                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  December 7, 2000 Session

       DONNA ROXBURY BREEDING (HENSON) v. KENNY FRANK
                        BREEDING

                    An Appeal from the Chancery Court for Giles County
                           No. 7928    Jim T. Hamilton, Judge



                      No. M2000-00952-COA-R3-CV - Filed April 5, 2001


This is post-divorce custody dispute. In the original divorce decree, the mother was awarded custody
of the parties’ two minor children. Subsequently, when the mother was required to undergo brain
surgery, the mother and father agreed, and the trial court ordered, that the father would have custody
of the children until each child reached the age of twelve, at which point the child would decide with
which parent he wished to live. After recovering from the surgery, the mother filed a petition to
change custody citing, inter alia, the children’s desire to live with her and the children’s worsening
behavior, which included running away from the father’s home. The trial court denied the mother’s
petition, finding no material change in circumstances warranting a change of custody. From this
order, the mother now appeals. We reverse and remand, finding that the trial court applied the
incorrect standard in light of the prior agreed order.

      Tenn. R. App. P. 3; Judgment of the Chancery Court is Reverse and Remanded.

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which DAVID R. FARMER , J. and
BEN H. CANTRELL , P. J., M.S., joined.

Joanie L. Abernathy, Franklin, Tennessee, and Howell Forrester, Pulaski, Tennessee, for the
appellant Donna Roxbury Breeding Henson.

Samuel B. Garner, Jr., Pulaski, Tennessee, for the appellee Kenny Frank Breeding.

                                             OPINION

       Donna Roxbury Breeding(“Mother”) and Kenny Frank Breeding (“Father”) divorced in 1993.
Both Mother and Father have since remarried. At the time of the divorce, Mother was granted
custody of the parties’ two minor sons, Kenny, born in September, 1986, and Austin, born in August,
1988. Mother retained custody of the boys, apparently without serious problems, until November
1997. At that time, Mother learned that she would have to undergo brain surgery. She did not know
if or when she would recover sufficiently to be the boys’ primary custodian. In light of this, the
parties entered into an agreement which was incorporated into an order entered by the trial court.
The agreed order gave custody of the boys to Father. The order forgave Father’s arrearage in child
support, stated that Mother would not pay child support, and provided that Mother would have
visitation every other weekend and “have the right to call the children or talk with them by phone
on any occasion that she wishes. . . .” The order then stated as follows:

         At the time each of these children are twelve years of age they should be allowed to
         decide which parent they wish to be with. If the children cannot or will not decide
         what parent they wish to be with then the court will make that decision for them.

Thus, under the agreed order entered by the trial court, when each boy reached the age of twelve, he
would be permitted to state which parent he wished to live with and that preference would be
honored.

        Mother recovered from the brain surgery and was left with only minor disabilities that would
not interfere with her ability to be the boys’ primary custodian. Meanwhile, problems developed
between the boys and Father and between Mother and Father. In addition, Father indicated an intent
to move with Kenny and Austin to Birmingham, Alabama. Consequently, in December, 1999, the
boys ran away from Father’s home to Mother’s home.

        On January 6, 2000, Mother filed a petition for change of custody, 1 pursuant to the November
1997 agreed order. She alleged that Kenny and Austin had expressed a desire to live with her.
Mother argued that there had been a material change in circumstances since the November 1997
order, citing her improved physical condition, the boys’ dissatisfaction with living with their father,
the incident in which they ran away to Mother’s home, and Kenny’s precipitous drop in grades. She
also criticized Father’s care of the boys, particularly with regard to Austin’s asthma.

         The situation worsened between the parties and between the boys and Father. Father began
listening in on an extension to the boys’ telephone conversations with Mother. As a result, Kenny
and Austin began writing letters to Mother about their feelings and concerns. The boys would write
the letters at school and give the letters to a school friend, who lived near Mother, to deliver. After
Austin would not eat some soup made by his stepmother, Father pulled down his pants and spanked
him. Finally, the night before the hearing on Mother’s petition to change custody, the boys again ran
away from Father’s home, sneaking out of a window after dark and riding over seven miles toward
Mother’s home, until they were intercepted by a police officer.

