# FILED
November 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) VIRGINIA LYNN WO

OLSEY , ) Shelby County Juvenile Court

) No. C-4930 Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 02A01-9706-JV-00125 ) DOUGLAS HARMON M cPHERSON , )

) Defendant/Appellee. ) )

______________________________________________________________________________ From the Juvenile Co

urt of Shelby

County at Memp

his Honorable A. V. McDowell, Special Judge
Wilburt J. Chiapella

, Memphis, Tennessee Attorney fo

r Plaintiff/Appell

ant. Kimbrough B. Mullins, Memphis, Tennessee David E. Caywood , Memphis, Tennessee Attorneys for Defendant/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) TOMLIN, Sp. J. : (Concurs)1 The custody and visitation arrangement ordered by the trial court has been frustrated by ongoing confli

ct and a gener

al lack of coope

ration between Wo

olsey and Mc

Pherson. This is evidenced by numerous petitions and motions filed by the parties in this cause . They include as follows: “Petition For Citation For Contempt,” “Motion For Protective Order,” “Petition For Immediate Injunctive Relief,” “Petition To Cite Virginia L ynn Woolsey In Contempt,” “Amended Petition For Contempt And Petition For Change Of Custody,” “Motion To Compel Discovery And For Sanctions,” “Petition To Modify Christmas Vac ation And Extend Visitation To Allow Visitation With Paternal Grandparents,” “Motion For Temporary Modification Of Visitation Order,” “Petition To Cite Respondent In Contempt,” “Petition For Citation For Contempt Of Court,” “Petition To Appoint Guardian Ad Litem And To Enforce Court Orders With Respect To Psychological Evaluations And Joint Counseling,” “Petition For Christmas Vacation And Makeup Wednesday Night Visitation,” “Amendment To Petition Regarding Christmas Visitation And Wednesday Makeup Visitation,” and “Petition For Contempt And For Specific Visitation.”

Plaintiff Virginia Lynn Woolsey appeals the trial court’s order removing Jennifer McPherson from her custody and placing the child in the custody of Defend ant Do uglas Harmon McPherson. McPherson appea ls the trial court’s order requiring him to pay the $15,000 fee of the Guardian ad Lite

m. We affirm in al

l respects.
I. Procedural History

Jennifer McPherson, the nonmarital child of Woolsey andMcPherson, was born on November

13, 1991. On May 20, 1992, Woolsey brought an action to establish Jennifer’s paternity. The matter was heard by a juvenile court referee who found that McPherson was Jennifer’s father and issued recommendations under which McPherson would have visitation with Jennifer. Woolsey then req uested tha t the matter be reheard by a judge. After a rehearing, the trial judge issued an order consistent with the recommendations of the referee. 1 On April 16, 1993, McPherson filed a petition for a change of custody. After hearing the petition for a change of custody on October 12, 1993, the trial court

took the matter under advisement and issued a temporary order providing that custody of Jennifer s hould rema in with Woolsey. A final order was entered on August 2, 1994 voluntarily

dismissing McPherson’s petition for a change of custody. McPherson filed a second petition for a change

of custody on April 30, 1996. After hearing twenty-two days of testimony from twenty-six

witnesses an d examining ninety-seven trial exhibits, the court granted McPherson’s petition to change custody and ordered McPher son to pay the fee of the Guardian ad Lite

m. Wool sey appeals the tria l court’s ruling wi

th respect to the c

hange of custody a

nd McPh erso n appealsthe trial court’s ruling regarding the payment of the Guardian ad Litem’s fee. Both Woolsey and McPherson reque

st reim bursement fr om the other party for attorney fees and other expensesassociated with th is appeal.
II. Change of Custody

As an initial matter, w

e note that trial courts have wide discretion in cases involving child custody. See, e.g., Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. App. 1996); Tenn. Code Ann. § 36-6-101(a)(2) (Supp. 1997)(providing that the trial court “shall have the widest discretion to order a custody a

rrangement that

is in the best intere

st of the child”).

Consistent with this

general principle, our review of theinstantcase is de novo on the record, accompanied by a presumption of correctness

of the findings below. See, e.g., Gaskill, 936 S.W.2d at 631. W e may not reverse

the judgmentof the trial court unless it is contrary to the preponderance of the evidence. See Haas v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); T.R.A.P. 13(d).

