In the Matter of: T.R.Y. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Submitted on Briefs on November 15, 2013
IN THE MATTER OF T.R.Y.
Appeal from the Davidson County Juvenile Court
No. 2010-3303 Alan Calhoun, Juvenile Magistrate
No. M2012-01343-COA-R3-JV - Filed February 12, 2014
This appeal involves the modification of a parenting arrangement. After many years without
parenting time, the mother asked the juvenile court to designate her as the primary residential
parent for the parties’ daughter. The juvenile court held domestic violence in the father’s
home constituted a material change in circumstances. However, the juvenile court concluded
that, despite the incidents of domestic violence, it was in the daughter’s best interest for the
father to remain as the primary residential parent. The juvenile court awarded the mother
alternate residential parenting time. The mother appeals, raising numerous issues. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court is Affirmed
H OLLY M. K IRBY, J., delivered the Opinion of the Court, in which A LAN E. H IGHERS, P.J.
W.S., and J. S TEVEN S TAFFORD, J., joined.
Petitioner/Appellant K.B., Lansing, MI, self-represented.
David B. Lyons, Nashville, TN for Respondent/Appellee E.Y.1
OPINION
F ACTS AND P ROCEEDINGS B ELOW
This is the second appeal in this case. See Byars v. Young, 327 S.W.3d 42, 46-47 (Tenn. Ct.
App. 2010). In 1999, the child at issue, T.R.Y. (“Daughter”), was born to
Petitioner/Appellant K.B. (“Mother”) and Respondent/Appellee E.Y. (“Father”). Mother and
Father were never married to each other.
1
In July 2013, before this appeal was submitted on brief, Mr. Lyons passed away.
In 2001, Mother filed a petition in the Shelby County Juvenile Court to establish Father as
Daughter’s biological parent. That same year, the juvenile court granted Mother’s petition
and entered an order holding that Father is Daughter’s father. The juvenile court designated
Mother as the primary residential parent and awarded Father unsupervised alternate residential
parenting time.
Shortly thereafter, disputes arose. When Daughter was still very young, Mother witnessed
conduct by Father that she believed to be sexual abuse of her infant son. Consequently, she
refused to comply with the juvenile court order allowing Father unsupervised parenting time
with Daughter. At some point, the Tennessee Department of Children’s Services (“DCS”)
investigated Mother’s sexual abuse allegations against Father and determined that they were
unfounded. Despite this, Mother refused to comply with the juvenile court order permitting
Father unsupervised parenting time with Daughter. As a result, the Shelby County Juvenile
Court found Mother in contempt of court and awarded Father temporary custody. After some
time, the juvenile court returned temporary custody to Mother, ordered the family to undergo
counseling, and appointed a guardian ad litem for Daughter.
In December 2002, when Daughter was three years old, Mother claimed that Daughter
returned from residential parenting time with Father and told Mother that Father had fondled
her. This prompted an additional DCS investigation. Eventually, DCS determined that these
allegations of sexual abuse were unfounded as well. Despite the DCS conclusion, Mother
persisted in labeling Father as a sexual predator and refused to allow Father parenting time
with Daughter unless it was supervised.
This prompted several contempt petitions as well as petitions for modification of the parties’
parenting arrangement. In June 2003, Shelby County Juvenile Court Referee Cary Woods
held a hearing on the pending petitions. The juvenile court found that Mother had persistently
refused to comply with previous orders on parenting time and had refused to cooperate with
the guardian ad litem. Mother’s conduct of “continually labeling [Father] as a sexual
predator,” the juvenile court found, constituted a material change in circumstances that created
a risk of substantial harm to Daughter. It held that a change in the parties’ parenting
arrangement was in Daughter’s best interest. The juvenile court concluded that Mother’s
“conduct of persistent refusal to comply with the Court’s orders evidences an aggressively
defiant attitude toward [Father] and that [Father] should be awarded permanent and exclusive
custody.”
In its order permanently designating Father as primary residential parent, the Shelby County
Juvenile Court failed to provide for any sort of parenting time for Mother. Mother then filed
a pro se “Notice of Appeal” with the Shelby County Circuit Court. The matter was assigned
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to Circuit Court Judge Kay Robilio. As detailed in our opinion in the first appeal, years of
fruitless proceedings ensued in the Shelby County Circuit Court, during which no one
questioned the circuit court’s subject matter jurisdiction to hear the appeal from the juvenile
court.
Finally, several years later in 2008, the matter was transferred to a different circuit court
judge, who realized that the circuit court was without jurisdiction to hear Mother’s appeal and
that “appellate jurisdiction more appropriately rests with the Court of Appeals.” As detailed
in our prior opinion, Mother’s appeal was eventually transferred to this Court.
In May 2010, this Court issued its opinion, holding that the proceedings in the Shelby County
Circuit Court were void for lack of subject matter jurisdiction. Byars v. Young, 327 S.W.3d
42, 46-47 (Tenn. Ct. App. 2010). The appellate court then reviewed the parenting
arrangement as set forth in the 2003 order of the Shelby County Juvenile Court. Id. at 48.
The appellate court affirmed the designation of Father as the child’s primary residential
parent. Id. at 50. However, the appellate court noted pointedly that it was “unacceptable” for
the juvenile court to have failed to provide any parenting time for Mother, for no apparent
reason, and for the situation to linger in the circuit court, leaving Mother without parenting
time with Daughter for some seven years. Id. at 51. The appellate court remanded the matter
back to the Shelby County Juvenile Court for “consideration and implementation of
appropriate measures to reestablish the relationship of the parties’ child with Mother.” Id. at
52-53.
