Lurie v Manning

• Court: Tennessee Court of Appeals
• Decision Date: 21 September 1999
• Docket Number: 98-00376
• Citation: Lurie v Manning (Tenn. App. 1999)
• Parties: GREGORY C. LURIE, Petitioner/Appellant, v. MICHELLE H. (LURIE) MANNING, Respondent/Appellee. AppealIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Filed

GREGORY C. LURIE, Petitioner/Appellant v MICHELLE H. (LURIE) MANNING, Respondent/Appellee

Appeal No. 01A01-9807-CV-00376

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Filed September 21, 1999

APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY

Sumner County Circuit No. 11754-C

THE HONORABLE TOM E. GRAY, SITTING BY INTERCHANGE, PRESIDING

This appeal involves the custody of two minor children. Following a bench trial, the trial court ordered that the parents continue to have joint custody, but modified primary physical custody and visitation. Both Father and Mother had sought sole custody, each alleging a change of material circumstances warranting modification of their joint custody arrangements. The Father asserts on this appeal that the trial court erred because he is comparatively more fit than the Mother to have custody, and that the court incorrectly applied the change of circumstances requirement. In the alternative, Father asserts the prior six-month arrangement should be reinstated. We affirm the trial court's order.

LAURA Y. GOODALL, 113 WEST MAIN STREET, GALLATIN, TENNESSEE 37066

ROBERT TODD JACKSON, 222 SECOND AVENUE NORTH, SUITE 419,

NASHVILLE, TENNESSEE 37201

ATTORNEYS FOR PETITIONER/APPELLANT

MARK T. SMITH, KELLY & SMITH, 121 PUBLIC SQUARE, GALLATIN, TENNESSEE 37066

ATTORNEY FOR RESPONDENT/APPELLEE

AFFIRMED AND REMANDED

PATRICIA J. COTTRELL, JUDGE

CONCUR:

CANTRELL, J., KOCH, J.

OPINION

I.

The parties were divorced on July 23, 1993, based on irreconcilable differences. At the time of the divorce the parties had two minor children. In their marital dissolution agreement, incorporated into the decree, the parties agreed to joint custody, with physical custody evenly divided. Mother was to have primary physical custody from February 1 to July 31, and Father the rest of the year. The non-custodial parent had liberal visitation. The parties lived under this arrangement until this action began.

On December 30, 1997, Father filed a petition for change of custody asserting a material change in circumstances warranting change of custody. The petition specifically alleged that Mother had remarried, and that her new husband acted inappropriately around the children. On January 12, 1998, Mother filed an answer and counter-complaint, responding that the conduct of the second husband was moot because they were already divorced. She counterclaimed alleging that Father had remarried and moved into a "dilapidated" house in a "dangerous" neighborhood. She also alleged that Father was an absentee parent due to his work schedule, leaving primary care of the children to the stepmother. Both parties' pleadings included other allegations, which each maintained warranted modification of custody.

Father was due to return the children to Mother on February 1, 1998, and prior to that date, Father requested a hearing on the issue of temporary custody. After a hearing on January 20, 1998, the trial court ordered that custody remain the same but that the children continue to reside primarily with Father pending the final hearing of the case.

After an evidentiary hearing, conducted on May 15, 1998, the trial court issued an order in which it found that it was in the best interest and welfare of the parties' minor children that they remain in the joint custody of both parents. The court ordered that mother have increased physical custody from August 18 through May 31 of each year. The court's order also addressed the issues of visitation and child support. Father appeals the order of the trial court granting Mother increased primary physical custody of the children.

II.

Cases involving a request for change of custody of minor children are particularly fact driven. See Rogero v Pitt, 759 S.W.2d 109, 112 (Tenn. 1988). In such cases, the trial court has the widest discretion to order a custody arrangement that is in the best interest of the child. See e.g. Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. App. 1996); Tenn. Code Ann. 36-6-101(a)(2) (1996). Accordingly, it is well settled that the appellate court's review of a trial court's findings in a custody dispute is de novo on the record, accompanied by a presumption of correctness. See Nichols v. Nichols, 729 S.W.2d 713, 716 (Tenn. 1990); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). An appellate court will not reverse such a decision, absent an error of law, unless the appellate court finds that the evidence preponderates against the trial court's findings. Tenn R. App. 13(d); See Hass, 676 S.W.2d at 555; Masengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995).

III.

