White (Deerman) v. White ( 1999 )

FILED
December 10, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
JENNIFER D. WHITE (DEERMAN), )
)
Plaintiff/Appellee, ) Cheatham Chancery
) No. 8104
VS. )
) Appeal No.
JEFFREY MICHAEL WHITE, ) M1999-00005-COA-R3-CV
)
Defendant/Appellant. )
APPEAL FROM THE CHANCERY COURT FOR CHEATHAM COUNTY
AT ASHLAND CITY, TENNESSEE
THE HONORABLE ALLEN W. WALLACE, CHANCELLOR
For the Plaintiff/Appellee: For the Defendant./Appellant:
Jerry W. Hamlin Gary M. Eisenberg
Ashland City, Tennessee Pleasant View, Tennessee
Page 1
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
Page 2
OPINION
This appeal arises from an agreed custody and visitation arrangement gone
awry. When the parties divorced, the Chancery Court for Cheatham County
approved their marital dissolution agreement giving the mother sole custody of their
three children. The parties later agreed to a joint custody arrangement with the
mother having primary physical custody. When the mother encountered financial
difficulties, the parties agreed to an order continuing joint custody but giving the
father primary physical custody of the children. The mother eventually sought sole
legal custody of the children after the parties’ joint custody arrangement deteriorated.
Following a bench trial, the trial court awarded the mother sole custody of the
children and made provisions for the father’s child support and visitation. The
father appeals. We affirm the judgment granting sole custody to the mother because
the evidence does not preponderate against the trial court’s decision.
I.
Jeffrey Michael White and Jennifer Dannyelle White (now Deerman) married in
December 1985. Before their separation in January 1995, Ms. Deerman gave birth to
three daughters. 1 Ms. Deerman filed a petition for divorce in the Chancery Court for
Cheatham County. On May 5, 1995, the trial court entered an order awarding Ms.
Deerman a divorce and adopting the parties’ marital dissolution agreement which
provided that Ms. Deerman would have sole custody of the children. Ms. Deerman
and the three children remained in Cheatham County, and Mr. White moved to Mt.
Juliet in Wilson County.
Mr. White and Ms. Deerman later agreed to modify the original custody
arrangement. Accordingly, on April 9, 1996, the trial court entered an order
awarding them joint custody of the children. Under this arrangement, the children
would reside with Ms. Deerman during the school year and with Mr. White during
the summer.
Page 3
Ms. Deerman began to experience financial difficulties in August 1996 when
her then husband, Douglas Eugene Rodriguez, left her taking with him whatever
money the couple had in their bank accounts. 2 Ms. Deerman was not employed at
the time and had no way to pay the mortgage or to properly care for the children.
To help pay her bills, she took work as a long-distance truck driver 3 which resulted
in prolonged absences from home during which she could not care for the children
as she had been doing.
The parties devised a new custody arrangement in order to accommodate Ms.
Deerman’s need to work and Mr. White’s desire to develop a closer relationship
with the children. Mr. White agreed to stop driving long distance routes and to run
local routes that would enable him to spend more time with the children.
Accordingly, the parties agreed to continue the joint custody arrangement but
decided that Mr. White, rather than Ms. Deerman, would have primary physical
custody of the children “particularly during the school year.” Because of their
cordial relationship, they also agreed that structured visitation would be unnecessary.
The trial court entered an agreed order on August 21, 1996 giving legal effect
to the parties’ agreement. Instead of specifically delineating Ms. Deerman’s
visitation rights, the order provided that “each of the parties shall have reasonable
and liberal visitation and access to the children while they are in the care and custody
of the other party.” Following the entry of the order, the children moved to Wilson
County to live with Mr. White.
The parties’ relationship began to deteriorate after August 1996, and they
became increasingly hostile toward each other. Ms. Deerman married Michael Lee
Deerman and found a job with normal working hours. In March 1997, she petitioned
for the return of her children. Mr. White responded with a petition seeking sole
custody of the children based on his belief that Ms. Deerman was exposing the
Page 4
children to “immoral and improper conduct” by living with a man to whom she was
not married. Ms. Deerman responded to this allegation by stating that she was, in
fact, married to Michael Deerman.
