ERIC G. LAUTENBACH,           )
                              )
     Plaintiff/Appellee,      )       Appeal Nos.
                              )       01-A-01-9710-CH-00595
v.                            )       01-A-01-9703-CH-00098
                              )
                              )
                                           FILED
                                      Cheatham Chancery
ROBBIN L. LAUTENBACH,         )       No. 7783
                                              May 25, 1999
                              )
     Defendant/Appellant.     )            Cecil Crowson, Jr.
                              )           Appellate Court Clerk



                 COURT OF APPEALS OF TENNESSEE


APPEAL FROM THE CHANCERY COURT FOR CHEATHAM COUNTY

                   AT ASHLAND CITY, TENNESSEE


     THE HONORABLE LEONARD M. MARTIN, CHANCELLOR




MARY ANNE KEVIL
Bellevue Professional Center
237 Old Hickory Blvd., Suite 201
Nashville, Tennessee 37221-1353
      ATTORNEY FOR PLAINTIFF/APPELLEE



CHARLES C. MORROW
Charles C. Morrow & Associates
3221 Nolensville Road, Suite 102
Nashville, Tennessee 37211
      ATTORNEY FOR DEFENDANT/APPELLANT




                     AFFIRMED AND REMANDED




                            WALTER W. BUSSART, SPECIAL JUDGE
                                OPINION
          This case involves a post-divorce custody decision in which the lower
court changed custody of a minor child from her mother to her father. The
child's mother has appealed raising three issues. We affirm the decision of the
trial court with regard to each issue.


                                         I.


          Eric Lautenbach ("the Father") and Robbin Lautenbach ("the Mother")
were divorced in 1994 at which time they entered a Marital Dissolution
Agreement ("MDA") which provided that they have joint custody of their minor
child, Amanda ("the child"), with the Mother being the primary custodian.
However, the divorce decree and MDA were silent as to visitation, and in 1996,
the Mother filed a petition requesting the court to set definite visitation for the
Father. The Father then filed a counter petition to change custody of the child
to him. In addition, the Father moved for temporary visitation.


          At the close of the hearing, both attorneys submitted proposed orders.
The order submitted by the Mother's attorney was filed by the court on June 21
1996 ("the June 1996 Order"). However, on September 6, 1996, the court filed
a second order nunc pro tunc which was the order originally submitted by the
Father ("the September 1996 Order"). Thereafter, the court issued an Order of
Correction in which it stated that the latter order replaced the former June 1996
Order, since the former was entered in error. In this latter September 1996
Order, which was entitled "Temporary Order," the court directed that the Mother
have temporary custody of the child and set definite visitation for the Father.
The order stated that "this case shall be reviewed after July 12, 1996, upon
motion of either party."


          After the Mother filed a Motion to Amend Temporary Order on
Visitation and for Increase in Child Support, a hearing was held and custody was
modified. This order ("the November 1996 Order"), which was also entitled
"Temporary Order," changed custody such that the Father had primary custody

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of the child with the parties continuing to have joint legal custody. The order set
the visitation with the Mother at every weekend except the fifth successive
weekend. The court reserved the issue of child support.


          Finally, the Mother filed a petition to return the custody of the child to
her. After a hearing, the court entered an order on June 6, 1997 ("the June 1997
Order") finding that the Father should be awarded sole custody of the child, that
visitation as previously ordered should remain in force, and that the Mother
should have a minimum of four weeks extended summer visitation. In addition,
the court ordered that the Mother should pay $200 per month child support to the
Father. The court decreed that the June 1997 Order shall be final in all of its
terms.


                                        II.


          In her first issue, the Mother contends that the trial court erred in
entering the September 1996 Order some 77 days after the entry of the initial
June 1996 Order. The Mother's position is that the court did not have the
authority to do this since the first order became final 30 days after it was signed
when no appeal was taken from this order. She maintains that the order can only
be changed by either party's petition to the court for a change in custody, a
process which gives the other party time to prepare and respond.


