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In re Braylin D.

Court of Appeals of Tennessee, Nashville

February 7, 2017


          Session August 16, 2016

         Appeal from the Juvenile Court for Davidson County No. 2008001074 Sheila Calloway, Judge

         Mother, who had been designated as the primary residential parent of her eight-year-old child, appeals an order changing the designation to the child's Father, contending that the material change of circumstances since the entry of the original parenting plan, as found by the trial court, was not sufficient to justify the modification of custody. We have determined that the evidence does not show that the child's well-being has been adversely affected by the difficulties the parents have encountered in complying with the parenting plan or that the modification is in the child's best interest; accordingly, we reverse the order changing the designation of the primary residential parent. We reverse the order denying Mother's request for attorney's fees for services incurred in securing a judgment for back child support and remand for a determination of the amount of the award.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in Part and Affirmed in Part; Case Remanded

          Gregory D. Smith, Nashville, Tennessee, for the appellant, Ashley U.

          Venus Niner, Franklin, Tennessee, for the appellee, Bobby D.

          Richard H. Dinkins, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Andy D. Bennett, J., joined.



         Factual and Procedural History

         Ashley U. ("Mother") and Bobby D. ("Father") are the parents of Braylin D., born October, 2007. On November 4, 2009, the Davidson County Juvenile Court entered a parenting plan designating Mother as primary residential parent and granting her 262 days of parenting time per year, and granting Father 103 days of parenting time.[2] Since the entry of the plan, the parties have filed numerous motions seeking modification of parenting time and/or child support and to hold the other party in contempt. Mother subsequently moved to Wilson County, and the case was transferred to Wilson County Juvenile Court in September of 2012. On October 14, 2014, the Wilson County Juvenile Court entered an order disposing of pending matters and a separate order transferring the case back to Davidson County, due to Mother's return to Davidson County. At all times material to the proceedings leading to this appeal, Father lived in Atlanta, Georgia.

         The Davidson County Juvenile Court held hearings over five days in August, September, and November of 2015 on Father's Amended Petition to Modify Parenting Plan, Child Support, and for Criminal Contempt[3] and Mother's petition to modify the parenting plan, for past support and contempt, as amended, which was filed on July 8, 2015. The court also heard testimony relative to a Petition to Modify Child Support, filed by Father in June 2012, which had been transferred to Wilson County and subsequently transferred back to Davidson County in 2014, but which had not been adjudicated.

         In an order entered on December 22, 2015, the court dismissed Mother's petition to have Father held in criminal contempt; entered a parenting plan changing the primary residential parent to Father, giving Mother 130 days of parenting time, and giving Father 235 days; modified child support to be consistent with the change in designation of primary residential parent and modification of the parenting schedule; modified Father's child support obligation to $351.00 per month retroactive to June 2012; determined that Father's total obligation of support from October 2011 to December 2015 was $33, 642.00 and entered judgment in that amount; ordered Father to pay a previously ordered amount of $6, 377.87 of attorney's fees to Mother;[4] and held each party responsible for their attorney's fees incurred in connection with the hearing.

         Mother appeals the judgment, contending that the court erred in finding a substantial and material change in circumstance such as to justify modifying the designation of primary residential parent and in holding that such modification was in the child's best interest, and in failing to award her attorney's fees. She also requests attorney's fees for this appeal.

         Standard of Review

         Whether a material change of circumstance has occurred is a factual question. Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013). We review the trial court's factual findings de novo, accompanied by a presumption of the correctness of those findings, unless the evidence preponderates otherwise. Id. at 692 (citing Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984)). Because decisions regarding custody and visitation are factually driven and hinge on subtle factors, we give substantial deference to trial judges, who are better positioned than appellate judges to evaluate the facts. Id. at 693 (citing Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007)). Accordingly, we will not disturb a trial court's parenting arrangement absent an abuse of discretion. Id. An abuse of discretion occurs when a decision is ...

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