          IN THE COURT OF APPEALS OF TENNESSEE
                      AT NASHVILLE
                                            FILED
KELLIE M. HAYWOOD        )                 September 29, 1999
(ABERNATHY),             )                  Cecil Crowson, Jr.
                         )                 Appellate Court Clerk
    Plaintiff/Appellant, )           Appeal No.
                         )           01A01-9808-CH-00442
v.                       )
                         )           Maury County Chancery
PRESTON JIMMY HAYWOOD, )             No. 92-101
                         )
    Defendant/Appellee.  )


              COURT OF APPEALS OF TENNESSEE

  APPEAL FROM THE CHANCERY COURT FOR MAURY COUNTY

       THE HONORABLE JAMES T. HAMILTON, PRESIDING




C. TIM TISHER
33 PUBLIC SQUARE
P.O. BOX 1952
COLUMBIA, TENNESSEE 38402

ATTORNEY FOR PLAINTIFF/APPELLANT


LAWRENCE D. SANDS
102 WEST 7TH STREET
P.O. BOX 1660
COLUMBIA, TENNESSEE 38402-1660

ATTORNEY FOR DEFENDANT/APPELLEE


                 REVERSED AND REMANDED


                                 PATRICIA J. COTTRELL, JUDGE

CONCUR:

CANTRELL, P. J.
CAIN, J. (NOT PARTICIPATING)
                                OPINION
          This appeal involves the modification of a child custody order. The

trial court changed the joint custody arrangement with the mother as primary

custodian of the nine-year old girl, A.H., to sole custody with the father. The

mother appeals the order changing custody, alleging it was made without an

initial finding of an unanticipated change of circumstances. For the following

reasons, we reverse the trial court’s order.

                                        I.

          Ms. Abernathy and Mr. Haywood, A.H.’s parents, divorced in 1992

when she was three years old. Ms. Abernathy remarried in 1993 and has another

child from that marriage. In July 1997, Ms. Abernathy filed a Petition for

Contempt (for failure to pay medical expenses) and for Increase in Child Support

against Mr. Haywood. Six months later, Mr. Haywood filed his Petition for

Custody. The petitions were heard together, and the court issued an order

changing custody to the father, ordering the mother to pay child support, setting

visitation for the mother, and ordering the father to reimburse the mother for the

unpaid medical expenses.

                                        II.

          Cases involving a request for change of custody of minor children are

particularly fact driven. See Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988).

An appellate court’s review of a trial court’s findings in a custody dispute is de

novo on the record, accompanied by a presumption of correctness. See Nichols

v. Nichols, 729 S.W.2d 713, 716 (Tenn. 1990); Hass v. Knighton, 676 S.W.2d

554, 555 (Tenn. 1984). An appellate court will not reverse the trial court’s

decision unless it finds an error of law or that the evidence preponderates against

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the trial court’s findings. Tenn. R. App. P. 13(d);            See Massengale v.

Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995); Hass, 676 S.W.2d at 555.

          Decisions in divorce cases regarding custody of children are extremely

important. The trial court making the initial custody decision must attempt to set

custody arrangements “that promote the best interest of the child, enhance the

child’s relationship with each parent, and interfere as little as possible with post-

divorce family decision-making.” Adelsperger v. Adelsperger, 970 S.W.2d 482,

484 (Tenn. App. 1997). No parent can be perfect and the trial court therefore

must decide between imperfect custodians. See Bah v. Bah, 668 S.W.2d 663,

666 (Tenn. App. 1983); Edwards v. Edwards, 501 S.W.2d 283, 290-91 (Tenn.

App. 1973). Once that decision is made, however, custody should not be

disturbed unless there is some change in circumstances that affects the welfare

of the child. See Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn. App. 1991);

Adelsperger, 970 S.W.2d at 485.

          A decree awarding custody of children is res judicata “upon the facts

in existence or reasonably foreseeable when the decision was made.”

Adelsperger, 970 S.W.2d at 485; see also Long v. Long, 488 S.W.2d 729, 731-

732 (Tenn. App. 1972); Hicks v. Hicks, 26 Tenn. App. 641, 176 S.W.2d 371,

374-375 (1943).

          Changes in a child’s circumstances, however, may require modifying

the existing custody and visitation arrangement. Adelsperger, 970 S.W.2d at

485; see also Tenn Code Ann. § 36-6-101(a)(1)(Supp. 1998) (courts are

empowered to change custody “as the exigencies of the case may require”).

