                  IN THE COURT OF APPEALS OF TENNESSEE
                      WESTERN SECTION AT NASHVILLE


NANCY RENEE                        )
McREYNOLDS (DELBRIDGE),            )
                                   )
            Plaintiff/Appellant,   ) Bedford Chancery No. 19,185
                                   )
VS.                                ) Appeal No. 01A01-9702-CH-00064
                                   )
ROBERT IRVING McREYNOLDS,          )
                                   )
            Defendant/Appellee.    )


         APPEAL FROM THE CHANCERY COURT OF BEDFORD COUNTY
                      AT SHELBYVILLE, TENNESSEE
              THE HONORABLE TYRUS H. COBB, CHANCELLOR



                                    FILED
                                      October 3, 1997
TERRY A. FANN                       Cecil W. Crowson
R. STEVEN WALDRON                  Appellate Court Clerk
WALDRON AND FANN
Murfreesboro, Tennessee
Attorneys for Appellant


JOHN H. NORTON, III
NORTON & SMITH
Shelbyville, Tennessee
Attorney for Appellee




AFFIRMED




                                                     ALAN E. HIGHERS, J.



CONCUR:

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

HOLLY KIRBY LILLARD, J.
       Nancy Renee McReynolds Delbridge (Mother) appeals the trial court’s order denying

her counterpetition to modify the joint custody arrangement previously agreed to by the

parties and set forth in their final divorce decree. For the reasons stated hereinafter, we

affirm the trial court’s judgment.



       The Mother and Appellee Robert Irving McReynolds (Father) were divorced in

Bedford County in July 1994. Per their agreement, the final divorce decree awarded the

parties joint custody of their two minor daughters. Although the decree awarded the

Mother primary physical custody of the children, the decree set forth an arrangement

whereby the children spent three nights per week (Wednesday, Thursday, Friday) with the

Father and the remaining four nights per week with the Mother. Additionally, the decree

permitted the Father to pick up the children and take them to church every other Sunday.




       In March 1995, the Father filed a petition to change custody in which he asked the

trial court to terminate the joint custody arrangement and to award him sole custody of the

children. As grounds for this change, the Father alleged that the Mother was engaging in

overnight visits with a male friend while the children were present and, further, that the

Mother was consuming intoxicants around the children.            The Father’s petition also

described conflicts over joint custody issues which had arisen between the parties since

the divorce.



       The Mother answered and filed a counterpetition in which she similarly requested

the trial court to modify the joint custody arrangement by awarding her sole custody of the

children. The Mother’s counterpetition alleged that the following material change of

circumstances warranted modification of the joint custody arrangement:

               That [the Father] constantly harasses [the Mother] to the point
               where she has been forced to place a block on her telephone.
               That, further, [the Father] intentionally places the minor
               children of the parties in the middle of an argument with [the
               Mother] even though [the Mother] has repeatedly advised him
               that doing so causes emotional harm to the children. That,
               [the Mother] has tried to cooperate with [the Father] in every
               respect in order to assure that the children’s best interests are


                                              2
              preserved; however, [the Father’s] attitude makes cooperation
              impossible.



      The parties’ daughters were six and seven years old, respectively, in August 1996

when the custody modification hearing took place. At the hearing, the Mother testified that

the Father’s hostility toward her had increased since the parties’ divorce and had made the

joint custody arrangement unworkable. According to the Mother, these problems began

in August 1994, the month following the divorce. When the Father arrived at the Mother’s

house one day to pick up the children, the Father discovered that a male friend of the

Mother was there working on an air conditioner. The Father became very hostile and

initiated a loud, verbal confrontation with the man, whose name was Tom Delbridge. The

Father terminated the confrontation only after Delbridge reminded him that the children

were present.



       After the Father filed his modification petition, the Mother married Delbridge and

moved to the Rockvale community of neighboring Rutherford County. The Mother’s

relationship with the Father has continued to deteriorate since the divorce. As recently as

July 1996, the month before the hearing, another angry confrontation occurred between

the Father and Delbridge at a ballpark. The Father coached the children’s softball team,

and the Mother and Delbridge were there to watch the game. After the game, the Father

and Delbridge argued over what time the Father was going to pick up the children for

visitation the next evening. Again, with the children present, the Father became very loud

and made threatening statements toward Delbridge.



       In addition to the Father’s confrontations with Delbridge, the Mother testified that the

Father had made joint custody difficult in other ways. For example, the Mother testified

that the Father had enrolled the children in a soccer camp and other programs without first

consulting the Mother. Generally, the Father is 35 to 40 minutes late returning the children

to the Mother’s house. A dispute also arose after the divorce over whether the Father had

paid his share of the children’s child-care expenses. The Mother testified that she blocked




                                              3
her telephone from receiving calls from the Father because he called so many times when

the Mother had the girls that the Mother felt the Father was harassing them.



