                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs June 26, 2003

                  ELIZABETH D. OLIVER v. MARC L. OLIVER

                     Appeal from the Circuit Court for Davidson County
                         No. 99D-757     Muriel Robinson, Judge



                    No. M2002-02880-COA-R3-CV - Filed April 26, 2004


This appeal involves a father’s effort to obtain primary physical custody of his now twelve-year-old
daughter. Approximately three months after the parties’ divorce, the father filed a petition in the
Circuit Court for Davidson County seeking to hold the mother in criminal contempt for interfering
with his visitation and for alienating their daughter. He later amended his petition to seek primary
physical custody. Following a bench trial, the trial court held the mother in contempt but declined
to change custody from the mother to the father. The father has appealed. We have determined that
the trial court did not err by denying the father’s petition to change custody.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM C. KOCH , JR ., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Rosemary E. Phillips, Goodlettsville, Tennessee, for the appellant, Marc L. Oliver.

Elizabeth D. Oliver, Nashville, Tennessee, Pro Se.

                                            OPINION

                                                I.

        Marc L. Oliver and Elizabeth D. Oliver were divorced on May 22, 2000. The final divorce
decree entered by the Circuit Court for Davidson County approved and incorporated a marital
dissolution agreement providing that they would have joint legal custody of their then nine-year-old
daughter but that Ms. Oliver would be the primary physical custodian. The marital dissolution
agreement defined Dr. Oliver’s visitation rights, and the final divorce decree contained standard
prohibitions against impeding visitation or alienating the child.

      Immediately after the divorce, Ms. Oliver began interfering with Dr. Oliver’s visitation and
making derogatory remarks about him to their child. Specifically, Ms. Oliver (1) denied Dr. Oliver
his Wednesday night visitations for five weeks, (2) delivered the child late and picked her up early
during visitation times, (3) refused to provide Dr. Oliver with information regarding when to pick
up the child for his July 1 through 9, 2000 visitation, (4) refused to allow phone access to the child,
(5) repeatedly made derogatory comments about Dr. Oliver in the child’s presence, and (6) failed to
offer Dr. Oliver the opportunity to babysit the child.1

        On August 29, 2000, Dr. Oliver filed a petition in the trial court seeking to hold Ms. Oliver
in contempt and to modify the visitation arrangements in the marital dissolution agreement. Ms.
Oliver responded to this petition by swearing out a warrant for harassment against Dr. Oliver and
by seeking an order of protection.2 She also arbitrarily removed the child from her elementary school
and placed her in another school to make it more difficult for Dr. Oliver to have lunch with the child.
Accordingly, on January 9, 2001, Dr. Oliver amended his petition to seek primary physical custody
of the parties’ daughter.

        The trial court conducted a bench trial on February 26, 2002. The court found Ms. Oliver
had set upon a course of behavior that had successfully alienated the child from Dr. Oliver. After
concluding that Ms. Oliver was guilty of thirteen willful violations of the marital dissolution
agreement and final divorce decree, the trial court sentenced her to a suspended 130-day jail
sentence. However, the trial court declined to award Dr. Oliver primary physical custody of the
parties’ daughter. Dr. Oliver appeals the latter decision.

                                                           II.

        Custody and visitation decisions are among the most important decisions that courts make.
Steen v. Steen, 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001); Adelsperger v. Adelsperger, 970 S.W.2d
482, 484 (Tenn. Ct. App. 1997). Their chief purpose is to promote the child’s welfare by creating
an environment that promotes a nurturing relationship with both parents. Aaby v. Strange, 924
S.W.2d 623, 629 (Tenn. 1996).

         Each parent has his or her own strengths and weaknesses, Gaskill v. Gaskill, 936 S.W.2d 626,
630 (Tenn. Ct. App. 1996), and it would be unrealistic to measure each parent against the standard
of perfection. Earls v. Earls, 42 S.W.3d 877, 885 (Tenn. Ct. App. 2000); Bush v. Bush, 684 S.W.2d
89, 93 (Tenn. Ct. App. 1984). Therefore, custody decisions are not intended to reward parents for
prior virtuous conduct or to punish them for their human frailties or past missteps. Earls v. Earls,
42 S.W.3d at 885; Gaskill v. Gaskill, 936 S.W.2d at 630. Rather, taking the parents as they presently
are, the courts must pragmatically decide whether the parents, even though divorced, will be able to
share the responsibilities for raising their child or, if not, which of the two parents is comparatively
more fit to take on the primary parenting role.



