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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
May 1, 2001 Session ROBERT KEITH RICHARDSON v. DEBORAH ETTA RICHARDSON
A Direct Appeal from the Circuit Court for Shelby County No. 150511-7 The Honorable Robert A. Lanier, Judge

No. W2000-02374-COA-R3-CV - Filed June 14, 2001

This is a post-divorce custody case. Father filed a petition for change of custody of the parties' minor children alleging material change of circumstances. After a nonjury trial, the trial court denied Father's petition, and Father appeals. We affirm.

Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS, J. joined and DAVID R. FARMER , J., joined by filing a separate concurring opinion. Michael D. Moskovitz; Adam N. Cohen, Memphis, For Appellant, Robert Keith Richardson Robert G. Millar, Dyersburg, For Appellee, Deborah Etta Richardson OPINION By decree filed March 13, 1996, Robert Keith Richardson ("Father") and Deborah Etta Richardson ("Mother")were divorced. The decree incorporated a previously filed and executed marital dissolution agreement, providing for joint custody of the parties' two minor children, Robert Allen Richardson ("Allen"), born November 3, 1983, and Ashley Nicole Richardson ("Ashley"), born August 11, 1987. Mother was designated as the primary custodial parent. Mother remarried in 1996 to Mike Canada, ("Canada") and moved to Friendship, Tennessee with the parties two children. In September of 1997, Father filed a petition to modify the final decree for a change in custody of Allen. On December 11, 1997, an order was filed denying Father's petition and modifying the final decree of divorce declaring Mother to be the lawful custodian of the two minor children. In August of 1998, Father filed a second petition to modify the final decree of divorce, seeking custody of both of the parties' minor children. On March 17, 1999, the trial court entered an order awarding Father legal custody of Allen but denied the request for a change of custody of

Ashley, stating that there was no evidence regarding the daughter's present condition or welfare, other than what could be implied from negative evidence about Mother's character. While married to Canada, Mother became involved with a David Williamson and the children were aware of her relationship with him. In September of 1999, Mother divorced Canada and soon thereafter began dating Brad Wheatly ("Wheatly") who was married at the time, but no longer living with his wife. On April 12, 2000, Father filed a third petition with the trial court seeking custody of Ashley. On April 17, 2000, Mother married Wheatly, who had obtained a divorce in March of 2000 and had been granted custody of his four minor daughters, who now reside with Mother and Ashley. After a nonjury hearing on August 18, 2000, the trial judge stated from the bench that Father's petition for a change of custody was denied. An order denying Father's petition was filed September 19, 2000. It is from this order that Father appeals, raising one issue, as stated in his brief: "Did the trial court err in refusing to modify the final decree of divorce and designate Father as the custodial parent of the parties' minor daughter?" Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. Rule 13 (d) T.R.A.P. This rule applies to child custody cases. Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). "In recognition of the importance of stability and continuity, custody and visitation decisions, once made and implemented are res judicata upon the facts in existence or reasonably foreseeable when the decision was made." Crabtree v. Crabtree, No. E2000-00501-COA-R3-CV, 2000 WL 816807 (Tenn. Ct. App. June 23, 2000) (citing Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn. Ct. App. 1997) and Young v. Smith, 246 S.W.2d 93 (Tenn. 1952)). Father contends that Wheatly committed perjury by testifying at his discovery deposition that he had not been charged with any crimes and later admitted at trial that he had been charged with and convicted of domestic violence in January of 1999, and theft in May of 1999. Father also asserts that although Wheatly testified at his deposition that he had not driven a motor vehicle since his license has been suspended, at trial he admitted to driving "maybe a foot," and a tape presented at trial evidenced Wheatly driving both a car and a motorcycle for distances greater than one foot. Father asserts that Mother acknowledged that Wheatly played an important role in Ashley's life. Father argues that Wheatly does not set a good example for Ashley, evidenced by his perjury and convictions. Father asserts that Mother's marriage to Wheatly constitutes a material change in circumstance warranting an alteration of the previous custody arrangement. Father contends that Mother perjured herself in her deposition testimony when she claimed that Wheatly had not driven while his license was suspended. Father avers that Mother has set a bad example for Ashley by her own perjury and faults her for exposing both children to adulterous relationships since the initial award of custody. In addition, Father contends that the adverse effect of the separation of the -2-

siblings pursuant to the order of March 17, 1999, granting Father custody of Allen constitutes a material change of circumstances warranting a change of custody. Finally, Father contends that even if no one factor alone is sufficient to constitute a material change of circumstances to warrant a change of custody, all factors taken together constitute a material change in circumstances. Father claims that Ashley's weight gain and personality change from an outgoing to a quiet child support his claims that her current home environment poses a threat to her well being. Father submits that the record shows that he is comparatively more fit than Mother as a parent. Pursuant to T.C.A

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