                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 4, 2004 Session

                 LAURIE ANN SEARCY v. SANDY LEE SEARCY

                     Appeal from the Chancery Court for Robertson County
                         No. 14267     Carol A. Catalano, Chancellor



                   No. M2003-00036-COA-R3-CV- Filed December 13, 2004


Laurie Ann Searcy sought, by post-divorce Petition, a modification of the child custody and
visitation privileges provided by the divorce decree. The trial court held that no change of
circumstances had occurred “with a negative impact upon the child” and denied modification. We
hold that the trial court applied an improper standard for determining the change of circumstances
issue. We hold, however, that no change of circumstances has occurred under Cranston v. Combs,
106 S.W.3d 641 (Tenn. 2003) and Tennessee Code Annotated section 36-6-101(a)(2)(B) and affirm
the judgment of the trial court.

          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 PATRICIA J. COTTRELL, and FRANK
G. CLEMENT , JR., JJ., joined.

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Laurie Ann Searcy.

Charlotte U. Fleming, Wende J. Rutherford, and Regina Mathias Farmer, Springfield, Tennessee,
for the appellee, Sandy Lee Searcy.

                                            OPINION

        The controlling issue on appeal in this case is a determination of whether or not a change of
circumstances has occurred since the parties’ divorce decree that would warrant a modification of
the child custody and visitation provisions incorporated in the Final Decree of Divorce.

        While this modification of custody and visitation Petition was making its way through the
trial court, the standard to be applied in determining whether or not a change of circumstances had
occurred was undergoing both a common law and a statutory metamorphosis, as Kendrick v.
Shoemake, 90 S.W.3d 566 (Tenn. 2002), Cranston v. Combs, 106 S.W.3d 641 (Tenn. 2003), and the
legislative enactment of Chapter 859 of the Public Acts of 2002 were running essentially
simultaneous and parallel courses with the trial court proceedings in this case. The trial court applied
a variation of the “substantial risk of harm” standard in its November 20, 2002 dismissal of this
Petition for modification. We will discuss the metamorphosis of the rule at the outset.

       Appellate decisions in recent years reflect much controversy as to what “change of
circumstances” means in the context of a petition to modify an existing custody order. While there
has never been any question but that the burden of proof in such a proceeding rests upon the non-
custodial parent to prove that a change in circumstances has occurred, the controversy centers around
what one must prove in order to establish a change of circumstances. In Dailey v. Dailey, 635
S.W.2d 391, 393 (Tenn.Ct.App. 1981) this Court observed:

              We agree that it is a well-settled principle in this jurisdiction that where an
       award of custody of a minor is made which has no restrictions or limitations it will
       support a plea of res judicata and to justify a petition for a change in custody there
       must have been such a change in circumstances as will directly affect the welfare of
       the minor.

       In 1991, however, this Court held:

       The paramount consideration in a custody proceeding is the best interest of the child.
       When the issue before the Court is whether to modify a prior custody order, it need
       not repeat the comparative fitness analysis that is appropriate at the time of the
       original custody degree. See e.g., Bah v. Bah, 668 S.W.2d 663 (Tenn.App. 1983).
       Instead, in a modification proceeding, the trial judge must find a material change in
       circumstances that is compelling enough to warrant the dramatic remedy of changed
       custody. See, Tenn. Code Ann. § 36-6-101(a); Woodard v. Woodard, 783 S.W.2d
       188 (Tenn.App. 1989); Dailey v. Dailey, 635 S.W.2d 391 (Tenn.App. 1981).
       Moreover, 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).

        Thereafter, in a number of cases, this Court has followed the lead of Musselman v. Acuff in
establishing that change of circumstances requires proof that such a change is necessary to prevent
substantial harm to the child.

               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.” Wall v. Wall, 907 S.W.2d
       829, 834 (Tenn.App. 1995). When the requested modification is based on the
       behavior of the custodial parent, such behavior must clearly posit or cause danger to
       the mental or emotional well-being of the child. Musselman v. Acuff, at 924. We
       also are mindful that custody decisions should not be designed to punish one parent
       or to reward the other. Wall v. Wall, 907 S.W.2d 829, 834 (Tenn.App. 1995).


                                                  -2-
       Instead, our paramount concern remains the welfare and best interest of the minor
       child. In re Parsons, 914 S.W.2d 889, 893 (Tenn.App. 1995).

               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.App. 1995).

Thomson v. Thomson, No. 03A01-9809-CH-00308, 1999 WL 894446, at *8 (Tenn.Ct.App. Oct. 18,
1999).