       The hearing was held the next day, February 25, 2000. At the hearing, Mother testified that
around 9 pm the night before, she received a phone call from the boys telling her that they were at
a Quik Mart store near her home, and that they had run away from Father’s home, riding their bikes


         1
          Previous ly, Mothe r had filed a p etition seeking, inter alia , a change in custody, which was denied after a
hearing on January 5, 2000. This petition is not part of the record on appeal, and the trial court’s ord er was app arently
not appealed.

                                                           -2-
over seven miles from Father’s house. They were finally intercepted by a police officer who
stopped them for riding their bikes at night without lights. After talking to Kenny and Austin,
Mother called her attorney, picked up the boys and called Father to tell him where they were and
what had happened. Father was unaware that the boys were not at his home until Mother called him.

        Mother testified that she was concerned about the boys’ welfare because Father failed to
adequately care for them, because they had run away more than once while living with Father and
because Kenny had been doing poorly in school. She testified that she, not Father, provides inhalers
and other medicine for Austin, who suffers from borderline anemia in addition to asthma. She also
testified that she pays the boys’ school monthly so they can eat breakfast at school, because they
usually do not eat breakfast before leaving for school. Mother acknowledged buying normal gifts
for the boys, said she and her husband were building a playhouse for Kenny and Austin, as well as
for her stepson, and that the family had a membership at Martin College. She denied the assertion
by Father’s counsel that these items were bribes to get the children to say they wanted to live with
her. Mother denied telling Kenny and Austin to start writing her letters, but admitted that she had
spoken to them about writing to her about things they felt they could not say while Father was
listening over the phone.

     Father also testified at the hearing. He admitted that he listens to the boys’ conversations with
Mother, but asserted that it was for their protection because they had run away before and because
he does not trust Mother. Father claimed that he heard Mother tell the boys to talk to their school
counselor and begin writing letters to use in the custody suit. Father maintained that Mother called
the boys more often since filing her petition to change custody, and that he has had to limit the boys’
conversations with Mother to ten minutes each.

        Father testified that when Kenny turned twelve he offered to allow Kenny to live with
Mother, but that she refused to take one boy without the other. Father admitted pulling down
Austin’s pants and spanking him with his hand, not a belt. However, he denied doing so simply
because Austin refused to eat the soup made by his wife; he asserted that he punished Austin because
he was rude and disrespectful. Father contended that the boys’ behavior had worsened since Mother
filed her petition and that disciplining them had become more difficult. Father admitted that their
behavior also began to worsen after he told them he was considering moving with them to Alabama.
He contended that the boys were excited when he first talked to them about the prospect of moving,
and that only after they spoke with Mother did they say that they did not want to move.

        At the time of the hearing, Kenny and Austin were 13 years old and 11½ years old,
respectively. They testified in open court and were questioned by the parties’ attorneys, with Mother
and Father outside the courtroom.2 Kenny and Austin both testified that they no longer wished to
live with Father, but wished to live with their mother. Kenny and Austin testified about their


         2
          Although children invo lved in custod y disputes are usually questioned in chambers by the trial judge, in order
to encourag e them to sp eak ope nly and withou t being intimida ted, these child ren testified in op en court a nd were
questioned at length by the attorneys.