There is no hard and fast rule as to what constitutes a change of circumstances.

See Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. App. 1983). However,



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a custody order cannot be modified absent a showing of some new facts or

“changed circumstances” affecting the physical, mental, or emotional welfare of

the child which require an alteration of the existing order. See Adelsperger, 970

S.W.2d at 485; Blair v. Badenhope, 940 S.W.2d 575, 576 (Tenn. App. 1996).

          Only if the court first finds that a material change of circumstances has

occurred may the court proceed to determine whether the best interests of the

child dictate a change in the existing custody arrangement and to devise a

custody arrangement that serves those interests. See Adelsperger, 970 S.W.2d

at 485.

          In summary, the party seeking to change custody must show “(1) that

the child’s circumstances have materially changed in a way that could not have

reasonably been foreseen at the time of the original custody decision, and (2) that

the child’s best interest will be served by changing the existing custody

arrangement.” Adelsperger, 970 S.W.2d at 485.

                                        III.

          Testimony showed that A.H. had some academic problems in school.

As early as kindergarten, teachers remarked on her lack of concentration. In

1996, just before second grade, Ms. Abernathy took A.H., at the teacher’s

suggestion, to a school psychologist to be tested. Both parties testified that the

psychologist recommended tutoring rather than medication. After trying the

tutoring for a while, Ms. Abernathy took the child to another mental health

professional for re-evaluation, again at the teacher’s suggestion. After the

second evaluation, A.H. began taking Ritalin. Ms. Abernathy testified that she

was initially reluctant to use the medication, but after researching Ritalin, felt it

would help the child. She administers it sparingly. Mr. Haywood preferred not



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to allow A.H. to use Ritalin, claiming that it affected her personality and

asserting his desire to “keep kids off drugs.” A.H.’s teacher and her stepfather

testified that A.H. learned better when she was taking the Ritalin and that her

performance in school improved.

             In the second grade, it became clear that A.H.’s reading skills were

inadequate for promotion to the third grade. Both parents and the step-father met

with the teacher to discuss whether A.H. would be retained or promoted to the

third grade.1 Mr. Haywood preferred that A.H. be promoted, and offered to keep

her over the summer and work with her. Ms. Abernathy agreed to let him keep

A.H., but only if he met certain conditions, including providing a trained tutor,2

finding adequate day care, and getting a job. Mr. Haywood balked at the

conditions, so Ms. Abernathy kept A.H. for the summer and provided a tutor.

A.H. entered the third grade in 1997, but had to return to second grade early in

the year. A.H. did very well in second grade the second time.

             Ms. Abernathy separated from her second husband in February 1998

while her Petition for Contempt and for Increase in Child Support against Mr.

Haywood was pending.3 After the separation, Mr. Abernathy, the second

husband, approached Mr. Haywood and asked if he “knew all of the truth” about

an incident involving A.H. nearly five years earlier.

             In September 1993, A.H. was four years old and staying with the

relative of a friend of Ms. Abernathy’s during the day. Ms. Abernathy’s


       1
           That meeting was Mr. Haywood’s only visit to A.H.’s school other than a
kindergarten graduation.
       2
           A.H.’s teacher testified it was important to have a certified teacher working with A.H.
       3
           At the time of trial, Ms. Abernathy was involved in a bitter divorce from her second
husband. Ms. Abernathy was in the unenviable position of having her current estranged
husband and her ex-husband become friends and join forces against her. Mr. Abernathy
testified as a witness for Mr. Haywood.

                                                -5-
testimony indicated that while A.H. was preparing for her bath and Mr.

Abernathy was eating supper, A.H. mentioned to her mother that a three year old

boy at her daycare had “touched” her. Ms. Abernathy examined her daughter,

called the sitter, and took the child to a doctor the next day. The doctor’s

records, not introduced into evidence but read by Ms. Abernathy from the

witness stand, indicated no tears or penetration. The report indicated “possible

sexual experimentation, doubt abuse.” Ms. Abernathy never left A.H. with that

sitter again. She testified that she called A.H.’s father the night she learned of

the incident and explained the situation to him.

          According to Mr. Abernathy’s testimony, A.H. told him that not one,

but three, boys touched her that day. He confirmed that Ms. Abernathy called the

sitter and took A.H. to the doctor the next day.

