Heather Anne (Coats) Emch v. Edward Glen Emch, III

09/01/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 3, 2022 Session
HEATHER ANNE (COATS) EMCH v. EDWARD GLEN EMCH, III
Appeal from the General Sessions Court for Wilson County
No. 2015-DC-100 A. Ensley Hagan, Jr., Judge
___________________________________
No. M2021-00139-COA-R3-CV
___________________________________
This appeal concerns a father’s petition to modify the permanent parenting plan for his
five-year-old daughter. The father filed his petition after the child’s mother decided to
move from Wilson County—where the father lived and the child attended preschool—to
Williamson County, where the mother’s fiancé lived. The mother was the primary
residential parent and wanted the child to attend school in Williamson County, but the
permanent parenting plan gave the parties joint authority over educational decisions, and
the father wanted the child to attend school in Wilson County. In his petition, the father
contended that the mother’s move constituted a material change in circumstance, and he
asked the court to name him as the primary residential parent, implement a 50/50 residential
parenting schedule, and give him authority over where the child would attend school. After
a three-day trial, the court ordered the parties to send the child to school in Williamson
County. The court also found the mother’s move was a material change in circumstance
for the purpose of modifying the residential parenting schedule but not for the purpose of
changing the primary residential parent or reallocating decision-making authority. The
court concluded that a 50/50 residential schedule was in the child’s best interests. This
appeal followed. We affirm the trial court’s judgment in all regards.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.
Amanda G. Crowell, Lebanon, Tennessee, for the appellant, Heather Coats Land.
Melanie R. Bean, Lebanon, Tennessee, and Donald N. Capparella and Kimberly Ann
Macdonald, Nashville, Tennessee, for the appellee, Edward Glen Emch, III.
OPINION
FACTS AND PROCEDURAL HISTORY
In 2014, Edward G. Emch III (“Father”) and Heather A. (Coats) Emch (“Mother”)
moved to Wilson County, Tennessee. Shortly after that, Mother gave birth to the couple’s
first and only child, Arianna (“the Child”). One year later, the parties entered into a marital
dissolution agreement (“the MDA”) and an agreed permanent parenting plan (“the
Parenting Plan”). The MDA and the Parenting Plan were incorporated into the parties’ final
divorce decree, which was entered in November 2015.
The Parenting Plan gave Mother and Father alternating weeks of residential time
with the Child as well as midweek visitation. During Father’s week, Mother had visitation
from Wednesday morning to Thursday morning. During Mother’s week, Father had two
hours of visitation on Wednesday evening. During holidays such as Thanksgiving, Mother
and Father had equal time with the Child. If either party would be unavailable for more
than four hours during their scheduled visitation, the other parent would have the right of
first refusal to care for the Child.
The Parenting Plan named Mother as the primary residential parent, but it gave
Father joint authority for all major decisions in the Child’s life, including decisions related
to her education. The plan provided that no changes could be made “to the minor child’s
daycare or schooling without both parties[’] consent and agreement.” If the parties could
not agree, the Parenting Plan required them to attend mediation before returning to the
court.
Mother and Father successfully navigated their co-parenting arrangement for the
first few years after the divorce. They agreed to send the Child to daycare in Wilson
County, where both Mother and Father lived, and they informally agreed to modify
midweek visitation from Wednesday to Thursday. Although the parties sometimes had
differences of opinion, they communicated about the Child often and relied on each other
when last-minute scheduling changes were necessary. Mother and Father also
accommodated each other’s plans for vacations and the occasional business trip.
In November 2019, however, Mother and Father reached an impasse over where the
Child would start kindergarten. By that time, the Child was five and in her last year of
preschool. Mother planned to move to Williamson County with her fiancé and wanted the
Child to attend school there.1 Father had recently built a new house with his wife in Wilson
1
Because Mother’s new residence was less than 50 miles from Father’s, her move did not trigger
the parent relocation statute, Tennessee Code Annotated § 36-6-108.
-2-
County and wanted the Child to attend school there. The parties attended mediation but
failed to reach an agreement.
In December 2019, Father returned to court and filed a petition to modify the
Parenting Plan. Father contended that Mother’s relocation was a material change in
circumstance, and he asked the court to name him as the primary residential parent and use
his address to determine where the Child would go to school. Father also proposed a
residential parenting schedule that eliminated the parties’ midweek visitation and allowed
for an entire week of parenting time during the Child’s Thanksgiving break on alternating
years. Under the proposed plan, each parent would have 182.5 days of residential time.
