Patrick Alan Wolfe v. Terri Lee Wolfe

• Court: Court of Appeals of Tennessee
• Decided: July 8, 1998
• Docket: 03A01-9801-CV-00003
• Status: Published

Opinion

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED July 8, 1998

PATRICK ALAN WOLFE, ) C/A NO. 03A01-9801-CV-00003 Jr. Cecil Crowson, ) Appellate C ourt Clerk Plaintiff-Appellee, ) ) ) ) APPEAL AS OF RIGHT FROM THE v. ) MONROE COUNTY CIRCUIT COURT ) ) ) TERRI LEE WOLFE, ) ) HONORABLE EARLE G. MURPHY, Defendant-Appellant.) JUDGE

For Appellant For Appellee

D. MITCHELL BRYANT J. REED DIXON Cleveland, Tennessee Sweetwater, Tennessee

O P I N IO N

AFFIRMED AND REMANDED Susano, J.

1 In this post-divorce case, the trial court denied the

petition of Terri Lee Wooten, formerly Wolfe (“Mother”), seeking

sole custody of the parties’ daughter, Kelsea Wolfe, age five and

a half. In the same order, the court granted the counterclaim of

Patrick Alan Wolfe (“Father”) by modifying Mother’s visitation

rights. Mother appealed, arguing that the trial court abused its

discretion in failing to change the child’s custody. She also

claims that the court erred in modifying the visitation schedule

set forth in the divorce judgment.

The parties were divorced by judgment entered May 15,

1995. That judgment awarded Father the sole custody of the

parties’ daughter. It also provided that Mother was “awarded

visitation with the minor child on her two days off each week (a

four day-two day rotation).” The judgment also granted Mother

visitation at other times, i.e., at Christmas, during the summer,

and on certain holidays. At the hearing on the parties’

competing applications for modification of the divorce judgment,

the trial court changed Mother’s regular visitation times from

“her two days off each week” to visitation on alternate weekends

from Friday at 6 p.m. to Sunday at 6 p.m. The other visitation

in the divorce judgment was not changed. The court refused to

change its previous award of custody.

On the two issues raised by Mother, we must decide if

the evidence preponderates against the trial court’s most recent

order. Rule 13(d), T.R.A.P.

2 The trial court concluded “that there [had] not been a

sufficient change of circumstances that would justify a change of

custody in this case.” The evidence does not preponderate

against this finding. While the circumstances of the parties

have changed,1 they have not been “altered...in a material way so

that the welfare of the child requires a change of custody.”

Griffin v. Stone, 834 S.W.2d 300, 302 (Tenn.App. 1992). As we

said in Musselman v. Acuff, 826 S.W.2d 920 (Tenn.App. 1991), the

“trial judge must find a material change in circumstances that is

compelling enough to warrant the dramatic remedy of changed

custody.” Id. at 922. (Emphasis added). While Mother

challenged some of Father’s parenting skills and decisions, her

testimony was sharply contested by Father. This conflict brought

into play the issue of the parties’ credibility -- an issue which

is primarily for the trial court. See Tennessee Valley Kaolin

Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn.App. 1974). If the

trial court believed Father on these conflicting matters -- and

its decision not to change custody is certainly compatible with a

finding in favor of Father’s credibility -- it could have

reasonably concluded that Father’s parenting had not adversely

affected the child.

Mother’s petition to change custody addressed itself to

the sound -- and wide -- discretion of the trial court. Brumit

v. Brumit, 948 S.W.2d 739, 740 (Tenn.App. 1997). Since we find

1 Mother has remarried. She and her new husband have a daughter, age five months. Her husband’s two sons live with them. Mother has changed jobs since the divorce. She testified that she intended to quit work as soon as she had paid a large doctor bill incurred in connection with the birth of her youngest child. While Father’s employment has not changed since the divorce, he has remarried. His wife’s daughters, ages eight and twelve, live with them in his house, a different residence from the trailer in which he was living at the time of the divorce.

3 no abuse of that discretion, we will not tamper with the trial

court’s order. Id. Mother’s first issue is found adverse to

her.

When the trial court entered the divorce judgment,

Mother worked four days and then was off two days. Obviously,

this work schedule was not compatible with the trial court’s

standard every-other-weekend visitation arrangement. To

accommodate Mother’s work schedule, the trial court, at the time

of the divorce, awarded her visitation on the two days she was

off from work. At the time of the recent hearing below, Mother

was working a normal Monday-through-Friday schedule with weekends

off. Therefore, the evidence does not preponderate against the

trial court’s determination that the circumstances --

particularly Mother’s work schedule -- had changed so as to

necessitate a modification of the visitation arrangement set

forth in the divorce judgment. Mother’s intention to quit work

at some time in the future was just that -- an intention to do

something in the future. The trial court was correct in setting

visitation based on Mother’s current work schedule.

Visitation is also an issue that addresses itself to a

trial court’s wide discretion. Suttles v. Suttles, 748 S.W.2d

427, 429 (Tenn. 1988). We find no abuse of that discretion in

this case.

Father seeks damages for a frivolous appeal. See

T.C.A. § 27-1-122. While we have resolved Mother’s issues

against her, we do not find that her appeal is frivolous.

4 The judgment of the trial court is in all respects

affirmed. Costs on appeal are taxed against the appellant and

her surety. This case is remanded to the trial court for

enforcement of the judgment and for collection of costs assessed

below, all pursuant to applicable law.

__________________________ Charles D. Susano, Jr., J.

CONCUR:

_______________________ Herschel P. Franks, J.

_______________________ William H. Inman, Sr.J.