Willard Harrison Iman, Jr. v. Megan Blanchfield Iman ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 11, 2013 Session
WILLARD HARRISON IMAN, JR. v. MEGAN BLANCHFIELD IMAN
Direct Appeal from the Chancery Court for Montgomery County
No. MC CH CV DI 11 48 Laurence M. McMillan, Jr., Chancellor
No. M2012-02388-COA-R3-CV - Filed July 16, 2013
This case involves post-divorce modification of a parenting schedule. Mother sought
modification of the schedule after moving to Florida to be nearer to Father and the minor
child. The trial court considered the case and modified the schedule to allow Mother more
time with the child. Father appeals, arguing that the trial court no longer had jurisdiction to
hear the dispute, that the trial court should have declined jurisdiction on the basis of forum
non conveniens, that Mother failed to prove a material change in circumstances, and that the
modification was not in the child’s best interests. We affirm the trial court’s rulings with
regard to jurisdiction, application of the forum non conveniens doctrine, and a material
change in circumstances. However, because the trial court failed to make a finding that
modification was in the child’s best interests, we remand to the trial court for the entry of an
order containing appropriate findings of fact and conclusions of law as to whether
modification is in the child’s best interests. Affirmed in part, and remanded.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part and Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.
Sharon T. Massey, Clarksville, Tennessee, for the appellant, Willard Harrison Iman, Jr.
Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellee, Megan
Blanchfield Iman.
OPINION
I. Background
The parties, Willard Harrison Iman, Jr. (“Father”) and Megan Blanchfield Iman
(“Mother”), have one child. The parties were divorced in 2011 based on the extramarital
affair of Mother, as well as the trial court’s finding that Mother had brought the child around
a registered sex offender. During the pendency of the divorce, Father moved to Florida for
his job in the military and Mother was temporarily designated the primary residential parent.
During the separation, the parties had enjoyed equal visitation with the child and the court
noted that it had gone well. In the trial court’s permanent parenting plan, the trial court
named Father primary residential parent, allowing the child to move to Florida with Father.
The child was to stay with Mother, however, to complete the rest of the school year and
would move in the summer. Once the child moved to Florida, Mother would be allowed
parenting time with the child on all three-day weekends. Although, at trial, Mother expressed
no intention or desire to move, the trial court further noted that “It is the desire of this court
for Mother to enjoy equal parenting time with the Father in the event she relocate[s] to the
State of Florida.” A final decree and permanent parenting plan were entered on December
6, 2011.
After the final order was entered, Mother decided to relocate to Florida. To that end,
on March 23, 2012, Mother filed a petition in the trial court to modify the permanent
parenting plan. At this time, both Mother and the child resided in Tennessee. Mother sought
only equal parenting time, not to be named the primary residential parent of the child. The
child moved to Florida as ordered in May 2012. Mother relocated to Florida in June 2012,
securing a job as a nurse and appropriate housing approximately two miles from Father’s
home.
On June 20, 2012, Father filed a Motion to Dismiss for Lack of Jurisdiction, or in the
alternative, to find that Tennessee was an inconvenient forum due to all the parties and
witnesses now residing in Florida. The parties scheduled court-ordered mediation on July 3,
2012, but Father failed to appear for the mediation. Subsequent mediation proved
unsuccessful.
Trial was scheduled for July 7, 2012. However, Father sought a continuance due to
a work conflict. The trial court ultimately heard the case on August 7, 2012. At this point, the
child had been in Florida for approximately thirteen weeks. The trial court heard testimony
from the parties, their babysitter in Tennessee, and the child’s counselor.
The child’s counselor, Dr. Paige Mullins-Couch, a licensed clinical psychologist,
participated in a telephonic deposition prior to trial in this cause. The deposition transcript
was submitted to the trial court without objection. In the deposition, the counselor testified
that she had seen the child during the divorce and after the final divorce decree was entered.
The counselor was chosen from a list of approved providers on Father’s insurance. The
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counselor testified that although the child was well-adjusted, following Father’s move to
Florida, the child became upset about being away from either parent for a significant period
of time. The counselor further testified that the child expressed sadness and frustration at not
getting to see either parent. Specifically, the counselor testified that the child misses Mother
when he is with Father and that the child misses Father when he is with Mother. Based on
the child’s reactions, the counselor testified that she believed it was in the child’s best interest
to spend equal amounts of time with both parents. The counselor further testified that her
opinion was in line with the child’s expressed preference. According to the counselor, both
Mother and Father acknowledged that the court was likely to allow equal parenting time if
Mother moved to Florida. Indeed, the counselor expressed surprise that the issue of equal
parenting time was contested by Father.
Father, testified, however to certain problems that had occurred after the entry of the
final divorce decree and permanent parenting plan. Both parents took issue with the other
parent’s significant other spending any time with the child. In addition, Father testified that
Mother limited Father’s time with the child on Father’s day, instead taking the child to the
beach with her boyfriend. Mother explained that based on the court’s parenting plan in place
at the time, Father’s Day was not awarded to Father. Mother further testified she had tried
to negotiate with Father to modify the plan so that he would have the child on Father’s Day,
but that Father refused to agree to any modification. Father also testified that Mother lied
to Father about the date of the three-day weekend for Martin Luther King, Jr. Day, as Father
was to receive all three-day weekends with the child, which ultimately prevented him from
seeing the child on that weekend. Father also testified about one incident in which Mother
called the police on Father after he requested to keep the child one extra night during his
visitation.
