IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
GREGORY C. LURIE )
)
Petitioner/Appellant, ) Appeal No.
) 01A01-9807-CV-00376
v. )
) Sumner County Circuit
MICHELLE H. (LURIE) ) No. 11754-C
MANNING )
)
Respondent/Appellee. )
)
FILED
September 21, 1999
COURT OF APPEALS OF TENNESSEE
Cecil Crowson, Jr.
APPEAL FROM THE CIRCUIT COURT Appellate Court Clerk
FOR SUMNER COUNTY
THE HONORABLE TOM E. GRAY,
SITTING BY INTERCHANGE, PRESIDING
LAURA Y. GOODALL
113 WEST MAIN STREET
GALLATIN, TENNESSEE 37066
ROBERT TODD JACKSON
222 SECOND AVENUE NORTH
SUITE 419
NASHVILLE, TENNESSEE 37201
ATTORNEYS FOR PETITIONER/APPELLANT
MARK T. SMITH
KELLY & SMITH
121 PUBLIC SQUARE
GALLATIN, TENNESSEE 37066
ATTORNEY FOR RESPONDENT/APPELLEE
AFFIRMED AND REMANDED
PATRICIA J. COTTRELL, JUDGE
CONCUR:
CANTRELL, J.
KOCH, J.
OPINION
This appeal involves the custody of two minor children. Following a bench trial,
the trial court ordered that the parents continue to have joint custody, but modified primary
physical custody and visitation. Both Father and Mother had sought sole custody, each alleging
a change of material circumstances warranting modification of their joint custody
arrangements. The Father asserts on this appeal that the trial court erred because he is
comparatively more fit than the Mother to have custody, and that the court incorrectly applied
the change of circumstances requirement. In the alternative, Father asserts the prior six-month
arrangement should be reinstated. We affirm the trial court's order.
I.
The parties were divorced on July 23, 1993, based on irreconcilable differences.
At the time of the divorce the parties had two minor children. In their marital dissolution
agreement, incorporated into the decree, the parties agreed to joint custody, with physical
custody evenly divided. Mother was to have primary physical custody from February 1 to July
31, and Father the rest of the year. The non-custodial parent had liberal visitation. The parties
lived under this arrangement until this action began.
On December 30, 1997, Father filed a petition for change of custody asserting a
material change in circumstances warranting change of custody. The petition specifically
alleged that Mother had remarried, and that her new husband acted inappropriately around the
children. On January 12, 1998, Mother filed an answer and counter-complaint, responding that
the conduct of the second husband was moot because they were already divorced. She
counterclaimed alleging that Father had remarried and moved into a “dilapidated” house in a
“dangerous” neighborhood. She also alleged that Father was an absentee parent due to his
work schedule, leaving primary care of the children to the stepmother. Both parties’ pleadings
included other allegations, which each maintained warranted modification of custody.
Father was due to return the children to Mother on February 1, 1998, and prior to
that date, Father requested a hearing on the issue of temporary custody. After a hearing on
January 20, 1998, the trial court ordered that custody remain the same but that the children
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continue to reside primarily with Father pending the final hearing of the case.
After an evidentiary hearing, conducted on May 15, 1998, the trial court issued an
order in which it found that it was in the best interest and welfare of the parties’ minor children
that they remain in the joint custody of both parents. The court ordered that mother have
increased physical custody from August 18 through May 31 of each year. The court’s order
also addressed the issues of visitation and child support. Father appeals the order of the trial
court granting Mother increased primary physical custody of the children.
II.
Cases involving a request for change of custody of minor children are particularly
fact driven. See Rogero v Pitt, 759 S.W.2d 109, 112 (Tenn. 1988). In such cases, the trial court
has the widest discretion to order a custody arrangement that is in the best interest of the child.
