# FILED

Novemb er 24, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
CINDY L . STUBBS, ) ) Plaintiff/Appellee, ) Obion C hancery No. 18-737 ) VS. ) A ppeal No. 02A 01-9703-CH- 00050 ) WOODROW W. STU BBS, III, ) ) Defendant/Appellant. )
APPEAL FROM THE CH ANCER Y COU RT OF O BION C OUNTY

AT UNION CITY , TENNESSEE THE HONORABLE WILLIAM MICHAEL MALOAN, CHANCELLOR

STEPHEN C. CROFFORD Nashvil le, Tennessee Attorney for Appellant

BRUCE MO SS CONLEY CA MPBELL MOSS SMITH Union City , Tennessee Attorney for Appellee

AF FIRMED A ND REMA NDED

AL AN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, J. Plai ntiff, W oodrow W ilson Stubbs III (“Father”), appeals the trial court’s order in2

favor of Cindy Stubbs (“Mother”) dismissing his peti tion to ch ange cust ody. For reasons hereinafter

stated, we affirm the trial court’s jud gm ent and remand to th e trial court for a determination of the amount of at torne y’s fees to award Mother as necessitated by this appeal.

FACTS

On September 3, 1996, F ather filed a peti tion to changecustody and a temporary restra ining order. Thereafter , on September 17, 1996 , Mother filed a response to th e petition. This cause came to trial on Septemb er 24, 1996, in which, the trial court rescinded the tem porary rest raining or der and dismisse d Fathe r’s petit ion to ch ange cust ody.

Mother and Father were married in July, 1990 and were cohabitating in Florida as of February

1994. There are two chil dren of the marria ge--Cody , age 5, and Sav annah, age 3. Mother

and the two c hildren mov ed to Union City, Tennes see, in Februa ry 1994. Mother filed for divorce in Apri l 1995. The final decree of divorce was granted December 21, 1995. Mother

was granted custody of the c hildren by virtue o f a Marital D issolution Agreement. Father remained i n Florida.

On August 10,1996, Mother contact ed Father by placing a cal l to Father’s fianc é, Robin Beach ( “Beach”) M other asked Beac h if Father would come g et the children and enroll t hem in school. There is some dis pute as to w hen and if the chil dren were to be returned. Mother conte nds that she told Father and Beach that the children’s stay would be for two w eeks or a month at the most. Beach contends that Mother made no mention of the le ngt h of the stay. B each further asser ts that Mother

stated that she w

anted the children to live with Father for a while. Thereafter, Father drove to Tenn essee to pick up

the children. Subsequentl y, Father sought to have custody of thechildren c hanged from Mother to hims elf.3

During this time frame, Mother was seei ng a psyc hiatrist for problems with bulimia and depression. Mother w as taking various prescribed medications from various doctors such as hydroc odone, depakote, proz ac, diazepam, and butalbital/A PAP/Caffeine. Father contends the medication has af fected Mother’s ability to take care of the children. Mother admitted that a certai n medication, depak ote, was maki ng her slee p but, otherw ise, denies that her medication interferes w ith her abil ity to car e forthe children in any way. Mother testified that shediscontinued he r usage of depakot e.

Father tendered var ious depositi ons and wit nesses to establish that Mother was not properlytaking car

e o f the children. Father’s sister and broth er-in-law testified, via deposition, that, on one occas ion whil e they w ere picking up the children for a visit , Mother
w as “high ,” “gro ggy,” an d “stu mbli ng.” Fa ther ’s sis ter st ated that the c hild ren we r e physical ly dirt

y, and that C ody was

wearing cowboy

boots wit h no socks and had terrible blisters on his feet. Moreover, she stated that there were no shoes in Mother’s house for Savannah. Father’s mot her testified that she had v isited several times i n the home of Mother and that it was unkept and in wantof food. Father’s father testified that s ometimes Mother’s hous e was cl ean and other times it was not.

Several wit nesses

testi fied on M other’ s behal f. Th e Cen tral Elementar y School Principal, Joyce Stephe ns, testified thr ough stipulated trial ex hibit that Mo ther enrolle d Cody in kinderg arten on Marc h 5, 1996, attend ed regist ration nig ht on August 19, 1996, and atte nde d par ent n ight o n Aug ust 2 9, 19 96. F urth ermo re, Ms . Ste phe ns wa s told by Mother that Cody w

ould return to

Tennessee an d b e in school on September 16, 1996.

