                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      April 8, 2003 Session

             GEOFFREY E. GILMORE v. MARSHA K. MANGRUM

                     Appeal from the Chancery Court for Sumner County
                        No. 94D-497 Thomas E. Gray, Chancellor



                     No. M2002-02171-COA-R3-CV - Filed July 29, 2003


This case involves an issue of change of primary residential custody of a minor child from one parent
to another. Mother currently has primary residential custody. The child at issue was sexually
molested by his step-brother at his Mother’s residence. Father filed a petition requesting custody be
changed from Mother to him. Although the trial judge found a material change of circumstances,
he did not find a change of custody to be in the child’s best interest and denied Father’s Petition. We
affirm the trial court’s decision.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                Affirmed and Remanded

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

C. Ronald Blanton, Hendersonville, Tennessee, for the appellant, Geoffrey E. Gilmore.

Arthur E. McClellan, Gallatin, Tennessee, for the appellee, Marsha K. Mangrum.

                                             OPINION

       The facts of this case are very simple and virtually uncontested. The parties, Geoffrey
Gilmore (Plaintiff/Appellant) and Marsha Mangrum (Defendant/Appellee), were divorced in 1995
and share joint legal custody of their son D.G., with Ms. Mangrum having primary residential
custody. Ms. Mangrum subsequently married Jerry Mangrum, who also has a minor son. Her
husband’s son does not live with Mr. and Mrs. Mangrum, but he has visitation with his father at the
Mangrum household on a regular basis.

       In August of 2000, D.G. was sexually abused by Mr. Mangrum’s son. When Mrs. Mangrum
discovered what had happened to her son, she immediately filed a police report, contacted the
Department of Children’s Services (DCS), and prevented any further contact between D.G. and Mr.
Mangrum’s son. However, she did not inform Mr. Gilmore of the incident.1

        After contacting DCS, the case worker, Amy Burk, met with Mrs. Mangrum and D.G.
regarding the incident. DCS then enacted a safety plan which included a recommendation of no
contact between the children until released by their individual counselors and separate counseling
for both children. Except for one situation around Christmas of 2000 when the children were
together for a few hours to open Christmas presents, the two children were kept apart for over a year
after the incident. Both boys underwent counseling from separate psychologists and were released
to be in each other’s company again in August of 2001. In September 2001, the Department of
Children’s Services received a written release from D.G.’s psychologist stating that he was ready to
associate with Mr. Mangrum’s son again. Subsequent to his written release, the children were
allowed to play together with no further incident.

        Mr. Gilmore was never informed of the incident by Mrs. Mangrum, D.G.’s psychologist, or
DCS. However, he inadvertently found out in January of 2001 and attempted to obtain information
regarding D.G.’s condition from DCS, D.G.’s psychologist, and the police department. Mr. Gilmore
was unable to obtain much information, and Mrs. Mangrum has continually refused to discuss the
situation with him. Mr. Gilmore does not approve of the two boys having any contact, even after
approval of D.G.’s psychologist, and, in December 2002, filed a Petition for Change of Custody and
for a restraining order to prevent the boys from having contact. The court granted the temporary
restraining order until such time as a hearing could be had on the matter.

        The matter was heard on August 5, 2002, after which the court determined that the Petition
for Change of Custody should be denied, and the temporary restraining order was dissolved.
Although the trial court determined that a material change of circumstance had occurred, it was also
the court’s opinion that it was not in the best interest of the child for custody to be changed from
Mrs. Mangrum to Mr. Gilmore. Mr. Gilmore now appeals that decision asserting that it is in the best
interest of D.G. for custody to be given to him.

         The standard of review in this matter is de novo with a presumption that the determination
of the trial court regarding the facts is correct unless the evidence presented preponderates against
the factual determinations. Brooks v. Brooks, 992 S.W.2d 403 (Tenn. 1999); Kendrick v. Shoemake,
90 S.W.3d 566 (Tenn. 2002); Cranston v. Combs, No. M2000-02101-SC-R11-CV, 2003 WL
21266696 (Tenn. June 23, 2003).

        The Tennessee Supreme Court has recently clarified the proper standard to be applied to a
petition to modify custody from one parent to another parent.

         We concluded that once a valid order of custody has been issued, subsequent custody
         modification proceedings should apply the “standard typically applied in parent-vs-
         parent modification cases: that a material change in circumstances has occurred,

         1
             The testimony of both parties demonstrates a less than acrimonious, if not highly contentious, relationship
between Mr. Gilmore and M r. and Mrs. Mangrum. Mr. Gilmore’s temper, immaturity, and lack of judgment have caused
the trial court to issue a restraining order against him on two sep arate occa sions.

