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O'Bannon v. O'Bannon11/20/2003
se this father was so terrible. He was a pedophile. He had raped her. And she changed that somewhat in court, but she certainly made statements that would give people the impression that he raped her. She said that he caused them to engage in sex in front of the children. She said he was a pornographer. It appeared to the Court that all of these things were done in preparation to make this move reasonable. I think a parent who would say - - make those slanderous remarks about another parent has really put his or her fitness as a parent in question.
Now, there is no evidence that any of this directly affected the children, but there's plenty of evidence that it would indirectly affect the children, because if her feelings about the father were this great, it would be very difficult for that not to spill over to the children. And it would be a matter of time before the children would ask the father what a pedophile was, because the word was being spread around. And there was no indication that there was any attempt being made to recall this.
And it was those things that, not only were material changes of circumstances, in the Court's opinion, but were also evidence of vindictiveness with respect to the planned move. And following the statute and the father's pleading the Court had to go into consideration of custody because of the material change of circumstances.
In Kornblee v. Kornblee, 2001 WL 109385 (Tenn. Ct. App.)[no perm. app. filed], the mother after receiving an objection to her request to relocate, embarked on a mission to try to limit father's access to the children and require supervised visitation. To that end, the mother asserted allegations that the father was physically and sexually abusive to the children. The allegations proved to be groundless and this court found that, "Given the vindictive spirit displayed in the record by Mrs. Kornblee, the trial court did not err in refusing to allow the children to relocate to Wyoming and in declining to restrict the visitation of the children with their father to supervised visitation."
We cannot find that the evidence preponderates against the judgment denying relocation. Rule 13(d) Tenn. R. App. P.
The Custody Issue
We next address Wife's argument that the Trial Court erred in changing custody of the parties two children to Husband.
In a recent opinion, Cranston v. Combs, 106 S.W.3d 641,644 (Tenn. 2003), the Supreme Court discussed the two step process that a court is required to engage in before making a determination as to the propriety of modifying custody:
First, the court must determine whether a material change in circumstances has occurred after the initial custody determination. Although there are no bright-line rules for determining when such a change has occurred, there are several relevant considerations: (1) whether a change has occurred after the entry of the order sought to be modified; (2)whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child's well-being in a meaningful way. (Citations omitted).
Second, after finding that a material change in circumstances has occurred, the trial court must determine whether modification of custody is in the child's best interests using the factors enumerated in Tennessee Code annotated section 36-6-106 (2001). These factors include:
(1) The love, affection and emotional ties existing between the parents and the child;
(2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessar
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