                          FILED
November 17, 1999

Cecil Crowson, Jr.
Appellate Court Clerk
                 IN THE COURT OF APPEALS AT NASHVILLE


GINGER ASHLEY FERRELL, )      C/A No. M1998-00214-COA-R3-CV
                      )     DAVIDSON COUNTY
                         Respondent/Appellee,    )    Circuit
                         No:
                          )     92D-1927
                                    )
     v.   )
               )
                               )
FRANKIE DEWAYNE FERRELL,                         )
                                                           )
     Petitioner/Appellant.    )
                                 )
                                 )



APPEALED FROM THE SECOND CIRCUIT COURT OF DAVIDSON COUNTY

THE HONORABLE MARIETTA M. SHIPLEY, JUDGE



No Brief Filed By Respondent/Appellee

Connie Reguli
353 Wimpole Drive
Nashville, TN 37211

     Attorney for Petitioner/Appellant


                            REVERSED AND REMANDED


                             Houston M. Goddard, Presiding Judge

CONCUR:

FRANKS, J.
CAIN, J.



                                                                   Page 1
Page 2
                         O P I N I O N




          This case concerns issues presented by the
Father/Appellant, Frankie Dewayne Ferrell, in his petition to
change custody of his two minor children from the
Mother/Appellee, Ginger Ashley Ferrell. We note that although
the Mother was represented by counsel at trial, she did not
file a brief on appeal.


          Although the Father enumerates several issues in his
brief, all of them pertain to the overarching issue of whether
the Trial Court erred in allowing the Mother to retain custody
of the two children.   He also raises a collateral issue of
attorney’s fees for the “prevailing” party under Tennessee
Code Annotated § 36-5-103(c) in a change of custody case.



         We reverse the judgment of the Trial Court and award

sole custody of both minor children to the Father and remand

to the Trial Court for imposition of a supervised visitation

plan for both children with the Mother.




          The parties were divorced on October 14, 1992.    Two

children were born of the marriage, Mandy and Joey, who were

ages eight and fifteen, respectively, at the time of the

change of custody hearing.    The Marital Dissolution Agreement

awarded the Mother sole custody and control of both children

at the time of the divorce.




         On April 21, 1998, the Father filed a petition for

change of custody, alleging a material change in circumstances



                                                                  Page 3
had occurred since the entry of the final decree.   The change

was that both children had come to live with him since the

divorce decree was entered, the Mother had sought only limited

visitation with both children since they had lived with the

Father, and the Mother had failed to provide child support for

both children. 1



          During the change of custody hearing, the Father

testified that he was seeking a change of custody also for

medical reasons.   He explained that Mandy became ill while

living with him, and the Mother “had full custody of both

kids, from a legal standpoint, and she was the only one that

could, basically, take them to the doctor, or if any kind of

emergency came up, she was the only one that had legal custody

to do that.”




          Since May 1994, Mandy has resided with the Father

because of an alleged incident of sexual abuse by an adult

male friend of the Mother.   Joey Farrell has resided with his

Father since January 1996.   The Father testified that he

brought Joey to his home in January 1996 after he had been

contacted by Wright Middle School and informed that Joey was

not attending school.   The decision for Joey to live with the

Father was a mutual one between the Father and the Mother.




          On June 22, 1998 an order was entered suspending the



                                                                 Page 4
Mother’s visitation with her daughter Mandy based upon a

letter     to the Court by the counselor.     In this same order,

the Judge appointed a guardian ad litem, asked him to visit

the homes of both the Mother and the Father, and report his

findings at the hearing on July 28, 1998.




            The Father has been remarried for five years, and

his wife’s three children live in the home with his wife and

him.     He has been employed in the same job for fifteen years.



            The Father admitted to having a confrontation with

Joey over an incident involving drugs and told the Court that

his entire family was in counseling.        The Father has had Joey

submit to drug screenings in an attempt to stop his abuse of

drugs.     The Father expressed his belief that Joey would only

conform to rules long enough to get what he wanted.




            The Father acknowledged that he was disturbed by the

Mother’s behavior.     He testified that Joey had smoked

marijuana and that Joey told him that he had gotten the

marijuana from his Mother.     Some of the Father’s other

complaints about the Mother were that she had lived at

numerous locations and had been evicted several times; she

currently did not have her own place to live, but instead

lived with her brother-in-law; she worked nights and thus,

could not properly supervise Joey; she did not have health


                                                                      Page 5
insurance and did not have a car; and she had lived with her

husband, who had an inconsistent work history, for several

years and had gotten married just before the hearing on the

petition to change custody.




          Moreover, the Father felt that the sexual abuse of

Mandy was the result of the Mother’s negligence and that Joey’s

poor attendance record at school was due to her failure to

supervise Joey.




         The Father also complained that before the hearing

on the petition for change of custody and without notifying

him, the Mother picked Joey up and took him to her home.     She

apparently refused to allow Joey to visit with the Father, so

the Father filed a motion to set a visitation schedule.

