IN THE COURT OF APPEALS
AT KNOXVILLE FILED
August 18, 1998
WILLIAM ROSS ALLEN BRITTON, ) C/A NO. 03A01-9804-CV-00143 Jr.
Cecil Crowson,
) Appellate C ourt Clerk
Plaintiff-Appellee, )
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) GREENE COUNTY CIRCUIT COURT
)
)
)
)
PENNY JEAN BRITTON, )
) HONORABLE KINDALL T. LAWSON,
Defendant-Appellant. ) JUDGE
For Appellant For Appellee
DAVID L. LEONARD K. KIDWELL KING
Leonard & Kershaw King & King
Greeneville, Tennessee Greeneville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
In this post-divorce proceeding, the trial court
modified the parties’ 1994 divorce judgment by awarding William
Ross Allen Britton (“Father”) custody of Cody Allen Britton (DOB:
June 21, 1991) and Mariah Cheyenne Britton (DOB: January 27,
1993). The divorce judgment had placed the children’s custody
with Penny Jean Britton (“Mother”) based upon the parties’
marital dissolution agreement. Mother appealed the modification
order, contending that there had not been a change in
circumstances since the divorce such as to warrant a change of
custody.
Since this is a non-jury case, we must decide if the
evidence preponderates against the trial court’s decision to
change custody. Rule 13(d), T.R.A.P. See also Hass v. Knighton,
676 S.W.2d 554, 555 (Tenn. 1984).
Father’s petition to change custody addressed itself to
the trial court’s wide and sound discretion. Brumit v. Brumit,
948 S.W.2d 739, 740 (Tenn.App. 1997). “[W]e will not tamper with
that discretion unless the facts demonstrate that the trier of
fact has abused his or her discretion.” Id.
In order to justify a change of custody, the trial
court must find a material change in circumstances such “that the
welfare of the child requires a change of custody.” Griffin v.
Stone, 834 S.W.2d 300, 301-02 (Tenn.App. 1992). The best
interest of the child is the paramount consideration. Brumit at
740.
2
Father’s petition is based primarily on Mother’s
relationship with her boyfriend, Michael Dunn. There is
uncontradicted evidence that the police were called to Mother’s
residence on two separate occasions to investigate an alleged
domestic dispute involving Mother and Mr. Dunn. The latter two
individuals testified that on each occasion they were arguing
loudly, and nothing more. Mr. Dunn, in alluding to the first
incident, which occurred a “year or so” before the change of
custody hearing, said that they “got a little loud.” He blamed
the later June 23, 1997, incident on a “discussion that got out
of hand.” Both he and Mother acknowledged that he grabbed her in
some fashion on this second occasion, but both denied that he
struck her then or at any other time.
The evidence is clear that the June 23, 1997, incident
prompted Mother’s son, Cody, who was home at the time, to run to
a neighbor’s house for help. That neighbor called 911, resulting
in the visit by the police. There is also proof that on the
Monday following the last incident, when Mother went to pick up
her children following their weekend visitation with Father, Cody
was “terrified” at the thought of going home with his mother.
Father’s present wife testified that she had observed
Mother with black eyes on three separate occasions1 -- one being
when Mother tried to pick up the children shortly following the
June 23, 1997, incident. She testified, with respect to one of
1
Mother and Mr. Dunn each testified that Mother had suffered a black eye
in a “dune buggy” accident. They denied that Mr. Dunn had ever caused Mother
to have a black eye.
3
the other black eyes, that Mother had indicated that “me and Mike
got into a fight.”
The credibility of the witnesses was very much at issue
in this case. The trial court had to decide which of the
witnesses were credible, and which were not. He resolved these
matters in favor of a finding that Mother’s relationship with Mr.
Dunn was a change in circumstances that warranted a change of
custody. The issue of credibility is primarily for the trial
court. Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488,
490 (Tenn.App. 1974). The facts believed by the trial court
showed a propensity toward verbal and physical violence in
Mother’s relationship with Mr. Dunn, and a resulting adverse
effect on Cody, if not his younger sister.
In view of the trial court’s explicit and implicit
credibility determinations, we cannot say that the evidence
preponderates against the trial court’s judgment changing
custody. It results that the judgment is affirmed with costs on
appeal taxed to the appellant. This case is remanded for
enforcement of the judgment and collection of costs assessed
below, all pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
4