Mother, in contrast, testified that Father never deprived her of allotted parenting time.
Mother further testified that she had secured employment in Florida and worked a schedule
similar to the one she had worked when she had lived in Tennessee. According to Mother,
she “self-schedules” her work, meaning that she is able to choose which days per week that
she will work. However, Mother must work some weekdays and some weekend days every
week. Finally, Mother testified that the child was a good student during the time she had
primary custody of him and that he flourished under her care. Father, however, pointed out
that the child had always been a good student throughout the marriage and that his grades
took a slight downturn during the time after Father moved to Florida and Mother was
spending the majority of time with the child.
The trial court entered a Memorandum Opinion on October 11, 2012. The trial court
first declined to dismiss the case, despite Father’s arguments regarding the trial court’s
alleged lack of subject matter jurisdiction and the doctrine of forum non conveniens. The
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trial court further found that Mother’s move to Florida was a material change in
circumstances and modified the parenting plan to allow for the parties to have equal
visitation with the child, on an alternating weekly basis. The primary residential parent was
not altered. Thus, the parties were each awarded 182.5 days per year with the child, on an
alternating weekly basis. The final order was entered on October 22, 2012. Father appeals.
II. Issues Presented
Father raises three issues on appeal, as restated from his brief:
1. Whether the trial court abused its discretion in failing to dismiss based on the
application of the Uniform Child Custody Jurisdiction and Enforcement Act and
Forum Non Conveniens?
2. Whether the trial court erred in finding that a material change in circumstances existed
that justified modifying the parenting plan?
3. Whether the trial court erred in finding that it was in the best interest of the child to
be divided on a rotating weekly basis?
III. Analysis
A. Jurisdiction
1. Subject Matter Jurisdiction
The first issue to be resolved in this case is whether the trial court had subject matter
jurisdiction pursuant to the Uniform Custody Jurisdiction and Enforcement Act
(“UCCJEA”).The UCCJEA is a detailed jurisdictional Act that has been adopted, in one form
or another, in all fifty states. Staats v. McKinnon, 206 S.W.3d 532, 545 (Tenn. Ct. App.
2006). It was designed to establish uniform national standards for the initial entry,
enforcement, and modification of child custody orders and to eliminate those difficult
situations where, after one or more parties to a domestic dispute have moved from one state
to another, the courts of the different states claim the authority to issue contradictory orders.
Staats, 206 S.W.3d at 544.
Whether a court has jurisdiction is a question of law, and we will review a trial court's
ruling on this issue de novo, according it no presumption of correctness. Button v. Waite,
208 S.W.3d 366, 369 (Tenn. 2006) (citing State v. Cawood, 134 S.W .3d 159, 163 (Tenn.
2004)). We also review questions of statutory interpretation de novo, with no presumption
of correctness given to the trial court. Button, 208 S.W.3d at 369 (citing State v. Collins, 166
S.W.3d 721, 725 (Tenn. 2005)).
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Tennessee’s version of the UCCJEA is codified at Tennessee Code Annotated Section
36-6-201 et seq. It is undisputed that the trial court in this case made the initial custody
determination regarding the child at issue. Under the UCCJEA, the court that made an initial
custody determination retains exclusive, continuing jurisdiction over the matter unless certain
contingencies are met. Tenn. Code. Ann. § 36-6-217(a). Tennessee’s version of the UCCJEA
provides:
(a) Except as otherwise provided in § 36-6-219, a court of this
state which has made a child-custody determination consistent
with this part has exclusive, continuing jurisdiction over the
determination until:
(1) A court of this state determines that neither the child, nor the
child and one (1) parent, nor the child and a person acting as a
parent have a significant connection with this state and that
substantial evidence is no longer available in this state
concerning the child's care, protection, training, and personal
relationships; or
(2) A court of this state or a court of another state determines
that the child, the child's parents, and any person acting as a
parent do not presently reside in this state.
Tenn. Code. Ann. § 36-6-217(a). Thus, the UCCJEA gives the court that made the initial
custody decision the authority to determine when its exclusive, continuing authority over
custody has ended. This court has characterized that authority as “a right of first refusal.”
Jones v. Taylor, No. M2005-02772-COA-R10-CV, 2006 WL 2450273, at *7 (Tenn. Ct. App.
Aug. 21, 2006); Cliburn v. Bergeron, Nos. M2002-01386-COA-R3-CV,
M2001-03157-COA-R3-CV, 2002 WL 31890868, at *8 (Tenn. Ct. App. Dec. 31, 2002).
“Such a formulation implies that the trial court can exercise a certain degree of discretion
when determining whether to retain or to relinquish jurisdiction of a custody matter when
another state is also a legitimate candidate for the exercise of jurisdiction.” Conover v.
Conover, No. M2009-01856-COA-R3-CV, 2010 WL 3420548, at *5 (Tenn. Ct. App. Aug.
31, 2010).
Father argues that the trial court lost exclusive, continuing jurisdiction because neither
he, the child, nor Mother resided in the state at the time of the trial. Mother argues, however,
that the Official Comment to Tennessee Code Annotated Section 36-6-217 provides that:
“Jurisdiction attaches at the commencement of a proceeding. If State A had jurisdiction under
this section at the time a modification proceeding was commenced there, it would not be lost
by all parties moving out of the State prior to the conclusion of proceeding.” It is undisputed
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that Mother commenced her modification proceeding while both she and the child still
resided in Tennessee.
