IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON
CINDY L. STUBBS, ) )
VS. Plaintiff/Appellee, ) Obion Chancery No. 18-737 ) ) Appeal No. 02A01-9703-CH-00050 FILED ) November 24, 1997 WOODROW W. STUBBS, III, ) ) Cecil Crowson, Jr. Defendant/Appellant. ) Appellate C ourt Clerk
APPEAL FROM THE CHANCERY COURT OF OBION COUNTY AT UNION CITY, TENNESSEE THE HONORABLE WILLIAM MICHAEL MALOAN, CHANCELLOR
STEPHEN C. CROFFORD Nashville, Tennessee Attorney for Appellant
BRUCE MOSS CONLEY CAMPBELL MOSS SMITH Union City, Tennessee Attorney for Appellee
AFFIRMED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J. Plaintiff, Woodrow Wilson Stubbs III (“Father”), appeals the trial court’s order in favor of Cindy Stubbs (“Mother”) dismissing his petition to change custody. For reasons
hereinafter stated, we affirm the trial court’s judgment and remand to the trial court for a
determination of the amount of attorney’s fees to award Mother as necessitated by this
appeal.
FACTS
On September 3, 1996, Father filed a petition to change custody and a temporary
restraining order. Thereafter, on September 17, 1996, Mother filed a response to the
petition. This cause came to trial on September 24, 1996, in which, the trial court
rescinded the temporary restraining order and dismissed Father’s petition to change
custody.
Mother and Father were married in July, 1990 and were cohabitating in Florida as
of February 1994. There are two children of the marriage--Cody, age 5, and Savannah,
age 3. Mother and the two children moved to Union City, Tennessee, in February 1994.
Mother filed for divorce in April 1995. The final decree of divorce was granted December
21, 1995. Mother was granted custody of the children by virtue of a Marital Dissolution
Agreement. Father remained in Florida.
On August 10,1996, Mother contacted Father by placing a call to Father’s fiancé,
Robin Beach ( “Beach”) Mother asked Beach if Father would come get the children and
enroll them in school. There is some dispute as to when and if the children were to be
returned. Mother contends that she told Father and Beach that the children’s stay would
be for two weeks or a month at the most. Beach contends that Mother made no mention
of the length of the stay. Beach further asserts that Mother stated that she wanted the
children to live with Father for a while. Thereafter, Father drove to Tennessee to pick up
the children. Subsequently, Father sought to have custody of the children changed from
Mother to himself.
2 During this time frame, Mother was seeing a psychiatrist for problems with bulimia
and depression. Mother was taking various prescribed medications from various doctors
such as hydrocodone, depakote, prozac, diazepam, and butalbital/APAP/Caffeine. Father
contends the medication has affected Mother’s ability to take care of the children. Mother
admitted that a certain medication, depakote, was making her sleep but, otherwise, denies
that her medication interferes with her ability to care for the children in any way. Mother
testified that she discontinued her usage of depakote.
Father tendered various depositions and witnesses to establish that Mother was not
properly taking care of the children. Father’s sister and brother-in-law testified, via
deposition, that, on one occasion while they were picking up the children for a visit, Mother
was “high,” “groggy,” and “stumbling.” Father’s sister stated that the children were
physically dirty, and that Cody was wearing cowboy boots with no socks and had terrible
blisters on his feet. Moreover, she stated that there were no shoes in Mother’s house for
Savannah. Father’s mother testified that she had visited several times in the home of
Mother and that it was unkept and in want of food. Father’s father testified that sometimes
Mother’s house was clean and other times it was not.
Several witnesses testified on Mother’s behalf. The Central Elementary School
Principal, Joyce Stephens, testified through stipulated trial exhibit that Mother enrolled
Cody in kindergarten on March 5, 1996, attended registration night on August 19, 1996,
and attended parent night on August 29, 1996. Furthermore, Ms. Stephens was told by
Mother that Cody would return to Tennessee and be in school on September 16, 1996.
Nadine Lyons, Mother’s mother, testified that she had seen the children three to four
times per week and witnessed no deficiencies in the care that Mother was giving to the
children. Ms. Lyons stated that the children had ample food and clothing and that Mother
was able to take care of them.