In her answer, Mother contended that the Child had to attend the school zoned for
her residence—Trinity Elementary School—because she was the primary residential
parent. Mother argued that the Parenting Plan’s joint-decision-making provision did not
apply because enrolling the Child at Trinity would not be a “change in daycare or
schooling” or an “educational decision.” Mother also denied that her relocation justified a
change to the primary residential parent, but she stated that she was open to modifying the
residential schedule to reduce the Child’s commute time. Both Mother and Father requested
an award of their attorney’s fees under Tennessee Code Annotated § 36-5-103(c).
The trial court heard the matter over four days in May and June 2020. The evidence
showed that the Child would have a long commute during the school year, no matter which
school she went to. If the Child attended school in Wilson County, she would have a 43-
minute drive to and from school during Mother’s week. If the Child attended school in
Williamson County, she would have a 38-minute commute to and from school during
Father’s week.
Neither parent wanted to spend his or her time with the Child driving to and from
school, but Father expressed particular concern about the loss of quality time. Father
testified that he usually made the Child breakfast in the morning and almost always had an
activity planned for the evenings after he picked her up from daycare. Father was concerned
that, if the Child went to school in Williamson County, he could no longer engage in these
activities. But Mother believed either parent could still have quality time with the Child in
the car. Mother also opposed the elimination of midweek visitation, explaining that
Thursday afternoons were important for her and the Child because Mother worked from
home.
Although Father admitted that it would be possible for him to continue his midweek
visitation with the Child on Thursday evenings, he estimated that it would take him about
an hour in rush-hour traffic to get from downtown Nashville to Mother’s new home. And
Father pointed out that the Child’s step-mother and step-sister would have to make the
journey from Wilson County if they wanted to join him. Father also believed that midweek
visitation with either parent would disrupt the Child’s routine after she started school.
-3-
As for the change to the Child’s Thanksgiving schedule, Father explained that he
wanted to take the Child out of town to see family. In the past, Mother had asked for a
whole week to visit her family, but Father said that Mother was unwilling to let him have
an entire week to travel the next year. To the contrary, Mother testified that she extended
Father’s time with the Child during Thanksgiving in 2018, but he refused to reciprocate
the favor in 2019.
In its final order, the trial court found no material change in circumstance that
warranted a change to the primary residential parent, and it denied Father’s request to use
his address for school zoning. The court found that the decision of where to send the Child
to school fell within the Parenting Plan’s joint-decision-making provision, but the court
ordered the parties to send the Child to school at Trinity Elementary. Even so, the court
found that “Mother’s move to Williamson County and the increase in commute time for
[the Child]” was a material change in circumstance that justified a modification to the
residential parenting schedule. The court declined to adopt Father’s proposed parenting
plan in whole, but it eliminated the parties’ midweek visitation so the parties would
exercise “a true week to week schedule” and changed the Thanksgiving schedule to allow
each party a full week of visitation with the Child on alternating years. The court found
this new schedule was “in [the Child]’s best interests.” The trial court also denied each
party’s request for attorney’s fees.
Mother then moved to alter or amend the denial of her request for attorney’s fees.
Mother contended that she was entitled to an award of fees under Tennessee Code
Annotated § 36-5-103(c) and the parties’ MDA for successfully defending against Father’s
requests to change the primary residential parent and the allocation of decision-making
authority. The trial court denied Mother’s motion, reasoning that the award of such fees
was discretionary and that both parties prevailed in part.
This appeal followed.
ISSUES
Mother raises four issues on appeal, and Father raises five issues on cross-appeal.
The issues raised by Mother are as follows:
1. Whether the trial court erred in modifying the residential parenting
schedule which reduced Mother’s parenting time.
2. Whether the trial court erred in modifying Thanksgiving Break.
3. Whether the trial court erred in declining to award attorney’s fees to
Mother for the successful defense of the Parenting Plan.
4. Whether Mother is entitled to her attorney’s fees on appeal.
-4-
As his first issue, however, Father contends that Mother “waived nearly all issues
on appeal by failing to designate them as issues in the Statement of Issues section, failing
to designate issues referenced in the Argument section, and drafting skeletal arguments
devoid of proper citations to the record and legal authority.” We agree that Mother’s brief
is deficient in several respects, but we do not find that the deficiencies completely preclude
our review of the trial court’s decision.
Tennessee Rule of Appellate Procedure 27 governs the content of appellate briefs.
Rule 27(a) requires, among other things, “an argument” that sets forth “the contentions of
the appellant with respect to the issues presented . . . with citations to the authorities and
appropriate references to the record . . . relied on.” Tenn. R. App. P. 27(a)(7), (a)(7)(A).
“Courts have routinely held that the failure to make appropriate references to the record
and to cite relevant authority in the argument section of the brief as required by Rule
27(a)(7) constitutes a waiver of the issue.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App.
