                    IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT KNOXVILLE
                ________________________________________________            FILED
TAMMY RUSHING GREENE,
                                                                                April 9, 1996
       Plaintiff-Appellant,
                                                    Monroe Circuit #6455 Cecil Crowson, Jr.
Vs.                                                 C.A. No. 03A01-9503-CV-00091 C ourt Clerk
                                                                         Appellate


BRYAN LYNN GREENE,

      Defendant-Appellee.
___________________________________________________________________________

                   FROM THE MONROE COUNTY CIRCUIT COURT

                      THE HONORABLE JAMES C. WITT, JUDGE




                         John W. Cleveland, Cleveland & Cleveland
                               of Sweetwart, for Appellant

                              William A. Buckley, Jr., of Athens
                                       For Appellee




                              REVERSED AND REMANDED

                                        Opinion filed:




                                                            W. FRANK CRAWFORD,
                                                            PRESIDING JUDGE,W.S.

CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE



       This is a child custody case. Bryan L. Greene (Father) and Tammy Rushing Greene, now

Harris (Mother), were divorced by decree entered June 2, 1988. The decree incorporated a prior

Marital Dissolution Agreement, which granted custody of the parties' minor child, Sara Ann
Greene, to Mother, with liberal visitation rights to Father. On September 15, 1994, Father filed

a petition seeking custody, alleging a material change in circumstances. After an evidentiary

hearing on March 10, 1995, the trial court granted Father's Petition for Change of Custody. 1

Mother has appealed, and the only issue is whether the trial court erred in ordering a change of

custody.

          Sara Ann Greene was born in August of 1986. Since the time of the parties' separation

in April of 1987, Sara has resided with Mother or with Mother's parents. Prior to the present

proceeding, Father exercised his visitation rights approximately 50% of the time and generally

paid child support payments in a timely fashion. There was testimony at trial that Sara has a

good relationship with both parents.

          Sara's current teacher at Sweetwater Elementary School, Cleo Davis, testified that Sara

is a good, well-behaved student who shows continued, steady growth in her school work. She

testified that Sara is like "any other third-grader." However, there was evidence that Sara had

been absent from school frequently, missing 32 of 180 days in the second grade. Mother

testified that Sara's absences were generally caused by colds, and she also missed ten days of

school because of chicken pox.

          Dr. Tom Hanaway, a clinical psychologist who performs forensic evaluations for courts

in custody matters, met with Sara twice. He also met with Sara's mother, father, maternal

grandmother, and talked to two of Sara's school teachers. He testified that Sara is very bonded

to her mother, and that she expressed a strong desire to continue living with Mother. Dr.

Hanaway found Sara to be a bright, well-adjusted child who did not exhibit signs of

psychological problems.

          Father is a 29 year old resident of Kingsport, Tennessee. He works part-time for Wells

Fargo and part-time on his family's farm. Father admitted on cross-examination that he has had

numerous jobs since the parties' divorce. Although Father receives no compensation for working

on the farm, he lives in his parents' home, has his meals there, and receives some financial

support from the elder Greenes. Father testified that if he is awarded custody, he will continue



1
    This Court granted Mother’s Motion for Stay Pending Appeal, pursuant to T.R.A.P. 7.

                                                2
       to live with his parents in this four bedroom home. Mrs. Greene will take care of Sara when

       Father is at work.

               As evidence of changed circumstances affecting Sara's welfare, Father asserts that Mother

       has changed her residence approximately five times since the parties' 1988 divorce. Father

       testified that Mother has had several boyfriends. There was evidence that at least one boyfriend,

       Tony Harris, whom Mother later married, lived with Mother and Sara outside of wedlock. Both

       Mother's second and third marriages failed.2 Father admitted that Sara had adequate housing and

       food. Although Father has never met or talked with Sara’s teachers, he stated that her education

       was neglected during the first and second grades.

               Trina Johnson, Mother's first cousin, testified on behalf of Father. She testified that

       Mother lived with David Thompson, whom Mother did not marry, in 1988, and that Father was

       aware of this living situation. (Mother denied living with Thompson.) Trina also stated that,

       during the period Mother was involved with Thompson, Trina saw Mother and Thompson at a

       convenience store, without Sara. Trina, concerned about Sara's welfare, immediately went to

       Mother's apartment. Trina testified that she heard crying inside the apartment, but that no one

       came to the door when she knocked. Trina waited at the apartment, hidden, until Mother and

       Thompson returned, approximately thirty minutes later. Trina also testified that on one occasion

       in 1992, when she went to Mother's house, at Mother's request, to pick up Sara, she noted that

       the apartment was a mess and there was no food in the house. Trina also testified that when

       Mother moved out of a house owned by Mother and Trina's great-grandmother, Dovie Rushing,

       Mother left the house in complete disarray. This testimony was contradicted by Jane Moser,

       Sara's maternal grandmother.

