                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                       February 20, 2001 Session

                 JEFFREY MONROE WARD v. VALARIE JO WARD

                   Direct Appeal from the Chancery Court for Crockett County
                             No. 7526 George R. Ellis, Chancellor



                        No. W2000-01081-COA-R3-CV - Filed April 12, 2001


This appeal arises from a change of child custody action. Mother was awarded custody of Child
pursuant to a marital dissolution agreement. Thereafter, Mother had sexual relations with a minor.
This relationship led to an assault on minor by a third party in the presence of Child. This assault
revealed the relationship of Mother and minor to the minor’s parents. Pursuant to a deal with the
minor’s parents, Mother was forced to relocate to another state. When Father discovered the
circumstances surrounding this relationship, he petitioned for a change of custody on the basis that
Mother had exposed Child to criminal activity. In addition, Father cited Mother’s refusal to grant
him visitation and charged that she was improperly caring for Child. The trial court found a material
change of circumstances requiring a comparison of the fitness of the parents. The court found Father
more fit and granted a change of custody. 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 HOLLY K. LILLARD, J., joined.

David W. Camp, Jackson, Tennessee, for the appellant, Valarie Ward.

Shannon A. Jones, Humboldt, Tennessee, for the appellee, Jeffrey Monroe Ward.

                                                   OPINION

        Valarie and Jeffery Ward were divorced on September 14, 1998. Pursuant to their marital
dissolution agreement, custody of their minor child, Dylan,1 was granted to Ms. Ward. In 1999,
Ms. Ward engaged in a sexual relationship with a minor, whom she had originally hired to


        1
          The parties’ minor child has been referred to variously throughout the record as James Dylan Ward, Dylan
Ward or Dillon Ward. As the child’s proper name is not clear from the record, we shall refer to him as Dylan Ward or
Dylan in this opinion.
babysit Dylan. This relationship eventually came to the attention of the minor’s parents’ when a
boyfriend of Ms. Ward discovered the minor in her home and assaulted him.2 After this assault,
Ms. Ward moved out of state pursuant to a deal with the minor’s parents in order to avoid
criminal charges for the sexual relationship. It was a short time after this move that Mr. Ward
discovered the existence of this relationship and the subsequent assault of the minor. As a result,
Mr. Ward filed a petition for a change of custody, citing not only Ms. Ward’s criminal activity,
but also several instances in which she denied him visitation with Dylan and left him in the care
of others.

        After a hearing, the court determined that there was a risk of substantial harm to the
minor child, Dylan, through his exposure to his mother’s criminal activity, as well as to the
criminal activities of third parties.3 The court then found that Ms. Ward’s sexual relationship
with a minor, her move to another state to avoid prosecution, and her denial of visitation to
Jeffery Ward resulted in a material change of circumstances. As such, the court compared the
fitness of both parents. While noting that neither was an ideal parent, the court determined that
Mr. Ward was more fit and awarded him custody of Dylan.

         The issue presented on appeal by Appellant, as we perceive it, is as follows:

               Did the trial court err in modifying the previous award of custody from
         Ms. Ward to Mr. Ward?

                 Custody and visitation determinations often hinge on subtle factors,
         including the parents' demeanor and credibility during the . . . proceedings
         themselves. Accordingly, appellate courts are reluctant to second-guess a trial
         court's decisions. Trial courts must be able to exercise broad discretion in these
         matters, but they still must base their decisions on the proof and upon the
         appropriate application of the applicable principles of law. D v. K, 917 S.W.2d
         682, 685 (Tenn. Ct. App.1995). Thus, we review these decisions de novo on the
         record with a presumption that the trial court's findings of fact are correct unless
         the evidence preponderates otherwise.

Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn Ct. App. 1996) (citing Nichols v. Nichols, 792
S.W.2d 713, 716 (Tenn. 1990), rev’d on other grounds; Aaby v. Strange, 624 S.W.2d 623
(Tenn. 1996); Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App. 1992)).




         2
           Dylan was in the house at the time of the assault. However, the child was not present in the house during any
of the actual sexual encounters between Ms. Ward and the minor.

