# FILED
May 5, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk LOUISE SULLIVAN (K ING), )

) Plaintiff/Appell

ant, ) 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 DAV IDSON 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, T

ennessee 37070-0590 ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

## O P I N I O N
This case in volves a mother's post- divorce petition to modify custody. Th e trial court dismissed t he petition and awarded attorney fees to the father's attorn ey. The mother asserts that circumstances have changed such tha

t it is now in the childr

en's best interests to live with her. We do not find that the mother has made the

requisite showing of changed circumstances, and, accordin gly, we affirm the de

cision of the trial c

ourt.

I.

LouiseSullivan King ("the Mot her") and Allison Grant K ing ("the Father") were divorced by final decree in 198 8. The final de cree awarded temporary

custody of the par

ties' three minor children

to the Father, and, two and
a half years later, this award was made

permanent by

order entered Ma

y 3, 1990. Atthat t ime , t he oldest child, Ali ce, was 10 ye

ars old and the you

nger twins, Grant and Mary, were 7 years old. Since then, the children have resided with th e Fat her and the Mother has pa id child support and visit ed regularly w

ith the children.

The proceedings giving rise to this appeal began when, on March 31, 1997, the Mo ther filed a Petition fo r Change of Custody

which alleged the followingmaterial change of circumstances: Alice, born October 18, 1979, w as a high school seni or about t o turn 1 8 years o f age (an d did tu rn 18 th ree days afte r this petition was heard), Grant and Mary, born October 8, 1983, were 1 3 years old, and all three c

hildren had expresse

d a desire to live wi

th 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 prov ide them if she had custo dy.

Attrial, the Mother

testified regardi

ng the circumstances that precipitated her filing the petition. She said that afte r the Father fil

ed a Petition for an Increase in Child Support, she communicated to the children that s

he would not be able to provide financially for them in the manner to which they were-3-

accustomed

at which point the chi

ldren suggested they

live with

he r. The evidence was that

the Mother's annual salary was $47,000 and the Father's was $17,000.

Atthe hearing, the Mothe r stated that "the m

ain thing that has changed is t he age of Gr ant and Mary and their willingness a

nd desire to go through th is whole process." Also,

the Mother expresse

d concern over the

fact that Alice was leaving the household as sh e felt t hat Alice play

ed an important role for the yo unger children as a m

other figure. Th

e Mother testified that the childr en d o not get the emotiona

l support they nee

ded fro m the Father.She stated that the Father is not sympathetic to the children's needs, for example, he does not alw ays notice that they are ill unt il they point it out

to him. While the Mother claimed that she is the pa rent w ho he lps t hem wit h home work and takes them t o the librar y, she acknowl edge d that she has not been i nvolved in their school activities as much as she would have liked.

The Mother entered some photographs into evidence that showed that the Fat her's house and yard were not clean or well ke

pt. She put on photogra

phic proof that showed her own

house to be neat and clean. Other photographs were entered which depicted th e inside of the Father

's home. These were taken by Alic e who testified that s he took them beca

use she was "angry

at the living conditions."

All three children were called by the Mother to testify, an d both of the minor children e xpressed their pref erences to live wi

th the Mother. Gr

ant testified th at h e prefers to live with the Mother because he has asthma and can breat he easier at her hom e. He also testif

ied that the Mother he

lps him with school workand boy scouts. He stated that he would just like to spend his l ast four years at hom

e with her since he

has sp ent the first

part of his life wi

th the Father. Grant

testif ied that both parents h

ave similar r

ules. He stated th

at he feels safer at the Mother's house bec ause he knows the nei ghbors there. Gr

ant acknowledged that the Father had gotten him involved in sco uts and had been on rafting and fishing trips with him. He confirmed that the Father had taught him to cook and to sew. His se venth grade report card, which was e ntered into-4-

evidence, revea

led A's and B's an

d 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 privil

eges. On cross-e

xamination, she explained this by saying that with the Mother, she "g et[s] to watch the shows that [her ] dad doesn't think are appropriate, like the Simpsons, which every bod y almost watches. I getto have friends over. I get to go around a nd not have like tight restrictions on whe

re I go, and I get t

o go out in the

forest behind our

yard and not have to worry about if Ihave to -- just like a certain time limit that I have to be out there and com

e back." Mary

test ifie d 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 infer

ior and can not compre

hend things the way

other people
can. She explained th

at the Mother is a better listene r to her problem

s. She stated that she would like to continue her relationship with the Father shou ld custody be modified: "I

really don't ha

ve anything agains

t him, except I

just want to live with my

mom. An

d we [(Mary and the Father)] have a whole bunch in common, like we like to do fly fishin g and stuff. W e 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 al

lows her to call the Mother as often as she wishes.