A decree awarding custody of children is res judicata and is conclusive on a subsequent application to change custody unless circumstances have changed in a material way so that the welfare of the children requires a modification of the previous order. See Long v. Long, 488 S.W.2d 729, 731-732 (Tenn. App. 1972); Hicks v. Hicks, 26 Tenn. App. 641, 176 S.W.2d 371, 374-375 (1943). Courts are empowered to change custody "as the exigencies of the case may require." Tenn Code Ann. 36-6-101(a)(1).

"Notwithstanding the importance of stability and continuity, intervening changes in a child's circumstances may require modifying an existing custody and visitation arrangement." Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. App. 1997). However, a custody order cannot be modified absent a showing of new facts or "changed circumstances" which require an alteration of the existing order. See Woodard v. Woodard, 783 S.W.2d 188, 189 (Tenn. App. 1989). There is no hard and fast rule as to what constitutes a change of circumstances. See Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. App. 1983). However, "changed circumstances" includes any material change of circumstances affecting the welfare of the child or children, including events occurring since the initial custody decision or changed conditions which could not have been anticipated by the original custody order. See Blair v. Badenhope, 940 S.W.2d 575, 576 (Tenn. App. 1996).

IV.

If the court finds that a material change of circumstances has occurred, then the court will proceed to determine if the best interests of the child dictate a change in the existing custody arrangement and to devise a custody arrangement that serves those interests. See Adelsperger, 970 S.W.2d at 485.

"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." Dantzler, 665 S.W.2d at 387; see also Contreras v. Ward, 831 S.W.2d 288, 289 (Tenn. App. 1991). In custody matters, the determining facts are infinite in their variety and "the supreme rule to which all others should yield is the welfare and best interest of the child." Holloway v. Bradley, 190 Tenn. 565, 571, 230 S.W.2d 1003, 1006 (1950). In any proceedings requiring the court to make a custody determination regarding a minor child, such determination shall be made upon the basis of the best interest of the minor child. Tenn. Code Ann. 36-6-106.

In determining the custody arrangement which will serve the best interest of the children, the court will assess the comparative fitness of the parties seeking custody in light of the particular circumstances of the case, considering the relevant factors, which are the same in a modification proceeding as those criteria used in establishing the initial custody order.¹See footnote 9. See Ruyle v. Ruyle, 928 S.W.2d 439, 442 (Tenn. App. 1996); Matter of Parsons, 914 S.W.2d 889, 893 (Tenn. App. 1995); Garrett, Tennessee Divorce, Alimony and Child Custody 26-5 (1998 ed.).

In Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983), this court established some guidelines for determining the best interest of a child:

We adopt what we believe is a common sense approach to custody, one which we will call the doctrine of "comparative fitness." The paramount concern in child custody cases is the welfare and best interest of the child. Mollish v. Mollish, 494 S.W.2d 145, 151 (Tenn. App. 1972). There are literally thousands of things that must be taken into consideration in the lives of young children, Smith v. Smith, 188 Tenn. 430, 437, 220 S.W.2d 627, 630 (1949), and these factors must be reviewed on a comparative approach:

Fitness for custodial responsibilities is largely a comparative matter. No human being is deemed perfect, hence no human can be deemed a perfectly fit custodian. Necessarily, therefore, the courts must determine which of the two or more available custodians is more or less fit than others. Edwards v. Edwards, 501 S.W.2d 283, 290-291 (Tenn. App. 1973)(emphasis supplied).

Bah, 668 S.W.2d at 666.

In summary, the party seeking to change custody must show "(1) that the child's circumstances have materially changed in a way that could not have reasonably been foreseen at the time of the original custody decision, and (2) that the child's best interest will be served by changing the existing custody arrangement." Adelsperger, 970 S.W.2d at 485. The paramount consideration in a custody proceeding is the best interest of the child or children. See Bah, 668 S.W.2d at 665.

V.

At the close of the January 20 hearing, and again at the beginning of the May 15 hearing, the trial court found a substantial and material change of circumstances on the basis that the custodial arrangement which had worked for a while was no longer working and that the parties were no longer cooperative and working together in the best interest of the children²Further, at the May hearing the court stated: "So the Court has found a substantial and material change of circumstances. So what we want to do today would be examining the factors that go into what's in the best interest of the minor children, as well as custody, visitation, and support issues. So we're pretty much limited to those issues unless the attorneys identify other issues that we are to hear today. Any other issues other...