                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                      May 1, 2001 Session

   ROBERT KEITH RICHARDSON v. DEBORAH ETTA RICHARDSON

                  A Direct Appeal from the Circuit Court for Shelby County
                   No. 150511-7    The Honorable Robert A. Lanier, Judge


                     No. W2000-02374-COA-R3-CV - Filed June 14, 2001


This is a post-divorce custody case. Father filed a petition for change of custody of the parties’
minor children alleging material change of circumstances. After a nonjury trial, the trial court denied
Father’s petition, and Father appeals. We affirm.


    Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                      Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. joined and DAVID R. FARMER , J., joined by filing a separate concurring opinion.

Michael D. Moskovitz; Adam N. Cohen, Memphis, For Appellant, Robert Keith Richardson

Robert G. Millar, Dyersburg, For Appellee, Deborah Etta Richardson

                                             OPINION

        By decree filed March 13, 1996, Robert Keith Richardson (“Father”) and Deborah Etta
Richardson (“Mother”)were divorced. The decree incorporated a previously filed and executed
marital dissolution agreement, providing for joint custody of the parties’ two minor children, Robert
Allen Richardson (“Allen”), born November 3, 1983, and Ashley Nicole Richardson (“Ashley”),
born August 11, 1987. Mother was designated as the primary custodial parent. Mother remarried
in 1996 to Mike Canada, (“Canada”) and moved to Friendship, Tennessee with the parties two
children. In September of 1997, Father filed a petition to modify the final decree for a change in
custody of Allen. On December 11, 1997, an order was filed denying Father’s petition and
modifying the final decree of divorce declaring Mother to be the lawful custodian of the two minor
children.

        In August of 1998, Father filed a second petition to modify the final decree of divorce,
seeking custody of both of the parties’ minor children. On March 17, 1999, the trial court entered
an order awarding Father legal custody of Allen but denied the request for a change of custody of
Ashley, stating that there was no evidence regarding the daughter’s present condition or welfare,
other than what could be implied from negative evidence about Mother’s character.

       While married to Canada, Mother became involved with a David Williamson and the
children were aware of her relationship with him. In September of 1999, Mother divorced Canada
and soon thereafter began dating Brad Wheatly (“Wheatly”) who was married at the time, but no
longer living with his wife. On April 12, 2000, Father filed a third petition with the trial court
seeking custody of Ashley. On April 17, 2000, Mother married Wheatly, who had obtained a divorce
in March of 2000 and had been granted custody of his four minor daughters, who now reside with
Mother and Ashley.

       After a nonjury hearing on August 18, 2000, the trial judge stated from the bench that
Father’s petition for a change of custody was denied. An order denying Father’s petition was filed
September 19, 2000. It is from this order that Father appeals, raising one issue, as stated in his brief:
“Did the trial court err in refusing to modify the final decree of divorce and designate Father as the
custodial parent of the parties’ minor daughter?”

        Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. Rule 13 (d)
T.R.A.P. This rule applies to child custody cases. Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984).

       “In recognition of the importance of stability and continuity, custody and visitation decisions,
once made and implemented are res judicata upon the facts in existence or reasonably foreseeable
when the decision was made.” Crabtree v. Crabtree, No. E2000-00501-COA-R3-CV, 2000 WL
816807 (Tenn. Ct. App. June 23, 2000) (citing Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn.
Ct. App. 1997) and Young v. Smith, 246 S.W.2d 93 (Tenn. 1952)).

        Father contends that Wheatly committed perjury by testifying at his discovery deposition that
he had not been charged with any crimes and later admitted at trial that he had been charged with and
convicted of domestic violence in January of 1999, and theft in May of 1999. Father also asserts that
although Wheatly testified at his deposition that he had not driven a motor vehicle since his license
has been suspended, at trial he admitted to driving “maybe a foot,” and a tape presented at trial
evidenced Wheatly driving both a car and a motorcycle for distances greater than one foot.

        Father asserts that Mother acknowledged that Wheatly played an important role in Ashley’s
life. Father argues that Wheatly does not set a good example for Ashley, evidenced by his perjury
and convictions. Father asserts that Mother’s marriage to Wheatly constitutes a material change in
circumstance warranting an alteration of the previous custody arrangement. Father contends that
Mother perjured herself in her deposition testimony when she claimed that Wheatly had not driven
while his license was suspended. Father avers that Mother has set a bad example for Ashley by her
own perjury and faults her for exposing both children to adulterous relationships since the initial
award of custody. In addition, Father contends that the adverse effect of the separation of the


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siblings pursuant to the order of March 17, 1999, granting Father custody of Allen constitutes a
material change of circumstances warranting a change of custody. Finally, Father contends that even
if no one factor alone is sufficient to constitute a material change of circumstances to warrant a
change of custody, all factors taken together constitute a material change in circumstances. Father
claims that Ashley’s weight gain and personality change from an outgoing to a quiet child support
his claims that her current home environment poses a threat to her well being. Father submits that
the record shows that he is comparatively more fit than Mother as a parent.

