                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  September 6, 2002 Session

        DONNA MANCUSO-BERTONE v. MICHAEL E. BRASWELL

                       Appeal from the Circuit Court for Wilson County
                             No. 02-11490    Clara Byrd, Judge



                   No. M2002-00025-COA-R3-CV - Filed February 6, 2003


The mother of a fourteen year old male child appeals the action of the trial judge in denying her
Petition for a change of custody. The trial court found that no material change of circumstances had
been established by the evidence that would justify change of custody. We affirm the action of the
trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and
Thomas W. GRAHAM, SP . J., joined.

Jon S. Jablonski, Nashville, Tennessee, for the appellant, Donna Mancuso-Bertone.

Jessica Dawn Dugger, Lebanon, Tennessee, for the appellee, Michael A. Braswell.

                                            OPINION

        This divorce and custody litigation began in Wilson County, Tennessee, then continued in
the Court of Common Pleas of Northumberland County, Pennsylvania, and now continues in the
Circuit Court of Wilson County, Tennessee. From the beginning, the parties have been unable to
agree on anything with the result being that three separate trial courts have been compelled to spell
out, in meticulous detail, the custody and visitation rights and obligations of these parents.

         The parties are parents of Steven Braswell, now fourteen years of age, and were divorced by
Order of the Circuit Court of Williamson County, Tennessee in March 1992. On August 3, 1993,
following a Petition by Donna Braswell (Rogers) to move to Pennsylvania with Steven Braswell and
a Counter-Petition by Michael Allen Braswell for change of custody, the Circuit Court of
Williamson County, Tennessee, adopted an agreement of the parties whereby the mother retained
custody of Steven and was allowed to remove the child to Pennsylvania subject to extensive
visitation privileges spelled out in the Order. This Order was not entered of record until December
10, 1993.
        Thereafter, extensive litigation between the parties occurred before the Court of Common
Pleas of Northumberland County, Pennsylvania, resulting in a final Order of that court entered July
5, 2000, by Judge Barry F. Feudale, Senior Judge, together with a Supplemental Order of November
29, 2000, transferring the case to Wilson County, Tennessee. These two orders provide:

                                   FINAL ORDER OF COURT

       AND NOW, this 5th day of July, 2000, after hearing the testimony provided and in
consideration of the stipulation that Father would have primary physical custody of Steven M.
Braswell, born January 29, 1988, we enter the following Final and Comprehensive Custody Order
of Court:

       1.      The Father, Michael Braswell, shall have primary physical custody of
               Steven, with the Mother, Donna Mancuso, having partial custody as
               outline in the following paragraphs:

       2.      Exclusive of the Christmas and spring break, and summer school
               recess, partial custody shall be given to the Mother one full weekend
               the second weekend of every month. Steven shall be made available
               to be placed on the first available flight on Fridays from 2:00 p.m.
               and shall be returned on the last arrival at the airport no later than
               9:00 p.m. In the event there is a school holiday on the Friday or
               Monday of the assigned weekend Mother will be allowed to have
               extended weekend partial custody on said weekend with the same
               departure and return times being applicable.

       3.      Mother shall be responsible for the costs of said airline transportation
               and Father shall insure that Steven is made available for said flights.

       4.      Mother shall have Steven during the summer school recess no later
               than five (5) days after school is completed and shall return Steven to
               his Father no later than seven (7) days prior to school resuming.
               Father and/or the school district that Steven is attending shall provide
               Mother with a copy of the school calendar as soon as such is
               available. The costs of the flight during the summer school recess
               shall be borne by the Mother for Steven’s flight to Pennsylvania and
               by Father for the return trip with each parent being responsible for
               making the respective flight arrangements.

       5.      Mother shall have partial custody of Steven every Christmas from
               either December 20-26 or December 26-31, with Mother having the
               Christmas Eve period on odd years. Costs of the flights and



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      arrangements will be shared by the parents as set forth in paragraph
      four (4).

6.    Mother shall have the right to spend five full days with Steven during
      the Easter/spring break period of school recess. Said is contingent on
      Mother traveling to Tennessee to spend time with Steven although
      Mother may make special trips with Steven (i.e. travel to Florida,
      Disney Word etc.) Costs of same will be borne by Mother.

7.    Mother shall be allowed regular telephone contact with Steven which
      expense shall be her responsibility. Father shall be responsible for the
      cost of initiating and paying for one telephone call a week with said
      call not to exceed five (5) minutes. Said call shall be initiated every
      Tuesday of each week except during Mother’s periods of partial
      custody. Also Father shall be responsible for facilitating internet E-
      mail access in his home so Mother and son can communicate on a
      regular basis.

