Session February 21, 2018
from the Juvenile Court for Tipton County No. 08-JV-10382
William A. Peeler, Judge
appeal arises from a modification of a permanent parenting
plan established in 2010 in which Mother was designated as
the primary residential parent. In December of 2012, Father
filed a petition to modify the parenting plan alleging that
Mother's mental health impeded her ability to properly
care for their child. He also alleged that Mother alienated
the child from Father due to numerous false allegations that
Father abused the child, which resulted in temporary but
substantial decreases in his parenting time. Although no
evidence was produced indicating that Father abused the
child, Mother continued to accuse Father of abuse and to take
the child for repeated evaluations and physical exams.
Following a three-day trial, the trial court designated
Father as the primary residential parent, established a
temporary parenting plan, and ordered Mother to attend
counseling until the court was satisfied with her mental
health so that it could issue a permanent parenting plan.
Mother appealed that order; however, we dismissed the appeal
for lack of subject matter jurisdiction because the order
appealed from was not a final judgment. On remand, following
an assessment of Mother's compliance with the
court-ordered intensive therapy, the trial court entered a
final judgment that included a permanent parenting plan from
which Mother appeals. Mother contends the trial court erred
in holding, inter alia, that there was a substantial
and material change in circumstances requiring a modification
of the parties' permanent parenting plan. She also
contends the court erred in holding that it was in the
child's best interest to change the primary residential
parent to Father due, in part, to the fact the court failed
to consider factors added to Tenn. Code Ann. § 36-6-106
pursuant to the 2014 amendment that became law on July 1,
2014. Finding no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
L. Lambert, Arlington, Tennessee, for the appellant, Mary K.
Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee,
for the appellee, Charles C.
G. Clement Jr., P.J., M.S., delivered the opinion of the
court, in which J. Steven Stafford, P.J., W.S., and Brandon
O. Gibson, J., joined.
G. CLEMENT JR., P.J., M.S.
the relevant facts and procedural history of this case were
previously identified in our opinion in the first appeal,
In re Avery B., No. W2014-01974-COA-R3-JV, 2015 WL
4055057, at *1-2 (Tenn. Ct. App. July 2, 2015), which read as
The parties in this case are unmarried parents to the minor
child at issue, Avery B. ("Avery"). On December 22,
2008, approximately a month after Avery's birth, Mother
filed a petition for child support and medical expenses in
the Juvenile Court of Tipton County. Father responded on
December 23, 2008, by filing a motion for genetic testing.
Genetic testing later confirmed that Father was the
biological parent of Avery, and initially, the parties were
able to reach an agreement as to parenting issues. On March
26, 2010, the trial court approved an agreed permanent
parenting plan that designated Mother as the primary
residential parent. Father was awarded specified parenting
time under the plan and was also ordered to pay $1, 533.00 in
monthly child support. Unfortunately, whatever peace was
achieved through this parenting plan did not last.
On December 18, 2012, Father filed a petition to modify the
parties' parenting plan. His petition averred that
Mother's mental capacity impeded her ability to properly
care for Avery and also alleged that Mother had engaged in a
pattern of behavior that alienated Avery from Father. In
particular, Father claimed that Mother had made numerous
false allegations that Father had sexually abused Avery.
Father asserted that these allegations had resulted in a
substantial decrease in his parenting time with Avery due, in
part, to investigations of Father by the Department of
Children's Services ("DCS") at the instigation
of Mother. On January 8, 2013, Father filed a petition for
criminal contempt against Mother. Father's contempt
petition was predicated on Mother's alleged failure to
honor Father's holiday parenting time.
On March 28, 2013, the trial court entered a consent order
adjudicating Father's petitions. Although the trial court
did not alter its designation of Mother as Avery's
primary residential parent, it did approve an agreed
parenting plan that afforded Father increased parenting time.
Father's petition for criminal contempt was dismissed
without prejudice. As before, the resolution of the
litigation brought only temporary peace between the parties.