         Pursuant to T.C.A §36-6-101(a)(1) courts may change custody “as the exigencies of the case
may require.” When a non-custodial parent seeks a change in custody, that party bears the burden
of showing that the child’s circumstances have materially changed in a way that could not have been
foreseen at the time of the original determination of custody, and that the best interest of the child
will be served by a change of custody. Musselman v. Acuff, 826 S.W.2d 920 (Tenn. Ct. App. 1991).
A court must first determine if there has been a material change in circumstance subsequent to the
initial award of custody such that “the welfare of the child demands a redetermination of custody.”
Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999)(citing Massengale v. Massengale, 915
S.W.2d 818, 819 (Tenn. Ct. App. 1995)). In the event that there has been a material change of
circumstances, the court must then determine if a change of custody would be in the child’s best
interest. Id. (Citing Varley v. Varley, 934 S.W.2d 659, 665 -66 (Tenn. Ct. App. 1996)). However,
the court is not required to make the best interest analysis where there has not been a material change
in circumstances, and must deny the petition for a change in custody. Id.

         A change of circumstances substantial to warrant a change of custody is defined “as that
which requires a change to prevent substantial harm to the child.” Wall v. Wall, 907 S.W.2d 829,
834 (Tenn. Ct. App. 1995). Custody is not changed for the welfare of either parent, nor is it changed
to punish either parent. Id. A change of custody is not warranted by a showing that one parent is
able to provide a more commodious or pleasant life style than the other, but where continued custody
as adjudicated will substantially harm the child. Id.

        Remarriage of either parent in and of itself does not constitute a material change in
circumstances to warrant a change in custody. Tortorich v. Erickson, 675 S.W.2d 190, 192 (Tenn.
Ct. App. 1984). However, the possible change in the home environment of the child caused by a
remarriage is a factor to be weighed in determining whether there has been a material change in
circumstances that would warrant a change in custody. Id. The character of persons who would be
in position to influence a child is an important consideration for the court. Id. (Citing Riddick v.
Riddick, 497 S.W.2d 740, 742 (Tenn Ct. App. 1973).

       Modification of a prior custody decree is an extreme legal action, and not every change in
circumstances will be sufficiently material to warrant a change in custody. Brown v. Brown, No.
02A01-9709-CV-00228, 1998 WL 760935, at *6 (Tenn. Ct. App. Nov. 2 1998) (citing Eberhart v.
Eberhart, No. 03A01-9612-CV-00374, 1997 WL 406378 , at *2 (Tenn. Ct. App. July 22, 1997).
              No “hard and fast” rule exists as to what constitutes changed
              circumstances. Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn


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                App. 1983). The party seeking a change of custody, however, must
                prove that “some new fact has occurred which has altered the
                circumstances in a material way so that the welfare of the child
                requires a change of custody.” Griffin v. Stone, 834 S.W.2d 300, 302
                (Tenn. App. 1992). In order to be compelling enough to warrant the
                dramatic remedy of changed custody, the change of circumstances
                must be such that “continuation of the adjudicated custody will
                substantially harm the child.” Wall v. Wall, 907 S.W.2d 829, 834
                (Tenn. App. 1995). When the requested modification is based on the
                behavior of the custodial parent, such behavior must clearly posit or
                cause danger to the mental or emotional well-being of the child.
                Musselman v. Acuff, 826 S.W.2d at 924 (quoting Ballard v. Ballard,
                434 So. 2d 1357, 1360 (Miss. 1983)).

Brown, at *7.

        In the instant case, the trial court found that there were legitimate concerns regarding the
home environment provided to Ashley since Mother’s marriage to Wheatly, however the court found
no evidence of a threat of danger to Ashley by continuing Mother’s custody, stating:

                        Now, this is a young girl and the proof shows that she’s not in
                an ideal situation. She’s going to be living there with her mother,
                who’s run through three or four men, and none of them seemed to be
                very ideal and that couldn’t be a good example for the girl. She’s
                seen a lot of things that, if I had my way, wouldn’t be going on

                                      *      *       *
                       Mr. Richardson, he’s not perfect either. I reviewed the
                evidence of the previous hearing and the findings are in the record
                about him. He’s trying to straighten himself up and do the best he
                can. Seems to be doing pretty well.