8.     Father and Mother shall have shared legal custody which means they
       each shall communicate regarding major decisions involving
       education, medical and religious issues. Also, such shared legal
       custody means that educational and medical service providers should
       provide access to both parents to documents and information
       regarding Steven in accordance with their own reasonable policies
       and procedures. Both parents shall advise the other parent when the
       child is scheduled for any pre-arranged medical service and if such is
       an emergency as soon as practicable thereafter.

9.     Neither parent shall make derogatory comments about the other in the
       presence of the child and shall instruct others to refrain from making
       such comments in the child’s presence.

10.    This is a Final Custody Order of Court and will be subject to review
       in accordance with the applicable state statutory and case law and the
       uniform Child Custody Jurisdiction Act.

                                     ORDER

       AND NOW, this 29th day of November, 2000, after Record Argument held
on this date, the Petition of the mother Donna Mancuso, for Recusal, a second
request for a Stay of Proceedings, and Request for Rehearing, which was filed
November 28, 2000 is hereby DENIED.



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             IT IS FURTHER ORDERED that Donna Mancuso’s Emergency Petition for
       Modification of Custody and Appointment of a Guardian Ad Litem is DENIED.

              The Order of Court dated December 5, 2000 scheduling a Hearing Officer’s
       Conference on Donna Mancuso’s Petition for Modification of Custody is
       VACATED. Pursuant to 23 Pa.C.S.A. § 5348, the father Michael Braswell’s request
       this Court relinquish jurisdiction to Tennessee is hereby GRANTED.

               The Northumberland County Court Administrator shall transmit this and the
       Order of July 5, 2000, as well as Defendant’s Hearing Memorandum,1 which sets
       forth the case’s Procedural History, to the appropriate Court of Jurisdiction in
       Hermitage, Tennessee.


        On May 16, 2001, Donna Mancuso-Bertone, “Mother,” filed a Petition against Michael A.
Braswell, “Father,” in the Circuit Court for Wilson County, Tennessee, making extensive factual
allegations and seeking a change of custody of Steven together with attorney’s fees and costs. On
June 27, 2001, Father filed a fifteen page Answer and Counter-Petition denying essentially the
factual allegations of the Petition and asserting that Mother was in contempt of the July 5 Order of
the Court of Common Pleas of Northumberland County, Pennsylvania.

      The factual assertions of this May 16, 2001 Petition, the denials of such assertions in the June
27 Answer of the Father, together with the factual allegations of his simultaneous Counter-Petition


       1

       Simp ly stated, the child has lived Primarily with his father in Tennessee since our Order of Court dated
       June 11, 1999. On July 5, 2000, we entered an Order of Court, which was reached pursuant to a
       Stipulation of the parties that the father would have Primary Custody of Steven Braswell (d.o.b.
       1/29/88). Mo ther now alleges she never agreed to any such Stipulation. M other, whose cred ibility
       and undue influenc e on her son have b een so rely tested during these P roceedings (See transcript of
       Proceedings held on June 29, 2000 and February 17, 2000) will say or do anything to put the child’s
       father, this Court, and today even her former counsel in a bad light. Today she boldly asserted her last
       of 4 or 5 attorneys since 1997 was ineffective and blatantly denies the July 5, 2000 Order, as to father
       having primary custody, was consensual. Aside from the fact the O rder reflects the Ord er was “in
       consideration of the Stipulation that the father would have primary physical custody of Steven” we
       reference the Transcript of June 29, 2000 pg. 27, L. 10-20, pg. 28, L. 1-15, pg. 32, L. 20-24 and pg.
       64, L. 20-24 (“You[r] Honor, my client today made a significant concession declining to pursue her
       Primary Custody”). Despite clear and unequivocal evid ence that reflects both knowledge and
       voluntariness of the Stipulation the mother today boldly asserts the contra ry. As to her assertions
       about this Court and Request for Recusal as set forth in her Motion, as we stated at the hearing, the
       transfer to Tennessee will de facto accomplish the same. In any event, there are no exigent
       circumstances or any other assertions set forth in mother’s req uests to M odify, that justify this Court’s
       intervention and we are satisfied that the Courts in Tennessee, where the child has lived and attended
       school for the last 1 ½ years and where mother, father and child lived for several years (and where the
       Tennessee Co urt as rece ntly as August 19 93 entered a Custody O rder) are the more app ropriate and
       convenient forum.



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and the denial by the Mother of such factual allegations provided the issues upon which the August
7, 2001 hearing was held before the Circuit Court of Wilson County, Tennessee. On September 18,
2001, the Circuit Court of Wilson County, Tennessee entered an Order denying the Petition for
Change of Custody, and, after the subsequent denial of Her Motion to Alter or Amend, Mother
timely appealed. Appellant/Mother asserts on appeal that the evidence preponderates against the
judgment of the trial court as to change of circumstances and that the trial court erred in modifying
the Pennsylvania Order relative to visitation.