          First, we point out that by issuing the September 1996 Order, the court
was not changing its opinion but rather conforming its order to reflect what it had
intended originally.    As stated, the court entered an Order of Correction
clarifying that the June 1996 Order was entered in error. Rule 60.01 of the
Tennessee Rules of Civil Procedure provides that "[c]lerical mistakes in
judgments, orders or other parts of the record, and errors therein arising from
oversight or omissions, may be corrected by the court at any time on its own
initiative or on motion of any party and after such notice, if any, as the court
orders." (emphasis added). As the court stated prior to the enactment of the
rules:
          All courts have the right, and it is their duty, to make their

                                        -3-
          records speak the truth, and a court, therefore, in a proper
          case, of its own motion, may order a nunc pro tunc entry to
          be made; . . . And the lapse of time between the
          announcement of judgment and the making of this motion is
          of no importance; that which is important is, that the proof be
          clear and convincing that the judgment which it is sought to
          have entered is the one pronounced in the cause.

McCown v. Quillin, 48 Tenn. App. 162, 175, 344 S.W.2d 576, 582 (1960).
From the trial court's Order of Correction, it is clear that the court's error in
signing the June 1996 Order arose from oversight or omission. See Pennington
v. Pennington, 592 S.W.2d 576, 578 (Tenn.App.1979). Therefore, pursuant to
Rule 60.01, the court had the authority to issue the Order of Correction and to
enter the September 1996 Order nunc pro tunc.


          In actuality, the two orders are almost identical in substance. One order
provides that the Father enjoy his one-full-weekend-per-two-months visit with
the child during the even months beginning in June of 1996 and that the Mother
enjoy hers during the odd months beginning in July, and the other order provides
for the converse. However, it seems that both proposed orders embody a singular
ruling by the trial court. For that reason, the Mother's insinuation that she was
not given time to prepare and respond before this change is non-sensical. The
court was not re-evaluating its decision and therefore did not need new proof or
argument on behalf of the parties.


          Finally, the Mother challenged the timing of the court's corrective
action asserting that the order became final after 30 days. Rule 60.01 provides
that the court may correct errors "at any time." Therefore, the court was justified
in entering the September 1996 Order some 77 days following the erroneous
entry of the initial order.


                                       III.


          Next, we address the Mother's contention that the trial court erred in
changing the custody without showing that the Mother was an unfit and improper
person to have custody of the child. In the November 1996 Order which


                                        -4-
modified custody, the court summarily stated that "the temporary order of
September 6, 1996 should be modified." In the June 1997 Order, the court stated
only that custody should remain with the Father.          However, the court's
pronouncements from the bench indicate that it made the requisite finding for a
modification of custody.


         It was not necessary for the court to find that the Mother was an unfit
and improper mother. Rather, courts are empowered to modify custody "as the
exigencies of the case may require." Tenn. Code Ann. § 36-6-101(a)(1)(1991).
The party seeking to change custody must show "(1) that the child's
circumstances have materially changed in a way that could not have been
reasonably foreseen at the time of the original custody decision, see Smith v.
Haase, 521 S.W.2d 49, 50 (Tenn.1975); McDaniel v. McDaniel, 743 S.W.2d
[167, 169 (Tenn.App.1987)], and (2) that the child's best interests will be served
by changing the existing custody arrangement." Adelsperger v. Adelsperger, 970
S.W.2d 482, 485 (Tenn. App.1997). "'Changed circumstances' includes any
material change of circum-stances affecting the welfare of the child, including
new factors or changed conditions which could not be anticipated by the custody
order." Blair v. Badenhope, 940 S.W.2d 575, 576 (Tenn.App.1996) (citing
Dalton v. Dalton, 858 S.W.2d 324 (Tenn.App.1993)).


