                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                   ASSIGNED ON BRIEFS SEPTEMBER 14, 2005

        JOHN PAUL SUTPHIN v. SALLY ANN OSBORNE SUTPHIN

                 Direct Appeal from the Chancery Court for Tipton County
                       No. 17,731   Dewey C. Whitenton, Chancellor



                     No. W2004-02917-COA-R3-CV - January 10, 2006


In this appeal, we are asked to determine whether the chancery court erred when it modified the
original custody order between the parties. Appellant contends that there are no material changes
of circumstances to warrant modification of the original custody order. We affirm.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

J. Barney Witherington, IV, Covington, TN, for Appellant

Julie D. Byrd, Memphis, TN, for Appellee
                                       MEMORANDUM OPINION1

                                   I. FACTS & PROCEDURAL HISTORY

       In May of 2000, John Paul Sutphin (“Father” or “Appellee”) and Sally Ann Osborne Sutphin
(“Mother” or “Appellant” or collectively with Father, the “Parties”) divorced. The Parties had two
daughters of the marriage whose custody was at issue during the divorce. The divorce decree
designated Mother the primary custodian, awarded Father standard visitation with the children, and
ordered Father to pay child support.

        On March 7, 2003, Father filed a petition to modify custody and parenting time. In his
petition, Father identified four changes in circumstance that he asserts are material to warrant a
change of custody. Specifically, Father asserted that (1) the oldest daughter’s obesity; (2) Mother’s
multiple paramours that stay overnight at Mother’s residence; (3) Children’s poor academic
performance; and (4) Mother’s physical abuse of children constituted material changes of
circumstances to warrant a modification of the original custody order.

        At the hearings on the petition, Father submitted evidence to prove each of these alleged
changes, including oral testimony, the children’s report cards, and various police reports for domestic
violence at Mother’s home. Father also submitted photos of bruises and cut marks on the children
allegedly caused by Mother’s abuse. Psychological reports of Father, Mother, and both children
were submitted. After the conclusion of the hearing, the chancery court entered an order on Father’s
petition to modify custody and parenting time. In its order, the chancery court made limited findings
of fact and found that a material change of circumstances had occurred and that it was in the best
interest of the children to modify the custody order. The chancery court modified the original court
order, designating Father as the primary custodian and awarding Mother standard visitation with the
children. The modified custody order also required Mother to pay child support.

                                           II. ISSUES PRESENTED

Appellant has timely filed a notice of appeal and presents the following issue for review:
1.     Whether the chancery court erred when it modified the original custody order.

For, the following reasons, we affirm the decision of the chancery court.


        1
           Rule 10 of the Rules of the Court of Appeals of Tennessee governs the issuance of Memorandum Opinions,
which states:

                 This Court, with the concurrence of all judges participating in the case, may affirm,
                 reverse or modify the actions of the trial court by memorandum opinion when a
                 formal opinion would have no precedential value. W hen a case is decided by
                 memorandum opinion it shall be designated “M EMORANDUM OPINION”, shall
                 not be published, and shall not be cited or relied on for any reason in any unrelated
                 case.


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                                   III.   STANDARD OF REVIEW

        This Court reviews conclusions of law under a de novo standard of review with no
presumption of correctness. Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn. 2001) (citing Nutt
v. Champion Int’l. Corp., 980 S.W.2d 365, 368 (Tenn. 1998)). “Furthermore, our review of the trial
court’s findings of fact is de novo upon the record, accompanied by a presumption of correctness,
unless the preponderance of the evidence is otherwise.” Kendrick v. Shoemake, 90 S.W.3d 566, 570
(Tenn. 2002) (citing Tenn. R. App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984);
Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990)). “When the trial judge has failed to make
specific findings of fact, . . . [appellate courts shall] review the record to determine the
preponderance of the evidence.” Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997) (citing
Kemp v. Thurmond, 521 S.W.2d 806, 808 (Tenn. 1975)).

                                          IV. DISCUSSION

       On appeal, Appellant asserts that the chancery court erred when it modified the original
custody order because there was no material change of circumstances to warrant modification.
       Section 36-6-101(a)(2)(B) of the Tennessee Code states,

               [i]f 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.