See e.g. Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. App. 1996); Tenn. Code Ann. § 36-6-
101(a)(2) (1996). Accordingly, it is well settled that the appellate court’s review of a trial
court’s findings in a custody dispute is de novo on the record, accompanied by a presumption
of correctness. See Nichols v. Nichols, 729 S.W.2d 713, 716 (Tenn. 1990); Hass v. Knighton,
676 S.W.2d 554, 555 (Tenn. 1984). An appellate court will not reverse such a decision, absent
an error of law, unless the appellate court finds that the evidence preponderates against the trial
court’s findings. Tenn R. App. 13(d); See Hass, 676 S.W.2d at 555; Masengale v.
Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995).
III.
A decree awarding custody of children is res judicata and is conclusive on a
subsequent application to change custody unless circumstances have changed in a material way
so that the welfare of the children requires a modification of the previous order. See Long v.
Long, 488 S.W.2d 729, 731-732 (Tenn. App. 1972); Hicks v. Hicks, 26 Tenn. App. 641, 176
S.W.2d 371, 374-375 (1943). Courts are empowered to change custody “as the exigencies of
the case may require.” Tenn Code Ann. § 36-6-101(a)(1).
“Notwithstanding the importance of stability and continuity, intervening changes
in a child’s circumstances may require modifying an existing custody and visitation
arrangement.” Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. App. 1997).
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However, a custody order cannot be modified absent a showing of new facts or “changed
circumstances” which require an alteration of the existing order. See Woodard v. Woodard,
783 S.W.2d 188, 189 (Tenn. App. 1989). There is no hard and fast rule as to what constitutes
a change of circumstances. See Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. App. 1983).
However, “changed circumstances” includes any material change of circumstances affecting
the welfare of the child or children, including events occurring since the initial custody
decision or changed conditions which could not have been anticipated by the original custody
order. See Blair v. Badenhope, 940 S.W.2d 575, 576 (Tenn. App. 1996).
IV.
If the court finds that a material change of circumstances has occurred, then the
court will proceed to determine if the best interests of the child dictate a change in the existing
custody arrangement and to devise a custody arrangement that serves those interests. See
Adelsperger, 970 S.W.2d at 485.
“In child custody matters the paramount concern of the Court is the welfare of the
children and the rights of the parties will yield to that concern.” Dantzler, 665 S.W.2d at 387;
see also Contreras v. Ward, 831 S.W.2d 288, 289 (Tenn. App. 1991). In custody matters, the
determining facts are infinite in their variety and “the supreme rule to which all others should
yield is the welfare and best interest of the child.” Holloway v. Bradley, 190 Tenn. 565, 571,
230 S.W.2d 1003, 1006 (1950). In any proceedings requiring the court to make a custody
determination regarding a minor child, such determination shall be made upon the basis of the
best interest of the minor child. Tenn. Code Ann. § 36-6-106.
In determining the custody arrangement which will serve the best interest of the
children, the court will assess the comparative fitness of the parties seeking custody in light of
the particular circumstances of the case, considering the relevant factors, which are the same
in a modification proceeding as those criteria used in establishing the initial custody order.1
1
36-6-10 6. Child custody.--In a suit for annulment, divorce, separate maintenance, or in any other
proceeding requiring the court to make a custody determination regarding a minor child, su ch determ ination shall
be made upon the basis of the best interest of the child. The court shall consider all relevant factors including the
following where applicable:
(1) The love, affection and emotional ties existing 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 care giver;
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See Ruyle v. Ruyle, 928 S.W.2d 439, 442 (Tenn. App. 1996); Matter of Parsons, 914 S.W.2d
889, 893 (Tenn. App. 1995); Garrett, Tennessee Divorce, Alimony and Child Custody § 26-5
(1998 ed.).
In Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983), this court established some
guidelines for determining the best interest of a child:
We adopt what we believe is a common sense approach to custody, one
which we will call the doctrine of “comparative fitness.” The
paramount concern in child custody cases is the welfare and best
interest of the child. Mollish v. Mollish, 494 S.W.2d 145, 151 (Tenn.
App. 1972). There are literally thousands of things that must be taken
into consideration in the lives of young children, Smith v. Smith, 188
Tenn. 430, 437, 220 S.W.2d 627, 630 (1949), and these factors must be
reviewed on a comparative approach:
Fitness for custodial responsibilities is largely a
comparative matter. No human being is deemed
perfect, hence no human can be deemed a perfectly
fit custodian. Necessarily, therefore, the courts
must determine which of the two or more available
custodians is more or less fit than others. Edwards
v. Edwards, 501 S.W.2d 283, 290-291 (Tenn. App.
