# FILED

July 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

KAREN JEAN (EATHERLY) SMITHSON, ) ) Plaintiff/Appellee, ) Wilson Circuit ) No. 1074 VS. ) ) Appeal No. DAVID RAY EATHERLY, ) 01A01-9806-CV-00314 ) Defendant/Appel

lant. )

APPEAL FROM THE CIRCUIT COURT FOR WILSON COUNTY

AT LEBANON, TENNESSEE
THE HONORABLE BOBBY CAPERS, JUDGE

For Plaintiff/Appellee : For Defendant/A ppellant : Calvin P. Turner Hugh Green Lebanon, Tennessee Lebanon, Tennessee



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal involves a cus tody dispute that continued w ithout final resolution for four years over a seven

-year-old child. The Circuit Court for Wilson Cou

nty did not finally adjudicate the child’s custody w hen it divorced the pa

rtie s in 1994. During the next four years , the trial court e ntered a series of

temporary custody orders embodying different joint cus tody arrangements no

twithstanding both par

ents’ repeated requests for sole c ustody. Finally, in 1 998, the tria l court determined that the child should reside

primarily with the

mother because the

father and

his second wife were expecting a child . T h e father asserts on this appeal that the trial court shouldhav e award ed him custody because he is comparatively

more fit to be the child’s custodian. We have determined that the trial court failed t o employ proper procedures or criteria in ma king its custody decision

. Therefore, we vacate the order awarding primary physical custody to the mother and remand the case to the trial court for further

proceedings.

I.

David Ray Eatherly and Karen Jean (Eatherl y) Smi thson were marri ed in November

198 9. After

their wedding, the

y moved from Knox Cou nty to Lebanon where Mr. Eatherly worked for a construction

company, and Ms. Smithson worked for a bank. Their only

child, Kelsy West

yn Eatherly, wa

s born on July 12, 1992. T he parties separated six months later.

Ms. Smithson sought sole cus tody of parties’ daughter when she f iled suit for divorce in January 1993 in the Circuit Court for Wi lson County. Mr. Ea t herly responded by denying that Ms. S mithson had grounds for divorce and by asser ting that he was entitled to th e divorce and to sol e custody of the parties’ daughter. In March 1993, the trial court ente red an order grant

ing custody pendente lit

e to M s . Smithson and giving limited visit

ation to Mr. Eathe

rly. For the next four months,

the parties actually ha d custody of their daughter for rough ly equal amounts o f time.
The custody dispute re

kindled in

July 1993 because of Ms . Smithson’s plans to take the child on a visit to Knoxville. Mr. Eatherly believed that the child’s respiratory problems were severe enough to keep her at h ome. When Ms. Sm

ithson-3-

did not agre e, Mr. Ea therly filed a petit ion seeking temporar

y custody of the child. He asserted thatMs. Smithson was su ffering from depr

ession and that she

had failed to obtain adequate med ical care for the child. The trial court immediately conducted
a n informal hearing a

nd, after talking w

ith the child’s pediat

rician by telepho

ne , directed Ms. Smithson not to ta ke the child to Knoxvil

le until the child’s health improved. The trial court also modified the temporary custody arrangeme n t to providethat M r. Ea therly would have custody of the child each week day and that Ms. Smithson would have custody at night. The court also orde red both parents to undergo psychological examinations prior to the trial of the divorce.

The proof regarding custody presented at the December 6, 1993 trial was not to the trial court’ s liking because Ms. Smithson had not underg one the previously ordered psychologica l examination. Acc ordingly, the trial court did not finally resolve the custody question wh

en it entered its “f

inal” divorce decree on January 1 0, 1994. The trial court de

clared the partie s divorced and direc ted Ms. Smithson to ha

ve
a psychological examin

ation by the same per

sons who had already

exam ined Mr. Eatherly. As a temporary ma tter, the trial c

ourt established a joint custody arrangement

wherein Mr. Eatherly had physical custody from Monday morning u ntil Friday afternoon, and Ms. Smithson had physical c

ustody from Friday a

fternoon un

t il Monday morning.

