Opinion
No. M2008-02153-COA-R3-CV.
March 10, 2009 Session.
Filed March 31, 2009.
Appeal from the Chancery Court for Rutherford County; No. 06-0747DR; Royce Taylor, Judge.
Judgment of the Chancery Court Affirmed; Case Remanded.
Luke A. Evans, Murfreesboro, Tennessee, for the Appellant, Tammy Marie Smith.
Brett M. Gipson and Kim C. Gilleland, Nashville, Tennessee, for the Appellee, David Charles Smith.
D. Michael Swiney, J., delivered the opinion of the court, in which Herschel P. Franks, P.J., and John W. McClarty J., joined.
OPINION
Tammy Marie Smith ("Mother") and David Charles Smith ("Father") were married in 1995. The parties, who have two minor children, were divorced in 2007. A final judgment was entered in August 2007 designating Father as the children's primary residential parent. Mother filed a motion to alter or amend the final judgment claiming that the facts preponderated in favor of her being designated the primary residential parent. The Trial Court denied Mother's motion to alter or amend. In February 2008, Mother filed a petition to modify claiming there had been a material change in circumstances such that it was in the children's best interest for her to be designated their primary residential parent. Following a hearing, the Trial Court found that there had been no material change in circumstances and denied the petition. Mother appeals, and we affirm.
Background
The parties' two minor children currently are 9 and 11 years old. In May 2006, Mother filed a complaint for divorce alleging that Father was guilty of inappropriate marital conduct or, in the alternative, that irreconcilable differences had arisen between the parties. Mother sought an equitable division of the marital property and alimony. Mother also sought to be designated as the primary residential parent. Although Father filed an answer and counterclaim also seeking a divorce, these documents are not in the record on appeal.
A trial was held in May 2007. Following the trial, the Trial Court awarded Mother a divorce, divided the marital property, and awarded Mother alimony. As to which party was to be designated the primary residential parent, the Trial Court's order states:
Because Father had been laid-off from his job and was unemployed at the time of trial in May 2007, Father initially was ordered to pay Mother $1.00 per month in alimony. By the time of the hearing in August 2007, Father was employed. When the final judgment was entered, Father was ordered to pay Mother $500 per month in alimony in futuro. The award of alimony is not at issue on appeal.
The Court finds neither party's [proposed] Parenting Plan is appropriate and, as a result, this cause be, and hereby is, redocketed for further hearing on the Parenting Plan on the 16th day of August, 2007. Each party shall file a Proposed Parenting Plan one (1) week prior to said hearing date.
Pending further Orders of the Court, the father shall pick up the children at the marital residence and the Protective Order previously issued shall be modified to allow the father to pick up the children. In doing so, husband shall stay in the vicinity of his vehicle and not approach the residence.
Pending a further hearing in this cause the parties shall alternate weeks from Friday at 3:00 p.m. until the following Friday at 3:00 p.m. Father's parenting time shall begin June 8, 2007. Mother shall pack the children a bag of clothes and toiletries and the same shall be returned to mother at the end of father's parenting time. (original paragraph numbering omitted)
As indicated, a hearing was scheduled for August 2007 at which point the Trial Court was to enter a permanent parenting plan. The hearing took place as scheduled and the Trial Court issued an order which designated Father as the primary residential parent and set forth Mother's co-parenting time. According to the parenting plan, Father was to have primary residential custody of the children for 244 days each year, with Mother having co-parenting time the remaining 121 days. Mother was ordered to pay child support in the amount of $119.00 per month, and Father was ordered to maintain health insurance on the children. The Order adopting the above described parenting plan was entered on September 18, 2007, nunc pro tunc to August 16, 2007.
In October 2007, Mother filed a motion to alter or amend the judgment or for a new trial. Mother claimed that the evidence at trial preponderated in favor of her being designated the children's primary residential parent. A hearing on Mother's motion to alter or amend was held in December 2007. Mother apparently sensed that her motion would not meet with success because before the Trial Court ruled on the merits of her motion to alter or amend, Mother filed a Petition for Modification in February 2008 seeking to be designated the children's primary residential parent. Three days after Mother filed her petition for modification, the Trial Court ruled on her motion to alter or amend the judgment. As relevant to this appeal, the Trial Court denied Mother's motion to alter or amend stating as follows:
The Father shall remain primary residential parent of the parties' two minor children. This holding is not based on [Mother's] disability, but is in the best interest of the children based on the evidence presented in the trial of this matter. Although both parties are actively involved in the children's day-to-day lives, the Father is in a better situation to remain as primary residential parent. . . . (footnote added)
Mother lost her eyesight and is legally blind.
Although the Trial Court did not alter Father's designation as primary residential parent, the Trial Court did clarify that the parties were to have joint decision making authority regarding the children's education, extra-curricular activities, and attendance at church. In addition, the Trial Court clarified that health insurance and dental expenses not covered by insurance would be split between the parties based on their proportional share of total income, with Mother being responsible for 16% of any outstanding medical and dental bills, and Father being responsible for the remaining 84%.
