SHANNON RENEE THOMPSON, )
                         )
    Plaintiff/Appellee,  )
                         )
                                  Appeal No.  FILED
                                  01-A-01-9712-CV-00695
v.                       )                     October 27, 1998
                         )        Sumner Circuit
BRAD KENT THOMPSON,      )        No. 13822-C Cecil W. Crowson
                         )                   Appellate Court Clerk
    Defendant/Appellant. )
                         )


             COURT OF APPEALS OF TENNESSEE


   APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY

                 AT GALLATIN, TENNESSEE


         THE HONORABLE THOMAS GOODALL, JUDGE




DENNIS W. POWERS
McClellan, Powers, Ehmling & Dix
116 Public Square
Gallatin, Tennessee 37066
      ATTORNEY FOR PLAINTIFF/APPELLEE


F. DULIN KELLY
ANDY L. ALLMAN
Kelly & Kelly
629 East Main Street
Hendersonville, Tennessee 37075
      ATTORNEYS FOR DEFENDANT/APPELLANT




                   REVERSED IN PART,
                    AND REMANDED




                                   WILLIAM B. CAIN, JUDGE
                                OPINION
          The parties are the parents of two minor children whose custody is at
issue in this post-divorce proceeding. The trial court modified the joint legal and
physical custody arrangement delineated in the parties' Marital Dissolution
Agreement resulting in the Mother being awarded primary care and control of the
children. The Father now appeals the court's decision to modify custody as well
as its decision to award the Mother part of her attorney fees. We reverse the
decision of the court below both with regard to custody and attorney fees.
Furthermore, we remand to the trial court the issue of whether the child support
paid to the Mother need be increased.


                I. FACTS AND PROCEDURAL HISTORY


          Shannon Renee Gupton Thompson ("the Mother") and Barry Kent
Thompson ("the Father") were divorced by final decree entered July 18, 1995.
The final decree incorporated a marital dissolution agreement (MDA) which
provided that the parties "share joint legal and physical custody of their minor
children," Zachary (born October 15, 1991) and Whitney (born September 7,
1993), with neither party being designated as the primary legal custodian.
Pursuant to the MDA, the Father had physical custody of the children every other
week from Wednesday at 5:00 p.m. until Sunday at 6:00 p.m. and the Mother had
physical custody from 6:00 p.m. on Sunday until 5:00 p.m. on Wednesday. On
the alternating weeks, the Father would have the children from Wednesday at
5:00 p.m. until Friday morning when he returned them to day care and the
Mother would have them from Friday afternoon when she picked them up from
day care until Wednesday at 5:00 p.m. The parties alternated major holidays
with their children and each had two full weeks free of the other's custody in the
summers.
           Regarding child support, the MDA provided that the Father was to pay
$460 per month to the Mother and that the parties "would review such child
support payment periodically and make adjustments as they agree need to be
made." The Father was to maintain health insurance on the children and the
parties were to each pay half of the reasonable medical expenses and deductibles.

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At the time of the September 1997 hearing, the Father continued to live in the
marital residence, and the Mother lived approximately one mile away. By this
time, the parties had been functioning under the custody arrangement outlined
in the MDA for over two years.


         The problems in this case seemed to have begun when, by letter dated
October 4, 1996, the Mother requested that the Father increase child support to
$730 per month. The Father stated that when he asked what the increase was for,
the Mother responded that it was for "toilet paper and groceries." After the
Father denied the Mother's requests for increased support, the Mother filed her
"Petition for an Increase of Child Support and Amended Visitation Schedule" on
November 5, 1996. The court suggested in a subsequent order that the Mother
amend her Petition in order to make allegations with regard to the need for a
"primary custodial parent" as there was no such designation in the final decree.


          The Mother filed an Amended Motion on August 11, 1997 asking the
court to order that Zachary be enrolled in the elementary school zoned for the
Mother's residence. On August 26, 1997, the court ordered instead that Zachary
be enrolled in the school that was zoned for the Father's residence. On
September 23, 1997, the Mother again amended her petition as suggested by the
Court asking the court to award her primary physical custody of the children and
to establish a specific drop-off and pick-up time for visitation.


