                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON


IN THE MATTER OF:
      BIANCA ARNESHE ASKEW,
                                      )
                                      )
                                                                    FILED
                                      )
DOROTHY LEWIS,                        )                          September 23, 1998
                                      )
             Petitioner/Appellee,     ) Fayette Circuit No. 3807  Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk
                                      )
VS.                                   ) Appeal No. 02A01-9708-CV-00201
                                      )
JULIE DONOHO,                         )
                                      )
             Respondent/Appellant.    )


           APPEAL FROM THE CIRCUIT COURT OF FAYETTE COUNTY
                      AT SOMERVILLE, TENNESSEE
             THE HONORABLE JON KERRY BLACKWOOD, JUDGE




MARGARET R. BARR
Memphis, Tennessee
Attorney for Appellant



JAMES F. GOODWIN
Germantown, Tennessee
Attorney for Appellee




AFFIRMED




                                                         ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J., concurring separately
    This case presents for review a dispute over custody of a minor child between a
parent and a nonparent where a prior judicial decree awarded custody to the nonparent.

The parent has appealed the trial court’s Rule 41.02(2) dismissal of her petition to restore

custody of her child. We find that the evidence does not preponderate against the trial

court’s finding that Donoho failed to satisfy her burden of proof of establishing a material

change in circumstances and, therefore, affirm.



                            I. Factual and Procedural History



       This case involves the custody of Bianca Arneshe Askew (Bianca), who was born

August 2, 1990. Julie Donoho (Donoho) is the unmarried natural mother of Bianca and

resides in Memphis, Tennessee. Dorothy Lewis (Lewis) is unrelated to Bianca or Donoho.

Lewis’s only familial relation to Donoho is that she is the cousin of Donoho’s uncle’s first

wife. Donoho first met Lewis during Donoho’s pregnancy with Bianca. After Bianca was

born, Lewis came over to Donoho’s mother’s residence, where Donoho was then residing.

At that time, Donoho was “going through some problems,” including lack of employment,

and agreed to have Lewis take care of Bianca.



       The dispute over Bianca’s custody between Donoho and Lewis originally began in

the Fayette County Juvenile Court in 1991, at which time an order was entered transferring

the matter to the Shelby County Juvenile Court. Thereafter, on September 17, 1991, the

Shelby County Juvenile Court awarded custody of Bianca to Donoho. In February, 1994,

Lewis filed a subsequent petition for custody in the Fayette County Juvenile Court. On

June 21, 1994, the juvenile court heard testimony from the parties’ witnesses. Thereafter,

the juvenile court awarded custody to Lewis. On March 5, 1996, Donoho filed a petition

for custody. At that time, however, the juvenile court declined to proceed to a hearing on

Donoho’s petition because it found that Donoho had not been regularly paying child

support as previously ordered by that court. On October 2, 1996, Donoho filed a renewed

petition for custody. Thereafter, on October 31, 1996, the juvenile court denied Donoho’s

petition. Donoho then appealed to the Fayette County Circuit Court for a de novo trial on

Donoho’s petition to restore custody.



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       The Circuit Court heard the case on March 25, 1997, at which time Donoho

presented her own testimony, in addition to testimony from her pastor, W illie Robison, and

from two first cousins, Martrice Hurrah and Karen McCrary. The testimony of Robison,

Hurrah, and McCrary essentially supported the position that Donoho is a favorable care

provider for her other two children, Jeremy and Aysa. Though one of the other two children,

Aysa, is in the legal custody of Aysa’s father, Donoho actually cares for Aysa for a majority

of the time. Donoho’s other child, Jeremy, has been in Donoho’s legal custody since

December 1996 (before which Donoho’s mother had legal custody) and is fully cared for

by Donoho.



       Donoho testified that her current residence, where she has resided for almost four

years, has been a very stable home. She works full-time and has available transportation.

She is health conscious and does not smoke or drink. Her mother and grandmother, with

whom both Jeremy and Aysa regularly spend time, live on the same street. Donoho’s

family helps her with Jeremy and Aysa, and likewise would help her with Bianca. Donoho

further testified, however, that she failed to maintain regular court ordered child support

payments to Lewis during Lewis’s custody of Bianca. Instead, she paid all arrearages of

such child support at infrequent times when she faced further legal proceedings related to

this matter. Furthermore, she failed to maintain regular court ordered visitation of Bianca,

though she blames Lewis’s hostility towards her for the infrequent exercise of visitation.

Lastly, while Donoho would sometimes contact Lewis to notify Lewis that Donoho would

not be coming to take Bianca, Donoho would at other times fail even to notify Lewis (and

also thereby Bianca) that she would not be coming.



