STACIE LEIGH NORRIS,                   )
                                       )   Rutherford Juvenile Court
      Plaintiff/Appellant,             )   No. 17599
                                       )
VS.                                    )   Appeal No.
                                       )   01A01-9706-JV-00242
JEFF WINDROW,                          )

      Defendant/Appellee.
                                       )
                                       )                         FILED
                                                                  April 24, 1998
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE          Cecil W. Crowson
                                                 Appellate Court Clerk
      APPEAL FROM THE JUVENILE COURT OF RUTHERFORD COUNTY
                   AT MURFREESBORO, TENNESSEE

                    HONORABLE LARRY BRANDON, JUDGE


Clark Lee Shaw
2525 Lebanon Road
Nashville, Tennessee 37214
ATTORNEY FOR PLAINTIFF/APPELLANT

R. Steven Waldron
202 West Main Street
Murfreesboro, Tennessee 37130
ATTORNEY FOR DEFENDANT/APPELLEE


                             AFFIRMED AND REMANDED.



                                      HENRY F. TODD
                                      PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE
WALTER W. BUSSART, JUDGE
STACIE LEIGH NORRIS,                             )
                                                 )     Rutherford Juvenile Court
       Plaintiff/Appellant,                      )     No. 17599
                                                 )
VS.                                              )     Appeal No.
                                                 )     01A01-9706-JV-00242
JEFF WINDROW,                                    )
                                                 )
       Defendant/Appellee.                       )



                                     OPINION

       This appeal is from an order of the Juvenile Court committing custody of a child born out

of wedlock to the natural father of the child.



       The child, Chaz Ryan Windrow was born on May 29, 1991. On November 6, 1991, the

Juvenile Court entered an agreed order of paternity requiring payment of support by the father,

but custody was not mentioned in the order. The mother continued to have custody and the

father was allowed visitation.



       On January 31, 1993, the father petitioned for custody. On March 8, 1995, the mother

counterclaimed for leave to remove to Michigan with her husband, for increase in child support

and modification of visitation.



       On April 25, 1995, the father’s petition for custody was denied but mother was required

to give 30 days advance notice of any move to Michigan.



       On November 27, 1996, custody was changed to the father. On December 16, 1996, the

mother filed notice of appeal. The appeal was dismissed because the question of child support

was pending in the Trial Court. On February 11, 1997, an agreed order was entered relieving the

mother of child support. On March 10, 1997, a second notice of appeal was filed from the

November 27, 1997, order of custody as finalized by the agreed order of February 11, 1997.




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       The mother presents the following issues for review:

                     1.      Whether the Trial Court considered facts that
              were res judicata and previously conclusive from a previous
              application to change custody without new facts occurring,
              which altered the circumstances in a material way to make the
              welfare of the child require a change in custody and, thus,
              committed reversible error in awarding custody to the
              Appellee.

                      2.      Whether there was a material change in
              circumstances, exposing the child to a substantial risk,
              justifying the change in custody to the Father/Appellee, Jeff
              Windrow.

                      3.     Whether the preponderance of the evidence
              supports the Trial Court’s decision to change custody of the
              parties minor child to the Father/Appellee, Jeff Windrow.


       The record contains a verbatim transcript of proceedings on April 20, 1995, and March

13, 1996, but no transcript of proceedings on other dates. On November 6, 1996, the Juvenile

Judge recused himself, and a special judge presided and ruled upon all matters thereafter. In

support of his judgment entered on November 27, 1996, the Special Judge filed a memorandum

which includes the following:

                      This Court has reviewed the original Transcript of
              Court Proceeding filed with the court of the proceeding of
              April 20, 1995, listened to the proof adduced by both parties
              at the hearing held in this cause on March 13, 1996,
              considered the oral and written arguments of counsel for the
              parties and based upon the foregoing, the court finds as
              follows:

                      1.     The Respondent, Stacie Leigh Carpenter is not
              a credible witness. The Court finds it impossible to believe
              any statement made by Mrs. Carpenter.
                                          ----
                      It appears to the Court that she was intentionally
              untruthful and as a result the Court chooses to rely heavily
              upon the testimony of the proof adduced through other
              witnesses of both parties adduced at trial.
                                          ----
                      3.     The Petition to Modify and Change Custody
              indicates that Mrs. Carpenter has resided at six (6) different
              addresses during the past four (4) years and there being no
              answer or denial of the same in the record, the Court
              considers said statement to be admitted in this case.

