### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE March 30, 2001 Sessi

on ANNA M. WILL

IAMS v. JAMES

K. WILLIAMS,

II Appeal from the General Sessions Court for Blount County No. S-3817 William R. Brewer, Jr., Judge

FILED MAY 8, 2001 No. E2000-03005-COA-R3-CV

In this post-divorce case, Anna M. Williams (“Mother”) file

d a petition agai

nst James K. Williams, II (“Father”), seeking

a modification of the parties’ divorce judgment, which judgment, inter alia , hadawarded the parties joint custody of

their minor daug

hter, Ashly

n Brooke Williams (

DOB: July 20, 1996). The petition sought an alteration of Fat her’s visitation schedule

and an increase

in Father’s child support obligation. In response, Father filed, in te r alia , a petition for change of cus tod y. The trial court f ound a substantial a

nd material chan

ge in circums

tan ces and awarded Father sole custody of Ashlyn. We re verse. Tenn. R. App. P. 3; Judgment of the General Sessions Court

Reversed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined. R. Deno Cole, Knoxville , Tennessee, for

the appellant, An

na M. Williams. David M. Boyd , Maryv ille, Tenne ssee, for th e appe llee, Jame s K. W illi ams, II. OPINION I. Mother and Father were divorced on January 28, 1999. They were awarded joint

custody of their daught er, Ashlyn. Pursuant to the Marital Dissolution Agreement incorporated by reference into the judgment of divorce, Mother was designated the primary residential custodian. Father was granted reasonable and

liberal visitation consisting of at least three days of overnight visitation per week. He was or

dered to pay

$440 per month in ch

ild support. At the time of the parties’ divorce, Mother and Ashlyn were living with one of Mother ’s friends. The parties had

agreed that Father would have overnight visitation on Wed nes day, Frid ay,-2-

and Saturday of

each week, nights when Mother was working at Cotton E

yed Joe, a da

nce club in Wes t Kn ox C oun ty. Mother began dating David Rider in February, 1999. I n April or May of 1999, Mother and Ash lyn moved back into Fa ther’s two-bedr

oom, single-wide

trailer. Despite

this liv ing a

rrangement, Mother continued to date Rider. In April, 1999, Mother enrolled as a student at the Hair Academy in Knoxville. From April, 1999, until she quit her job at Cotton Eyed Joe in September, 1999, Mother had what she termed a “very hectic” schedu

le. She attended s

chool from Tuesda

y to Saturday

from 9 :00 a.m . until 3:00 p.m. On Wednesdays, Fridays, and Saturda ys, she would go straight from school to her employment at Cotton Eyed Joe, where she would work until between 1:30 a.m. and 3:30 a.m. She testified that during this time, Ashlyn was with Mother’s grandmother during most of the time the child w

ould otherwise have been

with Mother. At lea

st on some of the nig

hts Mother worked late, she spent the night with Rider, who lived five minutes from Cotton Eyed Joe. September, 1999, was a period of change for the pa rties. Mo ther quit her employment at Cotton Eye d Joe and too k a j ob a t Ro n Ha ll S alo n. H er ne w po sit ion all owe d he r to hav e As hlyn every night except for the Wednesday, Friday , and S aturday

nights Ashlyn spent with Father. Mother also became pre

gnant with Rider’ s child during this time. The relationship between Mother andFather began to deterior ate, and Mothe r init iated plans to mo ve out of Fat her’s resid ence. In Nov emb er, 1 999 , sh e mo ved to a hou sin g pro jec t in Leno ir C ity. After Mother moved out, the parties could not come t o an agreement over whether Father should be allowed to maintain his Wednesday, Friday, a nd Saturday evening visitation s chedule. Mother consequently filed her petition for modification, alleging that there ha d been a material change of circumstances. She also sought an increase in child support based upon a “significant variance” due to Father’s allegedly increased wag

es. At the hearin

g, she testified

that she filed this petition because Ashlyn “went from being a happy , well-adjusted child, affectionate child, to being just angry and aggressive.”

