                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     September 2000 Session

         MITCHELL LYNN ROBERTS v. BEVERLY JEAN ROBERTS

                    Appeal from the Chancery Court for Cheatham County
                             No. 5685  Allen W. Wallace, Judge



                     No. M2000-00216-COA-R3-CV - Filed October 5, 2000


This is an appeal from the trial court’s modification of an order of visitation increasing the appellee’s
amount of summer visitation. We affirm the judgment of the trial court.

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

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and PATRICIA J. COTTRELL , JJ., joined.

Markley Runyon Gill, Erin, Tennessee, for the appellant, Mitchell Lynn Roberts.

J.L. Thompson, III, Nashville, Tennessee, for the appellee, Beverly Jean Roberts.

                                              OPINION

        The parties were divorced several years ago and the appellant received custody of the parties’
minor children. At the time of the custody hearing at issue, only one of the parties’ children was still
a minor. The record indicates that the appellee was absent from the child’s life for a period of
several years but resumed visitation with the child in 1995.

        After the appellee received visitation with her son, the parties began experiencing difficulties
with the implementation of such visitation. The appellee is a Seventh Day Adventist and believes
that the Sabbath begins at sundown on Friday and continues through sundown on Saturday. During
this time, no secular activities are permitted. However, the appellant had signed the child up for
several sporting activities. These sporting activities took place during many, if not all, of the
appellee’s scheduled visitation weekends. These activities also occurred on Saturday conflicting
with the appellee’s religious beliefs.

        In 1998, a custody hearing was held and the trial court ordered that the appellee was “not to
interfere with the minor child’s extracurricular activities” and she was given the option to decline
her visitation “[i]f [she felt] unable to take the child to his activities during visitation because of her
religious beliefs.” The present action arose when in April of 1998, the appellee filed a petition
alleging that she had been denied her constitutional right to exercise religious freedom under the
federal and state constitutions. The appellee further alleged that she had been denied standard
visitation privileges with her son.

        At the hearing, the evidence established that on several occasions the appellee was late
delivering the child to various sporting activities and that on several other occasions she never
delivered the child to the scheduled event. The evidence further established that on many of the
Saturdays that the appellee did deliver the child for the scheduled event, the appellant did not return
the child to the appellee until Sunday morning rather than Saturday afternoon when the games were
finished. There was also testimony indicating that the appellee had slapped and spanked the child
and had pulled the child’s hair.

        At the end of the hearing, the trial court ordered that the appellant notify the appellee
concerning the exact schedules of the football and baseball games and that the appellee deliver the
child to the appellant’s home one hour prior to such games. The trial court further ordered that the
appellee make sure that the child is able to participate in all football and baseball picnics and award
presentations if they occurred during her visitation weekend. The trial court instructed the appellant
to return the child to the appellee immediately after the activities on her visitation weekend. The trial
court then awarded the appellee five weeks of summer visitation rather than the previous order
allowing only two weeks. The appellee was also ordered not to “whip, spank, slap” or in any way
physically punish the child. The appellant now appeals.

         We first note that the scope of review in a custody case is de novo upon the record with a
presumption of correctness unless the evidence preponderates otherwise. Hass v. Knighton, 676
S.W.2d 554 (Tenn. 1984). This Court must give great weight to the factual determinations of the
trial judge who both heard and observed the witnesses. Massengale v. Massengale, 915 S.W.2d 818,
819 (Tenn. Ct. App. 1995); see Gotwald v. Gotwald, 768 S.W.2d 689, 695-97 (Tenn. Ct. App. 1988).
Accordingly, we will not disturb custody decisions unless they are based on a material error of law
or the evidence preponderates against them. See Hass, 676 S.W.2d at 555; Gaskill v. Gaskill, 936
S.W.2d 626, 631 (Tenn. Ct. App. 1996).

        In a custody proceeding, the child’s best interests are the paramount consideration.
Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). Custody and visitation decisions
are not intended either to reward or to punish parents. See Adelsperger v. Adelsperger, 970 S.W.2d
482, 485 (Tenn. Ct. App. 1997); Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995). In a
modification proceeding, the trial court may alter visitation or custody decisions where there are
material changes in the child’s circumstances compelling enough to warrant a change. Solima v.
Solima, 7 S.W.3d 30, 32 (Tenn. Ct. App. 1998). In fact, the legislature has decreed that custody
decrees are “subject to such changes or modification as the exigencies of the case may require.”
Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 1999). This Court has previously held that courts will
alter a custody arrangement where the party seeking the change proves (1) that the child’s


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circumstances have materially changed in a way that could not have been reasonably foreseen at the
time of the original custody decision and (2) that the child’s best interests will be served by changing
the existing custody arrangement. Adelsperger, 970 S.W.2d at 485.

