Robert Henry Robinson, Jr. v. Ann Prevatt Robinson Irons ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 22, 2010 Session
ROBERT HENRY ROBINSON, JR. v.
ANN PREVATT ROBINSON IRONS
Appeal from the Circuit Court for Monroe County
No. 10916 J. Michael Sharp, Judge
No. E2010-00249-COA-R3-CV - FILED OCTOBER 7, 2010
Robert Henry Robinson, Jr. (“Father”) and Ann Prevatt Robinson Irons (“Mother”) were
divorced in 1998. The parties have two minor children. Although they initially had equal
co-parenting time, in March of 1999 Mother was designated as the primary residential parent
with Father having weekend co-parenting time. In October of 2007, Father was designated
as the primary residential parent due to a threat posed by Mother’s husband, John Irons, a
suspected arsonist. The Trial Court held that this threat constituted a material change in
circumstances and that it was in the children’s best interest for Father to be primary
residential parent. In January of 2010, pursuant to a petition to modify filed by Mother, the
Trial Court determined that this threat no longer existed and the absence of the threat
constituted a material change in circumstances. The Trial Court then designated Mother as
the primary residential parent. Father appeals claiming there was no material change in
circumstances. We affirm the Trial Court’s finding that there was a material change in
circumstances. Because the Trial Court never made a finding as to what was in the children’s
best interest, we remand this case to the Trial Court for such a determination.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part and Vacated in Part; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.
D. Mitchell Bryant, Athens, Tennessee, for the Appellant, Robert Henry Robinson, Jr.
Shari Tayloe Young, Cleveland, Tennessee, for the Appellee, Ann Prevatt Robinson Irons.
OPINION
Background
Father filed for divorce from Mother in January 1998. The parties have two
children, a son who will be eighteen years old in November of 2010, and a daughter who
currently is fifteen years old. The parties entered into a marital dissolution agreement which
provided that they would have joint and equal custody of the minor children. In May of
1998, the Trial Court approved the marital dissolution agreement, and the parties were
divorced. An order entered in April of 1999 continued the joint custody arrangement, but set
Father’s co-parenting time from Thursday at 8:00 a.m. until Sunday at 1:00 p.m. Further
changes to Father’s co-parenting time occurred in June 1999 after Father moved to Maryland
to pursue better employment opportunities. When Father moved, Mother was designated as
the primary residential parent with Father’s co-parenting time being every other weekend.
Father also was granted co-parenting time for four weeks over the summer break and one
week over the Christmas break.
The parties’ post-divorce relationship has been contentious, and they have filed
numerous petitions seeking to modify custody and petitions for contempt over the years. For
the sake of brevity, we will discuss only those petitions relevant to this appeal.
On September 26, 2007, Father filed an “Emergency Petition for Modification”
seeking primary custody of the two children. According to Father’s petition:
[Mother] is married to John Wesley Irons. There have
been problems apparently between Mr. Irons and Ms. Irons over
the years.
Your Petitioner has learned John Wesley Irons has now
been indicted for numerous counts of arson in the Federal
District Court for the Eastern District of Tennessee at Knoxville
in a case styled United States of America v. John Wesley Irons
# 3:07-cr-95. According to newspaper accounts of Mr. Irons’
arrest, Ms. Irons was also involved in said arsons, over the
years, at least to the extent she dropped Mr. Irons off at various
locations in the Cherokee National Forest and later picked him
up after he had set these fires.
The actions of Ms. Irons, given her history in this case,
show she is not a suitable person to continue as primary
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residential custodian of the parties’ two (2) minor children, and
as such, your Petitioner would request this court modify its
previous orders and name him primary residential custodian of
both minor children.
Mother opposed Father’s petition, and a hearing was conducted in October
2007. Following that hearing, the Trial Court granted the petition and designated Father as
the primary residential parent. According to the Trial Court:
The Court, having reviewed the file and further having
heard the sworn testimony of the parties in open Court finds the
mother in this cause . . . has shown very poor judgment
throughout this case, and the Court had previously expressed
concerns regarding her ability to remain as primary residential
parent for the minor children.
The Court further finds a dangerous situation has been
created by the actions of [Mother] and her relationship with her
present husband who is currently in custody pursuant to a
Federal Indictment.
