                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 November 13, 2002 Session

                           TROY DALE BUCKLES v.
                     SHIRA DAWN McKAY BUCKLES RIGGS

                    Appeal from the Chancery Court for Hawkins County
                      No. 14402    Thomas R. Frierson, II, Chancellor

                                  FILED JANUARY 14, 2003

                                 No. E2002-00649-COA-R3-CV


Shira Dawn McKay Buckles Riggs (“Mother”) and Troy Dale Buckles (“Father”) were divorced in
1994. Mother was awarded custody of the parties’ minor son. In 2001, Father first sought increased
visitation and then custody. Mother claimed Father was in arrears in his child support payments.
After a trial, the Trial Court concluded there had been no material change in circumstances and
custody should, therefore, remain with Mother. The Trial Court determined Father was in arrears
in his child support payments in the amount of $13,894. The Trial Court also prohibited both parties
from drinking alcohol “while in possession of the child.” Father appeals. We modify the judgment
to require the parties to undergo counseling, and affirm as modified.



          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                         Affirmed As Modified; Case Remanded.


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and
CHARLES D. SUSANO, JR., J., joined.

Douglas T. Jenkins, Rogersville, Tennessee, for the Appellant Troy Dale Buckles.

Daniel B. Minor, Kingsport, Tennessee, for the Appellee Shira Dawn McKay Buckles Riggs.

Paul G. Summers, Attorney General and Reporter, and Warren A. Jasper, Assistant Attorney
General, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Human Services
ex rel. Shira Dawn McKay Buckles Riggs.
                                             OPINION

                                            Background

                Mother was granted an absolute divorce from Father in 1994. Mother was awarded
sole custody of the parties’ only child, a son, who is now nine years old. Father was awarded
visitation with his son with the following restrictions:

                       While exercising his visitations, defendant shall have another
               suitable person, preferably his sister, drive him while he is exercising
               his visitations until such time as he presents to the plaintiff a valid
               Tennessee driver’s licence. Defendant shall at all times provide a
               child seat in his automobile.… Defendant shall not have been
               drinking any alcohol or taking any mind influencing substances either
               before or during the time he exercises his visitations with the minor
               child ….

                 Father filed a Petition in January of 2001, seeking to have a new visitation schedule
agreed to by the parties confirmed by the Court. Father also sought increased visitation. Father later
filed a Petition seeking to have Mother held in contempt of court for refusing to allow his visitation
with his son. In response, Mother asserted the parties had voluntarily altered the visitation schedule
and otherwise denied she was prohibiting Father from exercising visitation. Mother also claimed
Father should be denied any further overnight visitation. Father subsequently amended his Petition
and sought custody of the child, claiming there had been a material change in circumstances and a
change in custody would be in the child’s best interest.

              Mother filed a request for assistance in obtaining child support with the State of
Tennessee’s child support enforcement division. The State then filed a Petition for Contempt on
Mother’s behalf. The State claimed Father was $18,250 in arrears on his child support payments.
The State also requested an increase in the amount of child support. The State’s petition was
consolidated with the present action.

                A guardian ad litem (“Guardian”) was appointed on behalf of the minor child, per
Father’s request. Father claimed the child had been physically abused by his step-father. After
conducting an investigation into the allegations of abuse, the Guardian prepared a written report
concluding the child had not been abused by the step-father. The Guardian also concluded it would
be in the child’s best interests to remain with Mother. The Guardian went on to recommend:

                       That the Father … refrain from drinking any alcohol in the
               presence of [the child], because it creates one of his primary sources
               of stress and is not in his best interest. The Guardian … also highly
               recommends that [Father] refrain from being with [the child] at sports
               bars and restaurants that serve alcohol for any longer than that time


                                                 -2-
               which is necessary to eat a meal and that those meals be eaten at
               tables rather than at the bar, because this is another source of conflict
               and stress for the child that only serves to place the child in the
               middle of battles such as this one.

                Mother testified she and Father divorced in 1994 after one year of marriage. Father
was ordered to pay child support in the amount of $50 per week which was to be paid through the
court. To Mother’s knowledge, no child support was ever paid through the court, although some
child support payments were made directly to Mother. Mother acknowledged Father had cancelled
checks showing his child support payments totaling $5,756. Mother testified her mother was not
being truthful if she claimed to have given Mother child support payments she had received from
Father.