        This same analysis was applied by this Court in Brown v. Brown, No. 02A01-9709-CV-
00228, 1998 WL 760935, at *8 (Tenn.Ct.App. Nov. 2, 1998). This court said: “In the absence of
any competent testimony that a continuation of the current custody arrangement presents a danger
of substantial harm to Chandler, we decline to disturb the trial court’s decision to deny a change of
custody.” Thereafter, the Court said in footnote:

                The principle enunciated in Wall v. Wall, supra, is not at odds with the
       traditional “best interests” test. Ping-pong custody adjudications are not in a child’s
       best interests. This problem has been addressed with unanimity by Aaby,
       Musselman, and Contreras, as well as by Wall. Aaby, a parental relocation case,
       specifically held that “Tennessee 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 [citation omitted].” [Emphasis supplied]. Aaby v. Strange, 924
       S.W.2d 623, 629 (Tenn. 1966). Musselman, citing Ballard v. Ballard, 434 So.2d
       1357, 1360 (Miss. 1983), held: “It is only that behavior of a parent which clearly
       posits or causes danger to the mental or emotional well-being of a child . . . which
       is sufficient basis to seriously consider the drastic legal action of changing custody.”
       [Emphasis supplied]. Musselman v. Acuff, 826 S.W.2d 920, 924 (Tenn.App. 1991).
       Contreras, quoting Sartoph v. Sartoph, 31 Md.App. 58, 354 A.2d 467, 473 (Md.App.
       1976), stated: “The 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.” [Emphasis supplied]. Contreras v. Ward, 831 S.W.2d 288,
       290 (Tenn.App. 1991). These cases are all in accord with the language of Wall v.
       Wall, supra, that, once a valid custody determination is made, such custody is not


                                                 -3-
       subject to change unless there is a “change of circumstances . . . which requires a
       change to prevent substantial harm to the child.” Wall v. Wall, 907 S.W.2d 829, 834
       (Tenn.App. 1995). “In short, when all goes well with children, stability, not change,
       is in their best interests.” Contreras v. Ward, supra, citing Sartoph v. Sartoph.

Brown, 1998 WL 760935, at *8 n.3.

       In Richardson v. Richardson, No. W2000-02374-COA-R3-CV, 2001 WL 687074,
(Tenn.Ct.App. June 14, 2001), the Western Section of this Court again followed the Musselman and
Wall rule relative to substantial harm to the child. In a prophetic concurring opinion, Judge Farmer
questioned the continued viability of the Musselman-Wall standard asserting that: “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.”
Richardson, 2001 WL 687074, at *7 (Farmer, J., concurring).

        In 2002, the supreme court, in Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002), in the
context of a custody case between a parent and a non-parent, observed: “[A] trial court should apply
the standard typically applied in parent-vs-parent modification cases: that a material change in
circumstances has occurred, which makes a change in custody in the child’s best interests.” Blair,
77 S.W.3d at 148.

      Later in 2002, the supreme court expanded upon its Blair observation in Kendrick v.
Shoemake, 90 S.W.3d 566 (Tenn. 2002), holding:

                The principal issue in this case concerns the proper standard to be applied to
       a petition to modify custody from one parent to the other parent. This issue is largely
       resolved by our recent decision in Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002).
       Blair involved a custody dispute between a parent and a non-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, which
       makes a change in custody in the child’s best interests.” Id. at 148. 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.


                                                -4-
Kendrick, 90 S.W.3d at 570.

      Finally, in 2003, the supreme court laid to rest any lingering doubt about the demise of the
Musselman-Wall rule. Said the court:

               We granted review to determine whether the Court of Appeals erred in
       determining that the appellant (father) in this post-divorce case failed to present
       evidence of a material change of circumstances justifying a change of custody of the
       parties’ two minor children. The Chancellor granted a change in custody from the
       appellee (mother) after finding that there was a material change in circumstances that
       presented a substantial risk of harm to the children. A majority of the Court of
       Appeals reversed, holding that there was no material change of circumstances that
       presented a threat of substantial harm to the children. After reviewing the record and
       applying our recent decision in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002),
       we conclude that a material change of circumstances occurred after the initial custody
       determination and that the modification of custody was in the best interest of the
       children. Although the Chancellor and the Court of Appeals did not have the benefit
       of Kendrick in this case, and therefore applied an incorrect legal standard, we affirm
       the result reached by the Chancery Court. Accordingly, the judgment of the Court
       of Appeals is reversed, and the judgment of the Chancery Court is reinstated.

               ....

               A majority of the Court of Appeals reversed the Chancery Court’s change of
       custody ruling, concluding that Cranston and Combs “bickering” over visitation did
       not constitute a material change of circumstances that presented a threat of
       substantial harm to the children. Indeed, the majority determined that Combs failed
       to present evidence “rising to the level of substantial harm” to his son and “no actual
       evidence of any harm at all” to his daughter. The majority therefore concluded that
       it was unnecessary to apply a comparative fitness analysis. Special Judge Ash
       dissented, concluding that the Chancery Court properly found that a material change
       in circumstances existed and properly applied the comparative fitness analysis.

Cranston, 106 S.W.3d at 642, 643.

        So it was that, in Cranston v. Combs, the controlling issue was placed directly before the
supreme court contrasting the Musselman-Wall rule, as relied on by the majority of this Court, with
the less stringent rule asserted in dissent by Special Judge Don Ash.

       The supreme court left little doubt as to the controlling rule relative to “change of
circumstances”.