A hearing on Mother's petition for modification was held on August 21, 2008. Mother testified that she purchased a three bedroom home on December 1, 2007. Mother stated that she does not drive due to her disability, but she lives only one mile from her mother and stepfather.
The first witness was Shane Broyles, who works for the Department of Children's Services. Broyles investigated a complaint made regarding, among other things, the children's safety as it pertained to Father's use of a kerosene heater. Broyles testified that the allegations made against Father were unfounded. He also stated that, based on his conversations with the children, he felt they were perfectly safe. No issue is raised relevant to Broyles' investigation and, accordingly, we will omit any further reference to this investigation.
Mother added that her mother and stepfather are available "24/7" if needed to assist Mother with transportation. Mother testified to the various extracurricular activities that she and the children enjoy when they are with her.
Mother's stepfather, Harlan Carlson, also testified at trial and confirmed that he could and would assist Mother in taking her and the children anywhere they needed to go.
Mother explained that she had difficulty having phone contact with the children when they were with Father. At times, the children were not home when she called and at other times the phone was hung up in the middle of a conversation. Mother added that, notwithstanding the problems she had when trying to talk to the children on the telephone, she encouraged the children to call Father when the children were staying with her. Mother also claimed that she was not informed of extracurricular activities that the children were undertaking, except for "one or two" times. Mother also stated that Father did not timely give her insurance cards for the children. She claimed that Father likewise failed to keep her informed of the children's doctor appointments.
Mother admitted that she is not personally aware of any problems with Father's housing situation as it pertains to the children. Mother acknowledged that, at the time of the divorce, she was living in a house and had access to transportation. Mother testified that she was better able to care for the children and give them a stable, "every day routine." Mother stated that prior to the divorce, she was the one who got the children ready for school, took them to their activities, etc. When asked if all of the various reasons she thinks would cause her to be a better primary residential parent had been litigated before the first parenting plan was entered by the Trial Court, Mother stated that they had and acknowledged that nothing in this respect had changed.
Father also testified to the various extracurricular activities he and the children engage in when they are with him. Father lives in a three bedroom house and both children have their own bedroom. According to Father, he tried to notify Mother of upcoming events involving the children. Father denied interfering with the children's telephone conversations with Mother. According to Father, Mother chose Thursday evening as one of the days for regular telephone calls. Father added that he and the children typically do not get home until 8:30 or 9:00 in the evening on Thursdays. When they get home, the children typically would call Mother using Father's cell phone. Father added that he makes sure the children call Mother at least twice a week. Father denied calling Mother bad names or making derogatory remarks in front of the children. Father stated that he encouraged the children to have a good relationship with Mother.
Following the testimony, the Trial Court made the following observations and findings from the bench:
It's obvious I'm very familiar with this case. We have had a lengthy trial. We were back after the divorce. The divorce was on May 20th of `07. We were back here on August 16th for a hearing with regard to a parenting plan because at the time of the divorce neither party had a plan that the Court considered suitable for the children. So, we had a hearing with regard to the parenting plan. And there was an order that went down with the parenting plan on September 18th of `07. In October, there was a motion to alter or amend. And at the time of that hearing, I heard much of the same proof. I had pictures of the house introduced. Mr. Carlson also testified about driving. So, much was the same as what we heard today.
* * *
[W]ith regard to the change of custody, we had a hearing on that again on December 7th of `07. An order on that hearing went down on February 29th of `08. This petition for a change of [custody] was filed on 2-28-08, a day before this matter became final, and it alleged that things had occurred between September and February. . . . There has been no proof with regard to [un]suitable housing with any sort of substantial risk of harm to the children. There has been no proof with regard to the [alleged] medical neglect. There has been some disputed proof about the phone contact. But it appears that the children are able to talk on their regular phone.
Alienation has been a big issue. Extracurricular activities and medical appointments need to be furnished. And I understand the problem to be the parties communicating. We've had that problem for some time. . . . So, those all need to be done in writing, so that when we have a schedule for any extracurricular activities, as soon as that's available, that will be furnished in writing. And the same with regard to medical appointments, at least 48 hours in advance. As soon as the appointment is made, then you need to give notice. Now, any school or [medical] information are available under this parenting plan to be obtained directly from the school or [directly] from the health care provider.
And there is no proof of any willful failure to pay support. . . . [Mother] also raised [an issue about her] disability. And, of course, that has not changed since the other hearing, as well. And the three bedroom home, that was already taken up . . . last August. I've already said something about that. And so was the transportation.
So, the only thing that's really at issue here is the fact that these parties still can't get along. . . .
So, I'm going to dismiss the petition for a modification of the parenting plan. We simply haven't had any change of circumstances since either the divorce or the motion to alter or amend. There has been no change of circumstances that relate to the children since those times. . . .
The Trial Court then entered an order denying Mother's petition for modification. Specifically, the Trial Court found that there had been "no material change in circumstances" that would support a modification of the original custody decision.
