Williams v. Williams ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
CONNIE A. WILLIAMS, )
(Now Montgomery) )
)
Respondent/Counter-Petitioner/Appellant ) Putnam Circuit No. NJ-3698
)
)
vs. )
) Appeal No. 01A01-9610-CV-00468
MICHAEL C. WILLIAMS, )
)
Petitioner/Counter-Respondent/Appellee. )
FILED
May 23, 1997
APPEAL FROM THE CIRCUIT COURT OF PUTNAM COUNTY
Cecil W. Crowson
AT COOKEVILLE, TENNESSEE Appellate Court Clerk
THE HONORABLE JOHN A. TURNBULL, JUDGE
For the Respondent/Counter-Petitioner/ For the Petitioner/Counter-Respondent/
Appellant: Appellee:
Rankin P. Bennett Craig P. Fickling
Cookeville, Tennessee Cookeville, Tennessee
REVERSED IN PART, AFFIRMED IN PART
AND REMANDED
HOLLY KIRBY LILLARD, J.
CONCURS:
ALAN E. HIGHERS, J.
DISSENTS IN PART, CONCURS IN RESULT:
BEN H. CANTRELL, J.
OPINION
This is a child custody case. In 1991, the parties divorced pursuant to a marital
dissolution agreement. Under the agreement, the mother, Connie A. Montgomery (formerly
Williams), was awarded custody of the parties’ sons, with visitation to the father, Michael C.
Williams. Subsequently, Mr. Williams filed a petition for change of custody, which was granted by
the trial court. We find insufficient change of circumstances to justify a change of custody and
reverse the decision of the trial court.
In 1991, the parties entered into a Marital Dissolution and Child Custody Agreement
(“Agreement”), which was incorporated into the Final Decree of divorce. Under the Agreement,
Connie Montgomery (“Mother”) was awarded custody of the parties’ twin sons, Ross and Ryan, with
visitation to Michael C. Williams (“Father”). Father was required to pay child support biweekly to
Mother.
The Final Decree also incorporated an Order of Protection, under which it was determined
that Mother had proven allegations of physical abuse. Prior to the divorce, Mother had filed a
petition for a protective order, alleging that Father had pulled a gun on her and had been physically
abusive toward her when he drank alcohol. The Order of Protection enjoined Father from further
acts of violence toward Mother.
Subsequently, Father became in arrears on his obligation to pay child support, with the
arrearage eventually totaling $6,894.49. An advance notice of income assignment for payment of
the delinquency was filed in October, 1993. In December, 1993, Father filed a petition for change
in custody, also seeking a cessation of his child support obligation, stating that he had remarried and
alleging a material change in circumstances. Mother filed an answer and counter-petition, alleging
Father had unclean hands due to his failure to pay child support and seeking a finding of contempt
against Father on that basis. In February, 1994, the trial court entered an agreed order of income
assignment for payment of the arrearage, with a ten-day jail sentence stayed upon compliance with
the Order to pay the arrearage and the continuing child support payments.
Two hearings were held on Father’s petition to change custody. The parties’ sons were
twelve years old at the time. At the first hearing, Father testified that the boys had expressed
hostility toward Mother’s boyfriend, Mr. Kenny Maynard. Father introduced into evidence two
notes by the boys referring to “hiring a hit man” to kill Mr. Maynard, and another note referring to
Mr. Maynard’s drinking “Bartels and James” wine coolers at Mother’s house. Father testified that,
while visiting Father’s home, the boys, in playing with toy soldiers and guns, had said, “Death to
Kenny.” Father also testified that the boys had called him from Mother’s home and told him that
they were under a bed in their room because they did not want Mr. Maynard to hear them talking to
Father. He stated that the boys had complained of Mr. Maynard’s smoking and drinking in their
presence. Father testified that all of these incidents had occurred over a period of approximately two
years.
On cross-examination, Father denied being in arrears on his child support obligation, denied
physically abusing Mother, denied that Mother obtained an Order of Protection from such abuse, and
acknowledged that he had worked at eleven different places of employment since the parties’
divorce. Father testified that his current wife had stayed overnight at his home prior to their
marriage while the parties’ sons were present. He acknowledged drinking alcohol after the divorce
but said he had quit three years earlier. He stated that he had smoked until eight months prior to the
hearing.
