Appeal from the General Sessions Court for Loudon County No. 9156 William H. Russell, Judge.
In this post-divorce case, the primary issue presented is whether the evidence preponderates against the trial court's determination that custody of the parties' two children should be changed from the mother to the father. After a brief hearing at which neither the mother nor her counsel was present, the trial court applied a comparative fitness analysis without discussing or ruling upon whether a material change of circumstances had occurred. The trial court held it to be in the children's best interest to transfer custody from the mother to the father because the mother had allegedly been living with a man to whom she was not married and who was separated from, but still married to, someone else. We hold that the evidence does not establish a material change of circumstances justifying a change in custody in the absence of proof that the mother's alleged conduct has affected the children in an adverse way. We, therefore, reverse the judgment of the trial court with instructions to the trial court to dismiss Father's counter-petition for change of custody and remand for such further action as may be necessary consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Reversed; Case Remanded.
The opinion of the court was delivered by: Sharon G. Lee, Judge
SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and CHARLES D. SUSANO, JR., J., joined.
The parties, Kristi Leanne Cosner ("Mother") and Charles Arthur Cosner ("Father") were divorced by decree entered on January 31, 2005. Two children had been born to the marriage: William Blake Cosner (born on 10/21/89) and Anjelika Marie Cosner (born on 7/8/93). The agreed permanent parenting plan was incorporated by reference into the divorce decree; it provided that Mother was the primary residential parent, with visitation provided to Father every Wednesday from 6:00 p.m. until Thursday at 8:00 a.m., every other weekend, various holidays, and two weeks in the summer.
On March 24, 2006, Mother filed a petition "to modify and enforce final decree of divorce" alleging that Father had not paid one-half of medical expenses for the children as agreed in the permanent parenting plan, and that Father "has had a significant increase in salary and the child support should therefore be modified to reflect said increase." Father answered and filed a counter-petition alleging that Mother had "unilaterally taken steps to deny [Father] any visitation with his youngest child" Anjelika, that Mother had not paid one-half of the children's extracurricular expenses as agreed in the permanent parenting plan, and that Mother had failed to provide Father with summer visitation as set forth in the parenting plan. Father later amended his counter-petition to allege a material change of circumstances warranting a change of custody, stating the following particulars:
[Mother] has alienated Anjelika from [Father] and has perniciously engaged in a pattern of conduct designed to undermine [Father's] relationship with Anjelika.
[Mother] does not model proper parental behavior in that she has maintained a number of sexual relationships with men, brought them to her home with the children present, some of whom are married.
[Mother] is unstable and is prone to outbursts of anger in the presence of the children, which is detrimental to their well-being and is calculated to undermine the children's relationship with [Father].
The modification of the Permanent Parenting Plan as designating [Father] as the Primary Residential Parent is in the best interest of the parties' children.
Three days before the hearing, Mother's attorney, A. Wayne Henry, filed a motion to withdraw as her counsel. The day of the hearing, Mr. Henry appeared in court and presented his motion to withdraw, but neither his client (Mother) nor a witness subpoenaed by Father (Mother's alleged live-in boyfriend and the father of her newborn child) appeared in court. The following colloquy occurred at the beginning of the hearing:
THE COURT: Where is your client? Is this her?
MR. HENRY: No, it isn't. I'm not exactly sure, Your Honor. I talked -- I tried to call and talk to her in the last -- since this morning and -- I mean, she was somewhere between taking her child -- taking care of her child and going to work.
THE COURT: All right. Are you ready?
MR. CRABTREE [Father's attorney]: Yes, ...