                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                         March 5, 2001 Session

 BILLY RAYMOND GEORGE v. MISTY DRIVER GEORGE MULLICAN


                    Direct Appeal from the Chancery Court for Cannon County
                           No. 92-19  Robert E. Corlew, III, Chancellor



                         No. M2000-01106-COA-R3-CV - Filed June 18, 2001


This appeal arises from a child custody action. After divorce, Mother was awarded custody of Child.
Father later filed a petition for contempt charging that Mother was denying him visitation. Mother
denied these charges and counter-filed claiming that Father had failed to meet his support
obligations. While these matters were pending, Mother filed a report with the Department of
Children’s Services that Father had sexually molested Child. Mother later admitted these charges
to be false, and as a result, Father gained temporary custody of Child. Mother later filed this petition
requesting the return of Child to her custody. The trial court refused, instead finding that Father was
the more fit parent and awarding him permanent custody. Mother appealed this decision. We
affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHER, J., joined.

Daryl M. South, Murfreesboro, Tennessee, for the appellant, Misty Driver George Mullican.

J. G. Mitchell, III and William E. Tillery, Murfreesboro, Tennessee, for the appellee, Billy Raymond
George.

                                                OPINION

        Billy Raymond George and Misty Driver George Mullican were divorced on September
10, 1993. Ms. Mullican was awarded custody of the parties’ only child, Tyler, pursuant to the
final divorce decree.1 In October of 1997, Mr. George filed a petition for contempt against Ms.
Mullican charging that he was being denied visitation. In her reply and counter petition, Ms.

       1
           Tyler was born on August 14, 1992.
Mullican denied these charges and asserted that Mr. George had failed to provide proper
financial support for Tyler. Both petitions were still pending in April of 1998 when Ms.
Mullican filed a report with the Department of Children’s Services (Department) alleging that
Tyler had been sexually abused by Mr. George when he was both three and five years old.

        After an investigation, Department determined that Ms. Mullican had made a false report
of sexual abuse.2 In addition, Department determined that Tyler’s maternal grandmother, Ms.
Mullican’s mother, had coached the child to report he had been sexually abused by his father.3
As a result of these findings, Department removed Tyler from her custody and transferred
custody to Mr. George.4 Ms. Mullican later filed a Motion for Emergency and Immediate
Change of Custody, requesting that Tyler be returned to her custody. She claimed that,
notwithstanding the Department’s findings, Tyler had been abused by Mr. George.5 The trial
court allowed Mr. George to retain temporary custody of Tyler pending the outcome of a hearing.
The court also appointed a child psychologist to conduct a full psychosexual evaluation of Tyler
and report the results to the trial court.6

        The psychologist, Jamie Berryman, reported that Tyler’s statements of abuse were
credible and consistent. However, she found Tyler’s statements lacked emotion or specific
details and hypothesized that this lack of emotion or details could be the result of the time period
that had past since the alleged abuse. The psychologist also testified that she could not
specifically state that Tyler had been abused, saying that this determination was a question she
normally left for the courts to answer.
        After consideration of all the presented evidence,7 the court found that the allegations that
Mr. George had sexually abused his son, Tyler, were not proven by the preponderance of the




         2
         Ms. Mullican eventually admitted to filing a false report after an interrogation by Department and local law
enforcement officials.

         3
         In light of this revelation, the trial court issued an order on January 20, 1999, barring Ms. Mullican from
allowing her mother (Tyler’s maternal grandmother) from being in Tyler’s presence.

         4
          This action w as tak en b y the D ep artment w ith the c onse nt of M s . M ullic a n. M s. M ullican also agreed to
prevent her mother from spending time alone with any of her children.

         5
          Ms. Mullican claimed that her adm ission that she m ade a false ac cusation of ch ild abuse wa s improp erly
coerced by the Dep artment. She also protes ted that she agr eed to the D epartmen t’s request to ch ange Tyle r’s custody
to Father under duress.

