Benjamin Robert Crabtree v. Janice L. Rehbein Crabtree ( 2000 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
BENJAMIN ROBERT CRABTREE V. JANICE L. REHBEIN CRABTREE
Direct Appeal from the Circuit Court for Hawkins County
No. 8621 Hon. Kindall T. Lawson, Circuit Judge
No. E2000-00501-COA-R3-CV - Decided June 23, 2000
Mother sought change of custody from father due to alleged change of circumstances. The Trial
Judge refused to change custody and mother appealed.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
FRANKS, J., delivered the opinion of the court, in which SUSANO, J., and SWINEY , J., joined.
Phillip L. Boyd, Rogersville, Tennessee and Randall A. Eads, Abingdon, Virginia, for Appellee.
Stephen L. Gilly, Kingsport, for Appellant.
OPINION
The Trial Judge refused to change custody of the minor child to the mother, and the
mother has appealed.
The father and mother were married on August 23, 1997 in Sevier County, Tennessee,
and one child was born of that marriage. During the marriage, the mother moved to Minnesota with
the minor child. There they resided with the mother’s father. The husband filed for divorce in May
of 1998. The Trial Judge granted the divorce and awarded custody of the minor child to the father,
and the order provided for extended visitation by the mother, including three months during the
summer.
The mother filed for a change of custody on August 12, 1999, alleging a material
change in circumstances. Specifically, since the divorce she has remarried and moved out of her
father’s house, and she has also begun working at home. After hearing evidence on the issue, the
Trial Judge refused to change custody of the minor, and the mother has appealed.
The standard of review in child custody cases is de novo upon the record, of the Trial
Court, accompanied by a presumption of correctness as to findings of fact, unless a preponderance
of the evidence is otherwise. Rule 13(d) T.R.A.P., Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984).
In recognition of the importance of stability and continuity, custody and visitation
decisions, once made and implemented are res judicata upon the facts in existence or reasonably
foreseeable when the decision was made. Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn. Ct.
App. 1997); Young v. Smith, 246 S.W.2d 93 (Tenn. 1952).
Tennessee Code Annotated §36-6-101(a)(1) empowers courts to change custody “as
the exigencies of the case may require.” Courts will change custody when the party seeking the
change in custody proves that the child’s circumstances have materially changed in a way that could
not have been foreseen at the time of the original custody decision, and the child’s best interest will
be served by changing the existing custodial arrangements. Adelsperger, at 485; Musselman v.
Acuff, 826 S.W.2d 920 (Tenn. Ct. App. 1991).
Before engaging in this analysis, the Court must determine whether there has been
a material change in circumstances. We observed in Wall v. Wall, 907 S.W.2d 829 (Tenn. Ct. App.
1995):
This decision [regarding custody] 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.
Id. at 834.
In this case, the custodial parent’s circumstances have not changed. The mother has
remarried and moved out of her father’s house, and she states her new job will allow her to work at
home. Remarriage may constitute a material change in circumstances, as in the case of Tortorich
v. Erickson, 657 S.W.2d 190, 192 (Tenn. Ct. App. 1984); where the custodial parent had remarried,
creating a questionable environment for the child. In this case, the mother’s remarriage has
apparently created a more stable and better home environment, which is laudable; however, the Trial
Judge concluded that the improvement in the mother’s living conditions was not sufficient to
counteract the need for stability in the child’s life.
We affirm the judgment of the Trial Court and remand at appellant’s cost.
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