James Lyle Graham v. Barbie Phylissa Graham ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 22, 2013 Session
JAMES LYLE GRAHAM V. BARBIE PHYLISSA GRAHAM
Appeal from the Circuit Court for Greene County
No. 05CV719 Hon. Kindall T. Lawson, Judge
No. E2012-00416-COA-R3-CV-FILED-MARCH 21, 2013
This post-divorce appeal concerns an agreed-upon parenting plan, which designated Father
as the primary residential parent and denied Mother any form of visitation with the Child.
Years after the plan was entered, Mother filed a petition to modify the plan, alleging that a
material change in circumstances had occurred. The trial court agreed and provided Mother
with liberal visitation. Father appeals. We affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and D. M ICHAEL S WINEY, J., joined.
Robert L. Jackson and Elizabeth A. Garrett, Nashville, Tennessee, for the appellant, James
Lyle Graham.
Barbie Phylissa Graham, Greeneville, Tennessee, pro se.
OPINION
I. BACKGROUND
Barbie Phylissa Graham (“Mother”) and James Lyle Graham (“Father”) were married
on July 30, 2004. This was Father’s first marriage and Mother’s second. Mother had one
child (“Son”) from her previous marriage to Jerry Burger. Shortly after Mother and Father
(collectively “Parents”) learned that Mother was pregnant with the Child, Father learned that
Mother had stolen money from Beatrice Broyles. Father reimbursed Ms. Broyles and filed
for divorce. Parents finalized the divorce after the Child was born on April 15, 2006.
It was later discovered that in addition to stealing from Ms. Broyles, Mother had
embezzled money from her employer, Asbury Child Enrichment Center (“Asbury”) and had
forged documents in an effort to secure a higher-paying position with Asbury. After Mother
was fired, she attempted to attain a position with the Greene County School System (“Greene
County”) by submitting more forged documents. Mother was not hired by Greene County.
Parents entered into a marital dissolution agreement and were divorced on July 19,
2006. The parenting plan designated Father as the primary residential parent but did not
allow for the Child’s visitation with Mother. Despite the agreement, Mother lived in the
home with Father, the Child, and Son1 until November 9, 2009. Approximately one month
later, Mother filed a petition to modify the parenting plan and to set visitation. Parents
reached an agreement for limited visitation during the pendency of the hearing.
Lengthy hearings were held on Mother’s petition over the course of several months.
Mother testified that she had never been charged with any type of criminal offense prior to
her relationship with Father, who was physically abusive throughout their relationship. She
said that her first pregnancy with Father resulted in a miscarriage and that she had two
additional miscarriages before becoming pregnant with the Child. She related that the
miscarriages “strained” their relationship and “drastically” increased their medical debt.
Mother acknowledged that she committed a multitude of crimes, namely forging Ms.
Broyles’s checks in 2005, embezzling money from Asbury in 2006,2 and forging checks that
belonged to family members in 2010. Father reimbursed Ms. Broyles.3 Mother received
diversion for the embezzlement charges but was placed on probation after she served 70 days
in jail for the 2010 forgeries. She explained that she forged checks in 2010 because she
needed to pay attorney fees for the custody dispute. She recognized that her misdeeds hurt
the Child but complained that Father should not have told the Child that she was in jail.
Mother also acknowledged that she deceived her employers, co-workers, family
members, the court system, and potential employers. She admitted that in order to attain an
advanced position with Asbury, she embellished her resume and submitted a forged diploma.
She explained that Father “wanted [her] to have that position” and that she wanted to appease
him. She admitted that she lied to Father and others by telling them that she was pregnant
with twins. She acknowledged that she had several baby showers in which family members
1
Son spent approximately half of his time with Mother and the remaining half with Mr. Burger.
2
Ivy Leonard testified that she discovered the Asbury embezzlement.
3
Kenneth Miller, a bank manager at First Tennessee Bank, confirmed that Father reimbursed Ms. Broyles.