          At the September 30, 1997 hearing, the Mother testified that she made
$1710 per month working at the Tennessee School Board Association. She
testified that the children were in day care at La Petite Academy which costs
$543.40 per month and for which she was financially responsible. The Father
testified that he owned a business. He agreed that he had paid the Mother $460
per month since the time of the divorce. He said that in addition, he carried the
children's health insurance. He affirmed that, at the time the Mother requested
an increase in support, he had $43,000 in savings and that at the time of the
hearing, he had at least $20,000.


          The Mother stated that she could only think of one substantial change

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in circumstances since 1995 when the parties agreed to share custody which was
that Zachary, her oldest child, had started school. When the Mother was
questioned regarding her concern about the feasibility of joint custody with her
son in school, she gave the following testimony:
          I just have a fear for when he gets a little older that -- I mean,
          I can see him, "Well, no, Teacher, I don't have my
          homework. I was at my dad's last night and I was at my
          mom' this night, so it's at my dad's, and I don't have my book
          because I left it here." I can see something like that
          happening, and I just think it is a real strain on him to be in
          one place one night or two nights and then another place two
          other nights.

The Mother did confirm that she and the Father live a mile apart and that
Zachary's school is a little more than a mile from her residence and a half of mile
from the Father's residence. She testified that the parties had been able to work
out holiday visitation without problems under the prior custody arrangement.
She said that she could only remember once in the past where the parties had re-
arranged their scheduled time with the children.


          When asked why she had asked for primary care of the children, the
Mother replied that "there is nothing like the nurturing of the mother . . . and
[she] just fe[lt] that [she was] the one that, the majority of the time, takes them
to the doctor, and [she] cook[s] for them when [she] ha[s] them, and [she] just
feel[s] that [she] can take care of them like a mother should." The Mother did
agree that the Father is a good parent and that he had done a good job providing
for the children both financially and emotionally.


          When the Father was asked what problems they had experienced with
the current custody arrangement, he made the following statement: "I don't see
any problems at all. It's going very smoothly. The children know, you know,
when, you know, my daddy comes and picks me up. They know exactly who is
coming to get them, and you know, it goes over fine." Later, in response to a
question from the bench, the Father stated that the actual weekly exchange of the
children was also working out well. However, he had, at an earlier deposition,
given several reasons why the Mother should not be the primary care giver. He
had stated that he felt that the children were in a more stable environment with

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him and at his home, that the Mother had moved three times since the divorce,
and that the Mother did not give adequate attention to the children's extra-
curricular activities.


          In its final order, the trial court found that there had been a sufficient
change of circumstances since the entry of the final decree to modify custody
such that, while the parties shall retain joint custody, the Mother is to have
primary care and control of the children. The Court's order awarded the Father
visitation every other weekend and provided for nightly phone visitation. Based
upon the Father's 1996 tax return showing income of $85,000 plus additional
income by way of depreciation deductions, the court set child support at $1,492
per month. The court stated its finding that, at the time the Mother made the
request for additional child support, the Father had $40,000 in savings.
However, it was the court's position that based on the shared custody
arrangement at that time, the child support payments need not be retroactive.
Rather, they should begin on November 1, 1997. Furthermore, the court found
that since the Father had in excess of $20,000 in the bank at the time of the
hearing, the Mother should not be responsible for all of her attorney fees. Thus,
the court ordered the Father to pay $3000 of the attorney fees incurred by the
Mother.


                         II. STANDARD OF REVIEW


          Appellate review of custody cases is de novo upon the record of the
trial court, accompanied by a presumption of the correctness of the finding,
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d);
Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); Nichols v. Nichols, 792
S.W.2d 713, 716 (Tenn. 1990). In cases where the issue is modification of
custody, the burden is on the non-custodial parent to prove changed
circumstances. Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App.
1991).


                                III. CUSTODY



                                        -5-
           On appeal, the Father first asserts that the trial court erred in finding
that there was a material change in circumstances warranting a change of
custody. Even if there were a material change, it is the Father's position that he
is the proper parent to have primary care and control of the children. Because we
agree with the Father that there was no change of circumstances warranting a
change of custody, we find it unnecessary to address the question of which
parent is more fit.