        The July 5, 2000 judgment of the Court of Common Pleas of Northumberland County,
Pennsylvania is res judicata as to every fact actually litigated or which might have been litigated
prior to its entry.

              The doctrine of res judicata bars a second suit between the same parties on
       the same cause of action with respect to all issues which were or could have been
       brought in the former suit. Massengill v. Scott, Tenn.1987, 738 S.W.2d 629; Stacks
       v. Saunders, Tenn.App.1990, 812 S.W.2d 587.
              Judgment in a former action concludes not only facts actually litigated, but
       facts which might have been litigated. Gregory v. Gregory, Tenn.App.1990, 803
       S.W.2d 242.

Wall v. Wall, 907 S.W.2d 829, 832 (Tenn. Ct. App. 1995).

       This Court has held, relying on a decision of the Maryland Court of Appeals, that:

               The custody of children should not be disturbed unless there is some strong
       reason affecting the welfare of the child. To justify a change of custody, the change
       in conditions must have occurred which affects the welfare of the child and not that
       of the parents. The reason for this rule is that the stability provided by the
       continuation of a successful relationship with a parent who has been in day to day
       contact with a child generally far outweighs any alleged advantage which might
       accrue to the child as a result of custodial change. In short, when all goes well with
       children, stability, not change, is in their best interest.

Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn. Ct. App. 1991) (citing Sartoph v. Sartoph, 354 A.2d
467, 473 (Md. Ct. App. 1976)).

       Before a trial court is justified in changing custody of a child, it must be satisfied that such
change is required in order to prevent substantial harm to the child.

               When two people join in conceiving a child, they select that child’s natural
       parents. When they decide to separate and divorce, they give up the privilege of
       jointly rearing the child, and the divorce court must decide which parent will have
       primary responsibility for rearing the child. This decision of the Court is not


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        changeable except for “change of circumstances” which is defined as that which
        requires a change to prevent substantial harm to the child. Custody is not changed
        for the welfare or pleasure of either parent or to punish either parent, but to preserve
        the welfare of the child. Custody is not changed because one parent is able to furnish
        a more commodious or pleasant environment than the other, but where continuation
        of the adjudicated custody will substantially harm the child. Contreras v. Ward,
        Tenn.App.1991, 831 S.W.2d 288.

Wall, 907 S.W.2d at 834.

         This case revolves almost exclusively around disputed issues of fact. It is reviewed on
appeal, de novo, with the findings of fact made by the trial court being presumed to be correct unless
the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Hass v. Knighton, 676
S.W.2d 554 (Tenn. 1984). It is well settled that in cases tried without the intervention of a jury, the
judgment of the trial judge as to the credibility of witnesses is accorded great weight on appeal.
After all, the trial judge has the opportunity to observe the manner and demeanor of witnesses as they
testify, while this Court is limited to a written transcript of the testimony. Koch v. Koch, 874 S.W.2d
571 (Tenn. Ct. App. 1993); Doe A. v. Coffee County Bd. of Educ., 925 S.W.2d 534 (Tenn. Ct. App.
1996).

         Judged by these standards, the evidence offered by Appellant in support of her petition to
change custody falls far short of that necessary to overturn the judgment of the trial court. Practically
nothing of significance is disclosed by the record to have occurred since July 5, 2000, which could
form a basis for change of custody. Appellant claims that Steven’s stepbrother has an out of wedlock
child that stays in the home of Appellee. She further claims that Mt. Juliet Christian Academy,
where Steven has attended for two years, is an inadequate school; that Steven has a learning
disability and is afflicted with Attention Deficit Hyperactive Disorder; that he is allowed by Appellee
to play in the school band and to play football; that Appellee has to help him with his homework.
Appellee denies that Steven’s alleged A.D.H.D. is not being adequately treated; denies that Mt. Juliet
Christian Academy is an inferior school; admits to the band and football activities; and admits that
he helps Steven with his homework. The trial court heard extensive evidence on these factual issues,
just as Judge Barry F. Feudale had done prior to the July 5, 2000 Order in Pennsylvania.

        In Wall, after review of the record, this Court held:

               After hearing conflicting testimony and resolving issues of credibility, the
        Trial Judge has determined that continuance of court-ordered custody will not
        substantially harm the child. The evidence does not preponderate against this
        conclusion, and indeed it supports this conclusion.

Wall, 907 S.W.2d at 834. Exactly the same is true in this case and we will not disturb the judgment
of the trial court.



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         Appellant complains that the trial court improperly altered the Pennsylvania Order relative
to visitation. She is hardly in a position to complain of this change, as the adjustments made by the
trial judge in the visitation schedule are within the rather broad scope of the issues drawn in the
Petition for Change of Custody and the Cross-Petition filed by Appellee. Certainly the evidence
does not preponderate against the action of the trial court.

       The judgment of the trial court is in all respects affirmed.




                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




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