Nancy Renee McReynolds (Delbridge) v. Robert Irving McReynolds ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
NANCY RENEE )
McREYNOLDS (DELBRIDGE), )
)
Plaintiff/Appellant, ) Bedford Chancery No. 19,185
)
VS. ) Appeal No. 01A01-9702-CH-00064
)
ROBERT IRVING McREYNOLDS, )
)
Defendant/Appellee. )
APPEAL FROM THE CHANCERY COURT OF BEDFORD COUNTY
AT SHELBYVILLE, TENNESSEE
THE HONORABLE TYRUS H. COBB, CHANCELLOR
FILED
October 3, 1997
TERRY A. FANN Cecil W. Crowson
R. STEVEN WALDRON Appellate Court Clerk
WALDRON AND FANN
Murfreesboro, Tennessee
Attorneys for Appellant
JOHN H. NORTON, III
NORTON & SMITH
Shelbyville, Tennessee
Attorney for Appellee
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
HOLLY KIRBY LILLARD, J.
Nancy Renee McReynolds Delbridge (Mother) appeals the trial court’s order denying
her counterpetition to modify the joint custody arrangement previously agreed to by the
parties and set forth in their final divorce decree. For the reasons stated hereinafter, we
affirm the trial court’s judgment.
The Mother and Appellee Robert Irving McReynolds (Father) were divorced in
Bedford County in July 1994. Per their agreement, the final divorce decree awarded the
parties joint custody of their two minor daughters. Although the decree awarded the
Mother primary physical custody of the children, the decree set forth an arrangement
whereby the children spent three nights per week (Wednesday, Thursday, Friday) with the
Father and the remaining four nights per week with the Mother. Additionally, the decree
permitted the Father to pick up the children and take them to church every other Sunday.
In March 1995, the Father filed a petition to change custody in which he asked the
trial court to terminate the joint custody arrangement and to award him sole custody of the
children. As grounds for this change, the Father alleged that the Mother was engaging in
overnight visits with a male friend while the children were present and, further, that the
Mother was consuming intoxicants around the children. The Father’s petition also
described conflicts over joint custody issues which had arisen between the parties since
the divorce.
The Mother answered and filed a counterpetition in which she similarly requested
the trial court to modify the joint custody arrangement by awarding her sole custody of the
children. The Mother’s counterpetition alleged that the following material change of
circumstances warranted modification of the joint custody arrangement:
That [the Father] constantly harasses [the Mother] to the point
where she has been forced to place a block on her telephone.
That, further, [the Father] intentionally places the minor
children of the parties in the middle of an argument with [the
Mother] even though [the Mother] has repeatedly advised him
that doing so causes emotional harm to the children. That,
[the Mother] has tried to cooperate with [the Father] in every
respect in order to assure that the children’s best interests are
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preserved; however, [the Father’s] attitude makes cooperation
impossible.
The parties’ daughters were six and seven years old, respectively, in August 1996
when the custody modification hearing took place. At the hearing, the Mother testified that
the Father’s hostility toward her had increased since the parties’ divorce and had made the
joint custody arrangement unworkable. According to the Mother, these problems began
in August 1994, the month following the divorce. When the Father arrived at the Mother’s
house one day to pick up the children, the Father discovered that a male friend of the
Mother was there working on an air conditioner. The Father became very hostile and
initiated a loud, verbal confrontation with the man, whose name was Tom Delbridge. The
Father terminated the confrontation only after Delbridge reminded him that the children
were present.
After the Father filed his modification petition, the Mother married Delbridge and
moved to the Rockvale community of neighboring Rutherford County. The Mother’s
relationship with the Father has continued to deteriorate since the divorce. As recently as
July 1996, the month before the hearing, another angry confrontation occurred between
the Father and Delbridge at a ballpark. The Father coached the children’s softball team,
and the Mother and Delbridge were there to watch the game. After the game, the Father
and Delbridge argued over what time the Father was going to pick up the children for
visitation the next evening. Again, with the children present, the Father became very loud
and made threatening statements toward Delbridge.
In addition to the Father’s confrontations with Delbridge, the Mother testified that the
Father had made joint custody difficult in other ways. For example, the Mother testified
that the Father had enrolled the children in a soccer camp and other programs without first
consulting the Mother. Generally, the Father is 35 to 40 minutes late returning the children
to the Mother’s house. A dispute also arose after the divorce over whether the Father had
paid his share of the children’s child-care expenses. The Mother testified that she blocked
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her telephone from receiving calls from the Father because he called so many times when
the Mother had the girls that the Mother felt the Father was harassing them.