                                                           -3-
decision to run away the night before. They said that they climbed out of their bedroom window and,
using flashlights, rode their bikes down the highway toward their mother’s house. The boys said that
they ran away because they were tired of the living situation at Father’s home and wanted to live
with Mother. They said that Father did not listen to them, did not support some of their activities,
sometimes punished and yelled at them without a reason, and listened in on their telephone
conversations with Mother even though they asked him not to. Austin testified that Father pulled
down his pants and gave him a “whipping” with a belt, because he refused to eat some soup that his
stepmother made. He said that he refused to eat the soup because he was sick and that the
“whipping” left bruises on him. When asked why he wrote letters3 to his mother, Austin testified,
“I had to get it off my mind I felt so bad and I thought she needed to know.” He said that he could
not tell her on the telephone because “my dad was listening” and that he “couldn’t say nothing on
the phone without daddy jumping all over me after it was over.”

         Kenny testified that the night he and Austin ran away he had been punished for receiving an
“F” in gym class. He asserted that his grades have dropped while living with Father, but conceded
that his grades had been good until the custody petition. Austin testified that he was also being
punished the night they ran away. Austin also testified that he is sick much of the time and that
Mother buys his medicine for him. He asserted that Mother took better care of him. The boys
testified that they did not eat breakfast at their Father’s house before school because it is too early.

        In response to rigorous cross-examination by Father’s counsel,4 the boys denied deliberately
failing classes, denied that Mother suggested that they write letters to her, denied that Mother told
them what to write in the letters, denied writing letters to Mother for her to use in the custody
proceeding, denied that Mother promised to buy them items such as toys and a playhouse if they
came to live with her, denied that Mother only recently began calling them every night, denied
engaging in very long telephone conversations with Mother every night, denied running away from
Father’s home simply to avoid being punished, and denied crying and screaming in the courthouse
after the prior court hearing at Mother’s suggestion.5 When asked if there was anything each boy
wanted the trial judge to know, Kenny responded, “I just want to go to my mom’s house that’s all,”
and Austin said, “I just want to go with my mom. I don’t know why I can’t. That’s where I belong.
 She cares for me.”




         3
             Inexplicably, the letters were not made part of the record.

         4
           The lengthy, accusa tory cross-exa mination of the children by M r. Garner, F ather’s counsel, would be
approp riate if it were cross-examination of an adult defendant in a criminal proceeding, but does not befit a proceeding
in which the trial co urt seeks to elicit the views and feelings of children who are unfortunately in the midst of a custody
dispute between their paren ts.

         5
          At the end of the cross-examination of Austin the trial judge comme nted, “W ell all right Austin, keep making
these good grades you might want to be a lawyer one of these days. Y ou think you w ould?” N ot surprisingly, A ustin’s
response was “No.”

                                                             -4-
       In its written order, the trial court stated that, because of Kenny and Austin’s age and
maturity, their wishes must be considered. Nevertheless, Mother’s petition for change of custody
was dismissed. The trial court found that Mother failed to carry her burden of proof that a material
change in circumstance had occurred warranting a change of custody. From this order, Mother now
appeals.

        Our review of this case is governed by Rule 13(d) of the Tennessee Rules of Appellate
Procedure, which provides that review of findings of fact by the trial court shall be de novo upon the
record of the trial court, accompanied by a presumption of correctness of the factual findings, unless
the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s decisions on issues of law are reviewed de novo,
with no presumption of correctness. Id.

        Ordinarily, the primary inquiry when considering a petition to modify custody is whether
there has been a material change in circumstances since the entry of the order sought to be modified.
 Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App.1999), perm. to appeal denied May 15,
2000. In order to be considered a material change in circumstances, the facts or circumstances
involved must affect the child’s well-being in a material way. Id. at 829. If the trial court finds a
material change of circumstances, it must then consider whether modifying custody would be in the
best interest of the child. Id. at 828. A child’s preference is one factor to be considered in
determining custody. Id. at 829; King v. King, No. 01-A-01-9803-CV00116, 1999 WL 267007, at
*5 (Tenn. Ct. App. May 5, 1999).