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and co-workers gave her gifts for twins. She explained that Father wanted her to have twins
and claimed that Father would have learned the truth if he had attended any of her prenatal
appointments. She admitted that she told Father that she had health insurance through
Asbury even though she did not have health insurance. She admitted that she lied on her
application for diversion by stating that her medical doctors believed that she had a “mental
nervous breakdown,” was in need of “extensive therapy,” and was raised by an abusive
father. Lastly, she identified employment applications that she submitted to Greene County
in 2006. She admitted that in her applications, she forged her sister’s signature on a
reference form and certified that she had a college degree.
Mother alleged that after her unlawful actions were uncovered, Father’s violent
behavior increased. He initially asked her to have an abortion but then filed for divorce. He
told her that if she allowed him to retain custody of the Child, they would never tell anyone
about the divorce. She stated that after the divorce, they lived together as husband and wife.
She continued to feed, bathe, and care for the Child. She also cleaned the house and prepared
meals. She claimed that she was under Father’s complete control and that he dictated the
Child’s schedule. Father often forced her to leave the house, but she always returned.
Mother testified that in December 2006, she ingested 25 Tylenol PM pills. She related
that the night before, she and Father had an “ugly dispute.” The next morning, she took Son
to school and the Child to her paternal grandmother’s house before taking the medication in
a motel room. When she returned home, Father took her to a hospital. She recalled that her
face and nose were “swollen” and that her lip was “busted.” She initially denied that she had
been abused but when pressed, she told the crisis worker, William Nagy, Ph.D., the truth.
She refused help because she did not want to leave the Child.
Mother lived with Father until November 9, 2009, when he forced her and Son to
leave the house. She claimed that she left because she believed Father might hurt her or Son
if they refused. She explained that Father was intimidating and often carried weapons. After
she filed the petition to modify the parenting plan, she and Father reached an agreement,
providing for supervised visitation through the Child’s school and limited telephone contact.
She testified that when she was allowed to visit the Child, the “visits always went well.” She
asserted that after several months of visitation through the school, Father transferred the
Child to a different school. She resumed visitation when the Child was enrolled in a new
school several months later. She complained that in addition to impeding her visitation,
Father interrupted her telephone conversations with the Child. She alleged that Father had
not been cooperative since her last visit with the Child in September 2011. She insisted that
she was not a flight risk and alleged that she signed a lease for a house that had room to
accommodate the Child and had also obtained employment.
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Teri Myers testified that Father dated her friend, Cynthia Cobble, in the early 1990s.
She recalled that she was at a family member’s house when Ms. Cobble arrived and asserted
that Father was following her. She stated that shortly after Ms. Cobble arrived, Father tried
to break into the house. She claimed that when she left the house, Father threatened her.
Ms. Myers also testified that when she arrived at the courthouse to provide her
testimony, she saw Father, who said, “Be careful.” She related that she believed Father was
trying to intimidate her. Ashlee Shirey testified that she arrived at the courthouse with Ms.
Myers but did not hear Father say anything to her or Ms. Myers.
Ms. Shirey testified that she loaned Mother money and that Mother was making
payments to fulfill the loan. She recalled that Father advised her to sue Mother and stated
that her suit would aid him in his custody case. She ignored Father’s advice and simply
adhered to the agreement she reached with Mother for the repayment of the loan.
Mother’s sister, Rita Davis, testified that Mother told her that Father was abusive. She
recalled that she retrieved Mother from the house “several times” and noticed that Mother
had bruises on her chest, arms, and face. She claimed that she did not learn about the divorce
until November 2009. She identified Mother’s application for employment to Greene County
and asserted that Mother had signed her name on the reference form without permission.
Teresa Carver testified that she knew Mother because their sons attended the same
school. She and Mother were “really close” during that time, but she did not learn about
Mother’s divorce until 2009. She stated that in the waiting room of her doctor’s office,
Father told her about the divorce and custody case and spoke poorly about Mother. She felt
“disgusted” by the conversation because she believed Mother was a “very sweet lady.”
Barbara Shelton testified that she had known Mother for approximately 35 years and
that she had observed Mother with Son. She believed that Mother was “a very good mother.”
She admitted that she loaned Mother a large sum of money in 2010 because she believed
Mother needed money until a divorce settlement arrived. She insisted that Mother was
faithfully submitting payments but acknowledged that Mother had submitted a check that did
not clear for payment on the loan. She claimed that Father advised her to sue Mother.