Despite these conflicts with the Father, the Mother acknowledged that both children
were healthy and were very good students. Although both children are students in the
Bedford County school system, and both the Mother and Delbridge are employed by the
school system, the Mother and Delbridge live over 30 miles away in Rutherford County.
Accordingly, on the three school mornings each week when she has the children, the
Mother drives over 60 miles round trip to Bedford County. The Mother expressed a desire
to enroll the children in Rutherford County schools the following school year. The Mother
also acknowledged that the Father’s problem of returning the children late began after the
Mother moved to Rutherford County. Despite the inconvenience to the Father and the
extra travel time for the children, on the weekends when the Father was permitted to take
the children to church on Sunday morning, the Mother still insisted that the Father return
the children at the scheduled time on Saturday evening. The Mother justified this decision
by explaining that her time with the children was “very precious” to her.
In his testimony, the Father acknowledged that he had engaged in hostile
confrontations with Delbridge, including the incident at the ballpark the month before the
hearing, but the Father denied being the aggressor in these situations. The Father
believed that the initial confrontation with Delbridge occurred before the parties’ divorce
was final. The Father testified that there was hostility between the parties at the time of
the divorce and that, if anything, he was not as vocal in his animosity now as he used to
be. The Father believed that the Mother put the block on the phone, not because his calls
were harassing, but because the Mother did not want him to talk to the children. The
Father admitted telling the Mother about the children’s soccer camp on the Friday before
the Monday the camp started, and he admitted often returning the children as much as 20
minutes late. The Father testified, however, that he alone handled the responsibility of
transporting the children between his house in Bedford County and the Mother’s house in
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Rutherford County. The Father further testified that the children had always attended
school and church in Bedford County and that most of their relatives lived there.
The Father filed his petition to change custody primarily because of his objection to
the Mother’s overnight visits with Delbridge in the presence of the children. Now that the
Mother and Delbridge were married, this asserted ground for modification no longer
existed. In closing arguments, therefore, the Father’s attorney argued that no material
change in circumstance had been shown and that the joint custody arrangement should
be continued, “with the exception that [the Father] ought to have the ability on his Sundays
when he takes the children to church, to keep them over that Saturday night, so that the
[children] are not on the road four or five times during that two-day period.”
At the conclusion of the custody hearing, the trial court orally ruled that it was
declining to terminate the joint custody arrangement. In doing so, the trial court specifically
rejected the Wife’s claim that hostility between the parties constituted a change of
circumstance which warranted a change of custody. The trial court instead found that
[T]here was hostility at the time [of] the divorce . . . .
....
. . . I don’t see that there has been any increase in
hostility since the time of the separation. I think it probably has
lessened.
In determining that continuation of the joint custody arrangement was in the children’s best
interests, the court stated:
. . . I haven’t heard any proof that [joint custody] has adversely
affected these children. Both parents say the children are
happy; the children are healthy.
The court found that joint custody should be continued at least for the next school year
because the children were closer to their school when they stayed with the Father at his
home in Bedford County. That way, the children only had to make the 64-mile round trip
three days per week rather than five days per week. The trial court subsequently entered
a written order setting forth its rulings on the custody issue and related issues.
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The Mother has appealed, challenging virtually every ruling and finding contained
in the trial court’s written order. Specifically, the Mother contends that the following rulings
and findings are in error:
C. . . . [T]he Court specifically [finds] that there has
not occurred such a material and substantial change in
circumstances as to warrant the entry of a modification order
changing custody from joint to sole. There is no proof that joint
custody has had an adverse impact on the welfare of the
children.
D. The Court, though finding some hostility between
the parties, does not find that the hostility level has increased
since the time of the parties’ divorce.
E. The Court does find some slight change in
circumstances due to the move by [the Mother] of her
residence to Rutherford County, Tennessee. Accordingly, on
those alternating weeks when [the Father] has the right to take
the children to church on Sunday, he will not be obligated to
return the children from the time he receives them on
Wednesday at 5:00 p.m. until the following Sunday at
1:00 p.m.
F. The parties should continue to share the joint
custody of their children, at least for the next year since [the
Mother] testified that the children will be attending Bedford
County schools for the current 1996-1997 school year. Should
[the Mother] choose to enroll the children in some school
system other than the Bedford County school system for the
1997-1998 school year, either party may petition the court to
modify the joint custody situation at that time.
G. The parties are ordered to continue the child
support agreement as specified in their marital dissolution
agreement with [the Father] being ordered to continue paying
$500.00 per month as child support . . . . The Court
specifically finds that, due to the joint custody arrangement,
this is an appropriate case for deviating from the Tennessee
Child Support Guidelines.
H. Each party shall pay his or her own attorneys
fees and litigation expenses.
