### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 8, 2003 Session JENNIFER D. RIAL (HOLLOWAY) v . TERRY RIAL
Direct Appeal from the Chancery Court for Hickman County

No. 9310280 R. E. Lee Davies, Judge

No. M2002-01750-COA-R3-CV - Filed August 7, 2003

Mother petitioned the court for change of child custo dy. The tr ial co urt fo und no mater ial ch ange of circ umstance s justify

ing such chang e and dism

issed the petition. We

affirm. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed; and Remanded

D AV ID R. F ARMER , J., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D ON R. A SH , S P

. J., joined. Timothy V. Potter, Dickson, Tenness ee, for the appe llant, Jenni fer Holl oway

Rial. Dougla s Thompson

Bates, II I, Ce nterville , Tennes see, for

the appe llee, Te rry Rial.
OPINION

Jennifer Holloway (“Mothe

r”) and Terry

Rial (“Father”) were divorc ed in 1993

. The trial court awarded the parties joint custo dy o f their tw o minor da ughter s, with

Father being the primary custodian. In May

1998, the trial court den ied Mother’s December 1997 petition for a chang e of
cu st od y. In Au gust of 1 999, the c ourt mo dified the visi tation schedule set forth in the original custody decree. Mother again pe

titioned for a

change of custody

in September 2001. A hearing was held in May 2002. The trial court found no material change of circumstances justify

ing modification of the 1999 order, and

by o rder en tered June

2002 deni ed Mother ’s petitio n. Mother now appe als to this Cour

t.
Issues Presented

Mother r aises the following

issues fo r revie w by

this Court:-2-

(I) Whether

the trial court erred by

ruling that

the evidence did not constitute a “change of circum stances ” suffic ient to co nduct a c omparat ive fitne ss analy sis.
(II) Whether

the trial court er red by reviewin g and allowing into evidence Father’s secretly obta

ined audio-taped conversation between Mother

and the parties’ twelve y ear old daughter.

Standard of Review

Our review of a

trial court’s conclusions on issues o f law is de novo , with no presumption of correctness. Kendrick v. Shoemake , 90 S.W.3d 5 66, 569 ( Tenn. 2002). Our review of a trial court’s finding s on issues of fact is de novo upon the record, accompanied by a p resumption of
correctness unless the evidence preponderates otherwise. Id. at 570; Tenn. R. App. P. 13(d). Where the trial court makes no specific findings of fact on a matter, we must review the record to deter mine where the preponderance of the evidence lies and accord no presumption of cor rectness to the conclusion of the court below. Id. Material Change of Circumstances

A valid child custody order ma y be modified where a material change of circ umstances has occurred such that a chang e of cust

ody is in the bes t interest of the child. Cranston v. Combs , — S.W.3d —, 2003 WL 21266696, No. M2000-02101-SC-R11-CV (Tenn . June 3 , 2003). Thus the court must utilize a

two-par t test in determining whether a chang e of custody is war ranted. Id. First, it must determine whether a

material change of circumstanc es has occurred that affec ts the child’s well being. Id. ; Kendrick , 90 S.W.3d at 570. Second, i f it finds a materia l chang e of cir

cumstanc es, the court must utilize the factors enumerated in Tenn. Code Ann. § 36-6-106 to determine whether a change of custody

is in the best interests of the child. Id.

The Tennessee Supreme Court has observed that no “brig ht-line” ruleexists for determining whether a material change has occ u rred. Id. The Court

has ident

ified sev eral co nsidera

tions, however, including

1) whether a cha

nge ha s o ccu rred subsequent to the order from which modification is sought; 2) whether such a change was not

known or reasonably

anticipated when the order was ente red; 3) w hether t he chan ge is on e w hi ch af fe ct s t he ch il d i n a “m ea ni ng fu l” wa y. Id. The Cranston Court specifically disa vow ed the concept that such a change must pose a threat of substantial harm to the child in order to justify a c hange of custody

. Id.

