                IN THE COURT OF APPEALS OF TENNESSEE


                                                           FILED
DEBRA ANN EBERHART,             )    C/A NO. 03A01-9612-CV-00374
                                )                           July 22, 1997
          Respondent-Appellee, )
                                )                          Cecil Crowson, Jr.
                                )                          Appellate C ourt Clerk
                                )
v.                              )    APPEAL AS OF RIGHT FROM THE
                                )    HAMILTON COUNTY CIRCUIT COURT
                                )
                                )
                                )
                                )
WILLIAM DANIEL EBERHART,        )
                                )    HONORABLE ROBERT M. SUMMITT,
          Petitioner-Appellant. )    JUDGE




For Appellant                              For Appellee

LESLIE B. McWILLIAMS                       ROBERT J. BATSON, JR.
Chattanooga, Tennessee                     Chattanooga, Tennessee




                          OPINION




AFFIRMED AND REMANDED                                      Susano, J.


                                 1
              In this post-divorce case, William Daniel Eberhart

(Father) filed a petition seeking custody of his son, Daniel D.

Eberhart, age 7.          He seeks to modify the parties’ judgment of

divorce, which granted his former wife, Debra Ann Eberhart

(Mother), sole custody of their child.               Following a bench trial,

the court denied Father’s request and dismissed his petition.

Father appealed, raising issues that present the following

questions:



              1. Does the evidence preponderate against
              the trial court’s refusal to change custody
              of the subject child from Mother to Father?

              2. Comparatively speaking, is Father a more
              appropriate custodian than Mother?

              3.   Does T.C.A. § 36-6-1061 apply to a

     1
         T.C.A. § 36-6-106 provides as follows:

              In a suit for annulment, divorce, separate
              maintenance, or in any other proceeding requiring the
              court to make a custody determination regarding a
              minor child, such determination shall be made upon the
              basis of the best interest of the child. The court
              shall consider all relevant factors including the
              following where applicable:

                    (1) The love, affection and emotional ties
              existing between the parents and child;

                    (2) The disposition of the parents to provide
              the child with food, clothing, medical care, education
              and other necessary care and the degree to which a
              parent has been the primary caregiver;

                    (3) The importance of continuity in the child’s
              life and the length of time the child has lived in a
              stable, satisfactory environment;

                    (4) The stability of the family unit of the
              parents;

                    (5) The mental and physical health of the
              parents;

                       (6) The home, school and community record of the
              child;

                    (7) 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;



                                           2
            modification of custody case?

            4. Did the trial court improperly sustain
            the appellee’s objections to certain of the
            appellant’s questions on the ground that the
            questions were leading in nature?



We affirm.



                                      I



             The parties were divorced on January 26, 1995.           In the

judgment of divorce, the trial court approved and incorporated,

by reference, the parties’ marital dissolution agreement,

executed by them in July, 1994.           The parties’ agreement “awarded

[Mother] the custody of the parties’ minor child, Daniel Dewayne2

Eberhart.”



             On March 19, 1996, a few days short of 14 months

following the entry of the judgment of divorce, Father filed his

petition seeking to change custody.           It was and is his contention

that a change of custody is warranted because (1) the child is

left in the care of his maternal grandfather and others for

substantial periods of time; (2) Mother is not involved in the

“daily care needs of son”; (3) Mother does not provide adequate,

stable housing for the child; and (4) Mother is financially

irresponsible.     Father also relies upon the fact that he spends a


                  (8) Evidence of physical or emotional abuse to
            the child, to the other parent or to any other person;
            and

                  (9) The character and behavior of any other
            person who resides in or frequents the home of a
            parent and such person’s interactions with the child.
      2
       At other places in the record, the child’s middle name is spelled
“Dwain.”

                                      3
substantial amount of time with his son and is in a position to

afford him a good, stable environment.



            The trial court, in denying Father’s request for change

of custody, found that he had failed to carry his burden of

proving a substantial and material change of circumstances

warranting a change of custody, noting that the child is “an All-

American kid, fine example, so somebody’s done something right.”



            Our review is de novo; however, the record comes to us

accompanied by a presumption of correctness, which we must honor

unless the evidence preponderates against the trial court’s

findings.   Rule 13(d), T.R.A.P.       Union Carbide Corporation v.

