Roulette v. Roulette

• Court: Court of Appeals of Tennessee
• Decided: August 12, 1997
• Docket: 03A01-9701-GS-00010
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

ROBERT ELLIS ROULETTE, ) FILED C/A NO. 03A01-9701-GS-00010 ) August 12, 1997 Plaintiff-Appellee, ) ) ) Cecil Crowson, Jr. ) Appellate C ourt Clerk ) APPEAL AS OF RIGHT FROM THE BLOUNT v. ) COUNTY GENERAL SESSIONS COURT ) ) ) ) HEATHER MARIE HICKS ROULETTE, ) ) HONORABLE WILLIAM R. BREWER, JR. Defendant-Appellant. ) JUDGE

For Appellant For Appellee

SANDRA G. OLIVE JERRY G. CUNNINGHAM Olive & Olive Kizer & Black Knoxville, Tennessee Maryville, Tennessee

OPINION

AFFIRMED AND REMANDED Susano, J.

1 In this post-divorce proceeding, the trial court,

following a bench trial, granted the petition of Robert Ellis

Roulette (Father) seeking sole custody of the parties’ child,

Cody Dyllan Roulette, age three. In so doing, the court modified

the parties’ judgment of divorce, which, pursuant to the parties’

marital dissolution agreement, had decreed joint custody and

designated Heather Marie Hicks Williams (formerly Roulette)

(Mother) as the residential custodian. Mother appealed, arguing

that the evidence preponderates against the trial court’s

determination that there was a material and substantial change in

the circumstances of the parties and their child justifying a

change of custody.1 We affirm.

On December 18, 1995, Father went to Mother’s

apartment. His visit was prompted by a report he had received

from a private investigator who had expressed some concern

regarding the well-being of the parties’ child. After knocking

on the door, Father was greeted by a man whom he did not know.

The man was dressed in his underwear with no shirt.

Father testified that the house was dirty, that it

smelled of beer and urine, and that it appeared that the

occupants had been sleeping on the floor. There were beer cans

on the living room floor. His son came from one of the rooms,

crying and asking for his mother. Being uncomfortable with the

conditions in which his son was living, Father took the child,

and after a visit to his attorney’s office, transported him to

1 The appellant seeks a remand for the setting of child support and other relief in the event we reverse the trial court’s change of custody. In view of our disposition of this appeal, we do not reach appellant’s second issue.

2 the home of Father’s parents, with whom he was living. His

petition for change of custody was filed the same day.

This case is before us for a de novo review of the

trial court’s findings. Rule 13(d), T.R.A.P. Those findings

come to us with a presumption of correctness that we must honor

unless the evidence preponderates against those findings. Id.

In this case, the trial court did not make specific findings:

The Court finds that based on the proof today that there has been a substantial and material change of circumstances where it’s now in the best interests of the child that custody should be awarded to Mr. Roulette. There were various factors set out. The Court is not going to enumerate them . . .

In the absence of specific findings, our focus is on the trial

court’s ultimate determination that Father had demonstrated the

requisite showing of a material and substantial change of

circumstances. Our review of the record focuses on this ultimate

determination. Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn.App.

1984). Our “search” is with respect to the preponderance of the

evidence as it pertains to this ultimate holding.

The bulk of the evidence in this case consists of the

oral testimony of the parties and their witnesses. There are

numerous conflicts in the testimony, particularly the testimony

of Father and Mother. The trial court, by its decision, resolved

those conflicts in favor of Father. Since we did not observe the

witnesses, we must defer to the trial court’s judgment as to

credibility. “[O]n an issue which hinges on witness credibility,

3 [the trial court] will not be reversed unless, other than the

oral testimony of the witnesses, there is found in the record

clear, concrete and convincing evidence to the contrary.”

Tennessee Valley Kaolin v. Perry, 526 S.W.2d 488, 490 (Tenn.App.

1974). While there are some photographs in the record, they do

not represent “clear, concrete and convincing evidence to the

contrary.” 526 S.W.2d at 490.

In order to change custody, a trial court must find “a

material change in circumstances that is compelling enough to

warrant the dramatic remedy of changed custody.” Musselman v.

Acuff, 826 S.W.2d 920, 922 (Tenn.App. 1991). It is clear that in

making this evaluation, a trial court has wide discretion. Grant

v. Grant, 286 S.W.2d 349, 350 (Tenn.App. 1954). “[W]hen the

activities of a parent involve neglect of the children, such

neglect may be considered in relation to the best interests of

the children.” Mimms v. Mimms, 780 S.W.2d 739, 745 (Tenn.App.

1989).

Resolving the conflicting testimony of the witnesses in

favor of Father, there are a number of facts showing a material

and substantial change in the circumstances of the parties and

their child. Mother was living with her child in an apartment

that had no beds. It was dirty and smelled of beer and urine.

Since the divorce, Mother had used marijuana. In fact, she

failed a court-ordered drug screen test on the day the court

considered the issue of temporary custody. There was also proof

that Mother had, on occasion, abused alcohol since the divorce.

There was also proof that Mother left the parties’ child with a

4 friend at her parents’ swimming pool so she could go inside and

have sex with a visiting male. There was uncontradicted proof

that on another occasion she left the child with another so she

could go outside and smoke marijuana with friends. One of the

witnesses called by Father testified that she saw the child in

bed with Mother and her lover--an individual with whom Mother was

admittedly involved in a sexual relationship.2

We do not find that the evidence preponderates against

the trial court’s finding of a material and substantial change of

circumstances, as contemplated by the holding in Musselman.

Certainly, the evidence does not preponderate against the trial

court’s determination that a change of custody was appropriate.

Mother contends that custody was changed because the

friend who was keeping her child on December 18, 1995, was an

African-American. She and this friend were married the next day.

Mother relies upon the case of Palmore v. Sidoti, 466 U.S. 429,

104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), for the proposition that

this relationship, in and of itself, cannot be the basis for a

custody change.

We agree with Mother that the Palmore case stands for

the proposition cited; however, we find no indication that Mr.

Williams’ race played any role in the court’s decision. In fact

the trial court stated specifically that it “didn’t consider any

2 There was, however, no proof that they were having sex at the time the child was in bed with them.

5 race at all.” We find that Mother’s conduct, standing alone, was

sufficient to warrant a change of custody.

The judgment of the trial court is affirmed. Costs on

appeal are taxed against the appellant and her surety. This case

is remanded to the trial court for the collection of costs

assessed there, pursuant to applicable law.

__________________________ Charles D. Susano, Jr., J.

CONCUR:

_______________________ Herschel P. Franks, J.

_______________________ Don T. McMurray, J.