Vicky Delassus, a friend of Mother’s for eighteen years who recently moved back
3 to Union City, testified that she had been around Mother several times over the last few
months preceding this cause and that the children were well-behaved, well-nourished, and
clean. Ms. Delassus stated that the house was not dirty, the floors were clean, and the
beds were made.
Susan McManus, a friend and former babysitter, testified that she has been around
Mother and the children weekly for the last two years and that the children were full of
energy, playful, well-behaved, lovable, and wonderful. She further stated that the children
never seemed undernourished or inadequately clothed.
Annette Voker, a friend of Mother’s for thirteen years, testified that she had seen
Mother and the children once a week for the last year preceding this cause. She described
the children as well taken care of, happy, normal, typical children. She stated that the
children’s clothing was adequate and the home not filthy or strewn.
The trial court found that there was no firm agreement as to the children going to
Florida to live or visit. Further, the trial court found that there was not sufficient evidence
to warrant a change in custody. Specifically, the trial court found that Father knew what
Mother was like, and agreed at the time of the divorce that Mother was to have custody of
the children. The trial court stated that Mother’s present situation, while not commendable,
was nothing that was unforeseeable or that did not exist at the time of the divorce.
Because of the above findings, the trial court rescinded the temporary restraining order and
dismissed Father’s petition for change of custody. This appeal ensued.
LAW AND DISCUSSION
The paramount consideration in a custody proceeding is the best interest of the
child. When a petition to change custody is brought before the trial court, custody should
not be altered for the well-being or gratification of the either parent or to castigate either
4 parent, but to foster and preserve the welfare of the child(ren). A change in custody is only
warranted where continuation of the adjudicated custody would pose substantial harm to
the child(ren). As in all non-jury cases, a trial court’s determination of what circumstances
warrant a grant or denial of a petition to change custody is reviewed by us de novo;
however, the record developed below comes to us accompanied by a presumption of
correctness that we must honor unless the evidence preponderates against the findings
of fact supporting the trial court’s judgment. Hass v. Knighton, 676 S.W.2d 554, 555
(Tenn. 1984).
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IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON
CINDY L. STUBBS, ) )
VS. Plaintiff/Appellee, ) Obion Chancery No. 18-737 ) ) Appeal No. 02A01-9703-CH-00050 FILED ) November 24, 1997 WOODROW W. STUBBS, III, ) ) Cecil Crowson, Jr. Defendant/Appellant. ) Appellate C ourt Clerk
APPEAL FROM THE CHANCERY COURT OF OBION COUNTY AT UNION CITY, TENNESSEE THE HONORABLE WILLIAM MICHAEL MALOAN, CHANCELLOR
STEPHEN C. CROFFORD Nashville, Tennessee Attorney for Appellant
BRUCE MOSS CONLEY CAMPBELL MOSS SMITH Union City, Tennessee Attorney for Appellee
AFFIRMED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J. Plaintiff, Woodrow Wilson Stubbs III (“Father”), appeals the trial court’s order in favor of Cindy Stubbs (“Mother”) dismissing his petition to change custody. For reasons
hereinafter stated, we affirm the trial court’s judgment and remand to the trial court for a
determination of the amount of attorney’s fees to award Mother as necessitated by this
appeal.
FACTS
On September 3, 1996, Father filed a petition to change custody and a temporary
restraining order. Thereafter, on September 17, 1996, Mother filed a response to the
petition. This cause came to trial on September 24, 1996, in which, the trial court
rescinded the temporary restraining order and dismissed Father’s petition to change
custody.
Mother and Father were married in July, 1990 and were cohabitating in Florida as
of February 1994. There are two children of the marriage--Cody, age 5, and Savannah,
age 3. Mother and the two children moved to Union City, Tennessee, in February 1994.
Mother filed for divorce in April 1995. The final decree of divorce was granted December
21, 1995. Mother was granted custody of the children by virtue of a Marital Dissolution
Agreement. Father remained in Florida.
On August 10,1996, Mother contacted Father by placing a call to Father’s fiancé,
Robin Beach ( “Beach”) Mother asked Beach if Father would come get the children and
enroll them in school. There is some dispute as to when and if the children were to be
returned. Mother contends that she told Father and Beach that the children’s stay would
be for two weeks or a month at the most. Beach contends that Mother made no mention
of the length of the stay. Beach further asserts that Mother stated that she wanted the
children to live with Father for a while. Thereafter, Father drove to Tennessee to pick up
the children. Subsequently, Father sought to have custody of the children changed from
Mother to himself.