Father then submitted the testimony of his expert psychologist, Dr. Roy Bilbrey. Dr. Bilbrey
did not treat the parties’ sons, but interviewed them on several occasions at Father’s request. Dr.
Bilbrey described expressions of hostility toward Mr. Maynard similar to those described by Father,
including the boys’ stated belief that Mr. Maynard had killed their cat. Dr. Bilbrey testified that one
twin had told him that he wanted to live with Father and the other had told him he did not want to
change the current arrangement, with Mother having custody. Father’s current wife, Donnia
Williams, testified that she had a good relationship with the parties’ sons and described their
activities together. She stated that the boys had told her that they wanted to live with her and Father.
Mother testified that she had been the boys’ primary caregiver for twelve years, since their
birth. She testified that she had been employed operating machinery at Tutco for twenty-two years,
and that she had been primarily responsible for providing for the boys’ needs. She indicated that
Father had periodically been in arrears on his obligation to pay child support, and on one occasion
failed to pay any child support for a period of a year and a half. During this time, she testified, she
worked two additional jobs, a total of sixty to sixty-five hours per week, to provide for the boys’
needs.
Mother testified further of her extensive involvement with the boys’ schoolwork and
extracurricular activities. She indicated that Father rarely participated in such activities. She
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testified that, prior to the parties’ divorce, Father had physically abused her in the children’s presence
and that that was the reason she obtained the Order of Protection that was incorporated into the
divorce decree.
Mother testified that she dated Kenny Maynard and that he visited her home, but had never
spent the night there while the children were present. She stated that he did not drink alcohol in front
of the children and that he had a good relationship with the boys. She said that Mr. Maynard had
taken the boys to extracurricular activities and sports events. Mother stated that the boys had never
indicated any hostility toward Mr. Maynard, had never indicated a belief that Mr. Maynard killed
their cat, and had never told her that they wanted to live with Father. She testified that one of the
twins had said that he had stomachaches while at Father’s home and that the other twin’s grades had
fallen since Father filed his petition to obtain custody.
Mr. Maynard stated in his testimony that he had worked as a truck driver for Genco for ten
years. He testified that he had dated Mother for three years and had never stayed overnight at her
home while the children were present. He stated that he had a good relationship with the boys and
described extracurricular and sports activities he had participated in with them. He testified that he
did not discipline the twins, that that was their mother’s job. He denied injuring the boys’ pet. He
acknowledged that he had smoked but said that he quit two years prior to the hearing. He indicated
that he had shot a pistol in Mother’s back yard on one occasion. Mr. Maynard testified that he had
asked Mother to marry him but that she had refused because she had promised her sons that she
would not remarry, due to their fear that a new husband would hurt her as Father had done.
The trial judge then interviewed the parties’ sons in chambers. The boys indicated that they
love both of their parents. They described both Donnia Williams and Kenny Maynard as “nice” and
stated that they got along well with both of them. They acknowledged writing two notes expressing
hostility toward Mr. Maynard and said they did it because they were “mad” at Mr. Maynard. They
said they had seen Mr. Maynard drink a beer while barbecuing outside. They denied believing that
someone had injured their cat, but Ross acknowledged that he had told Father’s expert, Dr. Bilbrey,
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that he thought Mr. Maynard had killed it. Ryan told the trial judge that he had stomachaches at
Father’s house more often than at Mother’s house.
The trial judge then told the parties that he wanted their sons to be evaluated by their treating
psychologist, Dr. John Averitt, and that he wanted Dr. Averitt to report to the court, particularly
about the boys’ notes regarding Mr. Maynard.
Dr. Averitt had been referred to treat the boys by their pediatrician. In his deposition
submitted to the trial court, Dr. Averitt testified that he had previously treated the boys for anxiety
symptoms that appeared after Father initiated proceedings to obtain custody. He stated that both
boys were stressed by their parents’ conflict and did not want to upset or disappoint either parent.
He testified that both boys told him that they were “happy with the arrangements as they were” and
“wanted to be with their mother.”