          Review of findings of fact in child custody cases "shall be de novo
upon the record of the trial court, accompanied by a presumption of the
correctness of the finding, 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). In the case at bar, the prior custody arrangement as set out in the
MDA was that the parties had joint custody with the Mother as the primary
custodian. We find that the evidence does not preponderate against a finding that
circumstances changed such that the best interests of Amanda Lautenbach were
served by modifying the custody arrangement so the Father was the primary
custodian. Both parents were custodians; the court just changed the primary
custodian.


          At the November 1996 hearing, the Mother testified that she was

                                       -5-
having problems with the child. She could not make the child listen, obey, take
directions or "settle down" to do her homework. The Mother said that her own
mother, Mary Haynes, assisted her in helping the child with homework because
the child minded Ms. Haynes better. At the hearing Ms. Haynes testified that,
after being absent from the child for six weeks, she noticed a big difference in
the child: the child "pulls tantrums, she pouts, she won't mind. She sits and
she'll grab the door -- go through the room and slam the door. She'll tear up
things in her room and she comes back out and she's sorry, but then she starts all
over again. . . . She do[es]n't mind her mother, she doesn't mind me." Ms.
Haynes stated that this behavior was particularly bad when the child returned
from visiting her Father. The Father testified that the child exhibited none of
these behavioral problems when she was in his custody. He claimed that since
the child's birth, the child's Mother has had problems controlling and disciplining
her and that the Mother has consistently requested that he control and discipline
her.


          In addition, there was proof that the child was not doing well in school.
The Father testified that the Mother reads at a fourth grade level and that she has
difficulty comprehending many things. He expressed his concern that the
Mother was "trying to teach [the child] to read and write and do mathematics,
when she has a real hard time doing it herself." The Mother indicated that she
was able to give adequate help to the child with her homework. However, it is
apparent that the judge was concerned about the Mother's ability to help the child
in this area. It was after this hearing that the court issued the Temporary Order
changing custody to the Father. At the close of the hearing, the court made the
following statement:
               I'm simply trying to find something that will work better
          for the child than what the two of you are telling me will
          work. Neither one of you are telling me that this child is
          doing well and this child is happy, you're both having this
          problem.
                So, let's try something different; that something
          different is going to be that the child is fixing to go live with
          her father.


          At the May 1997 hearing held upon the Mother's petition to return


                                        -6-
custody to her, the Mother testified that when the child was with the Father, she
was not given breakfast nor was she allowed to talk to the Mother on the phone.
The child verified that she did not have breakfast every morning while living
with her father. The Father said that he and the child ate breakfast daily until the
past few weeks when the child began to stay in bed causing them to run late.
When this happened, the Father sent extra snacks to school with the child.


          The Father testified and the Mother admitted that she would not talk to
the Father about the child's behavioral problems. Despite the fact that the child
was having problems in school and had been diagnosed with Attention Deficit
Hyperactive Disorder, the Mother was uninterested in the Father's plan to
investigate the possibility of enrolling the child in a private school. She stated
that she did not want to hear anything about this school. The Mother was candid
about the fact that she had been emotional in front of the child with regard to the
child's change of custody to her Father and that this had upset the child.


          There was testimony from both the child's grandmother, Ms. Haynes,
and a friend of the Mother's that the child had a bruise which she claimed came
from being spanked by the Father. The Father denied having bruised the child
in this way. Regarding this matter, the child's testimony was ambiguous. While
she asserted that her Father spanked her when he was drinking, she told the court
that her father punishes her by putting her in time-out. Moreover, she testified
that a bruise on her arm from falling off the swing set was her first bruise. The
depo-sition of Todd Love, a social counselor from DCS, was entered into
evidence. After the Mother filed her complaint, Mr. Love interviewed the child,
concluded that no abuse had taken place, and closed the investigation. It was
clear that the child's desire was to live with her Mother. When asked the reason
for her preference, she stated that she has more fun there.


