# FILED
September 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
IN THE MATTER OF: ) BIANC A A RNESHE A

SKEW, )

) DOROTHY LEWIS, ) ) Petitioner/Appellee, ) Fayette Ci rcuit No. 3807 ) VS. ) Appeal No . 02A01-9708-CV- 00201 ) JULIE DONOHO, ) ) Respondent/Appellant. )
APPEAL FROM

THE CIRCUI T COURT OF F AYETTE COUNTY AT SOMERVILLE, TENNESSEE THE HONORABLE JON KERRY BLACKWOOD, JUDGE

MARGARET R. BA

RR Memphis, Tennessee Attorney for Appellant

JAMES F. GOODWIN Germantown, Tennessee Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. , concurring separately This case prese nts for review a dispute ov er custody of a minor chil d between a2

parent and a nonparent where a prior judicial decree awarded custody to the nonparent. The parent has appealed the trial court’s Rule 41.02(2) dismissal of her petition to restore custody of her child. We find that the evidence does not preponderate against th e tr ial court’s finding that Donoho failed to sati sfy her burden ofproof of establishing a material change in circumstanc

es and, there

fore, affirm.
I. Factual and Procedural History

This case involves the custody of Bianca Arneshe Askew (Bianca), who was born Aug ust 2, 1990. Julie Donoho (Donoho) is the unmarried natural mother of Bi anca and residesin Memphis, Tennessee. Dorothy Lewis (Lewis)

is unrelated to Bianca or Donoho. Lewis’s only familial relation to Donoho is that she is the cousin of Donoho’s uncle’s first wife. Donoho first met Lewis dur ing Donoho’s pregnancy with Bi anca. After Bianca was born, Lewis came over to Donoho’s mother’s residence, where Donoho was then residing. At thattime, Donoho was “goi ng through some problems,” in cluding lack of employment, and agreed to have Lewi s take care of Bianca.

The dispute over Bianca’s custody between Donoho and Lewis originally began in the FayetteCounty Juvenile Cou rt in 1991, at which ti me an order was entered tr ansferring the matter to the Shelby County Juvenile Court. Thereafter, on September 17, 1991, the Shelby County Juvenile Cou rt awarded custody of Bianc a to Dono ho. In Feb ruary, 1994, Lewis filed a subsequent petition for cu stody in the Fayette C ounty Juvenile Court . On June 21, 1994, the juvenile court heard testimony from the parties’ witnesses. Thereafter, the juvenile court awarded custody to Lew is. On March 5, 1996, Donoho filed a petition forcustody. At that time, how ever, the juvenile c

ourt declined to proceed to a hearing on Donoho’s petition because it found that Donoho had not been regularly pay ing chi ld support as previously or dered by that court. On October 2, 1996, Donoho filed a renewed petition for custo dy. Thereafter, on October 31, 1996, the juvenile court denied Donoho’s petition. Donoho then appealed to the Fayette County Ci rcuit Court for a de novo trial on Donoho’s petition to restor e custody.3

The Circuit Court heard the case on March 25, 1997, at w hich time Don oh o presented her own testimony, in addition to testimony from her pastor, W illie Robison, and from two first cousins, Martrice Hurrah and Karen McC rary. The testimony of Robison, Hurra h, and McCrary essentially supported the position that Donoho is a favorable care provider for her other two childr

en, Jeremy and Aysa. Thoug h one of the other two childr en, Aysa, is in the legal custody of Aysa’s father, Donoho actually cares for Aysa for a majority of the time. Donoh o’s other child, J eremy, has been in Donoho’s lega l cu stody since December 1996 (before which Donoho’s mother had legal custody) and is fully cared for by Donoho.

Donoho testified that her current r esidence, where she has r esided for almost four years, has been a very stable home. She works full-time and has available transportati on. She is health conscious and does not smoke or drink. Her mother and grandmother, wi th whom both Jeremy and Aysa regularly spend time, live on the same street. Donoho’s family helps her with Jeremy and Aysa, and likewis

e would help her with Bianca. Donoho further tes t ified, however, that she failed to maintain regular court ordered child suppo rt payments to Lewis during Lewis’s custody of Bianca. Instead, s he paid all arrearages of such child support at

infrequent times when she faced further legal proceedings related to this matter. Furthermore, she failed to maintain regula r court ordered visi tation ofBianca, though she blames Lewis’s hostility towards her for the infrequent exercise of visi t ation. Lastly, while Donoho would sometimes contac t Lewis to notify Lew

is that Donohowould not be coming totake Bianca, Donoho would at other times fail even to notify Lewis (and also thereby Bianca) that she would not be coming.

