Sylvia Susana Marquez v. Pedro Marquez ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 24, 2013
SYLVIA SUSANA MARQUEZ v. PEDRO MARQUEZ
Appeal from the Probate and Family Court for Cumberland County
No. 14493 Larry M. Warner, Judge
No. E2011-02770-COA-R3-CV-FILED-APRIL 11, 2013
This appeal arises from a post-divorce dispute over custody of five children. Sylvia Susana
Marquez (“Mother”) and Pedro Marquez (“Father”), divorced in 2003, are mother and father
of the five minor children (“the Children,” collectively). Father was designated the primary
residential parent of the Children. Mother filed a petition in the Probate and Family Court
for Cumberland County (“the Trial Court”) to modify the parenting plan and for emergency
custody based on allegations of violence involving Father. In her petition, Mother also
argued that a material change of circumstances had occurred such as to justify her being
designated the primary residential parent of the Children. The Trial Court found an
emergency had arisen and awarded temporary emergency custody of the Children to Mother.
Later, after a hearing, the Trial Court entered an order restoring custody to Father after
stating that the emergency had been “removed by [Father].” Mother appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate and Family Court
Affirmed; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,
J R., P.J., and J OHN W. M CC LARTY, J., joined.
William J. Taylor, Knoxville, Tennessee, for the appellant, Sylvia Susana Marquez.
Justin C. Angel, Pikeville, Tennessee, for the appellee, Pedro Marquez.
OPINION
Background
Mother and Father were divorced in 2003. Father has served as primary
residential parent of the Children according to a 2007 parenting plan which was reaffirmed
in a January 2011 order. In April 2011, Mother filed her Petition for Modification of
Parenting Plan and for Emergency Custody. Mother alleged that there had been a material
change in circumstances sufficient to warrant a change of custody. Specifically, Mother
alleged, among other things, that Father: had grabbed the parties’ eldest child by the throat
and wrist and told her that he was going to “choke her until she peed herself”; discharged a
pistol inside the house; was violent and abused drugs and alcohol; and, had been arrested for
domestic violence and resisting arrest in an incident involving his then wife, and that the
Children had witnessed the violence. Mother requested custody of the Children based on
these alleged emergency circumstances, and, “at a final hearing of this matter, [that] the
Permanent Parenting Plan be modified so as to make [Mother] the Primary Residential
Parent, with such restrictions on [Father’s] Parenting Time as the Court deems necessary.”
After a hearing1 in May 2011, the Trial Court entered an order awarding
Mother temporary emergency custody of the Children. A short time later in May 2011, the
Trial Court held another hearing and entered another order confirming this temporary transfer
of custody of the Children to Mother. Father later filed a response to Mother’s petition in
which he denied allegations of violent behavior and substance abuse. Further, Father alleged
that the Children had lived with him “almost exclusively” for the previous five years and that
they were “flourishing in his custody.” Father asked the Trial Court to deny Mother’s
petition and reaffirm his status as primary residential parent of the Children.
The petition was heard2 in November 2011. In December 2011, the Trial
Court, stating that “emergency custody [had been] transferred temporarily to [Mother],”
entered an order restoring custody of the Children to Father and affirming the existing
custody agreement granting Mother visitation after finding that “the emergency situation has
been removed by [Father].” Mother filed a timely appeal to this Court.
1
The record contains no transcripts of any of the hearings in this matter. The record does contain
a “Statement of the Evidence” which sheds very little light on what happened below.
2
Mother argues on appeal that the Trial Court addressed a “Motion for Custody” rather than her
“Petition for Modification of Parenting Plan and for Emergency Custody.” It is apparent to us that the Trial
Court was referring to the latter even if it did not use its full formal name.
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Discussion
Though not stated exactly as such, Mother raises two issues on appeal: 1)
whether the Trial Court erred in awarding Father custody of the Children without making
requisite findings of fact; and, 2) whether the Trial Court erred in declining, based on its May
2011 order granting Mother temporary emergency custody of the Children, to find that a
material change in circumstances had occurred sufficient to justify modifying the original
parenting plan.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001).
We first address whether the Trial Court awarded Father custody of the
Children without making requisite findings of fact. We first note that this case did not
involve an initial determination of custody. Father was the primary residential parent under
the 2007 parenting plan. It was Mother who sought a change in the custody of the Children.
Existing custody arrangements are favored because children thrive in stable environments.
Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). A custody decision, once
made and implemented, is considered res judicata upon the facts in existence or those which
were reasonably foreseeable when the decision was made. Steen v. Steen, 61 S.W.3d 324,
327 (Tenn. Ct. App. 2001). However, our Supreme Court has held that a trial court may
modify an award of child custody “when both a material change of circumstances has
occurred and a change of custody is in the child's best interests.” Kendrick v. Shoemake, 90
S.W.3d 566, 568 (Tenn. 2002). According to Kendrick:
As explained in Blair [v. Badenhope, 77 S.W.3d 137 (Tenn. 2002) ], the
“threshold issue” is whether a material change in circumstances has occurred
after the initial custody determination. Id. at 150. While “[t]here are no hard
and fast rules for determining when a child's circumstances have changed
sufficiently to warrant a change of his or her custody,” the following factors
have formed a sound basis for determining whether a material change in
circumstances has occurred: the change “has occurred after the entry of the
order sought to be modified,” the change “is not one that was known or
reasonably anticipated when the order was entered,” and the change “is one
that affects the child's well-being in a meaningful way.” Id. (citations
omitted).
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Kendrick, 90 S.W.3d at 570. See also Tenn. Code Ann. § 36–6–101(a)(2)(B) (2010).
Kendrick went on to explain that if a material change in circumstances has been
proven, “it must then be determined whether the modification is in the child's best interests
. . . according to the factors enumerated in Tennessee Code Annotated section 36–6–106.”
Kendrick, 90 S.W.3d at 570 (footnote omitted). It necessarily follows that if no material
change in circumstances has been proven, the trial court “is not required to make a best
interests determination and must deny the request for a change of custody.” Caudill v. Foley,
21 S.W.3d 203, 213 (Tenn. Ct. App. 1999).
In this case, however, the Trial Court had granted Mother only temporary
custody of the Children based on an emergency. This Court discussed the effect of a
temporary order of custody in Wall v. Wall, No. W2010-01069-COA-R3-CV, 2011 WL
2732269 (Tenn. Ct. App. July 14, 2011), no appl. perm. appeal filed. We stated:
When an order relating to a parenting arrangement is made temporary
on its face, the order is not a final order. Therefore, the issues addressed in the
order remain in the bosom of the trial court, and any rulings in the order may
be modified at any time before a final order is entered. See Greer v. Greer,
No. W2009–01587–COA–R3–CV, 2010 WL 3852321, at *6 n. 7 (Tenn. Ct.
App. Sept. 30, 2010). In a similar situation, this Court has explained:
The law makes a distinction between temporary and final orders
of custody. “An interim order is one that adjudicates an issue
preliminarily; while a final order fully and completely defines
the parties' rights with regard to the issue, leaving nothing else
for the trial court to do.” State, ex rel., McAllister v. Goode, 968
S.W.2d 834, 840 (Tenn. Ct. App. 1997) (citing Vineyard v.
Vineyard, 170 S.W.2d 917, 920 (Tenn. 1942)). Trial courts
have discretion to grant temporary custody arrangements in
circumstances “where the trial court does not have sufficient
information to make a permanent custody decision or where the
health, safety, or welfare of the child or children are imperiled.”
King v. King, No. 01A01–91–10PB00370, 1992 WL 301303, at
*2 (Tenn. Ct. App. Oct. 23, 1992).
. . . . Because the order granting Mr. Warren custody was only
temporary, Ms. Warren did not have to show a material change
in circumstances at the July 28, 1999 hearing in order to have
custody of [the child].
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Warren v. Warren, No. W 1999–02108–COA–R3–CV, 2001 WL 277965, at
*4 (Tenn. Ct. App. Mar. 12, 2001). Here, the August 5, 2010 order
designating Father as the primary residential parent was temporary, not final.
Therefore, Mother did not have to show a material change in circumstances
from August 5, 2010, to again be designated Katelyn's primary residential
parent. See id. Accordingly, the burden remained on Father to establish a
material change in circumstances since the original divorce decree warranting
a change in the designation of primary residential parent.
Wall, 2011 WL 2732269, at *22.
Mother argues that “there is no corresponding evidence whatsoever that the
court engaged in any of the analysis necessary to change custody back to [Father].” Mother,
however, misses the point. Father already had been established as the primary residential
parent of the Children. The Trial Court had granted Mother only temporary emergency
custody of the Children. As we discussed in Wall, when a transfer of custody is merely
temporary, it is unnecessary to apply the material change of circumstances analysis. The
Trial Court found and stated “the emergency situation has been removed by [Father].” The
evidence does not preponderate against this finding. This finding by the Trial Court was
sufficient in this context to restore Father’s custody of the Children. We affirm the Trial
Court as to this issue.
We next address whether the Trial Court erred in declining, based on its May
2011 order granting Mother temporary emergency custody of the Children, to find that a
material change in circumstances had occurred sufficient to justify modifying the original
parenting plan. As we already have observed, the Trial Court only granted Mother temporary
custody of the Children based on an emergency. The Trial Court later found that the
emergency had passed. The evidence in the record on appeal, slim as it is, does not
preponderate against any of the findings of the Trial Court. We affirm the judgment of the
Trial Court in its entirety.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Sylvia Susana Marquez, and her surety, if any.
_________________________________
D. MICHAEL SWINEY, JUDGE
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