Nadine Lyons, Mot her’s mother, testified that shehad seen the chil dren three to four times per we ek an d witn esse d no d efi cien cies in th e car e tha t Mot her wa s givi ng to th e children. Ms. Lyo ns stated that thechildren had ample food and clothing and that Mother was able t o take care of them.
VickyDelassus, a

friend of Mother’ s for eighteen years w ho rec entl y moved back4

to Union City, t esti fie d tha t she had b een arou nd Mo ther seve ral times over the last few months preceding this cause and t hat the children were well-behav ed, well- nourished, and clean. Ms. Delas sus stated that the house was not dirty , the floors w ere clean, and th e beds were made

.
Susan McManus, a friend and former baby sitter, tes tified that she has been around Mother and t he ch ild ren wee kly fo r the last two year

s and that the chi ldren wer e full of
ene rgy, playful, well-behav ed, lovable, and wonderful. She further stat ed that the children never seemed und ernourished or inadequately

clothed.

Annette Voker, a friend of Mothe r’s for thir teen years, testified that s he had seen Mother and the children once a week for the last year preceding this cause. She described the chil dren as

wel l take n careof, happ y, no rma l, typica l children. She stated that t he children’s

clothing was adequate and the home not filt hy or str ewn.

The trial court found that there was no firm agreement as to the chil dren goin g to Floridato live or visit. Further, the trial court found that there was not suff icient evidence to warrant

a change in c ustody. Spec ifically , the trial court found that Fat her knew w hat Mother was like, and agreed at the time of the divorce that Mother w as to have custody

of the children. The trial court stated that Moth er’s presentsituation, w hile not commendable , was nothin g t hat was unf oreseeable or that did not ex ist at the ti me of the divorc e. Because of t he ab ove findings, the trial cour t rescinded t he temporary restrainin g order and dismissed Fat her’s petiti on for change of cust ody. This appe al ensued.

LA W AN D DISCUSSI ON

The paramount co nsiderati on in a custody proceeding is the best i nterest of the child. When a petition to change cust ody is br ought before the trial court, custody should not be alter ed for the well-be ing or gratif ication of the either p arent o r to castiga te eithe r5

parent, but to foster and pres erve the welfare of the child( ren). A change in custody is only warranted where cont inuation of the adjudi cated custody would pose substantial har m to the child(ren ). As in all non- jury cas es, a trial court’s dete rmination of w hat circumstan ces warrant a grant or

denial of a petiti on to change c usto dy is reviewed by us de novo ; how ever, th e record developed below comes to us acc ompanied by a presumption of correctness that we must honor unless the evidence prep onderates again st the f indings of fact supporting the trial court’s jud gmen t. Hass v. Kni ghton , 676 S.W.2d 554, 555 (Tenn. 1984). In making our de novo review , we do not pa ss on the credi bilit y o f witnesses. Bowman v. Bowman , 836 S.W.2d 563, 567 (Tenn. Ct. App . 1991). Credibility is an issue for the trial court who saw and heard the witnesses testify and is, therefore, in the premier pos ition to deter mine credibil ity. Id.

In orde r to justi fy a change i n a custodial arrangement, t here must be “s uch a change in circums tances as will directly affect the welfare o f the minor.” Dailey v. Dailey , 635 S.W.2d 391, 393 (Te nn. Ct. App. 1981) . The decision o f the trial cour t is not changeable except f or “chan ge of circumstanc es” whi ch is defined as t hat which requires
a change to prevent substant ial harm to the child. Wal l v. W all, 907 S.W.2d 829, 834 (Tenn. Ct . App. 1 995). Custody is not changed because on e parent can furnish a m ore suitable or pleasant env ironment than the other, but w here continuati on of the adjudicated
c ustody wil l substantial ly harm the child. Id. This Court i n Musselman v. Acuff , 826 S.W.2d 920, 923 (Tenn. Ct. App. 1991) quot ed the Missi ssippi Supre me C ourt which provided: It must be recog nized that upr ooting a chi ld from his mother, s chool and environment was a jol ting, traumat ic exper ience. It is only that behavior of a parent whi ch clearly posits or c aus es danger to the mental or emotional well-being of a child (whether such behavior is immoral or not), which i s sufficient basis to seriousl y consider

the drastic leg al action of chang ing custody

.