We agree with Mother. The UCCJEA provides that where there is a dispute about the
proper construction of any section of the UCCJEA, the official comments “shall constitute
evidence of the purposes and policies underlying such sections . . . .” Tenn. Code Ann. § 36-
6-203. This Court has previously relied on the Official Comments in interpreting the
provisions in the UCCJEA regarding exclusive, continuing jurisdiction. See In re Marquise
T.G., No. M2011-00809-COA-R3-JV, 2012 WL 1825766, at *5 (Tenn. Ct. App. May 18,
2012); Conover, 2010 WL 3420548, at *4; Highfill v. Moody, No. W2009-01715-COA-R3-
CV, 2010 WL 2075698, at *5 & n.4 (Tenn. Ct. App., May 25, 2010); Cliburn, 2002 WL
31890868, at *8. Therefore, we conclude that the question of jurisdiction is decided at the
time of commencement of the proceeding. This holding is in accord with our established
precedent. See In re J.B.W., 2007 WL 4562885, at *3 (Tenn. Ct. App. Dec. 27, 2007)
(holding that “[t]he trial court did not lose subject matter jurisdiction over the petition just
because the parties moved after the complaint was filed”); Staats, 206 S.W.3d at 549
(holding that jurisdiction in a UCCJEA case attaches at the commencement of a proceeding).
Indeed, this Court has held that “[c]hanges in circumstances occurring after [the
commencement of the proceeding] have no relevance with respect to jurisdiction over the
petition to modify.” Busler v. Lee, No. M2011-01893-COA-R3-CV, 2012 WL 1799027, at
*3 (Tenn. Ct. App, May 17, 2012). Because both Mother and the child lived in Tennessee at
the commencement of the proceeding, the trial court did not lose exclusive, continuing
jurisdiction merely due to the fact that all the parties moved to Florida while Mother’s
modification request was pending.
Likewise, we conclude that at the time of the commencement of this proceeding,
Mother and the child maintained a significant connection with Tennessee and substantial
evidence, in the form of both Mother’s and the Tennessee babysitter’s testimony was
available in Tennessee. The official comments to section 36-6-217 explain that:
[E]ven if the child has acquired a new home state, the original
decree state retains exclusive, continuing jurisdiction, so long as
the general requisites of the substantial jurisdiction provisions
are met. If the relationship between the child and the person
remaining in the state with exclusive, continuing jurisdiction
becomes so attenuated that the court could no longer find
significant connections and substantial evidence, jurisdiction
would no longer exist.
Consistent with the official comment, this court has interpreted section 36-6-217(a)(1) to
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mean that “the Tennessee court making the original determination retains jurisdiction until
it determines that neither the child nor the child and one parent have a significant connection
with Tennessee and that substantial evidence relevant to the child's best interest is no longer
available in Tennessee.” Cliburn, 2002 WL 31890868, at *9. At the time Mother commenced
this proceeding, both Mother and the child were residing in Tennessee and spending
substantial amounts of time there. At the time Mother filed her petition, the child was still
attending school in Tennessee and was only traveling to Florida to visit Father on holidays.
Indeed, after a dispute with Mother regarding the child flying alone to Florida, the trial court
clarified its order that Father should travel to Tennessee to visit with the child on three-day
weekends. Accordingly, we conclude that the trial court properly exercised its discretion to
retain jurisdiction of this matter pursuant to the UCCJEA.
2. Forum Non Conveniens
Father next argues that even if the trial court retained jurisdiction pursuant to the
UCCJEA, the trial court should have elected not to consider this dispute based on the
doctrine of forum non conveniens. Even if a court has exclusive, continuing jurisdiction, the
UCCJEA allows the court to decline to exercise that jurisdiction “at any time if it determines
that it is an inconvenient forum under the circumstances and that a court of another state is
a more appropriate forum.” Tenn. Code Ann. § 36-6-222(a); In re B.N.W., No. M2004-
02710-COA-R3-JV, 2005 WL 3487792, at *16 (Tenn. Ct. App. Dec. 20, 2005). Invoking the
doctrine of forum non conveniens, however, “is a drastic remedy to be exercised with caution
and restraint.” 20 Am. Jur. 2d Courts § 116. Our review with respect to a trial court's
decision to decline to exercise jurisdiction under the inconvenient forum provisions is,
therefore, limited to determining whether the trial court abused its discretion. In re J.B.W.,
M2007-02541-COA-R9-CV, 2007 WL 4562885, at *3 (Tenn. Ct. App. Dec. 27, 2007); In
re Bridgestone/Firestone, 138 S.W.3d 202, 205 (Tenn. Ct. App. 2003). As our Supreme
Court has explained,
When no error in the trial court's ruling is evident from the
record, the trial court's ruling must stand. This maxim has
special significance in cases reviewed under the abuse of
discretion standard. The abuse of discretion standard recognizes
that the trial court is in a better position than the appellate court
to make certain judgments. The abuse of discretion standard
does not require a trial court to render an ideal order . . . to
withstand reversal. Reversal should not result simply because
the appellate court found a “better” resolution. See State v.