           The law is well settled that "where a decree has been entered awarding
custody of children, that decree is res adjudicata [sic] 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 in custody." Nichols, 792 S.W.2d at 715-16 (citing Dodd
v. Dodd, 737 S.W.2d 286, 290 (Tenn. Ct. App.1987)). This court has discussed
"changed circumstances" as follows:
           This decision [regarding custody] is not 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.

Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995).


           The statutory standard for modifying child custody is embodied in
section 36-6-101 of the Tennessee Code and provides for "modification as the
exigencies of the case may require."           Tenn. Code Ann. § 36-6-101(a)
(Supp.1998). Our supreme court has defined "exigencies" under the statute as
follows:
           facts and conditions which have emerged since the decree,
           new facts and changed conditions which were not determined
           and could not be anticipated by the decree; and that the
           decree is final and conclusive upon all the facts and
           conditions which existed and upon which the decree was
           made.



                                         -6-
Smith v. Haase, 521 S.W.2d 49, 50 (Tenn. 1975); see also McDaniel v.
McDaniel, 743 S.W.2d 167, 168 (Tenn. Ct. App. 1987). In other words, as
articulated by this court in the case of a party's attempt to modify an alimony
agreement, "[c]hanges in circumstances are not material if such changes were
contemplated by the parties at the time they entered into the alimony and support
agreement." Seal v. Seal, 802 S.W.2d 617, 620 (Tenn. Ct. App. 1990).


         To reiterate, the trial court found that there has been a "sufficient
change of circumstances" and modified custody such that, while the parties
retained joint custody, the Mother was awarded primary care and control of the
minor children. After a careful review of the record, we find that the record in
this case does not support a conclusion that there has been a change of
circumstances which warrants the change of physical custody of the children.
At the hearing, the Mother testified that she knew of only one changed
circumstance which was that the oldest child Zachary had started school. While
the Mother speculated that this might in the future pose a logistical problem for
the child regarding his ability to keep up with his books and homework, there
was neither allegation nor proof that the child was having problems with school
due to the custody arrangement. Indeed, the evidence was that Zachary's school
was just over a mile from the Mother's residence and a half of mile from the
Father's. Moreover, at the time that they entered the joint physical custody
agreement, the parties certainly contemplated the fact that Zachary would start
school when he reached the appropriate age, thereby precluding this change of
circumstance from, in and of itself, justifying a change of custody. See Smith v.
Haase, 521 S.W.2d at 50; Seal, 802 S.W.2d at 620.


         Our courts have held that the mere fact that joint custody is not working
and is adversely affecting children may be a change of circumstance which
justifies modifying custody. See, e.g., Rubin v. Kirshner, 948 S.W.2d 742, 745
(Tenn. Ct. App. 1997). However, the facts in this case simply do no show that
the joint custody agreement was not working for these parties. Both parties
testified that there have been few problems with the joint physical custody
arrangement including exchanging the children from one home to the other and
scheduling holiday visitation. The Mother remembered only one time in which

                                       -7-
the parties had needed to re-arrange the custody schedule.            The Father
commented that the children were well-adjusted to the arrangement and always
knew which parent was coming to pick them up from day care.


         It may be the better practice to specifically provide in an MDA for a
primary physical custodial parent. Such was not done in this case and by
approving the MDA in the Final Decree of Divorce, the trial court approved the
pure joint custody arrangement.


         The Mother asserts that since the trial court's order retained joint legal
custody, the court did not actually modify custody in this case. The Mother
claims she already had more responsibility for the children under the MDA and
thus the court's award to her of primary care of the children was not a material
change. Custody has both a legal and a physical aspect. See Ford v. Ford, No.
CA 1123, 1987 WL 28394 (Tenn. Ct. App. 1987) (distinguishing between
physical and legal custody in a case where the appellant only appealed the issue
of physical custody). When section 36-6-101(a)(1) of the code provides for
"modification [of a custody decree] as the exigencies of the case may require,"
it is referring to the preceding statutory language indicating a decree reflecting
the court's award of "the care, custody and control" of minor children. Tenn.
Code Ann. § 36-6-101(a)(1) (Supp. 1998). It is indisputable that the arrangement
for physical custody or "care" of the children to which the parties had agreed in
their MDA was greatly altered by the court's order. The Father went from
spending almost half of his time with the children to spending every other
weekend with them. We therefore reject the Mother's contention that custody
was not modified by the trial court's final order.
          In conclusion, we find that the trial court's order modified the custody
arrangement to which the parties had agreed in their MDA. We hold that the
evidence preponderates against a finding that, since the time that the parties
entered their agreement, circumstances have changed such that custody need be
modified to prevent substantial harm to the children. Since the proof was that the
parties' prior custody arrangement was working well, we reinstate the custody
arrangement as set out in the MDA and incorporated by the final decree.