On December 16, 2013, Mother filed a pleading styled
"Emergency Petition for Injunction and Petition to
Modify the Previous Order of the Court to Suspend
Father's Parenting Time and For Father to Receive
Supervised Parenting Time." The petition alleged that
Avery had made recent disclosures of sexual abuse committed
by Father and expressed general concern for Avery's
welfare. The petition requested that the trial court
immediately suspend Father's parenting time or enter an
order imposing conditions on his parenting time for
Avery's care and protection. The petition also prayed
that Father's parenting schedule be modified after a
hearing, consistent with Avery's best interest.
Father responded to Mother's emergency petition on
December 19, 2013. In his response, Father submitted that
Mother had a history of making false allegations against him
regarding his conduct towards Avery. He further stated that
DCS had never found any evidence that Avery had been sexually
abused. Contemporaneous with the filing of his response,
Father filed his "Emergency Petition to Modify Parenting
Plan, for Criminal Contempt, for Injunctive Relief, and for
Supervised Parenting Time." The petition recounted
Mother's alleged history of making false allegations
against Father and averred that Mother's behavior
reflected a pattern of mental instability. The petition
stated that Mother should be required to seek long-term
therapy and requested that her parenting time with Avery be
supervised. Father contended that it was in Avery's best
interest to designate him as the primary residential parent.
Moreover, he alleged that Mother should be held in criminal
contempt for willfully refusing to allow Father to exercise
his parenting time.
A hearing on the emergency aspects to the parties'
petitions was held on December 19, 2013. On January 21, 2014,
the trial court entered an order finding that there was
insufficient evidence to sustain Mother's emergency
requests for relief. As a result, the trial court declined to
suspend Father's parenting time or otherwise require that
it be supervised. Other matters, however, were reserved for
A hearing on Father's petition to modify occurred over
three separate dates in May and June 2014. The case was taken
under advisement following trial. On September 4, 2014, the
parties returned to court at which time the trial judge made
an oral ruling that Father should be designated as the
primary residential parent for Avery. A written order
memorializing this ruling was subsequently entered on
September 9, 2014. In pertinent part, the trial court's
order stated as follows:
2. A substantial and material change in circumstances exist
such that it is in the best interest of the minor child,
[Avery], to be in the care of Father, and Father shall be
designated as the primary residential parent. The exchange of
the minor child shall occur immediately.
3. Mother shall be awarded supervised parenting time. Counsel
for the parties shall attempt to agree on an appropriate
supervisor and schedule, but should they be unable, this
Honorable Court shall determine the appropriate supervisor
and schedule for Mother. It is the goal of this Court to
award Mother standard parenting time after this Honorable
Court is satisfied that Mother's long term therapy has
appropriately addressed Mother's psychological
4. Mother shall immediately engage in intensive long term
therapy to address those concerns of this Honorable Court
regarding Mother's conduct and psychological functioning.
The parties shall address this Court in ninety (90) days to
assess Mother's compliance with this Court's
requirement that Mother receive intensive therapy. Counsel
for the parties shall contact the Clerk of Court to schedule
5. Mother shall be enjoined from having anyone, including but
not limited to, law enforcement, doctor, or therapist,
evaluate the minor child without an Order of this Honorable
6.Father shall select a therapist/counselor for Avery.
7. Father's ongoing child support obligation is
terminated immediately. This Honorable Court shall address
child support when Mother is able to exercise unsupervised
September 15, 2014, Mother filed a notice indicating that she
was appealing the trial court's September 9 order. Nearly
two months later, on November 4, 2014, the trial court
entered an order setting a supervised parenting schedule for
Mother. The trial court's November 4 order stated that
"[t]his schedule shall be reviewed in ninety (90) days
from the Court's ruling on September 4, 2014, to assess
Mother's compliance with this Court's order requiring
Mother to receive intensive therapy and Counsel for the
parties shall contact the Clerk of Court to schedule said
hearing." Father's petition for contempt was later
"denied" by an order entered on January 7, 2015.
