                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                           Assigned on Briefs February 3, 2004

                CHARLES BEARD, SR. v. FLORENCE E. BEARD

                     Appeal from the Circuit Court for Hamilton County
                      No. 96DR2548      Jacqueline E. Schulten, Judge

                                 FILED FEBRUARY 13, 2004

                                 No. E2003-02131-COA-R3-CV



Charles Beard, Sr. (“Father”) filed a petition seeking to have primary residential custody of the
parties’ two children transferred from Florence E. Beard (“Mother”) to him. In the alternative,
Father sought a reduction in his child support payments. After a hearing, the Trial Court refused to
change the custody arrangement, again designating Mother the primary residential parent. The Trial
Court did not alter Father’s child support payments. Father appeals. We affirm.



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



D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, J., and
CHARLES D. SUSANO , JR., J., joined.


Charles Beard, Sr., pro se Appellant.


Erskine P. Mabee, Chattanooga, Tennessee, for the Appellee Florence E. Beard.
                                                   OPINION

                                                  Background

               This appeal involves the continuing post-divorce discord between Mother and Father.
Their two minor children are currently 8 and 11 years old. It is unclear when the parties were
actually divorced since those documents are not in the record on appeal. It is clear, however, that
Mother was designated the primary residential parent when they were divorced. An amended Final
Judgment apparently was entered in April of 1998 requiring Father to pay child support in the
amount of $1,178 per month. The record in this case begins with a petition for contempt filed by
Mother in August of 1998 claiming Father was $1,089 in arrears on his child support payments.
Father apparently responded by requesting that his child support payments be reduced. A hearing
was held on the petition for contempt after which the Trial Court entered an order reducing Father’s
child support payment to $474 bi-weekly and entering a judgment against Father for $848 in back
child support payments plus an additional $201 for unpaid alimony.

               The parties continued to file various motions seeking a myriad of relief from the Trial
Court. An Agreed Order eventually was entered on July 19, 2001. In this Agreed Order, Mother was
again designated the primary residential parent and Father’s visitation schedule and other parental
rights were set forth in detail. In March of 2002, Father filed a “Petition for Contempt and to
Modify.” In this petition Father claimed there had been a material change in circumstances
warranting a change in custody. Father claimed Mother was living with a man without the benefit
of marriage and she repeatedly refused to adhere to the visitation schedule. Father later amended his
petition claiming his child support payments should be reduced further if he was not awarded
custody of the children. Mother answered the petition denying the pertinent allegations contained
therein. Mother also filed a counter-petition, claiming Father’s child support should be increased.

                Up to this point in the litigation Father was represented by various attorneys. Prior
to the hearing on Father’s latest petition, his most recent attorney was allowed to withdraw from the
case and Father has proceeded pro se ever since. While proceeding pro se, Father apparently became
dissatisfied with Judge Schulten and filed a “Motion For ‘RECUSATION’ Plaintiff Move to
‘DEMAND A NEW & IMPARTIAL JUDGE.’” The record does not contain the Trial Court’s ruling
on this motion, but it obviously was denied given the fact that Judge Schulten continued to preside
over the case. The record does contain unsigned draft documents and unauthenticated and/or hearsay
documents which do not appear to have been entered into evidence at the hearing.1

               A hearing on Father’s Petition for Contempt and to Modify was conducted after
which the Trial Court entered an Order resolving the various issues. The Order states:




        1
            For example, the record contains pages 117 - 120 and 127 - 130 from the 1997 Manual of the Tennessee Law
Institute. Father apparently relied on several of the case summaries to support his legal arguments.

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                        This cause came on to be heard on the 30th day of June, 2003
               … upon the Petition for Contempt filed by … [Husband], the Answer
               and Petition to Modify filed on behalf of … [Mother], the testimony
               of witnesses in open Court, the testimony of the parties’ children …
               in chambers, without the parties or attorney being present, by
               agreement, and the entire record of this cause. From all of which the
               Court finds and concludes that the Petition for Contempt should be
               denied and that … [Mother] is not in contempt of Court. However,
               the Court finds that the prior orders of this Court should be vacated
               and set aside and that an amended parenting plan should be entered
               in this cause.