The evidence was that Mary attended a magnet school and had bee n 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 ba

sketball.

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 child

ren's schooling

at report cardtime. Though she claimed there were no set rules in her Father's hou sehold, she describe d a rigid arrang ement

in which she was not allowed to go out with friends or to use her
car. Alice claim

ed that the Father' s smoking had be en the cause of several-5-

illnesses for all of

the children. Alice felt like th e younger childr

en were afraid of the Father

and that without her at home, he w ould take out his anger on them.

The Father's depositio

n was entered into

evidence. The Father felt like the children's desire to move stemmed from the f a ct that they have

no rules at the Mother's house. He testified that there arerules at his house, that the children are responsible

for cleaning their

own rooms,washing dishes, m owing the yard a

nd cleaning the house. He described a functional family situati on at home. He testified that his children are involve d in many ac

tivities in which he participates to an extent. He sta

ted that the

children occasiona

lly have friend

s over to their home. He testified

that he has tried to promote the children's rel

ationship with the Mother. Regardin

g his smoking, the Father testified that he is trying t o quit and that he does not smoke in the children's presence.

A fter the Mother put on her proof, the trial court granted the Fa ther' s motion to deny and dism

iss the Mother's Petition f or a Change of Custod

y. Also, the cou rt's order enjoi

ned the Father fro

m smoking ar

ound the minor chi

ldren. Finall y, the court ord ere d that t he Moth er pay di rectly to the Fat her's at torney, 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 o rdered that the cost

s of this cause be

taxed to her as well.

II.

Once an initial custody award had been made, modifications of c ustody are ordered "as the exigencies of the case may requ ire." Tenn. Code Ann. § 36-6-1 01(a) (1) (Supp. 1998). Thi s means that cus tody will be cha

nged only when there is a "change in circumstanc es as will directly affect the welfare of the minor" children. Massengale v. Mass engale , 915 S.W.2d 818 , 819 (Tenn. App. 1995) (quoting Dailey v. Dailey , 635 S. W.2d 391, 393 (Tenn. App. 1981)). "'Changed circumstance s' includes any m aterial cha

nge of circumstances-6-

affecting the welfare of t

he child, including new factors or changed conditions which could not

be anticipated by the custody order." Blair v. Badenhope , 940 S.W.2d 5 75, 57 6 (Tenn. App. 199 6) (citing Dalton v. Dalton , 858 S.W.2d 324 (Tenn. App. 1993)). Th

e burden to prove these changed circum stances 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 fac

tual determina

tions on the issue of custody modif

ication is de novo with

a presumption of

correctness: the record developed below comes to the appellate cour t accompanied b

y a presumption of correctn ess that will be honored unless the evidence prepond

erates 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 rel uctant to second-g uess t rial judges who ha ve observed the witn

esses and assessed th

eir credibility." Adelsperger v. Adelsperger , 970 S.W.2d 482 , 485 (Tenn. App. 1997). Appellate courts w ill not disturb "custody

decisions unless they are based on a material error of law or the evidence preponderates against them." Id.

Atthe close of the hearing on the Mother's petiti on to mod ify cust ody, the trial judge found there w ere "no su ffici ent circumsta nces that would war

rant a change of custody ." The court stat ed that "[c]hildr

en have a right

to state their preferences,

and I've heard the

m. But, in view of every

thing that you

have said, I cannot find that a change is warranted."

The Mother's first iss

ue on appeal isthat the court erred in dismissing her petition to chan ge cust ody. Initially, w e 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 an d thus has met her burden of

proof. The Mother

's argument is based upon a compa rison of current circumstance s with t

hose in e xistence at the tim e of the May 3,

1990 Order which made the

initial award of c

ustody tothe Father perm anent. 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 ove

r the last two and one

-half-7- (21⁄2) years. The

Court further find

s that the father is furnishin g a nice and comfortable home for their children as is the mother. The Court further finds that t

he father has a

good support system

in that his relatives from time

to time, help him

care for the chil

dren. The Court further finds that t

he children are healthy and seem to be well adjusted in their pr

esent situation. The May 1990

Order concluded w

ith the court's findi

ng that there was no r

eason t o change custody. The child ren are "well adjusted and doing we ll bot h emotionally

and physically , and

are adequately provided for by the father." The court clarified that it w

as "not finding that the

mother is not

afit person, but is finding that the children are well adjusted and doing well in school and are healthy and well car ed for, and can fi nd no reason to change c ustody at this time."