Father responded by filing, inter alia , an ans wer to Mother’s petition denying th

at a material change in circumstances had occurred, and, on the same day, a petition for change of cust

ody, alleg ing that there ha

d been a materia

l change of cir

cumstances. A hearing was he

ld on August 22, 200

0. As pertinent to th

e primary issue before us, th e evidencepresented

at trial related to (1) the parties’ employment; (2) the contributions of th

e parties’ relatives to Ashlyn’s care; (3)Mother’s new residence; (4) Mother’sboyfriend and their son; and (5) the effect on Ashlyn of the fo regoing.-3- A. M other graduated fr

om cosmetology

school in Februa

ry, 2000, wit

h a certificate i n cos met olo gy, and, at the time of the he aring, was working four days per we ek at Ron Hall Salon. She was sc hedul ed to t ake he r stat e boar d exam inati on a fe w days af ter th e hear ing be low. In addition to her wages, s he rece ived $440 per month in child support from Father, and $520 per month in child support from Rider. Father works as a

supervisor at TRW Koyo Steering Systems, I nc., in Vonore. Father’s shift varied; he rotat

ed through day

shifts, second shif

ts, and third shifts. B. The testimony indicates that both parties’ extended families assisted in caring for Ashly n. During the time Mother was both working and going to school, i.e. , from Apr il, 1999, until September, 1999, Mother’s grandmother cared for Ashlyn f our days a week. Father’s mother also assisted in caring for Ashlyn. When Father worked the second or third shift, Ashlyn slept

at the home of her paternal grandmother at least two nights per week. On these days,he and Ashlyn generally would go to his mother’s hou se at ab out 6:30 p.m. and spe nd time together until Father had to leave for work at approximately 9:00 p.m., at which time his mother put Ash lyn to b ed. Whe n Fat her c ame hom e th e nex t da y, his mother cared for Ashlyn while Father slept untilapproximately 12:30 p.m., at which time F

ather would spend

timewith Ashlyn un

til it was time for Ashlyn to return to Mother. C. When Mother moved out of Fat he r’s trailer in September, 1999, she moved to a housing project in Lenoir City. Apart from Father testify ing that he did not like what he had “heard” about the project, the only testimony relating to the safety of M

other’s new home

seems to support the idea that the neighbo

rhood did not prese

nt a dangerous e

nvironment. D. Mother began dating R

ider in Februar

y, 1999. She c

onceived a child

with him in

September, 1999, and they had a son in May or June, 2000. They became engaged in January, 2000. Mother testifiedthat she planned to marry Rider “[p]robably next y ear,” and that

she does not “feel like” she has to be married at this time. Mother, with Ashlyn, has spent the night at Ride r’s home o n several occasions. Mother testifiedthat she and Ashly n had staye

d with Rider due to e

le ctrical problems at her a partment. Mother and Rider testified that Mother and Ashlyn sleep in a separate area of the house when they stay with Rider. Mother

testified that she

se es nothing wrong with her and Ashlyn sleeping at-4-

Rider’s because they sleep in a separate room, and that she has no problem with havin g a child out of w edl ock beca use she and Rid er i nte nd t o ma rry. E. The testimony indicates that Ashlyn experienced

no unusual problems prior to September, 1999. In September, 1999, however, when Mother became preg nant and moved out of Father’s trailer, Ashlyn beg

an to misbehave, p

articularly

during the tr

ansition from Father to Mother. She wo uldkick, hit, scream, and cry, desiring to stay with Father rather than go with Mother

. Throughout this pe

riod, Ashlyn

was always

happy to see

Father and beha

ved better for hi

m. Mother’s explanation for

this misbehavior is, basedon a statement Ashlyn had made to her, that Father and the c

hild’s paternal g

randmother wer

e telling Ashly

n that Mother did not

lo ve he r because Mother had a new boyfriend and baby. Mother subsequently sought the assistance of a psychiatrist, Dr. Arvell S. Luttrell, because “[Ashly n] was still having some issues with the anger, she – me and her, our r

elationship was po

or, to say the

least. She was angry with me for no apparent reason.” Dr. Luttrell first treated

Ash lyn o n Ma rch, 20, 200 0. H e in iti all y dia gnos ed A shl yn as having separationanxiety

disorder. He found that Ashlyn “went through a perio

d of considerable

hostility towardthe baby an

d was acting out,” but that that situa tion “seem[ed] to hav

e smo othed over.” Mother testified that, at

the time of the hea

rin g, Ashlyn w as getting alon g better with he

r little brother, but that she still showed excessive aggression when she returned from visitation. After April 17, 2000, Dr.

