McCain v. Grim

FILED
October 15, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
TIMOTHY SCOTT McCAIN, )
)
Plaintiff/Appellee, ) Rutherford Chancery
) No. 94DR-921
VS. )
) Appeal No.
LISA MARIE GRIM, ) 01A01-9711-CH-00634
)
Defendant/Appellant. )
APPEAL FROM THE CHANCERY COURT
FOR RUTHERFORD COUNTY
AT MURFREESBORO, TENNESSEE
THE HONORABLE ROBERT E. CORLEW, III, CHANCELLOR
For Plaintiff/Appellee: For Defendant/Appellant:
Phillip M. George Charles G. Ward
Smyrna, Tennessee Murfreesboro, Tennessee
Page 1
REVERSED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
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OPINION
This appeal presents a post-divorce dispute over the custody of two children.
When the parties were divorced in 1994 in the Chancery Court for Rutherford
County, the father agreed that the mother should have sole custody of the children.
Three years later, after learning that the mother and her new husband planned to
move to North Carolina, the father petitioned for a change of custody. Following a
bench trial, the trial court concluded that there had been a material change in the
children’s circumstances and that the father was comparatively more fit to have
custody of the children. Accordingly, the trial court changed the custody of the
children to the father. The mother asserts on this appeal that the evidence does not
support the trial court’s decision to change custody. We agree and, therefore,
reverse the trial court’s order awarding custody of the children to the father.
I.
Lisa M. Grim and Timothy S. McCain were married in June 1986 in Davidson
County. Ms. Grim, who was on active duty with the United States Army, was
twenty years old at the time, and Mr. McCain was then twenty-two years old. Ms.
Grim later transferred to the Tennessee National Guard, and Mr. McCain became
employed as an air traffic controller at the Smyrna airport. They had two children
together, Matthew who was born in February 1988 and Jessica who was born in
January 1991.
The parties separated in February 1994 and later executed a marital dissolution
agreement providing that Ms. Grim would receive sole custody of the children and
that Mr. McCain would pay $461.44 per month in child support. Ms. Grim filed her
complaint for divorce in the Chancery Court for Rutherford County on the day after
Mr. McCain executed the marital dissolution agreement. In November 1994, the trial
court entered an order granting Ms. Grim a divorce on the ground of irreconcilable
differences and approving the parties’ marital dissolution agreement. Accordingly,
Ms. Grim and the two children continued to live in the family home in Smyrna which
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she received under the terms of the marital dissolution agreement.
Ms. Grim married Darren Grim in September 1995. Mr. Grim is a career
member of the United States Army assigned to the Golden Knights Parachute Team.
He had been married previously and had two children from this marriage who lived
in North Carolina. In May 1996, Mr. McCain married Sherry McCain, an
elementary school teacher in Smyrna. Sherry McCain had been married before and
had custody of two children from the previous marriage. The McCains, like the
Grims, continued to live in Smyrna; however, in December 1996, the Grims moved
to Nashville.
Ms. Grim ended her full-time employment with the National Guard in order to
be more available to her children. Later, in 1997, Mr. Grim learned that had been
transferred to Fort Bragg in Fayetteville, North Carolina and that he was expected to
report for duty there on December 1, 1997. The Grims decided to move to North
Carolina in October 1997 in order to enable Ms. Grim to pursue some part-time
employment opportunities and to minimize the disruption to the children’s schooling.
Soon after Ms. Grim informed Mr. McCain of the planned move, Mr. McCain
petitioned the trial court to change the existing custody arrangement because Mr.
Grim “has been abusive toward the children by engaging in activities that have
caused them physical and mental harm” and because the Grims were “threatening to
move the children again out of state to North Carolina.” Ms. Grim responded by
denying that Mr. Grim had abused the children and by admitting that she and Mr.
Grim planned to move to North Carolina. She also alleged that Mr. McCain had not
been paying child support and that the amount of Mr. McCain’s child support
payments should be increased because his income had substantially increased.
The trial court conducted a bench trial on September 30, 1997. Following the
conclusion of the proof, the trial court announced its conclusion that the parties’
circumstances had changed significantly following the entry of the initial custody
decree. In the court’s estimation, this change was brought about “collectively” by
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(1) the remarriage of both parents, (2) the “interactions” of the children with their
step-parents, (3) Ms. Grim’s moves to Nashville and North Carolina during the
children’s school year, and (4) the circumstances surrounding the “lifestyles of each
of the parties and their new families.” After concluding that both step-parents and
both homes were satisfactory, the trial court decided that Mr. McCain was
comparatively more fit than Ms. Grim to have custody of the children and, therefore,
that Mr. McCain should receive sole custody of the children. Ms. Grim has
appealed.
II.
Ms. Grim asserts that the evidence preponderates against the trial court’s
conclusion that there had been a material change in circumstances following the
divorce and that the children’s interests would be best served by awarding custody
to Mr. McCain. We agree that no material change in circumstances has occurred.
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). 1
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 319, 332 (Tenn. 1993). 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.
Some ambiguity exists concerning the meaning of “material change in
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;
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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.
A.
The Remarriage of Both Parties
The first factual basis for the trial court’s conclusion that there had been a
material change of circumstance is that both Mr. McCain and Ms. Grim married
again following their divorce. When the parties divorced in 1994, common
experience indicated that they would marry again. 2 Because their remarriages were
reasonably anticipated, they are not the sort of change of circumstances that will
trigger a reconsideration of an existing custody arrangement. See Arnold v. Arnold,
774 S.W.2d 613, 618 (Tenn. Ct. App. 1989).
B.
The Children’s “Interactions” with their Step-parents
Even though a parent’s remarriage will not, by itself, trigger a consideration of
a change of custody, the changes in the home environment brought about by a later
marriage may amount to a material change of circumstances if these changes have a
materially adverse effect on the child in some material way. See Tortorich v.