An amended Parenting Plan was entered designating Mother the primary residential parent and
setting forth in detail Father’s visitation schedule. The Trial Court set Father’s child support
payment at $474 bi-weekly, which was the same amount he was required to pay prior to the hearing.

                 While no transcript of the hearing was prepared, each party submitted a Statement
of the Evidence and the Trial Court approved the Statement submitted by Mother. As set forth in
that Statement and as pertinent to this appeal, Mother testified that: 1) she was employed full-time
by the U.S. Postal Service; 2) Father has not been as good of a father as he should be; 3) she
purchased clothes for the children which she felt were appropriate; 4) she married her boyfriend, Mr.
Stanley, on January 20, 2003, and informed Father of the marriage one week later; 5) she was
required to purchase medicine for the children because Father refused to give her the children’s
medical cards; 6) she denied picking up the children from school when it was Father’s turn for
visitation; 7) she lives in an eight room house which has three bedrooms; 8) she and her husband do
not smoke in the house because one of the children has asthma; and 9) there were no problems
between her son and his stepfather.

                Mr. Stanley testified he married Mother in January of 2002, not 2003. Mr. Stanley
testified the children were well mannered and were not disrespectful to him. He was not aware of
an incident where he allegedly made his stepdaughter cry and further denied putting his step-son “out
in the rain” as claimed by Father.

                 Father testified he worked part-time. Father claimed Mother was not adhering to the
prior order regarding visitation and other matters. Father testified the children were not showing him
proper respect. Father requested that the Trial Court speak with the children outside of the presence
of the parties and Mother’s attorney. Mother and her attorney agreed to this and the Trial Court met
with the children in chambers. After the Trial Court announced its ruling from the bench, Father got
out of his chair and stated if that was the Court’s opinion, he would just give up all of his rights to
his children and have nothing else to do with them.

             On appeal, Father’s brief does not contain a statement of the issues as required by
Tenn. R. App. P. 27(a)(4). However, based on the relief sought by Father, it is clear that he


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challenges the Trial Court’s refusal to transfer custody of the children to him, as well as the amount
of visitation he was awarded. Father also requests that Mother be required to pay one-half of the
children’s medical bills that were not covered by insurance. We do note that Father did file a
“Declaration of Issues for Appeal” with the Trial Court listing twenty-three issues. In these issues,
Father claims the Trial Court was biased and challenges many statements allegedly made by the Trial
Court and Mother’s attorney at the hearing. Father also challenges the admission and exclusion of
various items of evidence.

                                             Discussion

                The factual findings of the Trial Court are accorded a presumption of correctness, and
we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

              We first address the Trial Court's implicit conclusion that there was no material
change in circumstances which would warrant a change in custody to Father. In Kendrick v.
Shoemake, 90 S.W.3d 566 (Tenn. 2002), our Supreme Court set forth the appropriate standard to be
applied when making such a custody determination. Specifically, the Court stated:

               The principal issue in this case concerns the proper standard to be
               applied to a petition to modify custody from one parent to the other
               parent. This issue is largely resolved by our recent decision in Blair
               v. Badenhope, 77 S.W.3d 137 (Tenn. 2002). Blair involved a custody
               dispute between a parent and a non-parent. We concluded that once
               a valid order of custody has been issued, subsequent custody
               modification proceedings should apply the "standard typically applied
               in parent-vs-parent modification cases: that a material change in
               circumstances has occurred, which makes a change in custody in the
               child's best interests." Id. at 148. As explained in Blair, the
               "threshold issue" is whether a material change in circumstances has
               occurred after the initial custody determination. Id. at 150. While
               "[t]here are no hard and fast rules for determining when a child's
               circumstances have changed sufficiently to warrant a change of his or
               her custody," the following factors have formed a sound basis for
               determining whether a material change in circumstances has
               occurred: the change "has occurred after the entry of the order sought
               to be modified," the change "is not one that was known or reasonably
               anticipated when the order was entered," and the change "is one that
               affects the child's well-being in a meaningful way." Id. (citations
               omitted). We note that a parent's change in circumstances may be a


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               material change in circumstances for the purposes of modifying
               custody if such a change affects the child's well-being.