                                                -5-
                The appellant, Combs, argues that a finding of “harm” is not a prerequisite
       to changing an initial custody determination under Tennessee law. The appellant also
       argues that even if a finding of “harm” is required, the Chancery Court’s custody
       determination should be reinstated because it found a “substantial risk of harm” and
       concluded that a change of custody was in the best interests of the children.
                The appellee, Cranston, argues that the trial court must find “harm” before
       engaging in a comparative fitness analysis for the purpose of a change in custody
       determination. The appellee asserts that the Court of Appeals’ majority correctly
       determined that there had been no evidence of a material change in circumstances
       creating a risk of harm to the children and reversed the Chancery Court’s ruling.
                Our recent decision in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002),
       resolves the issues before this Court. We held in Kendrick that the modification of
       a valid order of custody must be based on the “ ‘standard typically applied in parent-
       vs-parent modification cases: that a material change in circumstances has occurred,
       which makes a change in custody in the child’s best interests.’ ” Id. at 570 (quoting
       Blair v. Badenhope, 77 S.W.3d 137, 148 (Tenn. 2002)).
                We clarified that this standard requires the trial court to engage in a two-step
       process to make its final custody determination. First, the court must determine
       whether a material change in circumstances has occurred after the initial custody
       determination. Although there are no bright-line rules for determining when such a
       change has occurred, there are several relevant considerations: (1) whether a change
       has occurred after the entry of the order sought to be modified; (2) whether a change
       was not known or reasonably anticipated when the order was entered; and (3)
       whether a change is one that affects the child’s well-being in a meaningful way.
       Kendrick, 90 S.W.3d at 570; see also Blair, 77 S.W.3d at 150.
                Second, after finding that a material change in circumstances has occurred,
       the trial court must determine whether modification of custody is in the child’s best
       interests using the factors enumerated in Tennessee Code Annotated section 36-6-106
       (2001).

Cranston, 106 S.W.3d at 643-44.

        Running a parallel course to the events in Kendrick, Cranston, and the case at bar was a
legislative initiative that culminated in the enactment of Chapter 859 of the Public Acts of 2002
effective as of July 15, 2002. This Act was not effective as of the June 26, 2002 hearing in the case
at bar. It was, however, effective prior to the dispositive Order of the trial court of November 20,
2002.

      Kendrick and Cranston both acknowledged this legislative act, which was codified as
Tennessee Code Annotated section 36-6-101(a)(2)(B). In footnote, it is observed in Cranston:

             As the parties have noted, the legislature has enacted Tennessee Code
       Annotated section 36-6-101(a)(2)(B) (2001 & Supp. 2002), which provides:


                                                 -6-
                If the issue before the court is a modification of the court’s prior
                decree pertaining to custody or a residential parenting arrangement,
                the petitioner must prove by a preponderance of the evidence a
                material change in circumstance. A material change of circumstance
                does not require a showing of a substantial risk of harm to the child.
                A material change of circumstance may include, but is not limited to,
                failures to adhere to the parenting plan or circumstances which make
                the parenting plan no longer in the best interest of the child.
       (Emphasis added). Although the statute did not become effective until July 15, 2002,
        i.e., after the proceedings in this case, it reflects that the legislature has likewise
       clarified that a substantial risk of harm to a child is not required to find a material
       change in circumstances for the purpose of modifying a custody decree. See
       Kendrick, 90 S.W.3d at 570 n. 5 (discussing the enactment of Tenn. Code Ann. § 36-
       6-101(a)(2)(B)).

Cranston, 106 S.W.3d at 644 n.1.

        Thus, both by common law development and by legislative enactment, Musselman v. Acuff,
Wall v. Wall, and all of their respective progeny as to this issue have been overruled.

        Laurie Ann Searcy and Sandy Lee Searcy married on March 27, 1993, and their only child,
V., was born October 17, 1995. On November 12, 1998, Mother filed a Complaint for Divorce
against Father, and the parties agreed that, pre-divorce, Mother would act as primary custodian with
Father having visitation privileges.

       Problems began in early April of 1999, which can best be described in the findings of fact
made by the trial court following the hearing held June 24, 1999 on an Emergency Motion to
Transfer Primary Physical Custody to Father and for Supervised Visitation filed by Father. Said the
court:

       1.      The parties[] to this action were married on March 27, 1993. One child has
               been born of this marriage; namely, [V.M.S.], date of birth: 10/17/95.
       2.      The Mother filed for divorce on November 12, 1998.
       3.      On February 11, 1999, the parties entered into an Agreed Order for joint
               custody granting primary physical possession of the child to the Mother, with
               Father having visitation privileges, including overnight visitation. Said
               Agreed Order was signed by this Court and entered on March 26, 1999.
       4.      Thereafter, Mother maintains through communications with various entities
               that on April 7, 1999, the child’s vagina was red and irritated. On April 8,
               1999, the Mother took the child to Dr. Sparks, who conducted a
               gynecological examination resulting in findings of no redness or irritation of
               the minor child. Further, on April 12, 1999, the Mother made a referral to
               DCS alleging that the child had been subjected to sexual abuse, suggesting


