                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                                                                           FILED
PHYLLIS RENEE BROWN,         )                                             November 2, 1998
                             )
    Plaintiff/Respondent,    )                         Shelby Circuit No. Cecil Crowson, Jr.
                                                                          136582 R.D.
                             )                                             Appellate C ourt Clerk
VS.                          )                         Appeal No. 02A01-9709-CV-00228
                             )
CHARLES CHANDLER BROWN, SR., )
                             )
    Defendant/Petitioner.    )

______________________________________________________________________________

                           CONCURRING OPINION
______________________________________________________________________________



               I concur in the result reached by the majority opinion. However, I write separately

to express my concern with the language on page 10 of that opinion which states that, “[i]n order to

be compelling enough to warrant the dramatic remedy of changed custody, the change of

circumstances must be such that ‘continuation of the adjudicated custody will substantially harm the

child.’” I acknowledge that this language appears in Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. App.

1995), an opinion of the middle section of this court. However, I further note that Wall cited

Contreras v. Ward, 831 S.W.2d 288 (Tenn. App. 1991). Contreras was a parental relocation case

which stated the long recognized rule that “the best interest and welfare of the child must be the

primary focus of attention.” Contreras, 831 S.W.2d at 290. The court also cited with approval from

Sartoph v. Sartoph, 354 A.2d 467, 473 (Md. Ct. Spec. App. 1976), wherein the Maryland Court of

Special Appeals stated that “[t]he custody of children should not be disturbed unless there is some

strong reason affecting the welfare of the child. To justify a change in custody, the change in

conditions must have occurred which affects the welfare of the child and not that of the parents.”



               In Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. App. 1991), the eastern section

of this court noted that the paramount consideration in custody proceedings is the best interest of the

child and that, when the issue is whether to modify a prior custody order, the court need not repeat

the comparative fitness analysis set forth in Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983).

Instead, the trial court in a modification proceeding must find a material change in circumstances


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compelling enough to warrant the dramatic remedy of changed custody. The court went on to say

that “[i]t is only that behavior of a parent which clearly posits or causes danger to the mental or

emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis

to seriously consider the drastic legal action of changing custody.” Musselman, 826 S.W.2d at 924

(quoting Ballard v. Ballard, 434 So. 2d 1357, 1360 (Miss. 1983)).



               Our supreme court recently addressed the standard to be applied in modifying a child

custody decree in Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996). Aaby, which also dealt with

parental relocation, cited Musselman for the proposition that “Tennessee law allows custody to be

changed if the behavior of the custodial parent clearly posits a danger to the physical, mental or

emotional well-being of the child.” Aaby, 924 S.W.2d at 629-30 (emphasis added).



               The eastern section of this court subsequently has interpreted Musselman and Aaby

to mean that “[t]he Musselman/Aaby test requires more -- we must find ‘behavior . . . [that] clearly

posits a danger’ to the children.” Rector v. Rector, No. 03A01-9604-CV-00123, 1996 WL 539767,

at *4 (Tenn. App. Sept. 25, 1996) (emphasis added). I do not interpret Aaby, however, to hold that,

“in order to be compelling enough to warrant the dramatic remedy of changed custody, the change

of circumstances must be such that continuation of the adjudicated custody will substantially harm

the child.”



               Citing Wall, the western section of this court has held that a custody decision is not

changeable except for change of circumstances, which is defined as that which requires a change to

prevent substantial harm to the child. Williams v. Williams, No. 01A01-9610-CV-00468, 1997 WL

272458, at *6 (Tenn. App. May 23, 1997); Greene v. Greene, No. 03A01-9503-CV-00091, 1996 WL

165098, at *4 (Tenn. App. Apr. 9, 1996). This section also has cited Musselman for the proposition

that “[i]t is only that behavior of a parent which clearly posits or causes danger to the mental or

emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis

to seriously consider the drastic legal action of changing custody.” Williams, 1997 WL 272458, at

*6 (emphasis added). I acknowledge that I have concurred in previous decisions containing the

foregoing language, but upon further reflection, I believe the better standard is as set forth in

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Stroud v. Stroud, No. 01A01-9607-CH-00291, 1997 WL 266846 (Tenn. App. May 21, 1997),

wherein this court said “[c]ustody may be changed if the behavior of the custodial parent clearly

posits a danger to the physical, mental, or emotional well-being of the child.” Stroud, 1997 WL

266846, at *7 (emphasis added) (citing Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996)).



               Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 1998) empowers the courts to change

custody “as the exigencies of the case may require.” The middle section of this court stated recently

that: “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 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).” Solima v. Solima, No. 01A01-9701-CH-00012,

1998 WL 726629, at *2-3 (Tenn. App. Oct. 16, 1998).



               As Professor Garrett states, “[t]he Tennessee appellate courts have cited many criteria

of changed circumstances, which would justify a change of custody or modification of visitation

rights. When the cases are analyzed, one question appears crucial: Is the child’s best interest being

served by the existing placement?” W. Walton Garrett, Tennessee Divorce, Alimony & Child

Custody § 26-4 (1997 ed.) (footnotes omitted). He further lists some 33 criteria upon which our

courts have based modification of child custody decrees. Id. § 26-5.



               I am concerned that we have created too harsh a standard by holding that a change

of custody will be granted only upon a showing that a continuation of the adjudicated custody will

substantially harm the child. Harm is defined as “physical or mental damage.” Webster’s Ninth

New Collegiate Dictionary 554 (1990). I can envision circumstances in which there is determined

to be a material change of circumstances which would indicate that a change of custody is in the

child’s best interest, but would fall short of a continuation of the adjudicated custody resulting in

“substantial harm” to the child.

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    ____________________________________
    DAVID R. FARMER, JUDGE




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