1973)(emphasis supplied).
Bah, 668 S.W.2d at 666.
In summary, the party seeking to change custody must show “(1) that the child’s
circumstances have materially changed in a way that could not have reasonably been foreseen
at the time of the original custody decision, and (2) that the child’s best interest will be served
by changing the existing custody arrangement.” Adelsperger, 970 S.W.2d at 485. The
paramount consideration in a custody proceeding is the best interest of the child or children.
See Bah, 668 S.W.2d at 665.
V.
(3) The importance of continuity in the child's life and the length of time the child has lived in a
stable, satisfactor y environme nt;
(4) The stability of the family unit of the parents;
(5) The mental and physical health of the parents;
(6) The home, school and community record of the child;
(7) The reasonable preference of the child if twelve (12) years of age or older. The court may hear
the preference of a younger child upon request. The preferences of older children should no rmally
be given greater weight than those of younger children;
(8) Evidence of physical or e motional ab use to the 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's interactions with the child.
See footnote 9.
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At the close of the January 20 hearing, and again at the beginning of the May 15 hearing,
the trial court found a substantial and material change of circumstances on the basis that the
custodial arrangement which had worked for a while was no longer working and that the parties
were no longer cooperative and working together in the best interest of the children2.
The evidence does not preponderate against the trial court’s finding. The record clearly
demonstrates that the joint custody arrangement previously in effect had become problematic
only recently due to the parties’ contentious attempts to control various aspects of their
children’s school, church, and other activities.3 The fact that a once satisfactory custody
arrangement has become unworkable can constitute a material change of circumstances. See
Dalton v. Dalton, 858 S.W.2d 324, 326 (Tenn. App. 1993).
The parties were divorced in 1993. In September of 1995, Father married Carolyn Lurie,
who had three children from a prior marriage. The Luries had a child in February of 1996, and
at the time of the hearing Mrs. Lurie was expecting their second child. Mother married Jimmy
Manning, who was 18 years old at the time of the marriage. She divorced Mr. Manning in
August or September of 1996. During the marriage, a child was born to the couple. At the
time of the hearing, Mother was in a relationship with another man, and the two planned to get
married in the future but chose to wait to set a date until they completed pre-marital counseling.
The parties appear to have successfully managed their joint parenting responsibilities
under their agreed arrangement of equal primary physical custody for almost five years.
Between 1992 and 1997, for various periods of time, the children’s paternal grandmother kept
2
To the extent that Father’s argument regarding the burden o f proving ch ange of circu mstances co uld
be interpreted as an argument that the court found the incorrect change of circumstances, Father has waived that
argument. At both the end of the January hearing and the beginning of the May hea ring, the court a nnounce d its
finding. In a pleading filed May 2, 1998, Father stated that on January 20, the court had found that there existed
a substantial and material change of circumstances in that the co-parenting arrangements were no longer working.
Further, at the May hearing the court stated: “So the Court has found a substantial and material change of
circumstances. So what we want to do today would be examining the factors that go in to what’s in the best interest
of the minor children, as well as custody, visitation, and support issues. So we’re pretty much limited to those
issues unless the attorneys identify other issues that we are to hear today. Any other issues other than those? ” Both
counsel resp onded n egatively.
3
In a separate argument, while conceding that a change of circumstances was demonstrated, Father
subm its that he pro ved the c hange s of circum stances alleg ed in his petition, but that Mother failed to prove the
chang es of circum stances alleg ed in her c ounter- p etition. He argues, without suppor ting autho rity, that this is
dispositive of the case based on his contention that only the party proving the existence of a material change of
circumstances can prevail in the resulting comparative fitness analysis. Without commenting on Father’s
characterization of the evidence adduced at trial, we wish to point out that this legal theory is not correct. As
stated above, o nce there is evidence of a material change of circumstances in the record, the trial court must weigh
the com parative fitn ess of the p arties, and d o what is in the best intere st of the child ren.
