                     IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT NASHVILLE
                  ______________________________________________

CARL WILLIAM STROUD, JR.,

        Plaintiff-Appellee,
                                                        Giles Chancery No. 8611
Vs.                                                     C.A. No. 01A01-9607-CH-00291

SANDRA FAYE STROUD,

      Defendant-Appellant.
____________________________________________________________________________

                    FROM THE GILES COUNTY CHANCERY COURT
                  THE HONORABLE JIM T. HAMILTON, CHANCELLOR




                        Paul Bates; Boston, Bates & Holt of Lawrenceburg
                                          For Appellee

                                  Robert D. Massey of Pulaski
                                         For Appellant




                                VACATED AND REMANDED

                                          Opinion filed:



                                      FILED
                                          May 21, 1997

                                     Cecil W. Crowson
                                    Appellate Court Clerk


                                                                W. FRANK CRAWFORD,
                                                                PRESIDING JUDGE, W.S.




CONCUR:

ALAN E. HIGHERS, JUDGE

HOLLY KIRBY LILLARD, JUDGE
    This is a child custody case. Defendant, Sandra Faye Stroud (Mother), appeals from the

order of the trial court granting the petition to change custody filed by the plaintiff, Carl William

Stroud, Jr. (Father).
       The parties were divorced by final decree entered July 11, 1994. The trial court granted

Mother an absolute divorce from Father on the grounds of inappropriate marital conduct and

granted Mother custody of the parties’ minor child, Heath Elvin Stroud. At the time, Heath

Stroud was three years old. The trial court ordered Father to pay $65.00 per week in child

support, but reserved judgment on visitation privileges for Father.

       On July 12, 1995, Father filed a petition seeking to change custody from Mother to

Father. In the petition, Father alleges that Mother contacted him in May of 1995 because she

could not discipline Heath, and as a result, Heath lived with Father from May 1995 until July 9,

1995. Father alleges that Heath had repetitive sinus infections and terrible dental problems and

was unruly with no social skills, but that Heath underwent a complete turnaround during the time

he lived with Father. Father alleges that there has been a material change in circumstances and

that the best interests of Heath dictate a change in custody.

       On July 19 and 20, 1995, the trial court held a pendente lite hearing and heard the

following evidence:

       Father is an admitted alcoholic, but quit drinking five months before the pendente lite

hearing. Father has not paid the complete amount of the ordered child support, but he entered

into an agreement with Mother concerning the arrearage allowing her to apply his share of the

marital property to the arrearage. Father lives out of wedlock with his girlfriend, Elsie Bowles,

in Morristown, Tennessee. Father is an automobile mechanic in Morristown making $250.00

per week.

       Father testified that Mother called him because Heath was unruly and needed some

guidance. Heath lived with Father from May 1995 until July 1995 in Morristown. Father

testified that Heath had dental problems and frequent nose bleeds. He stated the Heath was

unruly, timid, and scared of policemen when he first moved to Morristown. In Morristown,

Heath has his own bedroom. Father testified that Mother’s house was “nasty” and that she had

a rat problem. He stated that she has sewage running in the front yard and that Mother is unfit

to have custody of Heath because of the condition of her house. However, he admitted that the

house was in the same condition when he lived there. He testified that Mother lived with her

boyfriend and that they slept together in the same bed.

       Father presented evidence that impeached Mother’s credibility and corroborated his own


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testimony. Seth Doty, a former employer of Mother, testified that Mother was a manager of

rental properties for his company for three years. Doty stated that Mother collected $1,700.00

in rental charges and did not turn it in to the company. He stated that Mother was not truthful

with him or with her tenants and that she kept the tenants’ deposits.

       Elsie Bowles, Father’s girlfriend, testified that Father has not had a drink in five months

and that he is now a hardworking man. She stated that she stays at home and takes care of the

children, including her eighteen-year-old son who has cerebral palsy. Ms. Bowles testified that

when Heath lived with them from May to July 1995, he had poor manners and misbehaved and

that when he left, he was a well-liked, well-disciplined child. She admitted that Father lives in

her home, that she has the power to kick him out at any time, and that Father would have a hard

time taking care of Heath if she kicked him out of her home. However, she testified that she

would call Mother if Father ever left her home or if she ever made Father leave her home. She

claims that she and Father would like to be married, but that if they got married she would no

longer receive social security checks to pay for the care of her disabled son.