                                                 -7-
      the Father may be the perpetrator. On June 11, 1999, the Mother made
      another allegation of child sexual abuse against the Father and took the child
      to Dr. Roark, who conducted another gynecological examination and found
      no evidence of trauma.
5.    During the course of the Mother’s complaints of sexual abuse, the Mother
      provided the Robertson County Department of Children’s Services (hereafter
      “DCS”) and the Springfield Police Department with audio and video tapes
      made by the Mother and the child’s maternal grandmother, Patsy Fletcher,
      which included leading and suggestive questions direct[ed] by the Mother
      and the maternal grandmother to the child with how the child should answer
      their questions as far as tapes are concerned.
6.    Chris Bible, a DCS investigator, interviewed the minor child on May 24,
      1999, and was unable to obtain any disclosures by the child, but did receive
      certain photographs of the child’s genitals made by the Mother and the
      maternal grandmother.
7.    Chris Bible and Officer Jo Ann Gregory, a sexual abuse investigator with the
      Springfield Police Department, observed that the Mother was concerned at
      the onset of the department’s investigations, but over the course of the
      investigations, became hard to deal with, irate, violent, and uncooperative,
      even in the presence of the child.
8.    Officer Jo Ann Gregory also testified that the Mother admitted to her that
      after each visitation period between the child and the Father, the Mother
      would examine the minor child[‘s] vagina for signs of sexual abuse.
9.    After numerous gynecological examinations conducted on the minor child by
      various physicians, and even by the Mother with the participation of the
      maternal grandmother, there has been no confirmation of trauma to the
      child’s genital area.
10.   The complaints of child sexual abuse against the Father are unfounded,
      pursuant to the investigations by the Springfield Police Department and DCS;
      however, said departments are concerned about what the Mother is doing to
      this child.
11.   The Mother did not appear at this emergency hearing, despite her being duly
      noticed.
12.   As a result of the Mother’s actions, the minor child now fears that the “police
      are going to take her mother away.”
13.   In addition, the Mother has called the Father a “child molester” in the
      presence of the child.
14.   The Court has determined by this clear and convincing evidence that some
      psychological and/or emotional harm is already being experienced by this
      minor child as a result of the irrational conduct and intrusive behavior of the
      Mother.




                                       -8-
       15.     The Court finds that the Father was cooperative with the investigations of the
               Springfield Police Department and DCS, while maintaining rational behavior
               throughout, and is no longer under any investigation.
       16.     The Mother, however, has maintained irrational behavior, even through the
               date of this hearing by her non-appearance at this emergency hearing.

        Based upon these findings of fact, the trial court awarded Father custody of the child with
a provision “[t]hat the Mother is awarded supervised visitation of the minor child only during periods
when the Father is at work and with a third party continuously present, said third party being a
person mutually agreeable between the parties.”

        Fourteen months later another hearing was held on August 10, 2000, on an Emergency
Motion to Suspend Visitation Between the Wife and Minor Child, or in the Alternative, Strictly
Limit Visitation Between the Wife and Minor Child, which motion was filed by Father. After this
hearing, an Order was filed October 4, 2000, which provided, in part: “Attached hereto as Exhibit
“A” and incorporated herein is an excerpt from the transcript of the Court’s Ruling as a result of the
August 10, 2000 hearing (the transcript bearing the date of August 8, 2000; however, the correct date
of the hearing on the reference Motion is August 10, 2000).” This excerpt, entered as a part of the
court’s Order of October 4, 2000, provides in pertinent part, as follows:

                       On June 24th, 1999, there was an emergency motion for the Court to
       determine the custody of this child. An Order was tendered as a result of that
       hearing, June 25th, 1999. The Order reflected in various parts that Laurie Ann
       Searcy is the mother of this child, [V.M.S.], and that Sandy Lee Searcy is the father.
       That the birthday of this child is October 17th, 1995. This Order is being entered
       June 25th, 1999; the child is not yet four years old - - three years old. The child is
       three years old.
                       The Order reflects the finding of the fact that the mother files the
       divorce on November 12th, 1998. That on February 11th, 1999, the parties entered
       into an Agreed Order for joint custody granting primary physical possession of the
       child to the mother; the father, having visitation privileges, including overnight
       visitation. This Agreed Order between the parties was entered on the records of the
       Court March 26th, 1999.
                       Thereafter, the mother maintains that on April 7th, 1999, the child’s
       vagina was red and irritated.
                       On April 8th, 1999, the mother took the child to Dr. Sparks who
       conducted a gynecological examination and made a finding that there was no redness
       or irritation.
                       On April 12th, 1999 - - Remember, this is a three-year-old child at this
       point. - - the mother made a referral to Department of Children’s Services alleging
       the child had been subjected to sexual abuse, suggesting the father may be the
       perpetrator.