In matters of initial child custody, the trial court seeks to determine what would be in the best interest of the child. See, e.g., Varley v. Va rley, 934 S.W.2d 659, 665 (Tenn. App. 1996)(citing Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. App. 1993)); Tenn. Code Ann. § 36-6-106 (1996). This determination is based on the cou rt’s asses sment of the comparative fitness of the parties seeking custody in light of the particular circumstances of the case. See Ruyle v. Ruyle, 928 S.W.2d 439, 442 (Tenn. App. 1996) ; Matterof Parsons, 914 S.W.2d 889, 893 (Tenn. App. 1995). When making this assessment, the court will conside

r allrelevant factors, including the following:
(1) The love, affection and emotion al ties exist ing between the parents and child; (2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver; (3) The importance of continuity in the child’s life and the length of t ime the child has lived in a stable, satisfactory environment; (4) The stability o

f the family unit of

the parents; (5) The mental an

d physical health o

f the parents; (6) The home, school and community record of the child; (7) The reasonable

preference o

f the child if twelve (12) years of age or older. The court may hear the preference o

f a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children; (8) Evidence of physical or emotional abuse to t he child, to the other parent or to any other person; and (9) The character and behavior of any other person who resides in or frequents the home of a parent and such person’sinteractions with the child.

Tenn. Code Ann. § 36-6-106 (1996). See also Gaskill, 936 S.W.2d at 630 (listing additional factors that may be considered when making a child custody determination).

Once the trial court

has made an initial determination with respect to child custody, it may not entertain a subsequent petition to modify custod y absent a material chan ge in circumstances such that the welfare of the child demands a redetermination. See, e.g., Masseng ale
v. Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995) . A mater ial change in circumstances justifying modification of a child custody order may include factors arising subsequent to the initial determination or changed cond itions that could

not be anticipated at the time of the original order. See Bla ir v. Badenhope, 940 S.W.2d 575, 576 (Tenn. App. 1996)(citing Dalton v. Dalton, 85 8 S.W.2d 324, 326 (Tenn. App. 1993)). If the trial court finds that there has, in fact, been a material change in circu

mstances, it will then consider the petition to modify custody using a bes t interests standard.

In the instant case, the trial court originally determined that it was in Jennifer’s best interest for her to be in the custody of Woolsey. Thus, in order for the trial court to consider McPherson’s petition t o remove Jennifer from Woolsey’s custody and place the child in his own custody, it must first find that there has been a material change of circumstances.

McPherson’s petition for a change of custody al leg es, among other things, that Woolsey 1) dresses Jennif er in dirty clothing

and subjects the c

hild to dirty living co

nditions, 2) fails to provide Jennifer

with necessary me

dical care, 3) f

ails to place Jenn

ifer in a child safety sea

t while riding in the car, 4) uses foul and abusive language toward McPherson in Jennifer’s presence, 5 ) attempts to prevent Jennifer from maintaining a relationship with McPherson and his family, and 6) makes inappropriate comments in fr ont of Jennifer regarding “who McPherson is sleeping with.” At this stage of our in

quiry, we do not spe

culate as to the truth

or falsity of these allegations. We note, however, that

these incidents of misconduct allegedly occurred subsequent to the trial court’s initial custody determination and, if proven, would constitute a serious threat

to Jennifer’s physical and psychological well being. We t hus con clude that McPherson’s petition alleged a material2 In 1996, the Department of Human Services was replaced by the Department of Children’s Services. See Tenn. Code Ann. § 37-5-101 (1996). For purposes of this opinion, we will refer to this e

ntity as the D

epartment of Huma

n Services or DHS.
3 This team consisted of a social worker, a psychological examiner, two psy chologists, and a psychiatrist. The social worker, Joanna E. Morat, interviewed Woolsey , McPherson, Jennifer, and Woolsey’s father. Earle Donelson, the psy chological examiner, interviewed Woolsey and evaluated her p

erformance on a

variety of

psycholog

ical tests. Dr. Ko

ranek, a psy

chologist, interviewed McPherson and evaluated his performance on a variety of psychological tests. Dr. Gentry, al so a psychol

ogist, reviewe

d the test data obta

ined by Ear

le Donelson and pa

rticipated in the writing of Do

nelson’s report.