2000).
Similarly, Tennessee Court of Appeals Rule 6 requires an argument for each issue
that includes “[a] statement by the appellant of the alleged erroneous action of the trial
court which raises the issue . . . with citation to the record where the erroneous . . . action
is recorded,” and “[a] statement of each determinative fact relied upon with citation to the
record where evidence of each such fact may be found.” Tenn. Ct. App. R. 6(a)(1), (4).
This court will not consider any reliance on action by the trial court or assertions of fact
without specific references to the record:
No complaint of or reliance upon action by the trial court will be considered
on appeal unless the argument contains a specific reference to the page or
pages of the record where such action is recorded. No assertion of fact will
be considered on appeal unless the argument contains a reference to the page
or pages of the record where evidence of such fact is recorded.
Tenn. Ct. App. R. 6(b).
The argument sections of Mother’s appellate brief do not comply with the letter or
spirit of these rules. In support of her first issue, Mother’s brief contains seven pages of
case summaries related to the modification of parenting plans. Yet Mother’s brief does not
apply that authority to the action of the trial court or the facts of this case. Mother’s brief
cites no legal authority supporting her second or fourth issues.
Mother’s brief also relies on many actions by the trial court without any reference
to the page or pages in the record where the trial court’s actions are recorded, and it makes
several assertions of fact, only six of which are supported by references to the record.
Suffice it to say, the vast majority of Mother’s arguments are unsupported by references to
legal authority and the record.
-5-
We are mindful, however, that the Rules of Appellate Procedure and the rules of
this court “should be interpreted and applied in a way that enables appeals to be considered
on their merits.” Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009). In other words, we
“should not exalt form over substance.” Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496,
511 (Tenn. 2010)). Accordingly, we have the discretion to “suspend or relax some of the
rules for good cause.” Paehler v. Union Planters Nat. Bank, 971 S.W.2d 393, 397 (Tenn.
Ct. App. 1997).
Based on the content of Mother’s appellate brief and her oral argument, we exercise
our discretion to address two issues raised by Mother:
(1) Whether the trial court failed to apply the applicable law, erroneously
assessed the evidence, or reached an illogical result when it found that the
Child’s increased commute time was a material change in circumstance
and implemented a parenting schedule that changed the Child’s
Thanksgiving schedule and effectively increased the Child’s commute
time.
(2) Whether the trial court erred by denying Mother’s request for attorney’s
fees under the MDA and Tennessee Code Annotated § 36-5-103(c).
We will also address the four remaining issues raised by Father on cross-appeal,
which are as follows:
(1) Whether Mother has filed a frivolous appeal with no reasonable chance
of success because of her waived issues and deficiencies in her brief, thus
entitling Father to an award of attorney’s fees and expenses on appeal
pursuant to Tenn. Code Ann. § 27-1-122?
(2) Whether the trial court erred as a matter of law in denying Father
attorney’s fees at trial pursuant to the MDA when (1) Father initiated the
legal proceedings related to the Child’s school and Mother’s move by
requesting mediation and filing a petition; (2) Mother sought to take
unilateral action and choose the Child’s school, contrary to the
requirements of the Parenting Plan; and (3) Father had to take legal action
to enforce the provisions in the Parenting Plan related to joint decision-
making for education and the proper procedure for disagreements about
the Parenting Plan, which first required mediation and then involving the
court?
(3) Whether Father is entitled to attorney’s fees related to the appeal pursuant
to the MDA when (1) Father initiated the legal proceedings related to the
Child’s school and Mother’s move by requesting mediation and filing a
petition; (2) Mother sought to take unilateral action and choose the
-6-
Child’s school, contrary to the requirements of the Parenting Plan; and
(3) Father had to take legal action to enforce the provisions in the
Parenting Plan related to joint decision-making for education and the
proper procedure for disagreements about the Parenting Plan, which first
required mediation and then involving the court?
(4) Whether Father is entitled to attorney’s fees related to the appeal as the
prevailing party on appeal, pursuant to Tenn. Code Ann. § 36-5-103(c)
and caselaw?
STANDARD OF REVIEW
“A trial court’s determinations of whether a material change in circumstances has
occurred and whether modification of a parenting plan serves a child’s best interests are
factual questions.” Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). Thus, we
“must presume that a trial court’s factual findings on these matters are correct and not
overturn them, unless the evidence preponderates against the trial court’s findings.” Id. at
693.
Determining the details of parenting plans is “peculiarly within the broad discretion
of the trial judge,” and we will not reverse such decisions absent an abuse of that discretion.
Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014). Likewise, “the decision to grant
attorney’s fees under section 36-5-103(c) is largely within the discretion of the trial court
and . . . , absent an abuse of discretion, appellate courts will not interfere with the trial
court’s finding.” Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017).
The abuse of discretion standard does not permit reviewing courts to substitute their
discretion for the trial court. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).
That said, the abuse of discretion standard of review does not immunize a lower court’s
decision from meaningful appellate scrutiny:
Discretionary decisions must take the applicable law and the relevant facts
into account. An abuse of discretion occurs when a court strays beyond the
applicable legal standards or when it fails to properly consider the factors
customarily used to guide the particular discretionary decision. A court
abuses its discretion when it causes an injustice to the party challenging the
decision by (1) applying an incorrect legal standard, (2) reaching an illogical
or unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence.
Id. (citations omitted). In other words, discretionary decisions require “a conscientious
judgment, consistent with the facts, that takes into account the applicable law.” White v.
Beeks, 469 S.W.3d 517, 527 (Tenn. 2015) (citing Lee Med., Inc., 312 S.W.3d at 524).
-7-
On the other hand, courts have “no discretion whether to award attorney’s fees when
the parties have a valid and enforceable marital dissolution agreement which requires an
award of reasonable attorney’s fees to a prevailing or successful party.” Eberbach, 535
S.W.3d at 478. “When such a MDA exists, it is subject to the normal rules of contractual
interpretation and enforcement.” Id. “If the MDA is determined to be a valid and
enforceable agreement, the terms of the parties’ agreement govern the award of fees, and
the court must enforce the parties’ terms to the extent the agreement demands.” Id. “The
interpretation of a contract is a matter of law that requires a de novo review on appeal.”
Crye-Leike, Inc. v. Carver, 415 S.W.3d 808, 815 (Tenn. Ct. App. 2011) (quoting Guiliano
v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)).
ANALYSIS
I. MODIFICATION OF RESIDENTIAL PARENTING SCHEDULE
The crux of Mother’s argument on appeal is two-fold: (1) the trial court erred by
modifying the residential schedule in a way that increased the Child’s commute time after
finding the Child’s increased commute time was a material change in circumstance; and
(2) the trial court erred by changing the Child’s Thanksgiving schedule without finding a
material change in circumstance warranting the change.
The law on modification of residential parenting schedules is well established and
governed by statute. When considering a petition to modify a residential schedule, courts
must first determine whether the petitioner proved “a material change of circumstance
affecting the child’s best interest.” Tenn. Code Ann. § 36-6-101(a)(2)(C); see Armbrister,
414 S.W.3d at 697. If the trial court finds a material change in circumstance affecting the
child’s best interest, it must then “determine whether modification of the schedule[] is in
the best interest of the child[], utilizing the factors at § 36-6-106(a).” Brunetz v. Brunetz,
573 S.W.3d 173, 179 (Tenn. Ct. App. 2018) (quoting Allen v. Allen, No. W2016-01078-
COA-R3-CV, 2017 WL 908319, at *8 (Tenn. Ct. App. Mar. 7, 2017)).
The material-change requirement in § 36-6-101(a)(2)(C) provides child support and
custody decisions with a modicum of finality akin to that provided by the doctrine of res
judicata. See Armbrister, 414 S.W.3d at 698–99. Res judicata “prevents inconsistent or
contradictory judgments, conserves judicial resources, and protects litigants from the cost
and vexation of multiple lawsuits.” Id. at 698 n.15 (quoting Jackson v. Smith, 387 S.W.3d
486, 491 (Tenn. 2012)). So too, the material-change requirement prevents inconvenience
to the litigants and the courts by preventing parties from relitigating matters related to
custody “upon the same evidence and the same facts.” See id. at 699 (quoting Hicks v.
Hicks, 176 S.W.2d 371, 375 (Tenn. Ct. App. 1943)). By requiring a petitioner to prove a
material change in circumstance affecting the child’s best interest, the statute “balance[s]
the interests in finality and stability against the practical reality that changes may occur
after the initial custody or visitation decree which necessitate modification.” Id. (citing
Ellis v. Carucci, 161 P.3d 239, 243 (Nev. 2007)).
-8-
Section 36-6-101(a)(2)(C) “sets ‘“a very low threshold for establishing a material
change of circumstances”’ when a party seeks to modify a residential parenting schedule.”
Id. at 703 (quoting Boyer v. Heimermann, 238 S.W.3d 249, 257 (Tenn. Ct. App. 2007)).
Two factors are relevant considerations in determining whether there was a material change
in circumstance for the purposes of modifying a residential schedule: (1) “whether a change
has occurred after the entry of the order sought to be modified”; and (2) “whether a change
is one that affects the child’s well-being in a meaningful way.” Drucker v. Daley, No.