However, by the time the appellate court remanded the case, Father and Daughter had moved
to Davidson County, Tennessee. Additionally, at some point, Mother moved to Lansing,
Michigan, where she currently resides. Consequently, instead of ordering parenting time for
Mother, in June 2010, the Shelby County Juvenile Court transferred the matter to the
Davidson County Juvenile Court (“trial court”). After the transfer, several more months went
by without implementation of a parenting order that provided for any sort of parenting time
for Mother.
In January 2011, Mother filed a pro se petition in the Davidson County Juvenile Court
alleging that Daughter was dependent and neglected in Father’s care. Mother’s petition
asserted that Father had been involved in numerous domestic violence incidents in the
presence of Daughter and that Father’s wife had obtained an order of protection against him.
In response to Mother’s petition, the trial court ordered DCS to investigate the allegations of
domestic violence against Father and appointed another guardian ad litem for Daughter.
In February 2011, Father filed a motion to dismiss Mother’s dependency and neglect petition.
He did not deny a physical altercation with his wife, but claimed that Daughter was not
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present during the incident and was in no way affected by it. When Mother failed to appear
at the trial court’s May 2011 hearing on her petition, the trial court dismissed her petition
without prejudice.2
On October 6, 2011, Mother filed another pro se dependency and neglect petition. This one
asserted that Father was incarcerated and unable to care for Daughter. It also alleged that
Father had friends who used illegal drugs and that Father, a veteran, walked around his home
saying that he was “ready to go to war and die.” Mother’s request for an emergency
protective order was denied.
The next day, the trial court ordered another DCS investigation and reappointed the guardian
ad litem for Daughter. In the resulting DCS investigation, a DCS worker interviewed
Daughter at Father’s home and separately interviewed Father while he was incarcerated at the
Davidson County Jail. DCS submitted its report on the investigation to the trial court on
October 11, 2011. The report said that Father was incarcerated as a “weekender” for violation
of the order of protection obtained by his wife, but Father’s children, including Daughter,
were unaware of his incarceration and their daily activities continued as normal.
The report described Daughter as a “very bright and articulate young girl” who appeared well-
nourished, appropriately dressed, neat and clean. It noted that she is “an honor roll student”
who “loves to read books.” DCS reported that Daughter told the investigator that Father had
never been violent towards either Daughter or her brother, and to her knowledge, he had never
participated in illegal drugs.
The DCS report described Father as “friendly and cooperative.” According to the DCS report,
Father conceded that an incident of domestic violence with his wife had occurred. Father
explained that his wife smoked marijuana in his home; this prompted Father to put his hands
on her in the bathroom one evening. He claimed that the children were not home during this
altercation. After this altercation, Father’s wife obtained an order of protection against Father.
Father told the DCS investigator that he violated the order of protection by contacting his
wife’s mother to attempt to explain the domestic violence incident; for this violation, he was
placed on probation. After Father was placed on probation, he claimed, his son accidently
sent a blank text to Father’s wife from Father’s cell phone. This constituted a violation of
Father’s probation, so Father was sentenced to 20 days in jail, to be served on Father’s days
off from work. Regarding Mother’s allegations of drug abuse, the DCS report noted that
Father tested negative for all drugs.
2
Mother filed a motion for a continuance of the hearing; her motion was denied.
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The DCS report stated that Father had been employed by the U.S. Postal Service for
approximately 12 years. It described Father’s home as “adequately furnished, neat and
organized.”
After receiving the DCS report, the trial court held a hearing on Mother’s second dependency
and neglect petition in December 2011. The trial court held that Mother had not carried her
burden of proving that Daughter was dependent and neglected. However, it finally entered an
order granting Mother unsupervised parenting time. Because Mother was living in Michigan,
the trial court order provided for Mother’s parenting time with Daughter to take place at
Mother’s sister’s home in Mississippi from December 26, 2011 until January 2, 2012. The trial
court order indicated that the trial judge intended to transition gradually to a more standard
parenting time arrangement. Noting that Mother had filed a motion to modify the parenting
arrangement to designate her as the primary residential parent,3 the trial court set a hearing on
this motion for February 2012, ordered Father to obtain counseling for Daughter, and ordered
a courtesy home study for Mother’s Michigan residence.
On February 17, 2012, the trial court held a hearing on Mother’s parenting time. At the
hearing, the trial court ordered additional parenting time for Mother, including provisions for
holidays, school breaks, and summers. It scheduled an evidentiary hearing on April 13, 2012
for Mother’s request to be designated primary residential parent.
The trial court held the evidentiary hearing as scheduled on April 13, 2012. At this hearing,
the trial court heard testimony from Father’s soon-to-be ex-wife (“Ex-Wife”), as well as
testimony from both Father and Mother.
Ex-Wife testified that, during her marriage to Father, she was primarily responsible for the care
of Daughter and the other children in the household because Father worked a night shift and
slept during the day. Father and Ex-Wife married in approximately 2007 and Ex-Wife moved
out of the home shortly after the marriage began. She returned to Father’s home in 2009. Ex-
Wife said that while she lived in Father’s home, Daughter was a straight-A student and had
perfect school attendance.
In her testimony, Ex-Wife described a volatile relationship with Father. On five separate
occasions, Ex-Wife claimed, Father was physically violent toward her, but she dropped the
charges against him. She said that she finally obtained an order of protection against Father
after an incident in which she got out of the shower and Father grabbed her throat and knocked
her head against the wall. Ex-Wife testified that Father violated the order of protection and
was sentenced to 20 days of incarceration, to be served on his days off from work. Ex-Wife
3
The appellate record does not contain a copy of Mother’s motion.
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corroborated Father’s assertion that none of the children were present during any of the
physical altercations between Ex-Wife and Father. As to Father’s relationship with Daughter,
Ex-Wife said, she saw Father grab Daughter’s shirt on one occasion and she had seen Father
yell at Daughter and then apologize.