On June 28, 1994, the trial court entered a “final” c ustody order based on a March 7, 1994 hearing. T he court awarded the

parties joint

custody of their daughter
even though neither party had requested joint custo dy. It also found that

Mr. Eatherly shouldbe the primary cust odian of the child. Ms. Smithson received visitation

with the child f

or thr ee weekends each

month and every other

Wednesday night. F

or
reasons not readily

apparent in

the record, the tr

ial court did not requi

re Ms. Smithson to pay child support to Mr . Eatherly.

Ms. Smithson filed a pet ition to modify the cust

ody decree on Febru

ary 7, 1995. She asserted in the petition that giving her custody was in the c hil d’s best interests because she had rec ently purchased a

house where she and

the child could live and because t he cur

rent arrangement

had “denied the child

the opportunity to-4-

develop anormal mother and da ughter relationship. ” Mr. Eatherly responded to the petition by den ying that any material c hange in circumstanc

es had occurred and assertingthat granting him sole custody would be i

n the child’s best inte

rests. The trial court conducte

d a hearing in June

1995, and

on July 31, 1995 entered an order finding that there had been no material ch ange in the child’s circu mstances but reserving the custody issue “pending further proof.”

The trial court conducte

d another custody hear

ing on July 2, 1996, and on July 23, 1996 entered another custody order finding t

hat it was in the chil

d ’s inte rest to continuethe joint custody arrangement. The court also determined that the amount of time the child spent wit

h each parent should be

modified because M s. Smithson
was no longer working full-time. Acc ordingly, the trial court modified the c ustody schedule to prov ide that t

he child would reside with Ms. Smithson from Sunday throughThursday each we ek and with Mr. E

atherly during the

remainder of

the week. The July 23, 1996 order al so recited that “[a ]ll other provisions of

the previous orders of the court shall

remain in force, pending further orders of this court.” A ccordingly, the decree did not represent the f inal custody determi

nation. Instead, t

he court made clear its intent to continue monitoring t he parties and the e

xisting custody arrangement.

Mr. Eatherly remar

ried sometime aft

er the entry of the J

uly 23, 1996 custody order. On August 5, 1997, two and one-half years after M s. Smith son filed her petition to modify custody and more than one year after the trial court issued its last order in the matter, the

court held

anotherhearing for the purpose of making a final custody determination. A t the conclusion

of the hearing, the c

ourt found that both pa rents were equally quali fied custodians and tha

t the child should rema

in i n join t custody. However, the trial court decided to award primary physical custody

to Ms. Smithson because of

the fact that [Mr. E

atherly’s] wife

is pregna

n t and expecting a child. It’s going t o take some adj ustm ent in their home and I don’t know how that’s g oing to wo rk. I don’t anticipate any problems but you bring a small child into the home there’s going to have to be some adjustments made. Accordingly, the trial court dete rmined th at Ms. Smithson would have primary physical custody of the child an d that Mr. Eather

ly would have the child f

or visitation-5-

every weekend except fo r the third weeken

d of each month, six w

eeks during the summer, and on alternate

holidays. The trial court a lso directed Mr. E

atherly to begin paying Ms. Smithson $500 per month in child support. An ord er e mbodying these findings and con clusions was entered six months later on February 6, 1998.

II.

Atthe outset, the extraordinary delay i n obtaining a final cus tody determination in this case demands comment. The wrangling between the parents over custody began with their separa

tion in January 1993 and has continued through the entry of the February 1998 order. During the inter venin g five years, the trial court experimented with various c ustody arrangements apparently intended to accommodate

the parti es’ circumstances at the time. Ms. Sm ithson’s last custody petition went unreso

lved for three yea

rs.

Our child custody decisions

recognize a child’ s o n going need for continui ty and stability. See Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997); Hill v. Robbins , 859 S.W.2d 355, 358-59 (Tenn. Ct. App. 1993); Contreras v. Ward , 831 S.W.2d 288, 290 ( Ten n. Ct. App. 1991) . Accordingly, t here is a strong presumption

in favor of an origin

al custody award, see Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn. 1993), that will not be overcome without proof (1) that t he child’s circumstances have materially changed in a way tha

t could not have

been reasonably foreseen at the time of the or iginal custody decision

and (2) that

the child’s interes

ts will be best served by

modifying the existing

custody arrangemen t. See Adelsperger v. Adelsperger , 970 S.W.2d at 48 5.

