                               FILED
                               November 18, 1999

                               Cecil Crowson, Jr.
                              Appellate Court Clerk
JOSEPH LARRY KEASLER,      )
                           )
    Plaintiff/Appellant,   )                  Appeal No.
                           )                  M1998-00228-COA-R3-CV
v.                         )
                           )                  Davidson Circuit
SALENA D’ANN KEASLER SWAIN,)                  No. 92D-3394
                           )
    Defendant/Appellee.    )



                    COURT OF APPEALS OF TENNESSEE


        APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT
                         AT NASHVILLE, TENNESSEE


               THE HONORABLE MURIEL ROBINSON, JUDGE




JAMES ROBIN McKINNEY, JR.
One Washington Square, Suite 103
214 Second Avenue North
Nashville, Tennessee 37201
      ATTORNEY FOR PLAINTIFF/APPELLANT



D. SCOTT PARSLEY
Barrett, Johnston & Parsley
217 Second Avenue North
Nashville, Tennessee 37201


                                                                      Page 1
      ATTORNEY FOR DEFENDANT/APPELLEE




                               AFFIRMED IN PART,
                               REVERSED IN PART,
                                AND REMANDED




                                                        WILLIAM B. CAIN, JUDGE
                                  OPINION

      This is a post-divorce proceeding involving the custody of a six year old
child. The trial court dismissed the Father’s petition for a change of custody,
awarded a child support arrearage judgment against the Father and assessed attorney
fees against the Father. The Father now appeals the trial court’s decision. While we
affirm the court’s award of child support arrearage, we reverse on the issues of
custody and attorney fees.


      Joseph Larry Keasler (“the Father”) and Salena D’Ann Keasler (“the Mother”)
were divorced on grounds of irreconcilable differences by decree of the Davidson
County Circuit Court on June 22, 1993. The divorce decree adopted the agreement
of the parties which required the Father to pay the Mother $48 per week in child
support for their child, Bridget Nichole Keasler, who was then less than two years of
age. The agreement further provided as follows: “The parties acknowledge that they
are the natural parents of (1) minor child, namely: Bridget Nichole Keasler, born
September 20, 1991. The parties agree to share joint care, custody and control of
the minor child of the parties with the child living primarily with the wife; and the
husband shall have visitation with said child at reasonable times and places.”


      On May 29, 1997, the Father filed a petition for change of custody and
contempt followed the next day by an amended petition for change of custody and
contempt in which he sought a restraining order to prohibit the Mother from


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interfering with his possession of Bridget pending further orders of the court. On
May 30, 1997, based upon the allegations of the sworn amended petition, Judge
Robinson issued the temporary restraining order. On August 25, 1997, the Mother
filed an answer to the amended petition for change of custody together with a
counter-petition asking that she be awarded sole custody of Bridget and that the
Father be held in contempt of court.


      After several motions and interim proceedings, the trial was heard January 26,
January 27 and February 10, 1998. Midway through the proceedings below, Judge
Robinson made the following observation: “I think I’m finding that both of them are
unstable and immature. They don’t conduct themselves properly in the presence of
this child. I really don’t have much to choose from here.” At the conclusion of the
trial, the court granted a Rule 41.02(2), Tenn. R. Civ. P., motion filed by the Mother
in an order providing in part:
      1.     The Court further finds that the [F]ather in this matter has not
      been honest with the Court especially as it relates to the Temporary
      Restraining Order.
      2.     The Court ORDERS that the child will remain temporarily in the
      custody of the Father until the school year ends, at which time custody
      and possession of the child will be returned to [the] Mother.

At the conclusion of the February 10 hearing, the trial judge made the following
statement from the bench:
      I’m going to grant his motion mainly because this side of the room was
      not honest with The Court, and I’m very much made aware of that. I’
      m going to be cognitive of it from this point on. I’m going to order that
      this child will remain temporarily in the custody of the [F]ather, until
      school ends, and then the child will be returned to the [M]other.
      She will be awarded a judgment of $9,840 in back child support. I’ll
      reserve any payment on that until the child is returned to the [M]other
      the first of June. He will have every other weekend and 30 days in the
      summer, which can be the month of July. I’ll entertain attorney fees
      and sanctions in this regard.