          Ms. Abernathy testified that she still sees her friend and that A.H. has

been around the boys a few times, but A.H. has never been alone with them. No

testimony indicated that a similar “experimentation” incident had occurred in the

past five years. Significantly, the record contains no evidence any signs of

sexual abuse ever existed.

          The trial court made only two findings of fact: 1) that the child was

“sexually abused” by some young boys five years ago and is still in contact with

the boys; and 2) that the child has had some problems at school and takes Ritalin.

The court then reached the conclusion that “it would be in the best interest of this

child for her custody to be placed with her father.”

          We find that the evidence preponderates against the trial court’s first

finding and that the second finding, under the circumstances of this case, does

not establish a material change of circumstances. The first finding, as described



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in the record, relates, at most, to an isolated event of experimentation. Upon

learning of the event, the mother took immediate steps by taking A.H. to the

doctor and by discontinuing her child care arrangements. An isolated incident

occurring while the child was in day care does not establish a change of

circumstances, especially where the parent took immediate remedial action.

          Similarly, the mother sought help for her daughter’s learning

difficulties, did research herself, and followed the advice of a professional in

giving her child medication. It is foreseeable that the parent of a child with

difficulties will seek appropriate professional help and will seriously consider the

advice given. Following such advice, especially after independent research and

in the careful way Ms. Abernathy did, does not constitute a material change of

circumstances.

                                         IV.

          Since no material change of circumstances was shown, there is no basis

for proceeding to a best interest analysis. However, since the trial court

implicitly found a change of circumstances, it may have considered its factual

findings relevant to the question of which custody arrangement would best serve

the child’s interests.

          To the extent the trial court’s comments regarding Ritalin imply a

finding relative to the best interest analysis rather than the issue of whether a

change of circumstances has occurred, we cannot conclude that a parent’s

decision to give her child medication recommended by professionals is contrary

to the child’s best interest. In the instant case, the testimony indicates the Ritalin

has helped A.H. with her school performance.

          Testimony showed that both parents were involved in A.H.’s life. Mr.



                                         -7-
Haywood saw her regularly, even turning down work if it took him out of town

during his scheduled visitation. He told of taking her swimming, to the zoo, to

the movies, to his parents’s farm, and to the pet store to play with the puppies.

Ms. Abernathy acknowledged that her daughter loved her father and thought he

was “the best thing since sliced bread.”

         Ms. Abernathy was also very involved in A.H.’s life. She was at home

when the child returned from school. She spent at least an hour every night

helping A.H. with her homework and additional time working with flash cards.

Testimony from Mr. Haywood and A.H.’s second grade teacher confirmed Ms.

Abernathy’s hard work in helping the girl with her homework and arranging

tutors for her. The teacher testified that Ms. Abernathy frequently consulted her

about the child’s progress and was involved in school activities.

         Although the trial court made no mention of the child’s preference in

the order awarding custody to Mr. Haywood, the transcript contains references

to A.H.’s desire to live with her father. The relevant statute provides:

      ... in any proceeding requiring the court to make a custody
      determination regarding a minor child, such determination shall be
      made upon the basis of the best interest of the child. The court shall
      consider all relevant factors including the following ... The
      reasonable preference of the child if twelve (12) years of age or
      older. The court may hear the preference of a younger child upon
      request. The preferences of older children should normally be given
      greater weight than those of younger children.

Tenn. Code Ann. § 36-6-106(7) (Supp. 1998).

         Thus, while the court may hear a young child’s preference as to

custody, it is only one of several factors to be considered in determining the

best interest of that child. See Hardin v. Hardin, 979 S.W.2d 314, 317 (Tenn.




                                       -8-
App. 1998), Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. App. 1995).

         Absent a material change of circumstances, a modification of a

previous custody award cannot be granted. Thus, it would be inappropriate

for this court to proceed to analyze whether the custody arrangement ordered

by the trial court serves the child’s best interest. However, having reviewed

the record in this case, we find no evidence justifying a conclusion that

continuing the prior custody arrangement was contrary to A.H.’s best interest.

                                       V.

         The trial court’s findings of fact do not support either a finding of

material change of circumstances or a conclusion that A.H.’s best interest would

be served by the custody modification ordered. The record supports neither.

         Therefore, we reverse the order of the trial court. This case is

remanded to the trial court for whatever further proceedings may be necessary.

Costs of this appeal are assessed to the appellee.



                                             _______________________________
                                             PATRICIA J. COTTRELL, J.

CONCUR:


_______________________________
BEN H. CANTRELL, P. J., M.S.




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