Britton v. Britton

• Court: Court of Appeals of Tennessee
• Decided: August 18, 1998
• Docket: 03A01-9804-CV-00143
• Status: Published

Opinion

IN THE COURT OF APPEALS

AT KNOXVILLE FILED August 18, 1998

WILLIAM ROSS ALLEN BRITTON, ) C/A NO. 03A01-9804-CV-00143 Jr. Cecil Crowson, ) Appellate C ourt Clerk Plaintiff-Appellee, ) ) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) GREENE COUNTY CIRCUIT COURT ) ) ) ) PENNY JEAN BRITTON, ) ) HONORABLE KINDALL T. LAWSON, Defendant-Appellant. ) JUDGE

For Appellant For Appellee

DAVID L. LEONARD K. KIDWELL KING Leonard & Kershaw King & King Greeneville, Tennessee Greeneville, Tennessee

O P I N IO N

AFFIRMED AND REMANDED Susano, J.

1 In this post-divorce proceeding, the trial court

modified the parties’ 1994 divorce judgment by awarding William

Ross Allen Britton (“Father”) custody of Cody Allen Britton (DOB:

June 21, 1991) and Mariah Cheyenne Britton (DOB: January 27,

1993). The divorce judgment had placed the children’s custody

with Penny Jean Britton (“Mother”) based upon the parties’

marital dissolution agreement. Mother appealed the modification

order, contending that there had not been a change in

circumstances since the divorce such as to warrant a change of

custody.

Since this is a non-jury case, we must decide if the

evidence preponderates against the trial court’s decision to

change custody. Rule 13(d), T.R.A.P. See also Hass v. Knighton,

676 S.W.2d 554, 555 (Tenn. 1984).

Father’s petition to change custody addressed itself to

the trial court’s wide and sound discretion. Brumit v. Brumit,

948 S.W.2d 739, 740 (Tenn.App. 1997). “[W]e will not tamper with

that discretion unless the facts demonstrate that the trier of

fact has abused his or her discretion.” Id.

In order to justify a change of custody, the trial

court must find a material change in circumstances such “that the

welfare of the child requires a change of custody.” Griffin v.

Stone, 834 S.W.2d 300, 301-02 (Tenn.App. 1992). The best

interest of the child is the paramount consideration. Brumit at

740.

2 Father’s petition is based primarily on Mother’s

relationship with her boyfriend, Michael Dunn. There is

uncontradicted evidence that the police were called to Mother’s

residence on two separate occasions to investigate an alleged

domestic dispute involving Mother and Mr. Dunn. The latter two

individuals testified that on each occasion they were arguing

loudly, and nothing more. Mr. Dunn, in alluding to the first

incident, which occurred a “year or so” before the change of

custody hearing, said that they “got a little loud.” He blamed

the later June 23, 1997, incident on a “discussion that got out

of hand.” Both he and Mother acknowledged that he grabbed her in

some fashion on this second occasion, but both denied that he

struck her then or at any other time.

The evidence is clear that the June 23, 1997, incident

prompted Mother’s son, Cody, who was home at the time, to run to

a neighbor’s house for help. That neighbor called 911, resulting

in the visit by the police. There is also proof that on the

Monday following the last incident, when Mother went to pick up

her children following their weekend visitation with Father, Cody

was “terrified” at the thought of going home with his mother.

Father’s present wife testified that she had observed

Mother with black eyes on three separate occasions1 -- one being

when Mother tried to pick up the children shortly following the

June 23, 1997, incident. She testified, with respect to one of

1 Mother and Mr. Dunn each testified that Mother had suffered a black eye in a “dune buggy” accident. They denied that Mr. Dunn had ever caused Mother to have a black eye.

3 the other black eyes, that Mother had indicated that “me and Mike

got into a fight.”

The credibility of the witnesses was very much at issue

in this case. The trial court had to decide which of the

witnesses were credible, and which were not. He resolved these

matters in favor of a finding that Mother’s relationship with Mr.

Dunn was a change in circumstances that warranted a change of

custody. The issue of credibility is primarily for the trial

court. Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488,

490 (Tenn.App. 1974). The facts believed by the trial court

showed a propensity toward verbal and physical violence in

Mother’s relationship with Mr. Dunn, and a resulting adverse

effect on Cody, if not his younger sister.

In view of the trial court’s explicit and implicit

credibility determinations, we cannot say that the evidence

preponderates against the trial court’s judgment changing

custody. It results that the judgment is affirmed with costs on

appeal taxed to the appellant. This case is remanded for

enforcement of the judgment and collection of costs assessed

below, all pursuant to applicable law.

__________________________ Charles D. Susano, Jr., J.

CONCUR:

________________________ Houston M. Goddard, P.J.

________________________ Herschel P. Franks, J.