Woodard v. Woodard

• Court: Tennessee Court of Appeals
• Writing for the Court: CANTRELL
• Citation: Woodard v. Woodard, 783 S.W.2d 188 (Tenn. App. 1989)
• Decision Date: 13 October 1989
• Parties: Ronnie Lynn WOODARD, Defendant-Appellee, v. Barbara Gail Brooks WOODARD (Shanks), Plaintiff-Appellant. 783 S.W.2d 188

Page 188

783 S.W.2d 188

Ronnie Lynn WOODARD, Defendant-Appellee, v. Barbara Gail Brooks WOODARD (Shanks), Plaintiff-Appellant.

783 S.W.2d 188

Court of Appeals of Tennessee Middle Section, at Nashville.

Oct. 13, 1989.

Permission to Appeal Denied by Supreme

Court Jan. 2, 1990.

Robert L. Jackson, Robert L. Jackson & Associates, Nashville, for plaintiff-appellant.

Stephen W. Pate, Nashville, for defendant-appellee.

OPINION

CANTRELL, Judge.

The primary issue in this appeal is whether the trial court erred in modifying the parties' original divorce decree by ordering the physical custody of the parties' two minor children to be split on a six month basis as opposed to being in the mother's continuous physical custody. A second issue on appeal is whether the trial court erred in forgiving the alleged child support arrearage against the defendant, Ronnie Lynn Woodard.

On April 28, 1983, plaintiff, Barbara Woodard Shanks was awarded a divorce from the defendant on the ground of irreconcilable differences. The property settlement, which was approved by the trial court and made part of the final decree, provided, inter alia, that the parties would have joint custody of the two minor children. The decree also stated that the children were presently residing with their mother and that Mr. Woodard would pay $50.00 per week child support as long as the children resided with their mother. When, and if, the children resided with their father, the mother would pay $50.00 per week in child support if she was employed at that time.

In December of 1987, defendant filed a "petition to reform contract" alleging that the custody agreement had not been interpreted by the parties in a satisfactory manner. Mr. Woodard proposed a split custody arrangement in which the children would reside with one parent from January 1st to June 30th and with the other parent from July 1 to December 31st of each year. The parent not having custody would have weekend visitation and other special visitation periods. Child support would not be paid by either party.

Following a hearing, the trial court entered an order modifying the original decree and adopting the defendant's proposal for split custody. Visitation by the non-custodial parent was allowed on alternate weekends rather than on every weekend. The trial court also dismissed the mother's counter petition and denied her prayer for a judgment against the father for past child support.

It is a well settled proposition that a custody order is res judicata as to parties and cannot be modified absent a showing of change in material circumstances affecting the welfare of the children. Arnold v. Gouvitsa, 735 S.W.2d 458 (Tenn.App.1987). The burden is therefore upon the party who seeks to modify the court's custody decree, in this case the defendant, to prove that a material change in circumstances has occurred which requires an alteration of custody. Phillips v. Phillips, 1987 WL 11129 (Court of Appeals, filed in Nashville, May 22, 1987).

The defendant, however, did not allege any change in circumstance in his petition to reform the contract. Instead, he simply stated that the custody arrangement "has not been interpreted by the parties in a satisfactory manner for either party or for the children." He then set forth his proposal for the split custody arrangement.

The trial court ordered the modification as requested by defendant but made no finding of a material change of circumstances affecting the welfare of the children to warrant this modification.

At trial both parents acknowledged that the children loved the other parent and were happy in both homes. The parties were divorced in late April of 1983. It is undisputed that from that date through August of 1983 that the children resided with their mother and that from August 1983 through February 1984 the children resided with their father. After February of 1984, there is a dispute between the parties regarding where their children resided. Mr. Woodard testified that from February of 1984 to August of 1984 that the children resided with their mother. He also testified that an agreement to split physical custody 50-50 and to discontinue child support was made in August of 1984 and that from that time until September of 1987 that the parties adhered to this agreement.

According to Mr. Woodard the children would alternate spending four nights at one residence and three nights at the other each week. His new wife, Nancy Woodard, also testified that such an agreement had been made and adhered to for the stated period. Mr. Woodard testified that in September of 1987 Ms. Shanks discontinued the agreement and requested child support and only allowed the children to visit him on alternate weekends and during the summer.

Ms. Shanks denied that any such agreement had ever been made between the parties and testified that the children had primarily resided with her since...