                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON


CINDY L. STUBBS,                        )
                                        )


VS.
             Plaintiff/Appellee,        ) Obion Chancery No. 18-737
                                        )
                                        ) Appeal No. 02A01-9703-CH-00050
                                                                           FILED
                                        )
                                                                     November 24, 1997
WOODROW W. STUBBS, III,                 )
                                        )
                                                                      Cecil Crowson, Jr.
             Defendant/Appellant.       )                             Appellate C ourt Clerk



           APPEAL FROM THE CHANCERY COURT OF OBION COUNTY
                       AT UNION CITY, TENNESSEE
          THE HONORABLE WILLIAM MICHAEL MALOAN, CHANCELLOR




STEPHEN C. CROFFORD
Nashville, Tennessee
Attorney for Appellant



BRUCE MOSS
CONLEY CAMPBELL MOSS SMITH
Union City, Tennessee
Attorney for Appellee




AFFIRMED AND REMANDED




                                                            ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
     Plaintiff, Woodrow Wilson Stubbs III (“Father”), appeals the trial court’s order in
favor of Cindy Stubbs (“Mother”) dismissing his petition to change custody. For reasons

hereinafter stated, we affirm the trial court’s judgment and remand to the trial court for a

determination of the amount of attorney’s fees to award Mother as necessitated by this

appeal.



                                          FACTS



       On September 3, 1996, Father filed a petition to change custody and a temporary

restraining order. Thereafter, on September 17, 1996, Mother filed a response to the

petition. This cause came to trial on September 24, 1996, in which, the trial court

rescinded the temporary restraining order and dismissed Father’s petition to change

custody.



       Mother and Father were married in July, 1990 and were cohabitating in Florida as

of February 1994.    There are two children of the marriage--Cody, age 5, and Savannah,

age 3. Mother and the two children moved to Union City, Tennessee, in February 1994.

Mother filed for divorce in April 1995. The final decree of divorce was granted December

21, 1995. Mother was granted custody of the children by virtue of a Marital Dissolution

Agreement. Father remained in Florida.



       On August 10,1996, Mother contacted Father by placing a call to Father’s fiancé,

Robin Beach ( “Beach”) Mother asked Beach if Father would come get the children and

enroll them in school. There is some dispute as to when and if the children were to be

returned. Mother contends that she told Father and Beach that the children’s stay would

be for two weeks or a month at the most. Beach contends that Mother made no mention

of the length of the stay. Beach further asserts that Mother stated that she wanted the

children to live with Father for a while. Thereafter, Father drove to Tennessee to pick up



the children. Subsequently, Father sought to have custody of the children changed from

Mother to himself.



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       During this time frame, Mother was seeing a psychiatrist for problems with bulimia

and depression. Mother was taking various prescribed medications from various doctors

such as hydrocodone, depakote, prozac, diazepam, and butalbital/APAP/Caffeine. Father

contends the medication has affected Mother’s ability to take care of the children. Mother

admitted that a certain medication, depakote, was making her sleep but, otherwise, denies

that her medication interferes with her ability to care for the children in any way. Mother

testified that she discontinued her usage of depakote.



       Father tendered various depositions and witnesses to establish that Mother was not

properly taking care of the children. Father’s sister and brother-in-law testified, via

deposition, that, on one occasion while they were picking up the children for a visit, Mother

was “high,” “groggy,” and “stumbling.” Father’s sister stated that the children were

physically dirty, and that Cody was wearing cowboy boots with no socks and had terrible

blisters on his feet. Moreover, she stated that there were no shoes in Mother’s house for

Savannah. Father’s mother testified that she had visited several times in the home of

Mother and that it was unkept and in want of food. Father’s father testified that sometimes

Mother’s house was clean and other times it was not.



       Several witnesses testified on Mother’s behalf. The Central Elementary School

Principal, Joyce Stephens, testified through stipulated trial exhibit that Mother enrolled

Cody in kindergarten on March 5, 1996, attended registration night on August 19, 1996,

and attended parent night on August 29, 1996. Furthermore, Ms. Stephens was told by

Mother that Cody would return to Tennessee and be in school on September 16, 1996.



       Nadine Lyons, Mother’s mother, testified that she had seen the children three to four

times per week and witnessed no deficiencies in the care that Mother was giving to the

children. Ms. Lyons stated that the children had ample food and clothing and that Mother

was able to take care of them.



       Vicky Delassus, a friend of Mother’s for eighteen years who recently moved back



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to Union City, testified that she had been around Mother several times over the last few

months preceding this cause and that the children were well-behaved, well-nourished, and

clean. Ms. Delassus stated that the house was not dirty, the floors were clean, and the

beds were made.



       Susan McManus, a friend and former babysitter, testified that she has been around

Mother and the children weekly for the last two years and that the children were full of

energy, playful, well-behaved, lovable, and wonderful. She further stated that the children

never seemed undernourished or inadequately clothed.



       Annette Voker, a friend of Mother’s for thirteen years, testified that she had seen

Mother and the children once a week for the last year preceding this cause. She described

the children as well taken care of, happy, normal, typical children. She stated that the

children’s clothing was adequate and the home not filthy or strewn.



       The trial court found that there was no firm agreement as to the children going to

Florida to live or visit. Further, the trial court found that there was not sufficient evidence

to warrant a change in custody. Specifically, the trial court found that Father knew what

Mother was like, and agreed at the time of the divorce that Mother was to have custody of

the children. The trial court stated that Mother’s present situation, while not commendable,

was nothing that was unforeseeable or that did not exist at the time of the divorce.

Because of the above findings, the trial court rescinded the temporary restraining order and

dismissed Father’s petition for change of custody. This appeal ensued.




