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In re Jonathan S.

Court of Appeals of Tennessee, Nashville

December 12, 2019

IN RE JONATHAN S.

          Session September 4, 2019

          Appeal from the Juvenile Court for Davidson County No. 2009-2850, PT-208361 Sheila Calloway, Judge

         This is the second appeal of a case involving a father's petition to modify the parties' parenting plan, wherein he requested that he be named the primary residential parent. At the close of father's proof during the initial trial, mother moved for a directed verdict. Finding that father's evidence was insufficient to establish a material change in circumstances, the trial court granted mother's motion and dismissed father's petition. Father then appealed to this Court. We concluded that father did present sufficient evidence to establish a material change. Accordingly, we reversed the judgment of the trial court and remanded the case so that mother could present her evidence. Following the entry of this Court's decision—but prior to the remand trial on father's first petition— father filed a second petition to modify the parenting plan, raising new allegations. The parties agreed to consolidate the two matters and further agreed to a bifurcated trial in which the remand trial on father's first petition would be conducted first, followed by a trial on father's second petition. Additionally, the parties agreed to a timeframe regarding the presentation of evidence, whereby mother, during the remand trial on father's first petition, would be limited to evidence that arose prior to the date of the initial trial; all evidence arising after that date would be covered in the trial on father's second petition. Ultimately, the trial court found that father proved a material change in circumstances and that it was in the best interest of the child that he be named the primary residential parent. Consequently, the trial court mooted father's second petition. Mother appealed. We affirm.

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

          Karla C. Miller and Rachel S. Upshaw, Nashville, Tennessee, for the appellant, Elizabeth S.

          Tarsila Crawford and James Widrig, Nashville Tennessee, for the appellee, Jonathan S.

          Laura A. Stewart, Nashville, Tennessee, Guardian Ad Litem for J.E.S., Jr.

          Arnold B. Goldin, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         Background and Procedural History

         This is the second appeal of a case between Elizabeth S. ("Mother") and Jonathan S. ("Father"), the unwed parents of J.E.S. (the "Child"), [1] in which Father sought to modify the agreed order and permanent parenting plan entered into on June 2, 2014, which had designated Mother as the primary residential parent (the "2014 Order and Parenting Plan"). The Child was born in February 2009, but Mother and Father's relationship had ended several months prior. At the time the Davidson County Juvenile Court (the "trial court") had entered the 2014 Order and Parenting Plan, Mother lived in Nashville, Tennessee with her then-husband, and Father lived in Michigan.[2]

         In late June 2015, Father came to Tennessee to pick up the Child in order to exercise his summer parenting time. While in Michigan, Father, on July 2, 2015, filed a petition in the trial court to designate him as the primary residential parent as well as an ex parte restraining order to suspend Mother's parenting time (the "First Petition"). According to the First Petition, Mother had lost her home and job, separated from her husband, [3] and moved in with her mother, the Child's maternal grandmother ("the Grandmother"). Mother, however, was kicked out of the Grandmother's home following a physical altercation between the two of them that occurred on June 6, 2015 and from which Mother was arrested and charged with assault and domestic violence. Thereafter, Mother and the Child moved into a friend's home, renting out two bedrooms and a bathroom. Following a hearing on Father's petition for an ex parte restraining order on July 29, 2015, the trial court ruled that Mother would remain the primary residential parent in accordance with the 2014 Order and Parenting Plan, pending a hearing on Father's petition to modify the parenting plan. Accordingly, the Child returned to Mother's custody in Tennessee at the end of the 2015 summer. After a hearing on Father's First Petition, the trial court, on September 15, 2015, entered an order, adopting Father's proposed parenting plan and designating him as the primary residential parent (the "2015 Order and Parenting Plan"). As a result, the Child moved back to Michigan with Father in September 2015 and enrolled in school there.

         Mother timely filed a request for a rehearing before the trial court as well as a stay of the 2015 Order and Parenting Plan. The rehearing was held on April 28 and 29, 2016, and, at the close of Father's proof, Mother's counsel made an oral motion for directed verdict. In support of the motion, she argued that Father had failed to present evidence that a material change in circumstances had occurred after the entry of the 2014 Order and Parenting Plan. In response, Father's counsel, as well as the Child's guardian ad litem, argued that Mother's instability-evidenced by her unsettled living arrangements, her altercation with the Grandmother, and her subsequent arrest-constituted a material change in circumstances sufficient to support a modification of the Child's primary residential parent. On May 31, 2016, the trial court entered its order and granted Mother's motion for a directed verdict (the "2016 Order"), noting that while there was "no question that the Mother had a very difficult four month period of time[, ]" there was not enough to support a finding of a material change in circumstances. Additionally, the trial court directed the parties to operate pursuant to the 2014 Order and Parenting Plan after the Child finished the 2015-2016 school year in Michigan with Father.[4] Father then appealed the 2016 Order to this Court.

         On July 24, 2017, we reversed the trial court's decision and remanded the case back to the trial court with instructions. See In re Jonathan S., No. M2016-01365-COA-R3-JV, 2017 WL 3149600, at *7 (Tenn. Ct. App. July 24, 2017) (hereinafter "In re Jonathan I"). Specifically, after citing to Father's proof at trial, we concluded as follows:

Compared to the apparent stability in Mother's life when the initial permanent parenting plan was entered, it is not a stretch to say that the changes that occurred in Mother's life in 2015 were significant. Faced with that evidence, however, the trial court found only that Mother "had a very difficult four month period of time." The problem with the trial court's assessment, in our view, is that it infers a subsequent improvement in Mother's stability that is not reflected in the record. While a fleeting period of hardship may not rise to the level of a material change in circumstance, it is difficult to make that determination without evidence that the period of hardship is, in fact, fleeting.

