not to b e impugned except to the extent that such is detrimen t al to the children’s relationship with their own father. Finally, the record does notreveal any similar attempt on husband’s behalf to di ssuade th e children from having a loving relationship with their mother.

Id. at 667-68. We then held that the trial court did not err in awar ding custo dy of the children to their father. See id. at 668.

In the instant case, the trial court found that it was in the best interest of Bradley to be in the custody of Jones. We cannot say that the evidence preponderates against this ruling. We thereforeaffirm the order of the trial court awarding sole custody of Bradley to Jones. Costs of this appeal are charged to Gilliam, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. ( Concurs)

______________________________ TOMLIN, Sp. J. (Conc

urs)