William Winchester v. Glenda Winchester ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
On-Brief July 11, 2001
WILLIAM THOMAS WINCHESTER v. GLENDA RACHELLE
WINCHESTER (WINBUSH)
A Direct Appeal from the Circuit Court for Chester County
No. 4186 The Honorable Don Allen, Judge
No. W2000-01764-COA-R3-CV - Filed October 3, 2001
In a post-divorce proceeding, father filed a "motion" to increase visitation with his minor
child. The trial court found that there had been no material change of circumstances since the entry
of the prior visitation order and denied the "motion." Father has appealed. We affirm.
Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.
William T. Winchester, Pro Se
No Brief Filed By Appellee
OPINION
The parties, William Thomas Winchester (“Father”), appellant, and Glenda Rachelle
Winchester (“Mother”), appellee, are divorced and have one minor child. The current child custody
order is not in the record, but according to Father’s brief it was entered January 8, 1998, and changed
the prior child custody arrangement from joint custody, with the child alternating weekly between
the parents, to sole custody being placed with the Mother and allowing Father visitation every other
weekend. On May 18, 1999, Father filed “Motion to Increase Visitation,” and an evidentiary hearing
was held on November 22, 1999. The motion was denied by order entered January 20, 2000,
because the trial court did not find that there was a material change of circumstances sufficient to
warrant an increase in visitation. However, this order did provide that the “[p]laintiff, [Mr. William
Thomas Winchester], be allowed to call the minor child every Tuesday and Thursday at 7:00 p.m.,
for a duration of at least ten minutes, which may be adjusted by the Court as the minor child’s age
increases.”
On February 7, 2000, Father filed “Motion for New Hearing and/or to Amend Judgment on
Motion to Increase Visitation.” This motion was also denied by final order entered June 27, 2000.
Father has appealed and presents two issues for review as stated in his brief:
(1) Whether the trial court committed an error of law by using the
‘material change of circumstances’ standard instead of the ‘best
interest of the child’ standard in deciding a motion to increase
visitation between the father and the child.
(2) Whether the trial court erred and abused its discretion in denying
a motion to increase visitation where the undisputed facts constituted
a ‘material change of circumstances’ which warranted an increase in
visitation.
Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).
A trial court's decisions involving custody and visitation, once made, are final and will not
be modified unless the trial court is satisfied that a material change in circumstances has occurred
since the prior order was entered. Neely v. Neely, 737 S.W.2d 539, 544 (Tenn. Ct. App. 1987)
(citing Young v. Smith, 246 S.W.2d 93, 95 (Tenn. 1952); Long v. Long, 488 S.W.2d 729, 731-32
(Tenn. Ct. App. 1972)). T.C.A. § 36-6-101(a) (Supp. 2000) empowers the courts to change custody
‘as the exigencies of the case may require’ and courts will change custody when the party seeking
to change custody proves (1) that the child’s circumstances have materially changed in a way that
could not have been reasonably foreseen at the time of the original custody decision, and (2) that the
child’s best interests will be served by changing the existing custody arrangement.” Adelsperger v.
Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997)(citations omitted). There are no bright
line rules for determining when a change in a child’s circumstances will be deemed material enough
to warrant a change in the custody or visitation arrangement. Roberts v. Roberts, No. M2000-00216-
COA-R3-CV, 2000 WL 1473869, at 2 (Tenn. Ct. App. Oct. 5, 2000) (citing Taylor v. Taylor, 849
S.W.2d 319, 327 (Tenn. 1993)).
As to the first issue on appeal, appellant argues that the best interest of the child standard
should be used when determining whether to modify parental visitation. Although Tennessee law
provides that when “reviewing child custody and visitation cases, [the Court] must remember that
the welfare of the child has always been the paramount consideration,” Luke v. Luke, 651 S.W.2d
219, 221 (Tenn. 1983), child 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, 485 (Tenn. Ct. App. 1997) (citing Young v. Smith,
246 S.W.2d 93, 95 (Tenn. 1952)). Therefore, the first step a court must take when determining
whether to alter or modify visitation or custody decisions is to find whether the child’s circumstances
have materially changed in a way that could not have been reasonably foreseen at the time of the
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original custody decision. See Adelsperger v. Adelsperger, 970 S.W.2d at 485. We agree with the
trial court on this issue and hold that the material change of circumstances standard is the appropriate
standard used when determining whether to modify a visitation or custody decision.
As to the second issue, Father argues that the evidence established a material change of
circumstances. Father testified that the minor child has not adjusted well to the loss of time with him
which resulted from the January 8, 1998 custody order. He further testified that Mother lives in
Huntingdon, Tennessee, and Father lives in Memphis, Tennessee, and that although the current
custody order allows for visitation upon agreement of the parties, Mother refuses to allow Father
visitation outside the specific times provided for in the current custody order.
The fact that Mother lives in Huntingdon, Tennessee and Father lives in Memphis, Tennessee
does not create a material change in the child’s circumstances, because there is no evidence in the
record stating that Mother moved to Huntingdon, Tennessee after the January 8, 1998 order changing
custody. This argument by Father is without merit.
As to the assertion regarding Mother's refusal of visitation outside the specific times provided
for, there is no proof in the record concerning specific deviations of additional visitation in order to
determine any unreasonableness of those denials. Father has also testified that Mother has cut off
all communication with him, but, again, there is no proof indicating that this has affected the child
constituting a change of circumstances.
Accordingly, the evidence does not preponderate against the trial court’s finding that there
is no material change of circumstances warranting an increase in visitation at this time.
The order of the trial court is affirmed, and the case is remanded for such further proceedings
as may be necessary. Costs of the appeal are assessed against the appellant, William Thomas
Winchester, and his surety.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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