                                 LAW AND DISCUSSION



       The paramount consideration in a custody proceeding is the best interest of the

child. When a petition to change custody is brought before the trial court, custody should

not be altered for the well-being or gratification of the either parent or to castigate either


                                              4
parent, but to foster and preserve the welfare of the child(ren). A change in custody is only

warranted where continuation of the adjudicated custody would pose substantial harm to

the child(ren). As in all non-jury cases, a trial court’s determination of what circumstances

warrant a grant or denial of a petition to change custody is reviewed by us de novo;

however, the record developed below comes to us accompanied by a presumption of

correctness that we must honor unless the evidence preponderates against the findings

of fact supporting the trial court’s judgment. Hass v. Knighton, 676 S.W.2d 554, 555

(Tenn. 1984). In making our de novo review, we do not pass on the credibility of

witnesses. Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991). Credibility

is an issue for the trial court who saw and heard the witnesses testify and is, therefore, in

the premier position to determine credibility. Id.



       In order to justify a change in a custodial arrangement, there must be “such a

change in circumstances as will directly affect the welfare of the minor.” Dailey v. Dailey,

635 S.W.2d 391, 393 (Tenn. Ct. App. 1981). The decision of the trial court is not

changeable except for “change of circumstances” which 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 because one parent can furnish a more

suitable or pleasant environment than the other, but where continuation of the adjudicated

custody will substantially harm the child. Id. This Court in Musselman v. Acuff, 826

S.W.2d 920, 923 (Tenn. Ct. App. 1991) quoted the Mississippi Supreme Court which

provided:

              It must be recognized that uprooting a child from his mother, school
              and environment was a jolting, traumatic experience. It is only that
              behavior of a parent which clearly posits or causes danger to the
              mental or emotional well-being of a child (whether such behavior is
              immoral or not), which is sufficient basis to seriously consider the
              drastic legal action of changing custody.



       Essential to Father’s petition, although certainly not the only basis, was Mother’s

psychiatric difficulties and her alleged abuse of medication. Father relied heavily on the

testimony of Cynthia Hodges and Howard Schwartz, Father’s sister and brother-in-law, and

upon the prescription records of Mother. Ms. Hodges and Mr. Schwartz testimony was

                                             5
received by the trial court in the form of depositions taken on September 11, 1996. These

depositions were primarily concerned with Mother’s mental state and the children’s physical

conditions when Ms. Hodges and Mr. Schwartz went to pick up the children for a visit in

August of 1996. The evidence rendered from these two depositions was acutely disputed

by evidence propounded by Mother. The testimony of Ms. Hodges and Mr. Schwartz was

circumstantial in nature and, clearly, did not impress the trial court sufficiently to merit a

change in custody.



       Also essential to Father’s petition is his assertion that Mother requested that the

children live with Father’s family in Florida because Mother was experiencing difficulty in

properly caring for the children. We find the record devoid of such evidence. What the

evidence does show is that there was no absolute agreement between Father and Mother

as to whether the children’s stay in Florida was merely a visit or a change in custody. The

evidence from Father and Mother are adverse to each other on this point. The trial court

heard testimony on this point and found that the parties had not come to a “firm

agreement.” We agree.



       We have carefully reviewed the evidence in this case. The burden to prove a

change in circumstances resulting in a substantial harm to the child(ren) is upon the non-

custodial parent. The testimony and depositions tending to support Father’s petition for

change of custody were sharply disputed by the testimony of Mother and the witnesses

presented on her behalf. These conflicts not only required the trial court to evaluate the

credibility of the witnesses who appeared before it at trial or in the form of depositions but

also to determine whether or not Father carried his burden of proof. The trial court

resolved these issues in favor of Mother. We cannot say that the trial court was wrong in

its assessment of the witnesses’ credibility. As we have previously indicated, credibility of

the various witnesses is for the trial court to determine.



       As mentioned above, the decision of the trial court is not changeable unless a

change in circumstances occurs sufficient to cause substantial harm to the children. After



                                              6
a careful examination of the record, we find that Father failed to carry his burden of proof

in establishing a change in circumstances which would threaten substantial harm to the

children. Considering the importance of credibility in this cause, we cannot say that the

evidence preponderates against the trial court’s findings of fact supporting its conclusion

that there had not been a sufficient change in circumstances to justify a change in custody.

We therefore affirm the judgment of the trial court.



       Concerning attorney fees requested by Mother, T.C.A. § 36-5-103(c) governs

awards of attorney fees in proceedings relating to child custody. This statute provides that

a spouse may recover reasonable attorney fees incurred in any action concerning the

adjudication of the custody of any child, or children, of the parties, both upon the original

divorce hearing and at any subsequent hearing before whom such action or proceeding

is pending, in the discretion of such court.



       In the instant case, Father has instigated actions both at the trial and appellate

levels. Father’s petition to change custody has proven unsuccessful both at trial and on

this appeal. As a result, Father has necessitated Mother’s attorney’s fees. It is within our

discretion to grant or deny Mother’s request for attorney’s fees necessitated by this appeal.

We find that an award of attorney’s fees necessitated by this appeal is just and equitable.

We remand this issue to the trial court to determine the amount of attorney’s fees to award

Mother. In making this determination, we emphasize that the award is only for attorney’s

fees necessitated by this appeal.



       In light of the foregoing analysis, we hereby affirm the judgment of the trial court and

remand to the trial court to determine the amount of attorney’s fees to which Mother is

entitled on appeal. Costs of appeal are taxed to the appellant, for which execution may

issue if necessary.




                                                                 HIGHERS, J.



                                               7
CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.




                       8
