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In re Caroline U.

Court of Appeals of Tennessee, Knoxville

October 4, 2019

IN RE CAROLINE U.[1]

          Session May 21, 2019

          Appeal from the Juvenile Court for Knox County No. J-0493 Timothy E. Irwin, Judge.

         This is a modification of residential schedule case. The father requested an increase in parenting time based on a material change in circumstances. The court ruled that the father failed to demonstrate a material change in circumstances. We affirm.

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

          Mario L. Azevedo, II and Timothy K. Jones, Knoxville, Tennessee, for the appellant, Reid Michael T.

          Ben H. Houston, II, Knoxville, Tennessee, for the appellee, Madison Anne U.

          John W. McClarty, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson, II, J., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE.

         I. BACKGROUND

         The parties in this case, Reid Michael T. ("Father") and Madison Anne U. ("Mother"), were never married. In January, 2017, their child, Caroline June U. ("the Child"), was born. Following the Child's birth, the parties engaged in litigation that ultimately culminated in the entry of a permanent parenting plan ("the PPP") order on November 13, 2017, that awarded Mother 251 days and Father 114 days. Father thereafter moved to reconsider and/or alter the judgment pursuant to Rule 59 of the Tennessee Rules of Civil Procedure. On April 19, 2018, the trial court entered the final PPP order adjudicating all pending claims at that time other than child support and awarded Father an additional two weeks of co-parenting time ("the April order"). As a result, Father's total number of days with the Child increased to 128 days while Mother's total number of days decreased to 237. On June 20, 2018, the parties entered into an agreed order setting child support based upon the number of days outlined in the April order. On the same day, however, Father sought to modify the PPP. Mother responded with a motion to dismiss Father's petition.

         At a hearing held on September 27, 2018, Father argued that changes in his work schedule and college major along with his decision to stop teaching jujitsu classes constituted a material change in circumstances. In his pleadings, Father noted that he had been "working a fluctuating schedule that was often unpredictable" but that he had "modified his schedule such that he only works Friday through Monday nights when the child is asleep such that he can maximize his co-parenting time." Counsel for Father asserted during the hearing that "at the time of the entry of the original parenting plan in October of 2017," Father "had five, at one time, separate jobs and he was full-time at Pellissippi State on campus." Father, however, failed to present any proof specifying what his previous work schedule was or exactly when the work schedule changed. With regard to his college major, Father noted that he had changed from engineering to political science. He observed in his pleadings that his new major has more classes online and requires only about 3 hours a week in a classroom. However, Father did not provide specifics about his current school schedule as compared to the prior one, and there was no evidence presented as to when he changed his major. As to the jujitsu classes, counsel indicated that Father had stopped being an instructor, but Father did not discuss when he stopped teaching the classes. At the hearing, Father testified that the Child "never knows that I've left the house. Sleeps through the whole night." He noted that his mother keeps the Child any time he is away working or at school.

         In her pleadings, Mother revealed that she had graduated from Pellissippi State and secured full-time employment. During her testimony at the hearing, she discussed the fact that Father's mother, rather than Father, usually meets her at exchanges of the Child. She noted that on the rare occasions Father appeared, he would not discuss the Child with her, whereas Father's mother would frequently engage in such conversations with Mother for five or ten minutes.

         Despite Father's assertions that he has attempted to have greater participation in the Child's life, there was little to no evidence presented regarding how the alleged changes in Father's circumstances have impacted the Child. Counsel for Father did not identify any concerns or problems with the Child's care.

         The trial court determined that Father had failed to prove by a preponderance of the evidence that there had been a material change in circumstances affecting the Child's best interest. The court observed that the hours of Father's jobs were still mostly the same, that he was still working mostly nights, and that he was still attending school. The court recognized that Father had stopped teaching jujitsu classes but found this fact was not significant enough to support a finding that there had been a material change in ...


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