      With all deference to the trial court, this adjudication subordinates the interest
of the child to the trial court’s revulsion to the dishonest conduct of the Father. The



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trial court very properly took offense when allegations of the amended petition of the
Father, made under oath and forming the basis for the trial court’s issuance of a
temporary restraining order, were established by the proof to be essentially false
allegations. However, it is well established that the welfare and best interests of the
child are the paramount considerations in determining custody.             Whitaker v.
Whitaker, 957 S.W.2d 834, 837 (Tenn. App. 1997).


        The standards under which the adjudication should be made have been stated
by this court.
        In recognition of the importance of stability and continuity, custody and
        visitation decisions, once made and implemented, are res judicata upon
        the facts in existence or reasonably foreseeable when the decision was
        made.
        Notwithstanding the importance of stability and continuity, intervening
        changes in a child’s circumstances may require modifying an existing
        custody and visitation arrangement. Tenn.Code Ann. § 36-6-101(a)(1)
        (Supp.1997) empowers the courts to change custody “as the exigencies
        of the case may require,” and courts will change custody when the
        party seeking to change custody proves (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,
        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) (citations
omitted).    Accordingly, we must first determine from this record whether the
circumstances of the child have materially changed in a way that could not have been
reasonably foreseen at the time of the final decree of divorce and custody, June 22,
1993.


        The great majority of the testimonial record consists of the testimony of the
Father and of the Mother, who was called as a witness by the Father. From the
record, it was established that the child, Bridget, six years old at the time of the
hearing, had very little stability in her life between the time of the divorce decree of
June 22, 1993 and the period immediately preceding the hearing in January and
February of 1998. In August 1993, the Mother gave the child, then less than two



                                                                                           Page 4
years of age, to the Father and moved to Texas for six months. Fortunately, the
paternal grandmother was available to care for the child. The Mother then returned
from Texas and resided with a man named Dedmon for a short period of time. Then
she resided with the Father for a period of time before moving into an apartment with
a female co-worker. After moving in with another man for a short period of time
with the minor child, the Mother removed the child from Tennessee to Orlando,
Florida to live with another man. She then began dating Brian Swain, whom she
married in November 1996, after giving birth to his child in September 1996. On
November 17, 1996, while the Mother was intoxicated in the presence of the minor
child, Swain was arrested for assault upon the Mother.


      During most of the time between the divorce decree and the custody hearing
in early 1998, the Mother worked in a series of establishments in the adult
entertainment business. While in the custody of the Mother, the child never saw a
dentist and the Mother could not recall how many separate day care facilities the
child had attended. Also, while in the Mother’s custody, the child attended J. E.
Moss Elementary School for kindergarten, receiving poor grades, having excessive
absenteeism and having behavioral problems.


      About March 1, 1997, Bridget went to live with the Father.           While the
foregoing recitation of facts indicating instability in Bridget’s life caused by the
action or inaction of the Mother is serious, this is somewhat counter-balanced by the
less than ideal conduct of the non-custodial Father. He was badly delinquent in his
child support and he had his own live-in companions. The apparent periodic haven
of refuge for Bridget was her paternal grandmother.


      When Bridget moved in with the Father around March 1997, he was living
with Karen Peterson. Two months after Bridget moved in with the Father, he filed
his petition and amended petition for change of custody seeking and getting a
restraining order against the Mother. The allegations he made to justify a restraining
order consisted of nothing except a detailed recitation of matters that he had known



                                                                                         Page 5
about for months. Had the trial judge known the truth, doubtless the restraining
order would not have been issued. Likewise, the Father conveniently forgot to tell
the trial judge at the time he asked for the restraining order that he was living with the
child and Ms. Peterson without the benefit of marriage.


