In Re Makinna B. ( 2019 )

06/05/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 8, 2019 Session
IN RE MAKINNA B.
Appeal from the Juvenile Court for Montgomery County
No. MC-JV-PL-CV-14-2179 Kenneth R. Goble, Judge
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No. M2018-00979-COA-R3-JV
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This appeal involves a father’s petition to modify an existing parenting plan to change the
designation of primary residential parent from the mother to the father. After a hearing,
the trial court agreed with the parties’ stipulation that a material change in circumstances
had occurred since the entry of the previous parenting plan due to various difficulties
experienced by the parties and their lack of cooperation. The trial court concluded that it
was in the best interest of the child to designate the father as primary residential parent.
The trial court entered a modified parenting plan and child support worksheets. The
mother appeals. We vacate and remand for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated and
Remanded
CARMA D. MCGEE, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and KENNY W. ARMSTRONG, J., joined.
Elizabeth A. Fendley, Clarksville, Tennessee, for the appellant, Sarah B. (now Sarah W.).
H. Reid Poland, III, Clarksville, Tennessee, for the appellee, Aaron S.
OPINION
I. FACTS & PROCEDURAL HISTORY
Makinna B.1 was born to unmarried parents in April 2014. Shortly thereafter,
Aaron S. (“Father”) filed a petition to confirm parentage and establish a permanent
1
It is the policy of this Court to use only the first name and last initial (and, in some cases, just
the initials) of the parties involved in juvenile court actions to protect the privacy of the children. In re
Jaiden C.W., 420 S.W.3d 13, 15 n.1 (Tenn. Ct. App. 2013).
parenting plan. The child’s mother, Sarah B. (“Mother”), agreed that Father is the child’s
father. Father initially sought equal parenting time, but before the issue of parenting time
was resolved, Father moved from Tennessee to St. Paul, Minnesota, to live with his father
and further his education. In March 2016, the trial court entered an agreed order naming
Mother primary residential parent and granting Father 74 days of parenting time per year.
Nine months later, in December 2016, Father filed a petition to modify the
parenting plan, alleging that a material change in circumstances had occurred due to
Mother being unnecessarily difficult and antagonistic. Father claimed that Mother was
impeding the bond between him and Makinna, and he asked the court to designate him as
primary residential parent.
Father and Mother attended mediation and agreed that a material change in
circumstances had occurred requiring modification of the existing parenting plan. They
could not agree as to which parent should be designated the primary residential parent,
but they did agree on the parenting schedule that they would follow once the trial court
designated the primary residential parent. They also agreed on the figures to be used for
each parent’s income in the child support calculation.
The trial court held a hearing on December 14, 2017, to consider the disputed
issue of which parent should be named the primary residential parent. By that time,
Makinna was three years old. Mother was married and had another daughter, and she was
pregnant with a third child. Father was living with his fiancée in Minnesota. The trial
court heard testimony from Father, Mother, Mother’s husband, the child’s maternal
grandmother, and the child’s paternal grandmother. The trial court also received exhibits
consisting of text messages between Mother and Father, and the court viewed a video of
an incident that occurred at a custody exchange of the child.
At the conclusion of the testimony, the trial judge announced his oral ruling in
favor of Father. The trial court entered its written order in April 2018. The trial court
concluded that it was in the best interest of Makinna to reside primarily with Father in
Minnesota, with Mother having parenting time according to the schedule crafted by the
parties at mediation. The written order referenced an attached parenting plan, but it was
inadvertently omitted when the order was filed.
On May 1, 2018, the trial court entered an amended order noting that its prior
order failed to include the necessary parenting plan and child support worksheet. The
amended order had a parenting plan and child support worksheet attached. The parenting
plan stated that Mother’s child support obligation from January to March 2018 (the three-
month period following the December 2017 hearing) was $248 per month. However, the
parenting plan stated that Mother’s child support obligation had increased to $403 per
month beginning April 1, 2018. It explained, “The daycare expense is a recent
development[.]” The attached child support worksheet included an expense of $1,009 per
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month for Father for work-related childcare, which led to the increase in Mother’s child
support obligation. Mother timely filed a notice of appeal.
II. ISSUES PRESENTED
Mother presents the following issues, which we have slightly reworded, for review
on appeal:
1. Whether the order of the trial court should be vacated for failure to make sufficient
findings of fact and conclusions of law;
2. Whether the trial court provided only a pretextual consideration of the best interest
factors when designating Father as primary residential parent; and
3. Whether the trial court erred in setting Mother’s child support obligation at $403
per month.