                                                 -9-
                On June 11th, 1999, the mother made another allegation of child
sexual abuse against the father and took the child to a Dr. Roark. Another
gynecological examination was made. Dr. Roark found no evidence of trauma.
                The mother provided the Robertson County Department of Children’s
Services and the Springfield Police Department with audio and videotapes made by
the mother and the child’s maternal grandmother, Patsy Fletcher. Tapes which
included leading and suggestive questions directed by the mother and the maternal
grandmother to the child with how the child should answer their questions. A
Department of Children’s Services investigator interviewed the child May 24th,
1999. Three-year-old child. The investigator was unable to obtain any disclosures
by the child but did receive certain photographs of the child’s genitals made by the
mother and the maternal grandmother. Chris Bible, an investigator for the
Department of Children’s Services, and Officer Joanne Gregory observed that the
mother was concerned at the onset, but over the course of the investigations, became
hard to deal with; irate, violent, and uncooperative, even in the presence of the child.
                The mother admitted to Officer Gregory that after each visitation
period between the child and the father, the mother would examine the minor child’s
vagina for signs of sexual abuse. After numerous gynecological examinations
conducted on the minor child by various physicians and by the mother, with the
participation of the maternal grandmother, there has been no trauma of - - to the
child’s genital area. The complaints of sexual abuse against the father were
unfounded as determined by the Springfield Police Department and the Department
of Children’s Services. The Departments are concerned about what the mother is
doing to this child. The Court has determined that some psychological and/or
emotional harm is already being experienced by this minor child as a result of the
irrational conduct and intrusive behavior of the mother. The mother has maintained
irrational behaviors. With that finding, the Court awarded custody of this minor
child to her father and granted the mother supervised visitation.
                Today, I’m going to refer you to the testimony of the supervisors.
Now, remember, supervisors were not required until this Order of June 25th, 1999
was entered. Still, the child’s only three years old. Those who have supervised the
child since that Order was entered told us today - - first, Ms. Beauchane. At the time
when Ms. Beauchane, the mother, the private investigator, and the grandmother, and
the grandfather, who just testified, were at the house, after hearing the private
investigator say there was not enough evidence to prove anything against the father
to prevent him from taking the child to Florida, the mother said, He is not taking the
child to Florida. The mother went and packed a bag, got the child, and started
walking towards the woods. Her father, Mr. Fletcher, went after her. Ms. Beauchane
said to Pat Fletcher, the maternal grandmother, Is she trying to leave? The maternal
grandmother responded, Yeah, but he’ll get her back. And then the statement was
made, I’ve got a court date, you can’t do this, as they were trying to encourage the
mother not to leave with this child.



                                         -10-
                  June 24th, 1999, the Court found that the mother has demonstrated
irrational behavior for conduct prior to June 24th, 1999. Today, August 10th, 2000,
the Court finds that the mother is still demonstrating irrational behavior for conduct
in May - - or June of 2000. Nothing has changed.
                  When Mr. Searcy, the father, was given custody of the child, all of the
things the mother had been doing were the reasons for Mr. Searcy being granted the
custody of the child. What has the mother done since? Again, according to Ms.
Beauchane, she has observed the mother taking pictures of the child’s genitals. She,
personally - - though, she wasn’t the regular supervisor - - was requested to look on
four different occasions herself. She specifically recalls that Patsy Fletcher, the
maternal grandmother, was present on one occasion. And her own mother was
present. Her own mother. Ms. Beauchane’s own mother was present on other
occasions. The mother is still taking pictures of this child’s genital areas.
                  Now it’s not just her and the maternal grandmother; now it’s the
supervisors or anyone else who happens to be in the household. Nothing has
changed. That this child is asked to pose for pictures of her genitals, to turn around
and bend over, and do this and do that, so we can get pictures of your genitals.
                  And Ms. Beauchane is asked, Have you seen the child pull at her
genitals, touch her genitals, scratch herself? Why, yes. Well, why not? It seems to
be the main topic of conversation at her grandfather’s house. It’s what everyone’s
interested in. We play and take pictures, he said. Yes, indeed you do. I’ve never
seen a child brought up to see that taking pictures of her genitals was play, though.
                  Ms. Beauchane testified that especially Patsy Fletcher would say to
the child, What did daddy do to you with this candle? And that on one occasion, Ms.
Fletcher handed the candle to her, Ms. Beauchane, but she wouldn’t take it. So Patsy
Fletcher handed the candle to the child. I’m a lawyer not a child psychologist, but
I think it would be a real good question to say to a child psychologist, If a child were
abused with a candle, would you take a candle and hand it to them? It would be like
if you’re stabbing a child with a knife [Court motions], and they’re getting all bloody,
you going to bloody the knife and hand it to the child? If they’ve been abused with
it? I mean, if they truly believed that was happening, would they do that? This is the
instrument of your harm to your private area, put it in your hands. I would think that
if it’s truly happening, I would think the child would be horrified and scream and run
and cry. I wouldn’t do it. But I’m a lawyer. Maybe that’s not the right approach.
Maybe the child has been beaten with something, you hand them that? Look, here,
this baseball bat’s not that bad. I don’t know. But they did it. Ms. Beauchane said,
Patsy Fletcher did it. The mother’s there, and she’s there, and the child takes the
candle and is not bothered one bit. I wouldn’t have risked it if she was really abused.
I think that could have done a lot of psychological damage, but they did do it, and the
child held it without being bothered one bit.
                  After a discussion about whether or not it was even believable that the
father was sexually abusing the child and so many third parties did not find it
believable, Ms. Beauchane said the child began to be questioned about the father:


                                          -11-
What did he feed you for supper? Where did you spend the night? Who was there?
Who watched you? Who is he dating? Who does he talk to? Who was on vacation
with you? At least the child’s not being talked to about sexual abuse. But to be
grilled about her father’s activities, instead of enjoyed. She’s now four years old.
Was [that] not the point of the visitation the Court awarded the mother. It was not.
It was really to strengthen the mother-daughter relationship. The mother used it to
focus on the father-daughter relationship. She totally missed the point.
                 Ms. Kathy Warden, confirms this conduct. Ms. Kathy Warden was
apparently a sitter for a longer period of time. Ms. Kathy Warden puts the abuse of
this child in a much more clear perspective when she says, the mother questioned this
child every day as soon as the child was put into the car. The mother began with
what was happening to the child. The tape recorder was turned on. The child knew
the tape recorder was on. That, too, didn’t bother her. And the mother would even
turn the air conditioner off if the car was stopped like in the driveway, or waiting to
pick her up, or whenever they got her home, or even at McDonald’s, so they could
be sure to get every word about the alleged abuse the child was sharing with them.
                 And pictures and videotapes, Mrs. Searcy, the mother of this child,
only had visitation privileges three days in the week. According to Ms. Warden, in
three days, two or three rolls of film are taken of this child. Not all, obviously, of her
genitals. But this child hasn’t had an unrecorded moment, it doesn’t appear to the
Court. Either a photograph is being made, an audiotape is being made, or a videotape
is being made, especially every moment of her life that she has been sharing with her
mother.
                 Ms. Warden confirms that after it was apparent that the sexual abuse
against the father could not be established, that the questions turned to the father.
The father’s private life. The father’s plans for his time with the child to which Patsy
Fletcher, the maternal grandmother, addressed. Tell them where you don’t want to
go, child. Tell them, or I’ll start crying.
                 Ms. Warden testified that she, a grown woman, went home every day
stressed. She finally came to think that what the child was being put through, that
she observed, at the Fletcher household is abuse. And that on the day before the
child was to go to Florida on a vacation with her father, she, Ms. Warden, begged the
mother not to questions this child. Begged. Begged.
                 Nothing’s changed. Except one would think that if one’s not granted
custody of their own child because the Court found in June of 1999 the mother was
doing these things, and for these reasons, the mother does not get custody, that the
mother would stop. One would think. If those are the reasons I lost custody,
goodness forbid, I won’t do this. Not if you really want custody. Of course, if you
want to slander the father, carry on. If you want to put the father in disrepute, carry
on. If you want everyone you come in contact with to think that he is illegally
touching his child, carry on. But if you don’t want to mistreat the child who you
already think is being mistreated because the Court finds that in the process of trying
to save her, you’re causing her damage, you stop that. It hasn’t stopped. New


                                          -12-
       audience. Nothing’s changed, except what the mother was doing flies in the face of
       the Order the Court made June 25th, 1999. Ah, well, you didn’t like this, well, we’re
       just going to carry on.
                        I gave you access to this baby, and, now, for another year, she has
       been exposed to everyone who comes in contact with her. She thinks her genitals are
       the height of her being. Something to be admired, I guess. I think the Court made
       a mistake counting on the mother to focus on her relationship with her child. That’s
       what I thought I was doing. I made a mistake. And I really wish I could explain to
       this child that I did not intend for her to be further exposed and photographed and
       taped and videoed and questioned. I thought her mother and her mother’s family had
       more good things, desirable activities, in mind for her.
                        Every time a Court makes a decision for a defenseless entity, we run
       the risk of exposing them to more harm. Now, I have a guardian ad litem telling me
       that this child needs be seen by a mental health professional, and I don’t doubt it.
       And I also don’t doubt - - although I’ve never been anxious, I don’t doubt that the
       mother should not have visitation unless it is supervised by an independent third-
       party entity like the Department of Human Services which most assuredly would not
       let the child suffer any other harm. And although I’m aware that the Department of
       Human Services or Children’s Services doesn’t have an abundance of workers, and
       this may result in the restriction of the mother’s access to the child, the mother has
       left me no choice. And this Motion is granted.

         The findings of the trial court as to the bizarre behavior of Mother, both before the June 24,
1999 hearing and during the interim between June 24, 1999 and the August 10, 2000 hearing, not
only have ample evidentiary support in the testimonial record but, in fact, are practically undisputed
by Mother. The testimony supporting the continuation, after June 29, 1999, of Mother’s inquisition
of this three to four-year-old child about alleged sexual abuse by Father comes primarily from Kelly
Beauchane and Kathy Warden. These witnesses are the very persons authorized by the trial court
following the June 24, 1999 hearing to monitor and supervise the visitation between Mother and the
minor child.