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the children after school, Father’s new wife babysat with Mother’s new child, the daughter of
the stepmother spent a night at Mother’s house, and Mother and her second husband took all
of the children, including stepmother’s children, on an outing. Even recently, Father had asked
Mother if she or her fiancé could accompany the son and his stepbrother to an event. During
one spring and summer when Mother had physical custody, she arranged for Father to help
coach their son’s baseball team while she was the team mother. During the summer of 1997,
the stepmother kept the children while Mother taught half days in summer school. The parties
operated under an agreement that if one of them was going to be unavailable during their time
of custody or visitation, the other had the opportunity to have the children. The children
regularly attended church with both parents. Teachers testified that in the past the parents had
cooperated in school matters.
After the children returned to their father’s household in August, 1997, the cooperative
parenting situation deteriorated. The daughter entered first grade and the son entered fourth
grade at the same public magnet school that they had been attending. A few weeks after school
started in September, 1997, the daughter experienced difficulty in reading. As a result of the
teacher’s concern, the daughter went to live with Mother for two weeks, and Mother, a teacher,
worked with her intensively, resulting in an improvement in the child’s reading ability. Father
disputes that the improvement was due to Mother’s effort. The son also chose to stay with
Mother during these two weeks.
At some point in this fall term, the stepmother indicated to the school guidance counselor
that she would prefer that the children were in a different school. When the assistant principal
asked Mother about any intent to change schools, Mother indicated she was unaware of any
such discussions. Mother asked that school officials and teachers not share confidential
information about the children with anyone, including the stepmother, other than herself and
Father. The assistant principal testified that she considered this request appropriate and that
it was consistent with the school’s policy.
In late October or early November, the son asked to meet with the counselor. She called
Father to ask permission to talk to the son, and Father requested a meeting with her. Father and
stepmother met with the counselor and discussed Mother, her premarital relationship with her
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second husband and her second marriage, which had ended over a year before this meeting. The
counselor described Father as painting a picture questioning the mother’s moral character.
In early December, Father requested a meeting with the assistant principal to discuss
problems. He and the stepmother met with the assistant principal for approximately 1 ½ hours,
during which time he told her about Mother’s early life, including things the assistant principal
considered demeaning, and about Mother’s second marriage to a very young man. At this
meeting, on December 7, the father indicated he did not intend to seek full custody since he
didn’t think it was necessary.
The guidance counselor continued to keep in touch with the children and knew that
custody was to change to Mother on February 1. She never saw anything to indicate adjustment
problems with the upcoming return to Mother’s custody.
Father received a copy of a letter dated December 12 from Mother’s attorney to the
school explaining that it would be inappropriate for the school to provide the stepmother with
access to the children’s files or any information regarding the children. Within three or four
days of receiving the letter, Father went to his lawyer. However, Father testified that the letter
did not upset him. He further stated that it was not entirely true that he decided to seek custody
because of the letter, stating that, upon receipt of the letter, he had discussed the issue with his
9-year old son who asked him to seek custody.
A dispute arose about the children’s visitation with the mother over Christmas and the
school holidays. Father again received a letter from the mother’s attorney. Upon advice of his
own lawyer, Father allowed the children to visit their mother in accordance with the parties’
past practice and agreement. A dispute also arose over the children’s participation in Christmas
programs at both Mother’s church and Father’s church.
On December 30, 1997, Father filed a petition to modify custody asking the court to
award him sole custody. Mother answered and counter complained seeking sole custody.
At the January 20 hearing on Father’s temporary custody petition, the teachers and school
officials who testified indicated the children had been doing well. They reported, however,
some changes in behavior by both children after the Christmas break. Both children’s teachers
attributed the changes in behavior to things going on outside school. The daughter became
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more tearful and upset. A few days before the hearing, the assistant principal saw the daughter
in the school office. She was crying and upset, and her finger was hurt. While the assistant
principal was trying to comfort and calm her, the 6-year old daughter, still crying, said, “my
daddy said I was supposed to tell you that I want to live with my daddy.”