2 During this time frame, Mother was seeing a psychiatrist for problems with bulimia
and depression. Mother was taking various prescribed medications from various doctors
such as hydrocodone, depakote, prozac, diazepam, and butalbital/APAP/Caffeine. Father
contends the medication has affected Mother’s ability to take care of the children. Mother
admitted that a certain medication, depakote, was making her sleep but, otherwise, denies
that her medication interferes with her ability to care for the children in any way. Mother
testified that she discontinued her usage of depakote.
Father tendered various depositions and witnesses to establish that Mother was not
properly taking care of the children. Father’s sister and brother-in-law testified, via
deposition, that, on one occasion while they were picking up the children for a visit, Mother
was “high,” “groggy,” and “stumbling.” Father’s sister stated that the children were
physically dirty, and that Cody was wearing cowboy boots with no socks and had terrible
blisters on his feet. Moreover, she stated that there were no shoes in Mother’s house for
Savannah. Father’s mother testified that she had visited several times in the home of
Mother and that it was unkept and in want of food. Father’s father testified that sometimes
Mother’s house was clean and other times it was not.
Several witnesses testified on Mother’s behalf. The Central Elementary School
Principal, Joyce Stephens, testified through stipulated trial exhibit that Mother enrolled
Cody in kindergarten on March 5, 1996, attended registration night on August 19, 1996,
and attended parent night on August 29, 1996. Furthermore, Ms. Stephens was told by
Mother that Cody would return to Tennessee and be in school on September 16, 1996.
Nadine Lyons, Mother’s mother, testified that she had seen the children three to four
times per week and witnessed no deficiencies in the care that Mother was giving to the
children. Ms. Lyons stated that the children had ample food and clothing and that Mother
was able to take care of them.
Vicky Delassus, a friend of Mother’s for eighteen years who recently moved back
3 to Union City, testified that she had been around Mother several times over the last few
months preceding this cause and that the children were well-behaved, well-nourished, and
clean. Ms. Delassus stated that the house was not dirty, the floors were clean, and the
beds were made.
Susan McManus, a friend and former babysitter, testified that she has been around
Mother and the children weekly for the last two years and that the children were full of
energy, playful, well-behaved, lovable, and wonderful. She further stated that the children
never seemed undernourished or inadequately clothed.
Annette Voker, a friend of Mother’s for thirteen years, testified that she had seen
Mother and the children once a week for the last year preceding this cause. She described
the children as well taken care of, happy, normal, typical children. She stated that the
children’s clothing was adequate and the home not filthy or strewn.
The trial court found that there was no firm agreement as to the children going to
Florida to live or visit. Further, the trial court found that there was not sufficient evidence
to warrant a change in custody. Specifically, the trial court found that Father knew what
Mother was like, and agreed at the time of the divorce that Mother was to have custody of
the children. The trial court stated that Mother’s present situation, while not commendable,
was nothing that was unforeseeable or that did not exist at the time of the divorce.
Because of the above findings, the trial court rescinded the temporary restraining order and
dismissed Father’s petition for change of custody. This appeal ensued.
LAW AND DISCUSSION
The paramount consideration in a custody proceeding is the best interest of the
child. When a petition to change custody is brought before the trial court, custody should
not be altered for the well-being or gratification of the either parent or to castigate either
4 parent, but to foster and preserve the welfare of the child(ren). A change in custody is only
warranted where continuation of the adjudicated custody would pose substantial harm to
the child(ren). As in all non-jury cases, a trial court’s determination of what circumstances
warrant a grant or denial of a petition to change custody is reviewed by us de novo;
however, the record developed below comes to us accompanied by a presumption of
correctness that we must honor unless the evidence preponderates against the findings
of fact supporting the trial court’s judgment. Hass v. Knighton, 676 S.W.2d 554, 555
(Tenn. 1984). In making our de novo review, we do not pass on the credibility of
witnesses. Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991). Credibility
is an issue for the trial court who saw and heard the witnesses testify and is, therefore, in
the premier position to determine credibility. Id.
