Eberhart v. Eberhart ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
FILED
DEBRA ANN EBERHART, ) C/A NO. 03A01-9612-CV-00374
) July 22, 1997
Respondent-Appellee, )
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
)
v. ) APPEAL AS OF RIGHT FROM THE
) HAMILTON COUNTY CIRCUIT COURT
)
)
)
)
WILLIAM DANIEL EBERHART, )
) HONORABLE ROBERT M. SUMMITT,
Petitioner-Appellant. ) JUDGE
For Appellant For Appellee
LESLIE B. McWILLIAMS ROBERT J. BATSON, JR.
Chattanooga, Tennessee Chattanooga, Tennessee
OPINION
AFFIRMED AND REMANDED Susano, J.
1
In this post-divorce case, William Daniel Eberhart
(Father) filed a petition seeking custody of his son, Daniel D.
Eberhart, age 7. He seeks to modify the parties’ judgment of
divorce, which granted his former wife, Debra Ann Eberhart
(Mother), sole custody of their child. Following a bench trial,
the court denied Father’s request and dismissed his petition.
Father appealed, raising issues that present the following
questions:
1. Does the evidence preponderate against
the trial court’s refusal to change custody
of the subject child from Mother to Father?
2. Comparatively speaking, is Father a more
appropriate custodian than Mother?
3. Does T.C.A. § 36-6-1061 apply to a
1
T.C.A. § 36-6-106 provides as follows:
In a suit for annulment, divorce, separate
maintenance, or in any other proceeding requiring the
court to make a custody determination regarding a
minor child, such determination shall be made upon the
basis of the best interest of the child. The court
shall consider all relevant factors including the
following where applicable:
(1) The love, affection and emotional ties
existing between the parents and child;
(2) The disposition of the parents to provide
the child with food, clothing, medical care, education
and other necessary care and the degree to which a
parent has been the primary caregiver;
(3) The importance of continuity in the child’s
life and the length of time the child has lived in a
stable, satisfactory environment;
(4) The stability of the family unit of the
parents;
(5) The mental and physical health of the
parents;
(6) The home, school and community record of the
child;
(7) The reasonable preference of the child if
twelve (12) years of age or older. The court may hear
the preference of a younger child upon request. The
preferences of older children should normally be given
greater weight than those of younger children;
2
modification of custody case?
4. Did the trial court improperly sustain
the appellee’s objections to certain of the
appellant’s questions on the ground that the
questions were leading in nature?
We affirm.
I
The parties were divorced on January 26, 1995. In the
judgment of divorce, the trial court approved and incorporated,
by reference, the parties’ marital dissolution agreement,
executed by them in July, 1994. The parties’ agreement “awarded
[Mother] the custody of the parties’ minor child, Daniel Dewayne2
Eberhart.”
On March 19, 1996, a few days short of 14 months
following the entry of the judgment of divorce, Father filed his
petition seeking to change custody. It was and is his contention
that a change of custody is warranted because (1) the child is
left in the care of his maternal grandfather and others for
substantial periods of time; (2) Mother is not involved in the
“daily care needs of son”; (3) Mother does not provide adequate,
stable housing for the child; and (4) Mother is financially
irresponsible. Father also relies upon the fact that he spends a
(8) Evidence of physical or emotional abuse to
the child, to the other parent or to any other person;
and
(9) The character and behavior of any other
person who resides in or frequents the home of a
parent and such person’s interactions with the child.
2
At other places in the record, the child’s middle name is spelled
“Dwain.”
3
substantial amount of time with his son and is in a position to
afford him a good, stable environment.
The trial court, in denying Father’s request for change
of custody, found that he had failed to carry his burden of
proving a substantial and material change of circumstances
warranting a change of custody, noting that the child is “an All-
American kid, fine example, so somebody’s done something right.”
Our review is de novo; however, the record comes to us
accompanied by a presumption of correctness, which we must honor
unless the evidence preponderates against the trial court’s
findings. Rule 13(d), T.R.A.P. Union Carbide Corporation v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s
conclusions of law are not afforded the same deference. Adams v.
Dean Roofing Co, Inc., 715 S.W.2d 341, 343 (Tenn.App. 1986).
Furthermore, a trial court, “on an issue which hinges on witness
credibility, 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” of the court’s
judgment. Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d
488, 490 (Tenn.App. 1974).
II
As the appellant correctly points out, a judgment or
order awarding custody is res judicata as to the facts in
existence at the time of the award. Long v. Long, 488 S.W.2d
729, 731-32 (Tenn.App. 1972); Walker v. Walker, 656 S.W.2d 11, 16
4
(Tenn.App. 1983); Arnold v. Gouvitsa, 735 S.W.2d 458, 462
(Tenn.App. 1987). “[S]uch decree shall remain within the control
of the court and be subject to such changes or modification as
the exigencies of the case may require.” T.C.A. § 36-6-101.
It is clear that not every change in the circumstances
of the parties and/or their child is sufficient to warrant a
modification of a custody decree. “[I]n a modification
proceeding, the trial judge 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). (Emphasis added).
In Musselman, we quoted the following from a decision
of the Mississippi Supreme Court:
“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 [does] not remotely reach
any such proportion.”
