IN RE JONATHAN S. Jr.
Session: May 16, 2017.
from the Juvenile Court for Davidson County No. 2009-2850,
PT208361 Sheila Calloway, Judge
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.
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.
A. Frost, Gallatin, Tennessee, for the appellee, Elizabeth S.
A. Stewart, Nashville, Tennessee, Guardian Ad Litem.
B. Goldin, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J.,
B. GOLDIN, JUDGE.
and Procedural History
S. ("Mother") and Jonathan S. ("Father")
have one child together, Jonathan S. Jr., born in February
2009. 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.
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
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.
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.
timely filed a request for a rehearing before the juvenile
court judge as well as a stay of the magistrate's
order. 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.
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 ...