COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
July 8, 1998
PATRICK ALAN WOLFE, ) C/A NO. 03A01-9801-CV-00003 Jr.
Cecil Crowson,
) Appellate C ourt Clerk
Plaintiff-Appellee, )
)
)
) APPEAL AS OF RIGHT FROM THE
v. ) MONROE COUNTY CIRCUIT COURT
)
)
)
TERRI LEE WOLFE, )
) HONORABLE EARLE G. MURPHY,
Defendant-Appellant.) JUDGE
For Appellant For Appellee
D. MITCHELL BRYANT J. REED DIXON
Cleveland, Tennessee Sweetwater, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
In this post-divorce case, the trial court denied the
petition of Terri Lee Wooten, formerly Wolfe (“Mother”), seeking
sole custody of the parties’ daughter, Kelsea Wolfe, age five and
a half. In the same order, the court granted the counterclaim of
Patrick Alan Wolfe (“Father”) by modifying Mother’s visitation
rights. Mother appealed, arguing that the trial court abused its
discretion in failing to change the child’s custody. She also
claims that the court erred in modifying the visitation schedule
set forth in the divorce judgment.
The parties were divorced by judgment entered May 15,
1995. That judgment awarded Father the sole custody of the
parties’ daughter. It also provided that Mother was “awarded
visitation with the minor child on her two days off each week (a
four day-two day rotation).” The judgment also granted Mother
visitation at other times, i.e., at Christmas, during the summer,
and on certain holidays. At the hearing on the parties’
competing applications for modification of the divorce judgment,
the trial court changed Mother’s regular visitation times from
“her two days off each week” to visitation on alternate weekends
from Friday at 6 p.m. to Sunday at 6 p.m. The other visitation
in the divorce judgment was not changed. The court refused to
change its previous award of custody.
On the two issues raised by Mother, we must decide if
the evidence preponderates against the trial court’s most recent
order. Rule 13(d), T.R.A.P.
2
The trial court concluded “that there [had] not been a
sufficient change of circumstances that would justify a change of
custody in this case.” The evidence does not preponderate
against this finding. While the circumstances of the parties
have changed,1 they have not been “altered...in a material way so
that the welfare of the child requires a change of custody.”
Griffin v. Stone, 834 S.W.2d 300, 302 (Tenn.App. 1992). As we
said in Musselman v. Acuff, 826 S.W.2d 920 (Tenn.App. 1991), the
“trial judge must find a material change in circumstances that is
compelling enough to warrant the dramatic remedy of changed
custody.” Id. at 922. (Emphasis added). While Mother
challenged some of Father’s parenting skills and decisions, her
testimony was sharply contested by Father. This conflict brought
into play the issue of the parties’ credibility -- an issue which
is primarily for the trial court. See Tennessee Valley Kaolin
Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn.App. 1974). If the
trial court believed Father on these conflicting matters -- and
its decision not to change custody is certainly compatible with a
finding in favor of Father’s credibility -- it could have
reasonably concluded that Father’s parenting had not adversely
affected the child.
Mother’s petition to change custody addressed itself to
the sound -- and wide -- discretion of the trial court. Brumit
v. Brumit, 948 S.W.2d 739, 740 (Tenn.App. 1997). Since we find
1
Mother has remarried. She and her new husband have a daughter, age
five months. Her husband’s two sons live with them. Mother has changed jobs
since the divorce. She testified that she intended to quit work as soon as
she had paid a large doctor bill incurred in connection with the birth of her
youngest child. While Father’s employment has not changed since the divorce,
he has remarried. His wife’s daughters, ages eight and twelve, live with them
in his house, a different residence from the trailer in which he was living at
the time of the divorce.
3
no abuse of that discretion, we will not tamper with the trial
court’s order. Id. Mother’s first issue is found adverse to
her.
When the trial court entered the divorce judgment,
Mother worked four days and then was off two days. Obviously,
this work schedule was not compatible with the trial court’s
standard every-other-weekend visitation arrangement. To
accommodate Mother’s work schedule, the trial court, at the time
of the divorce, awarded her visitation on the two days she was
off from work. At the time of the recent hearing below, Mother
was working a normal Monday-through-Friday schedule with weekends
off. Therefore, the evidence does not preponderate against the
trial court’s determination that the circumstances --
particularly Mother’s work schedule -- had changed so as to
necessitate a modification of the visitation arrangement set
forth in the divorce judgment. Mother’s intention to quit work
at some time in the future was just that -- an intention to do
something in the future. The trial court was correct in setting
visitation based on Mother’s current work schedule.
Visitation is also an issue that addresses itself to a
trial court’s wide discretion. Suttles v. Suttles, 748 S.W.2d
427, 429 (Tenn. 1988). We find no abuse of that discretion in
this case.
Father seeks damages for a frivolous appeal. See
T.C.A. § 27-1-122. While we have resolved Mother’s issues
against her, we do not find that her appeal is frivolous.
4
The judgment of the trial court is in all respects
affirmed. Costs on appeal are taxed against the appellant and
her surety. This case is remanded to the trial court for
enforcement of the judgment and for collection of costs assessed
below, all pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
_______________________
Herschel P. Franks, J.
_______________________
William H. Inman, Sr.J.
5