In his testimony, Father did not dispute the physical altercation in the bathroom that Ex-Wife
described to the trial court. He explained, however, that the altercation occurred because Ex-
Wife had smoked marijuana in their home and Father had been clear “there would be no drug
use in that household, period.” Ex-Wife’s occasional drug use finally prompted Father to
decide that Ex-Wife would no longer be in his and Daughter’s lives. After the bathroom
incident, Father conceded, Ex-Wife obtained an order of protection against him, and he was
later incarcerated for violation of probation because he called his ex-mother-in-law and his son
inadvertently sent Ex-Wife a blank text. Father again asserted that Daughter never saw a
physical altercation between himself and Ex-Wife. He denied Ex-Wife’s assertion that he
grabbed Daughter’s shirt.
Father conceded that Daughter did not see Mother for many years. He pointed out, however,
that Daughter had maintained a relationship with her maternal grandmother, Mother’s mother.
Father claimed that he would not have opposed court-ordered parenting time for Mother but
felt that a court order was needed in light of Mother’s “attitude and the way [she] conduct[s]
[herself] in the matter.” He asserted that “it would be in the best interest of everyone [that]
[w]e have some written document in place holding [Mother] responsible for [her] actions.”
Father recounted an argument with Mother in April 2012, two weeks before the hearing, at the
exchange for Mother’s parenting time. On Friday, March 30, Father and Daughter were in
Memphis to visit family. Mother was in Memphis at the same time and asked to pick Daughter
up in Memphis a day early, rather than the next day in Nashville, as ordered by the trial court.
Father said he permitted this even though Daughter had not packed clothes for the visit with
Mother in Michigan. Apparently there was a misunderstanding about whether Mother or
Father would buy Daughter clothes for the Michigan visit. After it became clear that Mother
would not buy additional clothes, Daughter “wanted to go home [to Nashville] and get her
clothes.” According to Father, Mother then proceeded to drive Daughter to Father’s home in
Nashville without telling Father in advance. Father was at home when the two arrived
unannounced and a confrontation between the parents occurred. During the incident, Father
testified, he overheard Mother tell Daughter that Father was a “crazy MF.”
Father’s testimony included an outline of Daughter’s routine at Father’s home. When he goes
to work 8:30 p.m., Father said, the children are cared for by Ms. Campbell, who had been the
children’s babysitter for approximately a year. Father testified that, when he gets home from
the night shift at 7 a.m., he eats breakfast with Daughter and his son and takes both of them
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to the bus stop. Father testified that Daughter has straight As and perfect attendance in school,
that she received eight awards at the end of the previous school year, and that she had no
disciplinary issues at home. Father also testified that Mother was approximately $12,000
behind in her child support payments. Father acknowledged an open container violation while
he was on probation and also conceded that the violation was not reported to his probation
officer; Father asserted that the open beer can belonged to a friend.
The trial court heard testimony from Mother as well. Mother told the trial court that, over the
past nine years, she had had no regular parenting time with Daughter because the Juvenile
Court’s order failed to address her parenting time. Mother expressed her belief that the
Juvenile Court’s action was part of a conspiracy to keep her away from Daughter.
Mother’s testimony generally correlated with Father’s on the confrontation between the parents
during the exchange for Mother’s April 2012 parenting time. Mother testified about her
version of the misunderstanding as to whether Mother or Father would buy Daughter clothes
for her parenting time with Mother in Michigan. Since Daughter did not have enough
appropriate clothes with her, Mother decided to drive Daughter to Father’s home in Nashville
to get clothes that Daughter already owned.
Upon their arrival at Father’s home, Mother said, Father was upset with Daughter. Mother
claimed that, referring to Mother, Father asked Daughter, “Why did you bring that girl here?”
Mother said that she then told Father that if he were going to be mad at anyone, he should be
mad at Mother instead of Daughter. Reacting to Daughter’s “stark look” after this
confrontation, Mother said, she asked Daughter if she was okay. Mother admitted that she then
told Daughter: “I was like, yeah, he’s crazy. Yeah, he’s crazy don’t worry about him.” Mother
denied that she told Daughter that Father is a “crazy MF” but confirmed that she nevertheless
believes that “he is a crazy MF.”
On cross examination, Mother acknowledged that she was incarcerated twice for violating
court orders. She was unapologetic for her actions, however, and said that she was only
“trying to protect my children. I have a right and a responsibility to do that.” Mother also
conceded that, in the past, she made allegations of sexual abuse against Father, and that the
resulting psychological evaluations concluded that there was no indication of sexual abuse by
Father. Mother indicated that she was unconvinced; she asserted that the four different judges
who had been assigned to her case have “a God complex,” noted that the psychological
examinations were “ordered by the court,” and claimed that she had personally seen Father
molest her infant son through his diaper. She was critical of the efforts to keep her from
having parenting time with Daughter.
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Mother acknowledged that she had no evidence that Daughter had witnessed any of the
physical altercations between Father and Ex-Wife or that Daughter had seen Ex-Wife smoke
marijuana in Father’s home. She stated, however, that just because Daughter had not
witnessed such behavior “doesn’t mean that she doesn’t know that it’s happening.” Mother
emphasized that she wants to raise Daughter. That concluded the testimony at the hearing.
At the conclusion of the hearing, the trial court issued an oral ruling.4 The trial court recited
Ex-Wife’s testimony that Father had been physically abusive to her on five occasions,
including the August 2010 incident in the bathroom and other incidents in which he knocked
her tooth out and punched her in the face. It noted that Father conceded that he put his hands
on Ex-Wife’s throat but denied hitting her. The trial court noted that both Ex-Wife and Father
testified that none of the physical confrontations between Father and Ex-Wife occurred in
Daughter’s presence. The trial court recounted the testimony on Father’s violation of the
protection order, his subsequent incarceration, and his open container violation, noting in
particular that the open container violation occurred “during the afternoon, shortly before
[Father] would normally pick [Daughter] up.”