         1
           The marital dissolution agreement provided that Dr. Oliver was to be given the first opportunity to babysit the
parties’ daughter during times when the mother required a babysitter and that Ms. Oliver could use another babysitter
only if Dr. Oliver was not available.

         2
             Both of these proceedings were later dismissed.

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        Children thrive in stable environments. Aaby v. Strange, 924 S.W.2d at 627; National
Interdisciplinary Colloquium on Child Custody, Legal and Mental Health Perspectives on Child
Custody Law: A Deskbook for Judges § 5:1, at 51 (1998) (“Legal and Mental Health Perspectives
on Child Custody Law”). Accordingly, the courts favor existing custody arrangements. Taylor v.
Taylor, 849 S.W.2d 319, 332 (Tenn. 1993); Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn. Ct.
App. 1999). In fact, a custody decision, once made and implemented, is considered res judicata upon
the facts in existence or reasonably foreseeable when the decision was made. Young v. Smith, 193
Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Steen v. Steen, 61 S.W.3d at 327; Solima v. Solima, 7
S.W.3d 30, 32 (Tenn. Ct. App. 1998).

        Despite a preference for continuing existing custody arrangements, the courts have
recognized that the circumstances of children and their parents change. Accordingly, our statutes
and decisions empower the courts to alter custody arrangements when intervening circumstances
require modifications. Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 2003). Thus, courts may modify
an existing custody arrangement when required by unanticipated facts or subsequently emerging
conditions. Smith v. Haase, 521 S.W.2d 49, 50 (Tenn.1975); Adelsperger v. Adelsperger, 970
S.W.2d at 485. In the interests of stability in the child’s life, a court should not alter an existing
custody arrangement until (1) it is satisfied either that the child’s circumstances have changed in a
material way since the entry of the presently operative custody decree or that a parent’s
circumstances have changed in a way that affects the child’s well-being, (2) it has carefully
compared the current fitness of the parents to be the child’s custodian, and (3) it has concluded that
changing the existing custody arrangement is in the child’s best interests. Kendrick v. Shoemake,
90 S.W.3d 566, 570 (Tenn. 2002); Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002).

        There are no bright line rules for determining when a change of circumstances should be
deemed material enough to warrant changing an existing custody arrangement. Kendrick v.
Shoemake, 90 S.W.3d at 570; Taylor v. Taylor, 849 S.W.2d at 327; Solima v. Solima, 7 S.W.3d at
32. These decisions turn on the unique facts of each case. As a general matter, however, the
following principles illuminate the inquiry. First, the change of circumstances must involve either
the child’s circumstances or a parent’s circumstances that affect the child’s well-being. Kendrick
v. Shoemake, 90 S.W.3d at 570.3 Second, the changed circumstances must have arisen after the entry
of the custody order sought to be modified. Turner v. Turner, 776 S.W.2d 88, 90 (Tenn. Ct. App.
1989). Third, the changed circumstances must not have been reasonably anticipated when the
underlying decree was entered. Adelsperger v. Adelsperger, 970 S.W.2d at 485. Fourth, the change


         3
           Over the years, the Tennessee Supreme Court has consistently declined to review this court’s decisions holding
that the changed circumstances that will trigger a consideration of a change in custody must involve changes in the child’s
circumstances rather than in either or both of the parents’ circumstances. Steen v. Steen, 61 S.W .3d at 327; Hoalcraft
v. Smithson, 19 S.W .3d at 829. The Court has now decided that a change in either parent’s circumstances can also trigger
a change of custody if the change “affects the child’s well-being.” Kendrick v. Shoemake, 90 S.W .3d at 570. W hile a
change in the custodial parent’s circumstances necessarily affects the child, a change in the noncustodial parent’s
circumstances may not. Because the court did not explicitly limit Kendrick v. Shoemake to changes in the custodial
parent’s circumstances, we must presume that the court now envisions that changes in a noncustodial parent’s
circumstances can justify a change of custody if the noncustodial parent can demonstrate that the change in his or her
circumstances somehow affects the child.

                                                           -3-
in circumstances must affect the child’s well-being in some material way. Kendrick v. Shoemake,
90 S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d at 150; Hoalcraft v. Smithson, 19 S.W.3d at 829.

