KATHERINE MONTGOMERY PRICE,       )
                                  )
     Plaintiff/Appellant,         )     Appeal No.
                                  )     01-A-01-9505-GS-00208
v.                                )
                                  )     Wilson General Sessions
THOMAS BRADLEY PRICE,             )     No. 4153
                                  )
     Defendant/Appellee.          )
                                                       FILED
                                                        Nov. 15, 1995
               COURT OF APPEALS OF TENNESSEE           Cecil Crowson, Jr.
                                                        Appellate Court Clerk
                MIDDLE SECTION AT NASHVILLE


       APPEAL FROM THE GENERAL SESSIONS COURT FOR

                           WILSON COUNTY

                    AT LEBANON, TENNESSEE


           THE HONORABLE ROBERT HAMILTON, JUDGE




PHILLIP L. DAVIDSON
2400 Crestmoor Road
Nashville, Tennessee 37215
     ATTORNEY FOR PLAINTIFF/APPELLANT



CAROL SOLOMAN
Washington Square, Suite 400
214 Second Avenue North
Nashville, Tennessee 37201

MARTHA C. WHERRY
Washington Square, Suite 326
222 Second Avenue North
Nashville, Tennessee 37201
     ATTORNEYS FOR DEFENDANT/APPELLEE




                        AFFIRMED AND REMANDED




                                         SAMUEL L. LEWIS, JUDGE
                      MEMORANDUM OPINION1
          The sole issue presented by the appellant is:              "Did the

trial court err by awarding custody of the appellant's minor child

to a third party?"



          The appellant has two sub-issues:       "The rights of a natural

parent are always supreme to that of third parties unless the

parent is declared unfit," and "The trial court did not consider

the child's present condition in determining its award of custody."



          At the plaintiff's request, the trial court filed a finding

of fact, pertinent portions of which are as follows:

               Mother testified under oath that she had not
          done drugs in years.    Mother testified that she
          participated in a group called White Eagle School,
          which is devoted to the study and preservation of
          Native American culture. Mother testified that she
          did not have a boyfriend named Rich Smith and that
          Smith had spent one night with her but had slept in
          a separate room. At the close of the hearing the
          Court awarded temporary custody to Mother and
          ordered her to move into her parents' residence
          within ten (10) days. The court instructed Mother
          to have the minor child to school on time each and
          every day. The Court ordered both parties to have
          a drug test on the day of the hearing.
               In the trial some three (3) months later, it
          was learned the Mother had failed to take the drug
          test on the date of the initial hearing, May 11,
          1994, as ordered and had taken it at the conclusion
          of the following day at 4:30 p.m. Father obtained
          his test on the day ordered.     School attendance
          records showed, despite the Court's warning, the
          child was late for school five (5) times out of ten
          (10) days.
               A witness, Rich Smith, testified he had slept
          with Mother many times at her home with the child
          in the house. He also testified to regular drug
          use by Mother and himself. The Court found this
          witness credible. The witness said the Mother had
          appeared at his apartment in a rage when she found
          out that he had been subpoenaed. She then followed
          him to his Grandmother's house and caused a

      1

Court of Appeals Rule 10(b):
      The 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. When a case is decided by memorandum opinion it
      shall be designated "MEMORANDUM OPINION," shall not be published,
      and shall not be cited or relied on for any reason in a subsequent
      unrelated case.

                                       2
disturbance. She told him his testimony was going
to be "his word against hers." The Court finds the
Mother not truthful about her relationship with Mr.
Smith and that Mother was not truthful about her
lack of drug usage, both of which occurred when the
child resided in the home.
     Trial on the merits was held approximately
three (3) months later.
     Jody Solen, a neighbor of the parties,
testified the Mother had disclosed to her a sexual
affair with a seventeen (17) year old or eighteen
(18)   year   old,  although   this  testimony   is
uncorroborated. Solen also testified that she had
seen Mother and Father use drugs and Father use
alcohol.    Solen testified that Father was away
working in North Carolina in Summer of 1993. While
Husband was gone, there would be numerous cars come
and go both day and night, all visitors were men.
When Husband returned home all traffic stopped
until he left again in February, 1994, and all
traffic resumed, three (3) to five (5) cars per
day.   Solen testified that she did not see any
women.   Solen testified that sometimes the cars
stayed overnight.
     The Mother has admitted committing perjury
concerning her participation in a pornographic
video.    Mother only admitted her participation
after being made aware of its existence in open
court.    This Court finds that Mother is not a
credible witness.
     Father showed a video at trial of the
condition of the marital home while under Mother's
absolute care. The Court finds this video was not
"set up". The Court further observed what appeared
to be drug paraphernalia and marijuana seeds. The
Court finds the video depicted unsuitable living
conditions.      The Court finds it would be
uncomfortable allowing anyone, let alone a child,
live in the utter filth.     The Mother offered a
video after the home was clean.      The video was
prepared after the Mother was made aware of the
Father's video.
     Rich Smith, being subpoenaed by the Husband,
testified to having had sexual relations with
Mother in the marital home while the child was
present and to having used marijuana with Mother.
     Mother testified about the good environment at
her parents' home where the child was temporarily
living.    The Court found that both Grandparents
were responsible, loving and acceptable, that the
Husband's parents had spent more time with the
grandson, both at their home as well as taking him
on many vacations.
     Elaine Humble, the minor child's first grade
teacher, testified that Mother participated in
parent-teacher activities and led a class field
trip to Long Hunter State Park. Humble testified
that she had never seen or met Father. She also
testified that the child had been consistently
tardy, although it had not affected his schoolwork.
     The Court finds both parents have done a poor
job of setting an example for the minor child and
it is in the best interest of the minor child to be
in the custody of one of the sets of Grandparents,
either paternal or maternal. The Court specific-