For the following reasons, the decision of the juvenile court is vacated and remanded for
further proceedings.2
III. DISCUSSION
A. Primary Residential Parent Designation
When considering a petition to modify a permanent parenting plan, we must first
determine if a material change in circumstances has occurred since the entry of the
existing plan, and if it has, we then apply the “best interest” factors of Tennessee Code
Annotated section 36-6-106(a). C.W.H. v. L.A.S., 538 S.W.3d 488, 496 (Tenn. 2017)
(citing Armbrister v. Armbrister, 414 S.W.3d 685, 697 (Tenn. 2013)). “Because
decisions regarding parenting arrangements are factually driven and require careful
consideration of numerous factors, trial judges, who have the opportunity to observe the
witnesses and make credibility determinations, are better positioned to evaluate the facts
than appellate judges.” Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing
Armbrister, 414 S.W.3d at 693). The Tennessee Supreme Court has repeatedly
emphasized “the limited scope of review to be employed by an appellate court in
2
In the conclusion section of Father’s brief, he requests that “appellate attorney fees incurred by
[Father] be paid by [Mother].” However, Father did not list this as an issue in his brief or develop any
argument with respect to this issue. As a result, we deem the issue waived. “[W]here a party fails to
develop an argument in support of his or her contention or merely constructs a skeletal argument, the
issue is waived.” Sneed v. Bd. of Prof’l Responsibility of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010).
“By the same token, an issue may be deemed waived when it is argued in the brief but is not designated as
an issue in accordance with Tenn. R. App. P. 27(a)(4).” Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn.
2012); see, e.g., Rigsby v. Rigsby, No. E2014-02095-COA-R3-CV, 2015 WL 7575075, at *7 (Tenn. Ct.
App. Nov. 25, 2015) (“Because Mother did not raise the issue of attorney’s fees on appeal in her
statement of the issues, we determine this issue to be waived.”).
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reviewing a trial court’s factual determinations in matters involving child custody and
parenting plan developments.” C.W.H., 538 S.W.3d at 495. According to the court, “‘[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.’” Id. (quoting Armbrister, 414 S.W.3d at 692). Therefore, on appeal, we
presume that the trial court’s factual findings on these issues are correct, and we will not
overturn them unless the evidence preponderates against them. Id. The findings of fact
and analyses of the trial court “should be afforded great deference.” Id. at 500.
We review the trial court’s designation of primary residential parent for an abuse
of discretion. See C.W.H., 538 S.W.3d at 498-99; Kelly, 445 S.W.3d at 696; Maupin v.
Maupin, 420 S.W.3d 761, 770 (Tenn. Ct. App. 2013) (“[T]he ultimate question as to who
should be the primary residential parent on appeal is whether the trial court abused its
discretion in its selection[.]”). A trial court abuses its discretion when its ruling “‘falls
outside the spectrum of rulings that might reasonably result from an application of the
correct legal standards to the evidence found in the record.’” Armbrister, 414 S.W.3d at
693 (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001)).
Here, the parties agree that a material change in circumstances has occurred.
Because neither party appealed the trial court’s ruling as to that threshold issue, we need
not consider it on appeal. See C.W.H., 538 S.W.3d at 497. The remaining issue is
“whether the existing parenting plan is no longer in the best interest of the child[.]” Id.
The factors relevant to the best interest analysis are set forth in Tennessee Code
Annotated section 36-6-106(a). They include:
(1) The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
(2) 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;
(3) Refusal to attend a court ordered parent education seminar may be
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considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent and
the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. . . . ;
(9) The child’s interaction and interrelationships with siblings, other
relatives and step-relatives, and mentors, as well as the child’s involvement
with the child’s physical surroundings, school, or other significant
activities;
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other
parent or to any other person. . . . ;
(12) The character and behavior of any other person who resides in or
frequents the home of a parent and such person’s interactions with the
child;
(13) The reasonable preference of the child if twelve (12) years of age or
older. The court may hear the preference of a younger child upon request.
...;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-106(a). “Although there is no statutory requirement that the
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court list every applicable factor along with its conclusion as to how that particular factor
impacted the overall custody determination, the statute, nevertheless, requires the trial
court to consider all the applicable factors.” Pandey v. Shrivastava, No. W2012-00059-
COA-R3-CV, 2013 WL 657799, at *4 (Tenn. Ct. App. Feb. 22, 2013) (quotation
omitted).
Tennessee Rule of Civil Procedure 52.01 provides that a trial court “shall find the
facts specially and shall state separately its conclusions of law and direct the entry of the
appropriate judgment.” This Court has repeatedly emphasized that “a trial court should
be as detailed as possible when rendering a decision in a custody case.” In re D.A.J., No.