The trial court found that Mother’s accusations of perjury and deceit by Father did not warrant
a finding of a material change in circumstances. It noted, however, that Mother continued to
accuse Father of sexually abusing Daughter, despite investigations that concluded to the
contrary, and that Mother maintained an “aggressively defiant attitude” toward Father.
Overall, the trial court held that the “confluence of events” that it had recounted constituted
a material change in circumstances. Moreover, it said, the fact that the Shelby County Juvenile
Court’s order resulted in Daughter being “deprived of her mother’s care and attention” for an
almost nine-year period “affected [Daughter’s] well-being in a meaningful way.” Accordingly,
the trial court undertook to do a comparative fitness analysis for the purpose of considering
whether a modification of the parties’ parenting arrangement was in Daughter’s best interest.
The trial court observed first that, while Ex-Wife lived in Father’s home, she functioned as
Daughter’s primary caregiver, and during those periods, Father “did not frequently participate
in parenting.” The trial court also noted that, during the exchange for Mother’s parenting time
shortly before the hearing, both parents “acted foolishly [and] demonstrated to the Court just
how fractured these two parents are.” The trial court continued its comparative fitness
analysis:
4
The guardian ad litem put on no proof during the hearing. She said that Daughter’s parenting time with
Mother had generally gone well but emphasized that Daughter disliked “being caught in the crossfire
between the two parents.”
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[Father] has been [Daughter’s] primary caretaker since 2003. From all the proof
presented, she is thriving at home. She is a straight A student with perfect
attendance, an accomplishment she has maintained for several years. [Father]
has a good employment record. With essentially no support from [Mother], he
has provided for [Daughter’s] care and health for years. He acknowledged being
on an anti-anxiety medication and anti-depressants while on probation but stated
that he no longer needs the medication and hence doesn’t take it. His
relationship with [Ex-Wife] was obviously volatile and it appears to the Court
that he was violent on more than one occasion toward her. Fortunately,
[Daughter] was not present for this nor was any proof entered that he has
engaged in such conduct towards her or that she was even aware of his conduct
with [Ex-Wife].
[Mother] has had little opportunity to demonstrate her parenting ability one way
or the other. She raised in Court an equity argument essentially stating that
because [Father] has had virtually exclusive possession of their daughter for
years, it is now her time to take the lead. She is employed. The Court attempted
to use CASA to conduct a courtesy home visit upon her home in Michigan but
CASA was unable to do so. In [the] absence of proof to the contrary, the Court
will therefore assume that her home is appropriate. As noted above, [Mother]
has not been a primary caretaker to her daughter for years. She visited with her
daughter over spring vacation from school and that visit evidently went well.
Most concerning to the Court is [Mother’s] insistence that [Father] sexually
molested [Daughter], an allegation previously unfounded. Furthermore,
[Mother] implies that the Courts, including this Court, have engaged in some
sort of conspiracy to keep her daughter from her. In the opinion of this Court,
these beliefs demonstrate that [Mother] will neither facilitate nor encourage a
close parent-child relationship between [Daughter] and her father. In fact, most
recently she called him a “crazy mf” in front of her daughter. This venom
mirrors the circumstances found by Referee Cary Woods [Shelby County
Juvenile Court referee] in 2003. In large part, it appears to this Court that little
has changed. Given these circumstances coupled with the fact that [Daughter]
is prospering in her current environment, the Court does not believe that the
evidence supports a change of custody.
Based on these findings, the trial court declined to change the designation of primary
residential parent but modified the parties’ parenting arrangement to provide for substantial
parenting time for Mother. The trial court’s order detailed how and where the parenting time
exchanges were to occur and stated that supervision of Mother’s parenting time “is not
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mandatory and should be avoided unless Mother’s conduct makes it necessary.” Mother now
appeals.
ISSUES ON A PPEAL AND S TANDARD OF R EVIEW
On appeal, Mother raises fifteen issues for our consideration:
1. Whether the Shelby County Juvenile Court should have changed venue
before applying a direct order from the Appellant Court to grant visitation when
the cause was remanded.
2. Does the law or Court have a remedy for appellee committing fraud upon the
court to defraud the mother custody of her child for nine years?
3. Does the Davidson County Juvenile Court have the legal standing to deny
visitation to a natural parent when there is no legal reason to do so and contrary
to the Appell[ate] Court of Tennessee’s Order?
4. Whether the evidence presented at trial was sufficient to warrant a finding that
kept custody with the father and whether it was in the best interest of the child?
5. Whether the evidence stated to keep custody with the father met the burden
of proof at the clear and convincing standard, which must be supported by a
preponderance of the evidence?
6. Whether Davidson County Juvenile Court and DCS with their two poorly
uninvestigated [sic], false report findings of unfounded which [were] made part
of custody proceedings [were] unconstitutional?
7. Whether Davidson County Juvenile Court erred in accepting the change of
venue without abiding by the standing Appell[ate] Court order to grant
visitation?
8. Whether Davidson County Juvenile Court erred in not changing custody when
a substantial material change had occurred.
9. When material changes been established to change custody, does a
comparative fitness examination then have to be considered? If so, why was one
not conducted initially to keep the child with her mother?
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10. Whether the Juvenile court have a legal standing to insist the plaintiff
believe that which is not true.
11. Whether the plaintiff’s beliefs about what her daughter stated to her grounds
for keeping custody from the plaintiff.
12. Whether Juvenile Court has a legal duty to use negative evidence that has
been proven in court against the defendant.
13. Whether the Appell[ate] Court has jurisdiction to impose penalty and
sanctions when the plaintiff proves conspiracy, bias, and contempt from the
courts in dealing with her and her daughter.