         Based upon these extensive findings of fact following the August 10, 2000 hearing, the Order
of the trial court of October 4, 2000 provided in decretal part:

               2.      As to Husband’s Emergency Motion to Suspend Visitation Between
                       the Wife and Minor Child, or in the Alternative, Strictly Limit
                       Visitation Between the Wife and Minor Child, the Court finds the
                       motion is well taken and orders that visitation between the Wife and
                       Minor Child be terminated until such time as a supervisor by an
                       independent third-party entity; or a supervisor who works for the
                       Department of Human Services, or a health care professional who
                       deals with child-abuse situations is in place and feels comfortable in



                                                 -13-
               terminating the visitation, to take the Minor Child into their custody
               to protect the Minor Child and be responsible for the Minor Child.
       3.      The Guardian Ad Litem, Jerry Hamlin may consent to the supervising
               entity and if he is willing to take that responsibility, then his approval
               would satisfy the requirement of the Court.
       4.      That at a point in time when supervised visitation between the Wife
               and the Minor Child has been properly established, as referenced in
               Paragraph 2 above, said supervised visitation must take place
               somewhere other than the home of Pat Fletcher.
       5.      That telephone visitation between the Wife and the Minor Child is
               suspended pending further Orders of this Court.
       6.      That the Wife is allowed unlimited written communication with the
               Minor Child so long as the Wife refrains from negative phrases,
               which might hurt the Minor Child, such as “I miss you”, which this
               Court deems a negative.

On March 28, 2001, the Final Decree of Divorce was entered and provided, in pertinent part:

        It is further ORDERED, ADJUDGED and DECREED that all child-related
issues pertaining to the parties’ minor child, [V.M.S.] (d.o.b. 10-17-95), should be
and are hereby contained in the Final Parenting Plan executed by the parties on the
22nd day of March, 2001, to which reference is hereby specifically made and which
is incorporated hereto by reference the same as if set out verbatim herein.

       ....

       It is further ORDERED, ADJUDGED and DECREED that this Final Decree
of Divorce and Final Parenting Plan supercede any pendente lite Orders in this cause.

The parenting plan incorporated in the Final Decree of Divorce provided, in pertinent part:

1.      All visitation to be supervised by Teresa McWilliams, Robert or Faye Carroll,
or other supervisors as the parties may agree.
2.      Mother shall be restrained and enjoined from questioning the minor child
about sexual matters or about the Father’s activities and/or audio and videotaping the
same.
3.      Mother shall be restrained and enjoined from taking or allowing anyone to
take nude photos or videos of the minor child.
4.      Mother shall be restrained and enjoined from subjecting the child to any
gynecological exams or taking her to routine physical exams. In the event of a
medical emergency, the Mother shall notify the Father immediately.
5.      Good byes at the end of the Mother’s residential time shall be limited to five (5)
minutes.


                                         -14-
       6.       The Mother shall be permitted to attend reasonable school events, lunch at
       school once a week, and extracurricular activities of the child, with a supervisor.
       7.       The Mother shall not take the minor child out of the state without the express
       permission of the Father.
       8.       The parties shall participate in mediation within thirty (30) days for purposes
       of determining enhanced residential time and lessened restrictions for the Mother,
       based upon the passing of time and the conduct of the parties; to determine
       possession of the child’s furniture, clothing and accessories now in the possession of
       the Father; to determine child support, if any, paid to the Father and the amount
       thereof; and during which mediation the Mother shall tell the Father where she and
       the child went when they were gone in the summer of 1999.
       9.       All other, prior restrictions on pendente lite visitation not reiterated
       specifically herein, are hereby dissolved, including particularly the restriction against
       visitation at the Fletcher’s homes and the time limits on supervision by McWilliams
       and the Carrolls.
       10.      The Father shall be permitted to communicate with the supervisors.

        On December 7, 2001, Mother filed her Petition to Modify Parenting Plan asserting that
efforts at mediation relative to less restrictions and enhanced residential time for the Mother had
failed. On January 28, 2002, Father filed an Answer and Counter-Petition asserting that Mother had
failed to set forth a substantial and material change of circumstances and was continuing her
previous course of conduct relative to the minor child. In his Counter Petition, he sought child
support from Mother. Subsequent pleadings and motions resulted in an Agreed Order of April 24,
2002, providing specific spring holiday visitation for Mother, provided same was supervised by the
court appointed supervisors. On June 26, 2002, the court heard the issues presented by the Petition
to Modify Parenting Plan and the Counter-Petition filed by Father. Following that hearing, the court
held, in pertinent part:

               21.      The Court finds that it is proper for the Court to make the areas left
       blank in the Permanent Parenting Plan compatible with the Permanent Parenting Plan
       agreed to between the parties.
               22.      The Court finds that no overnights were provided for the Mother in
       the Permanent Parenting Plan. Further, the Court finds that the Permanent Parenting
       Plan required all of the Mother’s time with the child to be supervised.
               23.      The Court finds that it is quite clear from the Permanent Parenting
       Plan that it has been a problem for the child to be questioned by the Mother about
       sexual matters, have nude photos made and videos made of the child’s private
       person, to be taken to gynecological examinations, and that it is not in the child’s best
       interests to be subjected to this kind of conduct by the Mother.
               24.      Further, the Court finds that the Mother does not seem to understand
       that some things that she says or does may hurt this child. The Court finds that the
       Mother believes that she has not hurt this child. The Court finds that the Mother
       acted inappropriately when she told the minor child that the Mother is very ill; when


                                                 -15-
        she told the minor child that the minor child would be coming home to live with the
        Mother soon; and when she calls the child by the Mother’s maiden name.
                25.      The testimony reflects that the Mother is not sensitive enough to what
        the child might feel or be unable to handle emotionally at six years of age.
                26.      The Mother has to be supervised even when she attends public events,
        which indicates that because of the Mother’s prior absconding with the child, that it
        is feared that the Mother will abscond with the child again.
                27.      That the Mother cannot remove the child from the state, so that she
        might not secret the child with the permission of the Father is another precaution
        against the mother absconding with the child.
                28.      Under the original Permanent Parenting Plan the Father is allowed to
        communicate with the supervisors so that he may make sure that everything that the
        Mother is not supposed to do is not being done.
                29.      Based upon the foregoing, the Court finds that the Father’s Proposed
        Parenting Plan is more compatible with the spirit of the original Permanent Parenting
        Plan, and the Court hereby approves and adopts same.

