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 Robert A. Lanier, Judge

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

DAVID R. FARMER , J., concurring.

I concur in the result reached by the majority opinion. However, I write separately to express my concern with the language in the opinion to the effect that a change of circumstances substantial to warrant a change of custody requires a change to prevent substantial harm to the child. I acknowledge that this language appears in Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995), an opinion of the middles section of this court. However, I further note that Wall cited Contreras v. Ward, 831 S.W.2d 288 (Tenn. Ct. 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.

In Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. 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. Ct. App. 1983).

Instead, the trial court in a modification proceeding must find a material change in circumstances 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. Ct. 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. Ct. App. May 23, 1997); Greene v. Greene, No. 03A01-9503-CV-00091, 1996 WL 165098, at *4 (Tenn. Ct. 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 Stroud v. Stroud, No. 01A01-9607-CH-00291, 1997 WL 266846, at *1 (Tenn. Ct. 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)).

Section 36-6-101(a)(1) of the Tennessee Code Annotated 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)[modified, 1987 WL 15543, at *1 (Tenn. Ct. App. Aug. 7, 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. Ct. App. Oct. 16, 1998).

As Professor Garrett states: Before custody is changed, the trial court will engage in a two step procedure.

First, the trial judge must find an unanticipated significant change of circumstances sufficient to change custody. Second, the trial court will engage in a comparative fitness examination to determine which custodial setting will be most beneficial for the child.

-2- W. Walton Garrett, Tennessee Divorce, Alimony & Child Custody § 26-4 (2000 ed.) (footnotes omitted). I recognize that Professor Garrett further states, “[m]ost of the appellate opinions require a finding of changed circumstances which indicate a substantial risk of harm to the child’s emotional or physical well being.” Id. He further lists some 37 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.

____________________________________ DAVID R. FARMER, JUDGE

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