        This case, however, involves a unique situation. The order sought to be modified is an
agreed order, entered in light of Mother’s then-impending brain surgery. As an explicit condition
of the grant of custody to Father, the parties agreed:

       At the time each of these children are twelve years of age they should be allowed to
       decide which parent they wish to be with. If the children cannot or will not decide
       what parent they wish to be with then the court will make that decision for them.

This condition was not simply a side agreement entered into by the parties, it was adopted by the trial
court as part of its November 19, 1997 order. In the hearing below, while there were questions
regarding the reasons for the boys’ preference, both were consistent, even adamant, in maintaining
that they wanted to live with Mother.

        When an agreed custody order contemplates a certain condition as a circumstance of the
custody arrangement, a change in this condition may be a material change in circumstances sufficient
to warrant a modification of custody. In Waters v. Layne, No. 01A01-9708-CV-00402, 1998 WL
136129 (Tenn. Ct. App. Mar. 27, 1998), the agreed order between the parties provided that “[t]he
parties have agreed that the custody of the said minor child shall be placed with the Defendant
[father] and wife Judy Layne.” Id. at 4. The Court found that the father’s marriage to Judy Layne
had been of great significance to the child, because Judy Layne had been the child’s primary


                                                 -5-
caregiver for over three years. The Court concluded that the specific language of the agreed order
“contemplated the child be under the care of Ms. [Judy] Layne as a circumstance of the [f]ather’s
custody. . . .” Id. Consequently, despite the fact that the father had again remarried, his divorce from
Judy Layne was a material change in circumstances. The court then affirmed the trial court’s award
of custody to the mother.

        In this case, the language adopted by the trial court in its November 1997 order indicates that
at the point the boys reach age twelve, the issue of custody will be revisited regardless of whether
circumstances have changed. Indeed, the language in the order states expressly that, at that point,
the boys’ preference will be honored. Clearly this provision was included “as a circumstance of the
Father’s custody.” Waters, at *4.

        While the preference of the children is always a factor to be considered, in light of the
express provision in the November 1997 order, in this case the children’s preference must be given
additional weight. To do otherwise would undermine the ability of parties to enter into a consent
order and be confident that the agreed-upon terms, adopted by the trial court, will be honored in
future proceedings. In this situation, at the least, the boys’ decision that they wish to live with
Mother must be deemed a material change in circumstances sufficient to warrant a change in
custody. This is particularly so in view of the evidence of the boys’ emotional state and actions
resulting from their desire to move back to Mother’s home, now that she has sufficiently recuperated
from her brain surgery.

         Despite the mandatory language of the November 1997 order, the trial court must retain the
ability to consider the best interest of the children. Regardless of the boys’ stated preference, the trial
court must determine whether changing custody back to Mother would not be in their best interest.
As part of this determination, the trial court must consider the willingness of each parent to
encourage a close and continuing relationship with the other parent. See Tenn. Code Ann. § 36-6-
106(a)(10)(Supp. 2000). This is important in light of the trial court’s statement in its order that “both
parties have made derogatory remarks about one another to their minor children.” Equally important
is Father’s admission that he voluntarily listens in on an extension to the boys’ telephone
conversations with Mother, which was not addressed by the trial court in its order. Such behavior
is clearly in contravention of Mother’s “right to unimpeded telephone conversations” with the boys;
it undermines Mother’s relationship with the children and must cease. Tenn. Code Ann. § 36-6-
110(a)(1)(Supp. 2000). The children should not have to resort to transmitting secret letters to the
non-custodial parent in order to speak freely. On remand, this issue should be addressed by the trial
court.6




         6
         On remand, if the children are required to testify, they should be questio ned, prefer ably by the trial jud ge, in
a manner appropriate for children in a custody dispute.

                                                            -6-
        The decision of the trial court is reversed and remanded for further proceedings consistent
with this Opinion. Costs are taxed to the appellee, Kenny Frank Breeding, and his surety, for which
execution may issue if necessary.



                                                     ___________________________________
                                                     HOLLY K. LILLARD, JUDGE




                                               -7-