       After Donoho presented her evidence and before Lewis presented any further

evidence, counsel for Lewis moved for an involuntary dismissal, which the circuit court

granted. In the circuit court’s order of dismissal, it provided that Donoho’s petition to

restore custody was dismissed “for her failure to carry her burden of proof of showing

‘changed circumstances.’” Donoho appealed to this Court. On appeal, Donoho first

asserts that the trial court used the wrong standard of proof for a custody dispute between



                                             3
a parent and a nonparent. More specifically, Donoho asserts that a parent must be

awarded custody in any custody dispute between a parent and a nonparent unless the

nonparent establishes that substantial harm to the child would result from awarding

custody to the parent. Donoho alternatively asserts that, even if the circuit court applied

the correct legal standard in determining custody, dismissal was improper because she

demonstrated changed circumstances that would require a modification of custody. Lewis

asserts the contrary position to both of Donoho’s assertions. Therefore, this Court is

presented with the following two issues:

         1. Whether the circuit court utilized the appropriate standard of proof for
       determining custody between a parent and a nonparent when custody was
       previously adjudicated and awarded to the nonparent; and

        2. Whether the preponderance of the evidence presented established “changed
       circumstances” sufficient to warrant a modification in custody.



                                 II. The Standard of Proof



       Generally, in child custody cases, appellate review is de novo upon the record, with

a presumption of the correctness of the trial court’s factual findings. Tenn. R. App. P.

13(d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). The parties’ first issue,

however, involves a question of law for which the standard of review is de novo with no

presumption of correctness for the trial court's findings. Bradshaw v. Old Republic Ins. Co.,

922 S.W.2d 503 (Tenn. 1996); Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80

(Tenn.1996); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn.1993).



       “[P]arental rights constitute a fundamental liberty interest under . . . the Tennessee

Constitution.” Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993). Tennessee courts have

historically held,

       a parent is entitled to the custody, companionship, and care of the child, and
       should not be deprived thereof except by due process of law. It is a natural
       right, but not an inalienable one. The parents are trusted with the custody
       of the child upon the idea that under the instincts of parental devotion it is
       best for the child.

Id. at 577 (quoting State ex rel. Bethell v. Kilvington, 100 Tenn. 227, 236, 45 S.W. 433, 435

(1898). Moreover,

                                             4
       [t]he relations which exist between parent and child are sacred ones.... The
       right to the society of the child exists in its parents; the right to rear it, to its
       custody, to its tutorage, the shaping of its destiny, and all of the
       consequences that naturally follow from the relationship are inherently in the
       natural parents, and they cannot be deprived of these rights without notice,
       and upon some ground which affects materially the future of the child.

Hawk, 855 S.W.2d at 578 (quoting In re Knott, 138 Tenn. 349, 355, 197 S.W. 1097, 1098

(1917). The right of privacy, which stems from the parents’ fundamental liberty interest,

“protects the right of parents to care for their children without unwarranted state

intervention.” Id. at 579. Under Tennessee law, this right can only be overcome when

“substantial harm threatens a child’s welfare.” Id. at 577. Otherwise, the state lacks a

sufficiently compelling justification for interfering with the fundamental right of parents to

raise their children as they see fit. Id. at 577, 582. In a custody dispute between a parent

and a nonparent, “a parent cannot be deprived of the custody of the child unless there has

been a finding, after notice required by due process, of substantial harm to the child.” In

re Adoption of Female Child, 896 S.W.2d 546, 548 (Tenn. 1995).



       In the instant case, Donoho was already deprived of the custody of Bianca by a prior

order of the juvenile court, which was not appealed and is not the subject of this appeal.

Implicit in this prior order is a finding that Donoho was unable to care for Bianca at that

time and of substantial harm to Bianca that would have resulted in awarding custody to

Donoho. The juvenile court expressly recognized in its order that Donoho’s interest in

regaining custody of Bianca was superior to any other right. The court further expressed

the intent to restore custody to Donoho after she visited and supported Bianca to show that

she is a fit parent and is able to care for Bianca.



       Where a decree has been entered awarding custody of a child, the judicial system

and the parties involved have an interest in the stability and predictability that comes from

according the decision the status of a final judgment. Custody orders are res judicata upon

the facts brought to the trial court's attention at the time the decision was made and are

conclusive in a subsequent application to change custody unless some new fact has

occurred which has altered the circumstances in a material way. Young v. Smith, 193

Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Walker v. Walker, 656 S.W.2d 11, 16 (Tenn.

                                                5
Ct. App. 1983). A trial court may re-examine a custody decision upon the presentation of

"facts and conditions which have emerged since the decree [or] new facts and conditions

which were not determined or could not be anticipated by the decree." Dailey v. Dailey,

635 S.W.2d 391, 393 (Tenn. Ct. App. 1981). In order to modify custody after an initial

determination has previously been made, the burden is placed upon the non-custodial

party to prove a material change in circumstances. Blair v. Badenhope, 940 S.W.2d 575,

576 (Tenn. Ct. App. 1996). Accordingly, in this modification of custody case, the earlier

June 1994 award of custody to Lewis is conclusive as between Donoho and Lewis absent

a showing by Donoho of a material change in circumstances.



