# FILED
October 3, 199 6 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) DANA LYNNE BURLESON, ) Henderson County Chanc ery Court ) No. 8618 Plaintiff/Appellee. ) ) VS. ) C. A. NO. 02A01-9601-CH-00021 ) MICKEY DWAYNE BURLESON, ) ) Defend ant/Appe

llant. ) )

______________________________________________________________________________ From the Chancery

Court of Henderson County a t Lexington. Honorable Joe C. Morris, Chancellor
James F. Butler, SPRAGINS, BARNETT, COBB & BUTLER, Jackson, Tennessee Attorney for Def endant/A ppellant
.
Carthel L. Smith, Jr. , Lexington, Tennessee Attorney for Plaintiff/Appe llee.

OPINI ON FIL

ED: AFFI RMED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) LILLARD, J. : (Concur s)Defend ant-App ellant, Mickey Dwa yne Bur leson (“Father”), appea

ls the trial court’s judgment denying his petition to modify the child custody pr ovision s of the parties’ final divorce decree.

The parties weredivorced in July 1993 by a final divorce decree

which incorporated by reference the terms of the parties’ marital dissolution agreement (“ MDA”). In a

ccorda nce with the terms of the MDA, Plaintiff-Appellee, Dana Ly nne Burleson (“Mother”), was awarde d “absolu te and exclusive

custody ” of the p arties’ two minor children and the Father was awa rded the marital home. The MDA r

equired the Mothe

r to quitcl aim her in

terest in the marit al home to t he Father upon his payment of $8,700 to the Mother for her equity in the home . An amen dment tothe MDA, filed the same day the divor ce decree was entered, required the Fa ther to “provide baby sitters for the childre n at his own expens e in lieu o f direc t child support pa

yme nts, the pa

rties ag reeing that said amounts would be equal.”

In May 1994, the Fa

ther filed a p etition to

change custody

and modify the final de cree of divorce. At the evidentiary hearing held

in February

and March 1995, the Father testified that the Mother moved out of the marital h ome after the parties’ divorce but that the children did not move with her. Instead, the children re mained in the marital home, where the Father took ca re of them. The Father’s mother (the children’s pater nal grandmother) took care of the children during the day while the Father worked. The Father provided the children with their basic needs, including clothing and medical e

xpenses. The Fat

her also involved h

imself with the children’ s classe s and act ivities, but the Mother did not.

Fa ther further testified that at the time of the divorce, the Mother was working the ni ghtshif t. Pursuant to an agreement between the pa rties, the grandmother bega n watching the children at night

while the Mother worked. The Mother was supposed to pick up the children a fter her shift end ed, but she

never di d. The Mot

her some times called from w ork to see about picking up the children, but half of the time she failed to show up to get them. After about a wee k, the Father began picking up the children from the grandmother’s house and taking the children home with h

im.

The Mother te stified th at, contr ary to the Fa ther’s te stim on y, when the Mother movedoutof the marital home, the children moved with her into her new home. The Mother has moved
a couple of

times sinc e the divo

rce, and each time the ch

ildren ha ve moved with her. Pu

rsuant to the amendment modifying the MDA, the Father andthe Mother agreed that the Fa ther would not have to pay

child support if

the gra ndmother took car e of the c hildren w hile the Mother worked the night shift. Problems with this arrangement arose because , when it was time for the Mother to pick up the children, she often had trouble locating them. The Mother admitted that there were day s when she did not

pick up the

childre n, but she e

xplained th at:

When I would go to pick up the kids, they wouldn’t be there. One wou ld be here and one would be somewhere e lse. When [th e Father] took them to his house, you could beat on the d oor. He wouldn’t come to the door, notes on the door.

. . . . You could call. There wouldn’t be any answer one day . You would go there t he ne xtday. I f you did find somebody, one would be with [the Father] and one would be [somewhere else].
At the time of the evidentiary hearing, the Mother no longer w as working the night shift.

In J une 1995, the

trial cou rt enter ed a judgment deny

ing the Father’ s petition t o change c usto dy. In its j udgmen t, th e court gave th e foll owing r eason for it s ruli ng:

As stated in Open Court, the Court fee ls that a [sic ] both parents in this cau se are f

it and pro per to have custody

of the children, and it appears that the children have been spending a great dea l of time with each one, and i n particular, with [the Father] and [the gra ndmot her]. However, the Court

is of the opinion that there has not been a materi al change of circumstances tha t the parties did not agree to, which was conv enient to [the Mother ’s] work, a

nd for ec onomic reasons for [the F athe

r]. [The Mothe

r] agreed for [the

Father ] to baby sit the child re n in lieu of child support, and she agreed for the children to stay

with [the Father], and/or [the grandmother], when she worked the night shift. This might have been a mistake on her par

t, bu t n ot en ou gh to ta ke cu st od y. Custodywill remain with [the Mother], and [the Father ] will pay ac cording to the guidelines.
On appeal, the Father presents a single issue for our review:Whether the trial court er red in denying [the Father’s] petition to change custody

and modify decr

ee.

