ANTHONY LEE EDEN,                          )
                                           )
        Petitioner/Appellant,              )       Appeal No.
                                           )       01-A-01-9609-CV-00427
v.                                         )
                                           )       Davidson Circuit
CHERYL ANN EDEN,                           )       No.   92D-3002
                                           )
        Respondent/Appellee.               )

                                                                       FILED
                                                                         March 5, 1997
                        COURT OF APPEALS OF TENNESSEE                  Cecil W. Crowson
                                                                      Appellate Court Clerk
                          MIDDLE SECTION AT NASHVILLE


         APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

                                AT NASHVILLE, TENNESSEE


                  THE HONORABLE MURIEL ROBINSON, JUDGE




HELEN SFIKAS ROGERS
Jones & Rogers
Suite 1550, SunTrust Bank Building
201 Fourth Avenue North
Nashville, Tennessee 37219
           ATTORNEY FOR PETITIONER/APPELLANT


MARY ANNE KEVIL
Kevil & Johnson
Belle Meade Office Park
4535 Harding Road, Suite 100
Nashville, Tennessee 37205-2120
           ATTORNEY FOR RESPONDENT/APPELLEE




                            AFFIRMED AND REMANDED




                                                          SAMUEL L. LEWIS, JUDGE
                              MEMORANDUM OPINION1
             Petitioner/appellant, Anthony Lee Eden (“Father”), appeals a decision of the
Fourth Circuit Court of Davidson County. The court denied Father's petition to
change custody, increased his child support, took away his Wednesday night
visitation, and extended his summer visitation by two weeks. The facts out of which
this matter arose are as follows.


             The Fourth Circuit Court of Davidson County granted the parties an
absolute divorce in December 1993.                       Respondent/appellee, Cheryl Ann Eden
(“Mother”), received sole custody of the parties' three minor children. The court
ordered Father to pay $600.00 per month in child support and granted him visitation
every other weekend, Wednesday night, and one month a summer.


             Father filed a petition to change custody on 17 October 1995. At that time,
Father lived in his brother and sister-in-law's five-bedroom house in Madison, owned
fifty percent of a cabinet business, and earned approximately $1,500.00 a month.
Mother and the children lived in a two-bedroom apartment, and Mother worked two
jobs earning approximately $1,700.00 a month. Mother quit her second job prior to
trial. The children were ages 10, 12, and 14.2


             In the petition, Father alleged the children were left alone after school and
on certain evenings and they were frightened. He also alleged that Mother took the
children to a restaurant during happy hour so she could spend time with her friends.
Father alleged Mother had male friends stay the night when the children were at her
apartment and she engaged in sexual activities when the children were visiting Father.
Finally, Father alleged the children expressed a desire to live with him. In response,
Mother filed a counter-petition asking the court to raise the monthly child support,
to limit Father’s telephone calls to the children, and to enjoin him from attempting to

        1
         Court of Appeals Rule 10(b):
        The Court, with the concurrence of all judges participating in the case, may affirm, reverse or
        modify the actions of the trial court by memorandum op inion when a formal opinion would have
        no precedential value. When a case is decided by memorandum opinion, it shall be designated
        "M EM ORA ND UM OPIN ION ," shall not be published, and shall not be cited or relied on for any
        reaso n in a sub sequent unre lated case.

        2
          On 23 O ctober 1996 , the parties filed a joint motion for the consideration of post-judgment facts. The
parties asked this court to consider the fact that Mother moved to a new two-bedroom apartment and that the children
changed schools. We granted the motion on 25 October 1996.

                                                        -2-
alienate the children's affections for Mother.


             Both the parties and the children testified at the hearing. Following the
hearing, the trial court found, in pertinent part, as follows:
             These parties were divorced by this Honorable Court on
             November 16, 1993. We are fortunate to have the same parties,
             the same children, the same lawyers, and the same judge.

             I recall that this divorce case was bitterly contested; custody was
             contested at that time. The issue of custody was resolved in favor
             of the mother, the Court finding that to be the best interests of
             these three children that custody remain with their mother.

             At that time, there was a [sic] difficulty determining the earning
             capacity of the father and the Court set the amount of six hundred
             dollars as child support. I don’t know whether there was a
             declaration in that final decree or not. I don’t think it was at the
             time.

             He owns his own business. There was some proof regarding
             whether or not Mr. Eden owned this business and now, today, he
             does own this business. In any event, at that point, I arrived at the
             figure of six hundred dollars a month thinking that he was
             underemployed at that time.

             I think as of today this man is still underemployed; he seems to
             have a lot of free time and the mother appears to work two jobs.
             So I might suggest to Mr. Eden that maybe, if he can’t make
             sufficient income on the cabinet business, maybe he ought to
             consider a second job to help with the support of the children.

             He is asking the court to be awarded custody of these children,
             yet I have to be concerned about his financial situation in that
             regard. It appears also today that the mother is strapped
             financially due to the fact that the father’s child support, although
             current, the amount of six hundred dollars is totally inadequate.