        In the decretal portion of the Order, it was provided, in pertinent part:

                1.       Attached hereto as Exhibit A and incorporated herein by reference is
        an excerpt from the transcript and the Court’s Ruling as a result of the hearing of this
        matter on the 26th day of June, 2002.
                2.       That the Permanent Parenting Plan entered in this cause on the 28th
        day of March, 2001 is hereby modified as set forth in the Father’s Proposed Parenting
        Plan filed in this cause; and that the Permanent Parenting Plan reflecting said changes
        and filed herewith is approved, accepted and made the Order of this Honorable Court.

         The Parenting Plan adopted as a part of this Order left visitation for the Mother essentially
the same as in the previous Parenting Plan in the Final Decree of Divorce, with some expansion of
such visitation for holidays but with essentially the same provisions for supervisors of such
visitations.

     The Order following the June 26, 2002 hearing was entered on November 20, 2002 and, on
December 19, 2002, Laurie Ann Searcy filed a timely Notice of Appeal.

        Issues on appeal: “I. Whether the trial court erred in failing to award Mother relief pursuant
to paragraph 8 of the Addendum to the Parenting Plan. II. Whether the trial court’s judgment must
be reversed because the court utilized the wrong legal standard applicable to a modification of a
Parenting Plan.”

        Since it is clear that the trial court utilized a variation of the Musselman-Wall standard rather
than the presently effective Cranston v. Combs standard in determining whether or not a change of
circumstances occurred, the sole remaining question before this Court is whether or not the record


                                                  -16-
shows a change of circumstances within the standard of Cranston v. Combs. If no change of
circumstances has occurred under this standard, the judgment of the trial court must be affirmed.
If a change of circumstances has occurred under this standard, then this Court must address the
second part of the Cranston v. Combs’ test, which is a comparative fitness test.

        The testimonial record in this case indicates that little or no change has occurred in the period
between the Final Divorce Decree of March 28, 2001, and the final Order of the court denying the
Petition to Modify Parenting Plan on November 20, 2002.

        The most persuasive testimony as to there being no change of circumstances is the testimony
of Mother herself. She makes it clear that she feels that her separation from her child has been
brought about solely through the acts of Father and that she bears no responsibility. She has
refrained from further investigation of her sexual abuse charges because of the specific orders of the
court, but she repeatedly insists on telling the child that she will be coming back to live with Mother.
Specifically, she says:

                  Q.    Ms. Searcy, have you told your daughter that she would be back living
        with you soon?
                  A.    Yes, and I hope she will.
                  Q.    And you caused her to actually expect that by repeating that so often,
        haven’t you?
                  A.    Well, me and my daughter have a lot of faith in God, and sooner or
        later - -
                  Q.    Have you encouraged that by repeating it?
                  A.    Why shouldn’t I encourage my daughter that she’ll never be at home
        and I’ll never be with her?
                  Q.    But you told your daughter that she’s going to be coming to live with
        you soon; is that right?
                  A.    One of these days, I hope so. And that’s what I say - - I hope so.

She also embarked upon a further course of telling the child that her name was Fletcher instead of
Searcy, Fletcher being the Mother’s maiden name.

         While the trial court verbalized the wrong standard in determining whether or not a change
of circumstances has occurred, the record of the June 26, 2002 hearing, and particularly the
testimony of Mother, indicates that, at best, with the exception of the discontinuence of the sexual
abuse charges, there has been no change in her conduct, which is, after all, the sole cause of her
restricted access to her child.

        Cranston v. Combs provides:

               First, the court must determine whether a material change in circumstances
        has occurred after the initial custody determination. Although there are no bright-line


                                                  -17-
       rules for determining when such a change has occurred, there are several relevant
       considerations: (1) whether a change has occurred after the entry of the order sought
       to be modified; (2) whether a change was not known or reasonably anticipated when
       the order was entered; and (3) whether a change is one that affects the child’s well-
       being in a meaningful way.

Cranston, 106 S.W.2d at 644. Whatever change of circumstances may have occurred in this case,
is certainly not a change that “affects the child’s well-being in a meaningful way.

         The second provision of the Cranston v. Combs’ standard involving a comparative fitness
test is not triggered unless a change of circumstances is first found to have occurred. No such change
is evidenced in this case.

        The judgment of the trial court is in all respects affirmed under the standards set forth in
Cranston v. Combs. Costs of this cause are assessed to Appellant, and the case is remanded to the
trial court for such further proceedings as may be necessary.




                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




                                                -18-