14. When domestic violence has been proven to have occurred in a household,
does it have to then be proven that the children were individually affected by its
occurrence in order to change custody?
15. If res judicata has been raised and granted about a particular time frame, how
can it then be asked of by that attorney and then included into the new reasoning
as derogative toward the plaintiff by the judge, if those issues were not to be
litigated in the new case?
In addition, Father argues on appeal that the trial court erred in finding a material change in
circumstances. However, in his appellate brief, Father does not state this as an issue in the
“Statement of the Issues” section of his brief. We have often held that, where a party does not
include an issue in the “Statement of the Issues” section of his appellate brief, the issue is
waived, even if the party argues the issue in the “Argument” section of the brief. See
Rutherford v. Rutherford, No. M2012-01807-COA-R3-CV, 2013 WL 1928542, at *4 n. 5
(Tenn. Ct. App. May 7, 2013); Bunch v. Bunch, 281 S.W.3d 406, 410 (Tenn. Ct. App. 2008).
Therefore, we respectfully decline to address this issue on appeal.
We review the trial court’s factual findings de novo on the record, with a presumption of
correctness, unless the evidence preponderates to the contrary. See Tenn. R. App. P. 13(d).
The trial court’s conclusions of law are reviewed de novo, with no presumption of correctness.
See Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000); Earls v. Mendoza, No. W2010-
01878-COA-R3-CV, 2011 WL 3481007, at *5 (Tenn. Ct. App. Aug. 10, 2011).
The trial court is in the best position to evaluate the credibility of witnesses because it can
observe the demeanor of the witnesses as they testify. Davis v. Davis, 223 S.W.3d 233, 238
(Tenn. Ct. App. 2006). Consequently, we accord particular deference to the trial court’s
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findings of fact that are based on its assessment of the credibility of the witnesses. Davis, 223
S.W.3d at 238 (citing ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 24 (Tenn.
Ct. App. 2005)). “[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness
credibility absent clear and convincing evidence to the contrary.” Wells v. Tenn. Bd. of
Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
A NALYSIS
As set forth below, as to a number of the issues Mother raises on appeal, we either decline to
address them or conclude that they are without merit. However, we consider Issues 4, 5, 8 and
14 together in some detail, as all argue that the trial court erred in leaving intact the designation
of Father as the primary residential parent.
In Issue 1, Mother argues that after this Court remanded the matter, she should have been
awarded parenting time by the Shelby County Juvenile Court prior to the transfer to Davidson
County. Conversely, in Issue 7, Mother argues that the Davidson County Juvenile Court erred
in accepting the change of venue without first ordering parenting time for her, pursuant to this
Court’s order on remand. While we can appreciate Mother’s logic, if a transfer was called for
because neither party resided in Shelby County, then we cannot say that the Shelby County
Juvenile Court erred in declining to grant Mother parenting time prior to the transfer.
Likewise, the Davidson County Juvenile Court did not err in accepting the transfer from
Shelby County prior to implementation of parenting time for Mother.
In Issue 2, Mother argues that Father should be sanctioned for committing fraud upon the court
for depriving her of parenting time with Daughter for nine years. Similarly, in Issue 13,
Mother argues that this Court had jurisdiction to impose penalties and sanctions when the
plaintiff proves conspiracy, bias, and contempt from the courts in dealing with her and
Daughter. As we observed in the first appeal in this case, Mother has ample reason to be upset
that she was given no parenting time with Daughter for many years. However, although
Mother alleged fraud, conspiracy, bias, and other such wrongdoing, there was no evidence in
the trial court below that the failure to order parenting time for Mother was the result of fraud,
conspiracy, or bias, and the Davidson County Juvenile Court below made no finding that the
ruling of the Shelby County Juvenile Court was the result of fraud, conspiracy, or bias. In the
absence of any finding of fraud, conspiracy, or bias or any evidence of such, we must
respectfully decline to address these issues.
In Issue 3, Mother argues the Davidson County Juvenile Court does not have legal standing
to deny parenting time to a natural parent when there is no legal reason to do so and it is
contrary to this Court’s order. Because litigants have “standing” and a court has “jurisdiction,”
we perceive this issue as questioning the jurisdiction of the Davidson County Juvenile Court.
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In the first appeal in this case, this Court addressed the Shelby County Juvenile Court’s failure
to provide for any parenting time for Mother. Once the matter was remanded and then
transferred to the Davidson County Juvenile Court, that court granted Mother substantial
parenting time. Therefore, we must conclude that the premise of this issue is erroneous and
so hold that the issue is without merit.
In Issue 6, Mother argues that the investigations performed by the Davidson County Juvenile
Court and DCS were “poorly uninvestigated, false report findings of unfounded” and
unconstitutional. While it is clear from this issue that Mother is critical of the DCS
investigations of her allegations against Father and critical of the Davidson County Juvenile
Court as well for relying on the results of the investigations, she fails to explain how the
actions of either DCS or the trial court violated her constitutional rights or even identify what
constitutional rights were allegedly violated. Therefore, we must respectfully decline to
address this issue.
In Issue 9, Mother argues that when a material change in circumstances is established, a
comparative fitness examination is necessary and contends that one was not initially
performed. We interpret this issue as arguing that the Shelby County Juvenile Court erred in
its 2003 order designating Father as the primary residential parent. In the first appeal in this
case, this Court affirmed the Shelby County Juvenile Court’s designation of Father as the
primary residential parent. We are precluded from considering the same issue again in this
second appeal, under the “law of the case” doctrine:
The phrase “law of the case” refers to a legal doctrine which generally prohibits
reconsideration of issues that have already been decided in a prior appeal of the
same case. In other words, under the law of the case doctrine, an appellate
court’s decision on an issue of law is binding in later trials and appeals of the
same case if the facts on the second trial or appeal are substantially the same as
the facts in the first trial or appeal. The doctrine applies to issues that were
actually before the appellate court in the first appeal and to issues that were
necessarily decided by implication.