If this were an appeal from an original custody proceeding, we might be hesitant to
affirm the trial court’s decision to award these parties joint custody of their children, given
some of the difficulties related by the parties at the hearing. We note, however, that the
parties agreed to this arrangement in the final divorce decree and that this is now a
proceeding to modify that arrangement. In a proceeding to modify a prior custody order,
the party seeking a change of custody has the burden of proving a material change in
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circumstances compelling enough to warrant such a change. See Musselman v. Acuff,
826 S.W.2d 920, 922 (Tenn. App. 1991); see also T.C.A. § 36-6-101(a)(1) (1996)
(providing that trial court retains jurisdiction over custody orders subject to such changes
or modification as “exigencies” of case may require). A change of circumstances
warranting a modification of custody includes “any material change of circumstances
affecting the welfare of the child or children” and requires a showing of “new facts or
changed conditions which could not be anticipated by the former decree.” Dalton v. Dalton,
858 S.W.2d 324, 326 (Tenn. App. 1993).
In Massengale v. Massengale, 915 S.W.2d 818 (Tenn. App. 1995), this court set
forth the applicable standard for reviewing a trial court’s determination of the issue of
changed circumstances in a custody modification proceeding:
In order to justify a change in a custodial arrangement,
there must be “such a change in circumstances as will directly
affect the welfare of the minor.” Dailey v. Dailey, 635 S.W.2d
391, 393 (Tenn. App. 1981). As in all non-jury cases, a trial
court’s determination on this issue is reviewed by us de novo;
however, the record developed below comes to us
accompanied by a presumption of correctness that we must
honor unless the evidence preponderates against the findings
of fact supporting the lower court’s judgment. Hass v.
Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). In making our
de novo review, we “do [ ] not pass on the credibility of
witnesses.” Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn.
App. 1991). “Credibility is an issue for the trial court who saw
and heard the witnesses testify and is therefore in the premier
position to determine credibility (citation omitted).” Id.
Massengale, 915 S.W.2d at 819.
Based on the trial court’s finding that no material change of circumstance had
occurred since the parties’ divorce, we affirm the trial court’s denial of the Mother’s
counterpetition to change custody. In the past, we have held that the “unworkability of joint
custody because of the recalcitrance of one or both partners” may constitute a change of
circumstances warranting a change of custody. Dalton v. Dalton, 858 S.W.2d 324, 326
(Tenn. App. 1993); accord Cheek v. Cheek, No. 03A01-9503-CV-00092, 1995 WL 507793,
at *2 (Tenn. App. Aug. 29, 1995), perm. app. denied (Tenn. Jan. 8, 1996); Phillips v.
Phillips, No. 01A01-9407-CH-00363, 1995 WL 336973, at *3 (Tenn. App. June 7, 1995).
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In the present case, however, the trial court found that, if anything, the hostility between
the parties had actually lessened since the time of the final divorce decree and, thus, that
no material change of circumstance had been shown. The trial court also found no
evidence that the children had been adversely affected by the joint custody arrangement.
In accordance with the foregoing standard of review, we must presume that these findings
are correct, unless the evidence preponderates otherwise.
We recognize that the evidence concerning the level of hostility between the parties
in this case was disputed at the custody hearing. The trial court, however, was in a
position to evaluate the credibility of the witnesses at the hearing, and the court apparently
resolved this dispute in favor of the Father. As in Massengale, “we cannot say that the
evidence preponderates against the trial court’s findings of fact supporting its conclusion
that there had not been a sufficient change in circumstances to justify a change in
custody.” Massengale, 915 S.W.2d at 820.
At the custody hearing, the Father acknowledged that there had been
disagreements between the parties relating to the children’s clothing, exchanging the
children for visitation, and other matters. Accordingly, the evidence was undisputed that
the parties have experienced some problems with the joint custody arrangement. In
DeVault v. DeVault, No. 01A01-9601-CV-00012, 1996 WL 482968, at *3 (Tenn. App.
Aug. 28, 1996), however, this court recently held that an award of joint custody is not
precluded by the fact that the parties may experience some problems with the joint custody
arrangement; an award of joint custody does not require that the parties be on friendly
terms. This holding was based, in part, on the legislature’s 1996 amendment of the child
custody statutes, an amendment which effectively eliminated the judicially-created
presumption against joint custody awards which previously existed in this state. DeVault,
1996 WL 482968, at **2-3 (citing 1996 Tenn. Pub. Acts. 1046). 1
1
As am end ed, the statute provide s that:
Except as provided in the following sentence, neither a preference
nor a presum ptio n fo r or against jo int legal cus tod y, joint physical custody
or sole custody is established, but the court shall have the widest discretion
to order a custody arrangement that is in the best interest of the child.
