                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     June 29, 2006 Session

    RODNEY SHANE CURTIS v. CHRISTY SUZANNE HILL (CURTIS)

                    Appeal from the Chancery Court for Lawrence County
                        No. 9982-00    Jim T. Hamilton, Chancellor



                   No. M2005-2230-COA-R3-CV - Filed on August 7, 2006


This is a post-divorce change of custody case. The trial court changed custody of the parties’ two
minor children from the mother to the father. We hold that the evidence preponderates against the
trial court’s finding that there had been a material change of circumstances to justify a change in
custody in the absence of proof that the mother’s sexual indiscretions and other alleged misconduct
had affected or would affect the children in an adverse way. We therefore reverse the judgment of
the trial court.

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

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL PICKENS FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.

C. Tim Tisher, Columbia, Tennessee, for the Appellant, Christy Suzanne Hill (Curtis).

Paul A. Bates, Lawrenceburg, Tennessee, for the Appellee, Rodney Shane Curtis.

                                             OPINION

                                           I. Background

        After seven and a half years of marriage, the parties were divorced in June of 2000. The
parties’ marital dissolution agreement, which was incorporated into the divorce decree, provided that
Ms. Curtis was the primary residential parent of the parties’ children: Baylee Dawn Curtis (born June
27, 1994) and Gracie Louise Curtis (born September 3, 1997). Mr. Curtis had shared parenting time
one night per week and on alternate weekends.

        Mr. Curtis filed a petition on June 27, 2005, alleging that a material change of circumstances
had occurred and seeking custody of the children. Specifically, Mr. Curtis alleged that Ms. Curtis
was living out of wedlock with her paramour, Jeff Kersteins; that prior to her cohabitation with Mr.
Kersteins, she had “cohabitated with two other paramours without the benefit of wedlock”; that Mr.
Kersteins “verbally berates” the minor children; that Ms. Curtis had not fostered a positive father-
daughter relationship between him and the children, and that she “does not attend church regularly
and does not encourage the children spiritually.” Ms. Curtis answered, denying a material change
of circumstances had occurred, and filed a counter-petition asserting that Mr. Curtis’s income had
increased substantially and that she was entitled to an increase in child support.

         Following a hearing at which the trial court heard the testimony of the parties, Mr. Curtis’s
sister, and the children in camera, the court entered an order concluding that a change of custody was
warranted due to a material change of circumstances and stating as follows:

               [T]he Petition for Change of Primary Custodial Parent filed by the
               father, Rodney Shane Curtis should be granted and the Counter-
               Petition filed by the mother, Christy Suzanne Hill (Curtis) should be
               dismissed.

               It further appeared to the Court having heard the testimony of both
               parties and the children that a material change of circumstances has
               occurred and after conducting a comparative fitness analysis in
               accordance with T.C.A. § 36-6-404, the Court finds that it would be
               in the best interest of the minor children for the father to become the
               primary residential parent.

The trial court made no findings of fact supporting its conclusions that a change of circumstances
had occurred and that the children’s best interest was served by the change of custody. Ms. Curtis
appeals the trial court’s decision.

                                        II. Issue Presented

       The issue before us is whether the trial court erred in ruling that a material change in
circumstances occurred that necessitated changing primary custody of the children from Ms. Curtis
to Mr. Curtis.


                                      III. Standard of Review


     In a non-jury case, ordinarily our review is de novo upon the record of the proceedings below,
with a presumption of correctness as to the trial court's factual determinations that we must honor
unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d); Wright v. City of
Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,
91 (Tenn. 1993). The trial court's conclusions of law are accorded no such presumption. Campbell
v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859
(Tenn. 1993). In the present case, the trial court made no findings of fact. When the trial court fails

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to make factual findings, there is nothing to which the presumption of correctness can attach.
Hickman v. Continental Baking Co., 143 S.W.3d 72, 75 (Tenn. 2004); Kesterson v. Varner, 172
S.W.3d 556, 566 (Tenn. Ct. App. 2005); Archer v. Archer, 907 S.W.2d 412, 416 (Tenn. Ct. App.
1995). Under these circumstances, “we must conduct our own independent review of the record to
determine where the preponderance of the evidence lies.” Brooks v. Brooks, 992 S.W.2d 403, 405
(Tenn. 1999); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Devorak v. Patterson, 907
S.W.2d 815, 818 (Tenn. Ct. App. 1995).


        Trial courts are vested with wide discretion in matters involving custody of children.
Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973). Accordingly, a trial court's
decision regarding custody or visitation should be set aside only when it “falls outside the spectrum
of rulings that might reasonably result from an application of the correct legal standards to the
evidence found in the record.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).