See Memphis Pub. Co. v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d
303, 306 (Tenn. 1998) (citations omitted). Therefore, we must respectfully decline to consider
this issue.
Issues 10, 11 and 12 are confusing and unintelligible. As such, we must respectfully decline
to address them. All of these issues involve Mother’s continued belief that Father sexually
abused their daughter; this was discussed in the first appeal and is part of our analysis below
on the actions of the Davidson County Juvenile Court.
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In Issue 15, Mother argues that the Davidson County Juvenile Court erred in considering the
decision of the Shelby County Juvenile Court to be res judicata. Most often, the term res
judicata is used when the issue involves two lawsuits: “The doctrine of res judicata, also
referred to as claim preclusion, bars a second suit between the same parties or their privies on
the same cause of action with respect to all issues which were or could have been litigated in
the former suit.” Creech v. Addington, 281 S.W.3d 363, 376 (Tenn. 2009) (citing Massengill
v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987)). However, in this context, the term is used “in
its general sense to mean ‘ ‘a matter adjudged; a thing judicially acted upon or decided.’ ’ ” In
re Shyronne D. H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097, at *5 n. 14 (Tenn.
Ct. App. July 7, 2011) (citing Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 n.
11 (Tenn. 1995) (quoting Black’s Law Dictionary 1174 (5th ed. 1979))). We discuss the
application of res judicata further below in our discussion of the trial court’s refusal to
designate Mother as the child’s primary residential parent. As to this issue, from our review
of the record, it appears that the Davidson County Juvenile Court properly considered the
ruling of the Shelby County Juvenile Court, designating Father as the primary residential
parent, to be final as affirmed by this Court in the first appeal, and that the Davidson County
Juvenile Court did not consider the Shelby County Circuit Court proceedings that were voided
by this Court in the first appeal. Therefore, we must conclude that this argument is without
merit.
We now address Mother’s main contention, that the trial court erred in leaving Father as
Daughter’s primary residential parent. Parenting decisions are among the most important faced
by the courts. Wall v. Wall, No. W2010-01069-COA-R3-CV, 2011 WL 2732269, at *21; 2011
Tenn. App. LEXIS 385, at *64 (Tenn. Ct. App. July 14, 2011) (citing Steen v. Steen, 61
S.W.3d 324, 327 (Tenn. Ct. App. 2001)); see also Gaskill v. Gaskill, 936 S.W.2d 626, 630
(Tenn. Ct. App. 1996). Decisions on parenting arrangements “should be directed towards
promoting the child’s best interest by placing [her] in an environment that will best serve [her]
physical and emotional needs.” In re T.C.D., 261 S.W.3d 734, 742-43 (Tenn. Ct. App. 2007).
Courts strive to devise a parenting arrangement that promotes the development of the child’s
relationship with both parents and interferes as little as possible with family decision-making.
See Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996); Taylor v. Taylor, 849 S.W.2d 319,
331-32 (Tenn. 1993); Adelsperger v. Adelsperger, 970 S.W.2d 482, 484 (Tenn. Ct. App.
1997).
When presented with a request to modify a parenting arrangement, the existing parenting order
is considered res judicata on the facts as they existed at the time the most recent order was
entered. See Rigsby v. Edmonds, 395 S.W.3d 728, 735 (Tenn. Ct. App. 2012) (citing Steen,
61 S.W.3d at 327). However, “Tennessee courts are statutorily authorized to modify custody
arrangements as necessitated by intervening changes in circumstances” and “retain[ ] control
over the custody of a minor child and may make such changes in the custody order as the
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exigencies of the case may require.” Conner v. Conner, No. W2007-01711-COA-R3-CV,
2008 WL 2219255, at *2; 2008 Tenn. App. LEXIS 320, at *6 (Tenn. Ct. App. May 29, 2008);
Steen, 61 S.W.3d at 327 (citing Adelsperger, 970 S.W.2d at 485). The Tennessee statute
governing the modification of an existing parenting arrangement provides:
If the issue before the court is a modification of the court’s prior decree
pertaining to custody, the petitioner must prove by a preponderance of the
evidence a material change in circumstance. . . . A material change in
circumstance may include, but is not limited to, . . . circumstances that make the
parenting plan no longer in the best interest of the child.
Tenn. Code Ann. § 36-6-101(a)(2)(B)(2013).
Thus, in order to modify an existing parenting arrangement, the parent who seeks to change
the designation of the primary residential parent first must prove the requisite material change
in circumstances. See Tenn. Code Ann. § 36-6-101(a)(2)(B)(2013); Taylor v. McKinnie, No.
W2007-01468-COA-R3-JV, 2008 WL 2971767, at *3 (Tenn. Ct. App. Aug. 5, 2008) (citing
Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002)); see also Boyer v. Heimermann,
