Elizabeth Bosi v. Kevin Bosi ( 2000 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
ELIZABETH DIANE BOSI v. KEVIN P. BOSI
An Appeal from the Circuit Court for Shelby County
No. 154252 R.D.; The Honorable Karen R. Williams, Judge
No. W1999-01533-COA-R3-CV - Decided May 24, 2000
This appeal arises from a Petition to Modify Custody filed by plaintiff-Father. Father alleged that
a material change in circumstances had occurred because defendant-Mother had deteriorating mental
health conditions and was involved in a violent and abusive relationship. In addition, Father alleged
that Mother was unnecessarily hospitalizing the parties’ minor child for psychotic disorders. The
trial court found in favor of Father and granted him sole custody of the child and allowed only
supervised visitation of the child with Mother. Mother appeals on the basis that the trial court lacked
jurisdiction over the child. In the alternative, Mother asserts that there was not a material change
in circumstances warranting a change in custody.
Tenn.R.App.P. 3; Judgment of the Circuit Court Affirmed.
HIGHERS , J., delivered the opinion of the court, in which FARMER , J., and LILLARD , J., joined.
Patricia A. Woods, Memphis, for Appellant, Elizabeth Diane Bosi
Wendy S. Dabbous, Andrea M. Lazarini, Memphis, for Appellee, Kevin P. Bosi
OPINION
Elizabeth Bosi (“Mother”) appeals from the trial court’s grant of custody of the parties’ minor child
to Kevin Bosi (“Father”) and limitation of Mother’s visitation. Mother alleges that trial court lacked
jurisdiction to modify custody. In the alternative, Mother asserts that there was not a significant
change of circumstances warranting a change in custody. For the following reasons, the judgment
of the trial court is affirmed.
Facts and Procedural History
This appeal arises from a petition to modify custody filed by Father. Father sought full
custody of the parties’ minor child1 based on the alleged violent and physically abusive atmosphere
at Mother’s home, Mother’s deteriorating mental health condition, and Mother’s hospitalization of
1
Heather, the parties’ minor child, is now age six.
the child. Based upon the report of the Guardian Ad Litem subsequently appointed by the court and
other evidence presented at trial, the court granted Father’s petition. Mother appeals based on the
facts as set forth below.
The parties were divorced in April 1997; at the time of divorce both parties and the child
were residents of Tennessee. The divorce decree incorporated a marital dissolution agreement
providing that Mother would be primary custodian of the minor daughter. The agreement provided
that Mother could move from Tennessee without Father’s interference and that Father would have
reasonable visitation rights.
In July or August of 1998, Mother and child moved to Mississippi with Mother’s fiancé
(Mother is now married to the fiancé). After the move, Father’s visitation with the child continued
as scheduled. Only one of these visits took place at the child’s new residence; the remaining visits
were at Father’s residence in Memphis, Tennessee.
On January 28, 1999, Mother consulted Father regarding the possible hospitalization of the
child to determine whether the child suffered from attention deficit hyperactivity disorder, bipolar
disorder, or any other psychotic disorders. Father questioned the necessity of this action. On
February 2, 1999, the child was admitted to St. Francis Hospital for testing and diagnosis.
Father contacted a staff member of the hospital and was updated about the child’s condition.
According to Father, he was advised that the child suffered from attention deficit disorder and
hyperactive disorder as well as being both violent and delusional. In addition, Father was informed
that the child had likely been sexually abused and was not in a healthy environment. Finally, Father
was advised that child’s hair was being treated for lice by the hospital.2
On February 4, 1999, Father filed a Petition for Modification of Custody in the Shelby
County Circuit Court. Father sought the appointment of a Guardian Ad Litem (“GAL”) to represent
the child and oversee the child’s healthcare decisions. The court appointed a GAL at an ex parte
hearing on that date.
On February 26, 1999, the court awarded temporary custody of the child to the paternal
grandfather (“Grandfather”) pending an investigation by the GAL.3 Under the court order, both
Mother and Father were allowed supervised visitation with the child. Shortly thereafter Mother
attempted to retrieve child from Grandfather’s care in violation of the court’s order. Based upon this
incident, Mother’s visitation was suspended by the court.
2
The child had suffered repeated lice infestations. Mother, Father, an d the child ’s grandf ather had all treated
the child for lice during the previous year.
3
Mother’s counsel resigned at this time citing a conflict of in terest. Mother was unable to obtain new counsel
until March 30, 1999. During the intervening period, the court granted several continuances in order for Mother to seek
representation.
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On April 13, 1999, the GAL report was presented to the court. The report contained a
detailed description of the GAL’s investigation, including a summary of her interviews with twenty-
one different witnesses. These witnesses included the parties, the child, friends and relatives of both
parties, the child’s teachers and counselors, as well as other individuals. The GAL report
recommended that Father be granted sole custody of the child with Mother granted limited
supervised visitation. The report characterized Mother as a flight risk and found that she did not
protect the child from inappropriate behavior and influences.