                        3
       ally finds that Mother is, at this time, unfit.
            The Court is concerned about stability for the
       child and finds the child's grades reflect this
       problem with the drop in averages. The Court finds
       the paternal Grandparents offer more stability for
       the child. Although the paternal Grandfather had a
       D.U.I. conviction years ago, this appears to not be
       a chronic problem. The paternal Grandfather works
       form his home and will always be available for this
       child as he has been in the past.



       The record fully supports the trial court's finding that the

Mother, at the time of trial, was not a fit parent and that it was

in the best interest of the child that custody be placed with the

paternal grandparents.



       "The trial court is authorized to commit custody to a non-

parent when the trial court has found the parents to be unfit."

Sudberry v. Sudberry, No. 01-A-01-9411-CV00510, 1995 WL 138892, at

*3 (Tenn. Ct. App. March 31, 1995).



       The trial court in this case had the opportunity to observe

the plaintiff at four separate hearings in May, August, October,

and December 1994.     During this time, the trial court saw her go

from one job in May to another job in August, she was fired for

tardiness from one job and then going to a fourth job in 1994.   She

was accused of stealing state property, a telescope, she also

removed from the residence, mirrors, gas logs, and ceiling fan

after foreclosure was commenced.      The trial court found that the

plaintiff was irresponsible and the record fully supports this

finding.



       The trial court specifically ordered the plaintiff not to

allow the minor child to be late for the last ten days of school,

but nevertheless, she allowed him to be late five out of ten days.

During the time the child was with plaintiff he went from the honor

roll to C's and D's.


                                  4
        The record shows that the mother was untruthful in her

testimony on numerous occasions.               At the May 10, 1994 hearing she

stated that it had been years since she had "any kind of drug use."

At the hearing in August, plaintiff stated it was April, one month

before the May 11 hearing.             She explained her discrepancy by

answering that she only was commenting on "serious drugs."



        She admitted to committing perjury and about having sex with

men and being videotaped, after having first denied it.



        She testified that she had not been fired from a job between

the May and August hearing because of chronic tardiness.                        When

someone from her previous employment contradicted this she then

admitted that she had been fired.



        She testified that her latest boyfriend, Rick Smith, had

spent the night only once and at that time he slept in the bonus

room but not with her, and not where the child was present.                       She

also testified she did not do drugs with him.                  Richard Smith, whom

the court found to be credible, testified that he had slept with

the appellant with the child present in the house and that he also

had done drugs with the Wife when the child was present.



        The    Tennessee      Park     Authorities           recovered   from     the

plaintiff's house, a telescope she had "borrowed" when she worked

for the state some ten months prior.



        In this case, the plaintiff admitted to more than one

occasion of making outright, untruthful statements.



        In this non-jury case, we review the findings of fact de

novo   upon   the   record    of     the       trial   court    accompanied     by   a

presumption    of    the     correctness          of   the     finding   unless      a

                                           5
preponderance of the evidence is otherwise.       Tenn. R. App. P.

13(d).



          Further, where issues in a case turn upon the truthless of

witnesses, the trial judge, as the trier of fact in a non-jury

case, has the opportunity to observe witnesses and their manner and

demeanor while testifying and is in a far better position than the

appellate court to decide those issues.      The weight, faith, and

credit to be given any witnesses' testimony lies in the first

interest with the trier of fact and the credibility according will

be given great weight by the court of appeals.    Leak v. V. Powell,

884 S.W.2d 118, 120 (Tenn. App. 1994).



          It results that the judgment of the trial court is in all

things affirmed, and the cause is remanded to the trial court for

any further necessary proceedings.     Costs on appeal are taxed to

the plaintiff/appellant and her sureties.




                                   __________________________________
                                   SAMUEL L. LEWIS, JUDGE



CONCUR:



_________________________________
BEN H. CANTRELL, JUDGE



_________________________________
WILLIAM C. KOCH, JR., JUDGE




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