238 S.W.3d 249, 259 (Tenn. Ct. App. 2007) (citing Krupp v. Cunningham-Grogan, No.
M2005-01098-COA-R3-CV, 2006 WL 2505037, at *7 (Tenn. Ct. App. Aug. 29, 2006)). If the
trial court finds a material change in circumstances, it is then tasked with ascertaining whether
a change in the designation of primary residential parent is in the child’s best interest,
considering the factors in Tennessee Code Annotated § 36-6-106(a). See Wall, 2011 WL
2732269, at *24, 2011 Tenn. App. LEXIS 385, at *73 (citing Boyer, 238 S.W.3d at 259). “If
a material change in circumstances has occurred, then the best interest analysis becomes
mandatory.” Boyer, 238 S.W.3d at 259-60 (citing Keisling, 196 S.W.3d at 718). “[A] finding
of a material change in circumstances since the entry of the [pre-existing parenting] order does
not predetermine the outcome of the best interests analysis.” In re T.C.D., 261 S.W.3d at 746
(citing Krupp, 2006 WL 2505037, at * 7). Thus, a finding of a material change in
circumstances warranting a re-evaluation of the parenting plan does not necessarily require that
any change in visitation be made. Id. The party who seeks to change the designation of
primary residential parent must prove by a preponderance of the evidence that the modification
would be in the child’s best interest. In re T.C.D., 261 S.W.3d at 742; Kesterson v. Varner,
172 S.W.3d 556, 567 (Tenn. Ct. App. 2005). The determination of whether a material change
in circumstances has occurred, and whether such a change necessitates a modification of the
parenting arrangement, are both questions of fact for the trier of fact. Wall, 2011 WL
2732269, at *21, 2011 Tenn. App. LEXIS 385, at *63 (citing In re T.C.D., 261 S.W.3d at 742).
Overall, trial courts have broad discretion regarding parenting arrangements because such
“decisions are factually driven and require the careful consideration of numerous factors.” In
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re E.J.M., 259 S.W.3d 124, 136 (Tenn. Ct. App. 2007) (citing Morris v. Morris, No. M2001-
02275-COA-R3-CV, 2002 WL 31059222, at *2 (Tenn. Ct. App. Sept.17, 2002); Bah v. Bah,
668 S.W.2d 663, 666 (Tenn. Ct. App. 1983)). See also Varley v. Varley, 934 S.W.2d 659, 665
(Tenn. Ct. App. 1996) (quoting Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993)).
Accordingly, the appellate court will decline to disturb the parenting plan fashioned by the trial
court unless the trial court’s decision was based on a material error of law or the evidence
preponderates against it. See In re T.C.D., 261 S.W.3d at 742 (citing Adelsperger, 970 S.W.2d
at 485). Similarly, a trial court’s decision on a parenting plan should be set aside only when
it “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.” In re T.C.D., 261 S.W.3d at 742
(quoting Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001)).
As noted above, the trial court’s finding of a material change in circumstances in this case has
not been properly raised as an issue on appeal. “A finding that a material change in
circumstances has occurred is a threshold inquiry that, when made, allows the court to proceed
to make a fresh determination of the best interest of the child.” Richards v. Richards, No.
E2010-00521-COA-R3-CV, 2011 WL 2135432, at *6 (Tenn. Ct. App. May 31, 2011) (citing
Kendrick, 90 S.W.3d at 570). See Maxwell v. Woodard, No. M2011-02482-COA-R3-CV,
2013 WL 2420500, at *17 (Tenn. Ct. App. May 31, 2013). Therefore, we consider whether
the trial court erred in holding that it was not in Daughter’s best interest to designate Mother
as the child’s primary residential parent.
In order to determine the parenting arrangement that is in best interest of the child at issue, the
trial court must engage in a “comparative fitness” analysis as to the parents. See Gaskill, 936
S.W.2d at 630. “Fitness for custodial responsibilities is largely a comparative matter. No
human being is deemed perfect, hence no human can be deemed a perfectly fit custodian.
Necessarily, therefore, the courts must determine which of two or more available custodians
is more or less fit than others.” Bah, 668 S.W.2d at 665-66 (quoting Edwards v. Edwards, 501
S.W.2d 283, 290-91 (Tenn. Ct. App. 1973)). “There are literally thousands of things that must
be taken into consideration” in making a comparative fitness determination. Bah, 668 S.W.2d
at 666.
Tennessee Code Annotated § 36-6-106 sets forth numerous factors for the trial court to
consider in determining a parenting arrangement:
(a) In a suit for annulment, divorce, separate maintenance, or in any other
proceeding requiring the court to make a custody determination regarding a
minor child, the determination shall be made on the basis of the best interest of
the child. In taking into account the child’s best interest, the court shall order a
custody arrangement that permits both parents to enjoy the maximum
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participation possible in the life of the child consistent with the factors set out
in subdivisions (a)(1)-(10), the location of the residences of the parents, the
child’s need for stability and all other relevant factors. The court shall consider
all relevant factors, including the following, where applicable:
(1) The love, affection and emotional ties existing between the parents or
caregivers and the child;
(2) The disposition of the parents or caregivers to provide the child with food,
clothing, medical care, education and other necessary care and the degree to
which a parent or caregiver has been the primary caregiver;
(3) The importance of continuity in the child’s life and the length of time the
child has lived in a stable, satisfactory environment; provided, that, where there
is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401
or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1)
parent, and that a nonperpetrating parent or caregiver has relocated in order to
flee the perpetrating parent, that the relocation shall not weigh against an award
of custody;
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers. The court may,
when it deems appropriate, order an examination of a party pursuant to Rule 35
of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of
the proceedings, order the disclosure of confidential mental health information
of a party pursuant to § 33-3-105(3). The court order required by § 33-3-105(3)
shall contain a qualified protective order that, at a minimum, expressly limits the
dissemination of confidential protected mental health information for the
purpose of the litigation pending before the court and provides for the return or
destruction of the confidential protected mental health information at the
conclusion of the proceedings.
