# FILED

October 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

JANET ANN YOUNG, ) ) Plaintiff/Appell

ant, ) Coffee Chancery

) No. 96-250 VS. ) ) App. No. JAMES ROBERT YOUNG, ) 01A01-9801-CH-00047 ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR COFFEE COUNTY

AT MANCHESTER, TENNESSEE THE HONORABLE JOHN W. ROLLINS, JUDGE

For Plaintiff/Ap

pellant : For Defendant/Appellee : W. David Kelley Robert L. Huskey Haynes Hull Riede

r & Ewell Manchester, Tennessee Tullahoma, Tennessee Randall W. Morri son Tullahoma, Tennessee



## AFFIRMED AND REMANDED

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

## O P I N I O N

This appeal involves the c ustody of a six-year- old girl. Both pare nts sought a divorce and custody of the chil d. Following a benc

h tr ial, t he Chancery Court f or Coffee County granted the fa ther the div orc e and gave custody of t he child to the mothersolely because the f ather’s employment

as a long-haul truck driver prevented himfrom being the

custodial parent. The fa

ther quickly obtained l

ocal employment and filed a timely post-

trial motion request

ing custody. The tri

al court granted the motionand awarded custod y of the child to the fa

ther. The mother

asserts o n this appeal that the trial court had no basis fo r changi ng custody and that she was comparatively

more fit to be the child’s custodian. We have determined that the trial court’s custody determination was proper.

I.

JanetAnn Young and

James Robert Young were married in Coffee County on October 20, 1990. Ms. Young

worked as an admini strative assistant t o a physician, and Mr. Young was employed as a long-haul truck driver. Ms. Young stopped working after the partie s’ daughter was bor n in May 1992. Mr. Young con tinued to maintain a rigorous schedule a

s a truck driver, t

ypically making two or

thr ee long d istance runs each week. Consequently, throughout the marriage, Mr. Young was athome only a few hour s each week when he was able to visit w ith his wife and daughter and sleep. Ms. Young returned to work part-time when their daughter was six months old.

The Youngs’ marriag e began to deteriorate in 1995 b ecause they were

not communica ting effectively and were d isagreeing frequently about money. When they separated in September 19 95, Mr. Yo ung moved into his mother ’s home in Tullahoma, and Ms. Young and the parties’ daughter moved into a rented house. Mr. Yo ung continued to driv e a truck and visited his daughter on week ends. Neithe r party filed for divor

ce immediately.

In February 1996 Ms. Young’s employer introduced her to David Edinger, the basketball

coach at Coffee County High School. Within months, Ms. Young became1 The trial court also warned Ms. Young that “[a]ny violation of this restraining order is an instantchange of

custody.” In an effort to be even handed, the trial court also restrained both parties “from having a member of the opposite sex in hi s/her home ove rnight without the benefit of marriage in the presence of the minor child.” -3- romantically

involved with M

r. Eding er. Their rela

tionship continued until M s. Young and Mr. Edinger decided tha t they should

stop the romance until the divorce proceedings were final. E ven afte r this de cision, Ms. Young and Mr. Edinger continued to see each other socially, and Ms. Young entertained Mr. Edinger in her home and invited him to a ttend gatherings wit

h her family.

On July 22, 1996, Ms. Young filed a divorc e petition in the Chanc

ery Court for Coffee County. Mr. Young counterclaimed for divorce, alleging that Ms. Young had committed adultery. Both parties sought

custody of their daughter. The trial court heard the evidence withou t a jury on March 12 and 13, 1997,

and granted Mr. Young
adivorce. The trial court expressed displeasure with the wife’ s extra-marital r elations during the divorce procee di ngs but al so stated that Mr. Y oung’s employment as a long-haul truck driver inter

fered with his

ability to be the custodial par ent. Accordingly, the trial court granted Ms . Young c ustody of the parties d aughter but also enjoined her “from

having any contact w

hatsoever with

David Eddinger [sic].” 1 In addition, the tri

al court informed M

r. Young: If your living arrangements and job circumstances change, I might consider chang ing custody. I don’t w ant to lend falsehope, but I will ce rta inl y take a hard look at i t. I do n’t wan t to promise you anything . I don’t want you to walk out of this courtroom a

nd .

. . but I’m concerned t he most about the time or the absence away from – betwee n you and your

little – and there’s nothing you can do about that.