We review the custody issue presente d in this case de novo upon the record, accompanied

by a presumption of

correctness of th

e trial c ourt’s findings o f fact. Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. App. 1993); T.R.A.P. 13(d). In do ing so, w e recog nize that “ [t]rial cour

ts
are vested with wide discretion in matters of child custody and the appellate courts will not interfere except upon a showing of erroneous exercise of that discr etion.” Koch , 874 S.W.2d at 575.

In a custody

modifica tion proc eeding , the comp arative fitness a naly sis of the original custody procee ding is no longer determinative. I nstead, the non-custodial parent has the burden of proving a material chang e in circumstance s “compelling en ough to w arrant the dram atic remedy of chan ged c ustody.” Musselman v. Acuff , 826 S.W.2d 920, 922 (Tenn. App. 1991). Applying the foregoing standard, we

conclude that the Father has failed to meet this burden in the pr esent case.

The Father contended at trial and on appea l that a material change in circumstance s had occurr

ed in that , contra

ry to the parties’ expectations at the time they entere d into the MDA, the Father has serv ed as the

childre n’s prim a ry car

e giver since the divorce. Acc ording to the Father, the children have continued to live in the former marital home with the Father a nd the Father, not the Mothe

r, has co ntinuously

provided for the c hildren’ s basic needs.

Based on the evidence presented at the hear ing below, the trial court found that any change in circumstances resulted from the parties’ ag reement and did n ot war rant the remedy of changed custody . We agr

ee. The amendme

nt to the MD A, which req uired the Father to provide babysitters for the children in lieu of direct chi ld sup port payments, was f iled the same day the divorce decree was entered. The Mother testifie d that, pur suant tothis amendment, the grandmother watched the children at

night for a period of time during which the Mother wa s assigned to the night shift. Although this arrangement resulted in the childre n spending a great dea

l of time with the Father and the g randmother, the a

rrang ement did

not constitute a ch ange in circumst ances because it was agreed to by

the parties at the time of the divorce. See, e.g., Hall v. Hall , 1995 WL 316255, at *2 (Tenn. App. 1995) (indicating that change in custody requires materia

l chang e not rea sonablyforeseen when original custody decision was made).

In affirming thetrial court’s custody decision, we note that much of the evidence was disputed regarding the Mother’s a ttempts to pick up the children from the Father’s house an d the grandmother’s house. As this Court recently stated,
Custodydecisions are amo ng the most important decisions that co urts make. They a re factually

driven and require a car efu l balancing of

num erous considerations. Nichols v. Nichols , 792 S.W.2d 713, 716 (Tenn. 1990)[ overruled on other grounds by Aaby v. St range , 924 S.W.2d 6 23 (Tenn . 1996)]; Rogero v. Pitt , 759 S.W.2d 109, 112 (Tenn. 1988)[ overruled on other grounds by Aaby v. Strange , 924 S.W.2d 623 (Tenn. 1996)]; Holloway v. Bradley , 190 Tenn. 565, 571, 230 S.W. 2d 1003, 10 06 (1950) ; Scarbrough v. Scarbrough , 752 S.W.2d 94, 96 (Te nn. Ct. App. 19 88). Appe llate courts understand that these decisions often hinge on subtle nuances in the parties’ demeanor and credibility , and we are, therefore, reluctant to second-guess trial courts who have observe d the witnesses and asse ssed thei r credi bility
. Gill

iam v. Gilliam , 776 S.W. 2d 81, 84 (Tenn. Ct. App. 1988). We customarily de c line t o disturb custody

decisions unless they

are based on a material error of law or unless the evidence preponderatesagain st them. Hass v. Knighton , 676 S.W.2d 554, 556 (Tenn. 1984); Edwards v. Edwards , 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973).

Hall , 1995 WL 316255, at *2. We c onclude t hat the evidence

does not pr

eponder ate ag ainst

the trial court’s custody de cision in this case.

The tria l court’s judgment deny

ing the Father’s petition to change custody is affirmed
. Co st s o f t hi s a pp ea l a re ta xe d t o t he Fa th er , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ FARMER J

.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LI LL ARD, J. (Conc

urs)