         3
             The court was referring to the criminal assault of the minor, Mr. Mask, by Ms. Ward’s boyfriend.

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                              Material Change in Circumstances

        Once an initial determination of the custody of a child has been made by a trial court,
such custody may not be changed absent “a material change in circumstances such that the
welfare of the child demands a redetermination.” Hoalcraft v. Smithson, 19 S.W.3d 822, 828
(Tenn. Ct. App. 1999) (citing Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App.
1995)).

               Under this standard, the primary inquiry is whether there has been a
       material change in the child's circumstances. Although there is no concrete
       definition for what constitutes a material change of circumstances, this court has
       enumerated several factors that should be taken into consideration when
       determining whether such a change has occurred. In general, the change must
       occur after the entry of the order sought to be modified and the change cannot be
       one that was known or reasonably anticipated when the order was entered.
       Turner v. Turner, 776 S.W.2d 88, 90 (Tenn. Ct. App.1988); Dalton v. Dalton,
       858 S.W.2d 324, 326 (Tenn. Ct. App.1993). In addition, the material change of
       circumstances must be a change in the child's circumstances, not the
       circumstances of either or both of the parents. McCain v. Grim, No. 01A01-
       9711-CH-00634, 1999 WL 820216, at *2 (Tenn. Ct. App. Oct. 15, 1999).
       Finally, the change must affect the child's well-being in a material way. Dailey v.
       Dailey, 635 S.W.2d 391, 393 (Tenn. Ct. App. 1981).

Hoalcraft, 19 S.W.3d at 828-29.
        In the case currently before us, the trial court cited several factors in determining that a
material change in the child’s circumstances had taken place. Among those factors cited were
Ms. Ward’s criminal activity of having a sexual relationship with a minor and her exposure of
Dylan to the criminal activity of others. In addition, the court specifically found that Ms. Ward
was not a credible witness and questioned her testimony on various matters, including her
attempts to foster a relationship between Dylan and his father, and the amount and type of
attention and care that Ms. Ward provided her son. These events could not have been reasonably
anticipated at the moment child custody was first granted to Ms. Ward, and specifically affected
Dylan’s circumstances in a material way. As such, the trial court properly found that there was a
material change in circumstances such that the custody of Dylan should be re-visited.

                                      Comparative Fitness


               “In child custody matters the paramount concern of the Court is the
       welfare of the children and the rights of the parties will yield to that concern.”
       Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. Ct. App. 1983); see also
       Contreras v. Ward, 831 S.W.2d 288, 289 (Tenn. Ct. App. 1991). . . . . [T]he
       determining facts are infinite in their variety and "the supreme rule to which all
       others should yield is the welfare and best interest of the child." Holloway v.
       Bradley, 230 S.W.2d 1003, 1006 (Tenn. 1950). In any proceedings 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 minor child.




                                                -3-
Lurie v. Manning, No. 01A01-9807-CV-00376, 1999 WL 732692, at *2 (Tenn. Ct. App. Sep.
21, 1999) (no perm. app. filed).
        In order to determine a custody arrangement that will be in the best interest of a child,
“the court will 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.” Id.
(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)).

       The criteria a court must consider are listed in section 36-6-106 of the Tennessee Code.
That section states:

       (a) 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:
                (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;



                                                 -4-
                (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).

         Thus, a court must determine, in light of the factors in section 36-6-106 of the Tennessee
Code, which parent is more or less fit to care for a minor child. In the case currently before us,
the trial court found that while neither parent was a candidate for “the Good Housekeeping
Parent of the Year award,” Ms. Ward exposed Dylan to a “risk of substantial harm” and to the
criminal activity of both herself and others. As a result, the court found that under the test of
comparative fitness, Mr. Ward was more fit to have permanent custody of Dylan. Upon our
review of the record, it is clear that there is not a preponderance of the evidence against this
finding. We hereby affirm the trial court’s change of custody.

                                           Conclusion

       Based on the foregoing conclusions, we hereby affirm the trial court judgment. Costs on
appeal are assessed against the Appellant, Valarie Jo Ward, and her surety, for which execution
may issue if necessary.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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