FILED

May 5, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

LOUISE SULLIVAN (KING), )

)

Plaintiff/Appellant, ) Appeal No.

) 01-A-01-9803-CV-00116

v. )

) Davidson Circuit

ALLISON GRANT KING, JR., ) No. 86D-1610

)

Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT

AT NASHVILLE, TENNESSEE

THE HONORABLE MURIEL ROBINSON, JUDGE

SUSAN H. MOSELEY

Moseley & Moseley

Suite 300, One Church Street

101 Church Street

Nashville, Tennessee 37201-1609

ATTORNEY FOR PLAINTIFF/APPELLANT

ROSEMARY E. PHILLIPS

429 Church Street

P. O. Box 590 

Goodlettsville, Tennessee 37070-0590

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
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O P I N I O N

This case involves a mother's post-divorce petition to modify custody. The

trial court dismissed the petition and awarded attorney fees to the father's

attorney. The mother asserts that circumstances have changed such that it is now

in the children's best interests to live with her. We do not find that the mother

has made the requisite showing of changed circumstances, and, accordingly, we

affirm the decision of the trial court.

I.

Louise Sullivan King ("the Mother") and Allison Grant King ("the

Father") were divorced by final decree in 1988. The final decree awarded

temporary custody of the parties' three minor children to the Father, and, two and

a half years later, this award was made permanent by order entered May 3, 1990.

At that time, the oldest child, Alice, was 10 years old and the younger twins,

Grant and Mary, were 7 years old. Since then, the children have resided with the

Father and the Mother has paid child support and visited regularly with the

children. 

The proceedings giving rise to this appeal began when, on March 31,

1997, the Mother filed a Petition for Change of Custody which alleged the

following material change of circumstances: Alice, born October 18, 1979, was

a high school senior about to turn 18 years of age (and did turn 18 three days

after this petition was heard), Grant and Mary, born October 8, 1983, were 13

years old, and all three children had expressed a desire to live with the Mother.

The petition further alleged that the Father had not provided the children with the

standard of care for their educational, medical and social development that she

would be able to provide them if she had custody. 

At trial, the Mother testified regarding the circumstances that precipitated

her filing the petition. She said that after the Father filed a Petition for an

Increase in Child Support, she communicated to the children that she would not

be able to provide financially for them in the manner to which they were
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accustomed at which point the children suggested they live with her. The

evidence was that the Mother's annual salary was $47,000 and the Father's was

$17,000. 

At the hearing, the Mother stated that "the main thing that has changed is

the age of Grant and Mary and their willingness and desire to go through this

whole process." Also, the Mother expressed concern over the fact that Alice was

leaving the household as she felt that Alice played an important role for the

younger children as a mother figure. The Mother testified that the children do

not get the emotional support they needed from the Father. She stated that the

Father is not sympathetic to the children's needs, for example, he does not always

notice that they are ill until they point it out to him. While the Mother claimed

that she is the parent who helps them with homework and takes them to the

library, she acknowledged that she has not been involved in their school

activities as much as she would have liked. 

The Mother entered some photographs into evidence that showed that the

Father's house and yard were not clean or well kept. She put on photographic

proof that showed her own house to be neat and clean. Other photographs were

entered which depicted the inside of the Father's home. These were taken by

Alice who testified that she took them because she was "angry at the living

conditions." 

All three children were called by the Mother to testify, and both of the

minor children expressed their preferences to live with the Mother. Grant

testified that he prefers to live with the Mother because he has asthma and can

breathe easier at her home. He also testified that the Mother helps him with

school work and boy scouts. He stated that he would just like to spend his last

four years at home with her since he has spent the first part of his life with the

Father. Grant testified that both parents have similar rules. He stated that he

feels safer at the Mother's house because he knows the neighbors there. Grant

acknowledged that the Father had gotten him involved in scouts and had been on

rafting and fishing trips with him. He confirmed that the Father had taught him

to cook and to sew. His seventh grade report card, which was entered into
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evidence, revealed A's and B's and only a few absences.

Mary articulated as the reason she wants to live with her Mother the fact

that she will have more freedom and more privileges. On cross-examination, she

explained this by saying that with the Mother, she "get[s] to watch the shows that

[her] dad doesn't think are appropriate, like the Simpsons, which everybody

almost watches. I get to have friends over. I get to go around and not have like

tight restrictions on where I go, and I get to go out in the forest behind our yard

and not have to worry about if I have to -- just like a certain time limit that I have

to be out there and come back." Mary testified that the Father has basic rules

such as that she keep her room clean and go to bed by 9:30. 

Mary stated that while the Mother treats her like an individual, the Father

treats her like she is inferior and can not comprehend things the way other people

can. She explained that the Mother is a better listener to her problems. She

stated that she would like to continue her relationship with the Father should

custody be modified: "I really don't have anything against him, except I just

want to live with my mom. And we [(Mary and the Father)] have a whole bunch

in common, like we like to do fly fishing and stuff. We like to do different

sports. And there really isn't anything that would change, except that I would be

living with my mom." It was Mary's testimony that the Father allows her to call

the Mother as often as she wishes. 