       Father entered a videotape into evidence that he claimed he found in a dresser



drawer of the bedroom suite after he moved from Pulaski, Tennessee to Morristown. Father

testified that he did not make the tape and did not know of its existence prior to the divorce. On

the other hand, Mother testified that Father filmed the videotape and that he was drinking at the

time. She claims that he indicated what he wanted her to do, but that his voice never is heard on

the videotape. She said that he kept the videotape in his underwear drawer in their dresser in the

bedroom. She also stated that Father threatened her with the tape. She claims that Heath was

never present during the filming of the video, but that he walked through the room once and was

in another room. However, she stated that Heath has never seen her engage in any lewd

behavior.

       Mother lives in Pulaski, Tennessee and, at the time of the pendente lite hearing, worked

third-shift at a plant, which required her to place Heath in child care from 10:30 p.m. until 12:00

p.m. the next day. She testified that Heath was well-adjusted at the child care center and never

used foul language. Mother admitted that her boyfriend stays overnight approximately once a

week while Heath is there, but she said her boyfriend was not a regular in the house. Mother


                                                3
testified that she has wet weather springs in her yard, but not a sewage problem. She also

testified that she does not have a rat problem, but that she lives next to open fields and one time

had a field mouse in her home.

       Mother testified that the reason she let Heath live with Father from May until July 1995

was because Father was supposed to enroll Heath in a summer camp. However, Heath never

attended camp. When Father would not return Heath to Mother’s custody, she had a custodial

interference warrant issued against him.

       Mother testified that Father threatened her with a gun in front of Heath and physically

assaulted her. Because of this incident, she had an aggravated assault warrant issued against

him.

       Mother presented testimony that she was a loving mother and that Heath was happy and

in good health. She presented evidence that Heath was healthy and had normal teeth. Michelle

Chapman, Heath’s day care owner, testified that Heath was a normal child who had no

disciplinary problems. Mother also called her son-in-law, Bobby Ables, who testified that Father

told him that he (Father) made the videotape of Mother and asked Ables if he wanted to see it.

Ables testified that Heath was a normal child and that Mother’s house was clean. Angela Ables,

Bobby Ables’s wife and Mother’s daughter, testified that Father knew of the videotape before

the divorce and used it to threaten Mother.

       After the pendente lite hearing, the trial court determined that Mother had credibility

problems. The trial court also found that Mother was working third-shift and was only with

Heath from noon until 10:00 p.m. five or six days per week and that Heath spent some nights

away from home. The trial court also stated that it was impressed with Father’s rehabilitation

from alcohol abuse. The trial court concluded that Heath’s best interests dictated an award of

temporary custody to Father and found that the “totality of the evidence demonstrated clear and

convincing evidence that a change of circumstances has occurred.”

        On September 22, 1995, Mother filed an answer that denied the material allegations of

the petition. Mother claims that she let Heath live with Father from May 1995 until July 9, 1995

so that Father could reestablish a relationship with Heath. She alleges that Father used lies and

trickery to obtain her consent and that Father used this time with Heath to gain permanent

custody. She argues that Father has unclean hands and cannot recover. In addition, Mother


                                                4
alleges that Father is living with and is supported by a woman to whom he is not married and

that this situation would have an adverse effect on Heath. Finally, Mother avers that a videotape

that Father offered into evidence had been altered and had portions deleted. She alleges that

Father represented to the court that he did not make the tape and did not know of its existence

before the divorce. However, Mother claims that Father filmed the tape prior to the divorce.

       The case was heard before the chancery court, sitting without a jury, on October 9, 1995.

The trial court considered the testimony from the pendente lite hearing and also heard new

evidence:

       James Dennis Mooney, senior vice-president at Third National Bank, testified on behalf

of Mother. He stated that she had a very good reputation in the community for telling the truth.