Franklin, 714 S.W.2d 252, 258 (Tenn. 1986) (“appellate court
should not redetermine in retrospect and on a cold record how
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the case could have been better tried”); cf. State v. Pappas, 754
S.W.2d 620, 625 (Tenn. Crim. App. 1987) (affirming trial
court's ruling under abuse of discretion standard while noting
that action contrary to action taken by the trial court was the
better practice); Bradford v. Bradford, 51 Tenn. App. 101, 364
S.W.2d 509, 512–13 (1962) (same). An abuse of discretion can
be found only when the trial court's ruling falls outside the
spectrum of rulings that might reasonably result from an
application of the correct legal standards to the evidence found
in the record. See, e.g., State ex. rel Vaughn v. Kaatrude, 21
S.W.3d 244, 248 (Tenn. Ct. App. 2000).
Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).
In order to determine whether Tennessee is an inconvenient forum, the trial court is
directed to consider Tennessee Code Annotated Section 36-6-222(b), which provides, in
pertinent part:
(b) Before determining whether it is an inconvenient forum, a
court of this state shall consider whether it is appropriate for a
court of another state to exercise jurisdiction. For this purpose,
the court shall allow the parties to submit information and shall
consider all relevant factors, including:
(1) The length of time the child has resided outside this state;
(2) The distance between the court in this state and the court in
the state that would assume jurisdiction;
(3) The relative financial circumstances of the parties;
(4) Any agreement of the parties as to which state should
assume jurisdiction;
(5) The nature and location of the evidence required to resolve
the pending litigation, including testimony of the child;
(6) The ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence;
(7) Whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the
parties and the child; and
(8) The familiarity of the court of each state with the facts and
issues in the pending litigation.
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With regard to the first factor, the child moved to Florida in May of 2012, when he
was eight years old. See Tenn. Code Ann. § 36-6-222(b)(1). Thus, at the time of trial on
August 7, 2012, the child had lived in Florida for approximately thirteen weeks. In contrast,
the child had lived in Tennessee at least from prior to the divorce trial in October 2011 to
May 2012 when he moved to live with Father in Florida, a period of approximately eight
months or more.1 Thus, Tennessee had far more significant contact with the child, even after
the entry of the permanent parenting plan that Mother sought to modify.
While Florida is a significant distance from the trial court in Tennessee, the parties
were able to participate in mediation and appear at trial in this cause. See Tenn. Code Ann.
§ 36-6-222(b)(2). In addition, there is no evidence in the record regarding the relative
financial circumstances of the parties, nor was there any agreement between the parties to
seek modification of the trial court’s order in another state. See Tenn. Code Ann. § 36-6-
222(b)(3)&(4). With regard to the evidence concerning the modification, Father submits that
he was unable to present the testimony of the child’s babysitter in Florida and contends that
evidence regarding the child’s school was in Florida. See Tenn. Code Ann. § 36-6-222(b)(5).
The location and residence of a witness may be an important consideration in determining
whether to apply the doctrine of forum non conveniens:
A court may decline jurisdiction under the doctrine of forum non
conveniens where the witnesses reside out of state, particularly
where the event occurred in the state of the witnesses' residence.
Thus, among the private-interest factors weighing in favor of a
change of forum are those that make the trial and the
enforceability of the ensuing judgment expeditious and
relatively inexpensive, such as the ease of access to the sources
of proof, the cost of obtaining the attendance of the witnesses,
and the availability of compulsory process for the attendance of
unwilling witnesses. However, a party’s speculative allegation
that there may exist out-of-state witnesses not subject to
compulsory process by the forum state is not sufficient in itself
to support dismissal of the action on the ground of forum non
conveniens.
20 Am. Jur. 2d Courts § 122. Nothing in either Father’s brief, or in the trial court record
suggests, however, that the child’s baby sitter was an “unwilling” witness or that the parties
were unable to obtain her testimony telephonically, as was the case with the child’s
1
It is unclear from the record when the parties began to reside in Tennessee. The record shows that
parties were living in North Carolina as late at 2007, but does not state when the parties moved to Tennessee.
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counselor. In addition, although Father asserts that the child’s school records were in Florida
at the time of trial, we note that the trial in this case took place in July 2012 after the child
moved from Tennessee at the end of the school year. Accordingly, we are unable to discern
the value of any Florida school records, if they exist, that were unable to be produced at trial.
Indeed, Mother produced documents from the child’s school in Tennessee. No documents
from any schools in Florida, which would be readily available to Father if in existence, were
produced by Father at trial. Thus, these factors do not support Father’s argument that the trial
court abused its discretion in declining to dismiss this case on the basis of forum non
conveniens.
In addition, the remaining applicable factors support the trial court’s decision to retain
jurisdiction of this case. First, the trial court is very familiar with the parties and the child in
this case, having presided over the parties divorce less than a year prior to the modification
hearing. See Tenn. Code Ann. § 36-6-222(b)(8). Moreover, nothing in the record suggests
that the Tennessee Court was unable to decide this issue expeditiously. See Tenn. Code Ann.
§ 36-6-222(b)(7). Indeed, Mother’s petition was filed at the end March of 2012 and was
heard a short three months later. Evidence in the record also suggests that trial was delayed
for that short period of time due to Father’s work schedule and his failure to appear at the
parties’ first mediation. In addition, nothing in the record suggests that Florida courts could
have heard this case more expeditiously or that Florida courts have better “procedures
necessary to present the evidence.” Id. Thus, these factors support the trial court’s decision
to decline Father’s request to dismiss the case under the doctrine of forum non conveniens.