Instead, she purchased Mother’s home from the bank as collateral.
Sandy Gammon testified that she was the administrator of Noah’s Ark Day Care and
Preschool while the Child was in attendance. She recalled that the Child was “very quiet”
when first enrolled at the school but that the Child had “really come out and blossomed” by
the time the Child left. She asserted that Mother and Father were “very involved” but that
Mother “usually” transported the Child to and from school until November 2009. She
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recalled that Mother was “very natural around children” and that Mother “seemed to have
a really strong relationship” with the Child. She admitted that despite the Child’s attachment
to Mother, she did not see a “big difference” in the Child in November 2009. She stated that
when Mother visited the Child during the school day, the visits were “very hard” on the
Child, who was excited to see Mother but would then cry when Mother left.
Ms. Gammon testified that while her interaction with Mother was normal, Father
made her uncomfortable. She recalled that Father became angry when he observed the Child
outside without a coat and when he learned that the Child had been bitten by another child.
Father also asked her to end Mother’s visitation privileges, but she refused. She claimed that
she eventually gave Father a letter of dismissal because of his behavior. When Father
promised to improve his behavior, she allowed the Child to resume her schooling on a
probationary period. She assured Father that Mother’s visits with the Child were supervised
in order to ensure that Mother did not harm the Child or flee with the Child. She
acknowledged that Mother had told her that Father was abusive.
Cathlyn Cannon, a mental health consultant, testified that she administered two tests
to Mother in an effort to ascertain her parental fitness. She related that she was prevented
from observing Mother’s interactions with the Child because of the visitation agreement in
place at the time. Her report provided, in pertinent part,
[Mother] does not display any indications of emotional or psychological
dysfunctioning at this time. No psychological diagnoses were presented by the
two specific sensitive psychometric instruments requested in the mediated
agreement, or by the clinical interview. Her depressive disorder is well under
control, and she remains compliant with treatment. Thus, her depressive
disorder does not present a sufficient reason to consider her a flight risk, or to
question her parenting abilities. She consistently demonstrated in the testing
instruments and interview that she attempts to avoid conflict with significant
others in her life. She may not have the assertive strength to cope with
[Father’s] forceful personality. She repeatedly described physical and verbal
abuse in her counseling notes. [Father] has consistently “called all the shots”,
controlling the contact between [Mother] and [the Child], including her family
contacts at holidays.
There is unequivocally no clinical or rational reason to continue the separation
and restrictions upon this mother and child. There is no need for any delay in
reuniting this mother and child. At least 50/50 time with each parent is
recommended. The emotional distress upon the child for the forced separation
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from her mother is a factor that has not been addressed, and was not provided
for this evaluation.
Based on the clinical finding of [Mother’s] evaluation, and the continued
concerns presented regarding [Father’s] issues of complete control of the
[C]hild, and alleged mistreatment of [Mother], I would advise reunion of the
[C]hild and [Mother] immediately. I would also recommend a complete
psychological evaluation of [Father], acceptably with the same psychometric
instruments requested of [Mother]. The completion of this evaluation is not
a tool to delay reunification of [Mother] and [the Child].
She admitted that her report was based upon Mother’s testimony but claimed that if Mother’s
assertions were untrue, her opinion would remain unchanged. She explained that the
pertinent tests did not show that Mother had “any psychopathology” or a “distorted or
pathological thought pattern.” She noted that Mother parented a child and maintained an
amicable relationship with Mr. Burger.
Dr. Nagy testified that he was the crisis response therapist for Frontier Health and that
he examined Mother on the night of December 7, 2006. He recalled that Mother had
attempted suicide and had already been medically cleared even though her face was red and
swollen, one of her eyes was swollen, her lips were split, and her nose was bloody. Father
showed him an auxiliary police officer badge and a gun and said she fell down the stairs.
Father refused to leave the examination room and continually interrupted Mother in an
intimidating manner. When Father finally left, Mother confided that Father abused her. He
offered her information regarding a battered women’s shelter, but she refused help. He
released Mother, with the understanding that Father, as her husband, had verbally agreed to
observe her every five minutes and ensure that she attended outpatient treatment. He insisted
that he would not have allowed Mother to leave with Father if he had known that they were
not legally married. He alleged that Father represented himself as Mother’s husband.