Luttrell beg

an to focus on Mother and Father rather than on Ashlyn. With respect to Mother

, Dr. Luttrell

found that Mother’ s parenting skill s wer e “kind of low,” and that he “[ had ] to tak e ser iou sly” Father’s assertions that Mother has a short temper, but he would not characterize h

er as a bad pare

nt. He stated that h

e thought that movi

ng from place to

place would generally undermine the goal of stability, but opined that Ashlyn had suff ered no such

h arm. He viewedMother’s engagement to Rider as a positive for Ashlyn, and state d that he did not think having a baby out of wedlock would affect Ashly n’s moral upbringing in this day an d age

. Moreover, he stated that Mother had improved during the course of treatment, gai

ning more stabilit

y and better self-

esteem. Withrespect to Father, Dr. Luttrell found that he did not seem to wan t to cooperate wit h Mother and that he was too adamant about the ide a of having sole cust ody of Ashly

n. In contras

t to his observations concerning the relationship between Mo ther and Ashlyn, he stated that the relationship between Father and Ashlyn appeared “ rather warm.” Dr. Luttrell found that Ashlyn was in no danger, but opined that she should be ke pt in the most stable situation pos sible. He recomme nded that custody

remain joint and tha

t the parties should enjoy equal visitation. F

inally, he r

ecommended that,

in order to

reduce multiple transitions between-5-

households,Mother should care for Ashlyn during the

week and Father during the weekend, and that the time should be equalized over the summer. F. The trial court, interpreting Dr. Luttrell’s opinion “to be that the child needs stability and constancy in her life,” fou

nd there to

be “a substantial an

d material chang

e of circumstanc

es wherein it is now in the best interest of the minor child that legal custody be placed with [Father].” II. In this non-jury ca

se, our review of

the trial court’s

factual finding

s is de novo ; however, the case com es t o us acco mpa nie d by a presumption that tho se findings are

correct – a presumption we must honor unless the evidence preponderates against the trial court’s factual findi ngs. Te nn. R. App. P. 13(d); Musselman v. Acuff , 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). Our search for the preponderance of the evidence is tempered by the principle tha

t the trial court is i

n the best position to assess the credibility of the witnesses ; a ccordingly , such determinat

ions are entitled t

o great weight on appea

l. Massengale v. Masse

ngale , 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995); Bowman v. Bowman , 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). III. A. An initial award of custody is “subject to such changes or modification as the e xigencies of the case may r

equire.” T.C.A. §

36-6-101(a)(1 ) (Supp. 2000). Thi s court has noted that

the initial judgment awarding custo

dy “is res judicata and is conclusive in a subsequent applicati on to change custody unless some new fact has occurred which has altered thecircumstances in a material way so that the welfare of the child requires a change of custody .” Griffin v. Stone , 834 S.W

. 2d 300, 301-02 (Tenn. Ct. App. 199 2). Thus, the cruc

ial question is whe ther there has been a “material ch ange” warranting a change of custody. Hoalcraft v. Smithson , 19 S.W.3d 822, 828 (Tenn. C t

. App. 1999) (

perm. app. denied

May 15, 2000). A “mate

rial change”

is one that “re quires a cha nge to prevent substantial harm to the child.” Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995). To constitute a mater

ial change of c

ircumstances wa

rranting mod ification of a custody decree, a change “must occur after the entry of the order sought to be modified and the change cannot be one that was known or reasonably anticipated when the order wa s entere d.” Hoalcraft , 19 S.W.3d at 829. A trial court has broad dis cret ion in d ete rmi nin g mat ter s ofcus tod y, Parker v. Parker , 986 S.W.2d 557, 563 (Tenn. 199 9), and “we will no

t tamper with that di

screti on unl ess the facts demonstrate

that the trier of fact has abused his or her discretion.” Brumit v. Brumit , 948 S.W.2d 739, 740 (Tenn. Ct. App.1997). Such determinatio ns are factuall

y driven and involve consideration of several factors. Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). The1 Visitation under the Standing O rder of the Courts is each altern

ate weeken

d, beginn

ing on th e second week

end foll owing th e fili ng of the divorce complaint

from Friday at

6:00 p.m. through Sun

day at 6:00 p.m.;