According to the Father, Joey exhibited behavioral changes

during his stay with his Mother: he burned a gang symbol into

his skin; he had been with someone who stole a car; and he

changed his appearance by wearing baggy pants and by shaving

his eyebrows and his head.




         The Mother testified that she had intended to get

her name on the lease of the apartment she lived in, while

admitting that she had lived at as many as nine different

addresses in six years and had been sued for eviction three


                                                                   Page 6
times.     In response to the Father’s concern that she did not

have a car, she stated that she had purchased a car.     She

admitted that she got married just before her appearance in

Court for the change of custody hearing and that her husband

had an inconsistent work history.




            The Mother further admitted to a thirteen-year

history of using marijuana.     She also admitted that when Joey

and Mandy were younger she left them home alone with a man she

had known only a couple of weeks and that Mandy was sexually

abused by the man.




            Mother testified that if Joey smoked cigarettes in

her home, she was not there when it happened.     She stated that

she did not smoke marijuana in front of Joey, but did admit

that he may have walked by the room she was in while she was

smoking it.      She further stated that if Joey used marijuana

at her home, she would drug test him frequently and would get

him counseling.     However, she admitted that she had never

taken Joey for a drug test or for counseling.




            Witnesses other than the parties testified as

follows:



                             LISA BARNEY




                                                                    Page 7
           She is a friend of Joey’s.   She was frequently in

the home of the Mother and that she had seen the Mother smoke

marijuana about every weekend and that Joey was present during

this time.     She had seen Joey smoke cigarettes in front of the

Mother.      The Mother had allowed her to spend the night at her

home while Joey was there and that she and Joey had sexual

relations in the Mother’s home.




                     JOHNNY MYERS, BY DEPOSITION

             Johnny Myers, the husband of the Mother, was

unemployed at the time of his deposition on June 4, 1998.       He

acknowledged that he had earned $5,842 in 1995, $13,655 in

1996, and $1,738 in 1997.     He did not have a driver’s license

and had not had a valid driver’s license for over two years.




           He and the Mother had lived together for

approximately four years and did not get married until she was

scheduled to appear in court on the petition to change

custody.     He had seen the Mother smoke marijuana on more than

one occasion in their home and within the last year, stating

that she would smoke about once a month.     He acknowledged that

he had seen Joey smoke cigarettes and that the Mother had

caught Joey smoking cigarettes.




           He and the Mother had lived with his brother, Thomas



                                                                     Page 8
Myers, for about a year.   He identified eight addresses at

which the Mother had resided during the last five years.        When

Joey was at the residence, he slept in the family room.

Furthermore, he believed Joey was able to supervise himself

and thus, could be left alone in the evening.



                  THOMAS MYERS, BY DEPOSITION

         The Mother had resided with Thomas Myers for

approximately one year at the time of the trial.    His

daughter, Erin, had also lived in the home, and she attended

only thirty days of school the previous year.    Her boyfriend,

Devon, had been suspended from school under the zero tolerance

program for having marijuana and a knife in his car at school.

Devon had spent the night in the home with Erin.    Thomas Myers

had seen the Mother smoke marijuana in the home more than

once, and Johnny Myers had also smoked marijuana.    He had seen

Joey smoke cigarettes in the home.




         The Trial Court entered a Memorandum Opinion and

Parenting Plan on August 3, 1998.    The Court noted that the

guardian ad litem recommended that Joey live with his Mother

during the week and his Father on the weekends because that is

a time “when he is most prone to get into trouble.”       The

Court set out a list of guidelines in the parenting plan,

which included maintaining a minimum grade point average of

80; participating in court-ordered drug screenings; attending

school everyday; showing respect to his teachers, parents, and



                                                                       Page 9
stepparents; observing a curfew; refraining from smoking

cigarettes; and not altering his body with tattoos or body

piercing.    If the guidelines were not met, the Court stated

that the Father could file a Motion for an Immediate Change of

Residential Provisions.




            An order was also entered on August 3, 1998 ordering

Joey and his Mother to submit to drug screenings at the

General Sessions Probation office.




            On August 13, 1998, the Father filed a Motion to

Alter or Amend the Judgment.    Some of his allegations were

that the Court had punished him by setting the same guidelines

on the child as he had set and then placing the child with the

Mother and that the Father had been the primary caregiver.

The Father further asked the Court to make the Mother provide

proof that she had changed her employment schedule and had

added her name on the lease of the apartment in which she

resided.    The Father asked that, in the alternative, the Court

to make an immediate change of custody if any infractions

occurred in the guidelines.




            On September 25, 1998, the Father filed a Motion for

Immediate Change of Custody because the Mother failed to

appear for her drug screenings, and on October 2, 1998, the

Father filed a Motion for Immediate Change of Custody because



                                                                   Page 10
Joey had violated his curfew.    On October 7, 1998, the Court

entered an Order on the Motion to Alter or Amend the Judgment,

which left the Parenting Plan in place and ordered Joey to

follow the guidelines imposed by the Trial Court.