Rebecca Morrison, a pediatric nurse practitioner, testified that she worked at Kids
First Pediatric Office. She recalled that Father and his mother brought the Child to the office
for a follow-up appointment on December 23, 2009. She claimed that Father refused to wait
with the Child in the room designated for sick children and that Father was upset, prompting
her to note that he was belligerent when she arrived in the examination room.
Son, who was 19 years old at the time of trial, testified that he had graduated from
high school with good grades, had never had any disciplinary problems, and maintained full-
time employment. He stated that since the time of Mother’s divorce from his father, he spent
half of his time with Mother and the other half with his father. Relative to the Child, he
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testified that Mother bathed her, fed her, rocked her to sleep, and took her places. He
claimed that Father never performed these tasks for the Child. He stated that he also had a
good relationship with the Child and that he hoped to reestablish visitation with her.
Son testified that at times, Mother and Father argued. He claimed that Father was
“pretty aggressive” and often carried weapons. He believed that Father emotionally abused
Mother. He recalled that Father often forced Mother to leave the house and would not allow
her to bring the Child with her. He was present on November 9, 2009, when Father forced
Mother to leave the house for the last time. He recalled that Father tried to tell him about
Mother’s legal problems and was aggressive toward him when he defended Mother. He
stated that he grabbed a broom to defend himself because Father came toward him in a
threatening manner. He acknowledged that he threatened Father as he left the house.
Mr. Burger testified that he and Mother divorced when Son was approximately three
years old. He claimed that despite his marital difficulties with Mother, he was able to
cooperatively raise Son with Mother. He believed that Mother had been an “excellent”
mother to Son and had always encouraged Son.
Alice Chamberlain and Ruby Elaine Smith testified that they worked at Asbury with
Mother and described her as “loving” and as a “very kind, nurturing, sweet, soft spoken, mild
mannered[,] extremely patient” person. They did not believe that she was a danger toward
children. Ms. Smith testified that she allowed Mother to care for her children on occasion
and would continue to allow Mother to care for her children. They acknowledged that
Mother embezzled money and engaged in dishonest behavior but insisted that her unlawful
activity did not change their opinion. Ms. Chamberlain recalled that she observed bruising
on Mother’s neck and that Mother claimed that Father choked her. Ms. Smith recalled that
Father refused to allow Mother’s family to accompany her to the hospital when the Child was
born. Ms. Smith did not learn about Mother’s divorce until 2009.
Reverend John Daugherty testified that he and Father had been friends for more than
40 years. He supervised a visit between the Child and Mother in September 2011. He
claimed that the Child “did not want to go” and that Father convinced the Child to visit
Mother. He admitted that the Child went with him and that the visit was “fairly normal.”
He stated that before they left, the Child gave Mother a hug and kiss. He acknowledged that
he never observed any behavior that would cause him concern for the Child’s safety.
Reverend Daugherty testified that Father divorced Mother in an effort to protect the
Child’s “financial future.” Despite the divorce, Father allowed Mother to remain in the home
and have a relationship with the Child. He recalled that Mother often left the house on a
regular basis for extended periods of time without reason. He expressed concern about
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Mother caring for the Child without supervision because he thought she might abscond with
the Child. He claimed that Mother was quite successful in her attempt to deceive him and
his wife and had the unique capacity to deceive people and forge documents.
Kelley Roberts, a teacher, testified that she taught the Child during the 2010-2011
school year. She believed that the Child’s “self-esteem” had improved since Mother’s
visitation ceased. She said that the Child was “no longer distracted and troubled after lunch,”
was “more focused and attentive,” and was “socializing better with peers.” She conceded
that at first, the Child was disappointed and distracted when the visits ceased but that the
Child eventually resumed her normal activity with the other children.