                                       -8-
                            IV. ATTORNEY FEES


          Lastly we turn to the trial court's award of attorney fees. As stated,
following the court's assertion that it found that the Father had in excess of
$20,000 in the bank at the time of the hearing, it concluded that the Mother
should not be responsible for all of her attorney fees. The court then ordered the
Father to pay $3000 of the Mother's attorney fees.


          Tennessee Code Annotated § 36-5-103 governs the award of attorney
fees in cases involving alimony, child support and custody. That statute provides
as follows:
          The plaintiff spouse may recover from the defendant spouse,
          and the spouse or other person to whom the custody of the
          child, or children, is awarded may recover from the other
          spouse reasonable attorney fees incurred in enforcing any
          decree for alimony and/or child support, or in regard to any
          suit or action concerning the adjudication of the custody or
          the change of custody of any child, or children, of the parties,
          both upon the original divorce hearing and at any subsequent
          hearing, which fees may be fixed and allowed by the court,
          before whom such action or proceeding is pending, in the
          discretion of such court.

Tenn. Code Ann. § 36-5-103(c) (Supp. 1998). The statute by its language limits
the trial court's discretion to award attorney fees to "the spouse . . . to whom the
custody of the child, or children, is awarded." Id. Indeed, this court has stated
that "[t]his statute authorizes an award of attorney's fees to a party who
successfully pursues or defends a change of custody petition." Bjork v. Bjork,
No. 01A01-9702-CV-00087, 1997 WL 653917, at *7 (Tenn. Ct. App. 1997)
(citing D v. K, 917 S.W.2d 682, 686 (Tenn. Ct. App. 1995)). Other opinions
have held that section 36-5-103 entitles only the "prevailing" party to attorney
fees. Brewer v. Weibel, Nos. 02A01-9703-CH-00067, D14591-1, 1998 WL
158779, at *2 (Tenn. Ct. App. 1998) (reversing the trial court's award of attorney
fees to the mother in a case where the father had successfully sought a change of
custody from the mother to him); see also Wallace v. Wallace, No.
02A01-9702-CH-00029, 1998 WL 74256, at *6-7 (Tenn. Ct. App. 1998).


          Based on the statute itself and the foregoing case law and based on this

                                        -9-
court's conclusion that there were not changed circumstances to support a change
of custody, we find that section 36-5-103(c) does not authorize an award of
attorney fees to the Mother. We therefore reverse the trial court's decision to
award the Mother $3000 of her attorney fees and we reject her assertion that she
should be awarded any of the expenses of this appeal. Although we recognize
the financial inequality of the parties, this fact can be considered with regard to
child support. See Tenn. Code Ann. § 36-5-101(d) (Supp. 1998). Under the
parties' MDA, the Father was paying only $460 per month to the Mother and the
Mother was completely responsible for the cost of day care which was over
$500. The MDA envisioned changed economic circumstances and assumed
future agreements between the parties. Agreement on child support was not
forthcoming and the Mother petitioned for an increase. In view of the action of
this court relative to the custody and attorney fee issues, this case is remanded
to the trial court for further consideration of the Mother's November 1996
petition for increased child support.


                              V. CONCLUSION


          For the foregoing reasons, we reverse the trial court's modification of
custody as well as its award of attorney fees to the Mother. We remand this
cause to the Sumner County Circuit Court for determination of the issue of
whether the child support paid by the Father to the Mother should be increased.
Tax the costs on appeal to the parties equally.




                                        ______________________________________
                                        WILLIAM B. CAIN, JUDGE


CONCUR:



_________________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.



_________________________________________
WILLIAM C. KOCH, JR., JUDGE

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