        The person seeking to change an existing custody arrangement has the burden of
demonstrating both that the child’s circumstances have changed materially and that the best interests
of the child require a change in the existing custody arrangement. In re Bridges, 63 S.W.3d 346, 348
(Tenn. Ct. App. 2001); Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). The
threshold question is whether there has been a material change in the child’s circumstances.
Kendrick v. Shoemake, 90 S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d at 150; Placencia v.
Placencia, 48 S.W.3d 732, 736 (Tenn. Ct. App. 2000). If the person seeking the change of custody
cannot demonstrate that the child’s circumstances have changed in some material way, the trial court
should not re-examine the comparative fitness of the parents, Caudill v. Foley, 21 S.W.3d 203, 213
(Tenn. Ct. App. 1999), or engage in a “best interests of the child” analysis. Rather, in the absence
of proof of a material change in the child’s circumstances, the trial court should simply decline to
change custody. Hoalcraft v. Smithson, 19 S.W.3d at 828.

         Custody and visitation decisions often hinge on subtle factors, including the parents’
demeanor and credibility during the divorce proceedings themselves. Adelsperger v. Adelsperger,
970 S.W.2d at 485. Accordingly, appellate courts are reluctant to second-guess a trial court’s
decisions. Trial courts must be permitted to exercise broad discretion in these matters, but they must
still be required to base their decisions on the evidence and upon the appropriate application of the
relevant legal principles. D v. K, 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995). Thus, we review
these decisions de novo on the record with a presumption that the trial court’s findings of fact are
correct unless the evidence preponderates otherwise. Nichols v. Nichols, 792 S.W.2d 713, 716
(Tenn. 1990); Swett v. Swett, No. M1998-00961-COA-R3-CV, 2002 WL 1389614, at *5 (Tenn. Ct.
App. June 27, 2002) (No Tenn. R. App. P. 11 application filed); Tenn. R. App. P. 13(d).

                                                 III.

        After hearing extensive testimony from both parents, a teacher, two co-workers of Ms.
Oliver, and the parties’ daughter, the trial court found that Ms. Oliver had actively and willfully
interfered with Dr. Oliver’s visitation. The court further found that Ms. Oliver had alienated the
parties’ daughter from Dr. Oliver. Without explaining specifically whether the alienation rose to the
level of a material change in circumstances or whether a change of custody would be in the child’s
best interests, the trial court declined to change custody and instead sought to remedy the alienating
effects of Ms. Oliver’s conduct by modifying the visitation agreement and by stressing that if Ms.
Oliver violated the new agreement then the trial court would award primary physical custody of the
parties’ child to Dr. Oliver.

       Dr. Oliver asserts that the trial court should have changed custody of the parties’ daughter
to him because the alienation of the child rose to the level of a material change in circumstances.
According to Dr. Oliver, a finding of a material change in circumstance is all that is necessary to
warrant a change of custody. Dr. Oliver perceives that the trial court’s disposition of the change of
custody question was the result of its desire to conclude the trial in a timely manner.


                                                 -4-
        We find sufficient evidence in the record to support the trial court’s determination that Ms.
Oliver set upon a course of conduct intended to alienate the parties’ daughter from Dr. Oliver. We
further find that the alienation sufficiently meets the three factors set out in Kendrick v. Shoemake
to constitute a material change of circumstances. The record reflects that the alienation occurred
after the entry of the order sought to be modified and that it was neither known nor reasonably
anticipated when the order was entered.

         We now turn to the trial court’s conclusion that Ms. Oliver’s conduct has undermined the
relationship between Dr. Oliver and the parties’ daughter. The trial court observed that the child
“is becoming a clone of the mother” and that the child is bitter and alienated as a result of Ms.
Oliver’s conduct. Taking the trial court’s finding of facts with a presumption of correctness, as we
must in the absence of a preponderance of evidence to the contrary, we find that the circumstances
of this case demonstrate a material change in both the circumstances of the parties’ daughter and Dr.
Oliver.4