We have also stressed t hat prompt and final c

ustody decisions are m

ost consistent

with a child’s need for continuity and stability. In reco gnition of the inevitable bonding between the c

hild and the custodial pa rent , see Mc Daniel v. McDaniel , 743 S.W.2d 16 7, 169 (Tenn. Ct. App. 1987), we have cautioned that temporary custody decisions should be avoided unless they are necessary to protect the child or to protect th

e integrity

of the judicial proc ess. See Gorski v. Ra gains , No. 01A01-9710-GS-00

597, 199 9 WL _____, at *___ (Tenn. Ct. App. July 21, 1999); King v. King , No. 01A01-9110- PB-00370, 1992 WL 3 01303, at *2 (Tenn. Ct. App. Oct. 23, 1992) (No Tenn. R. App. P. 11 application filed).1 Specifically, the trial court obs erved during the

August 5, 1997 hearing that “I’m going to still have a joint custody situation because I think now the law says you need to do that . . ..” -6- We find no reason in this r ecord for the thre

e-year delay i n resolving Ms. Smithson’s petition for change o f cus tody or for the six dif ferent custody arrangements

the trial court devi sed between 1993 and 1997. Our role as judges i s to shield children, to the gr

eatest extent

possible, from the adverse effects of divorce. See Yeager v. Yeager , No. 01A01-9502-CV-0002 9, 1995 WL 422470, a

t *3 (Tenn. Ct. App. July 19, 1995) (No Tenn. R . App. P. 11 appl ication filed). S huttlecocking this young girl between he r parents for

over four years was simply in

consistent with this role and was contrary to the child’s best interests. It also complicates the

already difficult task of de

vising a custody arra

ngement that will now

be in the child’s best interests. See Gorski v. Ragains , 1999 WL _____, at *___ ; Bjor k v. Bjork

, No. 01A01-9702-CV-00087, 1997 WL 653917, at *2-6 (Te nn. Ct. App. Oc

t. 22, 1997) (No Tenn. R. A

pp. P. 11 applicati

on filed); King v. King , 1992 WL 301303, *2.

III.

We n ow turn to the custody arrangement prescribed in the trial court’s February 6, 1998 order. Mr. Eatherly ta kes issue with this ar

rangement by asser

ting that the trial court erre

d by refusing to grant h

imsole custody of the parties’ daughter. We have determined tha

t the trial court’s reasoning upon whic h this order is based contains two fundamental flaws that require us to vacate the order.

A.

The first fundamental flaw in the trial court’s reasoning r elates to its decisio

n to continue the joint cust ody arrang ement. Even though neither party was seeking j oint custody, the trial c

ourt decided to continu

e the joint custody arr

ange men t because of its mistaken belie

f th at jo int custody was statut orily mandated. 1 At the tim e of this hearing, joi

nt custody was not stat

utorily mandated, e

ven when bo t h parties requested it. See Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 1997) empowered the courts to award custody to both parents using either a j oint custody or shared parentingarrangement, and Tenn. Co de Ann. § 36- 6-101(a)(2) conta ined a presumption

that joint custody was in a chi ld’s best interest w hen the parents have formally agreed t

o ajoint custody arrangement. However, even when both parents-7-

requested joint custody, the trial court had the prerogative to fashion another type of custody arrangement if the record containedclear and convincing evidence that joint custody was not in the child’ s best interest. See Tenn. Code Ann. § 36-6-101(a)(2).

Neither Mr. Eatherly nor

Ms. Smithson requ

ested j oint custody in this case , and they certainly did not for mally request joint c

ustody d uring any of the numer ous hearings the trial court conducted. Therefore, the trial court erred when it determined that the statute require

d a joint custody arra

ngement in this case.

Our finding that the trial court’s reason for awarding joint custody was mistaken should not be construed
as adetermination that j oint custody is inappropria

te in this case. E

ven without the joint request of the parties, the trial court may ver

y well determine,

after carefull

y reviewing

the factors in Te

nn. Code Ann. § 36- 6-106 (Supp. 1998), that a jo in t custody arrangemen t of some sort is in t he child’s best int erests.

B.