He admitted that he only knew her through banking activities and did not know her socially.

       Dr. Charles Burger, Heath’s doctor in Pulaski, stated that Heath was in normal health

with normal hygiene. He had no reservations about Mother being the primary custodial parent.

       J.O. Scroggin, Jr. testified that he employed Mother as a secretary and bookkeeper for

his real estate business and that she had a good reputation for telling the truth. However,

Scroggin stated that Mother quit her job with his company after a disagreement about Mother’s

competing rental properties.

       Phyllis Morrow Stroud, Father’s previous wife, testified that she saw Father drunk in

June 1995 and that Father told her in June 1994 that he had a videotape that would help him get

Heath. Pamela Pridmore, Father’s stepdaughter, testified that Father told her that he had raped

Mother, that Father told her he made the videotape, that Father said the videotape was his

insurance policy and his blackmail material, and that Father had shown the videotape to her

husband and her brother. She said that she heard Father’s voice on the videotape. She also

stated that she has seen Father smoke marijuana.

       Ron Pridmore, Pamela Pridmore’s husband, testified that Father showed him the

videotape and that Father appeared on the videotape “playing with hisself [sic] in the bathroom.”

He stated that Father’s voice was on the tape and that Father told him he was going to use the

videotape to get custody of Heath.

       Mother testified again at trial and stated that her work shift had changed to second-shift,

which is 4:00 p.m. to 12:30 a.m. She also testified that Father had criminal convictions for DUI


                                               5
and public intoxication and that Father served seven years in prison for stealing cars. She

admitted that Heath’s bed is in her bedroom and that her boyfriend stays with her while Heath

is asleep in the same room. She also admitted that she had never taken Heath to the dentist.

       The trial court granted Father’s motion and changed custody from Mother to Father. In

its order, the trial court stated, “[B]ased upon the court’s observation of the demeanor of the

witness, the court has re-concluded that the defendant, Sandra Faye Stroud, has considerable

credibility problems. The court affirmatively finds that the video tape previously introduced as

evidence in this cause was made by the defendant, Sandra Faye Stroud, in the absence of Carl

William Stroud, Jr.” The trial court then said, “The court re-emphasizes its favorable impression

with the petitioner, Carl William Stroud, Jr., with regard to his having rehabilitated himself as

well as his credibility.” The trial court awarded permanent custody of Heath to Father and

awarded reasonable visitation to Mother. The trial court did not order child support payments.

       Mother appeals the judgment of the trial court and presents one issue for our review:

Whether the trial court erred by changing the custody of the parties’ minor child from Mother

to Father.

       Our review of the findings of fact by the trial court is de novo upon the record,

accompanied by a presumption of the correctness of the trial court’s findings. Unless we find

that the evidence preponderates against these findings, we must affirm, absent error of law.

T.R.A.P. 13(d). When the resolution of the issues in a case depends upon the truthfulness of

witnesses, the trial judge who has the opportunity to observe the witnesses in their manner and

demeanor while testifying is in a far better position than this Court to decide those issues. Mays

v. Brighton Bank, 832 S.W.2d 347, 351-52 (Tenn. App. 1992). The weight, faith, and credit to

be given to any witness’s testimony lie in the first instance with the trier of fact, and the

credibility accorded will be given great weight by the appellate court. Id. at 352.

       It is well-settled in this state that where a decree has been entered awarding custody of

a child, that decree is res judicata and conclusive in a subsequent application to change custody

unless there has been a material change of circumstances such that the welfare of the child

requires a change of custody. In re Parsons, 914 S.W.2d 889, 893 (Tenn. App. 1995) (citing

Long v. Long, 488 S.W.2d 729 (Tenn. App. 1972)). There is no hard and fast rule as to what

constitutes changed circumstances. Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. App.


                                                6
1983). In Wall v. Wall, 907 S.W.2d 829 (Tenn. App. 1995), this Court discussed “changed

circumstances”:

               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.

Id. at 834.

