       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                   F L E
                                                     I D
                                                    O c to b e r 1 6 , 1 9 9 8
MARY P. SOLIMA,               )
                              )                    C e c il W . C r o w s o n
      Plaintiff/Appellee,     )    Williamson Chanceryl l a t e C o u r t
                                                A p p e
                              )    No. 21880-R2         C le r k
VS.                           )
                              )    Appeal No.
DAVID J. SOLIMA,              )    01A01-9701-CH-00012
                              )
      Defendant/Appellant.    )




  APPEAL FROM THE CHANCERY COURT FOR WILLIAMSON COUNTY
                  AT FRANKLIN, TENNESSEE

              THE HONORABLE CORNELIA A. CLARK, JUDGE




For Plaintiff/Appellee:            For Defendant/Appellant:

Edward P. Silva                    Mike W. Binkley
Hartzog, Silva & Davies            Nashville, Tennessee
Franklin, Tennessee




                   AFFIRMED AND REMANDED




                                   WILLIAM C. KOCH, JR., JUDGE
                                 OPINION

      This appeal involves a bitter change of custody proceeding. Two years after
the divorce, the father filed a petition in the Chancery Court for Williamson County
seeking custody of three of the parties’ five children on the ground that the mother
was progressively alienating the children from him. The mother counterclaimed for
increased child support. Following a bench trial, the trial court declined to change
the custody of the children and increased the father’s child support. The father asserts
on this appeal that the trial court erred by refusing to find that the circumstances had
changed sufficiently to warrant a change in the custody of the parties’ three youngest
children.
                                          I.


      Mary P. Solima and David J. Solima moved to Tennessee in 1989 when Mr.
Solima went to work as an engineer for Saturn Corporation. They had four children
at the time, and their fifth child was born shortly after they arrived in Tennessee.
Their marriage began to falter several years later, and Ms. Solima filed for divorce
in February 1992. She withdrew her divorce complaint in December 1992 because
the parties were seeking marital counseling but filed a second divorce complaint in
January 1993.


      The divorce proceedings were particularly bitter. The parties’ open hostility
toward each other affected their children’s behavior and performance in school and
forced the children into counseling. On May 11, 1994, the Chancery Court for
Williamson County awarded Ms. Solima the divorce and sole custody of the five
children who were then between four and thirteen years of age. The trial court also
granted Mr. Solima specific visitation rights, including visitation every other
weekend, holiday visitation, and extended visitation during the summer. Mr. Solima
was ordered pay $1,615 per month and one-half of any bonus he received as child
support and to provide appropriate insurance coverage for the children.


      The parties’ hostility did not abate following the divorce. Since they could not
communicate with each other directly, they communicated through their lawyers.
Ms. Solima continued to denigrate Mr. Solima in front of the children and declined
to keep Mr. Solima informed about the children’s activities. Mr. Solima’s exercise
of his visitation rights provided a recurring flashpoint between the parties, and their

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conduct intensified after Mr. Solima’s female companion moved in with him in
August 1994.


      By Thanksgiving 1994, the parties’ two oldest children, who were then thirteen
and twelve years old, were resisting visitation with Mr. Solima. Mr. Solima’s
relationship with his two oldest children finally disintegrated during their Christmas
1994 visitation. Mr. Solima had planned to take all five of his children to St. Louis
to visit their paternal grandparents during this extended visitation. However,
following a violent confrontation with his oldest son and daughter, he returned these
two children to Ms. Solima early and took the remaining three children to St. Louis.


      Mr. Solima and his family severed all communications with his two oldest
children following the Christmas 1994 holidays. In January 1995, his lawyer notified
Ms. Solima’s lawyer that Mr. Solima intended to continue visitations with only his
three youngest children. After 1994, Mr. Solima and his family continued to lavish
attention and presents on his three youngest children but pointedly declined to
remember his two oldest children on their birthdays or at Christmas. Likewise, the
two oldest children declined to initiate any sort of communication with their father
on his birthday, Father’s Day, or during any other holiday.


      On April 24, 1996, Mr. Solima filed a petition in the Chancery Court for
Williamson County, seeking custody of the parties’ three youngest children and child
support. He alleged that Ms. Solima had alienated the two oldest children from him
and that she was progressively alienating the three younger children from him too.
He also alleged that Ms. Solima’s actions were harming the children emotionally and
psychologically and that it was in their best interest that custody be changed. Ms.
Solima answered the petition and counterclaimed for an increase in child support on
grounds that Mr. Solima was not exercising visitation with the two oldest children as
set in the divorce decree and contemplated under the child support guidelines.


      The trial court conducted a bench trial on June 26, July 29, and August 17,
1996. After considering the evidence from both sides, the trial court held that there
had been no material change of circumstances warranting a change in the custody
arrangement for the three youngest children. The trial court also held that Mr. Solima
was no longer exercising visitation with the two oldest children and, for that reason,
that his child support obligation should be increased from $1,615 to $1,850 per

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month, in addition to one-half of the net amount of all bonuses he received. Mr.
Solima perfected this appeal


                                        II.


