David Randall Safer v. Micki Jo (O'Fiel) Safer

• Court: Court of Appeals of Tennessee
• Decided: August 2, 1996
• Docket: 01A01-9601-CH-00018
• Status: Published

Opinion

DAVID RANDALL SAFER, ) ) Petitioner/Appellee, ) Appeal No. ) 01-A-01-9601-CH-00018 v. ) ) MICKI JO (O'FIEL) SAFER, ) Sumner Chancery ) No. 93D-214 Respondent/Appellant. )

FILED COURT OF APPEALS OF TENNESSEE August 2, 1996 MIDDLE SECTION AT NASHVILLE Cecil W. Crowson Appellate Court Clerk

APPEAL FROM THE CHANCERY COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE

THE HONORABLE TOM E. GRAY, CHANCELLOR

MICHAEL W. EDWARDS 177 East Main Street Hendersonville, Tennessee 37075 ATTORNEY FOR Petitioner/APPELLEE

DEBRAH K. TORMES 105 Hazel Path Mansion Hendersonville, Tennessee 37075 ATTORNEYS FOR Respondent/APPELLANT

REVERSED AND REMANDED

SAMUEL L. LEWIS, JUDGE O P I N I O N Petitioner, David Randall Safer, and respondent, Micki Jo

O'Fiel Safer, divorced in January 1994 after eleven years of

marriage. The court granted respondent the divorce on the ground

of irreconcilable differences. The parties had entered into a

Marital Dissolution Agreement ("MDA") which the Final Decree of

Divorce incorporated. The MDA provided that petitioner and

respondent would have joint custody of their two minor children,

Joseph ("Tyler") age five and Samuel age two, and that the primary

placement of the children would be with respondent.

In December 1994, petitioner filed a "Petition for Change

of Custody" in the Chancery Court for Sumner County. The

petitioner ask the court to change the primary placement of the

children from respondent to petitioner and to award petitioner

reasonable child support and attorney's fees. To justify his

request, petitioner alleged there had been a substantial change of

circumstances. Specifically, he claimed that Tyler had missed five

days of school for unexcused absences in 1994.

On 14 December 1994, the court entered a show cause order.

Respondent contended that any school absences prior to the divorce

were not relevant to the show cause hearing or the determination of

a material change of circumstances. On 24 January 1995, the court

held a hearing on the show cause order. The court found, in

material part, as follows:

(1) The Court finds that the number of days the FATHER had possession of the children would not be used as a basis for a material change of circumstances when a cooperative custodial parent allows additional contact.

(2) The Court further finds that the episode on December 5, 1994, when the six (6) year old child was left alone after school appears to have been the only episode where this happened and that standing alone would not be sufficient as material

2 change of circumstances in order to warrant a change of custody.

(3) The Court does find that the absences and tardinesses in school while the child was in the primary placement of the MOTHER does rise to the level of a material and substantial change of circumstances inasmuch as twenty-one (21) days of absences in the 1993-1994 school year and seven (7) absences and ten (10) tardinesses so far in the 1994-1995 school year is excessive.

Based on these findings, the court awarded temporary primary

placement of the two minor children to petitioner. The court held

another hearing on 16 August 1995. At that time, the court

restated its earlier conclusions and ordered petitioner to provide

the children with health insurance. On 11 September 1995, the

court entered an amended order requiring respondent to pay

petitioner child support of $552.00 per month.

The only issue on appeal is whether "the trial court erred

in finding that there had been a substantial and material change of

circumstances since the granting of the final decree of divorce

when the undisputed evidence at the final hearing established a

decrease in Tyler's absences and tardiness since the granting of

the final decree of divorce."

The uncontradicted testimony in the record reveals that

Tyler's attendance actually improved after the parties divorced and

the court placed the children with respondent. Prior to the

divorce, petitioner had full access to Tyler's reports and records.

During this time, Tyler was absent ten times and was tardy five

times. After the divorce while the children were in the primary

placement of respondent, Tyler was absent eight times and was tardy

five times.

The principal of Tyler's school testified that during the

1994/1995 school year when respondent had primary placement, Tyler

made straight A's. As to his attendance, the principal testified

3 that a student does not jeopardize his passing until he or she

misses thirty or more days. The principal also testified that it

is not the policy of the elementary school to fail a child because

of a certain number of absences.

The 1993/1994 Tennessee Kindergarten Skills Checklist shows

that Tyler did not experience difficulty with his school work after

the final decree of divorce. Moreover, Tyler's report card for the

1994/1995 school year does not show an improvement after the court

placed Tyler with petitioner. In fact, Tyler received his only

minuses during that time. The trial court acknowledged that these

minuses occurred in the later part of the second semester when

petitioner had primary placement.

This court reviews a trial court's finding of fact "'de novo

upon the record of the trial court, accompanied by a presumption of

the correctness of the finding, unless the preponderance of the

evidence is otherwise.'" Hass v. Knighton, 676 S.W.2d 554, 555

(Tenn. 1984)(quoting Tenn. R. App. P. 13(d)). When a court enters

a decree awarding custody of children, the "decree is Res

adjudicata and is conclusive in a subsequent application to change

custody unless some new fact has occurred which has altered the

circumstances in a material way to make the welfare of the children

require a change of custody. Long v. Long, 488 S.W.2d 729, 731-32

(Tenn. App. 1972); see also Tenn. Code Ann. § 36-6-101(a)(Supp.

1995). When passing on child custody modifications, the court must

not only find a substantial and material change in circumstances

since the original custody decree, but it must also find "a

material change in circumstances that is compelling enough to

warrant the dramatic remedy of changed custody." Mussleman v.

Acuff, 826 S.W.2d 920, 922 (Tenn. App. 1991). In this case, the

evidence preponderates against a finding that there was a

4 substantial and material change of circumstances after the divorce

based on Tyler's school attendance record.

Finally, there is a second reason why the trial court should

not have ruled in petitioner's favor. The undisputed evidence is

that petitioner knew of Tyler's absences and tardiness prior to the

divorce, prior to entering into the child custody agreement, and

prior to the entry of the final decree finding respondent a fit and

proper person to have primary placement. Where a party has

knowledge of material facts prior to the entry of a divorce decree,

the party may not complain later if the party remained silent while

the case was still within the bosom of the court. Long, 488 S.W.2d

at 732. As to the present case, petitioner cannot contend now that

Tyler's attendance record constitutes a change in circumstances

given that he knew of Tyler's poor record prior to the divorce and

remained silent. Long, 488 S.W.2d at 732.

The judgment of the trial court is reversed, and the cause

is remanded to the trial court for further necessary proceedings.

The costs on appeal are taxed to the petitioner/appellee, David

Randall Safer.

__________________________________ SAMUEL L. LEWIS, JUDGE

CONCUR:

________________________________ BEN H. CANTRELL, JUDGE

_________________________________ WILLIAM C. KOCH, JR., JUDGE