                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                     On-Briefs February 23, 2001

                           IN THE MATTER OF JUSTIN IVORY JONES
                     ROCHELLE MCDONALD v. PERCY L. JONES

                   A Direct Appeal from the Juvenile Court for Shelby County
                   No. G5202   The Honorable George Blancett, Special Judge



                          No. W2000-575-COA-R3-CV - Filed May 21, 2001


        This is an appeal of an order changing custody of the parties’ minor child. Father filed a
petition for change of custody, alleging that the change was in the best interests of the child. The
juvenile court, upon rehearing of father’s petition to change custody, reconfirmed the original order
changing custody to the father. Mother appeals. We reverse the order of the juvenile court and hold
that custody of the minor child be returned to his mother.


       Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Juvenile Court Reversed

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

Gail W. Horner, Germantown, For Appellant, Rochelle McDonald

Melanie E Taylor, Memphis, For Appellee, Percy L. Jones

                                                   OPINION

        This is a child custody case. The minor child’s father, Percy Lee Jones, Jr. (“Father”),
petitioned for change of custody of the minor child, Justin Ivory Jones (“Child”). At the time of the
petition, Child had been in the custody of his mother, Rochelle McDonald (“Mother”), since his birth
on December 31,19941. The Child’s parents were never married, but on August 4, 1995, after
executing a Voluntary Acknowledgment of Paternity of Child, the Juvenile Court entered an Order
of Legitimation and Child was declared the legitimate child of Father.



        1
          Although the Juvenile Court never entered a formal order awarding Mother custody of the Child, we believe
such an order is implicit in the Order dated January 4, 1996, which awarded Father visitation.
       On August 30, 1999, Father filed a Petition for Custody with the Juvenile Court. Father
alleged that it was in the best interests of the Child that Father be awarded custody. On December
9, 1999, the Juvenile Court Referee found that a change in custody was warranted. Following a
rehearing before the Special Judge of Juvenile Court, the Judge reconfirmed the decree changing
custody from Mother to Father.

         Mother appeals and presents four issues for review: (1) Whether the Petitioner/Father met
his burden of proof in showing a material change of circumstances creating a substantial harm to the
minor child and that a change of custody was in the best interests of the minor child; (2) Whether
the trial court abused its discretion in preventing Appellant from presenting evidence dating from
before November, 1997; (3) Whether the trial court erred in relying on evidence entered in a
previous hearing before the court in which Petitioner/Father took a voluntary nonsuit; and (4)
Whether the trial court erred in using a change of custody to punish the custodial parent for
interference with visitation. Because we find for Appellant/Mother on the first issue, we pretermit
the other issues presented on appeal.

        The threshold issue in considering a petition to modify custody is whether there has been a
material change in circumstances since the initial custody determination. See, e.g., Placencia v.
Placencia, 3 S.W.3d 497, 499 (Tenn. Ct. App. 1999); Massengale v. Massengale, 915 S.W.2d 818,
819 (Tenn. Ct. App.1995); Dailey v. Dailey, 635 S.W.2d 391, 393 (Tenn. Ct. App.1981). Once the
trial court determines that the petitioner has demonstrated a material change in circumstances, the
court next determines what custody arrangement is in the best interests of the child. See, e.g.,
Placencia, 3 S.W.3d at 499; Varley v. Varley, 934 S.W.2d 659, 665-66 (Tenn. Ct. App.1996);T.C.A.
§ 36-6-106 (2000 Supp.). Unless the trial court finds a material change in circumstances, however,
the court must deny the petition to modify custody. See Placencia, 3 S.W.3d at 499.

        In a Petition to Modify Custody, the burden is on the non-custodial parent to prove a change
of circumstances. See, e.g., Nichols v. Nichols, 792 S.W.2d 713, 714 (Tenn. 1990); Musselman v.
Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). Because an original custody decree is res
judicata, there is a strong presumption in favor of the custodial parent which the non-custodial
parent can only overcome by demonstrating that the alleged change in circumstances is “material.”
See Taylor v. Taylor, 849 S.W.2d 319, 322 (Tenn. 1993); Nichols, 792 S.W.2d at 715-16. This
Court has described “changed circumstances” as follows:

                       When two people join in conceiving a child, they select that
               child's natural parents. When they decide to separate and divorce,
               they give up the privilege of jointly rearing the child, and the divorce
               court must decide which parent will have primary responsibility for
               rearing the child. This decision of the 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. Custody is not
               changed for the welfare or pleasure of either parent or to punish either
               parent, but to preserve the welfare of the child. Custody is not

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                changed because one parent is able to furnish a more commodious
                or pleasant environment than the other, but where continuation of
                the adjudicated custody will substantially harm the child.

Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995)(citations omitted)(emphasis added).

        In the case at bar, we hold that the evidence preponderates against the trial court’s finding
of a material change in circumstances. The initial change of custody order dated December 9, 1999
contains no findings on the part of the Juvenile Court Referee which indicate the basis for the change
in custody. The Order reconfirming the initial change of custody dated February 10, 2000 states that,
“the evidence and testimony demonstrated that substantial and material changes of circumstances
occurred since the original custody decree and that these changes warranted changing the custody”
of Child from Mother to Father. However, that Order does not indicate what the material and
substantial changes consist of.