        The party seeking a change in custody has the burden of proving by the preponderance

of the evidence that a change in custody is in the child’s best interest. Musselman v. Acuff, 826

S.W.2d 920, 922 (Tenn. App. 1991). In child custody cases, the welfare and best interest of the

child is the paramount concern and the determination of the child’s best interest must turn on the

particular facts of each case. In re Parsons, 914 S.W.2d at 893. In Holloway v. Bradley, 230

S.W.2d 1003 (Tenn. 1950), the Court said:

               The determining facts in these adoption and custody cases are so
               infinite in their variety that the reported decision in one case is of
               little aid or assistance in settling the next. The supreme rule to
               which all others should yield is the welfare and best interest of the
               child.

Id. at 1006. In Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983), the Court established some

guidelines for determining the best interest of a child:

                       We adopt what we believe is a common sense approach to
               custody, one which we will call the doctrine of “comparative
               fitness.” The paramount concern in child custody cases is the
               welfare and best interest of the child. Mollish v. Mollish, 494
               S.W.2d 145, 151 (Tenn. App. 1972). There are literally
               thousands of things that must be taken into consideration in the
               lives of young children, Smith v. Smith, 188 Tenn. 430, 437, 220
               S.W.2d 627, 630 (1949), and these factors must be reviewed on
               a comparative approach:

                        Fitness for custodial responsibilities is largely a
                      comparative matter. No human being is deemed
                      perfect, hence no human can be deemed a perfectly
                      fit custodian. Necessarily, therefore, the courts
                      must determine which of two or more available
                      custodians is more or less fit than others.



                                                7
               Edwards v. Edwards, 501 S.W.2d 283, 290-91 (Tenn. App. 1973)
               (emphasis supplied.)

Bah, 668 S.W.2d at 666.

       Mother first argues that Father came into the court with “unclean hands,” and therefore,

the trial court should have rejected his petition. The doctrine of “unclean hands” does not

necessarily repel a petition regarding the welfare of a child because the welfare of the child

predominates over any offended dignity of the court. Haynes v. Haynes, 904 S.W.2d 118, 120

(Tenn. App. 1995); see also Strube v. Strube, 379 S.W.2d 44, 48 (Tenn. App. 1963). We

believe that the trial court properly allowed the hearing to proceed despite the allegations of

“unclean hands.”

       Mother also asserts that the “tender years doctrine” is applicable in this cause. The

General Assembly has addressed the “tender years doctrine”:

               It is the legislative intent that the gender of the party seeking
               custody shall not give rise to a presumption of parental fitness or
               cause a presumption in favor or against the award of custody to
               such party; provided, that in the case of a child of tender years,
               the gender of the parent may be considered by the court as a
               factor in determining custody after an examination of the fitness
               of each party seeking custody.

T.C.A. § 36-6-101(d) (1996). While the “tender years doctrine” is not a controlling factor, it is

certainly something that should be considered by the court in making an award of custody.

Malone v. Malone, 842 S.W.2d 621, 623 (Tenn. App. 1992). However, the court must still

make an examination of the fitness of each party.

       We believe that the central issue in this case is whether there has been a material change

of circumstances such that the welfare of the child requires a change of custody. See In re

Parsons, 914 S.W.2d at 893. Mother argues that there has been no material change in

circumstances that would warrant a change in custody. Father argues that circumstances have

changed in a material way concerning Mother’s work schedule, Mother’s new boyfriend,

Mother’s lack of control over Heath, and his own rehabilitation.

       Father did not present testimony concerning Mother’s work schedule at the time of the

divorce, so we cannot tell how much Mother’s work schedule has changed. However, by the

time of trial, Mother was working second-shift instead of third-shift. If anything, her work

schedule has improved.



                                               8
         Father also argues that Mother’s new boyfriend presents a material change of

circumstances. Mother admitted that her boyfriend spends the night at her home when Heath is

present, but she denied that Heath has seen them engage in any sexual activity. Mother’s

cohabitation is troubling to this Court. However, Mother’s cohabitation is only one of the factors

to consider. Musselman, 826 S.W.2d at 922. We also note that Father lives with his girlfriend

out of wedlock. We know of very few cases in this state where custody has been awarded to a

parent living with a partner out of wedlock, and we believe that neither of these situations is

ideal.