Id. at 923 (quoting from Ballard v. Ballard, 434 So. 2d 1357, 1360
(Miss. 1983)).
5
Particularly apropos to the facts of this case is our
statement in the case of Wall v. Wall, 907 S.W.2d, 829 (Tenn.App.
1995):
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. Contreras v. Ward, Tenn.App.
1991, 831 S.W.2d 288.
Id. at 834.
III
The evidence does not preponderate against the trial
court’s determination that the facts and circumstances relied
upon by Father do not constitute a sufficient change in the
circumstances of the parties and their child “to warrant the
dramatic remedy of changed custody.” See Musselman, 826 S.W.2d
at 922. There are two basic reasons for this. First, much of
what Father contends are “changed circumstances” are actually
facts and conditions that existed at the time of the divorce.
Mother’s living arrangements is a good example of this. She sold
6
the former marital residence prior to the divorce.3 When the
divorce was granted, Mother and the parties’ child had already
taken up residence in quarters which would later be harshly
criticized by Father as being too crowded. Mother’s child care
needs is still another example of information that was known to
Father at the time of the divorce. Mother was then working full-
time. Father had to know that her employment would, by
necessity, require the involvement of others in the care of the
child. All of this was a part of the factual scenario that
existed in January, 1995, when the court dissolved the parties’
marriage. By definition, a condition that existed at the time of
the divorce and was known to Father or should have been obvious
to him because of facts that were clearly known to him at that
time cannot be considered “changed circumstances.” It is obvious
that two of Father’s main complaints--cramped quarters and the
involvement of the maternal grandfather--were very much a part of
the factual scenario in existence when this marriage was
dissolved.
The other reason that Father cannot successfuly rely
upon the circumstances of which he complains is that there is no
proof that the child has been harmed or might be harmed by
Mother’s living arrangements, or the significant involvement of
the maternal grandfather in his care. The same can also be said
about Father’s other complaints--an absence of toys where the
child is residing with the Mother, her multiple abodes, and
Mother’s alleged financial irresponsibility. There is nothing to
3
Mother was required to sell the marital residence by the terms of the
marital dissolution agreement. That document provides that “[Mother] agrees
to immediately place the home for sale.”
7
show that any conduct on the part of Mother “clearly posits or
causes danger to the mental or emotional well-being of [her]
child.” See Musselman, 826 S.W.2d at 923. Clearly, there is no
showing of “substantial harm to the child.” See Wall, 907 S.W.2d
at 834. On the contrary, the proof shows that the child is in
good health, is an “excellent student,” gets along well with
other children, and is otherwise a very normal child in all
respects.
It is clear that Father very much regrets agreeing to
the award of custody to Mother. It is likewise clear that Father
very much cares for his son and has continued an excellent
relationship with him. As the trial court noted, “I don’t have
any evidence that he’s not a good man.” There is nothing to
suggest that Father would not be a proper custodian; but as the
Musselman case points out, in a modification case, the trial
court “need not repeat the comparative fitness analysis that is
appropriate at the time of the original custody decree.” Id. at
922.
We agree with the appellant that T.C.A. § 36-6-106 is
applicable to a modification of custody case just as it is to an
original award of custody; however, in a modification case, the
statute does not come into play unless and until there has been a
showing of a material and substantial change of circumstances as
described in Musselman. Until the requisite change of
circumstances has been shown, the court does not move to “a
custody determination.” See T.C.A. § 36-6-106. There is nothing
in our law to suggest that a “change of circumstances
8
determination” is the same as a “custody determination” under the
statute. We certainly do not interpret T.C.A. § 36-6-106 to mean
that in a modification case, a court is free to do a comparative
analysis of the parties’ fitness as custodians regardless of
whether there is a change of circumstances. Musselman, Wall and
other cases teach otherwise. The statute does not purport to
change this case authority.
We find that the first three issues raised by Father do
not compel a reversal of the trial court’s order.
IV
Father also complains that the trial judge was in error
when he sustained several evidentiary objections by Mother on the
ground of leading. We do not find that any of the challenged
questions were leading in the context in which they were asked.
See Cohen, Sheppeard and Paine, Tennessee Law of Evidence § 611.6
(3d ed. 1995). In none of the questions at issue does the
questioner suggest the answer to the inquiry. In fact, one of
the questions had not been completed when the objection was
made.4 Up to that point, counsel had only posed a point of
reference. With respect to the other two questions, the witness
received no suggestion in the question as to how he should answer
the question. The court was in error in sustaining Mother’s
objections; however, this error does not provide a basis for a
reversal of the judgment in this case. This is because the
4
The question was: “In July, 1994 when you signed the marital
dissolution agreement --”
9
challenged questions were either rephrased and answered or the
information sought to be elicited was placed in the record in
some other fashion. In any event, the trial court’s rulings do
not amount to “error[s] involving a substantial right [that] more
probably than not affected the judgment or would result in
prejudice to the judicial process.” See Rule 36(b), T.R.A.P.
Father’s final issue is found to be without merit.
The judgment of the trial court is affirmed. Costs on
appeal are taxed against the appellant and his surety. This
cause is remanded to the trial court for the collection of costs
assessed below, pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
10