Erickson, 675 S.W.2d 190, 192 (Tenn. Ct. App. 1984). Thus, a parent seeking to
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alter an existing custody arrangement may trigger a fresh comparative consideration
of the parents’ fitness by demonstrating that the custodial parent’s remarriage has or
will have an adverse effect on the child. See Smithson v. Eatherly, 1999 WL
548586, at *5.
We confess to having some difficulty discerning what the trial court was
referring to when it rested its conclusion that there had been a material change in the
children’s circumstances on their “interactions” with their step-parents. The trial
court could not have been comparing the children’s relationship with their
step-parents because such comparisons, while proper during the comparative fitness
stage of the analysis, would have been inappropriate when determining whether there
had been a material change in the children’s circumstances. Therefore, we can only
conclude that the trial court was alluding to the “swirly incident,” the “marker
incident,” and the manner in which Mr. Grim disciplined the children early in the
marriage.
All these circumstances, taken together, do not amount to a material change in
the children’s circumstances because there is no evidence that they materially
affected the children. 3 After hearing the proof concerning these matters, the trial
court found the evidence “favored neither party” and that both step-parents and
homes were “satisfactory.” The trial court also found that both step-parents cared
for and were concerned about the children. While the trial court stated that the
evidence “hint[ed] at a less than perfect relationship” between Mr. McCain and Mr.
Grim, it did not find, and the record does not contain evidence, that the relationship
between the two men has affected or will affect the children’s circumstances in any
material way.
C.
The Moves to Nashville and North Carolina
The third factual basis for the trial court’s finding that there had been a
material change in the children’s circumstances was the Grims’ move from Smyrna
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to Nashville and their contemplated move from Nashville to Fayetteville, North
Carolina. The trial court’s reliance on these moves is misplaced. Moving, in and of
itself, is not a change of circumstances that warrants modifying an existing custody
arrangement. See Taylor v. Taylor, 849 S.W.2d at 332; Adelsperger v. Adelsperger,
970 S.W.2d at 486 n.2.
As with the proof regarding the children’s relationship with their step-parents,
the trial court compared the Grim household with the McCain household while
determining whether the Grims’ contemplated move to North Carolina was a material
change in circumstances. The court should have determined whether Ms. Grim’s
leaving Smyrna could reasonably have been anticipated at the time of the original
custody arrangement and whether her move would materially affect the children’s
well-being.
Custody decisions should, to the greatest extent practicable, shield children
from the adverse effects of divorce and should place the children in circumstances
that provide them the best chance to develop into healthy, adjusted, and productive
members of society. However, it is unrealistic for courts to undertake to devise
custody arrangements that will shield children from the vicissitudes of growing up in
contemporary American society, including the prospect that their family may move
from familiar to new surroundings. See Yeager v. Yeager, No.
01A01-9502-CV-00029, 1995 WL 422470, at *3 (Tenn. Ct. App. July 19, 1995) (No
Tenn. R. App. P. 11 application filed).
It was not unthinkable at the time of the 1994 divorce hearing that Ms. Grim
might at some point move away from Smyrna. Her military background and
employment created this possibility. There is no evidence in the record that the
original decision to award her custody was based on her assurance that she would
not move from Rutherford County at any time in the future. Likewise, the record
contains no evidence that the Grims’ decision to move from Smyrna to Nashville or
their contemplated move to Fayetteville, North Carolina will have a materially adverse
effect on the children. The record also lacks evidence that the Grims’ decision to
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move from Smyrna to Nashville or from Nashville to North Carolina were motivated
by any sort of improper motive. 4
D.
The Lifestyles of the Parties
The final factual basis for the trial court’s finding that there had been a material
change of circumstances was its comparison of the “lifestyles of each of the parties
and their new families.” The court should have focused on the Grims to determine
whether any aspect of their current “lifestyle” was adversely affecting the children in
a material way. The trial court effectively answered this question in the negative
when it found that both homes and step-parents were “satisfactory.”
We have carefully reviewed the evidence for any indication that living in the
Grim household would adversely affect the children. While the record paints a
picture of different home environments and clear differences between Mr. McCain
and Mr. Grim, we find no evidence to support a conclusion that the children would
be harmed, physically or emotionally, if they continued to live in the Grim
household. To the contrary, Mr. Grim and Ms. Grim have made the children their
top priority. Ms. Grim changed her work schedule to spend more time with the
children. For his part, Mr. Grim helps with the children’s homework, is active in the
PTA, helps get the children ready for school, and helps cook their meals. Both
parents take the children roller skating, boating, snow skiing, bike riding, and to the
movies.
Mr. Grim is an active member of the military who is attached to an elite
parachute unit. He appears to be an active, rugged individual who enjoys horseplay
and outdoor activities. He has involved himself in the children’s lives, and the
children and Mr. Grim appear to have regard and affection for each other. The early
disagreements over proper discipline between Mr. Grim and Ms. Grim have been
resolved, and there is no evidence that the children have been adversely affected in
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any way.
The evidence does not support the trial court’s conclusion that a material
change of circumstances occurred between 1994 and 1997 warranting a
reconsideration of its earlier decision to award Ms. Grim custody of the parties’ two
children. Accordingly, the trial court erred by comparing the fitness of the Grim
household and the McCain household, and by determining that the children’s interest
would be best served by altering the existing custody arrangement and awarding
custody to Mr. McCain.
III.
For the reasons stated herein, we reverse the order changing custody of the
children from Ms. Grim to Mr. McCain and remand the case to the trial court for the
entry of an order denying Mr. McCain’s request for a change of custody. We tax
the costs of this appeal to Mr. McCain for which execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
__________________________________
BEN H. CANTRELL, JUDGE
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