In his report to the trial court, Dr. Averitt said that the twins resisted admitting that they had
written the notes about Mr. Maynard, feeling that they had done something “very wrong.” They
denied that anyone had coached them in advance about the session with Dr. Averitt. The report
stated:
The boys both indicated that they like Donna [sic] and Kenny. Both denied
fearing Donna [sic] or Kenny. Ryan said that “Ross got mad at Kenny one night
because he was arguing with momma.” He denied that Kenny hit his mother. He
also noted that the argument happened “a long time ago.”
Ryan said, “My cat got ran over, and Ross said that Kenny killed it.” I was
mad at Kenny then. Ross said that he was just, “kidding” when he said that Kenny
killed the cat.
Ryan said that the notes written by Ross (exhibit 1) were written, “a long time
ago.” Ryan said, “Ross left them laying around and Dad found them.” He said that
Dad “was happy” when he found them. He noted that it seemed to please his father
to know they were mad at Kenny.
I asked them if they had talked with anyone about these notes. Ross said,
“We talked to Bilbrey.” I assume they referred to Roy Bilbrey, Ph.D. I asked them
whey [sic] they told Dr. Bilbrey. Ryan said they told him they wanted to live with
their Dad, and that they were mad at Kenny.
I asked them if they told Dr. Bilbrey the truth. Each boy said that they
wanted to “keep things as they are.” Ryan said, “I don’t hate Kenny.” Ross said,
“No we don’t hate him.” I asked if they fear Kenny. Ross and Ryan each said, “No.”
***
These boys love each of their parents but feel a strong need to please both of
them. I appreciate the Court’s not questioning the boys as to their preference as to
custodial parent. These boys are both too immature emotionally to handle that
decision at present. The feeling of guilt they would assume if they felt responsible
for the decision would be most stressful to them.
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My evaluation is that the boys do not fear Kenny or Donna [sic]. They appear
to be happy with their current living arrangements but do not wish to disappoint their
father. The negative statements by the boys in the notes and in psychological
evaluations appear to be secondary to their need to please both parents--an
impossible task.
At the second hearing on this matter, Mr. Williams testified that he had changed jobs yet
another time since the previous hearing. Mother presented testimony and stipulated statements from
eleven witnesses: relatives, teachers, coaches, and others in contact with Mother and the twins.
These witnesses testified that Mother was a good parent, that she was involved in school and sports
activities, that the boys had a good relationship with Mr. Maynard, that Mr. Maynard did not live
at Mother’s home and did not engage in inappropriate conduct, and that Father had rarely
participated in the twins’ school or sports activities.
After hearing all the proof and assessing the demeanor and credibility of the witnesses who
testified at the hearings, the trial court issued an order from the bench granting custody to Father,
and later entered written findings of fact and conclusions of law. In its written findings, the trial
court found that a substantial change of circumstances had occurred since the final decree of divorce
was entered granting custody to Mother. The trial court found the following changes in
circumstances:
1. The improvement in Mr. Williams’ mental and emotional status since the
divorce;
2. The improvement in Mr. Williams’ job stability since the divorce;
3. Mr. Williams’ marriage to a responsible, caring and loving woman;
4. Mr. Williams’ establishment of a stable family atmosphere;
5. Ms. Williams’ keeping of company with Mr. Maynord [sic] without the benefit
of wedlock in what the Court considers to be an unstable relationship.
The trial court then did a comparative analysis on the issue of custody, focusing on the factors set
forth in Tennessee Code Annotated § 36-6-106.
In its comparative fitness analysis, the trial court indicated that the boys love both parents and
noted that Father had failed to pay child support, while Mother had at times held down more than
one job to support the children. The trial court also noted the importance of continuity and the length
of time the children had lived with Mother since the divorce.
5
The trial court then found that Father and his current wife have a stable family unit. It stated
that Mother:
has for the past many months kept company with Mr. Kenny Maynord [sic] without
the benefit of wedlock. Although the proof is not satisfactory that Mr. Maynord [sic]
has spent the night in the home when the boys were present, it is clear that boys of
this age understand the nature of their mother’s relationship with Mr. Maynord [sic].
The Court finds that there is a certain amount of resentment to this relationship and
to Mr. Maynord [sic] on the part of Ross Williams.