M2019-01264-COA-R3-JV, 2020 WL 6946621, at *7 (Tenn. Ct. App. Nov. 25, 2020)
(citations omitted).
Tennessee Code Annotated § 36-6-101(a)(2)(C) provides several nonexclusive
examples of material changes, including “significant changes in the parent’s living or
working condition that significantly affect parenting.” Tenn. Code Ann. § 36-6-
101(a)(2)(C) (emphasis added). Thus,
for purposes of modifying a residential parenting schedule, a petitioner can
establish that a material change of circumstances affects the child’s well-
being in a meaningful way through evidence of changes to the petitioner’s
circumstances . . . that will allow more parenting time and/or a better parent-
child relationship in the future.
Drucker, 2020 WL 6946621, at *9 (citing Armbrister, 414 S.W.3d at 705). Additionally,
“evidence that an existing custody arrangement was proven unworkable in a significant
way is sufficient to satisfy the ‘material change in circumstances’ standard.” Boyer, 238
S.W.3d at 257 (citation omitted).
The material-change analysis, however, “answers only [a] threshold question” and
“does not predetermine the outcome of the case.” Armbrister, 414 S.W.3d at 705. If the
court finds a material change in circumstance affecting the child’s best interest, the court
must then look to Tennessee Code Annotated § 36-6-106(a) to “determine how, if at all, to
modify the residential parenting schedule.” Id. at 698. Section 36-6-106(a) directs courts
to “order a custody arrangement that permits both parents to enjoy the maximum
participation possible in the life of the child consistent with the factors set out in this
subsection (a), the location of the residences of the parents, the child’s need for stability
and all other relevant factors.” Tenn. Code Ann. § 36-6-306(a). The goal of § 36-6-106 “is
to allow both parents to enjoy the ‘maximum participation possible’ in the lives of their
children.” Armbrister, 414 S.W.3d at 707 (citing Tenn. Code Ann. § 36-6-106(a)); accord
Gooding v. Gooding, 477 S.W.3d 774, 778 (Tenn. Ct. App. 2015). Stated another way,
§ 36-6-106(a) expresses a “legislative preference that parents receive the maximum time
possible with their children.” Rountree v. Rountree, 369 S.W.3d 122, 132 (Tenn. Ct. App.
2012) (citing Tenn. Code Ann. § 36-6-106(a)).
In summary, the material-change analysis under § 36-6-101(a)(2)(C) is used to
determine when a party may invoke the court’s authority to change the details of a
-9-
permanent parenting plan, and the best-interest analysis under § 36-6-106(a) is used to
determine how the plan should be modified. See Armbrister, 414 S.W.3d at 697–98;
Brunetz, 573 S.W.3d at 179.
The trial court found that “a material change in circumstance justifying a
modification to the residential schedule exists—this being Mother’s move to Williamson
County and the increase in commute time for [the Child].” The court did not, however,
explain why the increase in transit was a change that “affect[ed] the [C]hild’s well-being
in a meaningful way.” See Drucker, 2020 WL 6946621, at *7 (citations omitted).
The trial court then found that modifying a “limited number of provisions in the
parenting plan” was “in [the Child]’s best interest.” Specifically, the court found it was in
the Child’s best interests to (1) eliminate midweek visitation; (2) change the right-of-first-
refusal provision from four to 24 hours; (3) modify the designated place of exchange; and
(4) alternate the full Thanksgiving break. The court modified the right of first refusal “due
to the distance between the parties and the fact that both have (or will be) remarried.” The
court did not explain its reasoning for the other changes.
Perhaps due to the lack of reasoning in the trial court’s opinion, each party interprets
the court’s ruling differently.
Mother construes the trial court’s order as finding that the increased commute time
harmed the Child’s well-being. Thus, she infers that the court strove to reduce the Child’s
commute time by modifying the residential schedule. Accordingly, Mother contends the
trial court’s elimination of midweek visitation was illogical because it increased the time
the Child spends in transit. As for the Thanksgiving break, Mother infers that the trial court
was attempting to allow the parties to travel out of state, but she contends that the court
made no finding that the current arrangement harmed the Child’s well-being. She also
argues that changing the Thanksgiving schedule is not in the Child’s best interests because
one parent will have the Child for three consecutive weeks during some years.
Father construes the trial court’s order as finding that the increased commute time
was simply an unavoidable fact that made the existing arrangement unworkable, and he
infers that the court’s modification of the residential schedule was an attempt “to reduce
the frequency of exchanges, resultant disruption for the child, and maximize time with each
parent.” As for Thanksgiving, Father points out that the new arrangement will still give
each parent equal time with the Child, and he suggests that the parties’ history of co-
parenting shows that the parties can work together to allow each other to see the Child even
when it is not their year to spend Thanksgiving with her.