         We summarize the testimony in the Statement of the Evidence: Father testified that he had
experienced problems with visitation since Child’s birth in 1994, primarily because of Mother’s
interference. Father states that he had difficulty locating or contacting Mother when his son was with
her, and, on occasion, she did give him information concerning change of addresses that was not
correct. Father testified concerning interferences with his visitation on four or five difference
occasions. On one occasion, Mother cut short his visitation because Mother took Child out of day-
care and placed the child in school, falsifying his birth records to do so. Father also testified that he
went to the school and removed Child from the school and put him back in day-care. He also
testified that since the award of custody by the referee, he has placed Child in preschool where he
attends from 7:00 a.m. until 5:00 or 6:00 p.m. daily. Father further testified that Child and the
stepmother, Mrs. Tanya Jones, had a very good relationship, and that allegations made by Mother
that the stepmother hit Child with a brush, intentionally burned Child, and made Child walk in the
street and fall, were false. Father also testified that Mother had threatened the stepmother and that
Mother had told Child to curse Father and try to hurt the Joneses’ new baby. Father has two other
children that live with their mother somewhere in Memphis, but he did not know the exact address,
because he has no established visitation with them. He listed the dates concerning Mother’s
interference with visitation. He further testified that he was aware that Child was scared of his
stepmother, but that this was because Child was told to say this by his mother.

        Mother testified that although she had moved several times, she had provided notice of the
moves to Father. She said that she furnished a pager number to Father so that he could contact her
at any time, and that she had never tried to interfere with Father’s visitation. She testified that her
concern was with the welfare of Child because of stories Child told her about his treatment by the
stepmother. Mother further testified that Father had hurt Child, because Child had told her that
Father had whipped him with a belt and hit him with the buckle. She denied the Father’s allegations
that she had hurt Child, or that she encouraged Child to curse or lie. She also testified that Child told
her that the stepmother had pushed him in front of a car because he wet his pants in the parking lot,
and the stepmother whips him with the brush because he wets his pants. She states that she can


                                                  -3-
never reach Father at home by telephone because Father has her number blocked on his home phone.
She denies that she has refused Father’s visitation and testified that she always arrives at the
scheduled times, and that she has never threatened the stepmother.

         Mother’s grandfather, Reverend Leroy McDonald, testified that he saw the bruises on Child
in February of 1999 after visitation with Father, and that Child told him that his stepmother had hit
him. He further testified that he has never observed any interference by Mother with Father’s
visitation, but that Father has constantly tried to cause problems for Mother. He testified that he had
seen Child go from being happy to being sad since the referee’s award of custody in December of
1999.

       Mother’s sister, Janice Smith, testified that, since Mother lived with her and her children, she
was witness for all the scheduled drop-offs. Ms. Smith states that Mother was always there at the
scheduled times and that on occasions Father did not show up for the visitation as he was supposed
to.

        The record also reflects that the trial judge spoke with Child, apparently out of the presence
of the parties and counsel, and the judge stated that Child told him that his daddy whips him with
a belt.

       The Statement of Evidence further provides:

                       Special Judge Blancett then proceeded to rule. He stated that
               the father has tried to do things and the mother has interfered. Judge
               Blancett referred to the past history of these parties, including
               numerous contempt charges filed by father against Mother. The
               Judge used those charges filed prior to the November 1997 cutoff
               date to which all testimony had been limited during the rehearing.
               All testimony had been limited to a two year period, however, Judge
               Blancett used the entire record to decide the matter.

                       Judge Blancett states that father is in a home with a wife and
               infant and Justin, and that this is normal and healthy. He states that
               mother is in a more confining situation in an apartment.

                       Judge states that the court is primarily interested in the welfare
               of Justin and this includes bonding. Mother has been an obstruction
               to that bonding. The father should retain custody.

        From our review of the testimony, it appears that the trial court based its finding of changed
circumstances on Mother’s interference in Father’s visitation with Child. Although such interference
is an appropriate consideration in custody determinations, T.C.A. § 36-6-106 (a)(10)(2000 Supp.),
we are aware of no Tennessee case in which such interference, by itself, satisfied the material change


                                                  -4-
requirement.2 The Statement of the Evidence indicates that Father testified to only four or five
different occasions on which Mother interfered with his scheduled visitation.

        We, therefore, hold that Mother’s interference did not amount to a substantial and material
change of circumstances in this case, especially given the fundamental nature of the constitutional
interests involved in removing custody from one parent in favor of the other. See generally In re:
Askew, 993 S.W2d 1, 3-5 (Tenn. 1999); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993). We
wish to make it clear, however, that interference with visitation may, in some cases, constitute a
substantial and material change of circumstances. As such, Mother is admonished to obey the Order
granting Father visitation. We also note that the juvenile court made no finding concerning the best
interest of the child but in the absence of changed circumstances, we need not consider the lack of
such a finding.

        The Order of the juvenile court granting custody to Father is reversed. Custody of the parties’
child should be returned to Mother, with Father resuming his prior visitation schedule. Costs are
assessed against Appellee, Percy L. Jones.


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




         2
           How ever, there is at least one case in whic h this Cou rt implied th at interferen ce may , if coupled with
extrem ely rancoro us relations b etween parents, co nstitute a m aterial chan ge. See Thomson v. Thomson, 199 9 WL
894446, at *8. In that case, we said:

                  The Chancellor minced no words in warning mother that her obstreperous attitude
                  would not be tolerated because it was inimical to Derek's welfare, and that Father
                  would be awarded permanent, exclusive custody if she persisted in her contrariety.
                  Mother would be well advised to heed the Chancellor's warning that he expected
                  the visitation schedule to [be] honored.
Id.


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