             It appears from the proof that the mother has attempted to have a
             single life, has had men friends and, on the occasions that she has
             brought one to the home, she’s been criticized by the children.
             However, there’s absolutely no evidence of misconduct on the
             part of Ms. Eden in the presence of these children.

             Its unfortunate that they found these objects but she denies that
             she knew anything about them.3 And there’s some discrepancy in
             the court’s mind, although we do have an exhibit, whether or not

        3
          There was testimony the parties’ youngest son, Lyle, found a condom and wrapper in or by the bathroom
trash can and the daughter, Lindsey, found a condom wrapper in her bed.

                                                       -3-
this occurred. But, if it did, its not so sufficient as it would be
shocking to the Court.

I would just hope that maybe Ms. Eden ought to clean her house
better if that, in fact, occurred. But she said that she didn’t know
anything about it. And I’m a little bit concerned about why these
children would not go directly to the mother with this instead of
going to the father.

The Court finds from the proof presented that these children have
been encouraged to demean their mother and they’ve set upon the
course to force her to relinquish custody and they’ve been aided
and abetted in this by their father. The Court is not swayed by the
testimony of the children.

The Court finds that their testimony, while they appear to be
bright children, some of the testimony was somewhat embellished
and some of the situations that were created just did not make
sense to the Court. Even if they happened, it seemed like it was
part of the plan developed between the children and the father.

Mr. Eden, it appears, is totally dependent on his brother and
sister-in-law. He owns no home or vehicle. He comes before this
Court exactly the same way he came the last time. His
circumstances have not changed practically in any event.

He owns stock in this corporation of his brother and sister, yet it
seems like this corporation is not doing the business that the
Court hoped it would within the past three years. Granting Mr.
Eden custody of these children would obviously put a financial
drain on him but he says that he could bear that if the child
support goes on as follows.

The Court feels that the father and the children have conspired to
contrive a viable custody suit in this regard; however, they have
failed in that regard. The Court finds its to the best interest of
these children to remain with their mother.

I’m going to have to fine-tune the final decree because I need
some restraining orders. We’re going to cut the Wednesday night
visitation due to the fact that these children have probably
suffered some emotional damage if Mr. Eden doesn’t back off.

I’m going to take that visitation away. I’m going to enjoin him
from calling the children; however, I’ll allow the children to call
him in the afternoon when they come home from school and at
bedtime. But I’m not going to have it the other way around.
There’s some discrepancy as to who’s calling who.

Mr. Eden will be under a restraining order. He’ll be enjoined and


                                -4-
         restrained from attempting to alienate the affections of these
         children from the mother and he’s enjoined and restrained from
         interfering with her custody.

         I’m going to extend the summer visits to the month of July and
         the first two weeks of August. The children will be returned to
         Ms. Eden two days before the children’s school starts. That
         leaves June for Ms. Eden to go on vacation to visit her friends.
         During the time that the children are with their father, Ms. Eden
         will have the middle weekend in July and her weekend in August.
         If its not Mr. Eden’s weekend the children will be returned to Ms.
         Eden to go to school.

         Child support will remain the same throughout except in the fall
         I’m going to increase this child support to seven hundred dollars
         per month in addition to the insurance premium because I have
         made the finding that Mr. Eden is underemployed and I don’t
         think it is to the mother’s benefit to work the second job during
         the week because it takes her time away from her children, even
         though she needs the money; so he needs to ante-up on that end.
         The increase will begin in the month of September, 1996.

          Mr. Eden’s request for adjustment of the support during the six
          weeks that he has the children is denied. The amount for the
          support of these three children in not sufficient enough to keep
          the mortgage paid and the utilities going until the fall when
          they’re not there; when they are visiting their father, so I can’t
          really consider that.

          The cost of this cause will be paid by Mr. Eden. Ms. Kevil is
          awarded a fifteen hundred dollar attorney fee, the balance to be
          paid to her by her client.


          Father presented three issues on appeal. We discuss the following two
issues together: 1) “[w]hether the trial court erred in continuing to retain custody of
the minor children with the Mother”; and 2) “[w]hether the trial court erred in
reducing Father's weekday visitation and restricting telephone calls to the children.”


          “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.” Wall v. Wall, 907 S.W.2d 829, 832 (Tenn. App. 1995).
An award of custody is res judicata, absent a finding of a “change in material
circumstances affecting the welfare of the children.” Woodard v. Woodard, 783
S.W.2d 188, 189 (Tenn. App. 1989).


                                          -5-
            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 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, 907 S.W.2d at 834. Tennessee Code Annotated section 36-6-101(a) provides,
in pertinent part, that a custody decree “shall remain within the control of the court
and be subject to such change or modification as the exigencies of the case may
require.” Our Supreme Court has interpreted “exigencies” 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.” Smith v. Hasse, 521 S.W.2d 49, 50 (Tenn.
1975)(quoting Hicks v. Hicks, 26 Tenn. App. 641, 176 S.W.2d 371 (1943)).