Based on the foregoing, we conclude that the trial court did not abuse its discretion in
denying Father’s Motion to Dismiss Mother’s Petition for Modification on the basis of forum
non conveniens.
B. Parenting Plan
We next turn to Father’s contention that Mother failed to prove a material change in
circumstances and that modification was not in the child’s best interest. We review the trial
court’s findings of fact on this issue de novo with a presumption that the trial court's findings
of fact are correct unless the evidence preponderates otherwise. Kendrick, 90 S.W.3d at 569;
Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990). A trial court's conclusions of law are
subject to a de novo review with no presumption of correctness. Nelson, 66 S.W.3d at 901
(citing Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997)). In addition, we are
reluctant to second-guess a trial court's determination regarding parenting schedules. Parker
v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999). “Trial courts have broad discretion in devising
permanent parenting plans and designating the primary residential parent. In reaching such
decisions the courts should consider the unique circumstances of each case.” Burton v.
Burton, No. E2007-02904-COA-R3-CV, 2009 WL 302301, at *1 (Tenn. Ct. App. Feb. 9,
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2009) (citing Parker, 986 S.W.2d at 563); see also Nelson v. Nelson, 66 S.W.3d 896, 901
(Tenn. Ct. App. 2001). Furthermore, it is not the role of the appellate courts to “tweak
[parenting plans] . . . in the hopes of achieving a more reasonable result than the trial court.”
Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). Because “‘the details of custody and
visitation with children are peculiarly within the broad discretion of the trial judge,’” we
review issues of parenting time for an abuse of discretion. Eldridge, 42 S.W.3d at 85
(quoting Suttles v. Suttles, 748 S .W.2d 427, 429 (Tenn. 1998)). “[A]ppellate courts will
decline to disturb a parenting plan fashioned by a trial court unless that decision is based on
application of an incorrect legal standard, is against logic or reasoning, or is not supported
by a preponderance of the evidence.” Cummings v. Cummings, No. M2003-00086-COA-
R3-CV, 2004 WL 2346000, at *5 (Tenn. Ct. App. Oct. 15, 2004).
1. Material Change in Circumstances
The threshold issue in proceedings to modify a parenting plan is whether a material
change in circumstances affecting the child's best interest has occurred since the adoption of
the existing parenting plan. Tenn. Code Ann. § 36-6-101(a)(2)(C); see Kendrick v.
Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002). After making the finding that a material
change of circumstances has occurred, the court proceeds to make a fresh determination of
the best interest of the child. Curtis v. Hill, 215 S.W.3d 836, 840 (Tenn. Ct. App. 2006);
Kendrick, 90 S.W.3d at 569. For purposes of modification of the residential parenting
schedule, the petitioner has the burden to prove by a preponderance of the evidence a
material change of circumstance, “which may include, but is not limited to, significant
changes in the needs of the child over time . . . 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). The statute regarding changes to a
residential parenting schedule “sets a very low threshold for establishing a material change
of circumstances. Indeed, merely showing that the existing arrangement has proven
unworkable for the parties is sufficient to satisfy the material change of circumstances test.”
Rose v. Lashlee, No. M2005-00361-COA-R3-CV, 2006 WL 2390980, at *3, n.3 (Tenn. Ct.
App. Aug. 18, 2006) (citing Rushing v. Rushing, No. W2003-01413-COA-CV, 2004 WL
2439309, at *6 (Tenn. Ct. App. Oct. 27, 2004); Turner v. Purvis, No. M2002-00023-COA-
R3-CV, 2003 WL 1826223, at *4 (Tenn. Ct. App. Apr. 9, 2003)).
Father argues that the trial court erred in finding a material change in circumstances
justifying an alteration of the parenting schedule because, according to him, Mother’s move
to Florida was anticipated by the trial court at the time the permanent parenting plan was
entered. We respectfully disagree. From the trial court’s order, it appears that although the
trial court stated that its desire was for Mother to move to Florida to have equal parenting
time with the child, the trial court actually believed that Mother intended to move to New
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York, not Florida. Indeed, the trial court’s memorandum opinion, which was entered shortly
after the divorce trial, states: “The Mother claims that she wishes to stay in Clarksville,
Tennessee; although there was proof at trial that Mother’s desire to stay in Clarksville was
disingenuous and that she actually intends to relocate to the State of New York where she
grew up following the divorce.” Thus, the trial court found that the evidence at trial tended
to show that Mother intended to move to New York, rather than Florida.
The trial court’s statement of its desire that Mother should move to Florida in order
to gain equal parenting time with the child likewise does not deprive her of using the move
as a material change in circumstances for purposes of modifying the parenting schedule. A
similar argument was made in Kraus v. Thomas, 2013 WL 2612458 (Tenn. Ct. App. June
7, 2013), where the trial court encouraged the father to attend counseling, which could result
in him “earn[ing]” more visitation time with his child. In rejecting the argument that Father’s
successful completion of counseling was not reasonably anticipated, this Court stated:
The trial court stated that obtaining counseling may help
Father “earn” more parenting time in the future, thus, it could be
argued in a future hearing that successfully completing
counseling was reasonably anticipated. If that occurred, Father
may be precluded from asserting it constituted a substantial and
material change of circumstance in order to obtain more
parenting time. See Tenn. Code Ann. § 36-6-101(a)(2)(B).