               Dovie Rushing, Mother's grandmother, also testified on Father's behalf. Mrs. Rushing,

       who lives in Sweetwater, has a close relationship with Sara and has kept her frequently since

       Sara was a small child. She testified that although Sara always had adequate food, clothing, and



       2
         Mother's third marriage, to Neil Turner, took place on February 1, 1994. The ceremony
was performed by Fay Tennyson, a former County Commissioner. Mother testified that she
believed she was married, but later discovered that the marriage certificate had not been returned
to the county clerk's office, shedding doubt on the validity of the marriage. Regardless, Mother
ended her relationship with Turner prior to her discovery that the marriage might not be valid.

                                                      3
housing, Mother was a “poor housekeeper” and had not given Sara “the best of care.”

       Mr. Robert Greene, Sara's paternal grandfather, testified on behalf on his son. He

testified that Sara would be welcome in his home in Kingsport. He also stated that he did not

harbor any bad feelings against Mother.

       Mother testified that a change of custody would not be in Sara's best interest. However,

she testified that she has always encouraged, and continues to encourage, her daughter's

relationship with Father. After the parties' divorce, Mother lived in public housing for two years.

Mother and Sara then moved to a house owned by one of Mother's aunts in Athens, where they

lived for one year. Mother testified that she and Sara moved to Athens because Mother was

unhappy with Sara's school in Sweetwater, which was experimenting with a "non-traditional"

classroom. Mother and Sara next moved to Knoxville in order for Mother to attend the

University of Tennessee. Mother and Sara lived there for one semester, but returned to Mother's

parent's home in Sweetwater because Mother had to undergo major surgery. After Mother

recuperated, Mother and Sara moved to a house in Sweetwater owned by Mother's grandmother.

 After leaving that house, Mother and Sara lived in an apartment in Sweetwater, near Mother's

parents' home. When Mother married Turner in spring of 1994, they moved briefly to Tellico

(however, Sara continued to attend school in Sweetwater). At the time of trial, Mother and Sara

were living with Mother's parents in Sweetwater.

       Questions regarding custody first arose in May of 1994, when Mother checked herself

into a psychiatric hospital in Chattanooga. Mother, who suffers from chronic depression, felt

that it would be in the best interest of Sara and Katie, a daughter from Mother's marriage to Tony

Harris, to spend time with their respective fathers while she recovered. Mother contacted Sara's

father and Kate's father to suggest a joint custody arrangement. Kate's father, Harris, agreed to

joint custody; Sara's father demanded sole custody, which Mother refused to grant. In September

of 1994, Mother checked herself into a psychiatric hospital in Knoxville. Currently, Mother

meets with a counselor every two weeks. She testified without contradiction that her medication

for depression has stabilized and she is doing well. She feels that she is capable, with the

assistance of her extended family when needed, of providing for all of Sara's needs.

        Jane Moser testified on behalf of her daughter. Mrs. Moser keeps Sara frequently. Mrs.

                                                4
Moser stated that Mother is a very good housekeeper. Mrs. Moser corroborated Mother's

testimony that Mother never lived with Thompson. Mrs. Moser stated that she had never noticed

that Mother's problems with depression affected either of Mother's children, and it is her

observation Mrs. Moser stated that Mother is a loving parent who has always provided

adequately for Sara.

       At the close of all the testimony, the trial court stated from the bench:

                       It looks to me like that there's two groups of family
               members, some up in Kingsport and some down here around
               Sweetwater, generally speaking. And there are-- both families
               love this little girl . . . . And for the most part both families have
               been respectful people.

                       But I don't believe that the actions of the mama have been
               particularly conducive to the raising of the child. Now, there was
               some proof . . . about her living with a man or two. I think that
               I heard proof that she lived with Turner several months before
               they were married . . . If she wasn't living with him, it was
               awfully close to it.

               ****
                      And I'm going to rule, and it is my ruling, that the
               defendant, that would be the petitioner I guess, Greene, will have
               custody of the child.

                       Now, you all, I think--and it's also my ruling that this lady
               will have liberal visitation rights. But I don't think she ought to
               be around that child at times when she's experiencing these deep
               depressions. You know, that's not conducive to raising of the
               child, is to be in the depression part of the time. And it's not
               conducive to raising the child to live with somebody or --before
               you marry them.

               ****
                       What I am trying to look at is 10 years from now or 20
               years form now, which one, looking back, would have most likely
               give [sic] this girl a college education, a profession, the
               opportunity to meet and marry first-class people that would be
               good for her and good for her future family and so forth.

       Our review of the findings of fact of the lower court is de novo upon the record,

accompanied by a presumption of the correctness of the trial court's findings. Unless we find

that the evidence preponderates against these findings, we must affirm, absent error of law.