The trial court stated its positive impression of Father’s current wife and that it was “not as
impressed” with Mr. Maynard. It then stated:
The final and perhaps decisive factor in the Court’s judgment that these two young
men need a steady, strong, male influence in their lives. They are at the point of
becoming young men. . . . [T]he chances that these boys will reach mature,
productive adulthood in [sic] enhanced by their being placed in the custody of their
father, Mr. Williams.
The trial court then ordered that the parties’ sons be placed in the custody of Father, with visitation
for Mother.
The trial court found that Father remained in arrears on his child support obligation, with the
amount at that time totaling $6,127.84, including interest. It ordered him to pay the arrearage to
Mother in weekly payments but also ordered Mother to pay child support to Father.
Mother now appeals the trial court’s change of custody to Father. Mother argues that the trial
court erred in finding that there had been a sufficient change in circumstances to justify a new
evaluation of the issue of custody. In the alternative, Mother contends, even if there were a change
in circumstances, the evidence preponderated against the determination that placing custody with
Father was in the best interest of the children. Father argues that the proof established a significant
change in circumstances and that the evidence preponderated in favor of the trial court’s decision
to change custody to Father.
Our review of the trial court’s findings of fact is de novo upon the record, accompanied by
a presumption of the correctness of the trial court’s factual findings. Tenn. R. App. P. 13(d). No
such presumption attaches to the trial court’s conclusions of law. Adams v. Dean Roofing Co., 715
S.W.2d 341, 343 (Tenn. App. 1986).
Under the doctrine of res judicata, a second suit on the same cause of action between the
same parties is barred with respect to all issues which were or could have been litigated in the first
lawsuit. Wall v. Wall, 907 S.W.2d 829, 832 (Tenn. App. 1995). Therefore, an order awarding
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custody cannot be changed in the absence of a showing of new facts or “changed circumstances”
requiring an alteration of the original custody award. Woodard v. Woodard, 783 S.W.2d 188, 189
(Tenn. App. 1989). On a petition to change custody, the trial court does not simply repeat the
comparative fitness analysis usually done at the time of the original custody decree. Rather, the trial
court must first find a material change in circumstances “compelling enough to warrant a change in
custody.” Short v. Short, No. 03A01-9506-CH-00168, 1995 WL 728521, at *2 (Tenn. App. Dec.
11, 1995); see also Woodard, 783 S.W.2d at 189-90. This analysis was discussed in Wall:
When two people join in conceiving a child, they select that child’s natural
parents. When they decide to separate and divorce, they give up the privilege of
jointly rearing the child, and the divorce court must decide which parent will have
primary responsibility for rearing the child. This decision of the Court is not
changeable except for “change of circumstances” which is defined as that which
requires a change to prevent substantial harm to the child. Custody is not changed
for the welfare or pleasure of either parent or to punish either parent, but to preserve
the welfare of the child. Custody is not changed because one parent is able to furnish
a more commodious or pleasant environment than the other, but where continuation
of the adjudicated custody will substantially harm the child.
Wall, 907 S.W.2d at 834. The type of behavior by the custodial parent required to justify a change
in custody was discussed in Musselman v. Acuff, 826 S.W.2d 920 (Tenn. App. 1991), in which the
appellate court reversed the trial court’s decision to change custody from the mother to the father.
The Musselman court quoted a Mississippi decision in which the trial court had removed a child
from his mother’s custody because she had cohabited with a lover:
“Furthermore, it was manifest error to hold that the facts and circumstances of this
case supported a modification of this child’s custody. It must be recognized that
uprooting a child from his mother, school and environment was a jolting, traumatic
experience. It is only that behavior of a parent which clearly posits or causes danger
to the mental or emotional well-being of a child (whether such behavior is immoral
or not), which is sufficient basis to seriously consider the drastic legal action of
changing custody. This case not [sic] not remotely reach any such proportion.”
Musselman, 826 S.W.2d at 923-24 (quoting Ballard v. Ballard, 434 So. 2d 1357, 1360 (Miss.
1983)). This Court has repeatedly emphasized the importance of stability for children involved in
a divorce:
[T]he stability provided by the continuation of a successful relationship with a parent
who has been in day to day contact with a child generally far outweighs any alleged
advantage which might accrue to the child as a result of custodial change. In short,
when all goes well with children, stability, not change, is in their best interests.
Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn. App. 1991) (quoting Sartoph v. Sartoph, 354 A.2d
467, 473 (Md. 1976)).
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In sum, then, in determining whether to change custody, the noncustodial parent has the
burden of proving a material change in circumstances, that is, behavior by the custodial parent which
clearly endangers the well-being of the child. Only after it is determined that such a material change
in circumstances has occurred does the trial court perform a comparative fitness analysis to
determine if custody should be changed. Efforts by the noncustodial parent to improve his or her
circumstances are insufficient to support a determination of material change in circumstances; they
are usually relevant only to the comparative fitness analysis performed after there has been a
threshold finding of a material change in the circumstances of the custodial parent.
In this case, the trial court found five changes in circumstances since the parties’ divorce.
The first four factors related to improvement in Father’s circumstances since the divorce.1 Such
improvements regarding Father normally would become relevant only after it had been determined
that there had been a material change in circumstances regarding Mother.
The last change in circumstances found by the trial court was “Mrs. Williams’ keeping of
company with Mr. Maynord [sic] without the benefit of wedlock in what the Court considers to be
an unstable relationship.” The trial court acknowledged that the proof was “not satisfactory” that
Mr. Maynard had spent the night at Mother’s home when the boys were present but stated that “boys
of this age understand the nature of their mother’s relationship with Mr. Maynord [sic].” The trial
court found that Ross Williams had “a certain amount of resentment” toward Mr. Maynard and that
there existed “some hostility” between the boys and Mr. Maynard. On this basis, the trial court
changed custody to Father.
The record contains conflicting proof regarding the twins’ hostility toward Mr. Maynard. It
is undisputed that one or both boys wrote two notes referring to “hiring a hit man” for Mr. Maynard
and made other remarks about Mr. Maynard. Father’s expert, Dr. Bilbrey, concluded that the boys
harbored hostility toward Mr. Maynard. However, the boys told the trial judge in chambers that Mr.
Maynard was “nice.” After the trial judge ordered the boys’ treating psychologist, Dr. Averitt, to
examine them, Dr. Averitt concluded that the twins did not dislike or fear Mr. Maynard but made
negative statements about Mr. Maynard in an effort to please Father. Mother presented numerous
1
One of the changes found by the trial court was “[t]he improvement in Mr. Williams’ job
stability since the divorce.” This finding is puzzling in light of Mr. Williams’ testimony in the
first hearing that he had held eleven job positions since the divorce, and his testimony at the
second hearing that he had changed jobs since the first hearing.
8
witnesses who testified that Mr. Maynard engaged in various activities with the parties’ sons and had
a good relationship with them.
The trial judge, of course, had the opportunity to observe the witnesses’ demeanor during
their testimony, and the weight and credit accorded the witnesses by the trial judge is entitled to great
weight. In re Parsons, 914 S.W.2d 889, 895 (Tenn. App. 1995). There was sufficient evidence in
this case to support the trial court’s finding that the boys harbored “some hostility” and “some
resentment” toward Mr. Maynard.
However, the record does not contain evidence from which the trial court could conclude that
Mother’s relationship with Mr. Maynard was “unstable” or that the “nature” of the relationship was
improper or injurious to the twins. The evidence is unrefuted that Mother and Mr. Maynard had
dated steadily for three years, that both had been employed in their respective job positions for many
years, that Mr. Maynard had not spent the night at Mother’s home while the boys were there, that
Mr. Maynard lived with his widowed mother and not with Mother, and that Mother and Mr.
Maynard had not married only because of the twins’ fear that a new husband would abuse her as
Father had. While this Court gives deference to the trial court’s observation that it was “not as
impressed” with Mr. Maynard, the record does not contain proof from which the trial court could
conclude that Mr. Maynard had engaged in substantial inappropriate behavior in the boys’ presence.
The record includes testimony that Mr. Maynard once fired a pistol in Mother’s back yard, that he
had drunk a beer there while outside barbecuing, and that he smoked until two years prior to his
testimony. Particularly when viewed against the backdrop of Father’s past conduct, such as his
physical abuse of Mother, his drinking and smoking, and having his current wife, prior to their
marriage, spend the night in his home while the boys were there, Mr. Maynard’s conduct does not
support a finding of a material change in circumstances.