        There are no bright line rules for determining when a change in a child’s circumstances will
be deemed material enough to warrant a change in the custody or visitation arrangement. See Taylor
v. Taylor, 849 S.W.2d 319, 327 (Tenn. 1993); Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn.
Ct. App. 1983). However, the party seeking the change must prove that “some new fact has occurred
which has altered the circumstances in a material way so that the welfare of the child requires a
change of custody.” Griffin v. Stone, 834 S.W.2d 300, 302 (Tenn. Ct. App. 1992). The change of
circumstances must be such that “continuation of the adjudicated custody will substantially harm the
child.” Wall, 907 S.W.2d at 834. If the requested modification is based on the custodial parent’s
behavior, such behavior must clearly posit or cause danger to the mental or emotional well-being of
the child. See Musselman, 826 S.W.2d at 924. The paramount concern is the welfare and best
interest of the child. In re Parsons, 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995).

         We first note that we agree with the appellant’s contention that the appellee’s religious
beliefs do not constitute a change of circumstances and, therefore, could not be grounds for a change
in custody or visitation.1 However, the record establishes that the appellant did not comply with the
visitation order when he failed to return the child to the appellee after scheduled sporting activities
that occurred during the appellee’s visitation weekends. The record further establishes that the child
is now in therapy. We find that the appellant’s noncompliance with the visitation order and the
adverse affects of the entire situation on the child are sufficient to constitute a material change in the
child’s circumstances. The original custody order and the way the parties implemented such order
did not work out for the child’s best interests. As such, it was within the trial court’s discretion to
modify the visitation order.

        The appellant further contends that the trial court erred in failing to grant his motion to
dismiss at the close of the appellee’s proof. The appellant bases this argument on the assertion that
the appellant’s petition for modification failed to recite or allege any change of circumstances
warranting a change in the visitation order. However, the petition recited the appellant’s failure to
comply with the trial court’s visitation order granting her two weeks of visitation in the summer.
As we have found that the appellant’s failure to comply with the visitation order was sufficient to
constitute a change in circumstances, this issue is without merit.

        The appellant further contends that the trial court erred in failing to find the appellee in
contempt of the visitation order in that she failed, on several occasions, to deliver the child to
scheduled sporting events on time or at all. In response, the appellee points to the appellant’s failure
to return the child after scheduled events during her weekend visitation. However, this Court has
previously held that an appeal does not lie from an acquittal for criminal contempt. Zwick v. Jones,


         1
             We no te that religious b eliefs could co nstitute a materia l change of cir cumstance s where such beliefs
constituted a d anger to the e motional o r physical well-b eing of the child . Such is not the c ase in the pres ent appea l.

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589 S.W.2d 664, 666 (Tenn. Ct. App. 1979); Plumb v. Plumb, 372 S.W.2d 771, 774 (Tenn. Ct. App.
1962). Therefore, this issue lacks merit.

         The appellant further contends that the trial court erred in failing to find that the child’s
visitation with the appellee was causing the child substantial harm. The appellant bases this
argument on testimony indicating that the appellee had forced the child to take baths in front of her
and to sleep in the same bed with her during her visitation. The appellant also points to evidence that
the appellee had slapped the child’s face and pulled his hair. There were also two incidents in which
the child returned from visitation with the appellee with a sunburn. The appellant further cited a
situation where the appellee left the child in front of the appellant’s home alone for a few minutes.
In regard to this issue, the trial court specifically stated that the sunburns were “not a big thing” and
that there is “nothing wrong with a nine-year-old boy being taken home and left for a few minutes.”
The trial court did not find the appellee’s discipline of the child to be substantially harmful but did
order her, as the noncustodial parent, to refrain from “physical whippings or spankings or slappings,
anything like that.” The evidence does not preponderate against the trial court’s findings. This issue
is without merit.

      The judgment of the trial court is affirmed and the cause remanded to the Chancery Court for
Cheatham County for any further proceedings necessary. Tax the costs on appeal to the appellant,
Mitchell Lynn Roberts.




                                                _________________________________________
                                                BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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