Dr. Holman, the psy

chiatrist, interv

iewed Jennifer. A

fter these individual interviews were concluded, the five team members met to assess the case and make change of circumstances affecting the welfare of Jennifer. Accordingly, we find that the trial court did not err in considering McPherson’s petition to change custody.

We next consider

whether the trial court erred in finding that it is in Jennifer’s

best interest to remove her from the custody of Woolsey and place her in the custody of McPherson. The proof presented regarding the parental fitness of Woolsey and McPherson is voluminous. Because
we are of the opinion that t he most probative p

ieces of evidenc

e in the instant ca

se are those

elicited from disinterested parties, our discussion of the proof focuses on the evidence c ontained in repor

ts submitted by the Department of Human Services, the Center for Children in Crisis, and the Guardian ad Litem.

In April of 1995, the Department of Human Services (DHS) 2 became involved in this matter after receiving a report of suspected neglect and physical abuse of Jennifer o n t he part of Woolsey. A DHS counselor investigated the allegations anddetermined that they were unfounded, stating the Woolsey and Jennifer appeared to share a close bond with one another. In February of 1996, the DHS received a report of possible sexual abuse of Jennifer by McPherson. Jennifer was physically

examined at the Se

xual Assault Resour

ce Center but the

findings of this exa

min ation were inconclusive. A couns elor from the DHS spoke with W oolsey, McPherson

, Jennifer, and B.

J. Garner, who alle

gedlywitnessed sexual

abuse on the part of McPh

erson against one

of his female acquaintances
. The DHS then referred this matter to the Le Bonheur Center for Children in

Crisis (CCC) for an evaluation.

A five member team from the CCC interviewed Woolsey, McPherson, and Jennifer and conducted psycho

logical evaluatio

ns o f both Wo olsey and McPherson. 3 McPherson’srecommendations regarding Jennifer’s welfare. These findings and r ecommendations are contained in a final “Multidisciplinary Team Report” dated May 22, 1996. psychological evaluation was inconclusive regardingwhether he had e ver engaged in c

hild abuse. Woolsey’s psycho lo gical evaluation, however, suggested “serious problems in her parenting practices, as well as in her own psychological functioning.” The CCC report noted behaviors on the part of Woolsey demonstrating impaired insight and judgment with respect to Jennifer’s healthy development as fo

llows:
[T ]he child’s mental status examination at CCC reveals that she i s experiencing coaching from her mother, and that Ms. W oo lsey r ebuffs the child for expressing positive feelings ab out Mr
. McP herson. Of further conc ern is Ms. Woolsey’ s exploitatio n o f Jennifer by encouragin

g developmentally i nappropriate behavior, e.g. , consistently

referring to her as ‘the baby’, reportedly allowing the child to suck Ms. Woolsey ’s thumb , and sle eping and bathing w ith Jennifer; expl oitati on also has occurred with Ms. Woolsey photographing Jennifer’s geni tal and buttocks areas. Fina lly, Jennifer ap parently

is denied healthy independent peer interaction; con tac t withthe extended paternal family is disapproved by Ms. Woolsey. All these concerns support the c onclu sion of emotional c hild abuse by Ms. Woolsey toward Jennifer.

The final recommendation of the CCC team was that Jennifer be removed from Woolsey’s custody and that Woolsey’s visitation with Jennifer be supervised by a neutral third party.

After receiving the fi

nal report of the

CCC, th e DHS issued its own report and recommendations
. These recommendations were ba sed on the findings of the CCC evaluation as well as DHS’s own independent investigation. The DHS found that Woolsey and Jennifer appear to have a “strange and somewhat a bnormal relationship.” This conclusion was based on several disclosures by Woolsey to a DHS counselor indicating that 1) Woolsey and Je

nnifer take dail

y baths together, 2) Woolsey has taken numerous photographs of Jennifer’s private part s in an effort to substantiate

her allegations of sexual abuse on the part of McPherson, 3) Woolsey uses highly sexualized

