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In re Jonathan S.

Court of Appeals of Tennessee, Nashville

July 24, 2017


          Session: May 16, 2017.

         Appeal from the Juvenile Court for Davidson County No. 2009-2850, PT208361 Sheila Calloway, Judge

         This appeal involves a father's efforts to modify a permanent parenting plan. The father filed a petition in which he requested to be named the primary residential parent of the parties' minor child. At the close of the father's proof, the mother moved to dismiss the petition on the ground that the father failed to carry his burden of proving a material change in circumstance. The trial court agreed, found that the father's evidence was insufficient to establish a material change in circumstances, and dismissed his petition. The father appealed. On appeal, we conclude that the evidence in the record preponderates against the trial court's findings. We therefore reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

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

          Tarsila Crawford, James Widrig, and Megan Ross Bain, Nashville, Tennessee, for the appellant, Jonathan S.

          Laura A. Frost, Gallatin, Tennessee, for the appellee, Elizabeth S.

          Laura A. Stewart, Nashville, Tennessee, Guardian Ad Litem.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.



         Background and Procedural History

         Elizabeth S. ("Mother") and Jonathan S. ("Father") have one child together, Jonathan S. Jr., born in February 2009.[1] Mother and Father were never married, and their relationship ended several months after the child was born. In June 2014, the Davidson County Juvenile Court entered an agreed permanent parenting plan that designated Mother as the child's primary residential parent and permitted Father to exercise parenting time one weekend per month and for extended periods during school holidays. By then, Mother was married and living in Nashville with her husband; Father was living in Michigan.

         In late June 2015, Father took physical custody of the child to exercise his summer parenting time in accordance with the parenting plan. On July 2, 2015, while the child was still in Michigan with Father, Father filed a petition in the Davidson County Juvenile Court seeking a modification of the parenting plan to designate him as primary residential parent as well as a temporary restraining order to suspend Mother's parenting time. According to the petition, Mother had recently separated from her husband and moved in with her mother (the child's maternal grandmother). However, Mother had been kicked out of her mother's home following a physical altercation between the two that occurred on June 6, 2015. The petition alleged that the altercation took place in front of the child and resulted in Mother being arrested and charged with assault and domestic violence. The petition further alleged that Mother had no permanent place to live and was temporarily living in Texas. In an attached affidavit, Father expressed his belief that returning the child to Mother's care when his summer parenting time ended could cause immediate and irreparable harm in light of Mother's "unpredictable and volatile behavior in the past months."

         On the same day that Father's petition was filed, a juvenile court magistrate entered an ex parte restraining order that temporarily suspended Mother's parenting time. Shortly thereafter, the magistrate appointed a guardian ad litem to represent the child's interests in the case. Following a preliminary hearing on July 29, 2015, the magistrate ordered that the initial parenting plan be reinstituted pending further proceedings. That same day, Father filed a motion seeking permission to keep the child in Michigan and enroll him in school there. The magistrate denied Father's motion but entered a restraining order that prevented Mother from removing the child from Davidson County Schools. As a result, the child returned to Mother's care in Nashville and enrolled in school there in August 2015.

         On September 16, 2015, the magistrate conducted a final hearing on Father's petition to modify the parenting plan. Following the hearing, he entered a written order containing findings of fact and conclusions of law. The magistrate found that the matter was an initial custody determination and, as such, discussed the "best interest" factors set forth in Tennessee Code Annotated section 36-6-106 without determining whether a material change in circumstance had occurred. After analyzing the relevant statutory factors, the magistrate adopted Father's proposed parenting plan that designated him as the child's primary residential parent. As a result, the child moved to Michigan with Father and enrolled in school there in September 2015.

         Mother timely filed a request for a rehearing before the juvenile court judge as well as a stay of the magistrate's order.[2] The juvenile court judge denied Mother's request for a stay, and the child remained in Michigan with Father pending the rehearing. The case was eventually set for a final hearing in April 2016.

         Father, testifying first at the final hearing, discussed the events that surrounded the filing of his petition to modify the parenting plan. According to Father, Mother worked at a ranch near Nashville after the original parenting plan was entered in June 2014. Mother, her husband, and the child all lived in a bunkhouse at the ranch during that time. Mother and her husband separated sometime around February 2015. At about the same time, the ranch where Mother had been working and living was sold by its owners, and Mother lost her job and home as a result. In March 2015, Father drove from Michigan to Nashville to exercise weekend parenting time with the child. During that visit, Father helped Mother pack to move out ...

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