Opinion
C.A. No. 01A01-9710-CV-00609
January 22, 1999
DAVIDSON CIRCUIT, HON. MARIETTA SHIPLEY, JUDGE
AFFIRMED AND REMANDED
KATHY A. LESLIE, for Appellant.
CLARK LEE SHAW, for Appellee
OPINION
This is a post divorce proceeding regarding custody of the parties' minor children. After a bench trial, the trial court made an extensive finding of fact and, among other things, found that there had been a change of circumstances sufficient to warrant a change in custody. The trial court changed custody from the mother and awarded joint custody to both parents with the husband designated as custodian. On appeal, the mother challenges the sufficiency of the evidence. We affirm the judgment of the trial court.
No verbatim transcript of the proceedings was available. The appellant filed a statement of the evidence to which the appellee objected for incompleteness. The appellee then filed a statement of the evidence containing additional material. In ruling upon the appellee's objection to the appellant's statement of the evidence, the court ordered that both statements should be considered together.
We should first note that the burden of proof which rests upon the party seeking a modification of a joint custody order or decree is a "preponderance of the evidence" standard. See T.C.A. § 36-6-101(a)(2). Therefore, it is necessary in this case that the father establish by a preponderance of the evidence that the child's best interests will be served by changing the previous custody arrangement.
In Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn. App. 1997), this court made the following observation:
Notwithstanding the importance of stability and continuity, intervening changes in a child's circum stances may require modifying an existing custody and visitation arrangement. Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 1997) empowers the courts to change custody "as the exigencies of the case may require," and courts will change custody when the party seeking to change custody proves (1) that the child's circumstances have materially changed in a way that could not have been reasonably foreseen at the time of the original custody decision, see Smith v. Haase, 521 S.W.2d 49, 50 (Tenn. 1975); McDaniel v. McDaniel, 743 S.W.2d at 169, and (2) that the child's best interests will be served by changing the existing custody arrangement. See Hall v. Hall, 1995 Tenn. App. LEXIS 350, App. No. 01 A01-9310-PB-00465, 1995 WL 316255, at *2 (Tenn. Ct. App. May 25, 1995) (No Tenn.R.App.P. 11 application filed).
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. Ct. 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. Ct. 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. Ct. App. 1996); Griffin v. Stone, 834 S.W.2d at 301.
Id. page 485.
While conceding that the change in circumstances shown by the parties' respective statement of the evidence is not strong, we deem it sufficient to warrant a change in the custody arrangement. At the time of the original decree, neither party appeared to have a stable home environment. Since the original decree, however, the home environment of the husband has improved considerably while the home environment of the mother has not and, while limited in our review by the sparseness of the record, it seems reasonable to infer that the mother's home environment has, in fact, deterio rated.
The evidence reflects that at the time of the original decree the husband was on active duty with the military. He has now returned to civilian life. Both parties have remarried. The father and his wife have established a home which appears to be inestimably superior to that of the mother.
With regard to the mother's home the trial court made the following observations:
Ms. Knight's life either remained the same or deteriorated. She admitted she had been a cocaine addict until three years ago. She admitted regularly smoking marijuana until the time she was served with the re straining order. She has married once. That husband was now incarcerated. She had one child by him. She had another child by another man, who had been shot recently, making him a quadriplegic. She has no official legitima tion by that person. Since the divorce she has been unable to work, primarily due to the four children [only two of which are involved in this litigation], but also due to her lack of education. She declined to request help from the government, with the exception of food stamps, relying solely on her child support and about $500 per month from her generous mother. She did not want to live in public housing, so she lived in a fire trap trailer for awhile. In 1996, her mother purchased a decent trailer for her in Dickson, Tennessee. She now pays the rental payment to her mother. Her mother also pays the utilities.
Richard Hedgepath visited the families. He was able to make arrangements ahead of time with the father and his wife. The Knights (father and his present wife) have two children from his wife's first marriage. The house was neat and clean, although they have only two bedrooms. Both the father and his wife have good-paying jobs. They seem to be quite settled in a fairly normal household. Mr. Hedgepath was not able to call the mother and came to her home unannounced. The trailer had four bedrooms. The trailer was really a mess with just stacks of things all around the house. There was a large assortment of animals inside the trailer and a litter box in the kitchen. The food choice for the children seemed at best limited. The children had poison ivy all over them. There was an assortment of persons who had lived in the trailer, including her present boyfriend [husband is in prison.], at times a 15 year old boy she was befriending and a paraplegic friend. [Brackets in original.]
Mr. Hedgepath was appointed by the court to inspect the parties' respective homes.
The court realizes that one cannot compare residences when comparing announced and unannounced residences and by comparing incomes, one cannot expect the same level of environment. However, there are other telling facts that show the level of care that Ms. Knight can muster at this time. The court was primarily concerned about the school records. Cory, the youngest child, had to repeat the first grade, partly because "he couldn't see the teacher, since he was behind some compartment in the room." Cory had potentially been diagnosed as having ADHD, but there has as yet been no M-Team meeting at his school in Dickson. Both children had excessive absences. Cory missed 35 days, Joseph missed 28 days. Both had 18 days tardy, for reasons such as "overslept", "missed bus", "power off", "lice." Joseph had about a "c" average.
The record also reflects that the mother, since the original decree, and approximately one month prior to the trial in this case, was arrested for possession of drug paraphernalia. She pled guilty to the charge and received probation.
We, like the trial court, believe that there has been a sufficient change in circumstances established by a preponderance of the evidence to warrant a change in the custody arrangements.
We affirm the judgment of the trial court in all respects. Costs are assessed to the appellant and this cause is remanded to the trial court. ________________________________ Don T. McMurray, J.
CONCUR: ___________________________________ Houston M. Goddard, Presiding Judge _______________________________ Samuel L. Lewis, Special Judge
DAVIDSON CIRCUIT, HON. MARIETTA SHIPLEY, JUDGE.
AFFIRMED AND REMANDED
JUDGMENT
This appeal came on to be heard upon the record from the Circuit Court of Davidson County, briefs and argument of counsel. Upon consideration thereof, this Court is of the opinion that there was no reversible error in the trial court.
We affirm the judgment of the trial court in all respects. Costs are assessed to the appellant and this cause is remanded to the trial court. __________________________________ Don T. McMurray, Judge __________________________________ Houston M. Goddard, Presiding Judge __________________________________ Samuel L. Lewis, Special Judge