Dantzler v. Dantzler

• Decision Date: 27 October 1983
• Citation: Dantzler v. Dantzler, 665 S.W.2d 385 (Tenn. App. 1983)
• Parties: Garnett Merryman Bowers DANTZLER (Rush), Plaintiff-Appellee, v. Hubert Clark DANTZLER, Jr., Defendant-Appellant. 665 S.W.2d 385
• Court: Tennessee Court of Appeals

Page 385

665 S.W.2d 385

Garnett Merryman Bowers DANTZLER (Rush), Plaintiff-Appellee, v. Hubert Clark DANTZLER, Jr., Defendant-Appellant.

665 S.W.2d 385

Court of Appeals of Tennessee,

Western Section, at

Nashville.

Oct. 27, 1983.

Application for Permission to Appeal

Denied by Supreme

Court

Feb. 13, 1984.

Jack Norman, Jr., and Mac E. Robinson, Nashville, for defendant-appellant.

William L. Underhill, Nashville, for plaintiff-appellee.

NEARN, Presiding Judge, Western Section.

This is a child custody case.

The parties were divorced in 1980 with the right of custody of the two minor children of the parties vested in the mother. The divorce was based on irreconcilable differences with the agreed upon custody being approved by the Court. In June 1982, the husband filed a petition for change of custody. On August 30, 1982, custody was awarded the father. The change of custody by the Trial Judge appears to have been largely based on the fact that at the time of that hearing the mother had been permitting another man to live in the home with her and the children. That man enjoyed the bedroom privileges of the married. Shortly after the custody was changed, the mother married the man with whom she had been on intimate terms and filed a petition for change of custody based upon alleged changed circumstances. The Trial Judge granted the petition and the husband has appealed.

The husband raises two issues on appeal, viz:

I. Whether there exists the necessary changed circumstances to warrant the change of custody of the minor children from the custodial parent to the non-custodial parent.

II. Whether the Court erred in permitting the wife to introduce witnesses over the objection of defendant's counsel when defendant's counsel had not been furnished with a list of witnesses in accordance with Rule 22(a) of "Local Rules of Practice for Courts of Record, Davidson County, Tennessee."

The husband's principal argument is that the mere obtaining of a marriage license by the mother since the time custody was awarded to the husband is not a "change in circumstance" as contemplated in law that would authorize the Court to alter custody from the father to the mother. We are cited to several cases which discuss the requirements of "changed circumstances", Long v. Long, (1972) Tenn.App.E.S.) 488 S.W.2d 729, cert. denied, Hicks v. Hicks, (1943 M.S.) 26 Tenn.App. 641, 176 S.W.2d 371, cert. denied, and Smith v. Haase, (1975 Tenn.) 521 S.W.2d 49. This argument appears to us to be somewhat incongruous in view of the evident fact that the father previously thought that the lack of that marriage license was a sufficient change in circumstance to authorize a change in custody from the mother to the father. Be that as it may, the record discloses other circumstances upon which the Trial Judge based his decision. The Trial Judge expressly found that while in the custody of the father "there was a psychological change occurring in the minor child, Hubert Clark (Trey) Dantzler, III." The record supports that finding.

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. Riddick vs. Riddick, (1973 Tenn.App.W.S.) 497 S.W.2d 740, cert. denied. We hold that there is no hard and fast rule as to what constitutes changed circumstance. The ultimate goal of the Court is to find in the best interest of the children and "changed circumstances" is something that may or may not be found in that search. We believe T.C.A. Sec. 36-828 adequately sets forth the authority of the Trial Court over its custodial orders. The statute provides that such orders are "subject to such changes or modifications as...