      Despite these conflicts with the Father, the Mother acknowledged that both children

were healthy and were very good students. Although both children are students in the

Bedford County school system, and both the Mother and Delbridge are employed by the

school system, the Mother and Delbridge live over 30 miles away in Rutherford County.

Accordingly, on the three school mornings each week when she has the children, the

Mother drives over 60 miles round trip to Bedford County. The Mother expressed a desire

to enroll the children in Rutherford County schools the following school year. The Mother

also acknowledged that the Father’s problem of returning the children late began after the

Mother moved to Rutherford County. Despite the inconvenience to the Father and the

extra travel time for the children, on the weekends when the Father was permitted to take

the children to church on Sunday morning, the Mother still insisted that the Father return

the children at the scheduled time on Saturday evening. The Mother justified this decision

by explaining that her time with the children was “very precious” to her.



       In his testimony, the Father acknowledged that he had engaged in hostile

confrontations with Delbridge, including the incident at the ballpark the month before the

hearing, but the Father denied being the aggressor in these situations. The Father

believed that the initial confrontation with Delbridge occurred before the parties’ divorce

was final. The Father testified that there was hostility between the parties at the time of

the divorce and that, if anything, he was not as vocal in his animosity now as he used to

be. The Father believed that the Mother put the block on the phone, not because his calls

were harassing, but because the Mother did not want him to talk to the children. The

Father admitted telling the Mother about the children’s soccer camp on the Friday before

the Monday the camp started, and he admitted often returning the children as much as 20

minutes late. The Father testified, however, that he alone handled the responsibility of

transporting the children between his house in Bedford County and the Mother’s house in




                                            4
Rutherford County. The Father further testified that the children had always attended

school and church in Bedford County and that most of their relatives lived there.



       The Father filed his petition to change custody primarily because of his objection to

the Mother’s overnight visits with Delbridge in the presence of the children. Now that the

Mother and Delbridge were married, this asserted ground for modification no longer

existed. In closing arguments, therefore, the Father’s attorney argued that no material

change in circumstance had been shown and that the joint custody arrangement should

be continued, “with the exception that [the Father] ought to have the ability on his Sundays

when he takes the children to church, to keep them over that Saturday night, so that the

[children] are not on the road four or five times during that two-day period.”



       At the conclusion of the custody hearing, the trial court orally ruled that it was

declining to terminate the joint custody arrangement. In doing so, the trial court specifically

rejected the Wife’s claim that hostility between the parties constituted a change of

circumstance which warranted a change of custody. The trial court instead found that

              [T]here was hostility at the time [of] the divorce . . . .

                     ....

                      . . . I don’t see that there has been any increase in
              hostility since the time of the separation. I think it probably has
              lessened.

In determining that continuation of the joint custody arrangement was in the children’s best

interests, the court stated:

              . . . I haven’t heard any proof that [joint custody] has adversely
              affected these children. Both parents say the children are
              happy; the children are healthy.

The court found that joint custody should be continued at least for the next school year

because the children were closer to their school when they stayed with the Father at his

home in Bedford County. That way, the children only had to make the 64-mile round trip

three days per week rather than five days per week. The trial court subsequently entered

a written order setting forth its rulings on the custody issue and related issues.




                                               5
       The Mother has appealed, challenging virtually every ruling and finding contained

in the trial court’s written order. Specifically, the Mother contends that the following rulings

and findings are in error:

                     C.    . . . [T]he Court specifically [finds] that there has
              not occurred such a material and substantial change in
              circumstances as to warrant the entry of a modification order
              changing custody from joint to sole. There is no proof that joint
              custody has had an adverse impact on the welfare of the
              children.

                     D.     The Court, though finding some hostility between
              the parties, does not find that the hostility level has increased
              since the time of the parties’ divorce.

                     E.     The Court does find some slight change in
              circumstances due to the move by [the Mother] of her
              residence to Rutherford County, Tennessee. Accordingly, on
              those alternating weeks when [the Father] has the right to take
              the children to church on Sunday, he will not be obligated to
              return the children from the time he receives them on
              Wednesday at 5:00 p.m. until the following Sunday at
              1:00 p.m.