language, 4) Jennifer is r eared in a highly restricted or isolated environment, and 5) Woolsey has a “belligeren t, hosti le and revengeful attitude” toward McPherson. The final recommendationof the DHS was that Jennifer be removed from the custody of Woolsey and placed in the custody of McPherson.On November 29, 1995, the trial court appointed a guardian ad litem

to act on behalf of Jennifer in matters coming before the court. The Guardian ad Litem co nduc ted a thorough investigation. She interviewed bo th Woolsey and McPherson and visited with Jennifer on two occasions,once at Woolsey’s home and once at the home of McPherson. The Guardian ad Litem
a lso interviewed numerous persons at the request of the parties, interviewed all of the attorneys previo usly involved in this matte r, and attended a

meeting of the five

members of the CCC team . In her report, the Guardian ad Litem expressed concern regarding the CCC investigation. She allegedthat, during the CCC meeting she a ttended, three of the participants acted in an unprofessional manner and another participant left the meeting before its conclusion. Additionally, the Guardian ad Litem noted that the original recommendation of the social worker from the C CC
was that Jennifer be

placed in a foste

r home rather tha

n in the custody of Mc

Pherso n. The fin al recommendationof the Guardian ad Litem was that Jennifer remain in the custody of Woolsey but that McPherson be allowed visitation.

We have no doubt that both Woolsey and McPherson love Jennifer and

are willing and able to provide he

r with the basic ne

cessities of l ife. As we noted in Varley v. Varley , 934 S.W.2d 659 (Tenn. App. 1996), “[w]hen loved by both parents, children should be taught to love and respect each parent equally.” Id . at 667. The evide nce in the instant c

ase su ggests that W

oolsey discourages Jennife r from developing a loving and respect ful relationship with McPherson. Woolsey apparently

does not want McPherson to have visitation with Jenn ifer or to be involved in Jennifer’s education, religion, or u pbringing. Woolsey allegedly makes disparaging remarks about McPherson in Je nnifer’ s presence and p unishes Jennifer

for expressing a

ffection for or

a desire to visit McPherson. Woolsey reporte dly encourages Jen

nifer to refer t

o McPherson as “Doug” rather than “Dad” or “Daddy.” Finally, Woolsey has openly defied the orders of the trial court with respec

t to visitation by McPherson and his extended family. We are extremely conce

rned that these

attempts
on the part of Woolsey to alienate Jennif er from McPherso

n may result in seri

ous consequence

s to the child’s psychological well being.

The trial court deter

mined that it is in

the best interest of

Jennifer to remove her from the custody of Woolsey and place the child in the custody of McPherson. Based on our review of the record, we cannot say that the evidence preponderates against this finding . We therefore upholdthe order of the trial court granting McPherson’s petition to change custody.

III. Guardian Ad Litem Fee

The trial court ordered

McPherson to

pay the $15,000 fe

e of the Guardia

n ad Litem. In child custody cases, th

e trial court is giv

en wide discretio

n with respect to th

e awarding of fe

es. See Salisbury v. Salisbury, 657 S.W.2d 761, 770 (Tenn. App. 19 83). We will not interfere with the trial court’s decision regarding the proper assessment of fees unless there has been a clear abuse of discretion. See id. at 770. We recog nize that ability to

pay is not a controlling consideration when determining fee awards in custody cases. See Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. App. 1992). The relative wealth of the parties, h owever, is one factor to be considered. In the instant case, it appears that

McPherson’s resources are far more extensive than those of Woolsey.We do notfind that the trial

court abused its di

s cretion in

charging the fee

of the Guardian a

d Litem to McPherson.
IV. Attorney’s Fees and Expenses on Appeal

BothWoolsey and McPherson have asked to be awarded attorney

fees and expenses incurred in connection with this appeal. We do not find any basis upon which to award attorney fees or expenses in this matter. The requests of both Woolsey and McPherson are therefore denied.

V. Conclusion

The order of the trial court granting McPherson’ s petition to change custody and charging the fee of theGuardian ad Litem to McPherson is affirmed. Issues were raised on appeal by both parties. In our discretion, we tax costs of this appeal to McPherson, for which execu tion may issue if necessary.

____________________________________ FARMER, J.______________________________

CRAWFORD, P.J., W.S. ( Concurs)

______________________________ TOMLIN, Sp. J. (Conc

urs)