Therefore, it is important to note that this well-intended
statement by the trial court should not be construed as
“reasonably anticipated” and, thus, impede Father from
petitioning for additional parenting time based upon a
substantial and material change of circumstance. We made a
similar observation in Duke v. Duke, No. M2009-02401-COA-
R3-CV, 2012 WL 1971144, at *3–4 (Tenn. Ct. App. June 1,
2012) (perm. app. denied. Oct. 18, 2012), wherein this court was
concerned that a father who struggled with addiction and was
encouraged by the trial court to achieve sobriety in order to
obtain additional parenting time, would be unable to assert his
sobriety constituted a substantial and material change. We noted
that should the father become sober, the fact that the trial court
reasonably anticipated that sobriety would not prevent an
otherwise meritorious petition for modification pursuant to
Tennessee Code Annotated § 36-6-101(a)(2)(B). [Duke, 2012
WL1971144,] at *4.
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Kraus, 2013 WL 2612458, at *4, n.5; see also Crockett v. Hogan, No.
M2005-01788-COA-R3CV, 2007 WL 2330857, at *3 n.4 (Tenn. Ct. App. Aug. 14, 2007)
(“The fact that a circumstance might have been foreseeable when the decree sought to be
modified was entered does not, by itself, prevent a finding of change in circumstances.”)
(citing Boyer v. Heimermann, No. M2006-01566-COA-R3-CV, 2007 WL 969408, at *5
(Tenn. Ct. App. Mar. 30, 2007)). Thus, the trial court’s statement encouraging Mother to
move to Florida is not a proper basis to conclude that Mother’s move was reasonably
anticipated at the time the final decree and permanent parenting plan were entered.
Although not argued by Father in his brief, we note that there is law in Tennessee that
states: “In situations where one parent is moving, the law in Tennessee states that a move,
in and of itself, does not constitute a material change in circumstances.” Woolman v.
Woolman, No. M2000-02346-COA-R3-CV, 2001 WL 1660714, at *5 (Tenn. Ct. App., Dec.
28, 2001)(citing Adelsperger v. Adelsperger, 970 S.W.2d 482, 486 (Tenn. Ct. App. 1998)).
These cases, however, generally concern a change in a custody order or a petition by the
primary residential parent to move out of state, rather than a mere change in a parenting
schedule motivated by the alternative residential parent’s move. See Taylor v. Taylor, 849
S.W.2d 319, 332 (Tenn. 1993) (holding that “removal is not, in and of itself, a change of
circumstances sufficient to justify modification of the custody order”) (emphasis added);
Woolman, 2001 WL 1660714, at *5 (concerning a change in custody); Adelsperger, 970
S.W.2d at 486 (concerning a change in custody). Indeed, the Parental Relocation Statute,
Tennessee Code Annotated Section 36-6-108, which governs relocation of a parent spending
intervals of time with a child, specifically states that: “Nothing in this section shall prohibit
either parent from petitioning the court at any time to address issues, such as, but not limited
to, visitation, other than a change of custody related to the move.” Tenn. Code Ann. § 36-6-
108(g) (emphasis added). Mother’s petition only requested that the parties’ parenting
schedule be modified, not that she be named primary residential parent. Thus, the Parental
Relocation Statute does not prevent Mother from seeking modification of the existing
parenting schedule on the basis of her move.
From the totality of the evidence in the record, we conclude that the evidence does not
preponderate against the trial court’s finding that a material change in circumstances
occurred affecting the child’s best interests. The trial court’s previous parenting schedule
gave Father all the time with the child other than three-day weekends, which would go to
Mother. At the time of trial, this was a reasonable schedule given the distance between
Tennessee and Father’s home in Florida. However, once Mother moved to Florida, mere
miles away from Father’s home, the previous impediments to her parenting time, such as the
distance and the expense of travel, were no longer present. Tennessee Code Annotated
Section 36-6-101(a)(2)(C) expressly contemplates that “significant changes in the parent’s
living or working condition that significantly affect parenting” will constitute material
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changes in circumstances for purposes of modifying a parenting schedule. In addition, as
previously stated, in order to modify visitation, Mother must meet a “very low” threshold to
prove a material change in circumstances. See Rose v. Lashlee, M2005-00361-COA-R3-CV,
2006 WL 2390980, at *3 n.3 (Tenn. Ct. App. Aug. 18, 2006) Mother’s living and working
conditions were significantly changed by her move to Florida to be nearer to the child.
Mother’s move also allows Mother to more easily visit with the child on a more regular basis,
without the expense of transporting herself or the child hundreds of miles. Accordingly, the
trial court did not err in finding, based on the particular facts of this case, that Mother’s
move, and her resulting ability to have more visitation with the child without major expense,
constituted a material change in circumstances affecting the best interest of the child.
