Solima v. Solima

7 S.W.3d 30, 1998 Tenn. App. LEXIS 694
CourtCourt of Appeals of Tennessee
DecidedOctober 16, 1998
StatusPublished
Cited by49 cases

This text of 7 S.W.3d 30 (Solima v. Solima) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Solima v. Solima, 7 S.W.3d 30, 1998 Tenn. App. LEXIS 694 (Tenn. Ct. App. 1998).

Opinion

OPINION

■WILLIAM C. KOCH, Jr., Judge.

This appeal involves a bitter change of custody proceeding. Two years after the divorce, the father filed a petition in the Chancery Court for Williamson County seeking custody of three of the parties’ five children on the ground that the mother was progressively alienating the children from him. The mother counterclaimed for increased child support. Following a bench trial, the trial court declined to change the custody of the children and increased the father’s child support. The father asserts on this appeal that the trial court erred by refusing to find that the circumstances had changed sufficiently to warrant a change in the custody of the parties’ three youngest children.

I.

Mary P. Solima and David J. Solima moved to Tennessee in 1989 when Mr. Solima went to work as an engineer for Saturn Corporation. They had four children at the time, and their fifth child was born shortly after they arrived in Tennessee. Their marriage began to falter several years later, and Ms. Solima filed for divorce in February 1992. She withdrew her divorce complaint in December 1992 because the parties were seeking marital counseling but filed a second divorce complaint in January 1993.

The divorce proceedings were particularly bitter. The parties’ open hostility toward each other affected their children’s behavior and performance in school and forced the children into counseling. On May 11, 1994, the Chancery Court for Williamson County awarded Ms. Solima the divorce and sole custody of the five children who were then between four and thirteen years of age. The trial court also granted Mr. Solima specific visitation rights, including visitation every other weekend, holiday visitation, and extended visitation during the summer. Mr. Solima was ordered to pay $1,615 per month and one-half of any bonus he received as child support and to provide appropriate insurance coverage for the children.

The parties’ hostility did not abate following the divorce. Since they could not ■ communicate with each other directly, they communicated through their lawyers. Ms. Solima continued to denigrate Mr. Solima in front of the children and declined to keep Mr. Solima informed about the children’s activities. Mr. Solima’s exercise of his visitation rights provided a recurring flashpoint between the parties, and their conduct intensified after Mr. Solima’s female companion moved in with him in August 1994.

By Thanksgiving 1994, the parties’ two oldest children, who were then thirteen and twelve years old, were resisting visitation with Mr. Solima. Mr. Solima’s relationship with his two oldest children finally disintegrated during them Christmas 1994 visitation. Mr. Solima had planned to take all five of his children to St. Louis to visit their paternal grandparents during this extended visitation. However, following a violent confrontation with his oldest son and daughter, he returned these two children to Ms. Solima early and took the remaining three children to St. Louis.

Mr. Solima and his family severed all communications with his two oldest children following the Christmas 1994 holidays. In January 1995, his lawyer notified Ms. Solima’s lawyer that Mr. Solima intended to continue visitations with only his three youngest children. After 1994, Mr. Solima and his family continued to lavish attention and presents on his three youngest children but pointedly declined to re *32 member his two oldest children on their birthdays or at Christmas. Likewise, the two oldest children declined to initiate any sort of communication with their father on his birthday, Father’s Day, or during any other holiday.

On April 24, 1996, Mr. Solima filed a petition in the Chancery Court for Williamson County, seeking custody of the parties’ three youngest children and child support. He alleged that Ms. Solima had alienated the two oldest children from him and that she was progressively alienating the three youngest children from him too. He also alleged that Ms. Solima’s actions were harming the children emotionally and psychologically and that it was in their best interest that custody be changed. Ms. Solima answered the petition and counterclaimed for an increase in child support on grounds that Mr. Solima was not exercising visitation with the two oldest children as set in the divorce decree and contemplated under the child support guidelines.

The trial court conducted a bench trial on June 26, July 29, and August 17, 1996. After considering the evidence from both sides, the trial court held that there had been no material change of circumstances warranting a change in the custody arrangement for the three youngest children. The trial court also held that Mr. Solima was no longer exercising visitation with the two oldest children and, for that reason, that his child support obligation should be increased from $1,615 to $1,850 per month, in addition to one-half of the net amount of all bonuses he received. Mr. Solima perfected this appeal

II.

Mr. Solima’s sole issue on appeal relates to the trial court’s refusal to award him sole custody of the parties’ three youngest children. He asserts that the weight of the evidence demonstrated that substantial and material changes of circumstances had occurred since the original custody decree and that these changes warranted changing the custody of his three youngest children. In considering these arguments, we must review the record de novo and must give great weight to the factual determinations made by the trial court who both heard and observed the witnesses. See Gotwald v. Gotwald, 768 S.W.2d 689, 695-97 (Tenn.Ct.App.1988); Scarbrough v. Scarbrough, 752 S.W.2d 94, 96 (Tenn.Ct.App.1988).

Custody and visitation decisions, once made and implemented, are res judi-cata upon the facts in existence or reasonably foreseeable when the decision was made. See Young v. Smith, 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn.Ct.App.1997); In re Parsons, 914 S.W.2d 889, 893 (Tenn.Ct.App.1995). They may, however, be altered if intervening, material changes in the child’s circumstances require modifying an existing custody or visitation arrangement. Accordingly, Tenn. Code Ann. § 36 — 6—101(a)(1) (Supp.1998) empowers the courts to change custody “as the exigencies of the ease may require.”

There are no hard and fast rules for determining when a child’s circumstances have changed sufficiently to warrant a change of his or her custody or visitation arrangement. See Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn.Ct.App.1983). The party seeking to modify an existing custody or visitation arrangement has the burden of proof. See Blair v. Badenhope, 940 S.W.2d 575

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Bluebook (online)
7 S.W.3d 30, 1998 Tenn. App. LEXIS 694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solima-v-solima-tennctapp-1998.