first appeal, we determined that the order appealed from was
not a final order; therefore, the appeal was dismissed for
lack of subject matter jurisdiction. Id. at *4.
remand, following an assessment of Mother's compliance
with the court-ordered intensive therapy, the trial court
entered an order, similar to the September 4, 2014 order,
which scheduled another review in 90 days. Following several
more review hearings, most of which focused on whether Mother
had sufficiently complied with the requisite therapy, the
trial court entered an order on November 8, 2016, that
expanded Mother's parenting time. Believing the order
constituted a final judgment, Mother filed another notice of
appeal on December 8, 2016. Upon an initial review of the
record, we determined that the November 8, 2016 order was not
a final judgment; however, instead of dismissing the appeal,
we entered an order that afforded the parties additional time
to obtain a final judgment. On June 20, 2017, the trial court
entered an Order Expanding Mother's Parenting Time, which
we determined constituted a final appealable judgment. As a
consequence, we allowed the appeal to proceed.
presents three issues that we have rephrased to read as
1. Whether the trial court erred in holding that there was a
substantial and material change in circumstances requiring a
modification of the parties' Permanent Parenting Plan.
2. Whether the trial court erred by failing to consider best
interest factors added to Tenn. Code Ann. § 36-6-106
pursuant to the 2014 amendment that became law on July 1,
3. Whether the trial court erred in holding that it was in
the child's best interest to change the designation of
primary residential parent from Mother to Father.
part, Father asks that Mother be required to pay the
attorney's fees and expenses he incurred in this appeal.
Material Change in Circumstances
challenges the finding that Father proved a material change
in circumstances on two grounds. She contends the most recent
petition, filed in December of 2013, should have been
dismissed because it is based on the same allegations as the
previous petition that was filed in December of 2012, Mother
filing reports that Father sexually abused Avery, which was
resolved pursuant to the March 28, 2013 order. She also
contends that none of the allegations made by Father affected
Avery in any meaningful way and that the alleged
"negative" or "meaningful" effect upon
Avery amounted to pure speculation and conjecture.
responds by noting that the December 2013 petition identifies
numerous events and acts by Mother that occurred subsequent
to the disposition of the December 2012 petition; therefore,
his petition is not barred by the doctrine of res judicata
even though the allegations pertain to her repetitive
reporting of unfounded claims of sexual abuse. Father also
contends that the evidence preponderates in favor of the
trial court's findings that the changes have affected
Avery's well-being in a meaningful and harmful way.
action to change the primary residential parent, the party
seeking the change must prove that a material change in
circumstances has occurred and that it is in the best
interest of the child to modify the current custody
arrangement. Tenn. Code Ann. § 36-6-101(a)(2)(B);
Boyer v. Heimermann, 238 S.W.3d 249, 259-60 (Tenn.
Ct. App. 2007).
petitioner seeking to change the primary residential parent
is not required to show "a substantial risk of
harm" to the child; however, the petitioner must prove a
material change of circumstance by a preponderance of the
evidence. Tenn. Code Ann. § 36-6-101(a)(2)(B). "A
material change of circumstance may include, but is not
limited to, failures to adhere to the parenting plan or an
order of custody and visitation or circumstances that make
the parenting plan no longer in the best interest of the
court finds a material change in circumstances, the trial
court must then determine whether a modification of the
parenting plan is in the child's best interest.
Armbrister v. Armbrister, 414 S.W.3d 685, 697-98
the trial court found Mother's actions in continuing to
allege Father sexually abused Avery constituted a material
change in circumstances. On June 14, 2010, the parties
executed their first permanent parenting plan. Less than
three months after this plan was executed, Mother took Avery,
then nineteen months old, to the emergency room at LeBonheur
Children's Hospital ("LeBonheur").
LeBonheur's records reveal that Mother was concerned
about whether Father was ...