Assigned on Briefs January 4, 2017
from the Juvenile Court for Sumner County No. 2010JV926 Barry
R. Brown, Judge
appeal arises from a juvenile court's modification of a
primary residential parent designation. The mother appeals
the juvenile court's findings that a material change in
circumstance had occurred and that a change in the primary
residential parent was in the child's best interest. The
mother also challenges the juvenile court's denial of her
Rule 60.01 motion. Upon review, we conclude that the juvenile
court erred in relying on a report that was not entered into
evidence at the hearing, but the error was harmless. Even
excluding the report, the evidence does not preponderate
against the juvenile court's findings that a material
change in circumstance had occurred and that modification of
the primary residential parent designation was in the
child's best interest. We further conclude that the
juvenile court did not abuse its discretion in denying the
mother's Rule 60.01 motion.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Georgina K. Hughes, Mount Juliet, Tennessee, for the
appellant, Laura S.
A. Frost, Gallatin, Tennessee, for the appellee, Jeremy V.
Neal McBrayer, J., delivered the opinion of the court, in
which John W. McClarty and Arnold B. Goldin, JJ., joined.
NEAL McBRAYER, JUDGE.
Factual and Procedural Background
V. was born in July 2010 to an unmarried couple, Laura S.
("Mother") and Jeremy V. ("Father"). By
statute, in the absence of a custody order, custody of a
child born out of wedlock is with the mother. Tenn. Code Ann.
§ 36-2-303 (2014). In January 2015, in response to
Father's request for specific parenting time, the
Juvenile Court for Sumner County, Tennessee, entered an
order naming Mother primary residential parent and granting
Father parenting time every other weekend. Subsequently, the
court granted Father additional parenting time on
September 9, 2015, Father filed a petition seeking a change
in the primary residential parent designation. He alleged a
material change in circumstances had occurred in that Mother
was uncooperative and confrontational, unwilling to foster
his relationship with Ashton, and attempting to alienate
Ashton from him.
Proof at the Hearing
One of Testimony
court initially heard testimony on Father's modification
petition on January 7, 2016. Both Mother and Father testified
as well as the paternal grandfather, the father of
Mother's other child, and the fiancée of the other
time of the hearing, Father was working toward an
associate's degree in criminal justice at Volunteer State
Community College, with the ultimate goal of employment as a
police officer. He lived with his girlfriend in Westmoreland,
Tennessee. Father asked to be named primary residential
parent with Mother having parenting time every other weekend
and three non-consecutive weeks in the summer. He maintained
that, if he were primary residential parent, he would be
willing to foster a good relationship between Ashton and
to Father, he filed his modification petition because of
Mother's refusal to encourage his relationship with his
son. He complained that, after the entry of the custody
order, Mother would not communicate with him. Mother did not
inform him about his son's school events or doctor
time of the hearing, Ashton was five and attended
kindergarten in Gallatin, Tennessee, near Mother's home.
Mother's work schedule prevented her from picking Ashton
up from school because she worked until 8 p.m. five or six
days each week. At Mother's request, Ashton's
paternal grandparents often picked him up from school and
cared for him until she finished work. According to Father,
"if she knew I was going to be seeing him, she would
hold him back" from his grandparents. Father claimed
that Mother initially refused his offer to pick Ashton up
after school himself. In addition, when Mother needed a
caregiver for Ashton on weekends, she forced her other
son's father to keep both children in an effort to keep
Father away from Ashton. Father testified that Mother had
violated the custody order with regard to his summer
parenting time, and the court had found Mother in contempt.
told the court that Mother also made false accusations of
abuse against him in an effort to damage his relationship
with Ashton. Since the custody order was entered, Mother had
reported Father to the police for abuse three times. She also
reported him to DCS twice for suspected abuse. Neither the
police nor DCS ever filed any charges against Father.
According to Father, Ashton was present when the police
arrived at his house in response to Mother's complaints.
Father agreed that he had a good relationship with his son,
he testified that he was concerned that Mother's tactics
were beginning to succeed. Ashton had recently been asking to
return to Mother's house during Father's parenting
addition to Mother's unwillingness to encourage his
relationship with Ashton, Father claimed that Mother had
exposed Ashton to domestic violence. In November 2014, Mother
filed an assault report against Richard Smith, her then
live-in boyfriend, and Mr. Smith was arrested. Ashton was in
the home during the November incident. Despite the domestic
violence, the couple married in January 2015.
fall of 2014, Ashton developed an involuntary tic. Father
explained that he took Ashton to see a neurologist in April
who determined that the tic was caused by stress. A letter
from the neurologist confirmed that Ashton had developed a
motor tic disorder. Because, at the time of the evaluation,
his symptoms were decreasing, the doctor believed that the
tic could be transient. Father claimed that the tic had
worsened since Ashton's initial evaluation.