The Court further finds though the children would
express a preference to remain with the mother, this only further
shows they do not recognize the magnitude of potential danger
and harm in this case. And the Court finds the safety of the
children being paramount that a change of primary residential
custodian is necessary . . . .
The children were ages twelve and fourteen when the order was entered on November 2,
2007, changing primary residential custody to Father.
Approximately three months after the above order was entered, Mother filed
a petition seeking to change custody. Mother claimed that at times the children were being
left without adult supervision, the children’s grades were rapidly declining, Father’s current
wife was a Wiccan, the children witnessed Father’s seventeen year-old step-daughter come
home drunk, and Father was encouraging the parties’ son to make smoke bombs.
Following a hearing on Mother’s petition, the Trial Court entered an order on
March 31, 2008, stating as follows:
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[Mother] must show a material change in circumstance between
the date of the hearing and the filing of her petition such as
would necessitate a change of primary residential parent.
The Court has reviewed the allegations . . . and finds that
there is no creditable proof regarding any Wiccan practices
taking place in the Robinson home. The Court further finds that
no harm was occasioned by the making or setting off of any
smoke bombs, but does find that if said smoke bombs are made
or set off in the future that that should be done under direct adult
supervision.
The Court further finds that both children are very
intelligent, and there is no real reason for the parties’ son not to
be making good grades. The Court finds that no actions or
conduct on the Father’s part have caused the son’s grades to
drop, and that the Father has addressed the situation
appropriately. . . .
The Trial Court went on to state that both Father and his wife have addressed
situations involving the children and the wife’s daughter appropriately. Even though the
children again expressed a preference to live with Mother, the Trial Court found that Mother
had failed to prove the existence of a material change in circumstances.
On October 26, 2009, Mother filed another petition for modification. In this
petition, Mother alleged, among other things, that:
[Petitioner’s] estranged Husband, John Irons was arrested
for 14 counts of arson on federal property. Petitioner cooperated
with Federal authorities as they made their case against John
Irons. John Irons was denied bail and has been incarcerated
since his arrest in 2007. The trial for John Irons had been
postponed several times, but is currently set for trial on
November 9, 2009 1 . . . .
Petitioner filed for divorce from John Irons in November
2008, which is currently before this Court. Petitioner and John
1
The parties indicated at oral argument that the criminal trial of John Irons was continued from the
November 9, 2009, trial date as well.
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Irons announced to the Court on March 2, 2009, that the parties
had agreed to terms to resolve the divorce and that [the] parties’
attorneys would draft the appropriate documents to present to
the Court. Those documents were drafted with Petitioners’
signature, but due to John Irons’ issues with his criminal
attorney, they have not been executed by John Irons at this
time. . . .
Petitioner’s estranged husband, John Irons, remains in
federal custody and is not a threat to Petitioner or her
children. . . . [T]he minor children spent the entire summer with
Petitioner in Tennessee, and experienced no danger from John
Irons.
A hearing was conducted on Mother’s petition for modification. At the
hearing, both parties and the children testified. The pertinent testimony at the hearing, as set
forth in a Tenn. R. App. P. 24(c) statement of the evidence, was as follows 2 :
[Father] testified at the December 1, 2009 hearing in the
above-styled matter. . . . [Father] testified the children were
doing well in his home academically. The son . . . was involved
in band, and his daughter had several friends, with whom she
was involved. Father took the daughter to school early each
morning, so she could meet with and spend time with her
friends. Father testified that both children were loved and cared
for in his home. He further testified that he was concerned
about the situation involving Mr. John Irons, although he was
still in custody. [Mother] had presented documents where Mr.
Irons’ sanity had been questioned by his criminal counsel. . . .
Mother testified she was not having any contact with Mr.
John Irons. She admitted the parties were not yet divorced, but
she had been trying to obtain a divorce from Mr. Irons.
[Mother] had apparently filed for divorce from Mr. Irons, and
2
We have been provided a Tenn. R. App. P. 24(c) statement of the evidence in lieu of a transcript
from the hearing. The statement of the evidence was approved by the Trial Court. Although both parties
attached a transcript of the hearing to their briefs, the transcript cannot be considered on appeal because it
is not part of the record.