                    F.      The parties should continue to share the joint
              custody of their children, at least for the next year since [the
              Mother] testified that the children will be attending Bedford
              County schools for the current 1996-1997 school year. Should
              [the Mother] choose to enroll the children in some school
              system other than the Bedford County school system for the
              1997-1998 school year, either party may petition the court to
              modify the joint custody situation at that time.

                      G.      The parties are ordered to continue the child
              support agreement as specified in their marital dissolution
              agreement with [the Father] being ordered to continue paying
              $500.00 per month as child support . . . . The Court
              specifically finds that, due to the joint custody arrangement,
              this is an appropriate case for deviating from the Tennessee
              Child Support Guidelines.

                    H.       Each party shall pay his or her own attorneys
              fees and litigation expenses.



       If this were an appeal from an original custody proceeding, we might be hesitant to

affirm the trial court’s decision to award these parties joint custody of their children, given

some of the difficulties related by the parties at the hearing. We note, however, that the

parties agreed to this arrangement in the final divorce decree and that this is now a

proceeding to modify that arrangement. In a proceeding to modify a prior custody order,

the party seeking a change of custody has the burden of proving a material change in



                                               6
circumstances compelling enough to warrant such a change. See Musselman v. Acuff,

826 S.W.2d 920, 922 (Tenn. App. 1991); see also T.C.A. § 36-6-101(a)(1) (1996)

(providing that trial court retains jurisdiction over custody orders subject to such changes

or modification as “exigencies” of case may require).         A change of circumstances

warranting a modification of custody includes “any material change of circumstances

affecting the welfare of the child or children” and requires a showing of “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).



       In Massengale v. Massengale, 915 S.W.2d 818 (Tenn. App. 1995), this court set

forth the applicable standard for reviewing a trial court’s determination of the issue of

changed circumstances in a custody modification proceeding:

                      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. App. 1981). As in all non-jury cases, a trial
              court’s determination on this issue 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 lower 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.
              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 (citation omitted).” Id.

Massengale, 915 S.W.2d at 819.



       Based on the trial court’s finding that no material change of circumstance had

occurred since the parties’ divorce, we affirm the trial court’s denial of the Mother’s

counterpetition to change custody. In the past, we have held that the “unworkability of joint

custody because of the recalcitrance of one or both partners” may constitute a change of

circumstances warranting a change of custody. Dalton v. Dalton, 858 S.W.2d 324, 326

(Tenn. App. 1993); accord Cheek v. Cheek, No. 03A01-9503-CV-00092, 1995 WL 507793,

at *2 (Tenn. App. Aug. 29, 1995), perm. app. denied (Tenn. Jan. 8, 1996); Phillips v.

Phillips, No. 01A01-9407-CH-00363, 1995 WL 336973, at *3 (Tenn. App. June 7, 1995).



                                             7
In the present case, however, the trial court found that, if anything, the hostility between

the parties had actually lessened since the time of the final divorce decree and, thus, that

no material change of circumstance had been shown. The trial court also found no

evidence that the children had been adversely affected by the joint custody arrangement.

In accordance with the foregoing standard of review, we must presume that these findings

are correct, unless the evidence preponderates otherwise.



       We recognize that the evidence concerning the level of hostility between the parties

in this case was disputed at the custody hearing. The trial court, however, was in a

position to evaluate the credibility of the witnesses at the hearing, and the court apparently

resolved this dispute in favor of the Father. As in Massengale, “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.” Massengale, 915 S.W.2d at 820.



       At the custody hearing, the Father acknowledged that there had been

disagreements between the parties relating to the children’s clothing, exchanging the

children for visitation, and other matters. Accordingly, the evidence was undisputed that

the parties have experienced some problems with the joint custody arrangement. In

DeVault v. DeVault, No. 01A01-9601-CV-00012, 1996 WL 482968, at *3 (Tenn. App.

Aug. 28, 1996), however, this court recently held that an award of joint custody is not

precluded by the fact that the parties may experience some problems with the joint custody

arrangement; an award of joint custody does not require that the parties be on friendly

terms. This holding was based, in part, on the legislature’s 1996 amendment of the child

custody statutes, an amendment which effectively eliminated the judicially-created

presumption against joint custody awards which previously existed in this state. DeVault,

1996 WL 482968, at **2-3 (citing 1996 Tenn. Pub. Acts. 1046). 1

       1
        As am end ed, the statute provide s that:

                        Except as provided in the following sentence, neither a preference
               nor a presum ptio n fo r or against jo int legal cus tod y, joint physical custody
               or sole custody is established, but the court shall have the widest discretion
               to order a custody arrangement that is in the best interest of the child.
               Unless the court finds by clear and convincing evidence to the contrary,

                                                       8
         Although we affirm the trial court’s order denying a change of custody, we remind

the parties that the trial court is empowered to revisit its decision if future circumstances

warrant. As this court previously has cautioned parties,

                 [T]he Trial Court retains the power to change the form of
                 custody. Such change will undoubtedly militate against the
                 custodial rights of one of the parents. It therefore behooves
                 both parents to strive mightily to make joint custody work.