Tenn. Code Ann. § 36-6-101(a)(2)(B) (2005). “[T]he ‘threshold issue’ is whether a material change
in circumstances has occurred after the initial custody determination.” Kendrick, 90 S.W.3d at 570
(citing Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002)). No “hard and fast” rules exist to
determine whether there has been a material change of circumstance. Id. However, certain factors
have been used as a bases for determining a material change in circumstances: “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. “The burden is on the non-custodial parent to establish the
material change in circumstances.” Hepler v. Hepler, No. M2004-00530-COA-R3-CV, 2005 Tenn.
App. LEXIS 669, at *9 (Tenn. Ct. App. July 13, 2005) (citing Bridges v. Bridges, 63 S.W.3d 346,
348 (Tenn. Ct. App. 2001)).




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       In its order on Appellee’s petition to modify custody and parenting time, the court found that
Appellant’s and Appellee’s animosity toward one another and that Appellant’s sexual behavior2
mandated a modification of the custody order that was in the best interests of the children.3 We
address each change in turn.

       First, the chancery court’s order found that the strained relationship between Appellant and
Appellee constituted a material change of circumstances. While the Parties cannot get along with
one another, this strained relationship cannot constitute a material change of circumstances.

        Second, the chancery court’s order found that Appellant’s sexual behavior constituted a
material change of circumstances. “‘[T]he sexual behavior of the mother is not a ground for change
of custody absent a showing that the behavior had an adverse impact on the child’s welfare.’”
Williams v. Williams, No. E2000-03005-COA-R3-CV, 2001 Tenn. App. LEXIS 331, at *15 (Tenn.
Ct. App. May 8, 2001) (quoting Musselman v. Acuff, 826 S.W.2d 920, 923 (Tenn. Ct. App. 1991)).
In this case, the chancery court found that the oldest daughter had been adversely effected by the
mother’s sexual behavior. We conclude that the proof adduced at trial does not preponderate against
the chancery court’s finding that Appellant’s behavior constituted a material change of
circumstances.

        However, finding a material change of circumstance is only the first step in determining
whether to modify a custody order. In order to modify a custody order, we must also find that the
modification was in the best interests of the child. “This determination should be made according
to the factors enumerated in Tennessee Code Annotated section 36-6-106.” Kendrick, 90 S.W.3d
at 570. Pursuant to section 36-6-106, the factors we must consider when determining the best
interests of a child are:

                    (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;


         2
           In its order, the chancery court stated that “[t]he eldest child clearly knows too much in the ways of the world
and adult situations; this has effected [sic]the eldest child and her relationship with the defendant.” W e interpret this
finding of fact to mean that M other’s behavior with her paramours since the original custody order has adversely
impacted the oldest daughter.

         3
          This Court does note that Appellee has listed other changes in circumstances that he alleges were material to
warrant a modification of the custody order. However, given that the chancery court made factual findings as to what
changes it found material, we must review the custody order under those changes addressed in the order.


                                                           -4-
              provided, that where there is a finding, under § 36-6-106(a)(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) (A) The reasonable preference of the child if twelve (12) years
              of age or older;

                  (B) 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(a)(1)-(10) (2005).


                                               -5-
         From a review of the evidence, we cannot say that the evidence introduced at trial
preponderates against the chancery court’s finding that it was in the best interests of the children to
modify the custody agreement. According to the psychological evaluation of Appellant by Earle
Donelson, Ph.D. (“Dr. Donelson”), Appellant has symptoms consistent with an “affective disorder”
and seems to be “emotionally labile” and “emotionally reactant.” In contrast, Dr. Donelson found
that Appellee had normal, healthy attitudes toward parenting and did not seem to suffer from any
mental health issues that would “prevent him from being a loving and appropriate parent to his
children.” Further, issues of domestic violence in Appellant’s home have been reported. Also,
Appellant’s sexual behavior has had an adverse impact on the oldest daughter. In contrast, nothing
in the record indicates that Appellee’s new wife does not have a stable, loving relationship with the
children. Also, while the chancery court did not make written findings of physical abuse of the
children by Appellant as required by section 36-6-106(a)(8) of the Tennessee Code, several instances
of abuse are uncontradicted in the record, namely Appellant slapping the oldest daughter, Appellant
biting the oldest daughter, and Appellant digging her fingernails in the children. Accordingly, we
affirm the decision of the chancery court to modify the original custody order.

                                         V. CONCLUSION

        For the foregoing reasons, we affirm the decision of the chancery court. Costs of this appeal
are taxed to Appellant, Sally Ann Osborne Sutphin, and her surety, for which execution may issue
if necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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