      In spite of these shortcomings of the Father, it is clear from the testimony of
school teachers and school personnel of the Rutherford County School System that
Bridget experienced a complete turnabout in school once she started living with the
Father. Her teacher, Denise Reed, testified:
      Q.     Ms. Reed, how is she doing in school?
      A.     She was what I would consider a solid student. She was always
      prepared for class. She always had her homework a day early. Her
      reading, she was on level for reading and on level for all of her subjects.
      Q.     Did she have any discipline problems?
             A.     No, sir.
             Q.     Well behaved?
             A.     Typical first grader.
      Q.     Have you ever had meetings with Mr. Keasler or his present wife
      about Bridget, her school work?
      A.     They came if it was conference times and just the average thing.
      I never had to call them in or anything.
                                          ...
      Q.     How did they react about Bridget’s education?
      A.     I would consider them very dedicated. Like I said, Bridget
      always had her homework. It was always due on Wednesday, but it
      was always turned in on Tuesday.
      Q.     Was she well dressed?
             A.     Yes, sir.
      Q.     Appear to be fed every day when she came to school?
             A.     Yes, sir.
      Q.     Did she appear to be well taken care of?
             A.     Very well taken care of.

Subsequent to May 30, 1997, the Father and Karen Peterson married and, at the time
of trial, they were living with Bridget at 180 Stones River Lane in Murfreesboro,
Tennessee.    Karen Peterson is a Middle Tennessee State University graduate
working as an administrative assistant at Audio Video Concepts.


      The Father has carried his burden of proof to establish a material change of


                                                                                             Page 6
circumstances involving Bridget that could not have reasonably been foreseen at the
time of the June 22, 1991 custody decision. McDaniel v. McDaniel, 743 S.W.2d
167, 169 (Tenn. App. 1987). Now it must be determined if it is in the child’s best
interest that custody be changed to the Father. The observations of the trial court
about the immaturity and instability of both of these parents are clearly born out by
the record in this case. In this comparative fitness analysis, we must seek, as did the
court in Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. App. 1996). We are not faced
with a choice between parents who have displayed sound parenting judgment in the
past, but rather a comparison between two young parents who have displayed the
imperfections of people lacking in maturity and stability. The record shows that the
Father, despite all of his faults, is comparatively a more fit custodial parent for
Bridget. Since the child was an infant, the Mother has moved from place to place
and from companion to companion with less than adequate regard for the welfare of
Bridget. In so doing, she has failed to provide Bridget with a stable, consistent
environment. The Father, on the other hand, seems to have finally settled into a
marriage and environment, bringing the kind of stability and continuity that is so
essential to the well being of a small child. See Taylor v. Taylor, 849 S.W.2d 319,
328 (Tenn. 1993).       This stability is manifested by the change in Bridget’s
performance in school, both academically and behaviorally.


      It is noted that this case was decided below on a Rule 41.02(2) motion and
thus dismissed at the conclusion of the Father’s proof. It is, however, conceded by
counsel for the Mother, that the Mother would have offered no additional proof
since the Father called the Mother as a witness in the case. The judgment of the trial
court with regard to custody is reversed, and custody of Bridget is granted to the
Father, Joseph Larry Keasler.


      The evidence in the case supports the child support arrearage judgment in
favor of the Mother in the amount of $9,840.00, and this is not seriously contested
on appeal. The action of the trial court in this respect is affirmed. Finally, the Father
complains of the attorney fees award in the amount of $2,500.00 made by the trial



                                                                                            Page 7
court. In view of the finding by this court that the Father’s petition for change of
custody is well taken, the judgment for attorney fees will be reversed.


      The judgment of the trial court is reversed as to the custody award, affirmed
as to the judgment for child support arrearage against the Father and reversed as to
the award of attorney fees. The case is remanded for such other proceedings as are
needed consistent with this judgment.     Costs of appeal are assessed against the
appellee, the Mother.


                                     __________________________________
                                     WILLIAM B. CAIN, JUDGE




CONCUR:


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


___________________________________
WILLIAM C. KOCH, JR., JUDGE




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