Although Mother filed several motions after Father was designated the primary residential parent, it is worth noting that Mother never appealed the final judgment which designated Father as the primary residential parent for both children.
Mother appeals raising two issues. First, she claims that there was a material change in circumstances brought about by Father's alleged "interference with [Mother's] phone conversations with the children, [Father's] failure to inform [Mother] of the children's activities, and [Father's] derogatory remarks about [Mother] in front of the children." Mother's second issue is her claim that there was a material change in circumstances brought about by positive changes in Mother's living arrangements and her increased ability to transport the children. Father raises one issue, that being his request for an award of attorney fees incurred on appeal.
Discussion
Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
Existing custody arrangements are favored because children thrive in stable environments. Aaby v. Strange, 924 S.W.2d 623, 627 (Tenn. 1996); Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn.Ct.App. 1999). A custody decision, once made and implemented, is considered res judicata upon the facts in existence or those which were reasonably foreseeable when the decision was made. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn.Ct.App. 2001). However, our Supreme Court has held that a trial court may modify an award of child custody "when both a material change of circumstances has occurred and a change of custody is in the child's best interests." Kendrick v. Shoemake, 90 S.W.3d 566, 568 (Tenn. 2002). According to the Kendrick Court:
As explained in Blair [v. Badenhope, 77 S.W.3d 137 (Tenn. 2002)], the "threshold issue" is whether a material change in circumstances has occurred after the initial custody determination. Id. at 150. While "[t]here are no hard and fast rules for determining when a child's circumstances have changed sufficiently to warrant a change of his or her custody," the following factors have formed a sound basis for determining whether a material change in circumstances has occurred: the change "has occurred after the entry of the order sought to be modified," the change "is not one that was known or reasonably anticipated when the order was entered," and the change "is one that affects the child's well-being in a meaningful way." Id.
Kendrick, 90 S.W.3d at 570.
In addition, Tenn. Code Ann. § 36-6-101(a)(2)(B) (Supp. 2008) addresses a change in custody as follows:
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 of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.
The Kendrick Court also explained that if a material change in circumstances has been proven, "it must then be determined whether the modification is in the child's best interests . . . according to the factors enumerated in Tennessee Code Annotated section 36-6-106." Kendrick, 90 S.W.3d at 570 (footnote omitted). It necessarily follows that if no material change in circumstances has been proven, the trial court "is not required to make a best interests determination and must deny the request for a change of custody." Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn.Ct.App. 1999).
In the present case, the Trial Court specifically found that Mother's claimed improved living conditions and improved availability of transportation were not material changes in circumstances. The Trial Court reached this conclusion because these improved conditions were proven at the hearing on Mother's motion for a new trial. Therefore, there was no change between the time the judgment became final and the filing of Mother's petition for modification. Even if these could be considered "changes", we do not think they can properly be characterized as "material changes." We conclude that the facts do not preponderate against the Trial Court's findings and ultimate conclusion that Mother's claimed improved conditions do not constitute a material change in circumstances.
There certainly was conflicting evidence presented at the hearing on Mother's petition for modification. The Trial Court found that there was no proof supporting much of Mother's allegations against Father. The Trial Court further found that the problems that did exist were the result of a lack of effective communication between the parties, and that both parties were responsible for this problem. With regard to the problems allegedly encountered by Mother, the Trial Court either credited Father's testimony over Mother's, or found both parties to be equally at fault. This finding necessarily involved a credibility determination. In Wells v. Tennessee Bd. of Regents, our Supreme Court observed:
Unlike appellate courts, trial courts are able to observe witnesses as they testify and to assess their demeanor, which best situates trial judges to evaluate witness credibility. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.Ct.App. 1991). Thus, trial courts are in the most favorable position to resolve factual disputes hinging on credibility determinations. See Tenn-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn.Ct.App. 1998). Accordingly, appellate courts will not re-evaluate a trial judge's assessment of witness credibility absent clear and convincing evidence to the contrary. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987); Bingham v. Dyersburg Fabrics Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978).
Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
In light of the foregoing, we conclude that the facts do not preponderate against the Trial Court's findings and ultimate conclusion that Mother failed to prove the existence of a material change of circumstances. Because Mother failed to meet her burden of proof, neither the Trial Court nor this Court is required to undertake a best interest analysis. See Caudill, 21 S.W.3d at 213.
Father raises one issue, that being a request for attorney fees incurred on appeal pursuant to Tenn. Code Ann. § 36-5-103(c). An award of attorney fees pursuant to this statute can be made "in the discretion of [the] court." Tenn. Code Ann. § 36-5-103(c) (2005). Exercising that discretion, we decline to award Father any attorney fees.
Conclusion
The judgment of the Trial Court is affirmed and this cause is remanded to the Trial Court solely for collection of the costs below. Costs on appeal are taxed to the Appellant, Tammy Marie Smith, and her surety, for which execution may issue, if necessary.