Other disputes arose during the late fall of 1997, which need not be catalogued here. As
an example, at one point Father instructed his children and stepchildren not to talk to Mother,
at least not about anything that went on in his home. The testimony in the record clearly
establishes the deterioration and eventual dysfunction of the prior custody arrangement and its
negative effect on the children. After the lengthy hearing, the trial court ordered that the parties
continue to have joint custody, with possession to remain with the father with previously-
ordered visitation with the mother, pending a final hearing.4
VI.
At the January 20 hearing, Father testified that an appointment with a psychologist had
been arranged for the parties’ daughter. The appointment, which was arranged approximately
three weeks before the January 20 hearing, after Father’s petition was filed, was set for
February 4.
At the close of that hearing, the court gave very explicit instructions:
The court orders Mr. Lurie to keep the appointment
of [daughter] with Dr. Shannon Little. Both parents
are to participate as Dr. Little directs, and the
records of Dr. Little will be available to both
parents.
However, Father did not take his daughter to the February 4 appointment with Dr. Little.5
4
The written order ente red Janua ry 29 states that the father is award ed tempo rary custody. However,
the court’s comments from the bench at the close of the hearing are consistent with the court’s May 7 clarification
of that January 29 order wherein the court set aside that portion of the earlier order which awarded temporary
custody to the father. The court stated it had ne ver award ed tempo rary custody, but merely extended the current
situation pending consideration of all factors.
5
Father testified that after the January hearing he had called Dr. Little’s office ab out their procedure and
was informe d that Dr. Little w ould mee t with both pa rents at the same time. Father was concerned that Mother
would be uncomfortable meeting with him, and asked, without consulting Mother, if it was possible to meet
individually with the parents. He testified the psycholog ist’s office called b ack and ca nceled the a ppointm ent.
After the final hearing, the court made a specific finding that Father’s reasons for not keeping the appointment as
ordered were not credible. The court found that Father brought up the appointment in his January testimony,
stating his concern was for the welfare of the child. The court found that Father had a de sire to be controlling so
he did not take the child to the psyc hologist as or dered. T he court sp ecifically found that Fa ther’s telepho ne call
to the psycho logist’s office caus ed the canc ellation of the ap pointmen t.
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Both the daughter and son were seen later by another clinical psychologist, Dr. Sanger, who
testified at the May 15 hearing. She was originally contacted to evaluate the daughter, and had
her first session with the daughter in March.
Dr. Sanger stated that the daughter had a very positive attachment to her mother, her
father, and her stepmother. She also felt positively toward Mother’s second husband. The
daughter presented herself as happy and well integrated into her family situation, although there
were stresses around the custody dispute, the daughter was aware of the tensions, and was
concerned about having to answer questions about the situation.
Dr. Sanger also saw the son and reported that he also had a positive attachment to his
father, his mother, and his stepmother and that these were important relationships to him. She
stated that the son identified with Father. She indicated the son was guarded and careful with
his words on the topic of the custody dispute but did not acknowledge any anxiety about that
situation or the court proceedings.
Dr. Sanger testified that she thinks it detrimental for children to hear negative things
about their parents. She had told the parents, when asked about the son testifying, that in
general she had reservations about children being put in a situation where they have to state a
preference for one parent versus the other, and that there are risks to the children in such
situations. She also stated it was important that parents be careful about what information they
share (regarding the issues in the custody dispute) with a child and that such information should
be developmentally appropriate. She would, in general, question the appropriateness of going
through actual pleadings or reviewing recorded conversations with a 9-year old. However, she
felt that giving a mature child an appropriate forum to express his strongly-held feelings might
be appropriate in some situations.
In general, Dr. Sanger found both children to be happy and well-adjusted with positive
attachments to both parents.
VII.
After the January hearing, cooperation deteriorated even further. There were disputes
over clothing, dental visits, telephone call from Mother to the children, chaperoning field trips
and other issues. A dispute about visitation over spring break resulted in further hearings
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before the court.
