Clifton v. Acosta-Delgado11/15/2000
This is a post-divorce child custody dispute. The mother filed a petition to regain custody of the parties' three children after she had entered into an agreed order in 1995 granting custody to the defendant father. After hearing testimony on, inter alia, the father driving while intoxicated with the children in the car with him, the trial court found a material change in circumstances, granted custody to the mother, and ordered the father to pay child support. The father appeals, arguing that there was not a material change in circumstances sufficient to warrant a change in custody, that the trial court inappropriately considered his child support arrearage prior to the 1995 agreed order, and that the trial court miscalculated his income, resulting in an unreasonably high child support award. We affirm, finding a material change in circumstances warranting a change in custody, and finding that the evidence does not preponderate against the award of child support.
Tenn.R.App.P. 3; Judgment of the Circuit Court is Affirmed. Holly Kirby Lillard, J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S.,and William B. Cain, J., joined.
OPINION
In this post-divorce child custody case, Angelina Rose Keele (Acosta-Delgado) Clifton ("Mother") sought to regain custody of the parties' three boys from their father, Carlos Acosta-Delgado ("Father"). Mother and Father were divorced on January 11, 1994, on the grounds of irreconcilable differences. At the time of trial in January 2000, the oldest child, Jason, was ten years old, and the two younger boys, twins Joshua and Justin, were nine years old. Under the Marital Dissolution Agreement signed by the parties, Mother was granted primary physical custody of all three boys, with Father having visitation rights every other weekend. The Marital Dissolution Agreement provided that the Father was obligated to pay $115.00 per week to Mother as child support .
A year later, on January 9, 1995, Mother and Father signed an agreed order modifying their Marital Dissolution Agreement. The agreed order granted primary physical custody to Father, granted visitation rights to Mother every Thursday evening and every other weekend, and provided that Mother would pay child support to Father in the amount of $49.22 per week. The agreed order stated that "the parties' have agreed that both parties are fit and proper persons to have custody and control of the three minor children . . . ."
On March 16, 1999, Mother filed a petition seeking emergency custody of the three children. In her petition, Mother asserted that Father used alcohol excessively, had been arrested for driving under the influence while the children were in the car with him, had female companions that were an unhealthy influence on the children, and was an habitual user of cocaine and other illegal drugs. Mother also contended that Father had regularly denied her visitation with the children, that he showed undue favoritism to the older child, Jason, over the younger twins, that he allowed Jason to physically assault the younger twins, and that he refused to seek counseling for Jason despite the fact that, on occasion, Jason had choked the younger children. Mother also argued that the children's school grades had declined as a result of Father's custody. Mother sought emergency custody and permanent custody, asked the trial court to find Father in civil or criminal contempt for violating the agreed visitation schedule, and sought a judgment for past-due child support .
After finding that Father was indigent, the trial court appointed counsel to represent Father with regard to the criminal contempt charges. Because the appointed attorney
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