* * *

. . . So it’s true,

you’re being punished f or your job and I admit it, but I don’tknow what else to do. My job is what i s in the best interest o f this little girl and

I thin k , hopefully, I’ve ma

de that decision. Unfortunately,

in these situatio

ns mos t of the time it’s no t the better choice. It’s the lesser of

two evils sometimes and I won’t commen t abo ut tha t here. I’m willing to take a hard lo ok at it without giving you any absoluteassurance at what I might do in six months’ time or when your circumstances change.2 The trial court also noted: “I don’t think I have the right nor any tr

ial judge has the r

ight to enforcethat type of order to prohibit her from anycontact with his man outside the presence of that child.” -4- The trial court e

ntered an order em

bodying its decision on A pril 21, 1997.

On May 14, 1997, Mr. Young moved to alter or amend the April 21, 1997 order
on the ground that he had l ocated a local job tha

t would not require hi

m to be out

of the area and accordi

ngly that “he is now in a

better position to have

custody or

at least expanded visitation t

ime wit h the minor child.” Ms. Young also moved to alter or amend the divorce decree by deleting the prohibition against all contact with Mr. Edinger, regardless of the presen ce of her daughter. At the outset of a he

aring on June 20, 1997, the trial court conceded that the April 2 1, 1997 or der should be modified because the restr iction against Ms. Y

oung seeing Mr . Edinger was “overbroad.” 2

After Mr. Young testified about his new job and th e arrangements

he had made for his daughter’s care should he be awardedcustody, Ms. Young took the stand to emphasize that “[t]here’s no one more important in my life than my daughter and I would give up anything

or anyone for my daugh

ter.” She also

volunteered that she had “ not h ad any contact with [ Mr. Edinger]” a

fter the last hear

ing. On crossexamination, Ms. Young reluctantly conceded that she had, in fac t, been seeing Mr. Edinger since the last hear

ing despite her state

ments to the contrary. T

hereupon, the trial court ordered that Mr. Young be given custody of the parties’ daughter

Not because s he’s seeing the man. But if you set an example – if you’ll lie

to the Court, you’ll

lie to your child and mi s represent things and it’s on that basis that I’m changing custody. Not the fact thatshe saw this man. It’s the fact that she lied about it. That is not a good example for a parent.

In a June 26, 1997 order

, the trial court di

rected that custody

of the parties’ child b

e transferredimmediately

to Mr. Young and that the she riff accompany Mr

. Young “to pick up the child and effectuate the Order.”

Ms. Young retained new

counsel. Later,

following a hearing

concerning Ms. Young’s visitation rights , the trial court entere d an order on Novembe

r 6, 1997,3 See Young v. Young , No. 01A01-9707-CH-00329 (Tenn. Ct. App. Dec. 2, 1997). -5- concluding that Mr. Young had bee n awa rded custody of the parties’ daughter because his change of employm

ent “enable[d] him to provide full-time on-going care for the minor

child” and because “Ms. Young was found to have perjure d herself on directexamination in regard to her priorities in relation to the child.” The trial court later entered a final jud

gment reaffirming its April 21 and June 26, 1997 orders after this court dismissed Ms

. Young’s first appea l for lack of a final order. 3 Ms. Young has perfected this appeal.

II.

We turn first

to the proper standard of r eview for this case. Ms. Young asse rts t hatwe should treat this case as an appeal f

rom an order changi

ng cus tody

. Therefore, she

insists that the

trial court’s deci sion to award custody of the parties’ daug hter t o Mr. Young can be u pheld only if there w

as a material cha

nge in circumstances occurring

bet ween April 21, 199

7, when the trial c

ourt entered its initial custody, and June 26, 1997, when the tria

l court entered its

order granting Mr. Young’s motion to alteror amend. We disagree that this is a change of custody case.