The trial court did not hear these petitions until December 1998. During the
hearing, Ms. Deerman testified that Mr. White denied her visitation and telephone
contact with the children on several occasions. She also conceded, however, that
when the children were in her custody, her mother would sometimes refuse to allow
Mr. White to see the children. Ms. Deerman also testified that Mr. White refused to
share school or medical records with her. Both parties admitted that they made
derogatory remarks about each other in front of the children. 4 Ms. Deerman also
recounted how Mr. White withdrew their youngest daughter from Girl Scouts after
Ms. Deerman became involved in these activities.
Ms. Deerman testified that her circumstances had improved since August
1996. She had remarried, was current with her bills, and owned her own home.
Instead of long distance trucking, Ms. Deerman was driving a courtesy van for
Capitol Chevrolet every Tuesday and Thursday. She testified that she had more
time to spend with the children than Mr. White who continued driving long distance
truck routes. Mr. White testified that he was forced to take some long distance
routes because Ms. Deerman’s child support payments were sporadic.
The trial court entered an order on January 5, 1999 awarding Ms. Deerman
custody of the children. The trial court also ordered Mr. White to pay child
support, and awarded him visitation on alternate weekends, during Spring Break, for
two weeks of every month in the summer, and during alternate Thanksgiving and
Christmas holidays. Mr. White appeals.
II.
Page 5
Mr. White contends that the trial court erred in modifying the joint custody
arrangement because no unforeseen material change in circumstances had occurred
since the trial court entered the August 1996 order. He also asserts that even if the
trial court correctly terminated the joint custody arrangement, the court should have
awarded him sole legal custody. We have determined that the trial court correctly
determined that the children’s circumstances had changed materially after the entry
of the August 1996 order and that the children’s interests would be served best by
returning physical custody of Ms. Deerman.
A.
Standards for Custody Arrangements
Appellate courts are reluctant to second-guess a trial court's custody and
visitation decisions because they often hinge on the demeanor and credibility of
parents and witnesses during the hearing. See Gaskill v. Gaskill, 936 S.W.2d 626,
631 (Tenn. Ct. App. 1996); D v. K, 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995).
Accordingly, we review these decisions de novo on the record with a presumption
of correctness unless the evidence preponderates otherwise. See Hass v. Knighton,
676 S.W.2d 554, 555 (Tenn. 1984); Gaskill v. Gaskill, 936 S.W.2d at 631; Griffin v.
Stone, 834 S.W.2d 300, 301 (Tenn. Ct. App. 1992).
Courts should devise custody arrangements that promote the child's
relationship with both parents and that interfere as little as possible with post-divorce
family decision-making. See Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996);
Taylor v. Taylor, 849 S.W.2d 319, 331-32 (Tenn. 1993); Varley v. Varley, 934
S.W.2d 659, 668 (Tenn. Ct. App. 1996). These decisions are not made to reward
or punish parents. See Sutherland v. Sutherland, 831 S.W.2d 283, 286 (Tenn. Ct.
App. 1991); Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App. 1991).
Thus, the parents’ interests are secondary to those of the children. See Doles v.
Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App. 1992); Griffin v. Stone, 834 S.W.2d
at 302.
Page 6
B.
Change of Custody
Children have an ongoing need for continuity and stability in their parental
relationships. See Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct.
App. 1997); Hill v. Robbins, 859 S.W.2d 355, 358-59 (Tenn. Ct. App. 1993). 5
Accordingly, parents seeking alteration of an existing custody arrangement must
overcome a strong presumption in favor of the original custody award. See Taylor
v. Taylor, 849 S.W.2d at 332. To overcome this presumption, the parent must
demonstrate first that the child's circumstances have changed materially and second,
that the child's interests will be served best by modifying the existing custody
arrangement. See Adelsperger v. Adelsperger, 970 S.W.2d at 485. The courts
should not engage in a best interests analysis without first satisfying themselves that
there has been a material change in the child's circumstances.