The evidence was that Mary attended a magnet school and had been

inducted recently into the National Honor Society. Her seventh grade report card

reflected excellent grades and a perfect attendance record. She plays soccer as

well as tennis and basketball.

The oldest child, Alice, confirmed that the Father had been present at

many of the children's outings and events though she claimed that he only took

an interest in the children's schooling at report card time. Though she claimed

there were no set rules in her Father's household, she described a rigid

arrangement in which she was not allowed to go out with friends or to use her

car. Alice claimed that the Father's smoking had been the cause of several
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illnesses for all of the children. Alice felt like the younger children were afraid

of the Father and that without her at home, he would take out his anger on them.

The Father's deposition was entered into evidence. The Father felt like the

children's desire to move stemmed from the fact that they have no rules at the

Mother's house. He testified that there are rules at his house, that the children are

responsible for cleaning their own rooms, washing dishes, mowing the yard and

cleaning the house. He described a functional family situation at home. He

testified that his children are involved in many activities in which he participates

to an extent. He stated that the children occasionally have friends over to their

home. He testified that he has tried to promote the children's relationship with

the Mother. Regarding his smoking, the Father testified that he is trying to quit

and that he does not smoke in the children's presence.

After the Mother put on her proof, the trial court granted the Father's

motion to deny and dismiss the Mother's Petition for a Change of Custody. Also,

the court's order enjoined the Father from smoking around the minor children.

Finally, the court ordered that the Mother pay directly to the Father's attorney,

Rosemary Phillips, the sum of $1250.00 and that the costs of this cause be taxed

to the Mother. The Mother then moved for a new trial. The Court denied the

Mother's Motion for a New Trial and ordered that the costs of this cause be taxed

to her as well. 

II.

Once an initial custody award had been made, modifications of custodyare

ordered "as the exigencies of the case may require." Tenn. Code Ann. §

36-6-101(a)(1) (Supp. 1998). This means that custody will be changed only

when there is a "change in circumstances as will directly affect the welfare of the

minor" children. Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. App.

1995) (quoting Dailey v. Dailey, 635 S.W.2d 391, 393 (Tenn. App. 1981)).

"'Changed circumstances' includes any material change of circumstances
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affecting the welfare of the child, including new factors or changed conditions

which could not be anticipated by the custody order." Blair v. Badenhope, 940

S.W.2d 575, 576 (Tenn. App. 1996) (citing Dalton v. Dalton, 858 S.W.2d 324

(Tenn. App. 1993)). The burden to prove these changed circumstances is on the

non-custodial parent. Harris v. Harris, 832 S.W.2d 352, 353 (Tenn. App. 1992).

Appellate court review of a trial court's factual determinations on the issue

of custody modification is de novo with a presumption of correctness: the record

developed below comes to the appellate court accompanied by a presumption of

correctness that will be honored unless the evidence preponderates against the

findings of fact supporting the lower court's judgment. Tenn. R. Civ. P. 13(d);

Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). Since custody "decisions

often hinge on the parties' credibility, appellate courts are reluctant to

second-guess trial judges who have observed the witnesses and assessed their

credibility." Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. App.

1997). Appellate courts will not disturb "custody decisions unless they are based

on a material error of law or the evidence preponderates against them." Id. 

At the close of the hearing on the Mother's petition to modify custody, the

trial judge found there were "no sufficient circumstances that would warrant a

change of custody." The court stated that "[c]hildren have a right to state their

preferences, and I've heard them. But, in view of everything that you have said,

I cannot find that a change is warranted." 

The Mother's first issue on appeal is that the court erred in dismissing her

petition to change custody. Initially, we point out that it is only the custody of

the younger twins that is an issue on appeal since Alice is no longer a minor.

The Mother contends that she has shown changed circumstances and thus has

met her burden of proof. The Mother's argument is based upon a comparison of

current circumstances with those in existence at the time of the May 3, 1990

Order which made the initial award of custody to the Father permanent. In that

order, the following findings of fact were made:

The court finds that the children are doing well in their school work

and that their progress has improved over the last two and one-half
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(21⁄2) years. The Court further finds that the father is furnishing a

nice and comfortable home for their children as is the mother. The

Court further finds that the father has a good support system in that

his relatives from time to time, help him care for the children. The

Court further finds that the children are healthy and seem to be well

adjusted in their present situation.

The May 1990 Order concluded with the court's finding that there was no reason

to change custody. The children are "well adjusted and doing well both

emotionally and physically, and are adequately provided for by the father." The

court clarified that it was "not finding that the mother is not a fit person, but is

finding that the children are well adjusted and doing well in school and are

healthy and well cared for, and can find no reason to change custody at this

time."