Itis the Mother's position that the Father has no t maintained an environment

with the positive

factors which we

re enumerate

d in the May 1990 order. We disagree finding that the present circumstances for these children are not materially

changed f

rom 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 ke

pt, we donot findthat this is a changed circum stance which would

not have been anticipated atthe time of

the final decree.

Indeed, we find t

hat it is reasonable

to anticipate that a sing le par ent wh o is wo rking full t ime and raising three teenage children would have difficul ties as a housekeepe r.
The Motheralso claims that the Father no longer has a support system as evidenced by the fact

that the children ha

ve stayed at home alone. The fact that the children have stay

ed alone does not support such a c onclusion. At the

time of trial, the childr

en were alm

ost 14 years old,

and the fact that

they occasional

ly stayed alone does not indicate the lackof a support system. The Mother also claims that the Father has no t shown consis tent regard for the health of the children as evidenced by his f ailure to insure a sm

oke-free environm

ent for them. However, the Father testified that he d oes n ot smoke around th e 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

.-8- Not only has the Mothe

r failed to show

unanticipated facts and conditions that affect the

welfare of the c

hildren, but the evidence shows that these children have flourished while in t he pri mary custody of the Father. In 1990, the court foundthat the children were healthy and well adjusted. The evidence presented below reveals that the ch

ildren have continued

to thrive emotio

nally, physi

cally and academically. Mary has r eceived academic honor

s. She testified that she is
an active athlete involved in soccer, basketball and tennis. Grant also is enj oying success in school

and is active in boy sco uts. Though Alice's cu stody is not in dispute, it i s signi ficant to note that sh e graduated from

high school with excellent grades and is now attending college.

Itis clear that these

children currentl

y prefer to liv

e wit h the Moth er; however, their preferences do not appear to be indicative of changed circumstances which directly affect their wel fare. While Alice testified that her younger siblings are afraid of the Father, the twins' testimony does not support such a conc lu sion. Mary indic ated a desire to con

tinue a relationship w

ith the Father should custody be mo dified adding that she and the Father enj oy many activities in common.Grant testified t hat his rationale for wanting change was partially based upon the fact that he has spent the firs t part of his life with the Father and now wants to live

with the Mother. This cour

t has made clea

r that a child's wishes are only one factor of many enum erated in the statute which governs the determina

tion of the best inter

est of a child in a cus

tody case. Harris
v. Harris , 832 S.W.2d 352, 3 53 (Ten n. App. 1992). The trial judge stated that she di d consider the childr en's preferences; however, the tr ial judge found

an d
we agree that their preference to live with the M other is n ot enough to sho w a material change of circumstances mandating a change of cus tody.

To the extent tha

t there is any tr

uth to the Mother's c

laim that she is the better parent to ensure the

children's em

otional well

being, our holding

does not prevent her from conti

nuing to do just that. Mary testifie d that she is permitted to call the Mother any

time she wishes. The children see the Mother on a w

eekly basis and spend alte rnative weekends with her. Thus, the Mother has much opportunity to atte

nd to the children's e

motional needs.-9- III.

In her f inal issu e, the Mother conte nds that the trial cou

rt erred when it awarded attorney fees

and costs tothe Fat her's at torney. Section 36-5-103(c ) of the Tennessee Code

provides in pertinent

part as follows: The plaintiff spouse may recover from the defendan t spou se, and the spouse or other perso n to whom the cust

ody of th e child, or children, is awarded may

recover from

the other spouse reasona

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

o f the custody or t

he change of custody

of any child, or children, of the parties, both upon the o riginal divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or pr oceeding is pending, in the discr

etion 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 c hilling impact on p are nts who sincerely feel that the best interest of their children requires a custody modification. Our cou rt has made the determination that "requiring

parents who precipitate custody or support proceedings to underw

rite the costs if their claim

s are ultimate

ly found to be unwa

rranted 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 restswithin the discreti on of the trial court. Id. The Mother did initiate these proceedings. Moreover, she makes
an annual salary o

f $47,000 whereas the Father makes $17,000. In light of t his record, we find that the tr ial court d

id not abuse its discretion in a warding attorney fees and costs to the Father.

IV.

In conclusion, we find that the evidenc e does not prepondera

te against the trial court's finding

that there has been no change of circumstances affecting the welfare of the minor chi

ldren. There is simply no evi dence that new fa

cts and circumstances have arisen such that the welfare of these children require s a changein custody. In a

ddition, we hold that

the trial court did no

t abuse i ts 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.-10- _______ ___________________

______ _ WILLIAM B. CAIN, JUDGE

CONCUR:

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

________________________________ PATRICIA J. COTTRELL, JUDGE