(6) The home, school and community record of the child;
(7)(A) The reasonable preference of the child, if twelve (12) years of age or
older;
(B) The court may hear the preference of a younger child on request. The
preferences of older children should normally be given greater weight than those
of younger children;
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(8) Evidence of physical or emotional abuse to the child, to the other parent or
to any other person; provided, that, where there are allegations that one (1)
parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402, or
child sexual abuse, as defined in § 37-1-602, against a family member, the court
shall consider all evidence relevant to the physical and emotional safety of the
child, and determine, by a clear preponderance of the evidence, whether such
abuse has occurred. The court shall include in its decision a written finding of
all evidence, and all findings of facts connected to the evidence. In addition, the
court shall, where appropriate, refer any issues of abuse to the juvenile court for
further proceedings;
(9) The character and behavior of any other person who resides in or frequents
the home of a parent or caregiver and the person’s interactions with the child;
and
(10) Each parent’s or caregiver’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of the
parents and caregivers to facilitate and encourage a close and continuing parent-
child relationship between the child and both of the child's parents, consistent
with the best interest of the child. In determining the willingness of each of the
parents and caregivers to facilitate and encourage a close and continuing parent-
child relationship between the child and both of the child's parents, the court
shall consider the likelihood of each parent and caregiver to honor and facilitate
court ordered parenting arrangements and rights, and the court shall further
consider any history of either parent or any caregiver denying parenting time to
either parent in violation of a court order.
Tenn. Code Ann. § 36-6-106 (a).
From our review of the record, it appears that the trial court below carefully considered the
proof in this case in light of the statutory factors and weighed the evidence as to the strengths
and weaknesses of both parents. The trial court rightly took into account the domestic violence
in Father’s home that Mother emphasizes in her appellate brief. Abuse or violence in the home
is greatly concerning, and the trial court’s oral ruling makes it clear that the trial court looked
carefully at the evidence on this point. The trial court also noted, however, that there was no
proof that Daughter was affected by the incidents or even aware of them. While Mother
correctly argues that the domestic violence is cause for the Court’s concern regardless of
whether Daughter witnessed it, the record shows clearly that the trial court carefully weighed
the possible effect on Daughter of Father’s potential for domestic violence, apart from whether
Daughter witnessed the incidents with Ex-Wife.
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The trial court also recognized Mother’s “equity” argument, her contention that because Father
had had “virtually exclusive possession of their daughter for a number of years, it is now her
time to take the lead.” While Mother’s feeling is understandable given the indefensible failure
of the Shelby County courts to provide for any parenting time for Mother whatsoever for a
period of years, the trial court wisely turned aside this argument. In parenting decisions, the
needs of the children are predominant; the desires of the parents are secondary. In re T.C.D.,
261 S.W.3d at 742 (citing Shofner v. Shofner, 181 S.W.3d 703, 715-16 (Tenn. Ct. App.
2004)). “In making parenting decisions, the court’s paramount concern must be the welfare
and best interest of the children; parenting decisions must not be made to reward or punish
parents.” Irvin v. Irvin, No. M2011-02424-COA-R3-CV, 2012 WL 5993756, at *14 (Tenn.
Ct. App. Nov.30, 2012) (citing Adelsperger, 970 S.W.2d at 484-85); see also In re T.C.D., 261
S.W.3d at 742; Griffin v. Stone, 834 S.W.2d 300, 302 (Tenn. Ct. App. 1992); Barnhill v.
Barnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App. 1991).
The trial court’s decision appears to be driven primarily by two factors, the tendency of each
parent to facilitate the child’s relationship with the other parent and continuity for Daughter.
On Father’s tendency to facilitate and encourage Daughter’s relationship with Mother, we are
unimpressed with Father’s explanation for why he permitted so many years to go by without
any parenting time for Mother. However, there is no evidence that he actively obstructed
Mother’s court-ordered parenting time or made derogatory comments about Mother to
Daughter.5 In contrast, the evidence indicated that Mother referred to Father as a “crazy MF”
in Daughter’s presence. More important, the trial court rightly expressed concern about
Mother’s continued insistence that Father molested Daughter, despite the conclusion to the
contrary by DCS after more than one investigation. All of this, the trial court found, indicated
that Mother’s “venom” toward Father as noted by the Shelby County Juvenile Court still
existed and did not bode well for a constructive co-parenting relationship with Father. This
finding is amply supported by the evidence in the record.
In its decision, the trial court also appeared to rely heavily on the factor of continuity of
placement for Daughter. “[C]ontinuity and the parent who has been the child’s primary
caregiver are often ‘powerful considerations’ in custody disputes” and courts often “emphasize
the importance of continuity in the child’s life, and so are normally disinclined to change the
original designation . . . [because] children tend to thrive in a stable environment.” Williams
v. Singler, No. W2012-01253-COA-R3-JV, 2013 WL 3927934, at *15 (Tenn. Ct. App. July
31, 2013). In the case at bar, the trial court assumed that Mother’s home in Michigan is
5
The only evidence in the record of an untoward comment by Father is his reference to Mother as “that
girl” in Daughter’s presence.
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suitable for Daughter, noted that Mother is employed, and commented that her parenting time
with Daughter had gone well. The trial court emphasized, however, that Daughter is “thriving”
in Father’s home. It observed that Daughter is doing well in her school, on the honor roll, and
has had perfect attendance for several years. We note as well that Mother now resides in
Michigan, so a change in the designation of primary residential parent would uproot Daughter
from her entire life.
From our careful review of the record and consideration of all of the relevant factors, it appears
that the trial court directed its decision “towards promoting the child’s best interest by placing
[her] in an environment that will best serve [her] physical and emotional needs.” In re T.C.D.,
261 S.W.3d at 742-43. Considering all of the evidence, we find no error in the trial court’s
conclusion that the evidence did not support designating Mother as Daughter’s primary
residential parent. We have also reviewed the parenting order entered by the trial court,
detailing the arrangements for Mother’s parenting time, and affirm it as well.
All other issues raised on appeal are pretermitted by this decision.
C ONCLUSION
The decision of the trial court is affirmed. Costs on appeal are assessed against
Appellant K.B, for which execution may issue if necessary.
___________________________
HOLLY M. KIRBY, JUDGE
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