The second

fundamental flaw

in the trial court’s reasoning was its belief that the fact that Mr. Eatherly’s current wife was pre gnant was a material change in circumstances that warranted a changeof the custody

arrangement that existed at the time of the Augu st 1997 hear ing. This conclusion is inconsistent with the settled understanding

of what constitutes a m

aterial change of

circumstances in cases of this sort.

Tenn. Code Ann. § 36-6-101 (a)(1) empower s the courts to

mo dify existing custody arrangements “as the exig encies of the case may require.” While initial custody decisions govern all factual circumstances known to the trial court at the time of their rendering,

they do not prevent a c ourt f rom later modifying a c ustody arrangement

when required by

unant icipated facts or s ubsequently emerging conditions. See Smith v. Haase , 521 S.W.2d 49, 50 ( Tenn. 1975); Adelsperger v. Adelsperger , 970 S.W.2d at 485; Woodard v. Woodard , 783 S.W.2d 188,

189 (Tenn. Ct. App. 1989). Thus,

a party seeking

to alter an existing custody ar

rangement must show (1) that the child’s

circumstances hav

e materially chan

ged in a way that coul

d not be reasonably foreseen at the time of the original custod y decision and (2) tha

t the child’s best interests will be served by changing cu stody. See Adelsperger v. Adelsperger , 970 S.W.2d at 485; see also Solima v. So lima , No. 01A01-9701-CH-2 See Final Report, Evalu ation of Child Support G

uideline s, Vol. I: Findings and Conclusions ¶ 1.2.1 (United States Dep’t of Health & Human Servs., Admin. for Children & Families, Office of Child Support Enforcement 1996).

3 See Thomas Espenshade, Marriage Trends in America: Estimates, I mplications, and Underlying Causes , 11 Population & Dev. R. 193 (1985).

4 See Marianne Takas, Addressing Subsequ ent Families in Child

Support Guidelines 37, in Child Support Guidelines: The Next Generation (Margaret C. Haynes, ed. 1994). -8- 00012, 1998 WL 726629, at *3 (Ten n. Ct. App. Oct. 16, 1998), perm. app. denied, (Tenn. Apr. 19, 1999).

Commonexperience teac hes that many divorced persons in contemporary society will decide to mar ry again and to

start a new family. This understanding is borne out by statistics showi ng that an estimated seventy-five perce nt of div orced persons marry again 2 and th at many of these per sons expect to begin a ne w family eithe r with b iological children, step-children, or

both. 3 Multiple families or serial family development a

re now the norm ra

ther than the except

ion. 4
Recognizing

the prevalence of later marri a ges, this court has he ld that a parent’s remarriage, w

ithout more, is not the

sort of change

of circumstances tha

t will triggerjudicial reconsid eration of a custody arrangement. See Arnold v. Arno ld , 774 S.W.2d 613, 618 (Tenn. Ct. App. 1989). Cha nges inthe custodial home enviro nment brought about by a later marriag e may, however, t rigger a new compa rative fitness analysis if these changes are o r may adversely affect th e child. See Tortorich v. Ericson , 675 S.W.2d 190, 192 (Tenn. Ct. App. 1984). Thus, divorced par ents should not be permitted to upset an existing custody arrangement simpl

y because one or both of them have

married again or b

ecause the custodial parent

and his or her new sp

ouse have started a new fa

mily. Parents

seeking to alteran existing custody ar rangement must offer some specif

ic evidence concer

ning how the later ma

rriage or the birth of
new children have or

will have an adver

se effect on

the child before the

courts will undertake a new compara tive fitness analy sis.

