RITA ANN LAYNE WATERS,            )
                                  )
     Plaintiff/Appellee,          )    Appeal No.
                                  )    01-A-01-9708-CV-00402
v.                                )
                                  )    Marion Circuit
STACY LAYNE,                      )    No. 7341

     Defendant/Appellant.
                                  )
                                  )                      FILED
                                                           March 27, 1998

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk

                   COURT OF APPEALS OF TENNESSEE


      APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY

                           AT JASPER, TENNESSEE


              THE HONORABLE BUDDY D. PERRY, JUDGE




RITA WATERS, PRO SE
2570 Alvin York Highway
Whitwell, Tennessee 37397

BARBARA L. BROERSMA
P.O. Box 4362
Chattanooga, Tennessee 37405
ATTORNEY FOR THE DEFENDANT/APPELLANT




                       AFFIRMED AND REMANDED




                                              SAMUEL L. LEWIS, JUDGE
                                  O P I N IO N

      This is an appeal from the most recent of custody orders concerning Amanda
Brooke Layne ("the child") who is the minor daughter of Stacy Layne ("the Father")
and Rita Ann Layne Waters ("the Mother"). The Circuit Court of Marion County
ordered that custody of the child be changed from the Father to the Mother and set
up a schedule for visitation with the Father. The Father has appealed to this court.
On appeal, we must determine whether the trial court erred in finding that a change
of circumstances had occurred such that it should transfer custody of the child from
the Father to the Mother. In addition, the Father challenges the visitation as
scheduled by the trial court claiming that the court erred in not granting "extended
and frequent visitation."


      The record shows that the parties in this case were divorced in January of 1988
after which time ensued a succession of arrangements regarding the custody of their
then three-year-old daughter. Custody was initially awarded to the Mother. There-
after, the Father petitioned for custody alleging that the child had suffered abuse at
the hands of one Evert Mardis. The court awarded the Father temporary custody of
the child and granted visitation to the Mother which was conditioned upon the child
not coming into contact with Mr. Mardis. Subsequent to this, custody again changed
when a series of agreed orders provided that the parties should have joint custody.
A final agreed order was entered in January of 1994 which provided that the Father
and his then wife Judy Layne would have custody of the child and that the Mother
and her husband would have visitation every weekend.


      The action before us began when, in February of 1997, the Mother petitioned
for custody of the child claiming that circumstances had changed since the time of the
agreed order which gave custody to the Father. She asserted that the Father was no
longer married and was not properly caring for the child. At trial, the Mother
explained that when she had remarried, the child had wanted to live with her father
and she agreed for the Father and Judy Layne to have custody of the child. However,
she filed for a change of custody once she learned that the Father and Judy Layne
were divorced. The Mother, who received a small income from babysitting, said that
she had been married to her current husband for three and a half years and that he
liked the child and did not object to her coming to live with them. The Mother

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claimed that she and Judy Layne took care of the child. When asked about the
alleged incident with Mr. Mardis, the Mother asserted that these accusations had not
been proven.    Nonetheless, she testified that though Mr. Mardis might have
occasionally been around the child, he had never been alone with her.


      Ricky Waters, the Mother's current husband, testified that the child had been
regularly visiting his home since he married the Mother in November of 1993. He
said that they were adding onto their home so that the child would have her own
room. He said that she would be covered on his insurance once they had full custody.
He testified that Evert Mardis was his brother and that he came around once or twice
a month to help fix things. Mr. Waters was aware of the allegations against Mr.
Mardis but saw no problem with taking the child around him now. He did assert that
Mr. Mardis "has not been close enough to even touch her at all."


      Judy Layne confirmed that she and the Father divorced in November of 1996.
She testified that once she and the Father stopped living together in March of 1996,
the child remained with her in the marital home. She said that the child stayed with
her from March of 1996 until after the divorce in February of 1997. During this time,
though the Father occasionally gave the child $10 or $15, it was Ms. Layne who paid
for the child's clothing and doctor's appointments. Ms. Layne said that while the
child lived with her, the child visited the Father when he came by the house during
meal times but she spent only about three nights with the Father outside of the home
as he would only let her come these few times. Ms. Layne testified that the Father
had not been giving her money to pay the mortgage payments for the house in which
she and the child lived and in which she, the child, and the Father had lived together
since October of 1994. Regarding her relationship with the child, Ms. Layne claimed
that they were attached to one another. She thought it was good for the child to
remain in the house with her where she had her own room. Ms. Layne admitted that
she was angry at the Father for taking the child from her. When confronted with the
reality that she would not get custody of the child despite the outcome of the matter
between the Father and the Mother, she said that "[the Mother] will let me see her
when he won't let me see her." Ms. Layne's sister, Debbie Chance testified and
confirmed that, every day for the past three years, she had taken the child to school
for her sister Ms. Layne.