In late January, Father began taping telephone conversations between Mother and
himself and between Mother and the children.6 The children were aware of the tape recorder,
and the son would sometimes turn it on himself. Father or stepmother would turn the recorder
on for the daughter’s conversations. Father could not recall whether he had told his children
not to inform their mother that her conversations were being taped, but he thought his son was
well aware that if he mentioned the recording Mother might alter what she was saying.
The parties did not agree on many things in their testimony, each having his or her own
interpretation of events. However, their testimony and that of others establish that during the
period from 1992-1997, Mother made an effort to have daily contact with the children during
those periods when Father had primary custody. She would visit with the children after school
or eat lunch with one of them. She was a frequent visitor to the school and attended school
events. If she was unable to make personal contact during a day, she telephoned the children
in the evening. On the other hand, Father seldom telephoned the children during those times
Mother had primary custody. He stated he did not telephone the children at Mother’s house
because, out of respect, he wanted to give her her ground with the children. He felt he deserved
the same respect. He also stated the children could call him if they needed something.
It is also generally agreed that Mother was responsible for arranging and taking the
children to medical and dental appointments, up until January 1998. Mother also testified that
for several years she had attended most practices and every recital for her daughter’s dance
classes. She had similarly attended her son’s sporting events.
She testified, however, that after the January 20 hearing, she was not informed by Father
of upcoming events or activities in her children’s lives. Father started communicating
information to her by certified mail. In one situation, he mailed her notice of a cancellation on
the same day of the meeting. Father and stepmother instituted a practice of unplugging their
telephone in the evenings so that their family dinner time and Bible study would not be
interrupted. This resulted in Mother being unable, on some occasions, to talk to her children,
6
He testified tha t the taping of the children’s conversatio ns resulted fro m his misund erstanding o f his
attorney’s instructions. Father stopped taping the conversations between M other and children after being so
instructed by his lawyer, and no recorded conversations were admitted into evidence.
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thereby preventing her from maintaining her practice of daily contact with the children. Father
considered Mother’s telephone calls to the children disruptive and maintained they sometimes
upset the children.
The parties’ 9-year old son testified at both hearings. At the first hearing, he was asked
who asked him to testify. He stated, “I was kind of the main deal so I sort of had to be here.
Because one of the main reasons to be here, we were thinking that we had to have at least one
of the children that would be able to testify.” The son also stated he had been given the letters
involved in this litigation by his father “to see if I think they are ridiculous, because he thinks
they were.” The son was given Father’s petition and Mother’s counter-petition to review by
Father. As to his review of his mother’s pleading, the son testified that he and his father went
over the document and that Father needed to get evidence to contradict statements in the
counter-petition.
The son testified that he has a good relationship with both his father and his mother, with
his stepmother, and with his step siblings and his half brothers. He loves both his parents and
his stepmother and likes his mother’s fiancé and his child. He enjoys being at his mother’s
house and enjoys being at his father’s house. He stated his preference was to live at his father’s
house.
The son also stated that he had turned on the tape recorder when he talked to his mother
because he thought some of the conversations she had with the children were inappropriate and
needed to be presented to the court. He was unable to remember any specific conversation he
thought was inappropriate. He also stated that he listened to the taped conversations with his
mother a few times because he happened to be in the room with his father and stepmother while
they were playing the tapes. Father did not remember the son ever listening to any tapes at
home. When the son would return from visits with Mother, he would tell Father and the
stepmother about events that happened, and the stepmother would take notes. The son stated
he told her what to write down.
VIII.
After hearing all the testimony in this matter, the trial court made extensive findings. The
court observed that during the time Mother was married to her second husband, “she was not
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making decisions which were in the best interests of her children.” The court found that since
Mother had divorced the second husband (a year and a half earlier), any future dealings
between those two would not adversely affect the minor children.7
The trial court found that the problems with the joint custody arrangement had arisen only
when Father became critical of Mother’s decision-making concerning her second husband and
when Mother became jealous of the relationship between the children and the stepmother. He
further found that Father had involved the parties’ son in the dispute between the parties,
including this litigation, and had gone to the children’s school and related his version of
Mother’s past behavior with the young man who became her second husband. The court also
specifically found that both parties have strong personalities, which he characterized as
controlling and manipulative, and that neither was a credible witness.