Stephanie Strange testified that she owned a childcare business and had hired Mother
as an employee in October 2008. She stated that Mother failed to submit the necessary
paperwork for a background check and that when she asked her for the documents, Mother
submitted forged documentation. She said that Mother admitted to the forgery and finally
submitted valid documentation. She recalled that Mother claimed she was a teacher at
Asbury and knew Spanish. She later learned that Mother did not know Spanish. She became
concerned when Mother’s attitude changed. She related that Mother appeared to be
“unstable” and occasionally would “just blow up” in front of the children. She said that
Mother left in August 2009 and did not return. She alleged that Mother defamed her and
asked her clients to attend Mother’s new facility. She believed that Mother was incapable
of caring for children, was dangerous, and had a difficult time controlling the Child.
Gordon Britton testified that he was working at Northside Emergency Hospital when
Mother was a patient in December 2006. He related that if physical abuse had been alleged,
the proper procedure would be to contact law enforcement. He stated that he spoke with
Father, who did not appear to be angry but simply seemed concerned about Mother.
Amanda Waddell, the Director of Career Development at Asbury, testified that she
fired Mother for resume fraud on March 15, 2006. She later discovered that Mother had
embezzled money that was intended for a child that attended Asbury. She explained that the
child’s mother had died from cancer and that the money was submitted by a donor to Mother
as payment for the child’s tuition. She related that she was afraid of Mother and would not
let her near her children. She stated that Asbury issued a restraining order against Mother,
prohibiting her from visiting the campus. She suspected that Mother had returned to the
campus and falsified documents for the purposes of securing future employment.
The parties stipulated that Ronnie McAmis and Samantha Ramsey would testify that
Mother stole checks from them and forged their signatures in 2010. Mr. McAmis believed
that Mother should not be allowed to care for the Child because of her dishonest behavior.
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Ms. Ramsey recalled that Mother entered her bedroom and stole the checks while she
attended to her baby in the nursery.
Lynette Hill, who worked as the Director at Asbury from 2000 to 2005, testified that
Mother told her that Father was abusive. She stated that she confided in Mother that she had
difficulty conceiving a child. She believed that Mother re-circulated the story as her own
story. She believed that Mother was unstable and would not allow Mother near her daughter.
Special Agent Douglas Allen, who was employed by the United States Secret Service,
testified that he met Father two years ago and had been to Father’s home. He related that he
and Father were friends and that he had no concerns about associating with Father. He
believed that Father was a “nice guy” and “stand-up person.” He had observed him with the
Child and found him to be a loving father that cared for the Child. Likewise, Linda Gass, a
special education assistant for Greene County, testified that she observed the Child run to
Father after the Child received her diploma at pre-kindergarten graduation.
John Jones, Chief Deputy of the Greene County Sheriff’s Department, testified that
he worked with Father, who always acted in a professional and restrained manner in his
position as an auxiliary police officer. He said that Father had a good reputation for honesty
and that he had never seen Father lose control. He claimed that Mother had alleged Father
was stalking her but that he was unable to confirm her allegations.4 He was present when
Father viewed the videotape of Mother depositing a forged check with Son in the car.
Thomas Schacht, Psy. D. testified that in his assessment as to whether Mother was
capable of parenting the Child, he reviewed documents, observed the Child with Father,
observed the Child with Mother, and reviewed a home study completed by his social worker.
He found that Mother suffered from an impulse control disorder as evidenced by her struggle
with bulimia and her criminal behavior. He stated that those who suffer from impulse control
disorder often have a high incident of “intermittent explosive disorder, which is
unaccountable inappropriate expressions of anger and rage.” He suspected that Mother had
possibly attempted suicide on more than one occasion. He believed that Mother’s “capacity
to exercise mature judgment was severely impaired,” that she had a “severe impairment in
her capacity for moral reasoning,” that she did not have the capacity to relate to the Child
throughout the Child’s development, that her behavior created a risk of harm to the Child,
and that she was capable of “tremendous self deception” and was unable to recognize her
behavior as harmful. He related that Mother also had an unrealistic expectation of her ability
4
Detective Lieutenant David Crum, a detective with the Greeneville Police Department, likewise testified
that Mother’s complaints against Father were unfounded. He related that Mother associated with Wanda
Johnson, who had pled guilty to theft for charges relating to a forgery of checks.
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to share parental responsibilities with Father. He stated that despite his findings, he did not
believe that prohibiting contact between the Child and Mother was appropriate. Instead, he
believed that any visitation between the Child and Mother should be supervised.
