In the matter of B.A.L. and A.E.L. ( 2004 )


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  •                  IN THE COURT OF APPEALS OF TENNESSEE
    AT JACKSON
    On-Brief October 19, 2004 Session
    IN THE MATTER OF B.A.L. and A.E.L.
    A Direct Appeal from the Juvenile Court for Shelby County
    No. F6943 The Honorable Herbert Lane, Special Judge
    No. W2004-00826-COA-R3-JV - Filed December 23, 2004
    This is a child custody case. Father/Appellant appeals from the trial court's Order, which
    denied Father/Appellant's Petition to change custody from the minor children’s Mother to Father.
    Finding that there is not a material change in circumstances to warrant a change of custody, we
    affirm.
    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed
    W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
    J. and DAVID R. FARMER , J., joined.
    William T. Winchester of Memphis for Appellant, Craig A. Lott
    Charles A. Sevier of Memphis for Appellee, Countess Jeanine Fleming
    OPINION
    On or about August 21, 1994, Craig A. Lott (“Lott,” “Father,” or “Appellant”) and Countess
    Jeanine Fleming (“Fleming,” “Mother,” or “Appellee”) executed a “Voluntary Acknowledgment of
    Paternity of a Child” as to A.E.L. (d.o.b. 8/19/94). On December 28, 1994, the trial court entered
    an “Order of Legitimation,”declaring A.E.L. to be the natural child of Lott. A second minor child,
    B.A.L. (d.o.b. 9/16/92), had been legitimated as Lott’s child on July 19, 1993.
    On October 6, 1995, Fleming filed a “Petition to Modify Order,” seeking to modify the
    December 28, 1994 Order to include provisions for payment of health insurance and child support
    by Lott. On October 23, 1995, the “Findings and Recommendations of the Referee” were confirmed
    as the decree of the trial court and Lott was ordered to pay $756.00 monthly in child support. On
    October 23, 1995, Lott requested a hearing before the Judge. A hearing was granted and the October
    23, 1995 Order was modified on November 20, 1995 to require Lott to pay $666.75 per month in
    child support. On December 21, 1995, an “Income Assignment Order” was entered, authorizing
    deduction from Lott’s paycheck to cover arrearage and ongoing child support.
    On January 25, 1996, Lott filed a “Petition to Establish Paternity, Request for Blood Test and
    to Schedule Visitation [in the event that blood tests revealed Lott’s paternity]” as to A.E.L. By Order
    of March 7, 1996, all parties were required to submit to blood tests. The blood tests revealed Lott
    to be the natural father of A.E.L. and, on May 16, 1996, the trial court entered an Order, which reads,
    in relevant part, as follows:
    IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED
    1. That said child(ren) shall be a legitimate child(ren) of the
    defendant for purposes of inheritance, support, and all other lawful
    purposes and that custody of said child(ren) be awarded to the
    mother.
    2. That the defendant pay all medical expenses incident to the birth
    of said child(ren) and that he pay $635.20 monthly, Clerk’s fee
    included, to the Clerk of Court toward the support of said child and
    another child previously legitimated on July 19, 1993, docket number
    D9203, beginning May, 1996, and that future payments be made by
    income assignment. Unless specifically ordered by the Court, such
    support shall not be reduced or prorated.
    3. That the defendant shall provide medical insurance for the
    child(ren), or in the alternative, that he be responsible for the
    child(ren)’s medical expenses.
    4. That the surname of said child(ren) be changed to that of the
    defendant, the natural father of said child(ren).
    5. That the defendant shall reimburse the State for blood tests in the
    amount of $165.00.
    6. That the father of said children, Craig Anderson Lott, shall have
    visitation privileges with said children every other week from 6:00
    P.M. Thursday until 6:00 P.M. Friday, in Memphis, at the home of
    the paternal grandparents.
    7. That the defendant shall pay the costs for which execution may
    issue.
    A second “Income Assignment Order” was executed on June 6, 1996 to replace the December 21,
    1996 Order and to reflect the change in support obligation evinced by the May 16, 1996 Order.
    -2-
    On February 3, 2003, Fleming filed a “Motion to Modify Order,” seeking to increase Lott’s
    child support obligation. The “Findings and Recommendations of Referee,” which increased Lott’s
    monthly child support to $881.20, were confirmed as the decree of the trial court on February 25,
    2000. On February 25, 2000, Lott requested a hearing before the Judge. Following a hearing, the
    Referee’s ruling of February 25, 2000 was reconfirmed by Order of March 23, 2000. An “Amended
    Income Assignment Order” had been entered on March 2, 2000 to reflect the increase in Lott’s
    support obligation.