                     4.      It appears to the Court that Mrs. Carpenter and
              her children are residing in what is apparently an abusive



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      relationship with her current spouse, Buck Carpenter. The
      record reflects that this abuse existed as early as June 1, 1994.
                                    ----
              There is evidence that Mrs. Carpenter is under the care
      of a physician for her emotional difficulties and that she takes
      Prozac and Xanax for her problems. There is some evidence
      that the children of the parties have witnessed the abuse
      conduct between the Carpenters and it is significant to the
      Court that the abuse has escalated to the point where Mrs.
      Carpenter has indicated to her relatives that it would be best
      for her, an adult, to withdraw. The Court considers this
      escalated abuse to be a significant and material change in the
      home environment warranting an alteration of custody in this
      case.
                                    ----
              8.       There are numerous other facts in the record
      which reflect poorly upon Mrs,. Carpenter’s fitness to provide
      what is in the best interest of her son, Chaz. Many of these
      were present on April 20, 1995; however, the Court on that
      occasion saw fit to allow Mrs. Carpenter an opportunity to
      improve upon her marriage, her financial affairs, and her
      personal affairs. It appears to the Court at this time that she
      has not taken advantage of that opportunity and that all of
      these matters have materially and substantially changed since
      April 20, 1995 for the worse. Mrs. Carpenter has exacerbated
      the issue by displaying her unwillingness to tell the truth in
      this matter as well as her unwillingness to abide by orders of
      the Court with regard to custody and visitation.

      9.       It appears to the Court that the Petitioner, Jeff
      Windrow, is a fit and proper person to have custody of the
      parties minor child, Chaz Ryan Windrow; that Mr. Windrow
      is a caring father; that Mr. Windrow has gone to tremendous
      expense of monies and time to exercist visitation and share in
      the upbringing of his son; that Mr. Windrow is interested in
      the physical, emotional, mental, education and spiritual well
      being of his son. It further appears that Mr. Windrow will
      cooperate with Mrs. Carpenter to allow her to share in the
      upbringing of this child.

                                Conclusion

              It is the considered opinion of the Court that Chaz
      Ryan Windrow, born May 29, 1991, is entering a period
      where he will need stability. Due to the material and
      substantial changes that have occurred in the home
      environment of the Respondent, Stacie Carpenter, it is the
      decision of this Court that custody should be changed from
      her to the Petitioner, Jeff Windrow.


A judgment was entered in accordance with this memorandum.




                                      -4-
                                         First Issue

                       Lack of Evidence of Changed Circumstances


       The Special Judge adequately informed himself of previous circumstances, and he heard

evidence which is not preserved in this record but which is summarized in the memorandum,

which latter evidence adequately supports the change in custody.



                                        Second Issue

                                        Risk to Child


       The evidence cited in the memorandum adequately supports the finding that the welfare

of the child is being prejudiced by continued custody of the mother.



                                        Third Issue

                                Preponderance of Evidence


       The evidence preponderates in favor of the decision of the Special Judge.



       The judgment of the Juvenile Court is affirmed. Costs of this appeal are taxed against

the mother and her surety. The cause is remanded to the Juvenile Court for further necessary

proceedings.

                          AFFIRMED AND REMANDED.


                                     ___________________________________
                                     HENRY F. TODD
                                     PRESIDING JUDGE, MIDDLE SECTION

CONCUR:


_____________________________
BEN H. CANTRELL, JUDGE


_____________________________
WALTER W. BUSSART, JUDGE


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