Dr. Schacht testified that Ms. Cannon’s assessment of Mother was limited and
potentially misleading. The tests used were susceptible to presenting the subject in an overly
positive manner because the tests relied upon Mother’s presentation of herself. He also
stated that Ms. Cannon should not have issued a custody determination because to issue such
a determination was “clearly outside the parameters of accepted professional guidelines.”
Michael Marsh stated that Mother rented an apartment from him. Despite Mother’s
claim in the discovery process, he stated that Mother had never worked for him.
Father testified that he was self-employed and had obtained a Bachelor’s Degree in
Engineering. He was also the community representative for Head Start and was an auxiliary
police officer. He stated that he first learned Mother was pregnant in 2005 and that she
subsequently claimed that she was pregnant with twins. After he learned of the pregnancy,
a bank representative informed him that Mother had stolen from Ms. Broyles. He said that
when he confronted her about the theft, she claimed that Ms. Broyles had borrowed money
from her and was slowly paying her back. When he pressed her about the details, she left the
house. He confirmed that Mother eventually admitted that she had taken money from Ms.
Broyles and that he reimbursed Ms. Broyles in an effort to help Mother.
Father testified that approximately one month before the Child was born, Mother
claimed that she was on leave from Asbury and had miscarried one of the twins. He later
learned that Mother had been dismissed from Asbury and was never pregnant with twins.
After the Child was born, he finalized the divorce but allowed her to stay in the house. He
explained that he wanted to help her, while ensuring that the Child was safe. He alleged that
Mother agreed to the terms contained in their agreement, knowing that she was not legally
entitled to visitation. He related that the agreement they reached concerning her living
situation was “temporary” and that she agreed to move once she had enough money.
Father testified that the divorce was finalized in July 2006, that Mother attempted
suicide in December 2006, that she was indicted for theft days after the suicide attempt, and
that she attended a hearing for the theft charge in January 2007. He claimed that after the
hearing, she signed his name on an unauthorized check for $2,700. He asserted that Mother
often stole money from him and used his money as proof of employment.5
5
Mother asserted that she had worked for Father and that the checks were payment for her employment.
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Father claimed that Mother was more concerned about herself than the Child. He
stated that Mother often left the house for long periods of time even though her absence upset
the Child.6 He denied the allegations that he ordered her to leave the house. He claimed that
he and Mother shared the household and child-rearing duties and that he and Mother did not
share a bedroom after the divorce. He denied Mother’s assertion that he held himself out to
be her husband when he took her to the hospital in 2006. According to him, he informed
everyone that they were divorced and was never in the examination room with Dr. Nagy.
After the suicide attempt, he ensured that Mother was constantly supervised when caring for
the Child because he was fearful that Mother would kill the Child and then kill herself.
Approximately one year after she attempted suicide, Father believed Mother had
slightly improved. At that point, he allowed Mother to care for the Child, to an extent. He
stated that Mother’s interaction with the Child was still limited because the Child was
attending school. He asserted that in May 2009, Mother left the house after she hit him in
front of the Child. He alleged that in November 2009, they had one final confrontation that
ended when Mother left and never returned. He asserted that the Child did not miss Mother.
Father alleged that he was concerned that Mother might flee with the Child. He noted
that Mother had stolen money from him and others, that she was not employed, that she had
sold her house and bought a car, and that she had the ability to forge documents. He was
concerned about Mother’s stability and ability to provide for the Child. He claimed that the
Child had been physically hurt on at least one occasion when left unsupervised with Mother.
The trial court held that a material change in circumstance had occurred when Parents
ignored the terms of the parenting plan and lived together with the Child as they had before
the divorce and that another material change occurred when Mother was “essentially and
abruptly removed” from the Child’s life in November 2009. The court noted,
[Mother] has offered numerous credible witnesses that show that she has
raised [Son] without incident or concerns; that she ha[d] been the primary
parent for [the Child] in this matter without incident or concern; that she ha[d]
worked with numerous children, including infants without any problems. She
ha[d] always been a good, loving and competent caregiver for her children as
well as many other children including infants over a period of at least [19]
years. The [c]ourt finds no creditable evidence that [Mother] ever harmed a
child or was accused of doing so.
