Session March 5, 2019
from the Chancery Court for Williamson County No. 41786
Robert E. Lee Davies, Senior Judge
case involves competing petitions to modify a parenting plan
and child support. The trial court denied the father's
request to be designated as the primary residential parent,
granted the mother sole decision-making authority, and
enjoined the father from certain activities. The trial court
also refused to decrease the father's child support
obligation and awarded the mother $55, 000 in attorney's
fees. With regard to the trial court's modification of
primary residential parent designation and the residential
parenting schedule, we conclude that the trial court failed
to make sufficient findings of fact and failed to conduct an
appropriate best interest analysis. We also conclude that the
trial court miscalculated the father's child support
obligation by allotting to him an incorrect number of
parenting days and by relying on his anticipated income
rather than his actual income in the child support worksheet.
We affirm in part, vacate in part, and remand for further
proceedings consistent with this opinion.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part, Vacated In Part, Modified in Part and
Marlene Boshears, Franklin, Tennessee, for the appellant,
Campbell and Marissa L. Walters, Franklin, Tennessee, for the
appellee, Erin Dawn Scot.
B. Goldin, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J.,
B. GOLDIN, JUDGE
Background and Procedural History
Scot ("Mother") and Todd Scot ("Father")
divorced in June 2013. The parties have two minor children, a
nine-year-old son and a six-year-old daughter. The original
parenting plan named Mother the primary residential parent
with 265 days of parenting time. Following the divorce in
2013, Mother and the two minor children lived in Franklin,
Tennessee for approximately one year. When Mother attempted
to move to Fairview, Tennessee in August 2014, Father impeded
the process. Eventually, Mother moved to Fairview and
met Jamie Ferrell, a former police officer with the Fairview
Police Department. The two began dating, and in November
2015, Mother and the two children moved in with Mr. Ferrell.
Mother and the two children moved in with Mr. Ferrell, Father
began harassing them. For example, Father sent mail to their
home, later asking the mail person whether Mother or Mr.
Ferrell signed for the mail; Father ran background checks on
Mr. Ferrell and requested his personnel file from the
Fairview Police Department; Father frequently made derogatory
posts on social media about Mr. Ferrell as well as the
ongoing custody battle between him and Mother; and Father
shared Mother's private medical information with Mr.
Ferrell's former wife.
time of the divorce, Father was employed at Ernst and Young.
His job required him to travel a great deal, and, as a
result, he did not exercise the 100 days of parenting time
allotted to him in the parenting plan. However, once Father
was terminated from Ernst and Young, he exercised his
parenting time on a much more regular basis and, since the
spring of 2017, has not missed a day of parenting
2, 2017, Father filed the current petition to modify the
parenting plan so as to designate him as the primary
residential parent and to increase his number of parenting
days from 100 to 250 and to decrease Mother's number of
parenting days from 265 to 115. In his petition, Father
alleged, among other things, that Mother had kept him from
exercising his parenting time with the children, that Mother
had discouraged the children from having a relationship with
him, and that Mother had prohibited the children from
communicating with him via video chat. On May 24, 2017,
Mother filed her answer and counter-petition to modify the
parenting plan, requesting, among other things, a decrease in
Father's parenting time from 100 days to 80 days and to
grant her sole decision-making authority. Mother also denied
Father's allegations, noting his failure to exercise
parenting time and stating that his conduct had made it
impossible for the parties to make joint decisions.
March 5, 2018, the trial court entered a memorandum order,
modifying certain aspects of the permanent parenting plan.
Among other things, the trial court granted Mother sole
decision-making authority, limited Father's weekly
communications with the children,  and enjoined Father from
discussing child support payments with the children,
recording or video-chatting with the children, signing the
children up for any extracurricular activities, posting any
information about the case on social media, and getting out
of his vehicle when picking the children up from Mother's
residence. Additionally, the trial court denied Father's
request to be designated the primary residential parent as
well as Mother's request to decrease Father's
parenting time to 80 days. The trial court did not modify
Father's child support obligation and, finding many of
Father's pleadings frivolous, awarded Mother $55, 000 in
attorney's fees. Father timely appealed.
perceive it, Father raises six issues on appeal, which we
rephrase as follows:
1. Whether the trial court erred by refusing to modify the
parenting plan so as to designate Father as the primary
2. Whether the trial court erred in its modification of the
parenting plan with regard to the residential parenting
schedule, including the limitations it placed on Father's
3. Whether the trial court erred in its ruling on child
4. Whether the trial court erred in considering confidential
information protected by statute.
5. Whether the trial court erred in awarding Mother
6. Whether Father should be granted attorney's fees and
costs on appeal.
Standard of Review
Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn.
2013), the Tennessee Supreme Court set out the standards that
apply to appellate review of a trial court's resolution
of a petition to modify an existing permanent parenting plan:
In this non-jury case, our review of the trial court's
factual findings is de novo upon the record, accompanied by a
presumption of the correctness of the findings, unless the
preponderance of the evidence is otherwise. See
Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90
S.W.3d 566, 570 (Tenn. 2002); Hass v. Knighton, 676
S.W.2d 554, 555 (Tenn. 1984). We review the trial court's
resolution of questions of law de novo, with no presumption
of correctness. Kendrick, 90 S.W.3d at 569.
Statutory interpretation is a question of law, which we
review de novo. Mills v. Fulmarque, 360 S.W.3d 362,
366 (Tenn. 2012).
A trial court's determinations of whether a material
change in circumstances has occurred and whether modification
of a parenting plan serves a child's best interests are
factual questions. See In re T.C.D., 261 S.W.3d 734,
742 (Tenn. Ct. App. 2007). Thus, appellate courts must
presume that a trial court's factual findings on these
matters are correct and not overturn them, unless the
evidence preponderates against the trial court's
findings. See Tenn. R. App. P. 13(d); In re
C.K.G., 173 S.W.3d at 732; Kendrick, 90 S.W.3d
at 570; Hass, 676 S.W.2d at 555.
Armbrister, 414 S.W.3d at 692.
Modification of the Parenting Plan
courts apply a two-step analysis to requests for a
modification of the primary residential parent and a
modification of the residential parenting schedule. See
Id. at 697-98; see also Gentile v. Gentile, No.
M2014-01356-COA-R3-CV, 2015 WL 8482047, at *4 (Tenn. Ct. App.
Dec. 9, 2015). In both requests for modification, the
threshold issue is whether a material change in circumstance
has occurred. Armbrister, 414 S.W.3d at 697-98.
However, a material change in circumstance with regard to a
primary residential parent is "a distinct concept"
from a material change in circumstance with regard to a
residential parenting schedule. Massey-Holt v. Holt,
255 S.W.3d 603, 607 (Tenn. Ct. App. 2007); see also
Tenn. Code Ann. §§ 36-6-101(a)(2)(B) and
parent requests a modification of the primary residential
parent designation, that parent must "prove by a
preponderance of the evidence a material change in
circumstance." Massey-Holt, 255 S.W.3d at 607.
A material change in circumstance in this context may
include, but is not limited to, failures to adhere to the
parenting plan or an order of custody and visitation, or
other circumstances that make the parenting plan no longer in
the best interest of the child. See Tenn. Code Ann.
§ 36-6-101(a)(2)(B). The change must have occurred after
entry of the order sought to be modified, and the ...