Unless the court finds by clear and convincing evidence to the contrary,
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Although we affirm the trial court’s order denying a change of custody, we remind
the parties that the trial court is empowered to revisit its decision if future circumstances
warrant. As this court previously has cautioned parties,
[T]he Trial Court retains the power to change the form of
custody. Such change will undoubtedly militate against the
custodial rights of one of the parents. It therefore behooves
both parents to strive mightily to make joint custody work.
Gray v. Gray, 885 S.W.2d 353, 355 (Tenn. App. 1994).
Inasmuch as the trial court always retains jurisdiction to modify its child custody
orders, we regard as superfluous the trial court’s ruling that, “[s]hould [the Mother] choose
to enroll the children in some school system other than the Bedford County school system
for the 1997-1998 school year, either party may petition the court to modify the joint
custody situation at that time.” We know of no procedural impediment to either party filing
a future petition to change custody. The trial court may only grant such a petition,
however, if the petitioner meets the burden of proving that a material change of
circumstance has occurred which justifies changing custody. Musselman v. Acuff, 826
S.W.2d 920, 922 (Tenn. App. 1991). Although we question whether the Mother’s decision
to change the children from Bedford to Rutherford County schools would constitute such
a change in circumstances, we note that this issue is not properly before the court at this
time.2
In light of our affirmance of the trial court’s decision to continue the joint custody
arrangement, we affirm the trial court’s decision not to increase the Father’s child support
obligation at this time. Per the parties’ marital dissolution agreement, the final divorce
there is a presumption that joint custody is in the best interest of a minor
child where the parents have agreed to joint custody or so agree in open
court at a hearing for the purpose of determining the custody of the minor
child. . . . The burden of proof necessary to modify an order of joint custody
at a subsequent proceeding shall be by a preponderance of the evidence.
T.C.A. § 36-6 -101(a)(2) (1996).
2
W e likewise decline to address the issue of whether the trial court erred in modifying the Father’s
visitation sch edu le on th e we ekend s he take s the childre n to churc h. Although the Mother raised this in her
statement of the issues presented for review, the argument portion of the Mother’s brief fails to set forth her
contentions with respe ct to this issue. A cco rdingly, this issue is waived. See Bla ir v. Badenhope, 940 S.W .2d
575, 576-77 (T enn. App. 199 6); T.R.A.P. 27. In any event, we find the trial co urt’s resolution of this issue to
be an equitable one.
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decree required the Father to pay $500 per month in child support. Admittedly, this
amount is less than the presumptive amount established by the Child Support Guidelines.
Due to the continued joint custody arrangement, however, the trial court properly found that
this was an appropriate case for deviating from the Guidelines. See Gray v. Gray, 885
S.W.2d 353, 356 (Tenn. App. 1994).
We also affirm the trial court’s decision to deny the Mother’s request for an award
of attorney’s fees and costs. Tennessee Code Annotated section 36-5-103(c) governs
awards of attorney’s fees in proceedings relating to child support and child custody:
The plaintiff spouse may recover from the defendant
spouse, and the spouse or other person to whom the custody
of the child, or children, is awarded may recover from the other
spouse reasonable attorney fees incurred in enforcing any
decree for alimony and/or child support, or in regard to any suit
or action concerning the adjudication of the custody or the
change of custody of any child, or children, of the parties, both
upon the original divorce hearing and at any subsequent
hearing, which fees may be fixed and allowed by the court,
before whom such action or proceeding is pending, in the
discretion of such court.
T.C.A. § 36-5-103(c) (1996). Courts have held that, under the foregoing statute, a party
who successfully pursues or defends a change of custody petition is entitled to an award
of attorney’s fees. See D v. K, 917 S.W.2d 682, 686 (Tenn. App. 1995); Gaddy v. Gaddy,
861 S.W.2d 236, 241 (Tenn. App. 1992); Fenley v. Fenley, No. 03A01-9604-CH-00121,
1996 WL 469683, at *4 (Tenn. App. Aug. 19, 1996). In the present case, however, the
Mother did not successfully pursue her counterpetition to modify custody because the
petition was denied. Accordingly, we agree with the trial court that the Mother was not
entitled to an award of attorney’s fees.
As a final matter, we deny the Father’s motion for damages for frivolous appeal.
See Anderson v. Dean Truck Line, 682 S.W.2d 900, 902-03 (Tenn. 1984).
The trial court’s judgment is hereby affirmed. Costs of this appeal are taxed to
Appellant, for which execution may issue if necessary.
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HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
LILLARD, J.
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