                                            IV. Analysis


        We begin our review by reaffirming the premise that custody and visitation decisions are
among the most important decisions that courts make. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn.
Ct. App. 2001); Adelsperger v. Adelsperger, 970 S.W.2d 482, 484 (Tenn. Ct. App. 1997). Promoting
the child's welfare by creating an environment that promotes a nurturing relationship with both
parents is the chief purpose in custody decisions. Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996).
Because children are more likely to thrive in a stable environment, the courts favor existing custody
arrangements. Id. at 627; Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn. 1993); Hoalcraft v.
Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). A custody decision, once made and
implemented, is considered res judicata upon the facts in existence or reasonably foreseeable when
the decision was made. Young v. Smith, 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Steen, 61
S.W.3d at 327; Solima v. Solima, 7 S.W.3d 30, 32 (Tenn. Ct. App. 1998).

        The governing statute in this case, T.C.A. § 36-6-101(B), provides that in cases wherein a
party seeks to modify an existing custody arrangement, the threshold issue is whether a material
change in circumstances has occurred since the initial custody determination:
               (B) If the issue before the court is a modification of the court's prior
               decree pertaining to custody, 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 an order of custody and visitation or
               circumstances that make the parenting plan no longer in the best
               interest of the child.


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               (i) In each contested case, the court shall make such a finding as to
               the reason and the facts that constitute the basis for the custody
               determination.

T.C.A. § 36-6-101(B).

        We recognize that the circumstances of children and their parents change – children grow
older, their needs change, one or both parties remarry. But not all changes in the circumstances of
the parties and the child warrant a change in custody. There are no hard and fast rules for when there
has been a change of circumstance sufficient to justify a change in custody. Cranston v. Combs, 106
S.W.3d 641, 644 (Tenn. 2003). A court's decision with regard to modification of custody is
contingent upon the circumstances presented, and the court should consider whether:

       1) the change occurred after the entry of the order sought to be modified,

       2) the changed circumstances were not reasonably anticipated when the underlying decree
          was entered, and

       3) the change is one that affects the child's well-being in a meaningful way.

Kendrick, 90 S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002); Cranston, 106
S.W.3d at 644. Custody decisions are not intended, and should not be designed, to reward parents
for prior virtuous conduct, nor to punish them for their human frailties or past missteps. Oliver v.
Oliver, No. M2002-02880-COA-R3-CV, 2004 WL 892536 at *2 (Tenn. Ct. App. M.S., Apr. 26,
2004); Kesterson, 172 S.W.3d at 561; Earls v. Earls, 42 S.W.3d 877, 885 (Tenn. Ct. App. 2000).

        The party seeking to change an existing custody arrangement has the burden of proving that
there has been a material change of circumstances. T.C.A. § 36-6-101(B). If the person seeking the
change of custody cannot demonstrate that the child's circumstances have changed in some material
way, the trial court should not reexamine the comparative fitness of the parents, Caudill v. Foley,
21 S.W.3d 203, 213 (Tenn. Ct. App. 1999), or engage in a “best interests of the child” analysis. In
the absence of proof of a material change in the child's circumstances, the trial court should not
change custody. Hoalcraft, 19 S.W.3d at 828.

        Applying the above analysis to the present case, our review of the record persuades us that
the evidence preponderates against a conclusion that Mr. Curtis has proven a material change of
circumstances affecting the children’s well-being in a material way that would justify the “drastic
remedy” of changing custody. See Oliver, 2004 WL 892536 at *5; Perez v. Kornberg, No. M2004-
01909-COA-R3-CV, 2006 WL 1540254 at *16 (Tenn. Ct. App. W.S., June 6, 2006). We address
the allegations of the complaint, and the proof at the hearing supporting them, individually.

        Regarding Ms. Curtis’s history of living with men outside marriage, she testified that after
the divorce, she lived with John Townsend for a period of time before marrying him. Her marriage


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to Mr. Townsend lasted approximately two months. Ms. Curtis testified that Mr. Townsend got very
abusive with her while the children were with Mr. Curtis, and that she had him arrested for abuse,
divorced him and “the kids never saw him again.”

        Ms. Curtis admitted that at the time of the hearing, she was living with Mr. Kersteins outside
wedlock.1 She testified without contradiction that at those times when the children are present at her
residence, Mr. Kersteins always sleeps on the couch. Ms. Curtis stated that since the divorce, two
other men had spent the night at her residence, but not when the children were present. Mr. Curtis
similarly admitted to having overnight guests of the opposite sex when the children were not present.