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       which makes a change in custody in the child’s best interests.” Blair v. Badenhope,
       77 S.W.3d 137, 148 (Tenn.2002). As explained in Blair, the “threshold issue” is
       whether a material change in circumstances has occurred after the initial custody
       determination. Id. at 150. While “[t]here 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,” the following factors have formed a sound basis for determining
       whether a material change in circumstances has occurred: the change “has occurred
       after the entry of the order sought to be modified,” the change “is not one that was
       known or reasonably anticipated when the order was entered,” and the change “is one
       that affects the child’s well-being in a meaningful way.” Id. (citations omitted). We
       note that a parent’s change in circumstances may be a material change in
       circumstances for the purposes of modifying custody if such a change affects the
       child’s well being.

Kendrick v. Shoemake, 90 S.W.3d at 570; see also Cranston v. Combs, 2003 WL 21266696.

        There could be little argument as to whether a material change of circumstances exists.
However, given this material change in circumstance, “it must then be determined whether the
modification is in the child’s best interests. This determination should be made according to the
factors enumerated in Tennessee Code Annotated section 36-6-106.”2 Kendrick, 90 S.W.3d at 570.


       2
          This section o f the Code provide s as follows:
                 (a) In a suit for annulment, divorce, separate maintenance, or in any other proceeding
       requiring the court to make a custody determination regarding a minor child, such determination shall
       be made up on the basis of the best interest of the child. The court shall consider all relevant factors
       including the following where applicable:
                 (1) The love, affection and emotional ties existing between the parents and child;
                 (2) The disposition of the parents to provide the child with food, clothing, medical care,
       education and o ther necessary care and the deg ree to which a parent has been the primary caregiver;
                 (3) The importance of continuity in the child’s life and the length of time the child has lived
       in a stable, satisfactory environment; provided, that where there is a finding, under § 36-6-106(8), of
       child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602,
       by one (1) parent, and that a non-perpetrating parent has relocated in order to flee the perpetrating
       parent, that such relocation shall not we igh against an award o f custod y;
                 (4) The stability of the family unit of the parents;
                 (5) The mental and physical health of the parents;
                 (6) The home, school and community record of the child;
                 (7) The reasonable preference of the child if twelve (12) years of age or older. The court
       may hear the preference of younger child upon request. Th e preferences of older children should
       normally be given grater weight than those of younger children;
                 (8) Evidence of physical or emotio nal abuse to the child, to the other parent or to any other
       person; provided , that where there are alleg ations that one (1) parent has committed child abuse, [as
       defined in § 39-15-401 o r § 39-15-402], or child sexual abuse, [as defined in § 37 -1-60 2], against a
       family mem ber, the court shall consider all evidence relevant to the p hysical and em otional safety of
       the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred.
       The court shall include in its decision a written finding of all evidence, an d all findings of facts
       connected thereto. In addition, the court shall, where appropriate, refer any issues of abuse to the
       juvenile court for further proceed ings;
                 (9) The character and behavior of any other person who resides in or frequents the home of
                                                                                                            (continued...)

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       In reviewing the trial court’s determination of the child’s best interest, several things must
be taken into consideration.

                Custody and visitation determinations often hinge on subtle factors, including
        the parents’ demeanor and credibility during the divorce proceedings themselves.
        Accordingly, appellate courts are reluctant to second-guess a trial court’s decisions.
        Trial courts must be able to exercise broad discretion in these matters, but they still
        must base their decisions on the proof and upon the appropriate application of the
        applicable principles of law.

Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn.Ct.App. 1996). “Trial courts are normally in the best
position to judge the credibility of the witnesses since they have seen and heard the witnesses testify.
Thus a trial court’s determination of credibility is entitled to great weight in this court.” Id. at 633,
(citing Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.Ct.App. 1995)); see also Whitaker
v. Whitaker, 957 S.W.2d 834 (Tenn.Ct.App. 1997).

        Although the situation giving rise to this Petition is an extremely serious one, the trial court
determined that the incident was caused by no fault or neglect of Mrs. Mangrum. The trial court
further found that Mrs. Mangrum acted appropriately in reporting the incident and obtaining help
for her son and even found her initial decision not to inform Mr. Gilmore of the abuse to be
understandable given his past history for display of temper. Amy Burk, from DCS, testified as
follows:

                Q.      Based upon what you know, your investigation of what you have in
        your file, has Marshal Mangrum been fully cooperative in, one, ascertaining the facts
        and, two, insuring that this child that’s in question here, [D.G.], be properly taken
        care of in terms of his psychological and sociological needs?
                A.      Yes, sir.
                Q.      Do you have an opinion, based upon your expertise and your
        investigation of the file, as to whether these two children, [D.G.] and [B.], as
        stepbrothers, should be permitted to interact, one with another, in visitation, and
        family holidays, and picnics, and whatever it may be where these [two] children
        interact?
                A.      Based on the fact that the safety plan was followed and everything that
        I asked them to do was completed, I don’t have a problem with that.
                Q.      How old was [D.G.] at the time of this incident?
                A.      Six.