         Father claims that Mother cannot control Heath and that she requested his help, a claim

that Mother denies. Dr. Charles Burger, Heath’s pediatrician, and Michelle Chapman, the

supervisor at Heath’s day care, testified that Heath was in good health and well-behaved. We

do not believe that Father has shown a material change in circumstances on this issue.

         Father also impressed the trial court with his rehabilitation from alcoholism. Although

we believe that Father’s rehabilitation is a factor to consider, like the “tender years doctrine,” it

is not a controlling factor. The fact that the non-custodial parent has improved himself or

herself, standing alone, does not constitute such a change in circumstances that would warrant

a change in custody. Short v. Short, No. 03A01-9506-CH-00168, 1995 WL 728521, at *2

(Tenn. App. Dec. 11, 1995).             The main piece of evidence on which the parties and the

trial court focused was the videotape. At the end of the proof, counsel for Father stated, “If she

(Mother) had someone make that tape, she is an unfit mother. Anyone who would engage in that

type of behavior is unfit. If Bill Stroud (Father) took the film of her, he’s likewise unfit.” It

appears as if the trial court’s decision was mainly based upon the credibility of the parties and

the videotape. The trial court specifically found that Father did not make the videotape and that

Mother was not credible.

         The videotape shows Mother fondling and touching herself and is a shocking display of

vulgarity. We cannot condone such conduct on the part of the participants in the taped

production. However, we must disagree with the trial court’s treatment of the videotape. In the

first place, we conclude from our review of the record that the evidence preponderates against

the trial court’s finding that Father did not make the videotape. Heath appears in the tape and

is obviously three years old or less, establishing that the tape was made while the parties were


                                                 9
still married. Although the trial court felt that Mother was not credible, the trial court did not

comment on the parade of witnesses who testified that Father made the videotape, possessed the

videotape before the divorce, and bragged about using the videotape as blackmail. In the second

place, even if the trial court was correct in its conclusion that Father did not make the tape, the

tape itself does not present a material change that affects Heath’s well-being. While the tape

shows Heath walking by the camera as Mother lifts her nightgown and also shows Heath bathing

with Mother, there is nothing to indicate that he witnessed the vulgar activities depicted on the

tape. Sexual infidelity or indiscretion does not ipso facto disqualify a parent from having

custody of a child. Mimms v. Mimms, 780 S.W.2d 739, 745 (Tenn. App. 1989). This Court has

previously noted that we do not sit as moral arbiters making judgments on what is acceptable

social behavior, but we must consider a parent’s conduct to the extent that the interest of the

child is concerned. In re Parsons, 914 S.W.2d at 894. Custody may be changed if the behavior

of the custodial parent clearly posits a danger to the physical, mental, or emotional well-being

of the child. Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996). The tape in and of itself does

not pose such a danger.

       We reiterate that Heath’s best interests are the primary concern of this Court and should

also be the main focus of both Father and Mother. Unfortunately, their actions do not support

such an intention. Neither parent has demonstrated a high degree of responsibility, nor have they

shown that their interests are secondary to Heath’s. They should understand that an alternative

to parental custody is foster care if the interest of the child warrants such an action.

        From our review of the record in this case, we find that the evidence preponderates

against the trial court’s finding that there has been a material change of circumstances that

warrants a change in custody. Therefore, the order of the trial court changing custody is vacated,

and the trial court shall order that Mother cannot permit any men friends to spend the night with

her while Heath is in the home and shall in no way engage in any sexual activity while Heath is

in the home.

        We also are of the opinion that this case requires a close supervision by the court to

protect the best interest of the minor child. This case is remanded to the trial court for

instructions to refer this matter to the Tennessee Department of Human Services for full

investigation of the living arrangements of both Mother and Father and all other facts pertaining


                                                10
to their ability and willingness to care for the minor child. The trial court shall also determine

a visitation schedule for Father and shall require the Department of Human Services to monitor

the custody and visitation arrangements for an extended period of time with periodic reports to

the court. Costs of the appeal are assessed against the appellee.

                                                      _________________________________
                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




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