2. Best Interests
Once the court determines that substantial and material changes in circumstances
occurred that affect the child's best interests, the court must then determine whether
modification of the parenting plan is in the child's best interests and, if so, to fashion a plan
that is in the child's best interests. Kendrick, 90 S.W.3d at 570. In order to determine whether
modification of an existing parenting plan is in a child’s best interest, the trial court is
directed to consider the factor’s contained in Tennessee Code Annotated Section 36-6-
404(b). See Tenn. Code Ann. § 36-6-405 (“ The process established by § 36-6-404(b) shall
be used to establish an amended permanent parenting plan . . . .”). These factors include:
(1) The parent's ability to instruct, inspire, and encourage the
child to prepare for a life of service, and to compete successfully
in the society that the child faces as an adult;
(2) The relative strength, nature, and stability of the child's
relationship with each parent, including whether a parent has
taken greater responsibility for performing parenting
responsibilities relating to the daily needs of the child;
(3) The willingness and ability of each of the parents to facilitate
and encourage a close and continuing parent-child relationship
between the child and the other parent, consistent with the best
interests of the child;
(4) Willful refusal to attend a court-ordered parent education
seminar may be considered by the court as evidence of that
parent's lack of good faith in these proceedings;
(5) The disposition of each parent to provide the child with food,
clothing, medical care, education and other necessary care;
(6) The degree to which a parent has been the primary caregiver,
defined as the parent who has taken the greater responsibility for
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performing parental responsibilities;
(7) The love, affection, and emotional ties existing between each
parent and the child;
(8) The emotional needs and developmental level of the child;
(9) The character and physical and emotional fitness of each
parent as it relates to each parent's ability to parent or the
welfare of the child;
(10) The child's interaction and interrelationships with siblings
and with significant adults, as well as the child's involvement
with the child's physical surroundings, school, or other
significant activities;
(11) The importance of continuity in the child's life and the
length of time the child has lived in a stable, satisfactory
environment;
(12) Evidence of physical or emotional abuse to the child, to the
other parent or to any other person;
(13) The character and behavior of any other person who resides
in or frequents the home of a parent and such person's
interactions with the child;
(14) The reasonable preference of the child if twelve (12) years
of age or older. The court may hear the preference of a younger
child upon request. The preference of older children should
normally be given greater weight than those of younger children;
(15) Each parent's employment schedule, and the court may
make accommodations consistent with those schedules; and
(16) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-404(b).
“[W]hile the statute requires the trial court to consider all the applicable factors [in
determining best interest], 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.” Murray v. Murray, No. M2009-01576-COA-R3-CV, 2010 WL 3852218,
at *8 (Tenn. Ct. App. Sept. 28, 2010). 2 Moreover, this Court has encouraged trial courts to
2
This Court has previously expressed concern that the case law holding that trial judges need not
articulate the factors regarding a child’s best interest appears to conflict with the intent of Tennessee Rule
of Civil Procedure 52.01. In re Connor S.L., 2012 WL 5462839, at *7 n. 6 (citing In re Elaina M., No.
M2010-01880-COA-R3-JV, 2011 WL 5071901, at *8 n. 13 (Tenn. Ct. App. Oct. 25, 2011)).
(continued...)
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“be as precise as possible in making child custody findings” in order to facilitate meaningful
appellate review. In re Elaina M., No. M2010-01880-COA-R3-JV, 2011 WL 5071901, at
*8 (Tenn. Ct. App. Oct. 25, 2011). In this case, however, the trial court’s order does not
indicate the trial court considered any of the applicable factors in deciding to modify the
parenting schedule. In fact, the trial court’s order makes no finding that a modification is in
the child’s best interest. Instead, the trial court finds that a material change in circumstances
has been proven and simply modifies the parenting plan to allow equal time for both parents.
It is well settled that, in bench trials like the one in this case, courts must make
findings of fact and conclusions of law to support their rulings. Rule 52.01 of the Tennessee
Rules of Civil Procedure provides, in pertinent part:
In all actions tried upon the facts without a jury, the court shall
find the facts specially and shall state separately its conclusions
of law and direct the entry of the appropriate judgment. The
findings of a master, to the extent that the court adopts them,
shall be considered as the findings of the court. If an opinion or
memorandum of decision is filed, it will be sufficient if the
findings of fact and conclusions of law appear therein.
Id. Prior to July 1, 2009, trial courts were only required to make specific findings of fact and
conclusions of law “upon request made by any party prior to the entry of judgment.” See
Poole v. Union Planters Bank N.A., No. W2009-01507-COA-R3-CV, 337 S.W.3d 771, 791
(Tenn. Ct. App. 2010) (noting the amendment). However, the current version of Rule 52.01
requires the court to make these findings regardless of a request by either party. Id.
This Court has previously held that the General Assembly’s decision to require
findings of fact and conclusions of law is “not a mere technicality.” In re K.H., No. W2008-
01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May 15, 2009). Instead, the
requirement serves the important purpose of “facilitat[ing] appellate review and promot[ing]
the just and speedy resolution of appeals.” Id.; White v. Moody, 171 S.W.3d 187, 191 (Tenn.
Ct. App. 2004); Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn. Ct .App. 1990). “Without such
findings and conclusions, this court is left to wonder on what basis the court reached its
ultimate decision.” In re K.H., 2009 WL 1362314, at *8 (quoting In re M.E.W., No. M2003-
01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. Ct. App. April 21, 2004)). Moreover,
“findings of fact are particularly important in cases involving the custody and parenting
schedule of children, as these determinations ‘often hinge on subtle factors, including the
2
(...continued)
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parents’ demeanor and credibility during [the] proceedings.’” In re Connor S.L., No.
W2012-00587-COA-R3-JV, 2012 WL 5462839, at *4 (Tenn. Ct. App. Nov.8, 2012) (quoting
Hyde v. Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905, at *3 (Tenn .Ct. App.
Oct. 12, 2010)). Normally, appellate courts are reluctant to second-guess a trial court's
decision with regard to a parenting schedule, but without findings of fact, we cannot discern
the basis for the trial court’s decision, “and we are unable to afford appropriate deference to
the trial court’s decision.” Connor, 2012 WL 5462839, at *4.