There are no hard and fast rules for determining when a change of
circumstances will be deemed material. See Taylor v. Taylor, 849 S.W.2d at 327;
Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. Ct. App. 1983). As a general
matter, a material change of circumstances must involve the child's circumstances,
not the circumstances of either or both of the parents. It must also involve facts or
circumstances (1) that arose after the entry of the custody order sought to be
modified, see Turner v. Turner, 776 S.W.2d 88, 90 (Tenn. Ct. App. 1988), (2) that
were not known or reasonably anticipated when the underlying decree was entered,
and (3) that affect the child's well-being in some material way. See Geiger v. Boyle,
No. 01A01-9809-CH-00467, 1999 WL 499733, at *3 (Tenn. Ct. App. July 16, 1999)
(No Tenn. R. App. P. 11 application filed); Dalton v. Dalton, 858 S.W.2d 324, 326
(Tenn. Ct. App. 1993). Using these standards, we will now examine the four factual
bases for the trial court's conclusion that there had been a material change in
circumstances in this case.
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C.
The Material Change in Circumstances
The most significant change in circumstances evident in this case is the
weakening and eventual collapse of the parties’ joint custody arrangement. The
parties had been able to maintain a cooperative relationship with regard to their
daughters up to and through the entry of the August 1996 order. However,
following that order, the parties’ relationship deteriorated markedly. The failure of a
once satisfactory joint custody arrangement can constitute a material change of
circumstances sufficient to reopen the issue of custody. See Rubin v. Kirshner, 948
S.W.2d 742, 745-46 (Tenn. Ct. App. 1997); Dalton v. Dalton, 858 S.W.2d at 326;
Cheek v. Cheek, No. 03A01-9503-CV-00092, 1995 WL 507793, at *2 (Tenn. Ct.
App. Aug. 29, 1995) perm. app. denied (Tenn. Jan. 8, 1996).
As with any material change in circumstances, the unworkability of a joint
custody arrangement must directly implicate the child’s welfare. It is not enough that
the parents begin to like each other less because of the passage of time or because
they enter into new personal relationships. The party seeking to replace the joint
custody arrangement with another form of custody must show that the breakdown in
the parents’ relations has or will adversely affect the child in a material way. For
example, one parent may be interfering with the child’s relationship with the other
parent or may be making significant decisions involving the child without consulting
the other parent.
Since August 1996, Mr. White and Ms. Deerman seem to have lost their ability
to cooperate with each other. Without cooperation, the once-agreeable joint custody
arrangement cannot work. 6 The testimony of both parties verifies their antagonism.
Mr. White interfered with Ms. Deerman’s visitation and telephone contact with the
children, and Ms. Deerman’s mother interfered with Mr. White’s visitation. The
parents engaged in name calling in front of the children. Mr. White let his anger
Page 8
against Ms. Deerman affect his participation in the Girl Scouts and actually withdrew
the parties’ youngest daughter from Girl Scout activities because of Ms. Deerman’s
involvement. According to Ms. Deerman, Mr. White also refused her access to the
children’s school or medical records.
It is reasonable to infer that this kind of behavior affects the children’s
welfare. It is also unlikely that the trial court foresaw these events when it entered the
August 21, 1996 order. Accordingly, we find that the evidence does not
preponderate against the conclusion that an unforseen material change in
circumstances has occurred, and affirm the trial court’s decision to reconsider the
joint custody arrangement.
D.
Comparative Fitness of the Parties
Mr. White argues in the alternative that the trial court erred in its application of
the comparative fitness test by failing to consider all of the factors contained in
Tenn. Code Ann. § 36-6-106 (Supp. 1999). He asserts that he would have received
sole custody of the parties’ three children had the trial court given appropriate weight
to these statutory factors. We conclude that the evidence does not preponderate
against the trial court’s decision to award Ms. Deerman custody.