In order to justify a change in a custodial arrangement, there must be “such a
change in circumstances as will directly affect the welfare of the minor.” Dailey v. Dailey,
635 S.W.2d 391, 393 (Tenn. Ct. App. 1981). The decision of the trial 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. Wall v. Wall, 907 S.W.2d 829, 834
(Tenn. Ct. App. 1995). Custody is not changed because one parent can furnish a more
suitable or pleasant environment than the other, but where continuation of the adjudicated
custody will substantially harm the child. Id. This Court in Musselman v. Acuff, 826
S.W.2d 920, 923 (Tenn. Ct. App. 1991) quoted the Mississippi Supreme Court which
provided:
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.
Essential to Father’s petition, although certainly not the only basis, was Mother’s
psychiatric difficulties and her alleged abuse of medication. Father relied heavily on the
testimony of Cynthia Hodges and Howard Schwartz, Father’s sister and brother-in-law, and
upon the prescription records of Mother. Ms. Hodges and Mr. Schwartz testimony was
5 received by the trial court in the form of depositions taken on September 11, 1996. These
depositions were primarily concerned with Mother’s mental state and the children’s physical
conditions when Ms. Hodges and Mr. Schwartz went to pick up the children for a visit in
August of 1996. The evidence rendered from these two depositions was acutely disputed
by evidence propounded by Mother. The testimony of Ms. Hodges and Mr. Schwartz was
circumstantial in nature and, clearly, did not impress the trial court sufficiently to merit a
change in custody.
Also essential to Father’s petition is his assertion that Mother requested that the
children live with Father’s family in Florida because Mother was experiencing difficulty in
properly caring for the children. We find the record devoid of such evidence. What the
evidence does show is that there was no absolute agreement between Father and Mother
as to whether the children’s stay in Florida was merely a visit or a change in custody. The
evidence from Father and Mother are adverse to each other on this point. The trial court
heard testimony on this point and found that the parties had not come to a “firm
agreement.” We agree.
We have carefully reviewed the evidence in this case. The burden to prove a
change in circumstances resulting in a substantial harm to the child(ren) is upon the non-
custodial parent. The testimony and depositions tending to support Father’s petition for
change of custody were sharply disputed by the testimony of Mother and the witnesses
presented on her behalf. These conflicts not only required the trial court to evaluate the
credibility of the witnesses who appeared before it at trial or in the form of depositions but
also to determine whether or not Father carried his burden of proof. The trial court
resolved these issues in favor of Mother. We cannot say that the trial court was wrong in
its assessment of the witnesses’ credibility. As we have previously indicated, credibility of
the various witnesses is for the trial court to determine.
As mentioned above, the decision of the trial court is not changeable unless a
change in circumstances occurs sufficient to cause substantial harm to the children. After
6 a careful examination of the record, we find that Father failed to carry his burden of proof
in establishing a change in circumstances which would threaten substantial harm to the
children. Considering the importance of credibility in this cause, we cannot say that the
evidence preponderates against the trial court’s findings of fact supporting its conclusion
that there had not been a sufficient change in circumstances to justify a change in custody.
We therefore affirm the judgment of the trial court.
Concerning attorney fees requested by Mother, T.C.A. § 36-5-103(c) governs
awards of attorney fees in proceedings relating to child custody. This statute provides that
a spouse may recover reasonable attorney fees incurred in any action concerning the
adjudication of the custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing before whom such action or proceeding
is pending, in the discretion of such court.
In the instant case, Father has instigated actions both at the trial and appellate
levels. Father’s petition to change custody has proven unsuccessful both at trial and on
this appeal. As a result, Father has necessitated Mother’s attorney’s fees. It is within our
discretion to grant or deny Mother’s request for attorney’s fees necessitated by this appeal.
We find that an award of attorney’s fees necessitated by this appeal is just and equitable.
We remand this issue to the trial court to determine the amount of attorney’s fees to award
Mother. In making this determination, we emphasize that the award is only for attorney’s
fees necessitated by this appeal.
In light of the foregoing analysis, we hereby affirm the judgment of the trial court and
remand to the trial court to determine the amount of attorney’s fees to which Mother is
entitled on appeal. Costs of appeal are taxed to the appellant, for which execution may
issue if necessary.
HIGHERS, J.
7 CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.