On April 15, Mother filed a motion to dismiss Father’s petition for lack of subject matter
jurisdiction because the child was a resident of Mississippi.4 According to Mother, the child’s home
state was Mississippi and jurisdiction to modify the custody decree rested with the home state under
both Mississippi’s and Tennessee’s versions of the Uniform Child Custody Jurisdiction Act5
(“UCCJA”). A hearing on this issue was held on April 29, 1999. At the time of the hearing, the
court took the matter under advisement without making a ruling. Shortly thereafter, the lower court
judge contacted the alleged “home state” Mississippi court whereupon that court waived jurisdiction
in the matter. Following the Mississippi court’s waiver of jurisdiction, the trial court retained
4
Mother filed a supp orting affid avit stating tha t she and th e child ha d been r esiding in Mississippi since July
10, 1998.
5
Tennessee’s version of the UCCJA provides in relevant part: § 36-6-216. Initial custody determination;
jurisdiction
(a) Excep t as otherw ise provid ed in § 36 -6-219 , a court of th is state has jurisd iction to m ake an in itial child
custody determination only if:
(1) This state is the home state of the child on the date of the commencem ent of the proceeding, or was the
home state of the child within six (6) months before the commencement of the proceeding and the child is absent from
this state but a parent or person acting as a parent continues to live in this state;
(2) A court of another state does not have jurisdiction under subdivision (a)(1), or a court of the home state of
the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum u nder §
36-6-221 or § 36-6-222, and:
(A) The child and the child's parents, or the child and at least one (1) parent or a person acting as a parent, have
a significant connection with this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal
relationships;
(3) All courts having jurisdiction under subdivision (a)(1) or (2) have declined to exercise jurisdiction on the
ground that a court of this state is the more appropriate forum to determine the custody of the child under § 36-6-221
or § 36-6-222; or
(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (a)(1), (2),
or (3).
(b) Subsectio n (a) is the ex clusive jurisd ictional basis for making a child-custody determination by a court of
this State.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficien t to make
a child-custody determination.
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jurisdiction and proceeded with the hearing on Father’s motion.
At the hearing, Father and Mother’s sister (“Sister”) testified about Mother’s history of
mental problems. A long-time neighbor (“Neighbor”) of the parties as well as Sister testified about
Mother’s inability to effectively discipline the child. Neighbor also testified that Mother had told her
of an instance of physical abuse between Mother and Mother’s new husband. Grandfather testified
about the child’s behavior in the period shortly after she came to live with him under the temporary
custody arrangement. In particular, Grandfather recounted an incident in which the child stated that
Mother’s new Husband was violent and that she, the child, wanted to be violent also.6 The child’s
GAL testified regarding her investigation and findings; this testimony reiterated the content of the
GAL report. Neither Mother nor Mother’s new husband testified at the hearing.
By order entered on May 28, 1999, the court found that there had been a material change of
circumstances that warranted a change in custody and that Father should be granted sole custody of
the child. According to the court, Mother’s bipolar disorder had a negative effect on the child that
was unforseen at the time of the entry of the divorce decree and Mother was acting in a way that did
not serve the child’s best interest. In addition, the court held that Mother’s future visits with child
should be supervised.
Mother appeals, asserting that the trial court erred. Mother claims that the GAL investigation
was inadequate because the GAL did not visit the child’s residence, school, or church in
Mississippi.7 In addition, Mother asserts that the trial court did not have proper jurisdiction over the
case, that the trial court acted improperly in granting temporary custody to the child’s grandfather,
that there was no material change in circumstances warranting a change in custody, and that
Mother’s visitation should not be limited and supervised.
Analysis
In child custody cases, appellate review is de novo upon the record with a presumption of
the correctness of the trial court's findings of fact. See TENN . R. APP . P. 13(d); see also Hass v.
Knighton, 676 S.W.2d 554, 555 (Tenn.1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn.
App.1993); Winchester v. Collier, No. 02A01-9802-CV-00046, 1999 WL 250176, at *5 (Tenn.
App. April 28, 1999). Trial courts are vested with broad discretion in matters of divorce and child
custody, and appellate courts will not interfere except upon a showing of erroneous exercise of that
discretion. Whitaker v. Whitaker, 957 S.W.2d 834, 836-837 (Tenn. App. 1997).
A. Jurisdiction
6
Upon objection by Mother, the court below noted that Grandfather’s account of the child’s statement was not
hearsay because it was being offered to show the child’s state o f mind w hen she made th e statemen t, and not offered
for the truth of the matter asserted. See Rule 801(c) Tenn. R. Ev.
7
Although Mother raises some question about the thoroughn ess of the GA L’s inves tigation, she did not raise
any hea rsay obje ctions to the GAL ’s report at trial o r on app eal.
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As a preliminary matter, we find it necessary to address the jurisdictional issue raised by
Mother. Mother asserts that the court below lacked jurisdiction over the child custody matter
because the child’s home state was Mississippi, not Tennessee. According to Mother, the child had
been residing in Mississippi since July 1998, which was more than six months before Father filed
his Petition to Modify Custody in February 1999. Father claims that the actual date of the child’s
move to Mississippi was August of 1998. Based on the Mississippi court’s waiver of jurisdiction,
we find it unnecessary to determine the exact date of the child’s move.8
In support of her argument, Mother cites the Homberg case. Homberg v. Homberg, No.