Unfortunately, neither party’s interpretation is borne out by the trial court’s order
because the court did not explain the basis for its decision. As we have stated, “‘meaningful
appellate review’ is only obtainable when the trial court puts forth some explanation as to
how it reaches its decision in a best interest analysis.” Grissom v. Grissom, 586 S.W.3d
- 10 -
387, 395 (Tenn. Ct. App. 2019) (citing Belardo v. Belardo, No. M2012-02598-COA-
R3CV, 2013 WL 5925888, at *7 (Tenn. Ct. App. Nov. 1, 2013)). When faced with
inadequate findings of fact and conclusions of law, this court is presented with two
avenues: “(1) vacate and remand for the trial court to make the appropriate findings; or (2)
conduct a review of the facts of the case without any deference to the trial court’s ruling.”
Id. at 396 (citations omitted). Remanding for adequate findings is preferred when
reviewing the facts would require this court to conduct “‘archeological digs’ of the record
in an effort to support the trial court’s decision.” Id. (quoting Heun Kim v. State, No.
W2018-00762-COA-R3-CV, 2019 WL 921039, at *6 (Tenn. Ct. App. Feb. 26, 2019)).
This case, however, is no Pompeii.
The undisputed evidence in the record satisfies the “very low threshold for
establishing a material change of circumstances” under Tennessee Code Annotated § 36-
6-101(a)(2)(C). See Armbrister, 414 S.W.3d at 703 (quoting Boyer, 238 S.W.3d at 257). In
particular, Mother’s move to Williamson County, the Child’s change of schools, and
Mother’s new work-from-home arrangement are “significant changes in the parent[s’]
living or working condition that significantly affect parenting.” Tenn. Code Ann. § 36-6-
101(a)(2)(C). Mother testified that these changes would positively affect her parenting
because she could spend more quality time with the Child in the afternoons. On the other
hand, Father testified that these changes would harm his parenting by reducing the quality
of time he has in the morning and evening.
The undisputed evidence also shows that the “existing custody arrangement
was . . . unworkable.” See Boyer, 238 S.W.3d at 257 (citation omitted). Father testified that
it would be impractical—although not impossible—to exercise his two hours of visitation
on Thursday evenings due to the logistics of going from downtown Nashville to Franklin
and then back to Wilson County. And both Mother and Father testified that they wanted to
travel out of town for Thanksgiving in past years but could not agree on informal
modifications to accommodate such travel.
For these reasons, we find that Father established a material change in circumstance
that “occurred after the entry of the order sought to be modified” and “affects the child’s
well-being in a meaningful way.” See Drucker, 2020 WL 6946621, at *7 (citations
omitted).
The evidence also establishes that the schedule modification was in the Child’s best
interests. Tennessee Code Annotated § 36-6-106 identifies fifteen best-interest factors,
including “[t]he strength, nature, and stability of the child’s relationship with each parent”;
“[e]ach parent’s . . . past and potential for future performance of parenting
responsibilities”; “[t]he love, affection, and emotional ties existing between each parent
and the child”; “[t]he child’s interaction and interrelationships with siblings, other relatives
and step-relatives”; “the child’s involvement with the child’s physical surroundings,
school, or other significant activities”; “[t]he importance of continuity in the child’s life”;
- 11 -
“[e]ach parent’s employment schedule”; and “[a]ny other factors deemed relevant by the
court.” See Tenn. Code Ann. § 36-6-106(a)(1) to (15).
The trial court extolled Mother and Father for their exemplary parenting in its ruling
from the bench and in its written order. The court remarked that the case may have been
“the most difficult case” that it had undertaken because the parties were “excellent
parents.” In the end, however, the court found that increasing Father’s parenting time and
modifying the Thanksgiving break was in the Child’s best interest. The court observed
twice in its written order that “[r]egardless of which school [the Child] attends, one parent
or the other will have increased drive time.” Because the Child will attend Trinity
Elementary, the parent with the increased drive time is Father. Consequently—under either
the old schedule or the new—the Child will spend over five hours of her residential time
with Father in a car each week she is with him during the school year. On the other hand,
the Child will spend only 30 minutes with Mother in transit each week she is with her
during the school year. Moreover, Mother will have more quality time with the Child
because she works from home.
Several other facts also support increasing Father’s residential time. Mother
acknowledged in her testimony that Mount Juliet has been the Child’s home since birth.
