# FILED April 7, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________________________________________ JACQUELINE S. (WE

IBEL) BREWER, Shelby Chancery No. D 14591-1 C.A. No. 02A01-9703-CH-00067 Plaintiff, Hon. Neal Small, Chancellor v. JOSEPH WILLIAM WEIBEL, III, Defendant. BRUCE KELLY, JR., Memphis, Attorney for Plaintiff. JAMES F. ARTHUR, III ., Germantown, At torney for Defe

ndant. AFFIRMED IN PART AND REVERSED IN PART Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. This is a post-divor

ce child custody su

it. Joseph Weibel I

II (“father”

) filed a petition i

n the Chancery Court of Shelby County against Jacqueline Brewer (“mother”) seeking to have custody of the parties’ minor child, Joseph Weibel IV, (“Joey”) changed from mother to father. Mother had primary physical custody of the parties’ child pursuant to a consent order calling for joint custody. Following a hearing, the chancellor awarded father sole custody, with mother having extensive visitation. The court also ordered father to pay mother’s attorney fees and expenses in conne

ction with the litiga

tion. Mother has ra

ised two issues by thi

s appeal. First, whether the evid

ence preponder

ates against the f

inding of the chan

cellor that it was i

n the best interest of the parties’ child to award custody to father. And second, although father was directed to pay mother’s attorney fees and litigation expenses in connection with the trial below, mother as appellant herein raises the issue of whether the chancellor abused his discretion in directing father to pay mother’s attorney fees. For the reasons hereinafter stated, we aff irm the award of custody to father and reverse the award of attorney fees to mother. The minor child who

is the subject of thi

s custody fight was

approximately te

n years old at the time of trial. Mother and father were married in June 1985 and divorced in March 1987. At the time of the final decree of divorce, the chancellor awarded custody of Joey to his materna l grandparents for a period of six months, pending a further hearing on the issue of permanent custody. Thereafter, the chancellor entered a consent order awa rding the parties joint custody,2

with mother receiving primary physical custody. Following much contention, with petitions and counter-petitions to change custody, father filed the petition at the heart of this litigation in June 1995. I. The Custody Issue. It has long been e

stablished that in c

hild custody cases

our scope of rev

iew on appeal is de novo upon the record in the trial court. Findings of the trial court come to this court with a presumption of correctness, and absent an error of law, we must affirm unless the prepondera nce of evidence is otherwise. Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984). At all times the paramount interest in a custody proceeding is the best interest of the child. Garfinkel v. Garfinkel , 945 S.W.2d 744, 747 (Tenn. Ct. App. 1996). In Musselman v. Acuff

, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991), the Eastern Section of this court set ou

t the procedural

process to be foll

owed in a case suc

h as this:
When the issue before the Court is whether to modify a prior custody order, it need not repeat the comparative fitness analysis that is appropriate at the time of the original custody decree. Instead, in a modification proceeding, the trial court must find a material change in circumstances that is compelling enough to warrant the dramatic remedy of changed custody. Moreover, the burden is on the non-custodial parent to prove changed circumstances. (citations omitted).
The issue of custo

dy was hotly contes

ted in the court be

low. Following the pa

rties’ divorce, father remarried and a child was born to that marriage. Father started his own electronics repair business, increasing his annual income to $108,000.00. Mother also remarried to a man by the name of Steve Brewer. It is undisputed that Brewer had a problem with alcohol and that mother endured his physical abuse on at least one occasion. Following a separation of some five months, mother and Brewer were divorced shortly before the filing of this petition. However, mother

testified at the he

aring below that sh

e and Brewer ha

d since become reconciled. Shortly after mother separated from Brewer, she took a leave of absence from he r employment as a real estate manager because of concerns about the area to which she was being reassigned. Dur

ing some of this time th

at she lived apar

t from Brewer, mot

her shared a hou

se owned and occupied by one Heather Beckum. Mother obtained employment as a waitress at two3

local bars, one during the day and one at night. She stated she would not get home from her night job until 3 a.m. Mother arranged for Joey to spend the nights with a babysitter who lived next door to Heather’s house. Mother testified that she would awaken at 6 a.m., go next door and get Joey, feed him breakfast and then take him to school. She testified that she would be off from her day job in time to pick Joey up from school and spend time with him in the evening before she went to work at her second job as a cocktail waitress. Father testified t

hat Heather Bec

kum was a drug user

and a drug seller

. He also contended that mot

her was using and s

elling drugs as we

ll. Mother denied h

aving any problem

s with drugs or alcohol. However, she admitted that she saw drugs in Heather’s home and she observed Heather using drugs. She testified that the reason she didn’t move out of Heather’s home sooner was because she had no other choice of a place to stay at the time. Mother moved back in with Brewer, her former husband, after some eight weeks of living with Heather. Mother explained that Brewer had been diagnosed as having diabetes, and thus can no longer drink alcohol. In reviewing this record, we are of the opinion that the trial court clearly had in mind the best interest of the parties’ child when he made the ruling that he did. We also are of the opinion that he made a soun

d analysis of the pr

oof presented by

both parties, aga

in looking at the pro

of in the light of what is in the best interest of this child. In essence, the court found that the father and his present wi

fe was able to pr

ovide the more sta

ble home life for J

oey. Father car

ried his burden of proof i

n establishing that t

here had been ma

terial change in

circumstances th

at would adversely affect the welfare of their child. Accordingly, this issue is resolved in favor of father
. II. The Attorney Fee Issue. Father contends that the trial court erred in ordering him to pay attorney fees and related expenses incurred by mother inasmuch as she was not the “prevailing party” under the statute. T.C.A. § 36-5-103(c) (Supp. 1997) provides that in custody proceedings, whether upon the original order or a subsequent modification thereof, the trial court has the discretion to award attorney fees to

the party who was

awarded custody

of the child or chi

ldren. In our opin

ion, it was error for the court to tax father in this case with mother’s attorney fees. Accordingly, the judgment of the chancellor below, directing father to pay mother’s attorney fees and related expenses, is reversed. Each party should be responsible for his or her own attorney fees.4 The judgment of the trial court is therefore reversed as to the attorney fee issue, andaffirmed in all other respects. Costs in this cause on appeal are taxed onehalf to father and one-half to mother, for which execution may issue if necessary.

________________________________________ TOMLIN, S.J., W.S.

________________________________________ CRAWFORD, P.J. W.S. (CONCURS)

________________________________________ LILLARD, J. (CONCU RS)