       A custodial parent’s non-marital sexual activities may be appropriately considered in the
context of a custody decision. Earls, 42 S.W.3d at 890. However, “we have repeatedly pointed out
that cohabitation alone does not necessarily provide grounds for changing custody when there is no
proof that it has or will adversely affect the children.” Id.; see Varley v. Varley, 934 S.W.2d 659,
666-67 (Tenn. Ct. App. 1996); Sutherland v. Sutherland, 831 S.W.2d 283, 286 (Tenn. Ct. App.
1991); Nelson v. Nelson, 66 S.W.3d 896, 902 (Tenn. Ct. App. 2001); Fain v. Fain, No. M1999-
02261-COA-R3-CV, 2000 WL 1879548 at *5 (Tenn. Ct. App. E.S., Dec. 29, 2000). A parent’s
sexual conduct, if practiced inappropriately or indiscriminately, can adversely affect a child’s well-
being and in those cases, such conduct can be an important factor in custody determinations. Berry
v. Berry, No. E2004-01832-COA-R3-CV, 2005 WL 1277847 at *5 (Tenn. Ct. App. E.S., May 31,
2005). In Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999), the Tennessee Supreme Court
acknowledged that “sexual indiscretion does not, by itself, disqualify a parent from being awarded
custody, but it may be a relevant factor if it involves the neglect of the child.” See also Lockmiller
v. Lockmiller, No. E2002-02586-COA-R3-CV, 2003 WL 23094418 at *5, 2003 Tenn.App. LEXIS
953 at *14 (Tenn. Ct. App. E.S., Dec. 30, 2004).


        The record before us offers no proof that Ms. Curtis neglected the children because of sexual
indiscretion, nor that they suffered any adverse consequence because of the presence of Mr.
Kersteins at her residence. There is proof in the record supporting the conclusion that the children
are generally healthy, well-adjusted, and doing well in school in the primary custody of Ms. Curtis.
The testimony in the record does not support Mr. Curtis’s allegation that Mr. Kersteins “verbally
berates” the children, although it does show that he “raises his voice” to them on occasion. We do
not condone Ms. Curtis’s choice to cohabitate without benefit of marriage; but, standing alone, it
clearly does not rise to the level of a material change in circumstances warranting change of custody.

        Regarding Mr. Curtis’s allegation that Ms. Curtis had not fostered a positive father-daughter
relationship between him and the children, the parties testified about a single incident which might
arguably support this assertion. Mr. Curtis, who coaches his daughters’ softball teams, testified as
follows about this incident:



       1
           Ms. Curtis’s brief states that she and Mr. Kersteins have gotten married since the hearing.

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                A: The altercation that we had on the ball field was the first that’s
                happened at a ball field. But no, she’s tried to keep me from coaching
                in the past.


                Q: So there was an altercation actually on the field?


                A: It wasn’t on. She was sitting in the stands. I was on the field
                coaching.
                                *               *               *
                A: Okay. Well, Baylee was getting frustrated. She was pitching. She
                was getting frustrated with herself because she couldn’t throw a
                strike. So she stomped the ground. Her mother yells at her from the
                stands. I turned around to her mother and said, “You can’t do that
                because it’s your fault the way she’s acting, the way she is.”


                Q: So your daughter stomped the ground in disgust and anger on the
                field. Her mother yelled at her to not act that way. You turned
                around and confronted her mother and said, “You can’t say anything
                because it’s your fault she’s that way?”


                A: Yes.


                Q: You think that was her mother’s fault?


                A: You wouldn’t let me tell the example of why. But yes, it’s her
                mother’s fault.


Mr. Curtis further stated that Ms. Curtis “gave me an ultimatum that I had to quit coaching or she
was going to make the girls quit playing.” While Ms. Curtis did not deny making a statement to this
effect, there is no evidence that she carried out the threat to make her daughters stop playing softball.
In summary, the record reflects that the parties’ relationship has not been harmonious, but Mr. Curtis
has not presented evidence that Ms. Curtis has behaved in such a way as to undermine his
relationship with his daughters, particularly not to a degree that would require the trial court to
reexamine the parties’ comparative fitness, or to make a change in the existing custodial situation.


       Regarding Mr. Curtis’s allegation that Ms. Curtis does not encourage the children spiritually
and does not take them to church regularly, Ms. Curtis stated that she did not attend church on a

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regular basis, either with or without the children. While this decision may not be one that a court
approves or condones, we do not believe that it is an appropriate role of the courts to punish a parent
for such a decision by taking custody of his or her children away. There was no evidence that the
decision not to regularly attend church represented a change of circumstances from the time of the
execution of the MDA.


                                           V. Conclusion


        For the aforementioned reasons, we hold that the evidence preponderates against the trial
court’s finding that there had been a material change of circumstances to justify a change in custody
and therefore the trial court erred in changing primary residential parent status from Ms. Curtis to
Mr. Curtis. The judgment of the trial court is reversed, and the case remanded for a determination
of Mr. Curtis’s child support obligation, pursuant to the Tennessee Child Support Guidelines. Costs
on appeal are assessed to the Appellee, Rodney Shane Curtis.




                                               _________________________________________
                                               SHARON G. LEE, JUDGE




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