Essential to Father’s petition, although certainly not the only basis, was Mother’s psychiatric difficulties and her alleged abuse of medication. Father rel ied heav ilyon the testimony

of Cynthia H odges and Howard Schwar tz, Father ’s sister

and brother-i n-law, an d upon the prescri ption records of Mother. M s. Hodges and Mr. Schw artz test imony w as6

received by the trial court in the form of depositions tak en on September 11, 1996. These depositionswere pr imarily concerned w ith Mother’ s mental state and the children’s physic al conditions wh en Ms. Hodges and Mr. Schwartz went to pick up the children for a visit in August of 1996. The evidence r endered from these two d epositions was acutely disputed byevidence propounded by Mother. The testimony of Ms. Hodges and Mr. Schw

artz was circumstan tial in nature and, c learly, did not impres s the trial court sufficientl y to merit a change in cus tody.

Also essential to Father’s peti tion is his assertion th at Moth errequested th at the children live with Father’s family in Florida because Mother was experiencing difficulty in properlycaring for the children. W e find the record devoid of such evid ence. W hat the evidence does show is

that there was no absolute ag reement between Father and Moth er as to whether

the children ’s stay in Flo rida was me rely a visit or a ch ange in custody . The evidence from Father and M other are adverse to each other on this point. The trial court heard testimony on this point and found t hat the parties had not com e to a “firm agreement.” We agree.

We have carefully reviewed the evid ence in this cas e. The burden to pr ove a change in circumstanc es resultin g in a subst antial harm to t he child(ren) is upon the noncustodial parent. The testi mony and deposit ions tending to support Fat her’s petiti on for change of cus to dy were sharply disputed by

the testimony

of Mother and the w itnesses presented on her

beha lf. These conflicts not only required the t rial court to evaluate the credibili ty

of the witnes ses who appear ed before it at tr ial or in t he form of depositions but also to determine w hether or not F athe r carried his burden of proof . The trial court resolved these issues

in favor of Mot her. We cannot say that the t rial court was wrong in its assessment of the witnesses’ credibility. As we have previously indicated, cr

edibility of the various

witness es is for the tr ial court t o determine.

As mentione d above, th e decision of the trial court is not chan geable unless a change in circums tances occurs sufficient to causesubstantial harm to the chi ldren. After7

a careful examination of the record, we find that Father fa iled to carry his burden ofproof in establishin g a change i n circumstanc es which would threate n substanti al harm to the children. Considering the importance of cr edibili ty in thi s cause, w e cannot say that the evidence preponderates ag ainst the trial court’s findi ngs of fact support ing its conclusion that there had not been a suf ficient change in circu msta nces to ju stif y a cha nge in cust ody. We therefore affirm the judgment of the tri al court.
Concerning attorn ey fees requested by Mother, T.C.A . § 36-5-103(c) gover ns awardsof attorney fees in proceedings relating to child custody. This statute prov ides that
a spou se may r ecover reaso nabl e att orne y fe es in curred in any action concer ning the adjudication of the custody of any child, or children, of the parties, bo th upon the original divorce hearing and at any subseq uent hearing before whom such action or pr oceeding is pending, in the discretion of such cour t.

In the instant case, Father has i nstigated ac tions both at the trial and appel late levels. Father’s p etition to chang e custody has proven unsuccessful both at trial and on this appeal. As a result, Father has necessita ted Mother’s attorney’ s fees. It is w ithin our discretion to grant or

deny Mother’s request for attorney’s fees nece ssitated by this appeal. We find that an award of attor ney’s fees nec essitated by this appeal i s just and eq uitable. We remand this issue to the t rial court to determine the amount of attorney’ s fees to award Mother. In making this

determination, we emphasiz e that the awa rd is only forattorney’s fees necessitated by this appeal.

In light of the foregoing anal ysis, we hereby affirm thejudgment of the tr ial court and remand to the trial court t o determine the amou nt of attorney’s fees to which Mother is entitled on appeal. Cos ts of appeal are taxed to the appellant , for which execution may issu e if n eces sary.

HIGHERS, J.8

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.