Easter in the even years ; Thanksgiving in the odd years

from Wed nesday at

6:00 p.m

. through Sunday at 6:00 p.m.; the firs t two (2) weeks

in July ; two (2)

hours on

the child or chi ldren’s birthday (s); dur ing Chri stmas hol

idays f rom 12:00 Noon on Christ mas Day thr

ough 6:00 p..

[sic] on January 1. -6- best interest of the child is the paramount consideration, Suttles v. Suttles , 748 S.W.2d 427, 429 (T enn. 198 8); Musselman , 826 S.W.2d at 922, an d the decision is not

to be made to rewa

rd or to p unish either parent. Adelsperger , 970 S.W.2d at 485. The burden to prove a material cha nge i n circumstances lies upon the party seeking a modification of the prior decree. Hoalcraft , 19 S.W.3d at 830. Mother

argues that the

trial court erre

d in conducting a

comparative fitn

ess analysi

s without first making a specific finding of a material change amounting to substantial harm to the child. She assertsthat the trial court, in drastic ally modify

ing the custody

decree from joi

nt custody wi

th liberal visitation rightsfor Father to sole custody to Father and mere “Standing Order” visitation to Mother, amounts to an impermissible punishment of Mother. We agree that the trial court erred in modifying the then-existing custodial arrangement. The trial court, in its me

morandum opinion, st

ated that the most st able environment currently available for the child is for primary legal custody to be pl aced w ith [Father], for th e aforesaid reasons and the factors to be considered as set out in the Code. The Court, therefore, finds that there has been a substantial and material change of circumstances wherein it is now in the best interest of the minor child that legal custody be placed with [Father.Mother] shall have visitation per the Standing Orders of the Court. [Mother] owes a dut y of c hild support consistent with the current Child Support Guidelines. Should the parties b e unable to

agree on that amount, the Courtwill hear further proof and decide the amount of child support owed by [Mother.] 1 The “aforesaid reasons” consist primarily of a recitation of the facts in substantially the same manner as we have communicated them in the opening of this opinion. On appeal, Fath er asserts t hat the fol lowing circu mstances co nstitute a material c hange sufficient to warrant

a change of custody: (1) Mother moving into the housing project; (2) Mother having a child out of wedlock; and (3) Mother and Ashlyn temporarily living with Rider.2 In the course of its memorand um opinion, the trial court observ ed that it “ha[d] a problem w ith [Mother’s]

living ar rangement,” apparent

ly referr ing to the t

imes that Mother an

d Ashlyn stay

ed at Rider’s r

esidence. -7- We agree with Mother that the record does not

support a finding that the circumstances have changed such that custody must be modified to prevent substantial harm to Ashlyn. With respect to Mother’s new re

sidence, the only

evidence sugg

esting it might po

tentiallybe dangerous is that Father did not like what he

had “heard” ab

out the complex. This i s hardly cred

ible evidence. Opposed to Fathe

r’s “testimony

” are several s

tatements from Mother, Mother’s grandmother, and Mother’s boyfriend that

they had never witnessed any thing unsafe or inappropriate at the location. RegardingMother

having a child out of wedlock and Mother and Ashlyn staying ove rnight at Rid er’s home o n several occasions because of problems at Mother’s residence, we are of the opinion that these facts, by themselves, do not justify a finding of the requisite material change of circ umsta nces. There is no proof in the record that Ashlyn was exposed to any improper conduct when she and Mother stayed overnight at Rider’s house.This proof reflects that they – being Mother andAshlyn – slept in a separat e room from t hat of Ride r. Furtherm ore, with re spect to hav ing a child out of wedlock, “the sexual behavior of the mother is not a ground for change of custody absent a showing that

