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Newberry v. Newberry

Court of Appeals of Tennessee, Knoxville

June 20, 2018


          Assigned on Briefs January 16, 2018

          Appeal from the Circuit Court for Hamilton County No. 07D262 W. Neil Thomas, III, Judge

         In this 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.

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

          Lucy C. Wright, Chattanooga, Tennessee, for the appellant, Angela Michelle Newberry.

          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.



         The 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.

         In 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.

         On 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.

         As 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.

         The 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.[1] 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 father.
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.

         The 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.

         Mother 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) ...

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