          Following the June 1997 hearing held upon the Mother's petition to
return the custody of the child to her, the court stated its finding as follows:
               The court finds that as between these two parents that
          the best interest of this child is served by leaving the child
          with the father. This father seems to be, based upon the
          testimony in the Court and observation of the witness, this

                                        -7-
          parent is better equipped to do a better job of providing the
          things this child needs. There is no question in the Court's
          mind about the love the mother has for the child. . . . The
          problem is [the child] is not doing well under the mother's
          full time supervision.
                And the father, it seems to the court, has a much better,
          more reasonable approach to the welfare of this child.

The court then entered a final decree awarding sole custody of the child to the
Father.


          The evidence supports a finding that circumstances had materially
changed for this child. She was not doing well in school, either academically or
behaviorally. In addition, she was exhibiting poor behavior in the company of
her mother and maternal grandmother. There was proof that the Father was more
capable of controlling the child as well as of assisting her with her school work.
In addition, the evidence indicated that the Father was more willing to address
the child's diagnoses of Attention Deficit Hyperactive Disorder and           her
consequential potential need for a different school. In light of these changed
circumstances, the court made the determination that the best interests of the
child would be best served by placing her in the custody of her father. We find
that the evidence does not preponderate against this conclusion.


                                       IV.


          Finally, the Mother argues that the trial court erred in changing the
custody of the child following a proceeding that was held upon a motion to
modify visitation. A month after the September 1996 Order was entered, the
Mother filed a motion to modify visitation and increase child support. Without
having filed any response to the Mother's motion, the Father came to the
November 21, 1996 hearing. The Mother claims that there was no mention of
changing custody and that she was not prepared to defend on the custody issue.


          We agree that the record indicates that there was no formal notice that
custody would be an issue at the November 21, 1996 hearing. Nor was custody
the reason the parties were initially in court. When the judge asked, "[w]hat are


                                        -8-
we here on?", the Mother's attorney expressed his client's desire to modify
visitation and increase child support. The Father's attorney requested that the
child be appointed a guardian and then stated that the child had been exposed to
some situations: "we don't know whether they are significant enough for the
court to have another full hearing on the issue of primary custody."


         However, during the November 1996 hearing, when asked by the court
what it should do, the Father stated that if the child were with him during the
week, he could help her study. Indeed, by the evidence the parties presented at
this hearing, it is clear that, once into the hearing, they became aware that
custody was the issue and put on evidence of the child's circumstances.
Furthermore, as outlined above, the trial court did not make its modification of
custody final until after the second May 1997 hearing which was held for the
sole purpose of determining custody. Therefore, in light of the particular
circumstances of this case, we find that the Mother had adequate opportunity to
prepare and present evidence on the custody issue.


         We are aware that a parent's right to custody of his or her child is
protected by the United States Constitution. U.S. Const. amend. XIV. A parent
must have notice of the issues which the court will decide at hearings involving
his or her child in order to adduce evidence. Thorne v. Thorne, 344 So.2d 165
(Ala.Civ.App.1977). However, here the court never granted the Mother sole,
permanent custody. Instead, there were a series of hearings where custody
remained an issue for review. We do not believe that, under these circumstances,
the Mother's constitutional right was violated.


                                      V.


         The decision of the trial court is affirmed in all respects. Pursuant to
Rule 60.01, the court had the authority to issue its Order of Correction and to
enter its September 1996 Order nunc pro tunc. Furthermore, we uphold the
court's subsequent decision to modify custody of the child to the Father based
upon the two hearings that took place. The costs of appeal should be divided
equally between the Mother and the Father.

                                      -9-
                                     __________________________________
                                     WALTER W. BUSSART, SPECIAL JUDGE


CONCUR:


__________________________________
HENRY F. TODD, PRES. JUDGE, M.S.


__________________________________
BEN H. CANTRELL, JUDGE




                                     -10-