6
He claimed that the Child thanked him for not leaving her.
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The court acknowledged Mother’s criminal conduct but found that her conduct, even though
despicable, did not change the fact that Mother loved her children and had always been a
sound caregiver for them. The court held that the “greater weight of the evidence show[ed]
that she would continue to be a good mother.” The court performed a best interest analysis
before designating Father as the primary residential parent but holding that Mother should
have “liberal unsupervised visitation” with the Child. A permanent parenting plan that
provided for 140 days of visitation with Mother was submitted for entry and subsequently
adopted by the trial court. This timely appeal followed.
II. ISSUES
We consolidate and restate the issues raised on appeal as follows:
A. Whether the trial court erred in finding that a material change in
circumstances necessitated a modification in the permanent parenting plan.
B. Whether the trial court erred in modifying the permanent parenting plan.
III. STANDARD OF REVIEW
On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review
with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.
2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed
questions of law and fact are reviewed de novo with no presumption of correctness; however,
appellate courts have “great latitude to determine whether findings as to mixed questions of
fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).
In matters of divorce and child custody, trial courts are vested with broad discretion,
and appellate courts will not interfere with the trial court’s decision except upon a showing
of erroneous exercise of that discretion. See Whitaker v. Whitaker, 957 S.W.2d 834, 836-37
(Tenn. Ct. App. 1997). “‘Because [c]ustody and visitation determinations often hinge on
subtle factors, including the parents’ demeanor and credibility during . . . proceedings,”
appellate courts “are reluctant to second-guess a trial court’s decisions.’” Hyde v. Amanda
Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905, at *3 (Tenn. Ct. App. Oct.12,
2010) (quoting Johnson v. Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004)).
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IV. DISCUSSION
A.
Father asserts that the trial court erred in finding that a material change in
circumstances occurred when Mother left Father’s residence. He claims that Mother’s
absence was a reasonably anticipated circumstance when the initial custody determination
was entered. He acknowledges that Mother’s eventual absence from the home took longer
than anticipated but argues that her constant presence was always meant to be temporary.
Mother responds that the trial court did not err in finding that a material change in
circumstances occurred when Mother was permitted to live with Father and the Child and
when Mother was subsequently ejected from the home years later.
“A custody decision, once final, is res judicata upon the facts in existence or
reasonably foreseeable when the decision was made.” Scofield v. Scofield, No. M2006-
00350-COA-R3-CV, 2007 WL 624351, at *3 (Tenn. Ct. App. Feb. 28, 2007) (citing Young
v. Smith, 246 S.W.2d 93, 95 (Tenn. 1952)). However, because the circumstances of children
and parents change, our courts are “empowered to alter custody arrangements when
intervening circumstances require modifications.” Scofield, 2007 WL 624351, at *2 (citing
Tenn. Code Ann. § 36-6-101(a)(1)).
Modification of an existing custody or visitation arrangement involves a two-step
analysis. Tenn. Code Ann. § 36-6-101(a)(2)(B), (C). First, the parent attempting to modify
the existing custody or visitation arrangement must prove that a material change in
circumstances has occurred. Tenn. Code Ann. § 36-6-101(a)(2)(B), (C). “There are no hard
and fast rules for when there has been a change of circumstances sufficient to justify a
change in custody.” Cosner v. Cosner, No. E2007-02031-COA-R3-CV, 2008 WL 3892024,
at *4 (Tenn. Ct. App. Aug.22, 2008) (citing Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn.
2003)). However, to determine whether a material change in circumstances has occurred,
the court should consider whether:
(1) the change occurred after the entry of the order sought to be modified; (2)
the changed circumstances were not reasonably anticipated when the
underlying decree was entered; and (3) the change is one that affects the
child’s well-being in a meaningful way.
Cosner, 2008 WL 3892024, at *4 (citing Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn.
2002)). The determination of whether a “material change of circumstances” has occurred
requires a different standard depending upon whether a parent is seeking to modify custody
(i.e., change the primary residential parent) or modify the residential parenting schedule.