After Don oho presented her evidence and before Lewis presented any further evidence , counsel for Lewis moved for an involuntary dis missal, which the cir cuit c our t granted. In the circuit court’ s order of dismissal, it pr ovided that Don oho’s petitio n to restore custody was d ism issed “for her failure to car ry her burden of proof of showi ng ‘changed circumstances.’” Donoho appealed to this Court. On appeal, Donoho first assertsthat the trial court used the wrong standard of proof for a c ustody dispute between4

a parent and a nonparent. More s pecifically, Donoho asser ts th at a parent must be awarded custody in any custod y dispute between a paren t and a nonparent unless the nonparent establis hes that substantial harm to the child would result fro m awarding custody to the parent. Donoho alternativ ely asserts that, ev

en if the circuit court appl ied the correct legal standard in determi ning custody, dismiss al was improper because s he demonstrated changed circumstances that woul d require a modification of custody. Lewis assertsthe contrary position to both of Donoho’s assertions. Therefore, this Court is presented with the following two issues: 1. Whether the circuit court utilized the appropria te standar d of proof for determining custody between a pa rent and a nonparent when cust ody was previously adjudic

ated and awarded to the nonparent;and 2. Whether the preponderance of the evidence pr esented established “changed circumst ances” su fficie nt to warra nt a modi ficatio n in custo dy.

II. The Standard of Proof

Generall y, in child custody cases, appellate review is de novo upon the record, with
a presumption of the correctness of the trial court’s factual fin dings. Tenn. R. App. P. 13( d); Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1 984). Th e parti es’ fi rst issue , however, involv es a question of law for which the standard of review is de novo with no presumption of correctness for the trial court's findings. Bradshaw v. Old Republic Ins. Co. , 922 S.W.2d 503 (Ten n. 1996); Ridings v. Ralph M. Par sons Co. , 914 S.W.2d 79, 80 (Tenn.1996); Union Carbide Corp. v. H uddleston , 854 S.W.2d 87 (Ten n.1993).
“[P]arental rights constitute a fundamental liberty interest unde r . . . the Tennessee Constitution.” Hawk v. Hawk , 855 S.W.2d 573, 579 (Tenn. 1993). Tennessee courts have historically held,
a parent is entitled to the custody, companionship, and care of the child, and should not be deprivedthereof except by due process of law. It is a natural right, but not

an inalienable one. The parents are trusted wi th the custody of the child upon the idea that under the instincts of parental devotion it is best for the child. Id. at 577 (quotingState ex rel. Bethell v. Kilvington , 100 Tenn. 227, 236, 45 S.W. 433, 435 (1898). Moreover,5

[t]he relations which exist between parent and child are sacred ones.... The right to the society of the child exists in its parent

s; the right to rear i

t, to its custody, to its tutorage, the shapi ng of its destiny, a nd al l of the consequencesthat naturally follow from the relationship are inherently in the natural parents, and they cannot be depr ived of these rights witho ut notice, and upon some ground which affects materially the future of the chi ld. Hawk , 855 S.W.2d at 578 (quoting In re Knott , 138 Tenn. 349, 355, 197 S.W. 1097, 1098 (1917). The right of privacy, which stems from the parents’ fundamental liberty interest , “protectsthe right o f parent s to care f or their ch ildren with out unwa r ranted state intervention.” Id. at 579. Under Tennessee law,this right can only be overcome when “substantial harm threatens a child’s welfare.” Id. at 577. Othe rwise, the state lacks a sufficiently compelling justificati on for interfering with t he fundamental right of parents to raise their children as they see fit. Id. at 577, 582. In a custody di spute between a parent and a nonparent, “a parent cannot be deprived of the custody of the child unless there has been a finding, after notice required by due proc ess, of substantial harm to the child.” In re Adoption of Female Child, 896 S.W.2d 546, 54 8 (Tenn. 1995).

In the instant case, Donoho w as already de prived of the custo dy of Bian ca by a prior order of the juvenile cour t, which was

not appealed and is not the subjec t of this appeal. Impl icit in this p rior order is a finding that Donoho was unable to car e for Bianca at that time an d of subs tantial h arm to Bia nca that would have resulted in awardin g custody t o D onoho. The juvenile court ex pressly recogniz

ed in its order that Donoho’ s int erest i n regainingcustody of Bianca was s uperior to any other

right. The court further ex pressed the intent to restore custody to Donoho after

she visited and supported Bianca to show that she is a fit parent and is able to care for Bianca.

Where a decree has been entered awarding cust ody of a child, the judicial sy stem and the parties involv

ed have an interest in the stability and predic

tability that

comes from according the decision the status of a final judgment. Custody orders are res judicata upon the facts brought to the trial court's attention at the time the decision was made and are conclusi ve in a subs equent application to change cust ody unless some new fact has occurred which has altered the circumstances in a material way. Young v. Smith , 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Walker v. Walker , 656 S.W.2d 11, 16 (Tenn.6

Ct. App. 1983). A trial court may re-examine a custody decision upon the presentation of "facts and conditionswhich have emerged since the decree [or] new facts and conditions which were not deter

mined or could not be anticipate d by the decree." Dailey v. Dailey , 635 S.W. 2d 391, 3 93 (Tenn . Ct. App. 1981). In order to m odify cus tody after an i nitial determination has previously been made, the burden is pla ced upon the non-custodial party to prove a material change in circumstances. Blairv. Badenhope , 940 S.W.2d 575, 576 (Tenn. C

t. App. 1 996). Ac

cording ly, in

this mod ificati on of custody case , the earlier June 1994 award of custody to Lewis is conclusive as between Donoho and Lewis absent a showing by Donoho of a material change in circumstances.