    On January 30, 2003, Lott filed a “Petition to Establish and/or Modify Custody and/or
    Visitation,” (the “Petition). The Petition reads, in pertinent part, as follows:
    1. Petitioner is the natural father of the minor children, who currently
    reside with the Respondent, the natural mother.
    2. There have been prior proceedings establishing paternity for both
    children under this docket number, and Docket Number D9203.
    Pursuant to the establishment of paternity and legitimization,
    visitation for the Petitioner and child support were set.
    3. There has never been a hearing on custody, but custody is with the
    Respondent pursuant to Tennessee law regarding children born out of
    wedlock.
    4. Petitioner requests that this Court conduct an initial custody
    determination for the minor children, or alternatively, Petitioner avers
    that a material change of circumstances has occurred which warrants
    a change in custody or a modification of visitation.
    On February 26, 2003, Fleming filed a “Motion to Modify Order,” again seeking an increase
    in child support. On June 12, 2003, the trial court entered an Order based on the Referee’s Findings
    and Recommendations, which modified Lott’s visitation. On June 12, 2003, Lott requested a hearing
    before the Judge. On July 1, 2003, the Findings and Recommendations of the Referee, raising Lott’s
    child support obligation to $1,055 per month, were confirmed by the trial court.
    On or about August 28, 2003, the trial court, with the Juvenile Court Special Judge presiding,
    began the requested rehearing; however, the matter was recessed so that a Guardian ad Litem could
    be appointed. A Guardian ad Litem was appointed by Order of September 3, 2003.
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    On October 9, 2003, after completing the hearing, the trial court entered an Order, which
    “reconfirmed” the Referee’s June 12, 2003 recommendation.1 On November 10, 2003, Lott filed
    a “Motion to Alter or Amend Judgment,” which reads, in pertinent part, as follows:
    1. Petitioner is the natural father of the minor children.
    2. At the hearing of this cause, the Court indicated that it would have
    changed custody from the Mother to the Father but for the
    recommendation of the Guardian Ad Litem.
    3. The material facts ascertained at the hearing of this matter include
    the following:
    a. Tamara Golden, Mother’s sister, testified that the
    Mother had, on numerous occasions, left the minor
    children at home alone, and that sister went over to
    take the minor children to school.
    b. Tamara Golden, Mother’s sister from Memphis,
    testified that the Mother does not allow the minor
    children to visit with Mother’s own family.
    c. Roslyn Fleming, Mother’s sister from California,
    testified that Mother walked around the house naked
    while Mother’s boyfriend and minor children were
    present.
    d. Roslyn Fleming, Mother’s sister from California,
    testified that Mother told the minor son that Mother
    was going to send him to boarding school.
    e. Milton Lott, Father’s father, testified that Mother
    interfered with Father’s visitation time, and on one
    occasion, called the police demanding that he turn
    over the children to Mother even though it was still
    Father’s visitation time.
    f. Lubertha Lott, Father’s mother, testified that
    Mother calls on numerous occasions during Father’s
    visitation time.
    g. Lubertha Lott, Father’s mother, testified that
    [Father] lives with his parents, that the house is large
    enough to accommodate the children, and that the
    Father has a great relationship with the minor
    children.
    1
    Paragraph #2 of the Referee’s Findings required Father to transport the children to and from extracurricular
    activities. This paragraph was not “reconfirmed” by the October 9, 2003 Order.
    -4-
    h. Father testified that Mother routinely interferes
    with his visitation, that Mother plans activities for the
    minor children during Father’s visitation time, and
    that Mother has on several occasions denied his
    visitation.
    i. Father testified that he has a great relationship with
    his children, and that they want to live with him.
    j. Mother testified that she did not think anyone had
    a right to interfere with her parental authority.
    k. Mother admitted th[at] she has, on many
    occasions, left the minor children at home alone, but
    th[at] she did not have any concerns about the
    children’s safety while they were home alone.
    l. Mother testified that everyone that had testified in
    this case, except her and her witnesses, had lied. This
    includes Mother’s sisters.
    m. Mother admitted that she had scheduled activities
    for the minor children during father’s visitation,
    including the Father’s summer visitation during which
    he wanted to take the children to his family reunion.
    n. At the conclusion of the hearing, Mother stood up
    and stated that the minor son wanted to live with his
    Father, at which time Mother’s attorney stopped her
    from talking.