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).       The trial court’s

conclusions of law are not afforded the same deference.        Adams v.

Dean Roofing Co, Inc., 715 S.W.2d 341, 343 (Tenn.App. 1986).

Furthermore, a trial court, “on an issue which hinges on witness

credibility, will not be reversed unless, other than the oral

testimony of the witnesses, there is found in the record clear,

concrete and convincing evidence to the contrary” of the court’s

judgment.    Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d

488, 490 (Tenn.App. 1974).



                                   II



            As the appellant correctly points out, a judgment or

order awarding custody is res judicata as to the facts in

existence at the time of the award.        Long v. Long, 488 S.W.2d

729, 731-32 (Tenn.App. 1972); Walker v. Walker, 656 S.W.2d 11, 16

                                   4
(Tenn.App. 1983); Arnold v. Gouvitsa, 735 S.W.2d 458, 462

(Tenn.App. 1987).   “[S]uch decree shall remain within the control

of the court and be subject to such changes or modification as

the exigencies of the case may require.”    T.C.A. § 36-6-101.



          It is clear that not every change in the circumstances

of the parties and/or their child is sufficient to warrant a

modification of a custody decree.    “[I]n a modification

proceeding, the trial judge must find a material change in

circumstances that is compelling enough to warrant the dramatic

remedy of changed custody.”   Musselman v. Acuff, 826 S.W.2d 920,

922 (Tenn.App. 1991).   (Emphasis added).



          In Musselman, we quoted the following from a decision

of the Mississippi Supreme Court:



          “Furthermore, it was manifest error to hold
          that the facts and circumstances of this case
          supported a modification of this child’s
          custody. It must be recognized that
          uprooting a child from his mother, school and
          environment was a jolting, traumatic
          experience. It is only that behavior of a
          parent which clearly posits or causes danger
          to the mental or emotional well-being of a
          child (whether such behavior is immoral or
          not), which is sufficient basis to seriously
          consider the drastic legal action of changing
          custody. This case [does] not remotely reach
          any such proportion.”



Id. at 923 (quoting from Ballard v. Ballard, 434 So.2d 1357, 1360

(Miss. 1983)).




                                 5
          Particularly apropos to the facts of this case is our

statement in the case of Wall v. Wall, 907 S.W.2d, 829 (Tenn.App.

1995):



          When two people join in conceiving a child,
          they select that child’s natural parents.
          When they decide to separate and divorce,
          they give up the privilege of jointly rearing
          the child, and the divorce court must decide
          which parent will have primary responsibility
          for rearing the child. This decision of the
          Court is not changeable except for “change of
          circumstances” which is defined as that which
          requires a change to prevent substantial harm
          to the child. Custody is not changed for the
          welfare or pleasure of either parent or to
          punish either parent, but to preserve the
          welfare of the child. Custody is not changed
          because one parent is able to furnish a more
          commodious or pleasant environment than the
          other, but where continuation of the
          adjudicated custody will substantially harm
          the child. Contreras v. Ward, Tenn.App.
          1991, 831 S.W.2d 288.



Id. at 834.



                                III



          The evidence does not preponderate against the trial

court’s determination that the facts and circumstances relied

upon by Father do not constitute a sufficient change in the

circumstances of the parties and their child “to warrant the

dramatic remedy of changed custody.”   See Musselman, 826 S.W.2d

at 922.   There are two basic reasons for this.   First, much of

what Father contends are “changed circumstances” are actually

facts and conditions that existed at the time of the divorce.

Mother’s living arrangements is a good example of this.   She sold



                                 6
the former marital residence prior to the divorce.3            When the

divorce was granted, Mother and the parties’ child had already

taken up residence in quarters which would later be harshly

criticized by Father as being too crowded.          Mother’s child care

needs is still another example of information that was known to

Father at the time of the divorce.         Mother was then working full-

time.    Father had to know that her employment would, by

necessity, require the involvement of others in the care of the

child.    All of this was a part of the factual scenario that

existed in January, 1995, when the court dissolved the parties’

marriage.    By definition, a condition that existed at the time of

the divorce and was known to Father or should have been obvious

to him because of facts that were clearly known to him at that

time cannot be considered “changed circumstances.”            It is obvious

that two of Father’s main complaints--cramped quarters and the

involvement of the maternal grandfather--were very much a part of

the factual scenario in existence when this marriage was

dissolved.