It is the Mother's position that the Father has not maintained an

environment with the positive factors which were enumerated in the May 1990

order. We disagree finding that the present circumstances for these children are

not materially changed from those articulated in the 1990 Order. The Mother

claims that the Father's house is no longer clean or in good maintenance. While

there was evidence at trial that the Father's house was not well kept, we do not

find that this is a changed circumstance which would not have been anticipated

at the time of the final decree. Indeed, we find that it is reasonable to anticipate

that a single parent who is working full time and raising three teenage children

would have difficulties as a housekeeper. 

The Mother also claims that the Father no longer has a support system as

evidenced by the fact that the children have stayed at home alone. The fact that

the children have stayed alone does not support such a conclusion. At the time

of trial, the children were almost 14 years old, and the fact that they occasionally

stayed alone does not indicate the lack of a support system. The Mother also

claims that the Father has not shown consistent regard for the health of the

children as evidenced by his failure to insure a smoke-free environment for them.

 However, the Father testified that he does not smoke around the children and

that he was attempting to stop smoking altogether. In addition, the trial court's

order enjoined the Father from smoking around the minor children.
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Not only has the Mother failed to show unanticipated facts and conditions

that affect the welfare of the children, but the evidence shows that these children

have flourished while in the primary custody of the Father. In 1990, the court

found that the children were healthy and well adjusted. The evidence presented

below reveals that the children have continued to thrive emotionally, physically

and academically. Mary has received academic honors. She testified that she is

an active athlete involved in soccer, basketball and tennis. Grant also is enjoying

success in school and is active in boy scouts. Though Alice's custody is not in

dispute, it is significant to note that she graduated from high school with

excellent grades and is now attending college.

It is clear that these children currently prefer to live with the Mother;

however, their preferences do not appear to be indicative of changed

circumstances which directly affect their welfare. While Alice testified that her

younger siblings are afraid of the Father, the twins' testimony does not support

such a conclusion. Mary indicated a desire to continue a relationship with the

Father should custody be modified adding that she and the Father enjoy many

activities in common. Grant testified that his rationale for wanting change was

partially based upon the fact that he has spent the first part of his life with the

Father and now wants to live with the Mother. This court has made clear that a

child's wishes are only one factor of many enumerated in the statute which

governs the determination of the best interest of a child in a custody case. Harris

v. Harris, 832 S.W.2d 352, 353 (Tenn. App. 1992). The trial judge stated that

she did consider the children's preferences; however, the trial judge found and

we agree that their preference to live with the Mother is not enough to show a

material change of circumstances mandating a change of custody. 

To the extent that there is any truth to the Mother's claim that she is the

better parent to ensure the children's emotional well being, our holding does not

prevent her from continuing to do just that. Mary testified that she is permitted

to call the Mother any time she wishes. The children see the Mother on a weekly

basis and spend alternative weekends with her. Thus, the Mother has much

opportunity to attend to the children's emotional needs.
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III.

In her final issue, the Mother contends that the trial court erred when it

awarded attorney fees and costs to the Father's attorney. Section 36-5-103(c) of

the Tennessee Code provides in pertinent part as follows:

The plaintiff spouse may recover from the defendant spouse, and

the spouse or other person to whom the custody of the child, or

children, is awarded may recover from the other spouse reasonable

attorney fees incurred ... in regard to any suit or action concerning

the adjudication of the custody or the change of custody of any

child, or children, of the parties, both upon the original divorce

hearing and at any subsequent hearing, which fees may be fixed and

allowed by the court, before whom such action or proceeding is

pending, in the discretion of such court.

 

Tenn. Code Ann. § 36-5-103(c) (Supp. 1998). The Mother argues that because

the nature of custody cases is so fact driven, attorney fee awards exert a chilling

impact on parents who sincerely feel that the best interest of their children

requires a custody modification. Our court has made the determination that

"requiring parents who precipitate custody or support proceedings to underwrite

the costs if their claims are ultimately found to be unwarranted is appropriate as

a matter of policy." Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. App.1992).

The trial court's decision to award attorney fees rests within the discretion of the

trial court. Id. The Mother did initiate these proceedings. Moreover, she makes

an annual salary of $47,000 whereas the Father makes $17,000. In light of this

record, we find that the trial court did not abuse its discretion in awarding

attorney fees and costs to the Father.

IV.

In conclusion, we find that the evidence does not preponderate against the

trial court's finding that there has been no change of circumstances affecting the

welfare of the minor children. There is simply no evidence that new facts and

circumstances have arisen such that the welfare of these children requires a

change in custody. In addition, we hold that the trial court did not abuse its

discretion in awarding attorney fees to the Husband's attorney. Finally, we order

that the costs of this appeal should be taxed to the Wife.
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_________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

________________________________

BEN H. CANTRELL, P.J., M.S.

________________________________

PATRICIA J. COTTRELL, JUDGE