A court’s decision with regard to custody an d vi sitation, once made and implemented, is res judicata upon the fact s in existence or re asonably foreseea

ble when the decision is mad e. See Young v. Smith , 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); In re Parsons , 914 S.W.2d 889, 893 (Ten n. Ct. App. 1 995). Thus , the courts will not change an e xisting custody or

visitation arrangement unles s the party
see king the change can demo nstrate the existenc

e of a change in cir

cumst ance s materially

affecting the

child’s interests th

at could not have rea

sonably been foreseen when the custody or visitation agreement was ordered. However, the doctrine of res judicata does not apply when the judgment soug ht to be given res judicata effect is not final. See Richardson v. Tennessee Bd. of Dentistry , 913 S.W.2d 446, 459 (Tenn. 1995); Galbreath v. Harri s , 811 S.W.2d 88,

90 (Tenn. Ct. App. 1990); Lee v. Hall , 790 S.W.2d 293, 294 (

Tenn. Ct. App.1990). The trial court’s April 21, 1997 order granting custody to Ms.Young never became final.-6- A judgment adjudicat

ing all the claims betw

een all the

parties becomes final thirty days after entry unless one of the par ties files a t imely Tenn. R. C iv. P. 59 motion. Before a judgment becomes final, the trial court may alter or

amend it either
on its own motion or at th e request of one of the parties. See Jerkins v. McKinney , 533 S.W.2d 275, 280 (

Tenn. 1976); Newport Hous. Auth., I nc. v. Hartsell , 533 S.W.2d 317, 320 (Tenn. Ct. App. 1975); Moore v. Standard Life & Accident I

ns. Co. , 504 S.W.2d 373, 375 (

Tenn. Ct. App. 1972). Thus, as long as its j udgment has not become final, the trial c

ourt my change its min

d after reconside

ring the proof and the applicable

law. S ee Wast

e Management, In

c. of Tenn. v. So uth Cent. Bell Te l. Co. , No. 01A01-9504-CV-00182, 1997 WL 71811, at *2 (Tenn.Ct. App. Feb. 21, 1997) (No Tenn. R. App.P. 11 application filed); Dowling v. Fawver , C.A. No. 71 5, 1987 WL 20190, at *6 (Tenn.Ct. App. Nov. 2 5, 1987) (No Tenn.

R. App. P. 11 application filed).

The trial court’s Apr

il 21, 19 97 or der granting Ms. Y oung custody of the parties’ daughter neverbecame final because both parties filedTenn. R. Civ. P. 59.04 motions within thirty days af ter its entry. Th

us, the trial court wa

s free to change its mindabout its initial custod y decision based on

the proof received during the original di vorce trial and the proof a dduced at the hearin

g on the parties’ Te

nn. R. Civ. P

. motion. Because the

April 21, 1997 order was not final, it did not preclude the court from considering the custod

y issue without first f

inding that there had b

een a material changein circumstances bet ween the original di

vorce hearing and th

e hearing on the parties’ Tenn. R. Civ. P. 59.04 motions. A ccordingly, we w

ill review the trial court’s custody decision as an initial custody order.

III.

We turn now to the questio n of custody. Ms. Young a sserts that she is comparativel y more fit than Mr. Young to have custody of the parties’ daughter. Although we place differ

ent weight on

the various custody-in

fluencing factors i

n this
case than did the trial cou rt, we find

that the e vidence supports the trial court’s decision to award cus tody to Mr. Young.-7- A.

There are no hard and fast rules for determining which c

ustody and visitation arrangement

will best serve a child’s needs. See Taylor v. Taylor, 849 S.W.2d 319, 327 (Tenn. 1993); Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. Ct. App. 1983). This determination is factu ally driven and requi res the courts to ca

refully weigh
numerous considerations. See Nichols v. Nic hols, 792 S.W.2d 713, 716 (Tenn. 1990); Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988). Among these considerations are:

the age, habits, ment

al and emotional make-up of

the child and those parties compe

ting for custody; the

education

and expe rienc e of those seeking to ra ise the child; their character and propensities as ev iden ced by their past conduct ; the financial and physical circumstan ces availabl e in the home of each party seeking custody and the special requirements

of the child; the ava

ilability and extent of third-party

support; the a ssociations and influe nces to which the child is most likely to be exposed in the a lt ernatives afforded, both posi tive and negative; an

d where is the greater like

li hood of an environment fo r the childof love, warmth, s

tability, support, c

onsistency, care and concern, and physical and spiritual nurture.
Bah v. Bah, 668 S.W.2d 663, 666 ( Tenn. Ct. App.1983); see also Tenn. Code Ann. § 36-6-106 (Supp. 1998).