T.R.A.P. 13(d); Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990).

       The doctrine of res judicata bars a second suit between the same parties on the same

cause of action with respect to all issues which were or which could have been litigated in the


                                                 5
former suit. Wall v. Wall, 907 S.W.2d 829, 832 (Tenn. App. 1995). Thus, a custody order

cannot be changed absent a showing of new facts, or "changed circumstances," which require

an alteration of the original custody award. Woodard v. Woodard, 783 S.W.2d 188, 189 (Tenn.

App. 1989).

       Child custody cases present primarily factual, not legal questions. Rogero v. Pitt, 759

S.W.2d 109, 112 (Tenn. 1988). Although there are no hard and fast rules as to what constitutes

"changed circumstances," Arnold v. Arnold, 774 S.W.2d 613, 618 (Tenn. App. 1989), it is well

settled that the best interest of the child is the paramount consideration in a child custody case.

Contreras v. Ward, 831 S.W.2d 288, 289 (Tenn. App. 1991). The party seeking a change in

custody has the burden of proving by the preponderance of the evidence that a change in custody

is in the child's best interest. Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991).

In considering whether or not changed circumstances exist, we find the statement of the Wall

court instructive:

               When two people join in conceiving a child, they select that
               child's natural parents. When they decide to separate and divorce,
               they give up the privilege of jointly rearing the child, and the
               divorce court must decide which parent will have primary
               responsibility for rearing the child. This decision of the Court is
               not changeable except for "change of circumstances" which is
               defined as that which requires a change to prevent substantial
               harm to the child. Custody is not changed for the welfare or
               pleasure of either parent or to punish either parent, but to preserve
               the welfare of the child. Custody is not changed because one
               parent is able to furnish a more commodious or pleasant
               environment than the other, but where continuation of the
               adjudicated custody will substantially harm the child.

Id. 907 S.W.2d at 834.

       In the instant case, we cannot agree with the lower court's determination that there has

been a change in circumstances which warrants changing Sara Greene's custody. While there

was evidence that Mother has moved frequently and has been involved in several unsuccessful

relationships, neither a parent's remarriage nor a parent's sexual indiscretion are, per se, grounds

for a change in custody. See, e.g. Mimms v. Mimms, 780 S.W.2d 739, 745 (Tenn. App. 1989);

Arnold, 774 S.W.2d at 618; Curry v. Curry, 416 S.W.2d 372, 377 (Tenn. App. 1967). There

was no evidence that Sara has been harmed either by Mother's moves or by Mother's romantic

involvements. Additionally, there is no evidence that Mother's experiences with depression

                                                 6
       have had a negative effect on Sara's welfare. Mother testified at trial, without contradiction, that

       her depression is under control through medication and counseling. Both Sara's teacher and Dr.

       Hanaway testified that Sara was a well-adjusted child who exhibited no behavioral problems.

       Neither Father nor any of the witnesses who testified on his behalf stated that Sara lacked food,

       shelter, or clothing.   Although both Mother and Father have good relationships with Sara,

       neither relationship is flawless.3 However, Sara has been in her mother's custody for her entire

       life. Sara expressed a desire to both the lower court and to Dr. Hanaway to remain in her

       mother's custody. While the preference of an eight year old child is not binding upon this Court,

       it is a factor which we may consider. T.C.A. § 36-6-102(b) (Michie 1991). Absent a threat to

       Sara's welfare, we find her close relationship with Mother and Mother's extended family in

       Sweetwater to be significant. In Contreras, this Court emphasized the importance of stability

       in a child's life:

                        The stability provided by the continuation of a successful
                        relationship with a parent who has been in day to day contact with
                        a child generally far outweighs any alleged advantage which
                        might accrue to the child as a result of custodial change. In short,
                        when all goes well with children, stability, not change, is in their
                        best interests.

       Id., 831 S.W.2d at 290.

               Our review of the record reveals no change in circumstances which threatens to cause

       substantial harm to Sara's welfare. Accordingly, the judgment of the trial court is reversed, and

       the case is remanded for such further proceedings as are necessary. Costs on appeal are taxed

       to the appellee.

                                                                _________________________________
                                                                W. FRANK CRAWFORD,
                                                                PRESIDING JUDGE, W.S.

       CONCUR:


       _________________________________
       ALAN E. HIGHERS, JUDGE



       3
         This Court does not look lightly upon the fact that Father violated the trial court's
original custody order by refusing to return Sara to her mother's custody at the end of a scheduled
visit which began September 16, 1994. Although Mother's actions have not always reflected
good judgment, this action on the part of Father shows a clear lack of responsibility.

                                                         7
_________________________________
DAVID R. FARMER, JUDGE




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