Assigned on Briefs January 16, 2018
from the Circuit Court for Hamilton County No. 07D262 W. Neil
Thomas, III, Judge
post-divorce case, Angela Michelle Newberry appeals the trial
court's modification of the permanent parenting plan. She
challenges the trial court's decision to change the
designation of primary residential parent from her to her
former spouse, Jeremy Mack Newberry. She also attacks the
court's decree reducing her co-parenting time. We hold
that father failed to meet his burden of establishing a
material change in circumstances affecting the children's
well-being, as required by Tenn. Code Ann. §
36-6-101(a)(2)(B) (2017). Consequently, we reverse the trial
court's judgment and reinstate the parenting plan as
originally agreed to by the parties and ordered by the court
in the final divorce judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed; Case Remanded
C. Wright, Chattanooga, Tennessee, for the appellant, Angela
Charles D. Paty, Chattanooga, Tennessee, for the appellee,
Jeremy Mack Newberry.
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and Thomas R.
Frierson, II, J., joined.
CHARLES D. SUSANO, JR., JUDGE.
trial court entered a final divorce judgment on October 12,
2010. Mother was designated primary residential parent of the
parties' three children: Makaila, born March 19, 1998;
Mason, born May 29, 2004; and Ava, born March 7, 2006. On
July 28, 2011, the trial court approved and entered a
modified parenting plan reflecting an agreement reached by
the parties in mediation. This plan granted father parenting
time every other week from Friday after school until Tuesday
morning, and every other week in the summer. The parties
agreed that decision-making regarding education,
extracurricular activities, religious upbringing, and
non-emergency health care would be made jointly.
2011, Mother moved from Apison, Tennessee to Dayton,
Tennessee where father was then residing. She testified that
she moved in order to be closer to father and other family
members. Mother bought a house in Dayton in March of 2012. At
the end of October 2012, father, who was then living with his
girlfriend Tiffany, moved from Dayton to Ooltewah, about 35
to 45 minutes away. Father and Tiffany married in 2013. They
have two children: Abagail, born December 16, 2010, and
Cooper, born November 3, 2012.
April 3, 2014, father filed a petition to modify the
parenting plan. As the trial court correctly noted,
in his petition, father basically asked for a reversal of
position with respect to the original Parenting Plan entered
in this case. He asked that he be designated primary
residential parent and that mother have residential time
every other weekend from Friday until Tuesday and two days a
week in the alternate weeks.
grounds, father alleged that mother no longer had the ability
to run the household and care for the children, appeared to
be unstable and making poor parenting decisions, did not help
the children with their homework, and inappropriately allowed
Makaila to date an older boy. He later amended his petition
to allege that mother was guilty of parental alienation, and
that "the father/daughter relationship has been further
damaged such that he has always taken Makaila to her soccer
games for four years now, and now she doesn't want him to
take her." Mother denied the alleged grounds and argued
there was no material change of circumstance warranting a
change of custody.
trial court heard the matter on January 15 and May 15, 2015.
In its memorandum opinion entered July 14, 2015, the court
stated that "[t]hree main issues have evolved during the
course of the hearings in this matter: (1) Mason's
[health]; (2) sports activities of the children; and (3) the
school for the children." The court aptly used the term
"evolved, " because father did not allege
Mason's health or school-related issues as grounds prior
to the hearing. Regarding Mason's health, the trial
court determined that, "based upon the testimony of
Mason's doctor, that issue appears to have
resolved." Neither party has challenged that particular
ruling on appeal. Similarly, the issue of Makaila dating an
older boy had resolved itself because they apparently broke
up some four months before the hearing; thus, as the trial
court found, "that is not an issue." The trial
court granted father's petition to change the schedule
and the primary residential designation, stating, in
pertinent part, as follows:
With respect to the education issue, there is no remaining
issue as to the oldest child, Makaila, since father has
agreed that she may finish her senior year at Rhea County
High School and may stay in Dayton to accomplish that result.
Consequently, the parenting plan will not be modified as to
Makaila. . . .
With respect to the athletic activities of the children, the
Court is concerned with respect to the testimony received
about mother's support of and conduct at these
activities, and it would appear to the Court that she is not
only non-supportive but actively alienates herself from
With respect to the other two children of the marriage, there
is a difference of opinion between sending them to Dayton
Elementary or Frazier Elementary schools. Based on the
testimony, it would appear that Frazier Elementary, for which
the children are qualified, is a better choice, but mother
refuses to send them to that school. Father, on the other
hand, would prefer to send the children to Silverdale Baptist
Academy and has indicated that as long as his income remains
no less than $6, 500 a month he would be willing to pay the
total tuition of Silverdale Baptist Academy. He testified
that his parents would assist him in the payment of that
tuition. Based on the testimony, it is clear that Silverdale
Baptist Academy would be preferable for the education of the
two younger children. The testimony shows that the mother has
been totally unreceptive to the father with respect to
decisions made for the education of the children, and this
lack of cooperation has been apparent also in the athletic
activities of the children. From that testimony, the Court
concludes that mother is not willing to participate in joint
decision making for the benefit of the education and athletic
activities of the children.
. . . The Court finds that there has been a change of
circumstance with respect to the education of the children
and the interest and attendance of the parents (particularly
the mother) in athletic activities.
trial court further found that a change of custody from
mother to father and modification of the residential
parenting schedule was in the best interest of the younger
two children, and ordered those changes to be made.
appealed to this Court. We vacated and remanded the case to
the trial court, finding
that the court applied the standard set out in Tenn. Code
Ann. § 36-6-101(a)(2)(C), which applies to modification
of the residential parenting schedule, not modification of
the primary residential parent, which is governed by Tenn.
Code Ann. § 36-6-101(a)(2)(B). Thus, we agree with
Mother's argument that the trial court applied the wrong
legal standard to the facts of this case.
Newberry v. Newberry, No. E2015-01801-COA-R3-CV,
2016 WL 2346771, at *4 (Tenn. Ct. App., filed May 2, 2016)