In essence, the court refused to grant to either party the custody modification he or she
requested, i.e., sole custody. The trial court specifically found that it was in the best interest
of the minor children that they remain in the joint custody of the parents and that the parents
make joint decisions regarding major medical problems of the children. However, he found
it was not in the best interest of the children that the children continue to reside with each
parent for six months.
We are of the opinion that the evidence does not preponderate against the trial court’s
finding that the best interest of the children would be served by continuing joint legal custody
but modifying the primary physical custody arrangement from a half-year basis to a school-year
basis with liberal visitation accorded each parent. See, e.g., Rubin v. Kirshner, 948 S.W.2d 742
(Tenn. App. 1997); Barnhill v. Barnhill, 826 S.W.2d 443 (Tenn. App. 1991). In structuring the
arrangement herein, the trial court gave thorough and detailed directions to the parties in an
effort to avoid the type of control issues which had previously occurred. In view of the
stressful situation which developed in the fall of 1997 regarding school issues and which
escalated to all issues to the extent the children’s behavior changed, we agree it is in the best
interest of the children to remain in one parent’s primary physical custody for the school year.
7
At the close of the January hearing, the court stated it did not give a great deal of weight to the
testimony concerning actions of the mother’s second husband because those things happened in the past and the
father had not come forw ard at that time and alleged a chan ge of circumstances.
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In this case, the trial court was faced with conflicting evidence concerning the fitness of
Father and Mother as parents. As stated above, both sides made efforts to disparage the
character and fitness of the other, cataloguing the missteps of the other and the virtues of their
own situations. They criticized each other’s residences, specific isolated examples of
punishment each thought inappropriate, and other matters. No one’s interests, particularly
those of the minor children, would be served by our detailing those claims herein. The trial
court’s order reflects careful consideration of the parties’ evidence. Ultimately, the court
concluded that “weighing the many factors for consideration of custody, the court finds that it
is in the best interest of the minor children that they be in the joint custody of the parents with
the primary custodian being Michelle Lurie Manning from the 18th day of August to the 31 day
of May each year and the father being the primary physical custodian from the 1st of June to
the 17th day of August each year.” In ruling on various post-trial motions, the court denied
Father’s Tenn. R. Civ. P. 59 motion, stating it had given a great deal of emphasis in its final
decision to the best interest of the children and had looked at many factors in making that
determination, and was still of the opinion that its earlier order was in the best interest of the
children.
As set out earlier, our review of the trial court’s decision is subject to well-established
rules. In the recent case of Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn. App. 1997),
this court stated the standard as follows:
Custody decisions are factually driven and require the careful
consideration of numerous factors. See Holloway v. Bradley, 190
Tenn. 565, 571, 230 S.W.2d 1003, 1006 (1950); Scarbrough v.
Scarbrough, 752 S.W.2d 94, 96 (Tenn. App.1988). Since these
decisions often hinge on the parties' credibility, appellate courts are
reluctant to second-guess trial judges who have observed the
witnesses and assessed their credibility. See Gilliam v. Gilliam,
776 S.W.2d 81, 84 (Tenn. App.1988). Accordingly, we decline to
disturb custody decisions unless they are based on a material error
of law or the evidence preponderates against them. See Hass v.
Knighton, 676 S.W.2d 554, 555 (Tenn.1984); Gaskill v. Gaskill,
936 S.W.2d 626, 631 (Tenn. App.1996); Griffin v. Stone, 834
S.W.2d at 301.
970 S.W.2d. at 485.
It is with this standard in mind that we review Father’s arguments on appeal,
which essentially argue that the evidence preponderates against the trial court’s decision. At
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the hearings in this matter, Father explained that his goal in seeking custody was continuity for
the children. He felt that Mother’s second marriage, which resulted in divorce, as well as her
new relationship, did not provide stability in the children’s environment. It was his opinion
that Mother and her fiancé, by delaying their marriage, were failing to provide the children a
family unit such as he and his wife could provide. The record substantiates the stability of
Mother’s relationship with her children and her efforts to maintain it. There is nothing in the
record to indicate that the children were negatively affected by her changes in marital status.
