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 custody. The trial court found no material change

of circumstances justifying such change and dismissed the petition. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and

Remanded

DAVID R. FARMER,J., delivered the opinion of the court, in which ALAN E. HIGHERS,J. and DON R.

ASH, SP. J., joined.

Timothy V. Potter, Dickson, Tennessee, for the appellant, Jennifer Holloway Rial.

Douglas Thompson Bates, III, Centerville, Tennessee, for the appellee, Terry Rial.

OPINION

Jennifer Holloway (“Mother”) and Terry Rial (“Father”) were divorced in 1993. The trial

court awarded the parties joint custody of their two minor daughters, with Father being the primary

custodian. In May 1998, the trial court denied Mother’s December 1997 petition for a change of

custody. In August of 1999, the court modified the visitation schedule set forth in the original

custody decree. Mother again petitioned for a change of custody in September 2001. A hearing was

held in May 2002. The trial court found no material change of circumstances justifying modification

of the 1999 order, and by order entered June 2002 denied Mother’s petition. Mother now appeals

to this Court.

Issues Presented

Mother raises the following issues for review by this Court:
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(I) Whether the trial court erred by ruling that the evidence did not constitute a

“change of circumstances” sufficient to conduct a comparative fitness

analysis.

(II) Whether the trial court erred by reviewing and allowing into evidence

Father’s secretly obtained audio-taped conversation between Mother and the

parties’ twelve year old daughter.

Standard of Review

Our review of a trial court’s conclusions on issues of law is de novo, with no presumption

of correctness. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002). Our review of a trial

court’s findings on issues of fact is de novo upon the record, accompanied by a presumption 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 determine

where the preponderance of the evidence lies and accord no presumption of correctness to the

conclusion of the court below. Id.

Material Change of Circumstances

A valid child custody order may be modified where a material change of circumstances has

occurred such that a change of custody is in the best 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-part test in determining whether a change of custody is warranted. Id. First,

it must determine whether a material change of circumstances has occurred that affects the child’s

well being. Id.; Kendrick, 90 S.W.3d at 570. Second, if it finds a material change of circumstances,

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 “bright-line” rule exists for determining

whether a material change has occurred. Id. The Court has identified several considerations,

however, including 1) whether a change has occurred subsequent to the order from which

modification is sought; 2) whether such a change was not known or reasonably anticipated when the

order was entered; 3) whether the change is one which affects the child in a “meaningful” way. Id.

The Cranston Court specifically disavowed the concept that such a change must pose a threat of

substantial harm to the child in order to justify a change of custody. Id.

In the case now before us, the trial court determined that there had been no material change

of circumstances since 1998 which would justify a change of custody. The trial court accordingly

did not reach the question of whether a change of custody would be in the best interests of the

children. However, the court made no specific findings of fact in support of its conclusion. In

accordance with the standard of review identified above, we must therefore conduct a de novo review
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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 changes in circumstance since May 1998 include: 1) frightening

episodes of “out of control” temper by Father; 2) extreme corporal punishment/unjustified corporal

punishment by Father; 3) unjustified 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 girlfriend, 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 and her two children; 8) an observation

by the children of sexual relations between Father and his present wife, who sleep on a couch in the

living room as a result of overcrowded living conditions; 9) Father has allowed the 12-year 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 himself and the children from the

home; 11) corporal punishment of the children by Father’s wife; 11) derogatory statements about

Mother by Father; 12) interference by Father with Mother’s involvement in the children’s activities;

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 elder daughter which were made 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 reside with her. 

The order entered by the court in 1998 required Mother and Father to attend a parenting apart

seminar. Father attended the seminar. Mother failed to attend, and testified that her previous

attorney failed to 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 children to

dress less modestly than Father permits; that Mother has permitted and encouraged the children 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 and Mother. 

After reviewing the record, we believe that both Mother that Father have, on some occasions,

made extremely poor judgments. However, we do not believe that Father presents a danger to the

children, 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 incidents. Assuming Mother’s testimony is true, although such behavior by Father

is neither advisable nor commendable, it does not create a material change of circumstances

justifying a change of custody. Mother and Father acknowledge that they have difficulty

communicating, and Mother’s testimony indicates that Father’s wife has been an asset in this regard.

It is also evident that both Mother and Father have encouraged the children to lie. 

Ashton Rial (Ashton), age eleven, testified that Father “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 coffee 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 pretty scary.” Ashton
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also testified to being whipped with a belt about three years ago, when Father became angry and

frustrated over her inability to do a homework assignment, and again a few month ago, when she

continued to swing from her canopy bed after Father had told her stop. When asked by the court

whether Father had “ever done anything else besides whipped you with a belt when he’s disciplined

you,” Ashton replied, “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 whenever they wanted. She testified that Father allowed the

children to drive on the dirt road near their home, and that her sister was allowed to drive without

Father being in the car; that he has more strict rules than Mother about the type of clothing they are

allowed to wear; and that he has very strict rules about the girls achieving good grades in school.

Ashton testified that Father “has a problem with black people that he doesn’t know;” that he refers

to African-Americans in derogatory terms; that he objected to Mother taking the girls to an AfricanAmerican dentist; and that he had told the girls that if they attended the school near Mother they

would be beaten up by African-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 “dad gets upset very easily sometimes.”

Morgan also testified regarding the coffee table incident and the whipping of Ashton over a

homework assignment. Morgan testified that she was not whipped often because she does not

misbehave a lot. She further stated that Father does not always discipline by whipping the children,

that he “usually just grounds us or something.” When asked by the court if she thought Father was

fair, Morgan stated, “he’s fair but sometimes I think he gets too tough on it sometimes. He doesn’t

want us to make anything below a 90 [in school], and I don’t find that wrong or anything but

sometimes I find it really hard to make 90's and above all the time.” She stated that a grade of a “C”

had resulted in a grounding and two hours of studying a night until the grade was brought up.

Morgan testified that Father’s wife had never whipped 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

with homework when asked. She testified that Father sometimes allowed her to drive about four

miles to the store without him in the car. 

After reviewing the entire record in this case, and the testimony of the children in particular,

we agree with the trial court that there has been no material change of circumstance which would

justify a change of custody. Mother has failed to carry her burden of proof on this issue. We

accordingly affirm the judgment of the trial court. We further affirm the order of the trial court

requiring Father and the children to participate 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’s wife from engaging in corporal punishment of the

children. 
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It is clear to this Court that Father and Mother have extreme difficulty in communicating and

that they make little effort to do so. It is also evident that Father and Mother make very little effort

to overcome their hostility toward each other or to guard against exposing their children to it. This

conduct simply is not in the best interests of these children. 

We urge both parents to strive to conduct themselves in a more civil, amicable manner in

consideration of the well-being of their children. Although we do not condone Father’s sometimes

extreme outbursts of temper, we note that they occurred several years ago as isolated incidents.

While we make no comment on the propriety of spanking, we remind the parties that corporal

punishment is not without limit. We also caution Father against permitting any unlicensed person

to drive. We remind the parties that the courts are not without recourse to remove the children from

the home of either parent upon a finding of neglect or abuse. 

Mother additionally raises the issue of whether the trial court erred by admitting into

evidence a secretly audio-taped conversation between Mother and one of the children. The propriety

of admission of this evidence is not relevant to the threshold question of whether a material change

of circumstance has occurred. The issue accordingly is pretermitted. The order of the trial court is

affirmed. Costs of this appeal are taxed to the appellant, Jennifer Holloway, and her surety, for

which execution may issue if necessary.

___________________________________ 

DAVID R. FARMER, JUDGE