M2004-02421-COA-R3-JV, 2005 WL 3369189, at *7 (Tenn. Ct. App. Dec. 9, 2005).
Factual findings are “particularly important” in custody cases, “as these determinations
‘often hinge on subtle factors, including the parents’ demeanor and credibility during
[the] proceedings.’” In re Connor S.L., No. W2012-00587-COA-R3-JV, 2012 WL
5462839, at *4 (Tenn. Ct. App. Nov.8, 2012) (quoting Hyde v. Amanda Bradley, No.
M2009-02117-COA-R3-JV, 2010 WL 4024905, at *3 (Tenn. Ct. App. Oct. 12, 2010)).
Unfortunately, in this case, our ability to review the trial court’s best interest
analysis is hampered by the lack of factual findings in the court’s written order. The
order states that the trial court “considered and weigh[ed] all the factors in T.C.A. [§] 36-
6-106 in making its decision[,] including the fact that [Mother] has been the primary care
giver for the majority of the child’s life[.]” Thus, the order indicates that the trial court
considered (but did not give much weight to) the fifth best interest factor: “[t]he degree to
which a parent has been the primary caregiver[.]” Tenn. Code Ann. § 36-6-106(a)(5).
Aside from this reference, however, the trial court did not mention or analyze any
other statutory factor in its best interest analysis. We do not know which best interest
factors the trial court found applicable or inapplicable or what its conclusions were with
respect to those factors. Instead of analyzing the statutory best interest factors, the trial
court simply found that “the parties do not get along,” and it described Mother’s lack of
cooperation with Father as “striking” and “disturb[ing].” It also found that Father was
more credible in his testimony than Mother. The trial court described a few specific
incidents in which Mother had failed to cooperate with Father, including occasions when
she did not facilitate a telephone call with Makinna on Father’s Day and refused to
provide Father with information about Makinna’s school and medical care. These
examples could arguably be relevant to factor (2), and particularly, “the willingness and
ability of each of the parents [] 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.” Tenn. Code Ann. § 36-6-106(a)(2). However, the trial court
did not mention this factor, nor did it include factual findings regarding any other best
interest factor before concluding that it was in the best interest of Makinna to live
primarily with Father in Minnesota.
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The trial court did make findings regarding the video it viewed. The trial court’s
order states that “the Court viewed a video of an exchange of the minor child by the
paternal grandmother and [Mother] and her husband in reaching its decision[.]” The order
states, “[I]t is extraordinary to the Court the language used by [Mother] and step-father in
front of the minor child.” The court noted that both Mother and her husband testified that
they had not spoken derogatorily about Father in the presence of the minor child, and as a
result, the court found their testimony “not credible.” From our review of the record,
however, the referenced video was never admitted into evidence at the hearing. The
transcript simply reflects that the trial judge viewed a video clip while it was playing on
someone’s cellular phone. The video does not appear in the appellate record as an exhibit,
and it was not transcribed in the transcript. As such, we are unable to review the video or
the trial court’s factual findings with respect to it.
“Although trial courts have broad discretion in fashioning a parenting
arrangement, the decision ‘must be based on the proof at trial and the applicable
principles of law.’” Pandey, 2013 WL 657799, at *6 (quoting Morris v. Morris, No.
W2010-00293-COA-R3-CV, 2011 WL 398044, at *8 (Tenn. Ct. App. Feb. 8, 2011)). A
child custody determination “is a very fact specific inquiry . . . within the purview of the
trial court, not the appellate court.” Kathryne B.F. v. Michael B., No. W2013-01757-
COA-R3-CV, 2014 WL 992110, at *7 (Tenn. Ct. App. Mar. 13, 2014). Our role on
appeal is to review the specific findings of the trial court against the evidence in the
record. Id. We are generally reluctant to second-guess a trial court’s decision on
parenting issues, but without sufficient factual findings, we are unable to afford it
appropriate deference. See Pandey, 2013 WL 657799, at *4.
Because of the lack of findings regarding the best interest of the child, we must
vacate the order of the trial court and remand the case for the trial court to make
additional findings of fact in compliance with Tennessee Rule of Civil Procedure 52.01.
In doing so, we recognize that
“[E]vents and lives have not stood still while this custody dispute has been
in the courts.” Maxwell v. Woodward, No. M2011-02482-COA-R3-CV,
2013 WL 2420500, at *22 (Tenn. Ct. App. May 31, 2013) (quoting Gorski
v. Ragains, No. 01A01-9710-GS-00597, 1999 WL 511451, at *4 (Tenn. Ct.