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Tenn. Code Ann. § 36-6-101(a)(2)(B), (c). The Tennessee Code establishes a lower
threshold for modification of a residential parenting schedule. Scofield, 2007 WL 624351,
at *3. Here, the trial court rejected Mother’s request to modify custody but modified the
residential parenting schedule. Thus, the lower threshold applies. The Code provides,
If the issue before the court is a modification of the court’s prior decree
pertaining to a residential parenting schedule, then the petitioner must prove
by a preponderance of the evidence a material change of circumstance
affecting the child’s best interest. A material change of circumstance does not
require a showing of a substantial risk of harm to the child. A material change
of circumstance for purposes of modification of a residential parenting
schedule may include, but is not limited to, significant changes in the needs of
the child over time, which may include changes relating to age; significant
changes in the parent’s living or working condition that significantly affect
parenting; failure to adhere to the parenting plan; or other circumstances
making a change in the residential parenting time in the best interest of the child.
Tenn. Code Ann. § 36-6-101(a)(2)(C).
In this case, Parents never adhered to the parenting plan. Parents did not agree on
much throughout the trial but each agreed that Mother, whether supervised or unsupervised,
was a constant presence in the Child’s life, despite the agreement reached in the initial
parenting plan that was adopted by the trial court. Child became accustomed to Mother’s
presence and was upset by Mother’s absence. Each change, Mother’s constant presence and
then subsequent absence, affected the Child’s well-being in a meaningful way and
necessitated a change in the residential parenting schedule that was in the best interest of the
Child. Accordingly, we affirm the court’s decision that a material change in circumstances
occurred when Mother remained in the home after the entry of the parenting plan and when
Mother left the home after years of liberal visitation with the Child.
B.
Having concluded that Mother presented sufficient evidence to establish that a
material change in circumstances had occurred, this court must now consider whether the
trial court erred in modifying the parenting plan. Father asserts that the trial court failed to
consider and articulate the relevant and applicable factors. He asserts that Mother’s behavior
and diagnosis prevent her from providing financial security, from fostering the Child’s
emotional and moral development, from providing encouragement, and from assisting the
Child in developing and maintaining appropriate relationships. Mother responds that the
court did not err in modifying the residential parenting schedule.
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In modifying a residential parenting schedule, the trial court must determine whether
a change in visitation is in the best interest of the child. In re J.C.S., No. M2007-02049-
COA-R3-PT, 2008 WL 2924982, at *6 (Tenn. Ct. App. July 28, 2008). This determination
requires consideration of a number of factors, including those set forth at Tennessee Code
Annotated section 36-6-106(a) to make an initial custody determination and those at
Tennessee Code Annotated section 36-6-404(b) to establish the residential schedule. Id.
Trial courts are not required to articulate each and every fact and its application in custody
cases. See Murray v. Murray, No. M2009-01576-COA-R3-CV, 2010 WL 3852218, at *8
(Tenn. Ct. App. Sept. 28, 2010) (stating that “while the statute requires the trial court to
consider all the applicable factors, there is no statutory requirement that the court list every
applicable factor along with its conclusion as to how that particular factor impacted the
overall custody determination”). However, the court must make a best interest analysis to
determine which parent is comparatively more fit. Id.
We acknowledge that the record does not reflect that the trial court articulated each
relevant factor and assigned weight to each factor. Such is not required. The record does
reflect that the court spent an inordinate amount of time entertaining each parent’s testimony
and arguments before conducting a best interest analysis. In this case, Parents submitted
exhaustive and at times, duplicative evidence of the other parent’s moral depravity and
inability to properly care for the Child. Mother alleged that Father was abusive and
vindictive, while Father alleged that Mother was incapable of accepting responsibility for and
improving her criminal and deceitful behavior that affected the Child. Notably, the court
appeared to agree with each parent’s assessment of the other but found that the Child’s
maintenance of a relationship with each parent was in the Child’s best interest. We agree.
Each parent in this case has shortcomings; however, the Child will benefit from the
continued nurturing that Mother provided after the divorce and the continued stability that
Father provided. Accordingly, we affirm the decision of the trial court and the adoption of
the permanent parenting plan, requiring liberal visitation with Mother.
V. CONCLUSION
The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, James Lyle
Graham.
______________________________________
JOHN W. McCLARTY, JUDGE
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