And as the court noted, “there are a number of activities for families and children in
[Father]’s subdivision,” and the Child is “enrolled in ballet, tumbling and soccer, all in
Mount Juliet.” The court also observed that the Child’s step-mother was expecting a
daughter soon, and it was particularly impressed by Father’s testimony that “one blessing
from divorce is that you really appreciate the time you have with your child.”
For these reasons, we conclude that the evidence established that the schedule
modification was in the Child’s best interests. We also find the specific modifications made
by the trial court fall within “the spectrum of rulings that might reasonably result from an
application of the correct legal standards to the evidence found in the record.” See
Armbrister, 414 S.W.3d at 693 (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn.
2001)).
As stated, the goal of § 36-6-106 “is to allow both parents to enjoy the ‘maximum
participation possible’ in the lives of their children.” Armbrister, 414 S.W.3d at 707 (citing
Tenn. Code Ann. § 36-6-106(a)). This goal is subservient to the Child’s best interests, and
it does not mean that parents will always receive equal parenting time. See In re Cannon
H., No. W2015-01947-COA-R3-JV, 2016 WL 5819218, at *6 (Tenn. Ct. App. Oct. 5,
2016) (stating that “[s]uch a custody arrangement requires ‘a harmonious and cooperative
relationship between both parents’ to be successful” (citations omitted)). But here, there is
no evidence to contradict the trial court’s determination that equal parenting time is
appropriate.
- 12 -
On this point, we are reminded of the late Justice Cornelia Clark’s enlightened
observations in Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013), which are just as
applicable to this case:
We would be remiss if we did not note that the facts in this appeal are most
unusual for a post-divorce proceeding because Mother and Father have
established a positive and cooperative relationship with each other since the
divorce. Unfortunately, courts are called upon all too often to resolve
disputes between parents who refuse to communicate and cooperate with
each other concerning their children because of the lingering “bitterness” of
the divorce. Such bitterness tends to deepen the pain of divorce for children
and subject them to unnecessary conflict. Despite their adversarial positions
in this proceeding, Mother and Father are to be commended for not allowing
such residual antipathy to interfere with their parenting responsibilities. Our
conclusion that the proof supports the trial court’s findings that Father
established a material change in circumstances and that modifying the
residential parenting schedule is in the children’s best interests certainly
should not be viewed as calling Mother’s parenting skills into question. To
the contrary, the proof overwhelmingly establishes . . . that Mother is “a
great Mom.” The modification does, however, allow Father to move closer
to the statutory goal, which is to allow both parents to enjoy the “maximum
participation possible” in the lives of their children. Recognizing their
combined efforts to date, we encourage these parents to continue focusing
upon, and working together to foster, the best interests of their children.
Id. at 707 (citations omitted).
II. ATTORNEY’S FEES
Both Mother and Father contend that the trial court erred by denying their requests
for an award of attorney’s fees under the fee-shifting provision of the MDA. Mother also
contends that she was entitled to an award of fees under Tennessee Code Annotated § 36-
5-103(c), and Father contends he is entitled to attorney’s fees on appeal under §§ 36-5-
103(c) and 27-1-122.
“[W]hen confronted with a request for fees under both contractual and statutory
authority, our courts should look to the parties’ contract first before moving on to any
discretionary analysis under statutes such as section 36-5-103(c) and section 27-1-122.”
Eberbach, 535 S.W.3d at 478. “Even if the court determines that an award of attorney’s
fees is mandated by the terms of the MDA, the court still should also review the claims for
fees or expenses under any applicable statutory authority.” Id. at 479.
- 13 -
A. Marital Dissolution Agreement
Mother asserts that she was entitled to an award of her trial attorney’s fees under the
MDA because she had to “enforce her rights” by defending against Father’s petition. Father
asserts that he is entitled to an award of his trial and appellate attorneys’ fees under the
MDA because he had to enforce the Parenting Plan after Mother attempted to unilaterally
send the Child to school in Williamson County.
Reviewing requests for fees under an MDA involves a three-step process:
Courts . . . should first determine whether the parties have a valid and
enforceable MDA that governs the award of attorney’s fees for the
proceeding at bar. If so, our courts must look to the actual text of the
provision and determine whether the provision is mandatory and applicable.
If so, the MDA governs the award of fees, and our courts must enforce the
parties’ contract.
Eberbach, 535 S.W.3d at 478–79.
The Parenting Plan was incorporated by reference as a part of the parties’
“Agreement” in the MDA, which provides in relevant part as follows:
26. FUTURE LEGAL PROCEEDINGS. . . . If either party
reasonably institutes legal proceedings to procure the enforcement of any
provision of this Agreement, then he will also be entitled to a judgment for
reasonable expenses, including attorney fees, incurred in prosecuting the
action.