the behavior had an adverse impact on the child’s welfare.” Musselman , 826 S.W.2d at 923. It is clear that the facts presented to the trial court are different from those existing at the time of the divorce; but w

hat is missing in

this case is proof that the changes that have occurred are such as to “requi

re[] a cha nge [in cu stody] to prevent substant ial harm to the child

.” Wall , 907 S.W.2d at 834 (emphasis added). Ashley’s acting-out is easily explained by the arrival of her half-brother. This is not uncommon; furthe rmore, this situation seems to be improving. Certainly, there is no proof in this record that Ashley’s acting-out is related to, or caused by , any improper

conduct on the part of Mother. By the same token, there is no credible proof that Mother

has engaged in conduct in front of the child

that was reasona

bly calcula

ted to cause the c

hild substantial harm. If custody is changed with n

o proof of new fa

cts that have resulted in substantial harm to a child or no proof of changes in the factual pattern such as are reasonably calc ula ted to cause such

harm, there is a danger that the change of custody can be interpreted a s an attempt to punish the custodian for his or her conduct. 2 This a court cannot do. Long v. Long , 488 S.W.2d 729, 733 (Tenn. Ct. App. 1972). Dr. Luttrell found that, though Ashlyn “went thro ugh a period of considerab le hostility towardthe baby and was acting out,” that situation “seem[ed] to have smoothed over.” Though he opinedthat Mother’s parenting skills were “kind of low,”he specifically would not say that she was a bad parent. Furthermore, there is no proof before us that Mother’s parenting skills or her temper hadchanged since the divorce. Dr. Luttrell viewed Mother’s eng agement to Rider as a positive for Ashlyn, andstated that he did not think having a baby out of wedlock would affect Ashly n’s moral upbringing in this day and age. Most importantly , he opined that Ashlyn was in no danger. When considered as a whole, the evidence preponderates against the trial court’s finding of the requisite

material change in circumstances warranting a chang e in custody. There

is nothing to3 We recognize that our opin ion works a change in Fa ther’s visitation with A shlyn. W e do this because the

visit ation schedule esta

blished in t

he judgment of divor

ce was driven, at least in substanti al part, by

Mother’s t

hen-sch ool and work schedule. Since her schedule has changed, we find that the t rial court’s Standing Order of visi tation is more appropriate. It is also more in keeping wit h Father’s shift work.

-8- suggest that any of

the complained-of behavior or circumstances pose a threat of danger to Ashly n. Because we find

that the trial cour

t erred in finding

a sufficient mate

rial change in

circumstances, it follows that the trial court erred in engaging in a comparative fitness analy sis. See Caudill v. Foley , 21 S.W.3d 203, 213 (Te nn. Ct. App. 1999) (s

tating that cour

ts must, beforeproceeding wit h a best interest

analysis, “first determine whether there has been a material change in circumstances arising subsequent to the initial decree awarding custody such that the welfare of the child demands a redetermination of c ustody”) ( p erm. app. denied

April 17, 2000); Placencia v. Plac encia , 3 S.W.3d 497, 499 (Tenn. Ct. App. 1999) (“Absent a material change in circumstances...the petition to modify custody must be denied.”) (

perm. app. denied

September 13, 1999

). Accordingly

, we hold that the trial court erred in modifying the initial custody de cree. B. Mother’s next argument is based on the contingency that we agree with the trial court that there has been a mat erial change of circumstances warranting a change of custody to one party or the other. Because

we findthat the trial cour t erred in so findin

g a material ch

ange of circu

mstances, this issue is pretermitted. C. Mother raises an additional argument relating to the amount of Father’s child support award. This issue was not addressed by the trial court in its memorandum opinion or its order , obvi ously because the court had awarded Father custody of the child. We direct the trial court to consider and determine this issue on remand. IV. The judgment of the trial court is reversed. This case is remanded for the entry of an order re instating joint custody

with primary

residential custo

dy in Mother,

subject to Father

’s visitati o n rights as set forth in the trial court’s Standing Order, 3 andfor considerationof Mother’s request for a modification of the

child support award es

tablished at the tim

e of the divorce. Costs on appeal are taxed to the appellee.

___________________________________ CHARLES D. SUSANO, JR., JUDGE