Parents competing for custody are human beings

with their own unique

virtues and vices. See Gaskill v. G askill , 936 S.W.2 d 626, 630 (Tenn. Ct. App. 1996). Accordingly, the courts do not expect a parent to prove tha t he or she is perfect, see Bah v. Bah, 668 S.W.2d at 666; Edwards v. Edwards , 501 S.W.2d 283, 290

-91 (Tenn. Ct. App. 1973), or tha

t the other parent

is completely unfit. See Griffin v. Stone, 834 S.W. 2d 300, 3 05 (Tenn. Ct. A pp. 1992); Harris v. Harris, 832 S.W.2d 352, 353 (Tenn. Ct. App . 1992). Instead, the courts analyze the “comparative f itness” of the parents to determine which of the available

custodians is comparatively more fit than the other. See In re Parsons, 914 S.W.2d at 893; Bah v. Bah, 668 S.W.2d at 666.
Custody and visitation determ inations often hinge on s

ubtle factors, inc

luding the parents’ demeanor

and credibility durin

g the divorce procee

dings themselves. Accordingly, tria

l courts must

be ableto exercise broad di scretion in these ma tters,
as long as their decisions are based on the evidence and on an appropriate application4 Our agreement with the trial court’s disposition of the custody issue should not be construed as a blanket endorsement of the trial court’s reasoning. When the trial court announced its

decision, its comments could be construe d as indicating that it was faced with choosing between two marginally

fit parents (“the lesser of two evils”). Based upon our review of the record, we find no basis for concluding that either of these parties are unfit to have custody of their daughter. -8- of the applicable prin ciples of law. See D v. K , 917 S.W.2d 682, 685 (Tenn. Ct. App

. 1995)

. Accordingly, appellate courts are reluctant to second-guess a trial court’s decisions, see Gaskill v. G askill , 936 S.W.2d at 633, and we review these decisions de novo on the record wi th a pr esumption that the trial court’s findings of fact are correct unless the evidence preponderates oth erwise. Nichols v. Nichols , 792 S.W.2d at 716; Doles v. Doles , 848 S.W.2d 656, 661 (Tenn. Ct. App. 1992).

B.

The evidence concerni

ng the parties’ relative

suitability to be

custodial parents is quite close. The trial court was not required to find t hat Ms. Young was u

nfit to be the custodial paren t in order to grant cu stody to Mr. Young. Itwas required only to find that Mr. Young was comparatively more fit to be the custodial parent. Based
on this record, we cannot say that the tr ial court reached

the wrong result. 4 The trial court’s decision appears to b e driven by its assessm

ent of which of these two parents had demonstrated a str

onger commitment to be the custodial parent. While this consideration

is factually

driven and inherently subjective, we find that it is proper and that it is consisten

t with the other fac

tors in Tenn. Code Ann. § 36-6-106.

Both parties expressed a sincere desire to have custody of thei r child. Ms. Youn g had , without question, been the child’s pri

mary care-giver

during the marriage. However, we find unconvincing h er assertions that M

r. Younghad been
an absent, detached parent du ring this time. To the contrary, we find that Mr. Young’s involvement with his daughter was perfectly consistent with his job. When itappeared that

he would not obtain cust ody chiefly because of the job he had held during the marriage, he took a lower paying job in order to be better able to discharge the responsibilities of a custodial parent. This conduct provides a basis for concluding that Mr. Young wa s prepared to place

the interests of

th e parties’ child before his own.-9- The evidence does not prov ide any sound basis to

conclude that Ms. Young is not also committed to her

daughter or that sh

e coul d not be an attentive parent. It does, however, illustr

ate three things

that do not weigh

in Ms. Young’s favo

r. First, she entered into a sexual relationship with another man after the parties separa

ted and before the divorce proceedings concluded. Second, she ignored the trial court’s stern admonition

and order after t

h e Mar ch 1997 hearing not to continue seeing Mr. Edinge r . Third, she lied under oath about her continuing involvement with Mr. Edinger. While any of these a cts may not have been

sufficient

in and of themselves to warrant awar

ding cust ody to M r. Young, their c umulative effect provides a sufficient basis for the

trial court’s conclusion that the custody scales tipped in Mr. Young’s favor.

Extramarital sexual conduct may be indicative

of parental fitness and thus may be considered in the co ntext of a comparativ e fitness analysis

. See Barnhill v. Barnhill , 826 S.W.2d 443, 453 (Tenn. Ct. App . 1991); Edwards v. Edwards , 501 S.W.2d at291. While the cour

ts do not condone extramarita l affairs, see Sutherland
v. Sutherland , 831 S.W.2d 283, 286 (Tenn. Ct. A

pp. 1991), they do not

punish parties for their meretrici

ous conduct alone with

out some proof that the

conduct is adversely affecting the children. See Varley v. V ar ley , 9 34 S.W.2d 659, 666- 667 (Tenn. Ct. App. 1996); Sutherland v. Suthe rland , 83 1 S.W.2d at 286; Mimms v. Mimms , 780 S.W.2d 739, 745 (Tenn. Ct. Ap p. 1989).