         A finding of the existence of a material change of circumstances does not end the matter.
Tenn. Code Ann. § 36-6-106(a) (2001) also requires a determination that changing a child’s custody
is in the best interests of the child. Kendrick v. Shoemake, 90 S.W.3d at 570; see also Mayberry v.
Mayberry, No. M2002-00424-COA-R3-CV, 2003 WL 21392193, at *4 (Tenn. Ct. App. June 17,
2003) (No Tenn. R. App. P. 11 application filed); Turner v. Purvis, No. M2002-00023-COA-R3-CV,
2003 WL 1826223, at *6 (Tenn. Ct. App. Apr. 9, 2003) (No Tenn. R. App. P. 11 application filed);
Spatafore v. Spatafore, No. E2001-02459-COA-R3-CV, 2002 WL 31728879, at *3 (Tenn. Ct. App.
Dec. 5, 2002) (No Tenn. R. App. P. 11 application filed). Although Tenn. Code Ann. § 36-6-106(a)
lists multiple factors to consider in making this determination, the ultimate purpose of the analysis
is to promote the child’s best interests by placing the child in an environment that will best serve the
child’s physical and emotional needs. Parker v. Parker, 986 S.W.2d 557, 562 (Tenn. 1999). It
follows that the failure of the trial court to undergo a factor-by-factor analysis according to the statute
is not reversible error per se, as long as the trial court reached a result that is in the child’s best
interests. Mays v. Mays, No. E2001-02630-COA-R3-CV, 2002 WL 31640565, at *3 (Tenn. Ct. App.
Nov. 22, 2002) perm. app. denied (Tenn. May 5, 2003).

        The record reflects the alienation between Dr. Oliver and the parties’ daughter, as well as
other distasteful, if not deplorable, conduct by Ms. Oliver. The evidence casts serious doubt
concerning Ms. Oliver’s ability or inclination to perform her parenting responsibilities, including her
willingness to facilitate and encourage a close and continuing parent-child relationship between the
parties’ child and Dr. Oliver.5 However, this circumstance alone is not sufficient in this case to
require a finding that changing custody is currently in the child’s best interests.




        4
         A parent’s failure to adhere to the requirements of a parenting plan can be considered a material change in
circumstances. Tenn. Code Ann. § 36-6-101(a)(2)(B).

        5
            See Tenn. Code Ann. § 36-6-106(a)(10).

                                                        -5-
        The trial court properly took a broader view of the circumstances of this case. Although Dr.
Oliver asserts that Ms. Oliver’s inappropriate conduct requires a change of custody, changing
custody “should never be used to punish or reward the parents, but rather should promote [the
child’s] best interests.” Gaskill v. Gaskill, 936 S.W.2d at 629. Consequently, the rights, desires, and
interests of Dr. Oliver become secondary to the best interests of the parties’ child. Whitaker v.
Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). We hold that Dr. Oliver has not met his
burden of showing to the court how a change of custody is in the child’s best interests.

       The record contains no evidence regarding the effect on the parties’ daughter of being forced
to move in with Dr. Oliver. In addition, Dr. Oliver has not explained how he intended to address and
remediate the currently soured relationship between him and his daughter. He has not explained the
arrangements he has made for her care or the planned alterations in his life and schedule he is
prepared to make to take on the responsibility of being a custodial parent. Without this sort of
evidence, we, like the trial court, have no reliable way of assessing whether changing custody would
ultimately be in the child’s best interests.

         A change of custody is the most drastic remedy to enforcing visitation and must clearly be
in the best interests of the child. Consequently, it should only be used in extreme situations. Legal
and Mental Health Perspectives on Child Custody Law § 19.16, at 235. It is no surprise that most
states’ laws discourage judges from changing custody unless all other means have been exhausted.
Legal and Mental Health Perspectives on Child Custody Law § 20:5, at 246. Despite Ms. Oliver’s
inappropriate conduct, a change of custody should be used only as a last resort.

        In circumstances where one parent has purposely set out to alienate a child from the other
parent, professional assistance from a psychologist or psychiatrist may be required to limit the
damage and to prevent it from becoming impervious to improvement. This necessarily involves
counseling for the child, and sometimes, the parent to address the origins and history of the behavior.
 Requiring such counseling in this case would certainly be an appropriate and less drastic measure
than changing the current custody arrangements.

                                                 IV.

        We affirm the portion of the order denying Dr. Oliver’s change of custody and remand the
case to the trial court for further proceedings consistent with this opinion. We tax the costs of this
appeal in equal proportions to Elizabeth D. Oliver and Marc L. Oliver for which execution, if
necessary, may issue.


                                                       _____________________________
                                                       WILLIAM C. KOCH, JR., J.




                                                 -6-