In this appeal, Father also asserts that he should have been awarded custody because he
is of higher moral character than Mother based on her relationship with the teenager she later
married. Father was aware of that relationship from late 1992 or early 1993. We certainly do
not condone Mother’s relationship with a minor. However, for over four years, Father was not
so concerned about Mother’s moral character that he sought custody. In addition, the best
interest analysis requires consideration of many factors which may affect a child’s well-being.
Father also argues that he was concerned about the conduct of Mother’s second husband
around the children. Father admitted he knew about the conduct he now objects to, with one
exception, almost immediately after each event, and, again, did not deem it significant enough
to warrant his seeking custody. In fact, the evidence demonstrates a cordial relationship
between the two families during Mother’s second marriage. At the time that Father filed his
petition, Mother had been divorced from her second husband for fifteen to sixteen months. We
agree with the trial court that any future dealings between Mother and her second husband
regarding their child would not adversely affect the children.
From the record, it appears that Father’s petition for sole custody was triggered by the
contentious situation which had developed as a result of his spreading derogatory information
about Mother to school officials and Mother’s request that information about the children not
be shared by school officials with the stepmother. Mother had also expressed to Father her
strong feelings that Father, rather than the stepmother, should be making parental decisions and
dealing with the school. Father equally strongly resented what he characterized as Mother’s
attempts to dictate in an area he considered his family business.
It is also apparent from the record that once battle was joined, the children’s best interest
became secondary. Father’s involvement of his 9-year old son in the details of the litigation,
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to the point of going over the pleadings, discussing strategy about evidence, and having the son
tape his conversations with his mother, did not serve that child’s best interests. Those actions
clearly did not encourage the children to love and respect each parent equally. See Varley v.
Varley, 934 S.W.2d 659, 667-668 (Tenn. App. 1996). Nor did they further preservation of the
children’s relationship with both parents.8 See Wright v. Stovall, No. 01A01-9701, 1997 WL
607508 at *7 (Tenn. App. 1997).
These parents were able to exercise their co-parenting responsibilities harmoniously for
a long time, with beneficial results to their children. They are to be commended for their
successful, if not always easy, efforts. Their later inability to deal with each other or with
issues related to the children created the situation which let to this litigation. In turn, the
litigation itself increased the level of contentiousness, all with a detrimental effect on the
children. In determining how to best reduce those detrimental effects, the trial court considered
many factors, including ways to reduce the opportunity for confrontations and disputes between
the parents. The trial court’s order herein does that and is carefully structured to further the
best interest of the children.
XI.
Bearing in mind the mandate of a comparative fitness test, and having reviewed the
entire voluminous record in this case, we have reached the conclusion that the evidence does
not preponderate against the finding by the trial court that continued joint custody with
increased physical custody to Mother is in the best interest of the children. The trial court
considered carefully all the relevant factors and the testimony of the witnesses, gave their
testimony the weight and credit that the court felt the testimony deserved, and fashioned a
detailed custody arrangement to further serve the children’s interests.
8
Effective M ay 18, 19 97, anoth er factor was a dded to the list of those to be considere d by the cou rt in
determining a custody award. See 1998 Tenn. Pub. Acts, ch. 1003. That provision, now codified at Tenn. Code
Ann. §36-6-106(10), requires the court to consider “each parent’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage
a close and continuing p arent-child rela tionship betw een the child and the other parent, consistent with the best
interest of the child .” The policy enunciated in that statutory amendment had already been adopted in case law.
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For the reasons stated above the order of the trial court is affirmed, and the case is
remanded to the trial court for whatever further proceedings may be necessary. The costs of
this appeal are taxed to the Appellant.
___________________________________
PATRICIA J. COTTRELL, JUDGE
CONCUR:
_____________________________
BEN H. CANTRELL, PRESIDING
JUDGE, M. S.
______________________________
WILLIAM C. KOCH, JR., JUDGE
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Lurie v. Manning
Combined Opinion