In the case now before us, the trial court determined that there had been no mater ial ch ange of circumstances since 1998 which would justify a c hange of custody . The trial cou rt acco rdingly did not rea ch the question of whether a change of custody would be in the be st interests of the ch ildren. Howeve

r, the court made

no specif

ic finding s of fac t in suppor t of its con

clusio n. I n accordance

with the standard of review identified above, we must therefore conduct a de novo review-3-

of the record to determine whether the preponderance of the

evidence supports the determination of the trial court, with no presumption of correctness afforded to the trial court’s conclusion.

Mother argues that material chang es in circumstance since May 1998 include : 1) frightening episodes of “out

of control” temper by

Father; 2) extreme corporal punishment/unjustified corporal punishmentby Fathe

r; 3) unj ustified and extreme non-corporal punishment; 4) over-reaction by Father to various incidents; 5) racist remarks and attitudes by Father ; 6) co-habitation by Father with his girl frie nd, whom he married less than one month before the hearing of the petition; 7) overcrowding of Father’s home, which is now shared by his wife andher two children; 8) an observation by the children of sexual relations between Father and his pre sent wife, who sleep on a couch in the livi ng room a s a resul

t of over crowde d living c onditions; 9 ) Fathe r has allo wed the 1 2-y ear old daughter to drive, unsupervised, to the neighborhood store; 10) Father and his wife have experienced marital difficulties, resulting in Father’s temporary removal of

hi mself and the children from the home; 11) corporal punishment of the children by Father’s wife; 11) derog at ory statements about Mother by Fathe r; 12) interference by

Father with Mother’s involveme nt in the c hildren’ s activiti es; 13) the girls have difficulty communicating with Father; 14) the girls have expressed a preference to live with Mother. The record also contains a recording of telephone conversations between Mother and the e lder daughter which were ma de without the knowledge or consent of Mother. Mother submits that she and the children have a close relationship and that they have expressed a strong preference to re side with her.

The order entered by

the court in 1998 required Mother and Fat her to attend a parenting apart seminar. Father attended the seminar. Mother fa i led to at tend, and testified that her previous attorney failedto communicate the arrangements with her. Mother’s testimony reflects that Mother and Father both reside in the homes where they resided in 1998; that

Mother allows the childrento dress le ss modestly

than Fa ther per mits; that Mo ther has permitte d and enc ourag ed the ch ildren to mislead Father about their smoking; that Father’ s wife has in fact been an asset

in the relationship between Father and Mother, as Mother and she communicate better than do Father a nd Mother.

After reviewing the r

ecord, w e believ e that bot

h Mother t

hat Fath er have , on some oc casions, made extremely poor

judgments. However, we do not believe that Father presents a dang er to the child re n, as Mother contends. While Father admits to corporal punishment of the girls, he denies the incidents of

extreme temper and corporal punishment. Mother’s own testimony presents them
as isolated, single i ncidents

. Assuming Mother’ s testimony

is true, although such behavior by Father is neither advisable nor com mendable, i t does not create a material chang e of circumstances justifying a change of custody . Mother and Father ackno wledge tha t they have dif

ficulty
commu nicat ing, and Mother’s testimony indicate s that Fa

ther’s w ife has b een an a sset in this regard. It is also evident that both Mother and Father have encouraged the c

hildren to lie.

As hton Rial (Ashton), age eleven, testified that Fa ther “gets mad easily .” She further testified that he was “a little weird” and that, as an example, he once become so angry with her that he picked up the coffee table and “ hit his head on the c offee table and broke it in half and broke the leg off, and then he went and hit his head on the wall and, you know, that was pre tty scary .” Ashton-4-

also testified to being whipped with a belt about three y ea r s ago, when Father bec ame angry and frust ratedover her inability to do a home work assignment, and again a f ew month ago, when she continued to swing from he r canopy be d after Father had told her stop. When asked by the court whether Father had “ever done a

nything else besides whipped y ou with a belt when he’s disciplined yo u,” Ashton r eplied, “No, Sir.” Ashton also testified that her sister was disciplined less often because “she’s a lot nicer.”