         6
             The court unde rtook this action with the agreement and cooperation of bo th the parties.

         7
           The record before this court includ es only a transcript of the proceed ings for February 28, 200 0. In this
transcript, both the parties and the court reference earlier proceedings that dealt with temporary custody and visitation.
As transcripts of the earlier hearings are not available, this court has relied upon the opinion letters of the trial court
issued after each of the previous proceedings in our review.

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evidence.8 In addition, the court found that it was in the best interest of the child for primary
custody of Tyler to be given to Mr. George.9 Ms. Mullican appealed.

         The issues, as presented by the Appellant, are as follows:

         I.          Was the trial court incorrect in finding that the alleged sexual abuse of the
                     minor child was not proven by the preponderance of the evidence?

         II.         Was the trial court incorrect in its finding that it is in the best interest of
                     the minor child to give primary custody of the child to Mr. George?

To the extent that these issues involve questions of fact, our review of the trial court’s ruling is
de novo with a presumption of correctness. See Tenn. R. App. P. 13(d). Accordingly, we may
not reverse the court’s factual findings unless they are contrary to the preponderance of the
evidence. See, e.g., Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996); Tenn. R. App.
P. 13(d). With respect to the court’s legal conclusions, however, our review is de novo with no
presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen
and Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999); Tenn. R. App. P. 13(d).

                                         Preponderance of the Evidence

        In order to determine if the trial court correctly decided that the alleged sexual abuse of
Tyler was not proven by the preponderance of the evidence, it is necessary for this court to
examine the facts surrounding this case. We first note that all parties have agreed that no abuse
of Tyler had occurred during the nineteen months that the custody matter was pending. As the
trial court stated, “such time period is in striking contrast to prior times when allegations were
made by the mother on frequent occasions.” Ms. Mullican had charged Mr. George with abusing
Tyler before this period in several complaints to the Department. However, Ms. Mullican later
admitted to Department officials that she had made a false report concerning those allegations.10
A further study of the record reveals that the only proof that Mr. George abused Tyler comes
from accusations by Ms. Mullican and her mother and Department records that pre-date Ms.
Mullican’s admission of making a false report. Such proof can hold little weight in any factual
determination of child abuse, as this proof is tainted by the later admission that the allegations


         8
          The trial court noted that section 36-6-106 of the Tennessee Code required that sexual abuse be established
by “a clear preponderance of the evidence.” While the court questioned if the statute meant “such evidence must be
proven by clear and convincing evidence, by a mere preponderance of the evidence, or by some newly established
standard somewhere between the two,” it specifically found that the allegations were not proven by a mere preponderance
of the evidence.

         9
         With this ruling, the court changed Mr. George’s temporary custody of Tyler, which had been awarded by the
Departm ent with Ms. M ullican’s conse nt, to perma nent full custod y.

         10
              At a later court appearance, Ms. Mullican acknowledged that she had made this admission to the Dep artment.

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were false. We also note that the investigation by the court-appointed child psychologist did not
result in a finding that Tyler was actually abused. In light of all of these facts and upon
consideration of the entire record, this court cannot state that the trial court’s determination that
Mr. George did not sexually abuse Tyler was contrary to the preponderance of the evidence.
Thereby, this court hereby affirms the trial court’s findings in this matter.

                                            Best Interest of the Child

                 While many proceedings in the law are factually-driven, this is particularly
         true of custody cases, both on initial awards as well as in cases involving a request
         to modify a previous award. Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988).
         In such cases, a trial court has wide discretion, and we will not tamper with that
         discretion unless the facts demonstrate that the trier of fact has abused his or her
         discretion. Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). The welfare of
         the child is always the paramount consideration. Id.

Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997).

       The threshold issue in any petition to permanently modify the custody of a child is
whether there has been a material change of circumstances since the previous permanent custody
decision.11 See, e.g., Placencia v. Placencia, 3 S.W.3d 497, 499 (Tenn. Ct. App. 1999);
Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995); Dailey v. Dailey, 635
S.W.2d 391, 393 (Tenn. Ct. App. 1981). Once it is determined that there has been a material
change of circumstances, a court then makes its decision of which parent should have permanent
custody based upon the best interest of the child. See, e.g., Placencia, 3 S.W.3d at 499; Varley v.
Varley, 934 S.W.2d 659, 665-66 (Tenn. Ct. App. 1996).