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      The Father testified that he had held the same job for the past eleven years. At
the time of the trial, he lived with his current wife Deborah Ann Layne and the child
in a three bedroom house. Prior to this, he had lived in a one bedroom apartment for
ten or eleven months which was all he could afford.             During this time, he
acknowledged that the child stayed with his ex-wife Judy Layne in their former home.
He claimed that this was best so that the child could have her own bedroom and
maintain her routine. He testified that he went by every afternoon and had dinner
with the child. He claimed that, during this time, he was giving Judy Layne enough
money to pay the mortgage with some left over to pay for the child's clothes.
According to the Father, the child is doing fine living with him and his new wife.
Now that the child lives with him and his new wife, his mother-in-law takes her to
school. The Father gets home everyday by 3:30 or 4:00, eats with the child and then
spends time with her. It was his testimony that his ex-wife Judy and not the Mother
was the primary provider for the child over the past years. However, he did agree that
the Mother cared for the child when she was in the Mother's custody. He said that
since 1994, in addition to seeing the Mother every weekend, the child saw her any
other time that she wanted.


      Linda Frizzell, the Father's current mother-in-law confirmed that she has fixed
the child's breakfast and taken her to school every morning since her daughter
married the Father which was only three weeks prior to the trial. She testified that the
child seems happy and healthy. She also said that she picks up the child in the
afternoons. Deborah Layne, the Father's current wife testified that she is an x-ray
technologist. She claimed to have a good relationship with the child: together they
play ball, ride bikes and walk, and study for the child's school.


      At the close of all the proof, the trial judge articulated the applicable legal
standard as follows:
      I have to determine if there has been a change of circumstances. If there
      has been a change of circumstances, what would be in the best interest
      of the child, it would require me to give custody to the [M]other, then
      I am compelled to do so. If there has not been a change of
      circumstances then the child has to remain with the [F]ather. And I
      think the issue for me in this case is the divorce from a stable care
      provider for a child a change in circumstances sufficient to justify me
      removing the child from the father and giving the child to the mother.

The judge voiced his opinion that if it were an option, he would award custody to

                                           4
Judy Layne who has been the obvious "caretaker and provider over the past few
years." However, it the final order, custody was transferred to the Mother due to the
fact that the Father, "as many fathers, allowed his wife to be the primary care giver
while he earned a living." The court ordered that the Father should have visitation
every other weekend from Friday 6:00 p.m. to Sunday 6:00 p.m. and six continuous
weeks during the summer during which time the Mother would have alternate
weekends with the child. In addition, the parties would alternate major holidays.
Finally, the court expressed concern over the attitude of the child's step-father
regarding the abuse of the child and thereby restrained the Mother and the step-father
from allowing the child to be around Evert Mardis. The court stated that a finding
that the child has been in the presence of Evert Mardis was a sufficient circumstance
for immediate termination of the Mother's custody.


      A court's determination concerning custody, either initially or upon a petition
for modification, is factually driven. Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn.
1988). Trial courts, therefore, have wide discretion in awarding custody and
appellate courts will not interfere with lower courts' decisions except upon a finding
of abuse of discretion. Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). The
law is clear that an appellate court is to review a custody decision de novo with a
presumption of correctness of the findings of fact of the trial court. Nichols v.
Nichols, 792 S.W.2d 713, 716 (Tenn. 1990). Such a decision will not be reversed
absent an error of law, unless the appellate court finds that the evidence
preponderates against the trial court's findings. Tenn. R. App. P. 13(d); see Hass v.
Knighton, 676 S.W.2d 554 (Tenn. 1984).


      The law provides that a trial court's initial award of custody is "subject to such
changes or modification as the exigencies of the case may require." Tenn. Code Ann.
§ 36-6-101(a)(1) (1996 & Supp. 1997). The court must determine if there has been
"a material change in circumstances that is compelling enough to warrant the
dramatic remedy of changed custody." Id. "'Changed circumstances' includes any
material change of circumstances affecting the welfare of the child or children
including new facts or changed conditions which could not be anticipated by the
former decree." Dalton v. Dalton, 858 S.W.2d 324, 326 (Tenn. App. 1993) (quoting
Hicks v. Hicks, 176 S.W.2d 371 (Tenn. App. 1943)). Finally, this court has held that
the burden is on the non-custodial parent to prove changed circumstances. Blair v.
                                          5
Badenhope, 940 S.W.2d 575, 576 (Tenn. App. 1996). Once the court determines
there has been a material change in the conditions, it "should consider the effect on
the child of changing his or her surroundings."                 Hall v. Hall, No.
01-A01-9310-PB-00465, 1995 WL 316255 at *3 (Tenn. App. 1995). And finally, "if
there has been a material change of circumstances and if both parties would be fit
parents, the court should determine which parent would be comparatively more fit."
Id.


