### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON On-Briefs Januar

y 31, 2001 IN THE MATTER OF: KRISTEN LYNN BRIDGES, a minor, MARK

ALLAN BRIDGES v. CARLA LYNN KING
A Direct Appeal from the Juvenile Court for Shelby County Nos. B6450 and C3176 The Honorable George Blancett, Judge

No. W2000-01919-COA-R3-CV - Filed April 11, 2001

Paternity of minor child was e

stablished by

a juvenile court consentorder entered November 26, 1991, and custody

of the child was awarded to Mother. In January , 2000, Father fi

led a petition to change custody on the

basis of change

of circumstance

s and the best inter

est of the child

which was granted by the juvenile court

referee. The referee’s findings and recommenda tions were confirmed and made the decree

of the cou rt on May 25, 2000. Subsequently, on Mother’s petition, an evidentiary

hearing was held before the juvenile judge, and on Jul y 6, 2000, after the evidentiary hearing, an order was ent ered reconfir

mi ng the referee’s ruling of May 25, 2000. Mother has appealed. We reverse.

Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Juvenile Court Reversed

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined.
Gail W. Horner, Germantown, For Appellant, Carla King
Lynda F. Teems, Memphis, For Appellee , Mark Allan Bridges

OPINION

In this child custody case, the minor child’s father, Mark Allen Bridges (“Father”), petitioned for change of custody of the minor child, Kristen Lynn Bridges. At the time of the petition, the child had resided with her m

other, Carla King

(“Mother”), si

nce her birth in 1991. The c hild’s parents1 Pursuant to the fi ndings and recommendations of the Juvenile Court Referee, the Juvenile Court Judge

modified th e Consen t Order to include child support.

2 The Child’s’ mater nal grandm other, Susie H enley, s erves a s Mothe r’s guardian fo r purpose s of Moth er’s financial and legal aff

airs. The record also indicates that Ms. Henley as sists Mother with tran

sportation,

since Mother apparently cann

ot drive.

3 Since the identity

of individual

s allegin g child abuse i s protected by l aw, the record does n

ot indicate w

ho filed the complaints

against Kris

ten’s play

mate.

4 We note that,

on October 2, 2000, pending the appeal in this matter, a petition all eging Kristen was dependent and neglected was filed with DHS. On December 6, 2000, the juvenile court judge, pur s uant to the Findings and Recommendations of Referee, dismissed the petition. 

### -2- were never married, but by consent decree dated November 26, 1991, Father admitted paternity and agreed to pay

all of the child’s m

edical expenses. 1

In January of 1992, the record indicates that Father filed a Petition for Custody an d/or f or Specific Visitation P rivileges with th e Juvenile Court. Fa

ther alleged th

at Mother, who has

mild cerebralpalsy and is under a limited gua rdians hip 2 , was unfit to have custody of the child. The parties reached an agreement regarding c ustody and visitation issues, and on February 3, 1993, the Juvenile Court entered a Consent Order providing that custody remain with Mother and granting liberal, scheduled visitation for Father.
During most of the time Mother had custody of the child, the two resided wi th Susie Hen ley, the maternal grandmother. Similarly, Father resided with his parents Ted and Jo Ann Bridges. Like Ms. Henley, Mr. and Mrs. Bridges assisted in caring for Kristen and had a close relationship with her. Although the custody and visitation arrangement appeared to work at first, as time went on,
numerous disputes arose re garding what

Father and his pa

rents perceive

d as Ms. Hen ley’ s interference

with visitation. Father filed several petitions fo r c ontempt regarding visitation, and several complaints were filed against the 10 y ear-old daughter of a Bridges family fr iend 3 . These complaints

alleged sexual abuse, but after an inves tigation, the Department of Human Services found no evidence to sup

port the allega

tions.

On January

14, 2000, Father

filed this Petition for Modification which alleges a substantial and material ch ange in circumstances warranting a change of custody

. Specifically, Father alleges that Mother has abandoned the child by moving into an apartment, while leaving the child in the care and custo dy of the

child’s maternal grandmother. The Juvenile Court Referee recommended that custody of child be awarded to Father and, on May 25, 2000, the

Juvenile Court judge confirmed the Referee’s findings and recommendations as the court’s decree. That same day, Mother petitioned fora nd obtained an ord

er for a rehea

ring by the

special judge.

Following the he

aring, the ju

dg e reconfirmed

the de cision of the Referee and found that Fa

ther should have c

ustody of the

parties’ child. 4

### -3-

Mother appeals and presents three issues for review: (1) Whether thePetitioner/Father met his burden of proof i

n showing a material change of circumstances creating a substantial harmto the minor child and that a change of custody was in the best int er ests of the minor child; (2) Whether the trial judge abused his discretion in prohibiting the presentation of evidence; and (3) Whether the trial court erred in using a change of custody to punish the custodial parent for i nterferenc e with vis i tation. Because we find for Appellant/Mother on the first issue, we pretermit the other issues presented on appeal.