         Mother insists and we agree that the facts complained of by Father could
have been and were, to a great extent, anticipated by the final decree. At the time of
the divorce hearing, the trial court found that Father was underemployed and that it
was necessary to deviate from the child support guidelines. In addition, the court
awarded Father the marital residence and ordered him to satisfy Mother’s equity
interest in the property. The court divided the marital debts equitably between the
parties. At the most recent hearing, the court found once again that Father was
underemployed and concluded that the child support was inadequate. We think it was
reasonable to anticipate that a single mother in Mother’s position after the divorce
would have to live in an apartment instead of a large home, would have to work
outside the home to support herself and the children, and would find it necessary to
leave the children at home for some period of time between the time the children
arrived home from school and the time Mother arrived home from work. Further, it
was reasonable to anticipate Mother would attempt to have some sort of relationship


                                          -6-
with her peers including men and women. We also think it was reasonable to
anticipate at the time of the divorce the children would want a room of their own with
lots of area to play, they would not be content with the modest recreation Mother
could provide, and they would long for extras Mother could not afford. It was not,
however, reasonable to anticipate that Father would hire a private investigator to
follow Mother; would keep a journal on Mother which included his communications
with the children concerning court proceedings, depositions, and Mother’s activities;
would follow Mother to work; and would fax to the general work area of her place
of employment harsh and inappropriate letters from the children.


          Father contends that we should apply the “comparative fitness” doctrine as
set forth in Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. App. 1983). We disagree. In
a similar case, Judge Susano speaking for the eastern section, stated:
                Father invites us to compare the relative parental fitness of
          the parties. This is clearly the appropriate analysis on an initial
          custody determination when there are competing applications for
          custody, Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983); but in
          a modification case, this suggestion “puts the cart before the
          horse.” In such a case, we must find a material and substantial
          change in circumstances as described above before we can
          consider a change of custody. If there has not been a material and
          substantial change of circumstances as generally described in
          Musselman and Aaby, we should go no further.
Rector v. Rector, No. 03-A-01-9604-CV-00123, 1996 WL 539767, at *2 (Tenn. App.
25 Sept. 1996). This court has also held that the first step in any change of custody
case is to determine whether there has been a “material change in either the parents'
or the child's condition.” Maxwell v. Christian, No. 01-A-01-9209-GS-00364, 1993
WL 194064, at *4 (Tenn. App. 9 June 1993). In the present case, Father failed to
establish a material change in circumstances sufficient to warrant a change in custody.
Thus, it is the opinion of this court that there is no need to proceed further with the
comparative fitness analysis.


          Father also relies very heavily on the children’s testimonies in his attempt
to change custody. “Such testimony ‘may be considered’ but is not compelling.”
Wall, 907 S.W.2d at 834. The demeanor and credibility of the children were of
paramount significance in this case. Great weight should be given to the trier of
facts’ determination as to credibility.

                                          -7-
          As in all non-jury cases, a trial court’s determination on [change
          of custody] is reviewed by us de novo; however, the record
          developed below comes to us accompanied by a presumption of
          correctness that we must honor unless the evidence preponderates
          against the findings of fact supporting the lower court’s judgment.
          In making our de novo review, we “do [] not pass on the
          credibility of witnesses.” “Credibility is an issue for the trial
          court who saw and heard the witnesses testify and is therefore in
          the premier position to determine credibility.”

Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995)(quoting
Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn. App. 1991))(citations omitted).




          The evidence presented establishes that the only material change in
circumstances which has occurred since the entry of the initial decree and which
could not have reasonably been anticipated are those which Father and the children
contrived in an effort to fashion a viable custody suit. We agree with the findings of
the trial court and find no merit to either of Father’s first two issues.


          Father’s third issue is “[w]hether the trial court erred in deviating from the
statute and guidelines in increasing child support.”


          The trial court found at the original divorce hearing and in the instant
proceeding that Father was underemployed. The evidence established that Father
owned fifty percent of a cabinet company which had gross profits of $113,377.00 in
1995, but that he elected to be an employee of the company and draw a net monthly
income of only $1,500.00. Father’s brother and sister-in-law provided Father with
a home and Florida vacations, and the company provided his vehicle. Father paid no
rent, electricity, car payments, car insurance, or home owner’s insurance.


          We are of the opinion that given the evidence in this case the trial court
correctly found that there were appropriate reasons for deviating from the guidelines.
Here, the trial court made written findings as to its reasons for deviating from the
guidelines as required by statute. Tenn. Code Ann. § 36-5-101(e)(1996). These
included Father’s underemployment, the equity between the parties as Mother was
having to work a second job, and the best interest of the children. We are of the


                                           -8-
opinion that the trial court’s determination that Father should pay support in excess
of the guidelines is fully supported by the record. This issue is without merit.


          We have also considered Mother’s motion for finding of a frivolous appeal
and find it to be without merit.


          It, therefore, results that the judgment is in all matters affirmed, and the
cause is remanded to the trial court for any further necessary proceedings. Costs on
appeal are taxed to petitioner/appellant, Anthony Lee Eden.


                                           ____________________________________
                                           SAMUEL L. LEWIS, JUDGE


CONCUR:


_____________________________________
HENRY F. TODD, P.J., M.S.


_____________________________________
WILLIAM C. KOCH, JR., J.




                                         -9-
