Phyllis Renee Brown v. Charles Chandler Brown, Sr. - Concurring

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
FILED
PHYLLIS RENEE BROWN, ) November 2, 1998
)
Plaintiff/Respondent, ) Shelby Circuit No. Cecil Crowson, Jr.
136582 R.D.
) Appellate C ourt Clerk
VS. ) Appeal No. 02A01-9709-CV-00228
)
CHARLES CHANDLER BROWN, SR., )
)
Defendant/Petitioner. )
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CONCURRING OPINION
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I concur in the result reached by the majority opinion. However, I write separately
to express my concern with the language on page 10 of that opinion which states that, “[i]n order to
be compelling enough to warrant the dramatic remedy of changed custody, the change of
circumstances must be such that ‘continuation of the adjudicated custody will substantially harm the
child.’” I acknowledge that this language appears in Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. App.
1995), an opinion of the middle section of this court. However, I further note that Wall cited
Contreras v. Ward, 831 S.W.2d 288 (Tenn. App. 1991). Contreras was a parental relocation case
which stated the long recognized rule that “the best interest and welfare of the child must be the
primary focus of attention.” Contreras, 831 S.W.2d at 290. The court also cited with approval from
Sartoph v. Sartoph, 354 A.2d 467, 473 (Md. Ct. Spec. App. 1976), wherein the Maryland Court of
Special Appeals stated that “[t]he custody of children should not be disturbed unless there is some
strong reason affecting the welfare of the child. To justify a change in custody, the change in
conditions must have occurred which affects the welfare of the child and not that of the parents.”
In Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. App. 1991), the eastern section
of this court noted that the paramount consideration in custody proceedings is the best interest of the
child and that, when the issue is whether to modify a prior custody order, the court need not repeat
the comparative fitness analysis set forth in Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983).
Instead, the trial court in a modification proceeding must find a material change in circumstances
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compelling enough to warrant the dramatic remedy of changed custody. The court went on to say
that “[i]t is only that behavior of a parent which clearly posits or causes danger to the mental or
emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis
to seriously consider the drastic legal action of changing custody.” Musselman, 826 S.W.2d at 924
(quoting Ballard v. Ballard, 434 So. 2d 1357, 1360 (Miss. 1983)).
Our supreme court recently addressed the standard to be applied in modifying a child
custody decree in Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996). Aaby, which also dealt with
parental relocation, cited Musselman for the proposition that “Tennessee law allows custody to be
changed if the behavior of the custodial parent clearly posits a danger to the physical, mental or
emotional well-being of the child.” Aaby, 924 S.W.2d at 629-30 (emphasis added).
The eastern section of this court subsequently has interpreted Musselman and Aaby
to mean that “[t]he Musselman/Aaby test requires more -- we must find ‘behavior . . . [that] clearly
posits a danger’ to the children.” Rector v. Rector, No. 03A01-9604-CV-00123, 1996 WL 539767,
at *4 (Tenn. App. Sept. 25, 1996) (emphasis added). I do not interpret Aaby, however, to hold that,
“in order to be compelling enough to warrant the dramatic remedy of changed custody, the change
of circumstances must be such that continuation of the adjudicated custody will substantially harm
the child.”
Citing Wall, the western section of this court has held that a custody decision is not
changeable except for change of circumstances, which is defined as that which requires a change to
prevent substantial harm to the child. Williams v. Williams, No. 01A01-9610-CV-00468, 1997 WL
272458, at *6 (Tenn. App. May 23, 1997); Greene v. Greene, No. 03A01-9503-CV-00091, 1996 WL
165098, at *4 (Tenn. App. Apr. 9, 1996). This section also has cited Musselman for the proposition
that “[i]t is only that behavior of a parent which clearly posits or causes danger to the mental or
emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis
to seriously consider the drastic legal action of changing custody.” Williams, 1997 WL 272458, at
*6 (emphasis added). I acknowledge that I have concurred in previous decisions containing the
foregoing language, but upon further reflection, I believe the better standard is as set forth in
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Stroud v. Stroud, No. 01A01-9607-CH-00291, 1997 WL 266846 (Tenn. App. May 21, 1997),
wherein this court said “[c]ustody may be changed if the behavior of the custodial parent clearly
posits a danger to the physical, mental, or emotional well-being of the child.” Stroud, 1997 WL
266846, at *7 (emphasis added) (citing Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996)).
Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 1998) empowers the courts to change
custody “as the exigencies of the case may require.” The middle section of this court stated recently
that: “The courts will change a custody or visitation arrangement if the party seeking the change
proves (1) that the child’s circumstances have changed materially in a way that could not reasonably
have been foreseen at the time of the original custody decision, see Smith v. Haase, 521 S.W.2d 49,
50 (Tenn. 1975); McDaniel v. McDaniel, 743 S.W.2d 167, 169 (Tenn. Ct. App. 1987), and (2) that
the child’s interests will be better served by changing the existing custody or visitation arrangement.
See Hall v. Hall, No. 01A01-9310-PB-00465, 1995 WL 316255, at *2 (Tenn. Ct. App. May 25,
1995) (No Tenn. R. App. P. 11 application filed).” Solima v. Solima, No. 01A01-9701-CH-00012,
1998 WL 726629, at *2-3 (Tenn. App. Oct. 16, 1998).
As Professor Garrett states, “[t]he Tennessee appellate courts have cited many criteria
of changed circumstances, which would justify a change of custody or modification of visitation
rights. When the cases are analyzed, one question appears crucial: Is the child’s best interest being
served by the existing placement?” W. Walton Garrett, Tennessee Divorce, Alimony & Child
Custody § 26-4 (1997 ed.) (footnotes omitted). He further lists some 33 criteria upon which our
courts have based modification of child custody decrees. Id. § 26-5.
I am concerned that we have created too harsh a standard by holding that a change
of custody will be granted only upon a showing that a continuation of the adjudicated custody will
substantially harm the child. Harm is defined as “physical or mental damage.” Webster’s Ninth
New Collegiate Dictionary 554 (1990). I can envision circumstances in which there is determined
to be a material change of circumstances which would indicate that a change of custody is in the
child’s best interest, but would fall short of a continuation of the adjudicated custody resulting in
“substantial harm” to the child.
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DAVID R. FARMER, JUDGE
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