The record demonstrates that the remainder of the circumstances surrounding Mother’s care
of the children are unchanged. She remains employed at Tutco, as she has been for twenty-two
years, she remains in the same home the parties occupied during their marriage, the boys’
schoolwork remained satisfactory until they learned of Father’s petition to change custody, and
Mother has continued to be heavily involved in the boys’ school and extracurricular activities.
9
Viewed as a whole, and considering the importance placed on stability for children in
divorced families, the evidence does not support a finding that Mother has engaged in or permitted
Mr. Maynard to engage in “behavior . . . which clearly posits or causes danger to the mental or
emotional well-being of a child . . . which is sufficient basis to seriously consider the drastic legal
action of changing custody.” Musselman, 826 S.W.2d at 924; see also Contreras, 831 S.W.2d at
290 (regarding stability). Therefore, Father has not carried his burden of demonstrating a change in
circumstances sufficiently compelling to warrant changing custody.
Even if such a change in circumstances were present, the evidence regarding the comparative
fitness analysis between Mother and Father does not preponderate in favor of an award of custody
to Father. See Tenn. Code Ann. § 36-6-106 (1996). The evidence is undisputed that Mother has
been the boys’ primary caregiver for twelve years, since their birth, and that she has worked steadily
to provide for their material needs, even working multiple jobs at times when Father failed to pay
child support. The proof also establishes that Mother has provided a stable home for the boys and
is a stable parent. Numerous witnesses testified regarding Mother’s involvement in the boys’ school
and extracurricular activities, and testimony established that the boys did well in school while in
Mother’s custody, except after Father’s petition for a change in custody was filed.
In contrast, Father has not been the boys’ primary caregiver. His consistent arrearage in child
support, while not determinative, is significant in assessing his dedication as a parent, and it is
noteworthy that his petition to change custody was filed only after Mother initiated efforts to collect
the arrearage. While Father has remarried, his employment has remained unstable. The evidence
was undisputed that Father was largely uninvolved in the boys’ school and sports activities.
The last factor to be considered is the character and behavior of any other person who resides
in or frequents the parent’s home. Tenn. Code Ann. § 36-6-106(9)(1996). The trial court stated that
it was “impressed” with Father’s current wife, Donnia Williams, noting her love, caring, support,
and genuine interest in the twins. The trial court also stated that it was “not as impressed” with Mr.
Maynard. This is an important factor, and this Court gives great weight to the trial court’s ability
to view the witnesses and assess their demeanor. See In re Parsons, 914 S.W.2d at 895. However,
while there is evidence to support the trial court’s finding that the boys had “some hostility” toward
Mr. Maynard, as noted above, the evidence does not support a finding that Mr. Maynard engaged in
substantial behavior detrimental to the twins. Moreover, while another person who resides in or
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frequents the parent’s home is a significant consideration, the primary comparison regarding fitness
for custody remains between the two parents.
The trial court also noted as a “decisive” factor the fact that the parties’ sons “need a steady,
strong, male influence in their lives.” Children of both genders, of course, need a healthy influence
from both their male and female parents or guardians. Involvement by Father in the parties’ sons’
school and extracurricular activities would help provide the boys with a more significant male
influence in their lives.
In sum, the evidence does not support the trial court’s finding of a change in Mother’s
circumstances sufficiently compelling to warrant a change in custody from Mother to Father.
Moreover, even if there were such a change in circumstances, the evidence preponderates against
the trial court’s determination that, in comparison, Father is the more fit of the two parents to have
custody.
The trial court’s award of custody to Michael C. Williams is reversed. The trial court’s order
requiring Mr. Williams to make payments on his arrearage in child support remains in effect. The
cause is remanded to the trial court for further proceedings regarding a transfer in custody,
appropriate visitation with Father, insurance matters, any remaining child support arrearage, future
child support, and other pertinent matters.
The order of the trial court is reversed in part, affirmed in part, and remanded for further
proceedings consistent with this Opinion. Costs are assessed against Appellee, for which execution
may issue if necessary.
HOLLY KIRBY LILLARD, J.
CONCUR:
ALAN E. HIGHERS, J.
BEN H. CANTRELL, J.
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