        For a court to determine a custody arrangement that will be in the best interest of a child,
it must “assess the comparative fitness of the parties seeking custody in light of the particular
circumstances of the case, considering the relevant factors, which are the same in a modification
proceeding as those criteria used in establishing the initial custody order.” Lurie v. Manning,
No. 01A01-9807-CV-00376, 1999 WL 732692, at *2 (Tenn. Ct. App. Sep. 21, 1999) (no perm.
app. filed) (citing Ruyle v. Ruyle, 928 S.W.2d 439, 442 (Tenn. Ct. App. 1996); Matter of
Parsons, 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995)). Section 36-6-106 of the Tennessee Code
gives the factors that should be considered by the trial court. That section states:

         In a suit for annulment, divorce, separate maintenance, or in any other proceeding
         requiring the court to make a custody determination regarding a minor child, such
         determination shall be made upon the basis of the best interest of the child. The
         court shall consider all relevant factors including the following where applicable:


         11
          In the case currently before us, the Appellant has not challenged the trial court’s determination that there has
been a material change o f circumstances requiring the court to revisit the custody arra ngements.

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                 (1) The love, affection and emotional ties existing between the parents and
        child;
                 (2) The disposition of the parents to provide the child with food, clothing,
        medical care, education and other necessary care and the degree to which a parent
        has been the primary caregiver;
                 (3) The importance of continuity in the child's life and the length of time
        the child has lived in a stable, satisfactory environment; provided, that where there
        is a finding, under § 36-6-106(8), of child abuse, as defined in § 39-15-401 or §
        39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and
        that a non-perpetrating parent has relocated in order to flee the perpetrating parent,
        that such relocation shall not weigh against an award of custody;
                 (4) The stability of the family unit of the parents;
                 (5) The mental and physical health of the parents;
                 (6) The home, school and community record of the child;
                 (7) The reasonable preference of the child if twelve (12) years of age or
        older. The court may hear the preference of a younger child upon request. The
        preferences of older children should normally be given greater weight than those
        of younger children;
                 (8) Evidence of physical or emotional abuse to the child, to the other
        parent or to any other person; provided, that where there are allegations that one
        (1) parent has committed child abuse, [as defined in § 39-15-401 or § 39-15-402],
        or child sexual abuse, [as defined in § 37-1-602], against a family member, the
        court shall consider all evidence relevant to the physical and emotional safety of
        the child, and determine, by a clear preponderance of the evidence, whether such
        abuse has occurred. The court shall include in its decision a written finding of all
        evidence, and all findings of facts connected thereto. In addition, the court shall,
        where appropriate, refer any issues of abuse to the juvenile court for further
        proceedings;
                 (9) The character and behavior of any other person who resides in or
        frequents the home of a parent and such person's interactions with the child; and
                 (10) Each parent's past and potential for future performance of parenting
        responsibilities, including the willingness and ability of each of the parents to
        facilitate and encourage a close and continuing parent-child relationship between
        the child and the other parent, consistent with the best interest of the child.

Tenn. Code Ann. § 36-6-106 (Supp. 2000).

        In the case currently before this court, it is clear that the trial court carefully considered all
of the above factors in its custody determination. The trial court specifically cited the above
provisions in its March 10, 2000 initial ruling. Thus, as “a trial court has wide discretion, . . . we
will not tamper with that discretion unless the facts demonstrate that the trier of fact has abused
his or her discretion.” Brumit, 948 S.W.2d 15 at 740 (citing Suttles, 748 S.W.2d at 429). We



                                                   -5-
find no such abuse of discretion in the trial court’s decision in this case. As a result, we hereby
affirm the trial court’s ruling awarding custody of Tyler to Mr. George.

                                            Conclusion

       The judgment of the trial court is affirmed. Costs on appeal are assessed against the
appellant, Misty Driver George Mullican, and her surety, for which execution may issue if
necessary.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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