neurologist recommended that Ashton see a counselor. Father
claimed Mother delayed several months, and eventually, Father
made the counseling appointment. At the time of the hearing,
Ashton had been attending counseling sessions for
approximately two months.
testified that Mother often delayed or failed to schedule
necessary medical care for his son and tried to prevent him
from being involved in Ashton's medical care. He claimed
Mother became so uncooperative about making Ashton's
appointments and sharing dates with him that he began making
the appointments himself.
also expressed his concern about Ashton's current bedtime
at Mother's house. At some point, Mother had agreed that
Father could pick Ashton up after school. Father reported
that Ashton complained of being extremely tired after school
and often took long naps. By contrast, when Ashton spent
weekends with Father, he had a set schedule and a proper
cross-examination, Father conceded that since September 2015
he had received all of the parenting time to which he was
entitled under the current custody order. He admitted that
Mother allowed him additional parenting time after school.
However, Father pointed out that in the week before the
hearing, Mother had enrolled Ashton in after school day care,
eliminating Father's additional time.
agreed that Ashton had a strong bond with both parents. Other
than the occasional sickness and the nervous tic, Ashton was
healthy and did well in school.
paternal grandfather testified about the loving bond between
Father and Ashton. He agreed that Mother often asked the
grandparents to keep Ashton instead of Father. He explained
that, when Ashton was at the grandparents' house, Mother
would call to inquire who was there.
court also heard testimony from Brian Baker, the father of
Mother's other child, and his fiancée, Kimberly
Meyers. Mr. Baker testified that Mother had threatened to
keep him from spending time with his own son if he did not
agree to care for Ashton at the same time. Mr. Baker
acquiesced to her demands because "it's her way or
Meyers confirmed that the couple had cared for Ashton at
least five weekends in 2015. She explained that she refused
Mother's request that she keep Ashton after school
because she knew Father was willing to do it. Ms. Meyers also
told the court that she had witnessed Mother make disparaging
remarks about Father in front of Ashton.
Meyers provided additional testimony about Mother's
relationship with her husband, Mr. Smith. According to Ms.
Meyers, Mr. Smith moved into Mother's home in the summer
of 2014. Mother had confided to her that Mr. Smith had an
alcohol and drug problem and was often violent towards her.
The couple married in January 2015, but the relationship was
over by April. Subsequently, Ms. Meyers discovered that Mr.
Smith had a police record for domestic assault.
part, Mother claimed that she always encouraged a good
relationship between Father and Ashton. While she may have
made some disparaging remarks about Father in conversations
with Mr. Baker and Ms. Meyers, she denied she ever made any
negative comments about Father in Ashton's presence. She
maintained that she notified Father of all doctor
appointments and invited him to school events. She even
offered Father additional parenting time after school in an
effort to encourage his relationship with Ashton. According
to Mother, the previous contempt finding was due to
Father's lack of cooperation, not hers.
denied Ashton was stressed. She claimed that Ashton's tic
was a result of near-sightedness. According to Mother, after
she bought glasses for Ashton, his tic disappeared.
admitted that she worked four or five days per week until
8:30 p.m. Her workload had recently increased due to a
co-worker's promotion. She also worked every other
Saturday but claimed she tried to work on those Saturdays
when the children were with their fathers. She denied
threatening Mr. Baker with less parenting time if he did not
agree to keep Ashton. She claimed that she only asked Mr.
Baker to keep Ashton on a few Saturdays while she was
working. She explained that she did not ask Father because he
always demanded to keep Ashton overnight.
claimed that her abuse reports were motivated by legitimate
concerns for Ashton's safety. On one occasion, Father had
been "hateful" and "rude" when he picked
Ashton up for his visitation. Because she feared Father would
hurt Ashton, she called the police to perform a welfare
check. She conceded that the police investigation had
revealed no cause for alarm. In December 2015, she took
Ashton to the emergency room because he had returned from
Father's house with bruises. The hospital personnel
called DCS, not Mother. She denied that she had filed the
other abuse reports.
brushed off any concerns about her husband, Mr. Smith. She
agreed that she had filed charges against Mr. Smith for
domestic assault in September and November 2014 and then
married him the following January. According to Mother, Mr.
Smith suffered from PTSD. After receiving probation on the
assault charges, he attended a rehabilitation program, quit
drinking, and started counseling. Mother explained that she
and Mr. Smith had been through a "rough patch" but
were doing better now and had recently celebrated their
one-year anniversary. She described Mr. Smith as "the
best stepdad that I could ever ask for for my kids." She
explained that Mr. Smith was only home a few days each week
because he worked in Columbia, Tennessee. When working, he
stayed at his mother's house in Columbia.
of the court's schedule, the hearing was adjourned at the
end of Mother's testimony, and another hearing date was
set for March 4, 2016. The court also announced to the
parties that CASA would be involved in the case. On January
11, 2016, the juvenile court directed the CASA volunteer to