Id. at *6. Accordingly, we reversed the trial court's dismissal of the First Petition and remanded the case so that Mother could present her evidence. Id. at *7.

         After this Court issued its opinion, Father, on August 31, 2017, filed a separate petition to modify the permanent parenting plan (the "Second Petition"), in which he offered additional evidence that a material change in circumstances had occurred since the April 2016 rehearing and Father's appeal.[5] At the request of both parties, the trial court, on November 21, 2017, entered an order consolidating the two matters.[6]Additionally, the order provided that the Child would return to Father in Michigan at the completion of his school's winter break in Tennessee.[7] After a hearing, the trial court, on April 6, 2018, entered an order on the remand trial on Father's First Petition, wherein it found that there had been a material change in circumstances and that it was in the Child's best interest to primarily reside with Father in Michigan (the "2018 Order and Parenting Plan"). With regard to Father's Second Petition, the trial court entered a separate order on May 9, 2018, dismissing it as moot "since there was a favorable ruling on behalf of the Father in the first Petition[.]" After the entry of the 2018 Order and Parenting Plan, both Father and Mother filed various post-trial motions in order to correct and clarify finer points in the final order. Following a resolution of these post-trial motions by the trial court, this second appeal followed.

         Issues Presented

         As we perceive it, Mother raises four issues on appeal, which we rephrase as follows:

1. Whether the trial court erred in finding a material change in circumstances such as to warrant a change of custody.
2. Whether the trial court erred in finding a change of custody was in the Child's best interest.
3. Whether the trial court abused its discretion in failing to consider all evidence through the date of the trial on April 4, 2018.
4. Whether Mother should be awarded her attorney's fees and costs incurred on appeal.

         Father raises no separate issues of his own but seeks his attorney's fees and costs on appeal.

         Standard of Review

         In Armbrister v. Armbrister, 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 circumstance 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 v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013).

         Discussion

         I. Modification of the Parenting Plan

         When a parent files a petition to modify custody, the parent seeking the modification must demonstrate "that a material change in circumstance has occurred which makes a change in custody in the child's best interests." Kendrick, 90 S.W.3d at 570. Thus, the decision to modify custody is a two-part test. As a threshold issue, the trial court must determine, by a preponderance of the evidence, whether there has been a material change in circumstances since the initial custody determination. See In re M.J.H., 196 S.W.3d 731, 744 (Tenn. Ct. App. 2005). If the court finds that a material change in circumstances has occurred, the court must proceed to the second step of the analysis to determine whether the modification sought is in the child's best interest. Id. If the court finds that a material change in circumstances has not occurred, it "is not required to make a best interests determination and must deny the request for a change of custody." Pippin v. Pippin, 277 S.W.3d 398, 405 (Tenn. Ct. App. 2008) (quoting Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999)).

         A. Material Change in Circumstances

         In Blair v. Badenhope, the Tennessee Supreme Court noted the following in determining whether a material change in circumstances has occurred:

"[T]here are no hard and fast rules for determining when a child's circumstances have changed sufficiently to warrant a change of his or her custody." Nevertheless, the following factors have formed a sound basis to determine whether such a change has occurred: the change has occurred after the entry of the order sought to be modified and the change is not one that was known or reasonably anticipated when the order was entered, and the change is one that affects the child's well-being in a meaningful way.

Blair v. Badenhope, 77 S.W.3d 137, 148 (Tenn. 2002) (quoting Solima v. Solima, 7 S.W.3d 30, 32 (Tenn. Ct. App. 1998) (citations omitted)).

         Here, in the 2018 Order and Parenting Plan, the trial court found that, "[b]ased on all of the evidence presented, even though Mother's difficulties occurred during a brief period of time, it does rise to the level of a material change of circumstance." As noted by the trial court, the record reflects that Mother separated from her then-husband in February 2015 after she discovered that he had been living a double-life. Then, in March 2015, the ranch where Mother had been living and working for over three years was sold. Having lost her husband, her job, and her home in a short period of time, Mother then moved into the Grandmother's home with the Child in order "to get back on [her] feet." However, this living arrangement ended abruptly following a physical altercation between Mother and the Grandmother on June 6, 2015, as a result of which Mother was arrested and charged with assault and domestic violence. After Mother was released from custody the following day, she and the Child then moved in with a friend of hers, from whom she rented out two rooms and a bathroom. Later that same month, Father picked up the Child in order to exercise his summer parenting time, after which Mother took significant steps to move to Texas.[8] Mother, however, never completed the move to Texas and, on January 9, 2016, moved into a two-bedroom home in La Vergne, Tennessee in order to take care of her friend's mother who suffered from stage 3 emphysema. Around the same time, Mother started working for Ritchie Bros. Auctioneers. On March 1, 2016, her friend's mother was transferred to hospice care, after which Mother allowed another friend and her three children to move into the home.[9]These changes in Mother's living situations occurred after the entry of the 2014 Order and Parenting Plan and were not known or reasonably anticipated when the order was entered. Moreover, this evidence indicates that Mother's period of instability was not merely "temporary," as questioned by this Court in In re Jonathan I. On the contrary, the record indicates that Mother's living and employment situations remained unstable until a few months before the April 2016 rehearing. Accordingly, the evidence supports the trial court's conclusion that such period rose to the level of a material change in circumstances.

         B. ...


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