      Mr. Solima’s sole issue on appeal relates to the trial court’s refusal to award
him sole custody of the parties’ three youngest children. He asserts that the weight
of the evidence demonstrated that substantial and material changes of circumstances
had occurred since the original custody decree and that these changes warranted
changing the custody of his three youngest children. In considering these arguments,
we must review the record de novo and must give great weight to the factual
determinations made by the trial court who both heard and observed the witnesses.
See Gotwald v. Gotwald, 768 S.W.2d 689, 695-97 (Tenn. Ct. App. 1988); Scarbrough
v. Scarbrough, 752 S.W.2d 94, 96 (Tenn. Ct. App. 1988).


      Custody and visitation decisions, once made and implemented, are res judicata
upon the facts in existence or reasonably foreseeable when the decision was made.
See Young v. Smith, 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Brumit v. Brumit,
948 S.W.2d 739, 740 (Tenn. Ct. App. 1997); In re Parsons, 914 S.W.2d 889, 893
(Tenn. Ct. App. 1995). They may, however, be altered if intervening, material
changes in the child’s circumstances require modifying an existing custody or
visitation arrangement. Accordingly, Tenn. Code Ann. § 36-6-101(a)(1) (Supp.
1998) empowers the courts to change custody “as the exigencies of the case may
require.”


      There are no hard and fast rules for determining when a child’s circumstances
have changed sufficiently to warrant a change of his or her custody or visitation
arrangement. See Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. Ct. App. 1983).
The party seeking to modify an existing custody or visitation arrangement has the
burden of proof. See Blair v. Badenhope, 940 S.W.2d 575, 576 (Tenn. Ct. App.
1996). The courts will change a custody or visitation arrangement if the party
seeking the change proves (1) that the child’s circumstances have changed materially
in a way that could not reasonably have been foreseen at the time of the original
custody decision, see Smith v. Haase, 521 S.W.2d 49, 50 (Tenn. 1975); McDaniel v.
McDaniel, 743 S.W.2d 167, 169 (Tenn. Ct. App. 1987), and (2) that the child’s
interests will be better served by changing the existing custody or visitation

                                        -4-
arrangement. See Hall v. Hall, No. 01A01-9310-PB-00465, 1995 WL 316255, at *2
(Tenn. Ct. App. May 25, 1995) (No Tenn. R. App. P. 11 application filed).


      Custody and visitation arrangements should promote the development of a
healthy relationship between children and both their parents. See Aaby v. Strange,
924 S.W.2d 623, 629 (Tenn.1996); Taylor v. Taylor, 849 S.W.2d 319, 331-32
(Tenn.1993); Varley v. Varley, 934 S.W.2d 659, 668 (Tenn. Ct. App. 1996). Mr.
Solima’s argument is that the present custody relationship, if permitted to continue,
will enable Ms. Solima to destroy his relationship with his three youngest children,
just as she has already successfully destroyed his relationship with his two oldest
children. Like the trial court, we have concluded that this argument embodies an
oversimplified view of the complex emotional dynamics in this family for which both
parents must accept their share of responsibility.


      Mr. Solima’s relationships with his five children has been far from ideal ever
since 1994. Part of this is, no doubt, due to Ms. Solima’s efforts to undermine these
relationships, but part is also due to Mr. Solima’s intransigence and almost juvenile
petulance about his two oldest children. Rather than seeking to re-establish his
relationship with these two children, he and his family seek to discard them and to
settle for a relationship with the remaining three children.


      The trial court found that during and immediately after the 1994 divorce, Ms.
Solima was obstructing Mr. Solima’s visitation and otherwise undermining Mr.
Solima’s relationship with his children. However, the trial court also concluded that
Ms. Solima had tempered her behavior and that the parties’ circumstances at the time
of the 1996 hearings were “much better for the last 12 months than they have been
for the time prior to that.” While Ms. Solima may have abused her position as
custodial parent in the past, the weight of the evidence shows that she is now abiding
by the terms of the divorce decree. Accordingly, we concur with the trial court’s
conclusion that nothing about Ms. Solima’s present behavior rises to the level of a
material change in circumstances warranting a change is custody of the parties’ three
youngest children.


      At the conclusion of the last hearing, the trial court admonished the parties to
communicate directly to each other without using their lawyers as intermediaries.
The trial court also admonished Mr. Solima to attempt to re-establish his relationship

                                         -5-
with his two oldest children and warned Ms. Solima that she must encourage the
children to love and to cooperate with Mr. Solima. While we concur with the trial
court’s observation that courts cannot control the hearts and minds of divorced
parties, we agree that both parties must continue to work to repair the damage to their
children caused by their discord and mutual animosity.


                                         III.


      We affirm the denial of Mr. Solima’s petition to change custody and remand
the case to the trial court for whatever further proceedings may be required. We also
deny Ms. Solima’s request for the payment of her legal expenses incurred on this
appeal. We tax the costs of this appeal to David J. Solima and his surety for which
execution, if necessary, may issue.



                                        ____________________________
                                        WILLIAM C. KOCH, JR., JUDGE


CONCUR:


___________________________________
HENRY F. TODD,
PRESIDING JUDGE, M.S.


_________________________________
WILLIAM B. CAIN, JUDGE




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