Massengale v. Massengale

              IN THE COURT OF APPEALS OF TENNESSEE




REX M. MASSENGALE, SR.,       )
                                                        FILED
                                  C/A NO. 03A01-9503-CV-00086
                              )   HAMILTON COUNTY CIRCUIT COURT
          Plaintiff-Appellant,)                        October 2, 1995
                              )
                              )                         Cecil Crowson, Jr.
v.                            )                         Appellate C ourt Clerk
                              )   HONORABLE ROBERT M. SUMMITT,
                              )   JUDGE
                              )
                              )
AUDREY L. MASSENGALE          )
(WILLIAMSON),                 )
                              )
          Defendant-Appellee. )   AFFIRMED AND REMANDED




A. CHRISTIAN LANIER, Chattanooga, for Appellant

PHILLIP A. LAWRENCE of POOLE, LAWRENCE, THORNBURY, STANLEY &
MORGAN, Chattanooga, for Appellee




                          O P I N I O N


                                                     Sus a no, J .




                                  1
               This is a post-divorce proceeding involving the custody

of the parties' one minor child, Rex M. Massengale, Jr., whose

date of birth is September 20, 1985.             The parties were divorced

by the "Final Judgment and Decree" of the Dade County, Georgia,

Superior Court entered on October 19, 1993.              That document

approved and adopted the parties' agreement that the child's

custody should be vested with his mother, Audrey L. Williamson1

(Mother2).       The instant controversy was initiated by the child's

father, Rex M. Massengale, Sr. (Father), on November 16, 1994,

not quite 13 months after the divorce, when he filed a petition

to change the child's custody.           After a bench trial, the trial

court dismissed the Father's petition.             Father appeals, raising

two issues:



               1.    Was there a sufficient change in

                     circumstances to warrant a change

                     in the custody of the parties'

                     child?

               2.    Should the trial court have ordered

                     that the parties submit to drug

                     testing?



               In order to justify a change in a custodial

arrangement, there must be "such a change in circumstances as

will directly affect the welfare of the minor."               Dailey v.

Dailey, 

, 393 (Tenn. App. 1981).               As in all non-



      1
          The child's mother married Scott Williamson on November 18, 1994.
      2
       Since the issues before us pertain directly to the parties' child, the
parties will be referred to in this opinion as "Mother" and "Father."

                                         2
jury cases, a trial court's determination on this issue is

reviewed by us de novo; however, the record developed below comes

to us accompanied by a presumption of correctness that we must

honor unless the evidence preponderates against the findings of

fact supporting the lower court's judgment.      Hass v. Knighton,

, 555 (Tenn. 1984).      In making our de novo review,

we "do[] not pass on the credibility of witnesses."      Bowman v.

Bowman, 

, 567 (Tenn. App. 1991).      "Credibility is

an issue for the trial court who saw and heard the witnesses

testify and is therefore in the premier position to determine

credibility (citation omitted)."       Id.



          We have carefully reviewed the evidence in this case.

The testimony of the witnesses tending to support the Father's

petition for change of custody was sharply disputed by the

testimony of the Mother and the witnesses called by her.         These

conflicts required the trial judge to evaluate the credibility of

the witnesses who appeared before him.       He resolved these

credibility issues in favor of the Mother.       Not having seen these

witnesses in person, we are not in a position to say that he was

wrong in his assessment of the witnesses' credibility.       As we

have previously indicated, credibility of the various witnesses

is for the trial court.



          The main thrust of the Father's petition, although

certainly not the only basis, was the Mother's alleged drug use.

On this point, the Father relied heavily on the testimony of his

son, who expressed his preference that he be allowed to live with

his father.   The child was nine years old at the time of the


                                   3
hearing.   The trial court received the child's testimony

regarding his preference although he was not required to do so,

given the child's age.   See T.C.A. § 36-6-102.    With respect to

the child's testimony on the subject of the Mother's drug use,

that testimony was circumstantial in nature.      It did not impress

the trial judge:



           And he's a smart boy and he knows what to say
           to try to get custody changed, he's that
           intelligent and I just couldn't believe
           everything he said.

           I don't think anything happened over there
           that's been proven by the preponderance of
           the evidence. I realize that it gets us all
           excited that we don't want this to happen.
           If I thought it were happening I certainly
           would do something and I certainly would
           charge her not to ever do any of this or stay
           around anybody like this. This boy is going
           to be there and he's intelligent but I just
           can't believe that what he would infer happen
           did happen without more. I mean all adults
           are denying, there was no one that came in
           here that I recall adult that told there was
           anything improperly going on as far as drugs.



The trial court did not find the child's circumstantial drug use

testimony to be credible.   We do not know whether it was or not--

we were not present at the hearing.   Again, we emphasize that we

must defer to Judge Summitt's assessment of credibility.



           Considering the importance of credibility in this case,

we cannot say that the evidence preponderates against the trial

court's findings of fact supporting its conclusion that there had

not been a sufficient change in circumstances to justify a change

in custody.




                                 4
                  On the second day of a two-day hearing, Father orally3

moved the court to enter an order requiring the parties to submit

to drug tests at the expense of Father.                The trial court denied

his request.           We do not believe that a sufficient predicate was

demonstrated to justify the ordering of drug tests.                   There was no

direct testimony that Mother had used drugs since the parties'

divorce.          The testimony alluded to by Father to justify drug

tests, i.e., Mother's loss of weight, the child's testimony that

he found a marijuana-like substance in their house, and his

testimony that Mother took bags of "sugar like stuff" to a back

room, did not require the trial court to order drug tests.

Father's motion for drug tests addressed itself to the sound

discretion of the trial court.              We cannot say that it abused that

discretion.           See Tenn. R. Civ. P. 35; Cf. Walker v. Walker, 

, 16 (Tenn. App. 1983).



                  The judgment of the trial court is affirmed.           This case

is remanded to the court below for the collection of costs

assessed there and such other proceedings as may be appropriate,

consistent with this opinion.              Costs on appeal are taxed to the

appellant and his surety.




                                          _________________________________
                                          Charles D. Susano, Jr., J.


CONCUR:




         3
             The motion was subsequently reduced to writing and filed in the trial
court.

                                            5
_______________________________
Herschel P. Franks, J.



_______________________________
Don T. McMurray, J.




                                  6