      At the close of the trial, the lower court articulated the appropriate legal
standard for modifying custody. After reviewing the evidence for a "change of
circumstances," the court determined that there had been such a change. At the time
that the January 1994 agreed order was entered, the circumstances were not only that
the Father was married, but that he was married to Judy Layne. As the testimony of
Judy Layne, Ms. Layne's sister, the Father and the Mother all revealed, this particular
marriage was of great significance to the child. Ms. Layne was her primary care giver
for over three years. It was Ms. Layne who prepared the child each day for school.
It was Ms. Layne who shopped with the child and took her to her appointments.
Perhaps the greatest evidence of their relationship is that when the Father moved out,
the child remained under Ms. Layne's care for almost an entire year. Moreover, the
specific language of the January 1994 agreed order indicates that parties
contemplated the child be under the care of Ms. Layne as a circumstance of the
Father's custody. The order provided that "[t]he parties have agreed that the custody
of the said minor child shall be placed with the Defendant Stacy Layne and wife,
Judy Layne." (emphasis added). We conclude that a preponderance of the evidence
supports the court's finding that the divorce of the Father from Ms. Layne was a
material change in circumstance which was not anticipated by the custody order.


      In addition, we find that the evidence does not preponderate against the lower
court's decision to transfer custody to the Mother as the comparatively more fit
custodian under the changed circumstances. At the time of trial, the Mother had been
in a marriage for three years. Both she and her husband desired that the child live
with them in their home where they were adding on a room for the child. Due to the
Father's job, it appears that his wife of three weeks at the time of the trial, Ms.
Deborah Lane, and not he, was the primary caregiver when the child was in his
custody. While there was no evidence that the child was suffering great harm in the

                                          6
home with her father and her new stepmother, it was within the court's discretion to
modify custody such that the child's mother and not her new step-mother be her
primary caretaker.


      Lastly we address the Father's contention that the lower court erred in not
granting him visitation which was more extended and frequent. The law is clear: in
structuring visitation, the welfare and best interest of the child are the paramount
considerations and that the rights, desires and interests of the parents are secondary.
Neely v. Neely, 737 S.W.2d 539, 542 (Tenn. App. 1987). The courts do recognize
that it is important for the parent-child relationship to be maintained between a child
and the noncustodial parent. Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn. 1993);
Turner v. Turner, 919 S.W.2d 340, 346 (Tenn. App. 1995). In the case at bar, we
find that visitation as structured by the court below gives the Father substantial time
with the child. See Jahn v. Jahn, 932 S.W.2d 939, 942 (Tenn. App. 1996). As
stated, the court ordered that the Father should have visitation every other weekend
and for six continuous weeks during the summer during which the Mother would
have alternate weekend visitation with the child. In addition, the court's order
provided that the parties would alternate major holidays.


      We realize that this visitation plan is not as extensive as certain of the various
arrangements between the parties in previous years many of which were joint custody
arrangements. However, the very nature of single-parent custody is that the custodial
parent is given the "primary control and responsibility for the upbringing of the
parties' children."   Dodd v. Dodd, 737 S.W.2d 286, 289 (Tenn. App. 1987)
(commenting unfavorably on joint custody and noting that "[t]here needs to be one
residence, one haven in all the storms of life, including those storms whipped up by
the winds of divorce.") Along with the responsibility of the custodial parent comes
that parent's "sole prerogative to make the significant decisions concerning the
child's education, residence, religious training, and medical care." Rust v. Rust, 864
S.W.2d 52, 55 (Tenn. App. 1993). It follows that the non-custodial parent's rights
and obligations arising from the parent-child relationship are diminished. Where, as
in this case, the visitation structured by the trial court permits the maintenance
of the parent-
child relationship, there is no abuse of discretion on the part of the lower court. We


                                          7
therefore uphold the lower court's ruling with regard to visitation.


      In conclusion, we find that the evidence does not preponderate against the trial
court's findings with regard to custody and visitation in this case. Thus, we affirm the
decision of the lower court to place custody with the Mother. We also uphold the
Father's visitation with the child as it was structured by the trial court. The costs of
the appeal are taxed to the Father.




                                        _________________________________________
                                        SAMUEL L. LEWIS, JUDGE


CONCUR:


_____________________________________
BEN H. CANTRELL, JUDGE


_____________________________________
WILLIAM C. KOCH, JR., JUDGE




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