Kendrick, 90 S.W.3d at 570 (footnotes omitted). If a material change in circumstances has been
found, then a trial court next must determine whether custody modification is in the child's best
interests utilizing the factors set forth in Tenn. Code Ann. § 36-6-106. Id.

                When determining custody matters, trial courts take into account a number of factors,
"including the parents' demeanor and credibility during the . . . proceedings …." Nelson v. Nelson,
66 S.W.3d 896, 901 (Tenn. Ct. App. 2001) (quoting Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn.
Ct. App. 1996)). "Unlike this Court, the trial court observed the manner and demeanor of the
witnesses and was in the best position to evaluate their credibility." Union Planters Nat'l Bank v.
Island Mgmt. Auth., Inc., 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). A trial court's determinations
regarding credibility are accorded deference by this Court. Id.; Davis v. Liberty Mutual Ins. Co., 38
S.W.3d 560, 563 (Tenn. 2001). "[A]ppellate courts will not re-evaluate a trial judge's assessment
of witness credibility absent clear and convincing evidence to the contrary." Wells v. Tennessee Bd.
of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). In the present case, he Trial Court concluded, albeit
implicitly, that Father had not shown a material change in circumstances sufficient to warrant a
change in custody. The evidence contained in the record on appeal certainly does not preponderate
against this factual finding made by the Trial Court and it is, therefore, affirmed.

                 Father also claims that the Trial Court never ruled on his request to have his child
support lowered. The Statement of the Evidence reflects only that Father is working part-time.
Father’s Declaration of Issues for Appeal states that Mother’s attorney was “given” a copy of
Father’s 2002 income tax return. We believe when the Trial Court set the amount of child support
in the Parenting Plan, it implicitly held that Father failed to prove a change in his income sufficient
to warrant a reduction in child support payments under applicable law, as opposed to failing to
address the issue at all. Father fails to direct this Court to any competent evidence in the record to
support his argument that the Trial Court erred when it set his child support payments. If such
evidence was presented at trial, then it is incumbent upon Father to make sure such evidence is
contained in the record on appeal. Without this evidence, we must presume the Trial Court's factual
determinations underpinning its legal conclusions are correct. See, e.g., Sherrod v. Wix, 849 S.W.2d
780, 783 (Tenn. Ct. App. 1992). In short, there is absolutely nothing in the record before us, such
as it is, that would justify a reversal or modification of the Trial Court’s conclusion regarding the
appropriate amount of Father’s child support payments.

               Father claims Mother did not pay one-half of the children’s medical bills not paid by
insurance. There is nothing in the Statement of the Evidence supporting this conclusion. There is,
however, Mother’s testimony that she had to pay for medication because Father refused to provide
her with medical cards. We note that the amended Parenting Plan does require the parties to pay
one-half of the medical bills not otherwise covered by insurance. With regard to the issues
surrounding the admission and exclusion of evidence, we are unable to determine what evidence was
or was not admitted and the reasons therefor. In fact, we cannot determine if Father actually sought


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to have any such evidence admitted or excluded at the hearing. In the absence of a transcript of the
hearing, we must review the Trial Court’s evidentiary rulings and its judgment based on the
Statement of Evidence which was approved by the Trial Court. In so doing, we find no reversible
error with regard to any remaining issues and affirm the Trial Court’s judgment in its entirety.

                                           Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion, and for
collection of the costs below. The costs on appeal are assessed against the Appellant Charles Beard,
Sr., and his surety, if any.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




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