       In order to modify custody as between two parents, the standard of proof requires

the non-custodial parent to establish changed circumstances such that substantial harm

to the child would result if custody was left with the custodial parent. Wall v. Wall, 907

S.W.2d 829, 834 (Tenn. Ct. App. 1995). Because of parental rights, however, this

standard has no application in cases wherein a parent seeks modification of a prior award

of custody to a nonparent. See In Re Adoption of Female Child, 896 S.W.2d 546 (Tenn.

1995). In such cases, the parent must instead simply establish, by a preponderance of the

evidence, changed circumstances showing that an award of custody to the parent would

no longer result in substantial harm to the child. This standard of proof requires evidence

establishing that circumstances, which are relevant to the threat of harm to the child and

which weigh against any such harm, have materially changed since the prior award of

custody. This standard of proof further requires that this evidence, taken together with all

other proof, establishes the absence of substantial harm to the child in the event of

custodial modification. In the instant case, the circuit court dismissed Donoho’s petition

based upon its finding that Donoho failed “to carry her burden of proof showing ‘changed

circumstances.’” The court, therefore, never reached the second requirement whereby

the proof must demonstrate the absence of substantial harm to the child in the event of

custodial modification. Therefore, insofar as the court applied a standard of proof, we find

no error.




                                             6
                                 III. The Proof Presented



       Rule 41.02(2) of the Tennessee Rules of Civil Procedure, which pertains to

involuntary dismissals, provides,

          After the plaintiff, in an action tried by the court without a jury, has
       completed the presentation of plaintiff's evidence, the defendant, without
       waiving the right to offer evidence in the event the motion is not granted, may
       move for dismissal on the ground that upon the facts and the law the plaintiff
       has shown no right to relief. . . . . The court as trier of the facts may then
       determine them and render judgment against the plaintiff or may decline to
       render any judgment until the close of all the evidence; in the event
       judgment is rendered at the close of plaintiff's evidence, the court shall make
       findings of fact if requested in writing within three days after the
       announcement of the court's decision.

Tenn. R. Civ. P. 41.02(2). In cases involving a motion for involuntary dismissal pursuant

to Rule 41.02(2) of the Tennessee Rules of Civil Procedure, “the trial judge must impartially

weigh and evaluate the evidence in the same manner as though he were making findings

of fact at the conclusion of all of the evidence for both parties, determine the facts of the

case, apply the law to those facts, and, if the plaintiff’s case has not been made out by a

preponderance of the evidence, a judgment may be rendered against the plaintiff on the

merits . . . .” City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734, 740 (Tenn. 1977).

Therefore, our review of the circuit court’s findings of fact is de novo upon the record,

accompanied by a presumption of correctness, unless the preponderance of the evidence

is otherwise. Tenn. R. App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.

1984). The circuit court in this case dismissed Donoho’s petition because it found that

Donoho failed to satisfy her burden of establishing “changed circumstances.” Therefore,

we must determine whether the preponderance of the evidence establishes a material

change in those circumstances that are relevant to and weigh against the threat of harm

to Bianca from custodial modification.



       Upon review of the parties’ briefs, we note that the only factual basis upon which

Donoho contends “changed circumstances” was established is Donoho’s contention that

Lewis has failed to cooperate with Donoho in arranging court ordered visitation. Though

Donoho cites Dalton v. Dalton, 858 S.W.2d 324 (Tenn. Ct. App. 1993), to support her

assertion, we find that Dalton, which did not involve visitation, but, instead, involved

                                             7
recalcitrant parents in handling joint custody, does not support her contention. Also, over

the course of Donoho’s infrequent visitation, Donoho would at times fail to even notify

Lewis (and also thereby Bianca) that she would not be coming. Furthermore, she paid

substantial arrearages in child support at infrequent times when faced with further pending

legal proceedings in this matter. These changes in circumstances, which weigh against

Donoho’s fitness as a parent and ability to care for Bianca, do not weigh against the threat

of harm to the child and do not, therefore, support a finding of material change in

circumstances. Upon review of the entire record, we find that the evidence does not

preponderate against the trial court’s finding that Donoho failed to satisfy her burden of

proof of establishing a material change in circumstances.



                                      IV. Conclusion



       Accordingly, the trial court’s dismissal is hereby affirmed. Costs of this appeal are

taxed to Donoho, for which execution may issue if necessary.



                                                               HIGHERS, J.
CONCUR:



FARMER, J.


LILLARD, J., Concurring separately




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