The threshold issue in considering a petition to modify custody is whether there has been a mate rial ch ange in circumstances since the initial custody determination. See, e.g., Placencia v. Placencia , 3 S.W.3d 497, 499 (T enn. Ct. App. 1999) ; Massengale v. Massengale , 915 S.W.2d 818, 819 (Tenn. Ct. App.199

5); Dailey v. Dailey , 635 S.W.2d 391, 393 (Tenn. Ct. App.1981). Once the trial court determines that the petitioner

has demonstrated a material change in circumstances, the court next determine s what custody arrangement is in the best interests of the child. See, e.g. , Placencia , 3 S.W.3d at 499; Varley v. Varley , 934 S.W.2d 659, 665-66 (Tenn. Ct. App.1996); T.C.A. § 36-6-106 (2000 Su pp.). Unless the tr

ial c o urt finds a materi

al change in circ

umstances, however, the court must deny the petition to modify custody. See Placencia , 3 S.W.3d at 499. In a custody modifi

cation proceed

ing, the burden is

on the non-custodial parent to prove a change of circum stance s. See, e.g., Nichols v. Nichols , 792 S.W.2d 713, 714 (Tenn. 1990); Mus sel man v. Acuff

, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). Because an original custody decreeis res judicata , there is a strong presumption in favor of the custodialparent which the noncustodial parent can only overcome by demonstrating that the alleged change in ci rcumstances is “material.” See Taylor

v. Taylor , 849 S.W.2d 319, 322 (T enn. 1993); Nichols , 792 S.W.2d at 715- 16. This Court has de

scribed “chang

ed circumstance

s” as follows:

When two people join in conceiving a child, they select that child's natural parents. When they decide t o se parate and divorce, they give up the privilege of joi ntly rearing the child, and the divorce court must decide which parent will have primary responsibility for rearing the child. This decision of the Court is not chang

eable except for "change of circumstances" which is defined as that which requires
a change to prev

ent substantial ha

rm to the child . Cus tody is not changed for the welfare or pleasure of either parent or to punish either parent, but to preserve the welfare of the ch ild. Custody is not changed because one parent

is able to furnish a

more commodious
orpleasant environment than t he other, but where continuation of the adjudicated custody will substantially harm the child.

Wall v. Wall , 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995)(citations omitted)(emphasis added).

In the case at bar, we hold that, as a matter of law, the trial court erre

d in failing to fir

st apply the “material chan

ge in circumstances” test required in Tennessee. The record in this matter contains

### -4-

no findings on the part of e ither the re feree or the s pecial jud ge which directly address the issue of material chang

e. The Findings

and Recommendati

ons of Referee s

tates, in releva

nt part:

This case began as a paternity action filed November

21, 1991 witha consent

order of paternity November 26, 1991. Since that time these parties have fill

ed two legal jac

kets . . . mostly

revolving around th e eff orts of the maternal grandmother to frustrate the father’s visitation with the pa

rties’ child. Having heard the testimony of the parties and consi

dering the rec

ord as a whole, the Court

finds that it is in the best interest of the p arti es’ child, Kristen Ly nn Bridges, born November 28, 1991, that custody be awarded to her father.
(emphasis

add e d). The juvenile court special judge included no written findings in the Order reconfirming t

he original dec

ree changing

custody. The

court’s oral find

ings were as fo

llows:

THE COURT: The Court has had the opportuni ty to hear the witnesses presented in court today and to review the matters that have been presented to the Court for determination at this point about this child’s life and also to read Dr. Luscomb’s deposition, where he primarily describes his obse

rvation for Kris

ten to have a complete evaluation as to the most appropriate custodial person. But he does prescribe that whoever this custodial person is, that it be more for the sake of Kristen’s special condition.

As I observed during the direct and cross-examination of the
w itnesses, it appeared that most of the concerns that ha ve bee n expressed to the courtboth at this hearing and, obviously, at the hearing before the Referee in May of this y ear, w ere the feelings of frustration that the noncustod ial family, meaning the father and the paternal grandparents, felt they wer e receiving from the custodial parent, meaning the mother, Carla King, and the maternal gran dmo the r, M s. H enl ey. Carla King also has special circumstances where her mother is attending to her at times and concerne d with her at all times, and that is ce rtainly something to be expected and commended to her. Mark Bridges at this time, not for the same reasons but for obvious support, is dependent on his family for help and assistance, and Mark Bridges’ family is also still dependent upon Ms. Henley

for support and that’s not to be criticized, that’s to be complimented, that they would seek her out during this obvious period of turmoi l that has existed, for their mutual love for this child.