    4. “A material change of circumstance does not require a showing of
    a substantial risk of harm to the child. A material change of
    circumstance may include, but is not limited to, failures to adhere to
    the parenting plan or an order of custody and visitation or
    circumstances which make the parenting plan no longer in the best
    interest of the child. Tennessee Code Annotated § 36-6-101(a)(2)(B)
    (emphasis added).
    FROM ALL, Father avers that a material change of
    circumstances has occurred which warrants a change of custody, and
    requests this Court to alter or amend its judgment and award Father
    custody of the minor children.
    By Order of March 25, 2004, the trial court denied Lott’s Motion to Alter or Amend. Lott
    appeals and raises two issues for review as stated in his brief:
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    1. Whether the trial court erred in requiring the Father to prove a
    material change of circumstances in order to modify custody where
    there had never been a hearing on custody.
    2. Whether the trial court erred by not finding that there was a
    material change in circumstances that warranted a change in custody,
    and by not placing the minor children in the custody of the Father.
    We first note that, since this case was tried by a court sitting without a jury, we review the
    case de novo upon the record with a presumption of correctness of the findings of fact by the trial
    court. Unless the evidence preponderates against the findings, we must affirm, absent error of law.
    See Tenn. R. App. P. 13(d).
    No Custody Hearing
    Lott first asserts that, because the trial court allegedly never conducted an initial hearing
    to determine custody, the trial court should not have required Lott to show a material change in
    circumstances. We disagree. First, Paragraph number one of the May 16, 1996 Order, see supra,
    clearly establishes custody with the Mother. Therefore, there has been a prior judicial determination
    regarding custody. However, even absent this May 16, 2003 Order, T.C.A. § 36-2-303 (2001)
    indicates that “[a]bsent an order of custody to the contrary, custody of a child born out of wedlock
    is with the mother.” Consequently, custody would have been with the Mother from the respective
    birthdays of these children regardless of a court order. Father’s failure to raise an issue concerning
    the trial court’s determination of custody and/or the statutory default regarding custody to the Mother
    at any time from the birth of these children (1992 and 1994 respectively) until his Petition in this
    case, constitutes a waiver. This issue is, consequently, without merit.
    Material Change in Circumstances
    In child custody cases, the law is well established that when a decree awarding custody of
    children has been entered, that decree is res judicata and is conclusive in a subsequent application
    to change custody unless some new fact has occurred which has altered the circumstances in a
    material way so that the welfare of the child requires a change of custody. Long v. Long, 
    488 S.W.2d 729
     (Tenn .Ct. App.1972). In short, once the trial court has made an initial determination with
    respect to custody, it cannot entertain a subsequent petition to modify custody absent a material
    change in circumstances such that the welfare of the child demands a redetermination. See, e.g.,
    Massengale v. Massengale, 
    915 S.W.2d 818
    , 819 (Tenn. Ct. App.1995). A "material change in
    circumstances" justifying modification of a child custody order may include factors arising after the
    initial determination or changed conditions that could not be anticipated at the time of the original
    order. See Blair v. Badenhope, 
    940 S.W.2d 575
    , 576 (Tenn. Ct. App.1996) (citing Dalton v. Dalton,
    
    858 S.W.2d 324
    , 326 (Tenn.Ct.App.1993)). If the trial court finds that there has been a material
    change in circumstances, it will then consider the petition to modify custody using a best interest
    standard. Woolsey v. McPherson, No. 02A01-9706-JV-00125, 
    1998 WL 760950
    , at *2 (Tenn. Ct.
    App.Nov.2, 1998). As this Court has previously recognized, there is a strong presumption in favor
    -6-
    of the existing custody arrangement. Smithson v. Eatherly, No. 01A01-9806-CV-00314, 
    1999 WL 548586
     at *2 (Tenn. Ct. App. July 29, 1999) (citing Taylor v. Taylor, 
    849 S.W.2d 319
    , 332
    (Tenn.1993)). The party seeking to change the existing custody arrangement has the burden of proof
    to show both that the child's circumstances have materially changed in a way that was not reasonably
    foreseeable at the time of the original custody decision and that changing the existing custody
    arrangement will serve the child's best interests. Geiger v. Boyle, No. 01A01-9809-CH-00467, 
    1999 WL 499733
     at *3 (Tenn. Ct. App. July 16, 1999) (citing Smith v. Haase, 
    521 S.W.2d 49
    , 50
    (Tenn.1975.)); McDaniel v. McDaniel, 
    743 S.W.2d 167
    , 169 (Tenn. Ct. App.1987); Hall v. Hall,
    No. 01A01-9310-PB-00465, 
    1995 WL 316255
    , at *2 (Tenn. Ct. App. May 25, 1995). Under this
    standard, the primary inquiry is whether there has been a material change in the child's
    circumstances. Although there is no concrete definition for what constitutes a material change of
    circumstances, this Court has enumerated several factors that should be taken into consideration
    when determining whether such a change has occurred. In general, the change must occur after the
    entry of the order sought to be modified and the change cannot be one that was known or reasonably
    anticipated when the order was entered. Turner v. Turner, 776 S .W.2d 88, 90 (Tenn. Ct.