02A01-9404-CV-000901994 WL 695300 (Tenn. Ct. App. Dec. 13, 1994). In the Homberg case, a
custody dispute arose between the father, a resident of Tennessee, and the mother, a resident of
Alabama. Mother and child had been living in Alabama for more than three years when father filed
a petition to modify custody in the Tennessee courts. Homberg at *1. The Tennessee court granted
father immediate temporary custody at an ex parte hearing. Mother was not given notice of the
hearing or the change in custody until she turned child over to father for his regular visitation.
Mother then filed a motion to set aside the temporary custody order based on the Tennessee court’s
lack of jurisdiction over the child. This motion was denied and after a trial on father’s petition,
father was granted primary physical custody. Homberg at *1. On appeal to this court, mother argued
that the Tennessee court did not have jurisdiction because the child was a resident of Alabama at the
time the petition to modify custody was filed. We agreed, holding that the trial court in Homberg
did not have jurisdiction over the child, and that therefore, the modification of custody was not valid.
In the case at bar, Mother relies on our decision in Homberg to support her argument that
the court below did not have jurisdiction. While there are certain similarities between the cases, the
facts in Homberg are not analogous to the facts in this case. First, in this case, there was not a
definite finding that the child was a resident of Mississippi rather than Tennessee. As such, there
was no guarantee that Mississippi had home state jurisdiction over the child. Secondly, in this case,
the Mississippi court declined to exercise jurisdiction over the child. Therefore, pursuant to §
36-6-216(a)(3) of TUCCJA, the courts of this state may obtain jurisdiction over a child if any other
state with a jurisdictional claim declines to exercise jurisdiction on the grounds that Tennessee is a
more appropriate forum. See Tenn. Code Ann. § 36-6-216(a)(3). Accordingly, Tennessee may
exercise jurisdiction in the case at bar based on the Mississippi court’s decision not to exercise
jurisdiction over the minor child. Therefore, the trial court had the requisite jurisdiction to hear and
determine the matter.9
8
Mother raises some question about the appropriateness of any approval obtained from the Panola County,
Mississippi court. M other claim s that the child actually resid es in Lafay ette Coun ty, Mississipp i. From our review of
the record, it appears that the child’s physical residence was in Lafayette County while the child’s mailing address was
in Panola County. However, although the record identifies the Mississippi judge as a Panola County chancellor, the
judge is chancello r in the Eig hteenth D istrict which includes L afayette C ounty. A ccordin gly, this issue is without merit.
9
We find it approp riate to note that Tennessee has now adopted the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCC JEA). This act w as not in effect in February 1999, when Father filed his petition to modify
custody. Acc ordingly, UC CJEA is not relev ant to these proceed ings.
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B. Temporary Custody
On appeal, Mother asserts that the trial court erred in ordering the child into temporary
custody in Tennessee. Again, Mother bases this argument on the child having a home-state
residence in Mississippi rather than Tennessee. As stated above, regardless of whether or not the
Mississippi court actually had jurisdiction over this matter, Mississippi declined to exercise that
jurisdiction. Accordingly, we find it unnecessary to further address this argument.
C. 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 other words, 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). In this case, Mother argues
that there was not a material change in circumstances unforseen at the time of the initial custody
decree and that as such, the trial court did not properly alter the existing custody decree.
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 interests 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 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); Seessel v. Seessel, 748 S.W.2d
422, 429 (Tenn. 1988); 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
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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 of 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).
In this case, the alleged change in circumstances involves both Mother’s mental health and
her relationship with her new husband. According to Mother, Father was well aware of her history
of emotional problems and could not rely on her mental condition to show a change in
circumstances. Indeed, the evidence presented at trial along with Father’s sworn affidavit show that
he had knowledge of Mother’s instability. However, Father was also aware that Mother’s condition
could be controlled by medication and Father assumed Mother would continue to take medication
after receiving custody of the child. In addition, at the time of the original custody decree, Mother
was not involved with her new husband in what has been characterized as a dangerous and abusive
relationship.
Based on the standard stated above, we find that the trial court did not err in finding that there
was a material change in circumstances unforseen at the time of the original custody decree. The
evidence offered at trial as well as the GAL report, reflect that Mother’s behavior and circumstances
have been significantly altered since the original custody decree. Therefore, the decision of the trial
court is affirmed on this issue.
D. Supervised Visitation
As a final issue, Mother argues that the trial court erred in requiring that all her visitations
with the minor child be limited and supervised. From our review of the record, it is likely that the
trial court based this decision on the Mother’s previous attempt to retrieve the child from
Grandfather’s custody as well as the GAL’s finding that Mother could be a flight risk. Based on
these facts, as well as Mother’s apparent instability, we find that the decision of the trial court was
not in error. The court did not err in limiting Mother’s contact with child to supervised visitation.
Conclusion
For the foregoing reasons, the decision of the trial court is hereby affirmed. Costs of appeal
are taxed to Appellant, Elizabeth Diane Bosi, for which execution may issue, if necessary.
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