Gray v. Gray, 885 S.W.2d 353, 355 (Tenn. App. 1994).



         Inasmuch as the trial court always retains jurisdiction to modify its child custody

orders, we regard as superfluous the trial court’s ruling that, “[s]hould [the Mother] choose

to enroll the children in some school system other than the Bedford County school system

for the 1997-1998 school year, either party may petition the court to modify the joint

custody situation at that time.” We know of no procedural impediment to either party filing

a future petition to change custody. The trial court may only grant such a petition,

however, if the petitioner meets the burden of proving that a material change of

circumstance has occurred which justifies changing custody. Musselman v. Acuff, 826

S.W.2d 920, 922 (Tenn. App. 1991). Although we question whether the Mother’s decision

to change the children from Bedford to Rutherford County schools would constitute such

a change in circumstances, we note that this issue is not properly before the court at this

time.2



         In light of our affirmance of the trial court’s decision to continue the joint custody

arrangement, we affirm the trial court’s decision not to increase the Father’s child support

obligation at this time. Per the parties’ marital dissolution agreement, the final divorce



                 there is a presumption that joint custody is in the best interest of a minor
                 child where the parents have agreed to joint custody or so agree in open
                 court at a hearing for the purpose of determining the custody of the minor
                 child. . . . The burden of proof necessary to modify an order of joint custody
                 at a subsequent proceeding shall be by a preponderance of the evidence.

T.C.A. § 36-6 -101(a)(2) (1996).

         2
          W e likewise decline to address the issue of whether the trial court erred in modifying the Father’s
visitation sch edu le on th e we ekend s he take s the childre n to churc h. Although the Mother raised this in her
statement of the issues presented for review, the argument portion of the Mother’s brief fails to set forth her
contentions with respe ct to this issue. A cco rdingly, this issue is waived. See Bla ir v. Badenhope, 940 S.W .2d
575, 576-77 (T enn. App. 199 6); T.R.A.P. 27. In any event, we find the trial co urt’s resolution of this issue to
be an equitable one.

                                                        9
decree required the Father to pay $500 per month in child support. Admittedly, this

amount is less than the presumptive amount established by the Child Support Guidelines.

Due to the continued joint custody arrangement, however, the trial court properly found that

this was an appropriate case for deviating from the Guidelines. See Gray v. Gray, 885

S.W.2d 353, 356 (Tenn. App. 1994).



       We also affirm the trial court’s decision to deny the Mother’s request for an award

of attorney’s fees and costs. Tennessee Code Annotated section 36-5-103(c) governs

awards of attorney’s fees in proceedings relating to child support and child custody:

                      The plaintiff spouse may recover from the defendant
              spouse, and the spouse or other person to whom the custody
              of the child, or children, is awarded may recover from the other
              spouse reasonable attorney fees incurred in enforcing any
              decree for alimony and/or child support, or in regard to any suit
              or action concerning the adjudication of the custody or the
              change of custody of any child, or children, of the parties, both
              upon the original divorce hearing and at any subsequent
              hearing, which fees may be fixed and allowed by the court,
              before whom such action or proceeding is pending, in the
              discretion of such court.

T.C.A. § 36-5-103(c) (1996). Courts have held that, under the foregoing statute, a party

who successfully pursues or defends a change of custody petition is entitled to an award

of attorney’s fees. See D v. K, 917 S.W.2d 682, 686 (Tenn. App. 1995); Gaddy v. Gaddy,

861 S.W.2d 236, 241 (Tenn. App. 1992); Fenley v. Fenley, No. 03A01-9604-CH-00121,

1996 WL 469683, at *4 (Tenn. App. Aug. 19, 1996). In the present case, however, the

Mother did not successfully pursue her counterpetition to modify custody because the

petition was denied. Accordingly, we agree with the trial court that the Mother was not

entitled to an award of attorney’s fees.



       As a final matter, we deny the Father’s motion for damages for frivolous appeal.

See Anderson v. Dean Truck Line, 682 S.W.2d 900, 902-03 (Tenn. 1984).



       The trial court’s judgment is hereby affirmed. Costs of this appeal are taxed to

Appellant, for which execution may issue if necessary.




                                             10
                            HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




                       11