        2
         (...continued)
        a parent and such person’s interactions with the child; and
                  (10) Each parent’s past and potential for future perform ance of pa renting responsibilities,
        including the willingness and ability of each of the parents to facilitate and encourage a close and
        continuing parent-child relationship betwe en the child and the o ther pa rent, consistent with the best
        interest of the child.

Tenn.Cod e Ann. § 36-6-106(20 01).



                                                          -4-
               Q.     And how old was [B.] at the time of this incident?
               A.     Nine, I believe.
               Q.     Do you have any knowledge that the Department of Children’s
       Services ever made any recommendations that this matter be pursued in the criminal
       justice system?
               A.     No. The idea - - it wasn’t pursued, as far as charges, on the grounds
       that everybody cooperated, psych evals were done, or they had seen therapists,
       followed through with that, as opposed to taking it into juvenile court or anybody
       being charged.

        The only other evidence presented in this matter regarding what would be in D.G.’s best
interest was the testimony of Mr. Gilmore and Mrs. Mangrum. Mr. Gilmore’s testimony regarding
why the change of custody would be in D.G.’s best interest consisted of the following:

              Q.      Do you believe that it’s in [D.G.]’s best interest to come and live with
       you?
                A.     Yes.
                Q.     And why is that?
                A.     Because he knows he’s loved there. He knows he’s safe. He’ll be
       protected.
                Q.     Mr. Gilmore, this is your time to tell the Judge why you think [D.G.]
       should come to live with you. If there’s anything else you want to add to that, you
       need to tell him.
                A.     Just that he knows I won’t let anything happen to him.
                ....
                Q.     What are the factors that make it in the best interest of [D.G.] to be
       changed from Marsha Mangrum’s custody to your custody?
                A.     He’ll be in a more safe and loving environment. He won’t have to
       worry about sexual predators. He’ll be with somebody that loves him all the time.
                Q.     Is that all?
                A.     I think he’d be a lot better off.
                Q.     Anything else?
                A.     I can’t think of anything else at this time.
                Q.     Do you recall when I asked you that same question in your deposition?
                A.     No. I don’t.
                Q.     Have you read your deposition since it was given?
                A.     I haven’t seen it.
                Q.     On page 22 when I asked you that same question, beginning with line
       9, I said, “What factors do you think makes it in the best interest of [D.G.] to be in
       your custody, as opposed to Marsha Mangrum’s custody?” Were these the reasons
       you gave: “stable loving environment?”
                A.     Yes.
                Q.     “He knows that I love him, that I’ll protect him and take care of him.”
                A.     Yes.
                Q.     “I feel that he would be better off to be with me.”
                A.     Yes.

                                                -5-
               Q.      I asked you if there was anything else. What as your response?
               A.      “I guess not.”

        Testimony of the parties also revealed that Mr. Gilmore has displayed in the past, and
continues to display, immature and unproductive behavior in dealing with custody of and visitation
with his son, including refusing to give Mrs. Mangrum D.G.’s football uniform and forcing them to
meet him prior to the child’s football practice and change clothes in his truck. Evidence of Mr.
Gilmore’ violent behavior and inability to control his anger include the assault and battery of Mr.
Mangrum a few years prior to the hearing in this matter, testimony that he continues to call Mr.
Mangrum’s son a “fagot” in the presence of D.G., and a most recent Order of Protection against him
extending through November of 2002.

        D.G. has resided with his mother for approximately eight years. The court found that Ms.
Mangrum was not negligent or in any way at fault for the abuse and that she acted appropriately
thereafter. D.G. has had no other problems reported in the Mangrum household, and appears to be,
otherwise, safe and well cared for.

        In reviewing the small amount of evidence presented as to what would be in D.G.’s best
interest, we find this decision to be primarily based on the judge’s determination of the credibility
and character of the parents. As such, the evidence does not preponderate against the trial court’s
determination that it would not be in D.G.’s best interest to change primary residential custody to
Mr. Gilmore. The decision of the trial court is, thus, affirmed.



                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




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