            The other reason that Father cannot successfuly rely

upon the circumstances of which he complains is that there is no

proof that the child has been harmed or might be harmed by

Mother’s living arrangements, or the significant involvement of

the maternal grandfather in his care.         The same can also be said

about Father’s other complaints--an absence of toys where the

child is residing with the Mother, her multiple abodes, and

Mother’s alleged financial irresponsibility.           There is nothing to


     3
       Mother was required to sell the marital residence by the terms of the
marital dissolution agreement. That document provides that “[Mother] agrees
to immediately place the home for sale.”

                                      7
show that any conduct on the part of Mother “clearly posits or

causes danger to the mental or emotional well-being of [her]

child.”   See Musselman, 826 S.W.2d at 923.     Clearly, there is no

showing of “substantial harm to the child.”       See Wall, 907 S.W.2d

at 834.   On the contrary, the proof shows that the child is in

good health, is an “excellent student,” gets along well with

other children, and is otherwise a very normal child in all

respects.



            It is clear that Father very much regrets agreeing to

the award of custody to Mother.       It is likewise clear that Father

very much cares for his son and has continued an excellent

relationship with him.    As the trial court noted, “I don’t have

any evidence that he’s not a good man.”      There is nothing to

suggest that Father would not be a proper custodian; but as the

Musselman case points out, in a modification case, the trial

court “need not repeat the comparative fitness analysis that is

appropriate at the time of the original custody decree.”       Id. at

922.



            We agree with the appellant that T.C.A. § 36-6-106 is

applicable to a modification of custody case just as it is to an

original award of custody; however, in a modification case, the

statute does not come into play unless and until there has been a

showing of a material and substantial change of circumstances as

described in Musselman.    Until the requisite change of

circumstances has been shown, the court does not move to “a

custody determination.”    See T.C.A. § 36-6-106.     There is nothing

in our law to suggest that a “change of circumstances


                                  8
determination” is the same as a “custody determination” under the

statute.    We certainly do not interpret T.C.A. § 36-6-106 to mean

that in a modification case, a court is free to do a comparative

analysis of the parties’ fitness as custodians regardless of

whether there is a change of circumstances.           Musselman, Wall and

other cases teach otherwise.        The statute does not purport to

change this case authority.



            We find that the first three issues raised by Father do

not compel a reversal of the trial court’s order.



                                      IV



            Father also complains that the trial judge was in error

when he sustained several evidentiary objections by Mother on the

ground of leading.      We do not find that any of the challenged

questions were leading in the context in which they were asked.

See Cohen, Sheppeard and Paine, Tennessee Law of Evidence § 611.6

(3d ed. 1995).     In none of the questions at issue does the

questioner suggest the answer to the inquiry.           In fact, one of

the questions had not been completed when the objection was

made.4    Up to that point, counsel had only posed a point of

reference.    With respect to the other two questions, the witness

received no suggestion in the question as to how he should answer

the question.     The court was in error in sustaining Mother’s

objections; however, this error does not provide a basis for a

reversal of the judgment in this case.          This is because the



      4
       The question was: “In July, 1994 when you signed the marital
dissolution agreement --”

                                      9
challenged questions were either rephrased and answered or the

information sought to be elicited was placed in the record in

some other fashion.   In any event, the trial court’s rulings do

not amount to “error[s] involving a substantial right [that] more

probably than not affected the judgment or would result in

prejudice to the judicial process.”   See Rule 36(b), T.R.A.P.

Father’s final issue is found to be without merit.



          The judgment of the trial court is affirmed.   Costs on

appeal are taxed against the appellant and his surety.   This

cause is remanded to the trial court for the collection of costs

assessed below, pursuant to applicable law.



                               __________________________
                               Charles D. Susano, Jr., J.


CONCUR:



________________________
Houston M. Goddard, P.J.



________________________
Herschel P. Franks, J.




                                10