### -5- Trying to weigh the tests

that the Courts are

instructed t o pursue in matters like this not only through the statute laws andcase laws but also from the direct reportsfrom the appella

te courts in this and other jurisdictions, that we have to determine the relative appropriateness

of the two parents in the matter when we have two parents in the case, Mr. Bridge s and Ms. King, and

they are both l oving, concerned parents, not even close to the situation of a n y form of neglect or depende ncy. The father, Mr. Mar k Bridges, is living full time in the home with his parents, where the child has been placed since May of

this year, a

nd he has ambitions t

o move out

with certain precautions being taken that he was planning for, he say

s. Carla King, the child’s mother, is living independently in the community

on a basis that is sanction by

her mother, to add

strength and support relative to primary care for herself, if not her child also.
During this period of inde pendent livin g which started somewhere around August 1998, themother either had or alleged

to have had ordid not have a full-time resident living with her of a fri end name Jerry, which in response to a question to her, said that prior to the last court hearing that Jerry may have been living primarily full time with her and that he wou ld either go home or some place else du ring the time that Kristen would come and visit on the weekends,o r sh e would go and stay with Kristen at her mother’s house on the weekends. There was notenough definite proof to find anything from that testimony that the mother was doing anything improper under e

ither s et of c ircums tan ces, whether or not Je rry was a full-ti me resident or was he not a full-time resident. The Cour t doesn’t find anything detrimental to either situation. M s

. Henley has a fiduciary

appointment of so

me natu re of a limited guardianship

for assistance to her

child, to h er daughter, Carla King. It appears tha t the maternal g randmother is emp

loyed only

a couple of d ays a week

now as opposed to th

e full-time employ

ment w hic h
was suggested by the

mother, and those

hours, of course, are not too unusual working for Federal Expres s with late hours in the evening to early morni ng. Mr. Bridges, on the other hand, is working under
a diff eren t status with Federal Express, and he works early in the morning until the af

ter noon hours, from 7: 00 in the morning u ntil 5:00 or 5:30 in the afte

rnoon, from Saturd

ay until Tuesday, it

appears. The ch ild psychologist is suggesting that whatever we do, tha t w e make it as permanent as ca n be done for the b

est interests of Kristen.

In evaluating theoverall situation i nvolving Kristen

Bridges, the Co urt fi nds that the decisi on by the Ref

eree was the mos

t

### -6- appropriate decision that was made, that custody should be with the father at this time and that the structured visitation should be adopted by the Order of This

C ourt als o as the Order of Visitation, with the parties being granted the

liberty to expand or change or modify that
as they feel i

s most appropriate

for the best inter

est of the child, and the Order of This Court will be structured t o encompass the Orders and recommendations of

the Referee as recommended to the Court on May 25th of the year 2000. The court costs will be against the Cou nty. (emphasis added).

If anything, the trial court’s findings appear to indicate that the F at her’s allega tions of abandonment are unfounded, and that Mother’s changed living situation has had little or no effect
on the parties’ child. There is little in the court’s findings which addresses the issue of interference withcustody on th

e part of either

the Mother or the m

ate rn al grandmother, Ms. Henley. The trial court appears to base

its decision on the c

omp arat ive fitness of the parents, the child’s need for permanency

as to custody

, and a best-inter

ests analys

is. While these

are appropriate considerations in cust ody determinations under T.C.A. § 36-6-106, a court does not address those issues befo r e determining that there has, indeed, been a material change in circumstances. This is especially true, giventhe fundamental nature of the constitutional interests at play in a case involving child custody and visitation. See generally In re: Askew , 993 S.W2d 1, 3-5 (Tenn. 1999 ); Hawk v. Hawk , 855 S.W.2d 573, 577 (Tenn. 1993). From our review of the record, we determine that the proof does not establis h a material chang e of circumstanc

es to justify m

oving to the next ste

p, i.e., best inter

est analysis.

Acco rdi ngly, the order changing custody is reversed, and thecase is remande d to the juvenile court for such other pr

oceedings as ne

cessary, i ncluding the esta

blish ment of a l iberal visitation schedule for Father. The

parties and the e

xtended families sho

uld be strongly

admonis hed by th

e juvenile court that inte

rferen ce with the visitation will not be tolerated by the Court. Costs of the appeal are asse

ssed against ap

pellee, Mark Alla

n Bridges.

__________________________________________ W. FRA NK CRAWFORD, PRESI DING JUDGE, W.S

.