                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                       Assigned on Briefs August 18, 2004 Session

                      REBECCA PAIGE MULKEY (HURD) v.
                         BRADLEY WARREN MULKEY

                     Appeal from the Circuit Court for Hawkins County
                             No. 7576    Ben K. Wexler, Judge



                No. E2004-00590-COA-R3-CV - FILED OCTOBER 28, 2004



Rebecca Paige Mulkey (“Mother”) and Bradley Warren Mulkey (“Father”) were divorced in 1996.
The parties agreed that Mother would be the primary residential parent of their two minor daughters
with Father having reasonable visitation rights. Several years later and after Mother had remarried,
Father filed a Petition for Change of Custody claiming the older child had been physically abused
by her step-father. The Trial Court temporarily transferred custody of the children to Father and
indicated this arrangement would be reviewed periodically. After the older child recanted her
allegations of physical abuse, the Trial Court ordered that she be examined by a psychiatrist. An
examination was undertaken and the psychiatrist concluded there was no evidence of abuse “of any
kind.” The Trial Court later entered a judgment and held that its previous temporary decision to
designate Father as the primary residential parent was to be the final determination. Mother appeals
claiming the Trial Court erred when it transferred custody of the children to Father because Father
failed to prove there had been a material change in circumstance. We agree and reverse the judgment
of the Trial Court.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which SHARON G. LEE, J., joined.
HERSCHEL P. FRANKS, P.J., filed a separate concurring opinion.


Stephen L. Gilly, Kingsport, Tennessee, for the Appellant Rebecca Paige Mulkey (Hurd).


R.B. Baird, III, Rogersville, Tennessee, for the Appellee Bradley Warren Mulkey.
                                                    OPINION


                                                   Background

                Mother was granted a divorce from Father in May of 1996 based upon Father’s
inappropriate marital conduct. The parties have two minor daughters who were one and three years
old at the time of the divorce. The parties entered into a Marital Dissolution Agreement which
provided that they were to have joint legal custody of the children, with Mother being the primary
residential parent and Father having reasonable visitation rights. The Marital Dissolution Agreement
was “ratified and approved” by the Trial Court.

                In March of 2001 and after Mother had remarried, Father filed a Petition for Change
of Custody.1 In this Petition, Father claimed that the parties’ daughters had made allegations of
physical abuse concerning Mother and their step-father. According to Father, these allegations were
being investigated by the Department of Children’s Services. Father claimed there had been a
material change of circumstances and that it was in the best interests of the children for him to be
designated their primary residential parent. Mother filed an answer to the Petition denying the
pertinent allegations contained therein.

               After a hearing on the Petition for Change of Custody, the Trial Court entered an
order concluding that the children should stay with Mother until the end of the school year, at which
time the primary residence was “to be changed to the Father for the summer months.” Mother was
granted standard visitation rights during the summer months and was ordered to pay child support.
The Trial Court stated that the custody arrangement would be reviewed further in September or
October of 2002.

                 It was the parties’ older child who made the allegations of physical abuse. This child
later completely recanted these allegations. As a result of these inconsistencies, in July of 2002 the
Trial Court ordered the older child to be examined by a psychiatrist. The older child thereafter was
examined by Dr. Kutty in Kingsport and his report was filed with the Trial Court. This report states,
in part, as follows:

                  [The child has] made it clear that she wants to stay with her father at
                  this point … [However, she] feels guilty about her decision to live
                  with her father. She is angry at herself and has made statements to
                  the effect she hates herself and wishes she was never born. She feels
                  bad that she has caused a lot of trouble to her mother. She wrote a
                  letter to her mother and [step-father] expressing her regrets about her
                  behavior. She has reaffirmed her love for both of them.…


         1
          This was Father’s second attempt to seek primary custody of the children. His first attempt was denied by the
Trial Court on December 22, 1998.

                                                         -2-
                            Based upon my evaluation … she does not suffer from any
                   major psychiatric disorders. She seems to be anxious and very
                   sensitive to stressful events and has a tendency to worry some. This
                   has become worse as a result of the ongoing conflicts between her
                   parents. From my examination it does not appear that she has been
                   subjected to abuse of any kind.… She has exploited the conflict that
                   is existing between her parents to her advantage by escaping from one
                   environment to another. This is not unlike what one sees in nuclear
                   families when a child plays one parent against the other.… It is my
                   recommendation that given the above family dynamics that we allow
                   the present living arrangement to continue.… [The oldest child and
                   Mother] need to spend more time and enter into counseling to help
                   them improve their relationship and for [the child] to overcome her
                   anxieties and fears.…

While the above report focuses on the older child, Dr. Kutty apparently evaluated both children on
more than one occasion. While other reports were prepared by Dr. Kutty, they have not been
included in the record on appeal.

               The next hearing was held in October of 2002 and the Trial Court entered its Order
in December. The Trial Court was provided with a copy of Dr. Kutty’s report at this hearing.
Although Father again was designated as the primary residential parent, the Trial Court “doubled”
Mother’s visitation with the younger child. Mother’s visitation with the older child was set at three
days every other week. The Trial Court reserved the matter of child support at that time.2

                 Although there were several hearings where the Trial Court heard from one or more
witnesses, the only transcript in the record containing testimony is from a hearing held on November
24, 2003. At this hearing, Mother testified that she currently was employed by the State of
Tennessee and worked as a case manager for delinquent, abused, and neglected children. Mother
testified that whenever she sees her children outside of her regular visitation such as at a grocery
store or the like, Father does not allow the children to speak to her. Mother claimed that when she
attempts to call the children, she either gets a busy signal, there is no answer, or she is told by Father
that she cannot speak to them. According to Mother, when the children arrive for her visitation, their
personal hygiene “is horrible.” Mother also claimed that when Father has the children, he forbids
them from having any contact with any of Mother’s family members.