    App.1988); Dalton v. Dalton, 
    858 S.W.2d 324
    , 326 (Tenn. Ct. App.1993). In addition, the material
    change in circumstances must be a change in the child's circumstances, not the circumstances of
    either or both of the parents. McCain v. Grim, No. 01A01-9711-CH-00634, 
    1999 WL 820216
     at *2
    (Tenn. Ct. App.Oct.15, 1999). Finally, the change must affect the child's well-being in a material
    way. Dailey v. Dailey, 
    635 S.W.2d 391
    , 393 (Tenn. Ct. App .1981). Tennessee courts have based
    modification of child custody decrees on the following criteria: the character of the custodian; the
    conduct of the custodian; and the child's welfare. Townshend v. Bingham, No. 02A01-
    9801-CV-00019, 
    1999 WL 188290
    , at *4 -*5 (Tenn. Ct. App. Apr.6, 1999). The child's preference
    is only one factor to be considered in deciding custody. See T.C.A. § 36-6-106 (2001); Wilson v.
    Wilson, 
    987 S.W.2d 555
    , 564 (Tenn. Ct. App.1998); Helson v. Cyrus, 
    989 S.W.2d 704
    , 707
    (Tenn.Ct.App.1998). The party seeking a change in custody has the initial burden to show a material
    change of circumstances which affects the welfare of the child. Harris v. Harris, 
    832 S.W.2d 352
    ,
    352 (Tenn.Ct.App.1992). The burden remains on the moving party to show that he or she is
    comparatively more fit than the party with custody under the challenged custody decree and to show
    that it would be in the child's best interests for the moving party to be the custodial parent. Gorski
    v. Ragains, No. 01A01-9710-GS-00597, 
    1999 WL 511451
     at *4, (Tenn. Ct. App. July 21, 1999)
    (citing Nichols v. Nichols, 
    792 S.W.2d 713
    , 715 (Tenn.1990)); Rust v. Rust, 864 S .W.2d 52, 56
    (Tenn.Ct.App.1993).
    The record before us in this case is incomplete in that there is no transcript of the first part
    of the hearing, which occurred on August 28, 2003. It is well settled that it is the responsibility of
    the Appellant to present to this Court a full and complete record on appeal. In the absence of the
    aforementioned transcript, this Court is in the difficult position of deciding a fact-driven case without
    the benefit of the entire testimony adduced at the hearing. However, the transcript before this Court
    does contain the following, relevant, information, concerning what transpired at the August 28, 2003
    hearing:
    THE COURT: ...Tell me what you recall of our last hearing...
    -7-
    *                               *                            *
    MR. WINCHESTER [attorney for Lott]: First, the father testified
    with regards to his concerns about the way the mother was caring for
    the children. He testified as to her written appearance with his
    regular scheduled visitation with the children, that she was constantly
    scheduling things during his visitation where he didn’t do much of
    anything (inaudible) what she told him to do.
    The father testified that the children were doing–were they in
    school and that she was–the mother had been leaving the children at
    home sometimes by themselves. And that’s where one of the sisters,
    Tamara Golden, picked up with regards to the mother leaving the
    children at home alone by themselves. In some instances, the
    mother–Ms.–excuse me, I’m sorry–Ms. Golden would have to go
    over to the children’s house because they would call her in the
    morning saying they missed the bus, and she would take them to
    school.
    There were some instances where the mother pretty much cut
    off contact with Ms. Golden because of Ms. Golden’s helping the
    children. There was one instance where Ms. Golden took the children
    to the–I’m not sure; I’ve got an abbreviation here–to the doctor or the
    dentist because Ms. Fleming would not do so.