App. July 21, 1999)). The trial court should remain mindful of this fact.
As we have previously explained, “when a trial court is directed to
reconsider an issue on remand that involves the circumstances of children
and their parents, ‘the trial court should endeavor to ascertain and give
effect to the parties’ actual circumstances[.]’” Kathryne B.F.[,] 2014 WL
992110, at *7 [] (quoting In re C.W., 420 S.W.3d 13, 22 (Tenn. Ct. App.
2013)). In this case, the trial court’s best interests determination should
consider the circumstances of the parties and minor child as they exist as of
the date of the hearing on remand.
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Stricklin v. Stricklin, 490 S.W.3d 8, 19 (Tenn. Ct. App. 2015).
B. Child Support
The final issue we address involves the amount of child support awarded by the
trial court pursuant to its amended order. Again, the amended order provided that
Mother’s child support obligation increased effective April 1, 2018, to $403 per month.
Mother argues that the trial court erred in calculating child support based on Father
having a work-related childcare expense of $1,009 per month when no evidence was
presented at the hearing of such an expense. For his part, Father admits that no such
evidence was presented at the hearing. His brief states that “he had no daycare expense”
at the time of the hearing because he had not yet been named primary residential parent.
Father testified at the hearing that when he needed childcare, Makinna stayed with his
fiancée or his grandparents. According to Father’s brief, “Father obtained daycare upon
returning home and instructed his attorney the monthly cost, and that was included in the
child support calculation.” Father suggests that this course of action was appropriate.
We cannot agree.
Work-related childcare costs are “expenses for the care of the child for whom
support is being determined which are due to employment of either parent or non-parent
caretaker.” Tenn. Comp. R. & Regs. 1240-02-04-.02(29)(a). Additional expenses for
work-related childcare are to be included in the calculations to determine child support.
Tenn. Comp. R. & Regs. 1240-02-04-.04(8)(a)(1). According to the Tennessee Child
Support Guidelines:
Childcare expenses necessary for either parent’s employment, education, or
vocational training that are determined by the tribunal to be appropriate,
and that are appropriate to the parents’ financial abilities and to the lifestyle
of the child if the parents and child were living together, shall be averaged
for a monthly amount and entered on the Worksheet in the column of the
parent initially paying the expense.
Tenn. Comp. R. & Regs. 1240-02-04-.04(8)(c)(1) (emphasis added).
The trial court’s calculation of work-related childcare expenses must be supported
by evidence in the record. See, e.g., In re Briley R., No. M2016-01968-COA-R3-JV,
2017 WL 5054304, at *6 (Tenn. Ct. App. Oct. 31, 2017) (remanding the issue of child
support where the juvenile court included childcare expenses of $765 per month in its
calculation but our independent review of the record shed no light on how the court
arrived at this amount). Here, the evidentiary record contains no evidence regarding
Father’s work-related childcare expenses because Father simply told his attorney the
monthly cost after the hearing, and that amount was then included in the child support
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calculation in the amended order.
This Court considered a similar situation in Sample v. Sample, No. M2017-02409-
COA-R3-CV, 2018 WL 4203545 (Tenn. Ct. App. Sept. 4, 2018). In that case, the trial
court included $975 per month in childcare expenses in its child support calculation. Id.
at *6. The wife’s attorney had sent a letter to the trial court with attached invoices
denoting daycare expenses. Id. According to the wife, the parties also met in a chambers
conference and agreed to exchange childcare costs, and the relevant invoices were
presented to opposing counsel and the trial judge. Id. We found this procedure
insufficient. We explained, “Although the costs and details of childcare expenses may
have been presented to Husband and discussed in a chambers conference, that does not
cure the fact that such information, as noted by Husband in his brief, cannot be found in
the record.” Id. As such, we vacated the child support award and remanded for further
proceedings on the issue, noting that the trial court could re-open the proof in order to
assist it in making its determination. Id.
Because we have vacated the trial court’s custody order, and no proof was
presented to the trial court to support the inclusion of work-related childcare expenses in
the child support calculation, we vacate the child support award and remand for further
proceedings on the issue. As in Sample, the trial court may re-open the proof in its
discretion. See id. Pending a hearing on remand, the parties must continue to abide by
the parenting plan attached to the amended final order of May 1, 2018.
IV. CONCLUSION
For the aforementioned reasons, the decision of the juvenile court is vacated and
remanded for further proceedings. Costs of this appeal are taxed equally to the appellant,
Sarah B., and to the appellee, Aaron S., for which execution may issue if necessary.
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CARMA D. MCGEE, JUDGE
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