Franks (Pickel) v. Franks

• Court: Court of Appeals of Tennessee
• Decided: October 29, 1997
• Docket: 01A01-9705-CH-00214
• Status: Published

Opinion

PETRA (PICKEL) FRANKS, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9705-CH-00214 VS. ) ) Montgomery Chancery ) No. 96-02-0027 DAVID EARL FRANKS, ) ) Defendant/Appellee. ) FILED October 29, 1997 COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLECecil W. Crowson Appellate Court Clerk

APPEALED FROM THE CHANCERY COURT OF MONTGOMERY COUNTY AT CLARKSVILLE, TENNESSEE

THE HONORABLE ALEX W. DARNELL, CHANCELLOR

KEVIN C. KENNEDY 127 South Third Street Clarksville, Tennessee 37040 Attorney for Plaintiff/Appellant

LARRY B. WATSON 320 Franklin Street Clarksville, Tennessee 37040 Attorney for Defendant/Appellee

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR: TODD, P.J., M.S. KOCH, J.

OPINION The Chancery Court of Montgomery County denied Petra Franks’

petition for a change of custody of her three minor children. Because we find no

change of circumstances following the original award to the father, we affirm the lower

court’s judgment.

I.

On July 1, 1996 the chancellor granted David Earl Franks a bed and

board divorce from Petra Franks on the ground of inappropriate marital conduct. Mr.

Franks was also awarded custody of the parties’ three minor children.

On December 18, 1996 Mrs. Franks petitioned the court for a change

of custody, alleging a significant change of circumstances since the original order.

The petition alleged that Mr. Franks had exposed the children to pornographic tapes

and that he and his parents had disciplined the children in inappropriate ways.

In a further pleading styled “Plaintiff’s Outline of Issues and Witnesses,”

Mrs. Franks alleged that the children were being neglected by Mr. Franks, specifically

by failing to treat a skin condition suffered by all three; that Mr. Franks and his parents

slapped the children and used a fly swatter to spank the youngest child; that the

oldest child, seven year old Gabriella, still takes baths with her father; that the living

conditions in Nashville where Mr. Franks had relocated were unsuitable; that Mr.

Franks’ parents smoked in the home; that the children were dirty; that Mr. Franks and

his parents had connections with the Ku Klux Klan and were raising the children as

white supremacists; and that since the divorce the children were losing their fluency

in the German language, Mrs. Franks’ native tongue.

After hearing the proof, the chancellor denied the petition for a change

of custody. In his oral findings from the bench the chancellor said:

-2- Well, in the initial case the Court said that it was interested in both the parties establishing a permanent residence. Where they plan to live and how they plan to care for themselves and minor children. It was concerned about Mr. Franks continued employment. Then it said it would set the child support at another hearing.

Since that Ms. Franks has raised a litany of complaints about her husband and averring that most of these are occurring since the bed and board decree in June of 1996.

On her cross-examination, most of these complaints were largely defused or they sort of merged into the activities of both parties during the marriage.

* * *

. . . It’s the all American tragedy, but it hasn’t changed since we had a hearing in June.

II.

Custody decrees that have become final are res judicata on the facts

existing at the time of the decree. Nichols v. Nichols, 792 S.W.2d 713, 715 (1990).

Therefore, to obtain a change of custody the petitioner must allege and prove that

circumstances have changed since the prior order. Dodd v. Dodd, 737 S.W.2d 286,

290 (Tenn. App. 1987). Facts that could have been anticipated at the time of the

former order may not be used to establish a change of circumstances. Hicks v. Hicks,

176 S.W.2d 371, 375 (1943).

The chancellor found as a fact that the list of horribles Mrs. Franks set

forth in her pleadings were either not proved or were litigated in the former hearing.

We have examined the record from both hearings and we conclude that while Mrs.

Franks did allege a change of circumstances, she failed to prove it. The evidence

does not preponderate against the chancellor’s finding that her proof did not support

the allegations in her pleadings. See Rule 13(d), Tenn. R. App. Proc. Therefore, the

chancellor did not abuse his discretion in deciding that the interests of the children

-3- would be best served by leaving them with their father. Gray v. Gray, 885 S.W.2d 353

(Tenn. App. 1994).

The judgment of the lower court is affirmed and the cause is remanded

to the Chancery Court of Montgomery County for any further proceedings necessary.

Tax the costs on appeal to the appellant.

_____________________________ BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE

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