Arnold v. Arnold

774 S.W.2d 613, 1989 Tenn. App. LEXIS 251
CourtCourt of Appeals of Tennessee
DecidedMarch 31, 1989
StatusPublished
Cited by11 cases

This text of 774 S.W.2d 613 (Arnold v. Arnold) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnold v. Arnold, 774 S.W.2d 613, 1989 Tenn. App. LEXIS 251 (Tenn. Ct. App. 1989).

Opinion

OPINION

TODD, Presiding Judge.

The plaintiff, Karyl Ann Fraley Arnold, has appealed from a post-divorce decree order entered by the Trial Court on July 15, 1988, changing custody of the minor child of the parties from the plaintiff-mother to the defendant-father.

Appellant presents two issues relative to the said order, but both assert error in the change of custody.

First, appellant asserts that there is no material evidence to support a finding that the best interests of the child would be served by the change in custody.

Secondly, appellant asserts that there is no evidence of change of circumstances to justify the change in custody.

Appellee complains that a large part of the evidence relates to events prior to May 1, 1988, the date of the last previous order in the case. It appears that an order was entered on May 12, 1986, following a hearing on May 1, 1986, but this order does not relate to custody.

In considering change of custody, a court must determine what, if any changes in circumstances have occurred since the last custody order. Where the record of the former custody hearing is not available, it is usually necessary to show the circumstances in existence at the former hearing in order to establish a change of circumstances since said hearing. For the purpose of the determination of change in circumstances, the evidence of former circumstances is not only admissible but usually necessary.

The history of this case is lengthy, but it must be considered in order to properly evaluate the judgment under review.

On August 11, 1980, an order was entered granting plaintiff an absolute divorce; and the custody of the child of the parties “to be born in or about September, 1980,” was committed to plaintiff with right of visitation reserved to the defendant while sober and conducting himself in a safe manner. Defendant was ordered to pay $52.50 per week child support. Defendant was permanently enjoined from coming about plaintiff or her family except in visitation as permitted in the order.

On November 7, 1980, defendant filed a petition for contempt for refusal of visitation and for an order requiring that the birth certificate of the child be amended to change the last name of the child to Arnold.

On December 1, 1980, the Trial Court entered an order stating that the petition to enforce visitation was found to be “with merit” and ordering visitation in the home of plaintiff from 5:00 p.m. to 6:30 p.m. on November 24, 25, 26 and 27, 1980. The order stated further:

It appearing that the petitioner (defendant) is leaving the State of Tennessee the night of November 27, 1980, and is entering the Navy on December 1, 1980. Subsequently, when the child is of sufficient age, this Court will determine further visitation outside of the plaintiff/mother’s home.

On December 10, 1980, defendant filed a petition requesting that child support be set “commensurate with the rate of pay which he will receive in the Navy.”

On January 19, 1981, the Trial Court entered an order stating that defendant’s motion to set visitation “by agreement of plaintiff when he becomes aware of leave time” was well taken and ordering the case continued “until such time as defendant can notify the parties and the Court of his designated leave time in advance of said leave time.”

On September 30, 1981, plaintiff filed a “Supplemental answer and counterclaim” asserting that no child support had been paid by defendant or by the U.S. Navy, and that a total of $5,359.52 was due as a result [615]*615of previous orders of the Court. A finding of contempt was requested.

On July 2, 1982, the Trial Court entered the following order:

This cause is dismissed by the Court for lack of prosecution and the costs are taxed equally to the parties.

On February 4, 1986, the defendant filed a petition to set visitation. The plaintiff answered, consenting to visitation in her presence “until such time as the minor child establishes a relationship with the father”. By counterclaim, the plaintiff asserted an arrearage of $4,943.16 in support payments and prayed for a judgment of contempt. The counterclaim was amended to $5,943.16.

On May 1, 1986, a hearing was held on the petition for visitation at the conclusion of which the Trial Court stated:

THE COURT: I want to do what’s best for the child. As I have said many times, these people are no longer husband and wife but they are still mother and father. I want to do what is best for the child and I want to make the whole transition just as easy as I can.
I have got an indication, Ms. Fraley, that you and/or your family are going to do everything you can to make this transition as long and as unpleasant on him as you can. Now, I want to impress upon you that making it unpleasant on him is going to make it unpleasant on the child. You might as well get your mind set and your thoughts in line to accept the fact that this child is going to spend some overnight time with her father.
Now, I am going to bear with you for a reasonable length of time. If I get the idea that you’re dragging your feet or slow walking the whole situation, then that’s going to come to a sudden change and there’s going to be a very quick lengthy period of overnight custodial visitation with this child’s father. Now, don’t pull my leg about it. I think you have been unreasonable.
I am impressed by both of these parties favorably in some respect and unfavorably in others as to both of them. I just want this known that it’s coming down. Maybe a transition period beyond what has already taken place may be helpful. I don’t know that I can order anything any better than these McDonald’s visits or the public park situation.
You bring family and allies and cohorts and troops to back up your frame of mind and it’s going to create a situation as far as both of you are concerned and it’s not going to be conducive to this father getting to know this child. Make up your mind, Ms. Fraley. It’s going to be your way for a little while. When I see that you’re not going to be reasonable about it — and I don’t think you have so far — it’s going to be my way.
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THE COURT: At any rate, I don’t want anyone besides this mother and father in the immediate presence of this visitation where that child can be affected or see the other individuals. If you want to spy with a pair of field glasses on top of a building 300 yards away, Ms. Fraley, that’s fine, but you keep your family out of this and you keep yours out of it. You two are the parents of this child and I am going to let the transition take place along those lines.
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THE COURT: I have raised two children. I could make a five year old do anything — maybe not make them like it, but I could make them do anything I wanted them to do and I expect the parents to do that. I’ve done it and I expect these parents to do that.
Now, let me tell you something about these parties. I am impressed with his desire to see the child and her desire to protect the child favorably. I am impressed unfavorably with what I think is an unreasonable attitude on her part concerning the father spending some time with the child.

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Cite This Page — Counsel Stack

Bluebook (online)
774 S.W.2d 613, 1989 Tenn. App. LEXIS 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-v-arnold-tennctapp-1989.