Once a court finds that there has been a material change in circumstances, it
must decide whether changing the existing custody arrangement is in the child’s best
interests. This determination is factually driven and requires the court to carefully
weigh many considerations. See Gaskill v. Gaskill, 936 S.W.2d at 630. These
considerations are delineated in Tenn. Code Ann. § 36-6-106 and Bah v. Bah, 668
S.W.2d 663, 666 (Tenn. Ct. App. 1983). One newly recognized statutory
consideration is “the willingness and ability of each of the parents to facilitate and
encourage a close and continuing parent-child relationship between the child and the
other parent, consistent with the best interest of the child.” Tenn. Code Ann. §
Page 9
36-6-106(10).
Parents competing for custody are human beings with their own unique virtues
and vices. See Gaskill v. Gaskill, 936 S.W.2d at 630. Accordingly, the courts do
not expect a parent to prove that he or she is perfect, see Bah v. Bah, 668 S.W.2d
at 666; Edwards v. Edwards, 501 S.W.2d 283, 290-91 (Tenn. Ct. App. 1973), or
that the other parent is completely unfit. See Griffin v. Stone, 834 S.W.2d at 305;
Harris v. Harris, 832 S.W.2d 352, 353 (Tenn. Ct. App. 1992). Instead, courts
analyze the "comparative fitness" of the parents to determine which of the available
custodians is comparatively more fit than the other at the time of the hearing. See In
re Parsons, 914 S.W.2d at 893; Bah v. Bah, 668 S.W.2d at 666.
Continuity of placement and stability are important considerations in these
sorts of cases. However, continuity and stability do not trump all other
considerations. Depending on the circumstances, the parent who has been acting as
the primary caregiver is not necessarily more fit than the other parent to have
permanent custody. See Gaskill v. Gaskill, 936 S.W.2d at 630-31.
Mr. White argues that the trial court erred by failing to consider all of the
factors outlined in Tenn. Code Ann. § 36-6-106, as evidenced by its emphasis on
one factor, a parent’s facilitation and encouragement of the child’s relationship with
the other parent. The trial court need not recite the list of statutory factors each time
it resolves a custody dispute. It is sufficient to discuss those factors bearing most
heavily on the decision. To show error, Mr. White must persuade us that the
evidence in the record preponderates against the trial court’s finding that Ms.
Deerman is the comparatively more fit parent. He has not met this burden. Ms.
Deerman has remarried, and is financially stable. She is an available parent working
locally only two days a week. Ms. Deerman volunteers to help at the children’s
schools and, unlike Mr. White, continues to participate in the Girl Scouts.
The record contains little evidence that either parent is comparatively more fit
Page 10
than the other. Thus, the trial court found it dispositive that Mr. White had shown
himself unwilling to encourage the children’s relationship with their mother. The
evidence supports this finding. Mr. White interfered with Ms. Deerman’s visitation,
refused to share school and medical records, and withdrew himself and the parties’
youngest daughter from Girl Scout activities when Ms. Deerman became involved.
The children’s need for continuity and stability reinforces our decision to
affirm the trial court. The children have been uprooted twice since the divorce in
May 1995. First, in August 1996, they moved from their mother’s home in
Cheatham County to live with their father in Wilson County. Presumably, this meant
changing schools and making new friends. Then, in January 1999, the children
experienced the same process in reverse. The trial court ordered the children
returned to Ms. Deerman in Cheatham County. Because the children have now lived
in Cheatham County with their mother for almost a year, permitting the current
custody arrangement to continue also serves the children’s best interests.
III.
We affirm the judgment and remand the case to the trial court for whatever
further proceedings may be required. We also tax the costs of this appeal to Jeffrey
Michael White and his surety for which execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
Page 11
________________________________
WILLIAM B. CAIN, JUDGE
Page 12