                        Now, there’s no proof however, in this case, that the young
                lady is not doing pretty well, considering all of these disadvantages
                she’s got. And there appear to be some compensations for the
                situation she’s in. She’s living in a rural area, which is very good for
                some people....The house, from what I can see in the video, looks like
                an attractive country type house. There’s some benefits from that.

                        So there’s no evidence that she’s not doing relatively well in
                the situation she’s in. Apart from school, she has these other
                activities. The usual danger signs that I hear about at these trials are
                not present; staying out all night, doing drugs, or getting into trouble,


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                running with a bad crowd. Her stepfather is the worst crowd that
                she’s around.

                       Now, the law says that stability in a child’s life is very
                important. It’s not the only thing for the Court to consider, but it is
                very important. And in this case, it seems to me that it should be the
                deciding factor, that as long as she’s doing well as she’s doing, the
                Court shouldn’t interfere with that.

        The record does reveal that Mother was aware that Wheatly had driven without a license,
although she testified to the contrary. In addition, Wheatly perjured himself with regard to his
driving without a license and his convictions. However, the proof failed to support Father’s
contention that Ashley had suffered from Mother’s or Wheatly’s lack of veracity. Although we
cannot countenance perjury, there has been no showing that Mother is unfit as a parent or that a
continuation of Mother’s custody poses a threat of substantial harm to Ashley. Ashley is doing well
in school, she has friends, participates in extra curricular activities, and appears to be settled in her
current environment. The proof does not support Father’s contention that Ashley’s weight gain or
her increased tendency to keep to herself is a result of Mother’s custody. The only evidence in the
record regarding the court ordered counseling for Ashley was given by Mother who testified at trial
that Ashley did receive counseling and was reported by the counselor to have no psychological
problems. Mother stated that Ashley had been released from treatment, because according to her
psychologist, Ashley was no longer in need of individual counseling. Mother further testified that
she had attempted to involve Ashley in family or joint counseling, however her efforts had been
unsuccessful because Father had opposed joint counseling.

        Father further contends that the separation of the siblings in this case is not in the best interest
of Ashley. The separation of the siblings was ordered by the court in response to a prior petition for
a change in custody in which Father sought custody of both children. He was granted custody of
Allen only upon a finding that insufficient evidence was presented with regard to Ashley. In the
order entered March 17, 1999, the trial court found that Allen was not doing well in Mother’s
custody, that he was failing in school and engaging in inappropriate and anti-social behavior which
could become dangerous. The trial court found that under the circumstances it was in the best
interest of Allen that he be placed in the custody of Father.

         It is a well established principle in Tennessee in child custody cases that the best interest of
a child is the overriding consideration. Luke v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983).
“Generally speaking, it is not appropriate to separate siblings by a custody order. Baggett v. Baggett,
512 S.W.2d 292, 293-94 (Tenn. App. 1973); but this principle is not inflexible. It must give way to
other considerations if the best interest of a child so dictates.” Rice v. Rice, 983 S.W.2d 680, 684
(Tenn. Ct. App. 1998). The preference for siblings to remain together is only one factor to consider
in the court’s determination of a child’s best interest. In re S.B., No. M1999-00140-COA-R3-CV,
2000 WL 575934, at *5 (Tenn. Ct. App. May 12, 2000) (citing In the matter of M.W.A., Jr.,
C.D.A., K.M.A. and A.K.A., 980 S.W.2d 620, 623 (Tenn. Ct. App. 1998)). In addition, such


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preference is not the controlling factor and courts have separated siblings where the separation was
in the best interest of the child. Id. The recognition that children need stability and continuity in
relationships has led to a presumption by courts in favor of continuity of placement. See Taylor v.
Taylor, 849 S.W.2d 319, 328 (Tenn. 1993).

         It is unfortunate that the record contains no report or testimony of Ashley’s wishes
concerning custody. It is the opinion of this Court that a child thirteen years of age, Ashley’s age at
the time of this trial, should be consulted to determine whether that child has a preference as to the
custodial parent. If a preference does exist, such preference should be weighed along with other
relevant factors in making a determination of the child’s best interest. T.C.A. § 36-6-106 (7) (2000
Supp.) Upon a review of the evidence that was presented, it appears that the two minor children
involved have very different characters and vastly different needs. We do not believe that keeping
these siblings together overrides maintaining continuity of placement.

        The evidence does not preponderate against the trial court’s findings that there is no material
change of circumstances warranting a change of custody. Accordingly, the order of the trial court
is affirmed. This case is remanded to the trial court for such further proceedings as may be
necessary. Cost of this appeal are assessed against Appellant, Robert Keith Richardson, and his
surety.



                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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