Based on the facts in this ca se, the possibility tha

t Mr. Eatherly a

nd M s. Smithson would marry again and would begin their second families are dev elopme nts that the trial court and both pa rties should reasona

bly haveanticipated in 1994 when the trial court entered its “final” divorce decree and its “final” custody dec ree. Ms. Smithson did not come forwar

d with evidence of sp

ecific facts prov

ing that granting5 The trial court made specific mention of its perception that Ms. Smithson’s depression had

“come a long way” over the ye

ars and that the imp

ending birth

of Mr. Eatherly’s child would “take some adjustment.” -9- Mr. Eatherly custody w

ould somehow place K

elsy at risk or compr

omise her bes t interests. Quite the contrary may very well be t he case. G rowing up with other siblings is commonplace in Ameri ca. In fact, in these types of case s, courts generall y try to keep siblings together based on the belief that permitting siblings to g row up together is in thei r best interests. See Rice v. Rice , 983 S.W.2d 680, 684 (Tenn. Ct. App. 19 98); Baggett v. Bagget t , 512 S.W.2d 292, 293-9 4 (Tenn. Ct. App. 1 973)

. Accord ingly, Ms . Smithson failed t o allege or prove a m aterial change in circumstances warranting a modification of th

e existing custody arr

angement. It also follows that the trial court erred by basing its de

cisio n to awar d Ms. Smithson custody of the parties’ daughter on the fact that Mr. Eatherly’s current wife was expecting a child.

C.

Our task with regard to appeals from cust ody decisions isto review the record de n ovo and to ev aluate the trial court’s findings to assess whether the trial court made a proper disposition in light of the statutory an d common-law factors. See Nichols v. Nichols , 792 S.W.2d 713, 716 (Tenn. 1990); Doles v. Doles , 848 S.W.2d 656, 661 (Tenn. Ct. A

pp. 19 92). We h ave determined tha t the trial court did not employ the correct metho dology inthis case because it focused on the attr

ibutes of the parents it believed might be harmful to th e child ra ther than on compari

ng the relative fitness of

the parents to be the

ir child’s custodian. 5

The factual recordin this case is sparse . The trial cour t’s findings are limited to its assessment of Ms. S mithson’s progress w ith her depression an

d Mr. Eatherly’s de cisions to marry again and t o start a new fam

ily. The trial co

urt appears to ha

v e overlooked t he fact that Mr. Eatherly was the child’s primary cus

todian for approx imatelytwo and one-half years and that the child spent another year b ein g shuttled between her mother and father. Based on the circumstances of this case, we findthe evidence prepond erates against the

conclus ion, necessarily implic it in the trial court’s February

6, 1998 order, that

amaterial change of circumst ance affecting-10-

the parties’ child had occurred since March 1994 that warranted changing primary physical custod y from Mr. Eatherly to Ms. Smi thson.

In accordance with Tenn. R. App . P. 36( a), we have the a uthority to fashion
new custody arrangemen

ts based on the evidenc

e in the record and the appli cation of the relevant legal pri

nciples. Howeve

r, custody determi

nations involve the consideration

of many factors, see Rogero v. Pitt , 759 S.W.2d 109, 112 (Tenn. 1988); Holloway v. Bradley , 190 Tenn. 565, 571, 230 S.W.2d 1003, 1006 (1950), and may hinge on subtle nuances in the parties’ demeanor

and credibility. See Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn. Ct. App . 1997); Gaskill v. Gaski ll , 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). T hus, we should not und

ertake to make a custody determinatio

n on appeal in the abse

nce of an adequate f

actual record.

The factual record in

this case is not

sufficient to enabl

e us to make a custody decision based on the child’s best interests under the current circumstances. We are mindfulof the fact that al most tw o years have passed s ince the trial cour

t’s last he aring and that by now the parties’ daughter has established a new home environment

that is not reflect

ed in this record. T

hus, we have dete

rmi ned that the propercourse is to vacate the February 6, 199 8 order and remand the case

to the trial courtwith directions to c

ompare the curren

tfitness of Ms. Smithson and Mr. Eatherly to be their daughter’s

custo dian an d then to devise the cus tody arrangement mo st consistent with her best interests at this time.

IV.

We vacate the Februa

ry 6, 1998 custody orde

r and remand this

case to the trial courtfor further proce

edings consistent

with this opinion. Except as modified by the trial court for good

cause, the custody arrange ment contained in the February 6,1998 order shall remain in eff

ect pendingthe hearing on remand. We tax t

he costs of this appeal in equal proportions to David Ray Eatherly and his surety and to Karen Jean Smithson for which ex ecution, if necessary , may issue.

____________________________ WILLIAM C. KOCH, JR., JUDGE CONCUR:-11-

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

_________________________________ PATRICIA J. COTTRELL, JUDGE