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In re Avery B.

Court of Appeals of Tennessee, Jackson

June 4, 2018

IN RE AVERY B.[1]

          Session February 21, 2018

          Appeal from the Juvenile Court for Tipton County No. 08-JV-10382 William A. Peeler, Judge

         This 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

          Rachel L. Lambert, Arlington, Tennessee, for the appellant, Mary K. B.

          Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellee, Charles C.

          Frank 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.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Most of 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 follows:

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 future adjudication.
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 functioning.
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 said hearing.
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 Court.
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 parenting time.

         On 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.

         In the 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.

         On 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.

         Issues

         Mother presents three issues that we have rephrased to read as follows:

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, 2014.
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.

         For his part, Father asks that Mother be required to pay the attorney's fees and expenses he incurred in this appeal.

          Analysis

         I. Material Change in Circumstances

         Mother 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.

         Father 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.

         In an 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).

         A 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 child." Id.

         If 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 (Tenn. 2013).

         Here, 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 ...


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