               Mother’s current husband, Mike Hurd (“Hurd”), also was called as a witness. Hurd
denied ever physically abusing or yelling at the children. Hurd testified to the activities in which he,
Mother, and the children engage in on the weekends when Mother has visitation.



        2
            Mother appealed the December Order to this Court, but we dismissed her appeal because there was no final
judgment.

                                                         -3-
                Not surprisingly, Father denied ever making any attempts to prevent Mother from
talking to the children or otherwise interfering with her exercise of visitation. Father testified to his
version of the events detailed by Mother regarding a few episodes where Father allegedly prevented
Mother from seeing one or both of the children. Father testified the children are bathed on a regular
basis and denied Mother’s claim that the children had poor personal hygiene.

               After the testimony of the witnesses was completed, the Trial Court talked to the
children in camera. The parties’ attorneys were present, but the court reporter was not. This Court
has not been provided with a transcript of the in camera testimony and neither party has furnished
a Tenn. R. App. P. 24(c) statement of the evidence summarizing the in camera testimony of the
children.

                After the November 2003 hearing, the Trial Court entered an Order which maintained
the then existing custody arrangement. More specifically, Father was designated as the primary
residential parent and Mother was given visitation rights consistent with what had been set forth
previously. As to each of the hearings prior to the November 2003 hearing, we can only conclude
that the Trial Court intended for its decision to change custody to be temporary in nature since it
indicated further reviews would take place at various points in the future. However, after the
November hearing the Trial Court stated in its order that its decision was a “final determination” and
the custody decision would not be reviewed in the future “absent a request by either party and a
showing of a substantial material change in circumstances.”

               Mother appeals, claiming the Trial Court erred when it changed custody by
designating Father as the primary residential parent absent a finding that there had been a material
change in circumstances and that the change in custody was in the best interests of the children.


                                              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 a 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:




                                                  -4-
                       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
               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.

                In the present case, Father’s claim that there had been a material change in
circumstances centered around the older child’s allegation of physical abuse by Mother and the step-
father. These allegations, however, later were recanted. While Father indicated in his Petition to
Change Custody that the allegations were being investigated by the Department of Children’s
Services, there is nothing in the record to indicate that the Department found anything to substantiate
the allegations, assuming Father is correct that such an investigation was undertaken. Other than
mere allegations and denials contained in pleadings, the only proof in the record regarding whether
there was any physical abuse is Hurd’s testimony where he denied engaging in any abusive behavior,
and Dr. Kutty’s report which states “it does not appear that [the child] has been subjected to abuse
of any kind.” Based on the record before this Court, we conclude that the allegations of physical
abuse simply were unfounded. While the existence of physical abuse unquestionably could, and
likely would, constitute a material change in circumstances for purposes of changing custody,
altogether unfounded allegations most certainly cannot.




                                                 -5-
                 The only other factor which Father claims supports a change in custody is the
preference of one or both of the children to live with Father. Since we do not have the in camera
testimony of the children, we cannot assume that the children actually expressed a preference for
living with Father. But even if we could, a child’s stated preference to live with one parent over the
other, standing alone, cannot constitute a material change in circumstances as a matter of law. If
there has been a showing of a material change in circumstances, then the stated preference of a child
is one of the statutory factors which can be considered by a trial court when determining what is in
the best interest of the child. Tenn. Code Ann. § 36-6-106 sets forth various factors for a trial court
to consider when determining what is in the best interest of a child, including 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(a)(7). However, in cases
involving a change in custody as opposed to an initial custody determination, a trial court does not
reach the best interest analysis until and unless there is first a finding that there has been a material
change in circumstances. Kendrick, supra. That is not to say that the reasons underlying a child’s
stated preference cannot affect the decision on whether there has been a material change of
circumstances. By way of example only, if a child desires to live with one parent because the other
parent is habitually intoxicated and abusive, then the underlying facts surrounding why the child has
expressed such a preference clearly are relevant. Returning to the present case, the reasons why the
children want to live with Father, if they do, are not contained in the record. We cannot and will not
assume that these unknown reasons are legally sufficient to constitute a material change in
circumstances. Absent a material change in circumstances, we do not reach the statutory factors to
be used in making the best interest analysis, including the stated preference of the children.

                We have thoroughly reviewed the record in this case and conclude that the Trial Court
erred when it implicitly held that there was a material change in circumstances affecting the well
being of these children. The Judgment of the Trial Court designating Father as the primary
residential parent is reversed. On remand, the Trial Court is instructed to determine and facilitate
an expeditious transfer of custody back to Mother in such a way as to minimize the impact on the
children. The Trial Court further is instructed to establish appropriate visitation rights for Father as
well as Father’s child support obligation. The one thing that is perfectly clear to this Court is that
the complete inability of her parents to get along has had a significant negative impact on their older
daughter. Unfortunately, neither the Trial Court nor this Court has the power to order these parents
to grow up. Nevertheless, we strongly encourage the Trial Court on remand to be as detailed as
possible when addressing how the parties are to act toward each other when their children are present
and on matters involving the care and well being of these two innocent girls who unnecessarily have
been caught in the middle of their parents’ battles.




                                                  -6-
                                           Conclusion

                The Judgment of the Trial Court is reversed, and this cause is remanded to the Trial
Court for further proceedings consistent with this Opinion. Costs on appeal are assessed against the
Appellee Bradley Warren Mulkey.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




                                                -7-