Ms. Young admitted that she began having sexual relations with Mr. Edinger in May 1996 and that this conduct continued until they decided tha t it could affect the outcome of her custody dispute with Mr. Young . There is no evidence that they engaged in this conduct in front of Ms. You ng’s daughter or that

the child had been otherwise adversely affected by that fact that Ms. You

ng andMr. Edinger were seen togetherin public and at fami ly gatherings. Des

pite the unsupported as sertions of Mr. Young’s lawyer dur

ing argument that sim

ple public dating

b y a parent while divorce proceedings are pe nding is per se injurious to c hildren, we find

no basis for concluding that Ms. Young rendered herself an unfit mother solely because she began dating before she an

d Mr. Young were

divorced.-10- More probative of Ms. Y oung’s comparative f

itness is h er failu re to comply withthe court’s April 2 1, 1997 order direc ting h er from c ontinuing to have “any contactwhatsoever” wit

h Mr. Edinger. L

itigants are expected to obey lawful orders of a court, even when these orders are wrong. See State v. Samm ons , 656 S.W.2 d 862, 869 (Tenn. Crim.

App. 1982); Churchwell v. Callens , 36 Tenn. App. 119, 131- 32, 252 S.W.2d 131, 136-37 (1952). They must comply with these orders until they
are modified, set aside, o r otherwise nullifie d. See Vermillion v. Vermill ion , 892 S.W.2d 829, 833 (Tenn. Ct. App. 1994). For reasons known only to her, Ms. Young decided to disrega

rd the tr ial court’s order e

ven while her Ten

n. R. Civ. P. 59 .04 motionto change it

was pending. Her conduct reflects a deficiency in judgment that weighs against her s

uitability to be the cus

todial parent.

As if to compoun d her decis ion to ignore the tria l court’s order abou

t seeing Mr. Edinger, Ms. Young then falsely testifiedat the hearing on her Tenn. R. Civ. P. 59.04 motion that she had fa ithfully abided by the c

ourt’s order. Pa

rents lead by exampl e, and accordingly, a parent’s veracit

y is a proper matter

to consider in a comparative

fitness analysis. See G a skill v. Gaskill , 936 S.W.2d at 63 4; Starnes v. Starnes , No. 01A01-9010-CV-00373, 1991 WL 27360, at *3 (Tenn. Ct. App. Mar. 6, 1991) (No Tenn. R. App. P. 11 application filed) ; Witt v. Witt , No. 83-111-II, slip op. at 17 (Tenn. Ct. App. Aug. 2, 1983) (No Tenn. R. App. P. 11 application filed). Ms. Young’s calcula

ted decisi on to attempt to deceive the trial court about her compliance with its orders weighs agains t her suitability to be a custodial pa rent.

We have concluded that Ms. Young’s decisions to continue seeing Mr. Edinger and then to lie about it to th e trial court tipped

the sc ales in favor of Mr. Young’s request for custody. In addition, we must consider another factor – stab ility and continuityof placement. St abilit y is an integral part of a chil d’s well-being. See Taylor v. Taylor, 849 S.W.2d at 328; Contrerasv. Ward, 831 S.W.2d 288, 290 (Tenn. Ct. App. 1991). The

parties’ child has n

ow lived with Mr. Young for more than one year and has become acclimated to that environmen t. We are reluctan t to undermine
achild’s stability, especially in close cases in whic

h there is no proof tha

t the current custodial arrangement is inc onsistent with thechild’s best interests. This record contains no material evidenc e that placing the par

ties’ child in Mr. Young’ s custody has or will harm her.-11- IV.

We affirm the judgment awarding Mr. Young custody of the parties’ daughter and remand the case to the trial c ourt for any further proceedings that ma

y be required. We tax the costs of this appeal t o Janet Ann Young and h er surety for which execution, if n ecessary, may issue.

____________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

____________________________ WILLIAM B. CAIN, JUDGE

____________________________ HENRY F. TODD, JUDGE