               Mother admitted she discouraged her son from having a relationship with Father and
that she stopped allowing Father visitation. Her reason for this was her fear for the child’s safety
since Father would take him to bars and drink alcohol while exercising visitation. According to
Mother, Father never called and asked for visitation after she stopped allowing visitation. Mother
stated she has no problem with Father exercising visitation so long as he does not drink alcohol.
Mother testified to her involvement with her son’s school activities and the progress he was making.
She agreed family counseling was needed, and denied her current husband had in any way harmed
her son.

                Father acknowledged he was ordered to pay $50 per week into the registry of the
court. He went on to testify, however, that instead of paying the child support into court, he paid
Mother directly at her request. Father claimed he made all of his required child support payments
over the years in cash or from various different bank accounts. Father, however, had no canceled
checks prior to April of 1999 showing that any payments had been made.

               With regard to the allegations of physical abuse, Father testified his son told him
about being kicked by his step-father. Father reported the alleged abuse to the proper authorities.
A proceeding then took place in Juvenile Court regarding these allegations. Father claims his son
denied any abuse and “told a totally different story in court.” Those proceedings then were
dismissed. After those proceedings were dismissed, Father claims his son told him he lied in
Juvenile Court because Mother said she would whip him until he bled if he told the truth. In light
of his son’s admission, Father apparently was able to have the Juvenile Court proceeding reopened.

               Father denied ever being drunk around his son. He also denied that his drinking of
alcohol in any way affected their relationship.

               Jerri McKay (McKay) is Mother’s mother. McKay testified her grandson spent a lot
of time with her up until he was five years old. When Father exercised his visitation rights, he would
give his child support payments to McKay when picking up or dropping off the child. In turn,
McKay would give the money to Mother. Father would make these payments by cash or check.


                                                 -3-
McKay admitted she kept no records as to how much child support she had received from Father and
given to Mother. McKay claims her grandson told her his step-father had abused him. When this
happened, McKay forwarded this information to the authorities. McKay never witnessed any
problems between Father and son. The child never appeared to her to be afraid of Father. McKay
claimed to have seen bruises on the child which the child indicated were caused by his step-father.
When she asked Mother about the bruises, Mother did not seem concerned. McKay stated Mother
acknowledged the bruises came from the child’s step-father shaking him. McKay described the step-
father as very controlling. McKay acknowledged Mother was a fit parent, and she knew of no reason
for the child to be taken away from Mother.

                Steve Nelson (“Nelson”), an officer with the Rogersville Police Department also
testified. Nelson was present on two occasions when the child was being given to Father for
visitation. On the first occasion, Nelson went to the scene after someone called the police indicating
there was a problem. When he arrived, Mother was irate and Nelson had trouble getting her under
control. The child did not want to go with Father. Nelson tried to calm everyone down and the child
eventually agreed to go with Father. Nelson then told Mother to get the child’s clothes out of her
car so they could be given to Father. When she got the clothes, Mother started screaming and
cussing. Nelson told her he would arrest her for disorderly conduct if she did not stop. According
to Nelson, the second situation was much like the first.

                Susan Chambers (“Chambers”), a school counselor at Hawkins County Elementary
School, also testified. Chambers testified the parties’ child had difficulty getting along with other
children and, at one point, was failing a couple of classes. The child would get anxious towards the
end of the week when Father was going to exercise visitation. According to Chambers, the child
needed a structured environment where rules were followed. Chambers noted the child had been
working hard at improving his ability to get along with other children and that his grades had
improved, but a “fresh start” would be easier for him. Chambers testified Father’s drinking and
taking the child to bars was a stressor for the child and needed to stop. According to Chambers,
Mother is very active in the child’s school activities. To her knowledge, Father has never been to
a school function.

                Matthew Smith (“Smith”), a New Services Officer with the Hawkins County Juvenile
Court was called as a witness for Father. According to Smith, the parties’ son told Smith that
Mother and his step-father had instructed him to lie about the allegations of abuse. Although the
Juvenile Court petition had been dismissed, based on this new information, an ex parte order was
entered by the Juvenile Court Judge restraining Mother and step-father from threatening or coercing
the child as to his testimony.

                The next witness was Betty Barrett (“Barrett”), a former child abuse investigator with
the Department of Human Services. Barrett investigated the child’s allegations that his step-father
had hurt him. Barrett interviewed and physically examined the child but found no evidence of abuse.
Barrett also interviewed Mother and the step-father. Barrett concluded the allegations of abuse
“were absolutely unfounded, as unfounded as any case I ever worked.”