Based on this language, we find the MDA does not govern the award of attorney’s
fees for the proceeding at bar. The MDA mandates the award of attorney’s fees incurred in
prosecuting an action “to procure the enforcement” of the MDA and Parenting Plan.
“Enforcement” is “[t]he act or process of compelling compliance with a law, mandate,
command, decree, or agreement.” Black’s Law Dictionary (11th ed. 2019). Father
instituted proceedings to modify the Parenting Plan, but neither party instituted
proceedings to compel compliance with the Parenting Plan.
For this reason, we find neither party was entitled to an award of attorney’s fees
under the MDA.
B. Tennessee Code Annotated §§ 36-5-103(c) and 27-1-122
Mother also contends that she was entitled to an award of her trial attorney’s fees
under Tennessee Code Annotated § 36-5-103(c) because “Father filed a petition in which
he made false allegations against Mother in bad faith for the purpose of attempting to
change custody of the minor child.” Father contends he is entitled to an award of his
- 14 -
appellate attorneys’ fees under §§ 36-5-103(c) and 27-1-122 because he prevailed on
appeal, Mother’s appeal was frivolous, and Father acted in good faith.
Section 36-5-103(c) allows for the award of attorney’s fees to the prevailing party
in proceedings to modify a permanent parenting plan:
A prevailing party may recover reasonable attorney’s fees . . . from the
nonprevailing party in any . . . proceeding to enforce, alter, change, or
modify any . . . provision of a permanent parenting plan order, or in any suit
or action concerning the adjudication of the custody or change of custody of
any children . . . .
Tenn. Code Ann. § 36-5-103(c). When considering a request for appellate attorney’s fees
under § 36-5-103, we consider three nonexclusive factors: (1) “the ability of the requesting
party to pay his or her own attorney’s fees”; (2) “the requesting party’s success on appeal”;
and (3) “whether the requesting party has been acting in good faith.” Shofner v. Shofner,
181 S.W.3d 703, 719 (Tenn. Ct. App. 2004) (citing Parchman v. Parchman, No. W2003-
01204-COA-R3-CV, 2004 WL 2609198, at *6 (Tenn. Ct. App. Nov. 17, 2004)).
Section 27-1-122 allows for the award of appellate attorney’s fees and expenses
against a party who files a frivolous appeal:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the appeal.
Tenn. Code Ann. § 27-1-122. A frivolous appeal lacks merit or “has no reasonable chance
of success.” Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2001). An appeal
may be frivolous when the brief “is so severely deficient that this Court is unable to
determine even what issues [the appellant is] attempting to raise on appeal.” Murray v.
Miracle, 457 S.W.3d 399, 404 (Tenn. Ct. App. 2014).
“[T]he decision to grant [trial] attorney’s fees under section 36-5-103(c) is largely
within the discretion of the trial court and that, absent an abuse of discretion, appellate
courts will not interfere with the trial court’s finding.” Eberbach, 535 S.W.3d at 475–76.
Similarly, “when appellate attorney’s fees are requested pursuant to statutes like section
27-1-122 and section 36-5-103(c), which expressly permit the court to exercise its
discretion, the Court of Appeals should analyze any such request by exercising its
discretion to determine whether an award to the prevailing party is appropriate.” Id.
- 15 -
In its denial of Mother’s motion to alter or amend, the trial court explained that it
denied Mother’s request for an award of her trial attorney’s fees because Father was
following the Parenting Plan when he commenced the action:
In the foregoing matter, both parties prevailed in part. Once the parents
disagreed about the school and were unable to resolve the issue in mediation,
Father either had to file a petition or lay down, and the latter was not an
option. Father had to seek relief from the Court as that is how the parenting
plan is designed. The Court does not fault Father for filing his petition.
We find no error in the trial court’s decision and affirm its denial of Mother’s request
for an award of her trial attorney’s fees under Tennessee Code Annotated § 36-5-103(c).
And after considering the relevant factors, we also respectfully deny Father’s request for
an award of his appellate attorneys’ fees under § 36-5-103(c).
As for Father’s request for fees under § 27-1-122, we do not find Mother’s appeal
so devoid of merit as to warrant an award. Although we have concluded that Mother is not
entitled to appellate relief, Mother’s brief raised legitimate issues with the court’s order.
For this reason, we exercise our discretion to deny Father’s request for an award of his
appellate attorneys’ fees under Tennessee Code Annotated § 27-1-122.
IN CONCLUSION
We affirm the judgment of the trial court and remand this matter with costs of appeal
assessed against Heather Anne (Coats) Emch.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
- 16 -