In order to m odify cus tody as be tween two parents, the standard of proof requires the non-custodial parent to es tablish changedcircumstances such that substantial harm to the child would resul t if custody was left w

ith the custodial parent. Wall v. Wall , 907 S.W .2d 829, 834 (Tenn. Ct. App. 1995). Bec ause of parental rights, how ever , thi s standard has no application in cases wherein a parent seeks modification of a prior award of custody to a nonparent. See In Re Adoption of Female Child , 896 S.W.2d 546 (Tenn. 1995). In such cases, the parent must instead simply establ ish, by a preponderance of the evidence, changedcircumstances showing that an award of custody t o the parent would
no longer result in subs tantial harm to the

child. This standard of proof requires evidence establishingthat circumstances, whi ch are relevant to the threat of harm to the child and which wei gh against any such ha rm, have materially changed since the prior aw ard of custody. This standard of proof further req uires that this evidenc e, taken together

with all other proof, establishes the absence of substan tial harm to the child in the event of custodial modification. In the insta n t case, the circuit cour t dismissed Donoho’s petiti on based upon its finding that Donoho failed “to carry her burden of proof showing ‘changed circumstances.’” The court, therefore, never reached the second requirement w h ereby the proof must demonstrate the absence of substantial harm to the chi ld in the event of custodial modification. Therefore, insofar as the court applied a standard of pr oof, we find
no error.7 III. The Proof Presented

Rule 41.02(2) of the Tennessee Rules of Civil Proce dure, whic h pertains to involuntary dismissals, provides, After the plaintiff, in an action tried by the court without a ju ry, h as completed the presentation of plaintif f' s evidence, the defendant, wi thout waivingthe right to offer evidence in the event the motion is not g ranted, may move for dismissal on the ground that upon the facts and the law th e plaintiff has shown no rig ht to relief. . . . . The court as trier of the facts may then determine them and render judgment agai nst the plaintiff or may decline

to render any judgment until the close of all the eviden ce; in the event judgmentis rendered at the close of plaintiff's evidence, the court shall make findings of fact if requested in writ ing within three day s after the announcement of the court's decision. Tenn. R. Civ. P. 41.02(2). In cases involving a motion for involuntary dismissal pursuant to Rule 41.02(2) of

the Tennesse e Rules of Civil Proce dure, “the trial ju dge must impartially weigh and evaluate the evidence in the same man ner as though he were making findin gs of fact at the conclusion of all of the evidence for both parties, determine the facts of the case, applythe law to those facts, and, if t he plaint iff’s ca se has no t been ma de out by a preponderance of the evidence, a judgment may be rendered against the plai ntiff on the merits

. . . .” City of Columbia v. C.F.W. Constr. Co. , 557 S.W.2d 734, 740 (Tenn. 1977). Therefore, our re view of th e circuit court’s findings of fact is de novo upon the record, accompanied by a presumption of correctness, unless the p reponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Hass v. Knighton , 676 S.W.2d 554, 5 55 (Ten n. 1984). The circuit court in this case dismissed Donoho’s petiti on b ecause it found that Donoho failed to satisfy her burden of establ ishing “changed circumstances.” Therefore,
we must dete rmine whet her the preponderance of the evid ence establishes a material change in those circumstanc es that are relevant

to and weigh against the threat of harm to Bianca from custodial modificati on.
Upon review of the parties’ br iefs, w e note that the only factual basis upon which Donoho contends “changed circums tances” was

established is Donoho’s contention that Lewis has failed to cooperate with Donoho in arranging court or dered visitation . Though Donoho cites Dalton v. Dalton , 858 S.W.2d 324 (Tenn. Ct. Ap p. 1993), to support her assertion, we find that Dalton , which did not invo lve visitation, but, instead , invol ved8

recalcitrant

parents in handling joi nt custody, does not support her contention. Also, over the course of Donoho’s infrequent v isitation , Donoho wo uld at ti mes fail to even notify Le wis (and also thereby Bianca ) that she would not be comi ng. Furthermor e, she pai d substantial arrearages in child support at infrequent times w hen faced with further pending legal proceedings in this matte r. These changes in circ umstanc es, which weigh against Donoho’s fitness as a parent and abilit y to care for Bianca, do not weigh against the threat of harm to the ch ild an d do not, therefore, support a finding of m aterial change in circumstances. Upon review of the enti re record, we find th at the evidence does not preponderate against the trial cour t’s finding that Donoho failed t o sati sfy her burd en of proof of establishing a material change in circumstances.

IV. Conclusion

Accordin gly, the trial court’s dis missal is hereby affirmed. Costs of this appeal are taxed to Do noho, f or which exe cution m ay issue if necessar y.
HIGHERS, J. CONCUR:

FARMER, J. LILLARD, J., Concurring separately