                                                 -4-
                The guardian ad litem, Michelle Green (“Green”) also testified. Green is an attorney
in private practice in Rogersville and previously was an assistant district attorney who, among other
things, prosecuted child abuse cases. Green interviewed Father and the child. During the initial
interview, the child did not claim he had been kicked. The only person who mentioned this alleged
incident was Father. Green interviewed the child several more times. She also interviewed Mother
and the step-father, as well as Mother’s parents and the child’s babysitter. Green concluded there
had been no physical abuse. She also concluded the child is “in the middle of a very ‘serious tug of
war’ … between Mother and Father … the child is under so much stress it’s not even funny. He
tells me he has trouble sleeping. He’s got a knot in his neck … because of stress. And he can’t lay
down and sleep because of it. The fact that his father drinks bothers him ….” Green stated the child
did not feel safe when his father drank alcohol because the child was not old enough to know how
much was too much. During the interviews, the child asked Green repeatedly what he should do if
his dad drank too much and whether he should get in the car with him. Green recommended custody
remain with Mother. She also stated Father should refrain from drinking alcohol in front of the
child. Green suggested if Father and son go out to eat, they should not sit at the bar. Finally, Green
strongly recommended counseling for the entire family and noted both parties should refrain from
interrogating the child.

               The final witness was Thomas Riggs (“Riggs”), the child’s step-father. Riggs married
Mother in 1995. Riggs has contributed to the child’s support ever since he married Mother. Riggs
denied ever striking or kicking the child in an inappropriate manner.

                As pertinent to this appeal, the Trial Court calculated Father’s child support
obligation starting February 11, 1994, to be $20,500. The Trial Court then stated the “evidence
preponderates in favor of a finding that between February 1994 and April 1999, [Father] sporadically
paid [Mother] child support in cash. The evidence also supports a finding that these cash payments
totaled $850.00. Beginning in April of 1999 … [Father] paid child support by means of check …
[totaling] $5,756.00." After giving Father credit for these payments, the Trial Court concluded
Father was $13,894.00 in arrears.

               With regard to Father’s request for a change in custody, Father claimed there was a
material change in circumstances because: (1) Mother had remarried; (2) the home environment with
Mother and step-father was not safe; (3) Mother had denied Father visitation; and (4) Father could
provide a more structured environment. Addressing these various contentions, the Trial Court stated:

                       Remarriage of either parent does not, of itself, constitute a
               change of circumstances that would warrant a change of custody or
               parenting time. Arnold v. Arnold, 774 S.W.2d 613 (1989).
               “However, the possible change in home environment caused by such
               remarriage is a factor to be considered in determining whether or not
               there has been a material change in circumstances that would warrant
               an alteration of custody arrangements”, Tortorich v. Erickson, 675
               S.W.2d 190 (1984). As noted above, [Father’s] petition filed in the


                                                 -5-
juvenile court of Hawkins County, Tennessee, was dismissed. The
evidence preponderates against a finding that the minor child has
sustained any mental or physical abuse by Mr. Riggs. Instead, the
evidence supports a finding that [the child] enjoys a positive, healthy
and appropriate relationship with his stepfather, Mr. Riggs.

         Pursuant to T.C.A. 36-6-106, in any proceeding requiring the
trial court to make a custody determination regarding a minor child,
the Court may consider as a relevant factor a parent’s willingness and
ability to facilitate and encourage a close and continuing parent/child
relationship between the child and the other parent, all consistent with
the best interests of [the] child. A material change of circumstances
must be a change in the child’s circumstances, and not the
circumstances of either or both parents. Hoalcraft v. Smithson, 19
S.W.3d 822 (1999). Though [Mother] unilaterally prevented certain
parenting time in favor of [Father], such conduct reflected acrimony
and a deterioration of the relationship between [Mother and Father],
all insufficient to establish a material change of circumstances so as
to warrant a modification in the parenting arrangement.

        Finally, regarding [Father’s] assertion that as [a] parent he can
provide a more suitable and structured home environment for the
child, [Father] failed to show that a continuation of the adjudicated
parenting arrangement will substantially harm the child. Accordingly,
this Court concludes that there has not occurred a material change in
circumstances since the Final Judgment of Divorce so as to warrant
a modification in the primary residential parent status.

                                ****

         A primary concern of [Mother] is [Father’s] continuing
consumption of alcohol while in the presence of the minor child. The
guardian ad litem reiterated such concern in her report and testimony
during trial. The evidence supports a finding that [Father] consumes
alcohol in the presence of the child at various restaurants during
parenting time. [Father] also transports the child after having
consumed alcohol.… Tennessee courts may impose necessary
conditions regarding parenting responsibilities, each designed to
promote and protect the best interest of the child. Either party’s
failure to abide by a court’s order regarding prohibited use of alcohol
and drugs while in the possession of the child may result in either a
change in custody or neither parent receiving custody, Thompson v.
Thompson, 1995 LEXIS 645 (Tenn. App., 1995). This Court


                                  -6-
               concludes that an appropriate condition for parenting by both parties
               is that they are prohibited from using, consuming or permitting the
               use, by designated caregivers, of alcohol while in possession of the
               child.