Ashton testified that Father calls Mother

a liar, but further testified that the children were able to contact their Mother by telephone whe

never they

wanted. She testified that Father allowed the children to drive on the dirt road near their home , and that

her siste r was all owed todrive without Father being in the car; that he has more strict rules than Mother about the ty pe of clothing they

are allowedto wear; a nd that he has ve ry strict rules about

the gir ls achieving g ood gra

des in sch ool. Ashton testifie d that Fa

ther “ha s a

problemwith black people that he doesn’t know;” that he refer s to African-Americans in derog atory terms; that he objected to Mother taking the girls to an AfricanAmeric an dentist; an d that he had told the girls that if they attended the school near Mother they would be beaten up by Africa

n-American students. Ashton testified that Father’s wife had slapped her, but that she had not told Father. Morgan Rial (Morgan), who was twelve at the time of the hearing, testified that she found it easier to talk to her Mother than her Father , and that

her “da d gets upset very e asily sometimes.” Morgan also te stif ied rega rding the coffee table incident and the whipping of Ashton over a homew ork

assignment. Morgan testified that she was not whipped ofte n because she does no t misbehave a lot. She further stated that Father does not alway s discipline by whipping the c hildren, that he “usua lly j ust grounds us or something.” When asked by the court if she thought Father was fair, Morgan

stated, “ he’s fa ir butsometimes I think he gets too tough on it sometimes. He doe sn’t want us to m a ke anything

below a 90 [in school], and I don’t find that wrong or a nything but sometimes I find it

really hard tomake 90' s and abo ve all the time.” She

stated tha t a gra de of a “ C” had resulted in a groundi ng and two hours of study ing a night until the grade was br ought up. Morgan testified that Father’s wife had never whippe d or struck her, but that she thought she had struck Asthon once. Morgan testified that she and Father’s wife got along most of the time and that Father helped withhomework when asked. She testified that Father sometimes allowed he r to drive abou t fo ur miles to the store without him in the car.

After reviewing the entire recor d in this case, and the testimony of the ch ildren in particular,
we agree with the trial court that there ha s been no material change o f circu mstance which wou

ld justify a change of custody. Mot her h as fa

iled t o car ry her b urde

n of proof

on thi s issu e. We accord ingly affirm the judgment of the trial court. We further a ffirm the order of the trial court requiring Father

and the children to

particip ate in

family counseling ; prohibiting Mother and Father from speaking ill of the other in the presence of the children; requiring Mother to participate in the parenting apart seminar; and prohibiting Father’swife fr om enga ging in corporal punishment of the children.-5-

It is clear to this Court that Father and Mother have extreme difficulty in communicating and that they make little

effort t o do so. It is also evident that Father and Mothe r make very

little effort to overcom

e their h ostility

toward e ach othe

r or to guard ag ainst expos ing thei r childre n to it. This conduct simply is not in the best interests of these childre n.
We urge both parents to strive to co nduct the mselves in a more c ivil, amic able man ner in consideration of the well- being o f thei r chil dren. Alth ough we do not condone Father’s sometimes extreme outbursts o f temper , we note that they occurr ed sever al y ears ag o as isola

ted incid ents. While we make

no commen

t on the pr

opriety of spanking, we r

emind the

parties t hat corporal punishmentis not without limit. We also caution Father against permitting a ny unlicensed per son to drive. We remind the parties that the courts a re not wit hout rec ourse to

remove the children from the home of either parent upon a finding of ne glect or abuse.

Mother additionally raises the issue of w het her the trial

court er red by admitting

into evidence a secretly

audio-taped conversation between Mother and one o f the chi ldren. Th e propri ety of admission o f this evid

ence is n ot relev ant to the threshold question of whether a mater ial ch ange of circumstance has occurred. The issue accordingly is pretermitted. The order of the trial cou rt is affirmed. Costs of thi s appeal are taxe d to the ap

pellant, Jennif

er Ho lloway, and her

surety, for wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ DAVID R. FARMER, JUDGE