IN THE COURT OF APPEALS OF TENNESSEE
REX M. MASSENGALE, SR., )
FILED
C/A NO. 03A01-9503-CV-00086
) HAMILTON COUNTY CIRCUIT COURT
Plaintiff-Appellant,) October 2, 1995
)
) Cecil Crowson, Jr.
v. ) Appellate C ourt Clerk
) HONORABLE ROBERT M. SUMMITT,
) JUDGE
)
)
AUDREY L. MASSENGALE )
(WILLIAMSON), )
)
Defendant-Appellee. ) AFFIRMED AND REMANDED
A. CHRISTIAN LANIER, Chattanooga, for Appellant
PHILLIP A. LAWRENCE of POOLE, LAWRENCE, THORNBURY, STANLEY &
MORGAN, Chattanooga, for Appellee
O P I N I O N
Sus a no, J .
1
This is a post-divorce proceeding involving the custody
of the parties' one minor child, Rex M. Massengale, Jr., whose
date of birth is September 20, 1985. The parties were divorced
by the "Final Judgment and Decree" of the Dade County, Georgia,
Superior Court entered on October 19, 1993. That document
approved and adopted the parties' agreement that the child's
custody should be vested with his mother, Audrey L. Williamson1
(Mother2). The instant controversy was initiated by the child's
father, Rex M. Massengale, Sr. (Father), on November 16, 1994,
not quite 13 months after the divorce, when he filed a petition
to change the child's custody. After a bench trial, the trial
court dismissed the Father's petition. Father appeals, raising
two issues:
1. Was there a sufficient change in
circumstances to warrant a change
in the custody of the parties'
child?
2. Should the trial court have ordered
that the parties submit to drug
testing?
In order to justify a change in a custodial
arrangement, there must be "such a change in circumstances as
will directly affect the welfare of the minor." Dailey v.
Dailey, 635 S.W.2d 391, 393 (Tenn. App. 1981). As in all non-
1
The child's mother married Scott Williamson on November 18, 1994.
2
Since the issues before us pertain directly to the parties' child, the
parties will be referred to in this opinion as "Mother" and "Father."
2
jury cases, a trial court's determination on this issue is
reviewed by us de novo; however, the record developed below comes
to us accompanied by a presumption of correctness that we must
honor unless the evidence preponderates against the findings of
fact supporting the lower court's judgment. Hass v. Knighton,
676 S.W.2d 554, 555 (Tenn. 1984). In making our de novo review,
we "do[] not pass on the credibility of witnesses." Bowman v.
Bowman, 836 S.W.2d 563, 567 (Tenn. App. 1991). "Credibility is
an issue for the trial court who saw and heard the witnesses
testify and is therefore in the premier position to determine
credibility (citation omitted)." Id.
We have carefully reviewed the evidence in this case.
The testimony of the witnesses tending to support the Father's
petition for change of custody was sharply disputed by the
testimony of the Mother and the witnesses called by her. These
conflicts required the trial judge to evaluate the credibility of
the witnesses who appeared before him. He resolved these
credibility issues in favor of the Mother. Not having seen these
witnesses in person, we are not in a position to say that he was
wrong in his assessment of the witnesses' credibility. As we
have previously indicated, credibility of the various witnesses
is for the trial court.
The main thrust of the Father's petition, although
certainly not the only basis, was the Mother's alleged drug use.
On this point, the Father relied heavily on the testimony of his
son, who expressed his preference that he be allowed to live with
his father. The child was nine years old at the time of the
3
hearing. The trial court received the child's testimony
regarding his preference although he was not required to do so,
given the child's age. See T.C.A. § 36-6-102. With respect to
the child's testimony on the subject of the Mother's drug use,
that testimony was circumstantial in nature. It did not impress
the trial judge:
And he's a smart boy and he knows what to say
to try to get custody changed, he's that
intelligent and I just couldn't believe
everything he said.
I don't think anything happened over there
that's been proven by the preponderance of
the evidence. I realize that it gets us all
excited that we don't want this to happen.
If I thought it were happening I certainly
would do something and I certainly would
charge her not to ever do any of this or stay
around anybody like this. This boy is going
to be there and he's intelligent but I just
can't believe that what he would infer happen
did happen without more. I mean all adults
are denying, there was no one that came in
here that I recall adult that told there was
anything improperly going on as far as drugs.
The trial court did not find the child's circumstantial drug use
testimony to be credible. We do not know whether it was or not--
we were not present at the hearing. Again, we emphasize that we
must defer to Judge Summitt's assessment of credibility.
Considering the importance of credibility in this case,
we cannot say that the evidence preponderates against the trial
court's findings of fact supporting its conclusion that there had
not been a sufficient change in circumstances to justify a change
in custody.
4
On the second day of a two-day hearing, Father orally3
moved the court to enter an order requiring the parties to submit
to drug tests at the expense of Father. The trial court denied
his request. We do not believe that a sufficient predicate was
demonstrated to justify the ordering of drug tests. There was no
direct testimony that Mother had used drugs since the parties'
divorce. The testimony alluded to by Father to justify drug
tests, i.e., Mother's loss of weight, the child's testimony that
he found a marijuana-like substance in their house, and his
testimony that Mother took bags of "sugar like stuff" to a back
room, did not require the trial court to order drug tests.
Father's motion for drug tests addressed itself to the sound
discretion of the trial court. We cannot say that it abused that
discretion. See Tenn. R. Civ. P. 35; Cf. Walker v. Walker, 656
S.W.2d 11, 16 (Tenn. App. 1983).
The judgment of the trial court is affirmed. This case
is remanded to the court below for the collection of costs
assessed there and such other proceedings as may be appropriate,
consistent with this opinion. Costs on appeal are taxed to the
appellant and his surety.
_________________________________
Charles D. Susano, Jr., J.
CONCUR:
3
The motion was subsequently reduced to writing and filed in the trial
court.
5
_______________________________
Herschel P. Franks, J.
_______________________________
Don T. McMurray, J.
6