Finally, the Trial Court entered a parenting plan for the parties which vested Mother with the sole
authority to make “major” decisions with regard to the child’s education, non-emergency health care,
religious upbringing, and extracurricular activities.

               Father appeals various aspects of the Trial Court’s ruling. In particular, Father
appeals the Trial Court’s refusal to transfer custody of the child to him, as well as the Trial Court’s
granting to Mother the sole right to make “major” decisions in the child’s life. Father appeals the
ruling that he was in arrears $13,894 in child support and the prohibition on his consuming any
alcohol when exercising visitation. Finally, Father argues the Trial Court erred in failing to order
family counseling. The State appeals the amount of child support arrearage, claiming Father was in
arrears $20,500.

                                             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 conclusion that there was no material change in
circumstances which would warrant a change in custody. In Kendrick v. Shoemake, No. E2000-
01318-SC-R11-CV, 2002 Tenn. LEXIS 489 (Tenn. Nov. 1, 2002), our Supreme Court set forth the
appropriate standard to be applied when making such a custody determination. Specifically, the
Court stated:

                       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.” 77 S.W.3d at 148.
               As explained in Blair, the “threshold issue” is whether a material


                                                 -7-
               change in circumstances has occurred after the initial custody
               determination. 77 S.W.3d 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, 2002 Tenn. LEXIS 489 at *7, *8 (footnotes omitted). If a material change in
circumstances has been found, then a Trial Court must next determine whether custody modification
is in the child’s best interests. Id. at *9.

               Relying on Wall v. Wall, 907 S.W.2d 829 (Tenn. Ct. App. 1995), the Trial Court
defined “change of circumstances” to require a showing of substantial harm to the child. In Wall,
this Court stated that an initial custody determination is not “changeable except for ‘change of
circumstances’ which is defined as that which requires a change to prevent substantial harm to the
child.” Id. At 834. In Kendrick, however, the Supreme Court did not require a showing of
substantial harm in order to establish a material change of circumstances. When making the custody
determination in the present case, the Trial Court did not have the benefit of the Kendrick opinion
released over eight months after the Trial Court’s ruling.

                 Father correctly notes in his brief that “[t]he facts of this case are hotly disputed.”
The Trial Court’s finding that no material change in circumstances existed such as to warrant a
change in custody was based upon its observation of the parties at the hearings, and its comparison
of the demeanor of all the witnesses, including Father and Mother. Trial courts, when determining
custody matters, take into account a number of factors, “including the parents’ demeanor and
credibility during the . . . proceedings.” Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App.
2001) (quoting Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)). “Unlike this Court,
the trial court observed the manner and demeanor of the witnesses and was in the best position to
evaluate their credibility.” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc., 43 S.W.3d 498,
502 (Tenn. Ct. App. 2000). A trial court’s determinations regarding credibility are accorded
deference by this Court. Id.; Davis v. Liberty Mutual Ins. Co., 38 S.W.3d 560, 563 (Tenn. 2001).
“[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness credibility absent clear
and convincing evidence to the contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783
(Tenn. 1999). The Trial Court concluded there had been no physical abuse of the child, and the child
currently enjoyed a “positive, healthy and appropriate relationship with his stepfather….” The
evidence does not preponderate against the factual findings made by the Trial Court.


                                                  -8-
                 In light of these and other factual findings made by the Trial Court, there is no need
to remand this case for a determination of whether or not there has been a material change of
circumstances in accordance with the standard set forth in Kendrick. It is clear from our Supreme
Court’s Opinions in Blair and Kendrick that a showing of risk of substantial harm is not essential
to establishing a material change of circumstances. Based on our review of the entire record, and
in light of the Trial Court’s factual determinations which are not contrary to the preponderance of
the evidence, we hold Father did not establish a material change in circumstances. This is so even
though he is not required to show that a change in custody is necessary to prevent substantial harm
to the child in order to show a material change of circumstances. We, therefore, affirm the Trial
Court’s refusal to change custody.