Generally, the appropriate remedy when a trial court fails to make appropriate findings
of fact and conclusions of law pursuant to Rule 52.01 is to “vacate the trial court's judgment
and remand the cause to the trial court for written findings of fact and conclusions of law.”
Lake v. Haynes, No. W2010-00294-COA-R3-CV, 2011 WL 2361563, at *1 (Tenn. Ct. App.
June 9, 2011). In this case the trial court not only failed to address any of the relevant factors
as to whether modification of the parenting plan was in the child’s best interests, but the trial
court also failed to make the necessary finding that modification was in the child’s best
interest. This Court was recently presented with a similar issue in Pandey v. Shrivastava, No.
W2012-00059-COA-R3-CV, 2013 WL 657799 (Tenn. Ct. App. Feb. 22, 2013). The issue
in Pandey involved an initial custody determination in which the trial court was required to
make a determination of the child’s best interest. Id. at *4. The trial court, however, failed
to make any findings regarding the best interest of the child. Id. The Court of Appeals
remanded to the trial court for entry of an order that appropriately considered the child’s best
interest and that made sufficient factual findings to support that decision. Id. at *6. In
explaining its decision to remand to the trial court, the Court stated:
On occasion, when a trial judge fails to make findings of
fact and conclusions of law, the appellate court “may ‘soldier
on’ when the case involves only a clear legal issue, or when the
court's decision is ‘readily ascertainable.’ “ Hanson v. J.C.
Hobbs Co., Inc., No. W2011-02523-COA-R3-CV, 2012 WL
5873582, at *10 (Tenn. Ct. App. Nov.21, 2012) (quoting
Simpson v. Fowler, No. W2011-02112-COA-R3-CV, 2012 WL
3675321, at *4 (Tenn. Ct. App. Aug. 28, 2012)). However, that
is not the case here. Determining the best interest of a child is a
“fact-intensive issue,” Hardin,[No. W2012-00273-COA-R3-
CV,] 2012 WL 6727533, at *5 [(Tenn. Ct. App. Dec. 27, 2012)],
and the basis of the trial court’s decision in this case is not
readily ascertainable.
* * *
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Although trial courts have broad discretion in fashioning
a parenting arrangement, the decision “must be based on the
proof at trial and the applicable principles of law.” Morris, [No.
W2010-00293-COA-R3-CV,] 2011 WL 398044, at *8 [(Tenn.
Ct. App. Feb. 8, 2011)]. We cannot discern, from the trial court's
order, what “proof at trial” affected the trial court’s ruling, nor
can we tell whether the trial court applied the appropriate legal
analysis in making its decision. We do not know what factors,
if any, the trial court considered in . . . fashioning the parenting
schedule.
Pandey, 2013 WL 657799, at *5–*6. Likewise in this case, the trial court failed to articulate
any factors it considered in making the decision to modify the parenting schedule, nor did the
trial court make an explicit finding that modification was in the child’s best interest. Without
these findings, “we are unable to conduct a meaningful appellate review of the trial court's
decision.” Id. at *6. Accordingly, we remand to the trial court for entry of an order fully
compliant with Rule 52.01. The trial court’s most recent ruling with regard to the parenting
schedule, giving both parents equal visitation with the child, shall remain in place pending
further orders of the trial court.
C. Attorney Fees
Finally, Mother seeks her attorney fees for having defended this appeal pursuant to
Tennessee Code Annotated Section 36-5-103(c), which states:
The plaintiff spouse may recover from the defendant spouse,
and the spouse or other person to whom the custody of the child,
or children, is awarded may recover from the other spouse
reasonable attorney fees incurred in enforcing any decree for
alimony and/or child support, or in regard to any suit or action
concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the
original divorce hearing and at any subsequent hearing, which
fees may be fixed and allowed by the court, before whom such
action or proceeding is pending, in the discretion of such court.
Tennessee courts have previously awarded attorney fees to a party who prevailed in disputes
regarding the custody or parenting schedule of a minor child. See, e.g., Keyt v. Keyt, 244
S.W.3d 321 (Tenn. 2007); Marlow v. Parkinson, 236 S.W.3d 744 (Tenn. Ct. App. 2007);
see also In re Elaina M., No. M2010-01880-COA-R3-JV, 2011 WL 5071901, at *12 (Tenn.
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Ct. App. Oct. 25, 2011) (“Only the prevailing party is entitled to recover attorney's fees.”)
(citing In re Landon A. F., No. M2010-01180-COA-R3-JV, 2011 WL 1630945, (Tenn. Ct.
App. April 26, 2011). The central issue in this case was the modification of the trial court’s
prior parenting schedule to award Mother equal visitation with the child. Because the trial
court failed to make any findings supporting the modification, we have vacated the trial
court’s order modifying the schedule. Thus, Mother has not prevailed on the central issue in
this case. Accordingly, we decline to award her attorney fees on appeal.
IV. Conclusion
Based on the foregoing, we affirm in part, and remand to the Chancery Court of
Montgomery County for all further proceedings as may be necessary and are consistent with
this opinion. Costs of this appeal are taxed one-half to Appellant Willard Harrison Iman, Jr.,
and his surety, and one-half to Appellee Megan Blanchfield Iman, for all of which execution
may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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