    Then there was another issue–there was another issue coming
    from the sister from California where she would be at home. She
    would visit sometimes and Ms. Fleming would be laying around the
    house without any clothes on in front of the children while her
    boyfriend was living there, as well. There was [sic] instances where
    the children were having to go iron clothes and stuff of that nature
    and sometimes in the dark. And then at that point is when the Court
    decided to appoint a Guardian ad Litem.
    THE COURT: And Ms. Kirk [attorney for Fleming], do you want to
    tell me what your recollections of the proof are?
    MS. KIRK: I don’t have in my notes anything about the trip to the
    dentist. I don’t know if that’s just something I missed. I do have that
    there was one time that the children–she [Ms. Golden] had to pick the
    children up in the morning. They called her because they missed the
    bus. I did have in my notes that they [Fleming and Ms. Golden] were
    not close and that they don’t talk to each other very much....
    -8-
    *                                   *                                *
    I also have notes from her [Rosalyn Fleming, Fleming’s sister
    from California’s] testimony that she [Fleming] walks around with no
    clothes on. I asked her a specific date of when this happened. She
    could not give me any date, nor could she give me any specific dates
    of when she was particularly there to visit.
    I do have in my notes that she had resisted questions about
    their [Rosalyn Fleming and Fleming’s] relationship and that basically
    she did say that they don’t talk very much and haven’t for a couple of
    years, at least.
    THE COURT: And I have notations in addition to that. She [Rosalyn
    Fleming] said that the mother of the children made the children feel
    unwanted, that she was constantly telling [B.A.L.] that [Mother was
    going to send him to boarding school].
    From the testimony that we do have before us in the transcript, it is very apparent that there
    is a great deal of acrimony between Mr. Lott and Ms. Fleming. It is also apparent that both of these
    parties have very definitive ideas about parenting, which rarely overlap. In terms of the
    circumstances that Lott has alleged as constituting a material change such that custody should be
    removed from Fleming, we find those fact to be largely disputed in the record before us. Although
    Fleming admits that she would leave the children in the house alone from approximately 6:40 A.M.
    until they left for the bus at 7:25 A.M., the record reveals that this arrangement has ceased now that
    Fleming is teaching at a new location. The testimony from Fleming’s sisters is certainly not
    flattering to her; however, there is evidence to suggest that Fleming and her sisters are estranged.
    Likewise, the testimony of Mr. Lott’s parents, that the children were not always kempt, is disputed
    by the respective testimonies of Maria Johnson and Patricia Jones. It is well settled that when the
    resolution of the issues in a case depends upon the truthfulness of witnesses, the trial judge who has
    the opportunity to observe the witnesses in their manner and demeanor while testifying is in a far
    better position than this Court to decide those issues. McCaleb v. Saturn Corp., 
    910 S.W.2d 412
    ,
    415 (Tenn. 1995); Whitaker v. Whitaker, 
    957 S.W.2d 834
    , 837 (Tenn. App. 1997). The weight,
    faith, and credit to be given to any witness’s testimony lies in the first instance with the trier of fact,
    and the credibility accorded will be given great weight by the appellate court. Id.; In re Estate of
    Walton v. Young, 
    950 S.W.2d 956
    , 959 (Tenn. 1997).
    The testimony of the Guardian ad Litem suggests that Fleming’s conduct, although not
    textbook parenting, does not rise to the level of emotional abuse or neglect. The Guardian ad Litem,
    as well as the trial court, also expressed concern about Lott discussing court matters with the
    children. In short, neither of these parents is perfect but, at the same time, either home would be
    suitable for these children. Since custody was established with Ms. Fleming, the burden in this case
    is on Mr. Lott to show a material change of circumstances which affects the welfare of the children.
    -9-
    Harris v. Harris, 
    832 S.W.2d 352
    , 352 (Tenn.Ct.App.1992). The burden remains with Mr. Lott to
    show that he is comparatively more fit than the Ms. Fleming such that it would be in these children's
    best interests for custody to be removed from Ms. Fleming. Gorski v. Ragains, No.
    01A01-9710-GS-00597, 
    1999 WL 511451
     at *4, (Tenn. Ct. App. July 21, 1999) (citing Nichols v.
    Nichols, 
    792 S.W.2d 713
    , 715 (Tenn.1990)); Rust v. Rust, 864 S .W.2d 52, 56 (Tenn.Ct.App.1993).
    From the entire record before us, we cannot say that Mr. Lott has met this burden.
    For the foregoing reasons, we affirm the Order of the trial court. Costs of this appeal are
    assessed against the Appellant, Craig A. Lott, and his surety.
    ____________________________________
    W. FRANK CRAWFORD, P.J.,W.S.
    -10-