                 The Trial Court’s conclusion that Father was $13,894 in arrears also involves a
factual determination inasmuch as the child support either was or was not paid. Mother admitted
receiving $850 in cash payments and Father clearly proved an additional $5,756 in payments. The
Trial Court credited Father with these payments against the total amount of child support owed.
Mother denied receiving any further child support payments. Father claimed to have made all
payments, although he had no additional documentary proof to support this contention. Had Father
paid child support through the court as required by the initial order, this would not have been an
issue either at trial or on appeal. Based on the demeanor and credibility of the witnesses, the Trial
Court was free to choose to believe Mother’s testimony that no additional payments had been
received, or to believe Father that all payments had been made. The Trial Court chose to credit the
testimony of Mother. We cannot conclude that the preponderance of the evidence is against the
factual finding reached by the Trial Court that Father was $13,894 in arrears.

                The State argues the Trial Court should have treated the $6,606 credited to Father as
a gift because he failed to pay the child support into the court as required by the original order. The
State argues Father should be found to be the full $20,500 in arrears. In light of the fact Mother does
not deny receiving the $6,606 in child support and that this support was used for necessities in
raising the child, we believe the Trial Court properly characterized these sums as child support as
opposed to gifts. In short, we affirm the Trial Court’s holding that Father was in arrears in the
amount of $13,894.

                Father claims the Trial Court erred when it allocated to Mother the sole right to make
major decisions with regard to the child’s education, non-emergency health care, religious
upbringing, and extracurricular activities. A Trial Court is vested with the power to allocate parental
responsibilities. Among the criteria to consider are:

                        (2) The history of participation of each parent in decision
               making in each of the following areas: physical care, emotional
               stability, intellectual and moral development, health, education,
               extracurricular activities, and religion; and whether each parent
               attended a court ordered parent education seminar;



                                                 -9-
                        (3) Whether the parents have demonstrated the ability and
               desire to cooperate with one another in decision making regarding the
               child in each of the following areas: physical care, emotional
               stability, intellectual and moral development, health, education,
               extracurricular activities, and religion; and

                       (4) The parents' geographic proximity to one another, to the
               extent that it affects their ability to make timely mutual decisions.

Tenn. Code Ann. § 36-6-407(c)(2)-(4).

                On appeal, Father argues the Trial Court was in error because Mother’s proven failure
to cooperate “mandates his inclusion in the decision making process to promote his relationship with
the child and prevent misuse of the mother’s decision making power.” While it is true Mother
recently has thwarted Father’s ability to exercise visitation, Mother’s claimed basis for doing so was
Father’s persistence in drinking alcohol when exercising visitation. In our opinion, both parties have
demonstrated an inability to get along with each other, and the blame does not lie solely with Mother.
The proof shows Mother has been the primary decision maker on these various topics. Further, proof
in the record shows that the parties have demonstrated their lack of ability and desire to cooperate
with one another in decision making regarding the child. We do not believe the Trial Court erred
in holding that Mother should continue to make these major decisions in this child’s life.

                Father takes issue with the Trial Court’s prohibiting his drinking any alcohol while
exercising visitation. Father admits the Trial Court had the authority to mandate such a prohibition.
He argues, however, that the Trial Court erred because the ruling came about simply because of
Mother’s “campaign for total temperance.” From the facts set forth at length above, it is undeniable
that Father’s drinking causes a significant amount of stress in his son’s life. Regardless of whether
or not Mother is on a “campaign for total temperance,” because of the negative effect Father’s
drinking has on this child, the facts undeniably show that having both parents abstain from drinking
alcohol when in possession of the child is in the child’s best interest. On appeal, Father does not
argue otherwise. In light of the foregoing, we believe the Trial Court was correct in its ruling on this
issue. We note that as the child gets older, there may well come a time when this restriction is no
longer necessary, and Father is free to request modification or elimination of this prohibition at that
time.

                The final issue on appeal is Father’s argument that the Trial Court erred in not
requiring the parties to undergo counseling. The Trial Court did not address whether or not
counseling was appropriate. On appeal, Mother does not argue counseling is not needed. If fact, she
does not address this issue. At trial, about the only thing the parties could agree on was that
counseling was needed. We agree. The Trial Court’s judgment is modified so as to require the
parties to undergo counseling. Therefore, on remand, the Trial Court is instructed to enter an order
requiring the parties and their son to obtain appropriate counseling.



                                                 -10-
                                           Conclusion

                The judgment of the Trial Court is affirmed as modified, and this cause is remanded
to the Trial Court for such further proceedings as may be required consistent with this Opinion, and
for collection of the costs below. The costs on appeal are assessed against the Appellant, Troy Dale
Buckles, and his surety.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




                                               -11-