            On October 13, 1998, the Father filed a supplement

to his Motion for Immediate Change of Custody.    The Mother had

missed another drug screening and had failed to provide the

Court with a copy of Joey’s report card.    On October 19, 1998,

the Court filed the notices from the General Sessions

Probation office that the Mother had failed to appear for drug

screenings on two previous occasions, and on that same date,

the Court filed the results of a drug screening the Mother had

been asked to take the day she appeared in Court on the Motion

for Immediate Change of Custody.    The results from that drug

screening showed that she was under the influence of cocaine.




            The Father filed a Notice of Appeal on October 30,

1998.



            The basis of the Father’s appeal is that the Trial

Court erred in allowing the Mother to retain custody of both

children.    Specifically, the Father contends that the Trial

Court erred in not considering the Mother’s voluntary

relinquishment of custody and in entering an order reflecting

the change of custody that the parties had already implemented


                                                                   Page 11
and that the Court erred in not making an immediate change of

custody when the Mother failed to appear for drug screens as

ordered by the Court instead of the Father filing a motion.




         In a custody case, our review is de novo upon the

record accompanied by a presumption of correctness under Rule

13(d) of the Tennessee Rules of Appellate Procedure.     We must

affirm, unless the preponderance of evidence is otherwise.

Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984).    The

noncustodial parent carries the burden to prove changed

circumstances.   Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn.

Ct. App. 1991). Tennessee Code Annotated § 36-6-101(a)(1)

provides that the decree for custody “shall remain within the

control of the court and be subject to such changes or

modification as the exigencies of the case may require.”




         There is no definitive rule as to what constitutes

changed circumstances.   Dantzler v. Dantzler, 665 S.W.2d 385,

387 (Tenn. Ct. App. 1983).   “‘Changed circumstances’ includes

any material change of circumstances affecting the welfare of

the child or children including new facts or changed

conditions which could not be anticipated by the former decree.

” Dalton v. Dalton, 858 S.W.2d 324, 326 (Tenn. Ct. App. 1993)

(citation omitted).   A party’s failure to comply with a Trial

Court order regarding prohibited use of alcohol and drugs may




                                                                   Page 12
result in a change of custody.     Hooke v. Thompson, an

unreported opinion of this Court, filed in Nashville on

October 4, 1995.



          The Father has been employed for the last fifteen

years and has been remarried for the last five years.      The

record shows that the Father has had custody of his two

children for a number of years with the consent of the Mother.

The friction between the Father and Joey appears to surface

when the Father attempts to correct Joey’s errant behavior

with respect to his abuse of drugs.     One has only to look at

the procedural history of this case to see the efforts of the

Father to control his son’s behavior.     The Father has also

sought counseling for his entire family and has even required

his son to undergo drug screenings in an attempt to correct

his son’s behavior.




         The Mother, on the other hand, admits to having

smoked marijuana over a thirteen-year period, and according to

the testimony of several witnesses during the hearing, has

smoked it in the presence of Joey.    The Mother, furthermore,

has had an erratic living arrangement, having lived at

numerous addresses over a six-year period of time.     In fact,

the apartment in which she currently resides is leased to her

husband’s brother, Thomas Myers.      Furthermore, the record

shows that Joey, while living with his Mother, did not have a

bedroom in which to sleep, but slept instead in the family



                                                                  Page 13
room.   The record further shows that Joey has been allowed to

smoke cigarettes while staying with his Mother.   There was

also testimony that Joey was allowed to spend the night with

female teenager while at the Mother’s residence, and that the

two teenagers had engaged in sexual relations at the Mother’s

residence.   In addition, the Mother’s residence is frequented

by other teenagers who would provide a bad influence on Joey.


          Finally, we are most troubled by the Mother’s

continued drug abuse.   We note that the Mother and Joey both

have failed to appear for court-ordered drug screenings, and

on one occasion when the Mother was tested, the test showed

she was under the influence of cocaine.




          We believe that there has been a sufficient change

in circumstances established by a preponderance of the

evidence to warrant a change in the custody arrangements.      The

Father can provide a stable home environment for both Mandy

and Joey, and the record reveals that the Father has never

attempted to keep the children from visiting with the Mother.




          Under Tennessee Code Annotated § 36-5-103(c), the

prevailing party in an action for a change of custody may

receive attorney’s fees.   In light of our decision to award

custody of both children to the Father, the Father is awarded

his attorney’s fees.




                                                                     Page 14
          Based on the foregoing, we reverse the judgment of

the Trial Court and award sole custody of both children to the

Father and remand to the Trial Court for imposition of a

supervised visitation plan for both children with the Mother.

The Father is awarded his attorney’s fees, the amount of which

will be determined by the Trial Court upon remand.   The case

is accordingly remanded to the Trial Court for imposition of a

supervised visitation plan, awarding of attorney’s fees and

collection of costs below, which are, as are costs of appeal,

adjudged against the Mother.



_________________________

                                      Houston M. Goddard, P.J.




CONCUR:




_________________________

Herschel P. Franks, J.




_________________________

William B. Cain, J.



                                                                 Page 15