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had obtained some type of temporary support, which she was
unable to enforce because of his continued incarceration.
There has previously been some written communication
from [Mother] to Mr. Irons and vice versa, but that had ceased.
[Mother] testified Mr. Irons posed no danger to the children as
he was incarcerated, and both children had expressed a strong
desire to return to the Tellico Plans area. . . .3
Both children testified in chambers and “expressed a strong preference to return to Tennessee
and live with Mother.”
Following the hearing, an Order was entered in January 2010 resolving
Mother’s petition for modification of custody. After discussing various financial issues
which are not pertinent to this appeal, the Trial Court stated:
In regards to [Mother’s] Petition for Modification, the
Court finds that a material change in circumstance has occurred
in that the dangerous situation which existed in October 2007
when the Court changed custody from [Father] to [Mother] no
longer exists.
In regards to [Mother’s] Petition for Modification, the
children, ages 17 and 14, have expressed their desire to the
Court to return to the custody of their Mother. . . .
Father appeals raising one issue: “Was there a Material Change in
Circumstance such as would justify the Court changing custody of the parties’ two minor
children?”
Discussion
Father claims that the Trial Court erred when it found there had been a material
change in circumstances. Existing custody arrangements are favored since 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
3
We have omitted testimony pertaining solely to the contempt issues surrounding financial matters
which are not at issue on appeal.
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reasonably foreseeable when the initial decision was made. Steen v. Steen, 61 S.W.3d 324,
327 (Tenn. Ct. App. 2001). Our Supreme Court, however, 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.” See 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.
(citations omitted).
Kendrick, 90 S.W.3d at 570. See also Tenn Code Ann. § 36-6-101(a)(2)(B)(“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 circumstances.
A material change of circumstances does not require a showing of a substantial risk of harm
to the child.…”).
The Kendrick Court went on to explain that if a material change in
circumstances has been proven, “it must then be determined whether the modification is in
the child’s best interests . . . according to the factors enumerated in Tennessee Code
Annotated section 36-6-106.” Kendrick, 90 S.W.3d at 570. 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).
If a material change in circumstances has been proven, undertaking a best
interests analysis applying Tenn. Code Ann. § 36-6-106(a) requires a trial court to consider
the following:
(1) The love, affection and emotional ties existing
between the parents or caregivers and child;
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(2) The disposition of the parents or caregiver 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 . . . ;
(4) The stability of the family unit of the parents or
caregivers;
(5) The mental and physical health of the parents or
caregivers;
(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 upon request. The preferences of older children should
normally be given greater weight than those of younger children;
(8) Evidence of physical or emotional abuse to the child,
to the other parent or to any other person . . . ;
(9) The character and behavior of any other person who
resides in or frequents the home of a parent or caregiver and
such person’s interactions with the child; and
(10) Each parent 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.
Tenn. Code Ann. § 36-6-106(a) (Supp. 2009).
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Although we have been provided little factual information, the information that
has been provided enables us to conclude that the evidence in the record before us does not
preponderate against the Trial Court’s finding that there has been a material change in
circumstances. Mother testified to the steps she had taken to eradicate Mr. Irons from her
and the children’s lives. The evidence contained in the record does not preponderate against
the Trial Court’s finding that the threat once posed by the presence of Mr. Irons has been
eliminated by Mother and the federal criminal prosecution of Mr. Irons.
If Mr. Irons’ presence or potential for being present was such that it presented
a threat to the children which constituted a material change in circumstances in November
2007, it necessarily follows that the removal of that threat also constitutes a material change
in circumstances. Accordingly, we conclude that the evidence does not preponderate against
the Trial Court’s finding that Mother had proven a material change in circumstances.
As set forth previously, if a trial court concludes that there has been a material
change in circumstances, the next required step is to ascertain whether a change in custody
is in the child’s best interest according to the factors set forth in Tenn. Code Ann. § 36-6-
106(a). Kendrick, 90 S.W.3d at 570. In the present case, the Trial Court never made this
determination. The order changing custody from Father to Mother never mentions the best
interest of the children or which of the factors in Tenn. Code Ann. § 36-6-106(a) are
applicable and impacted the decision.
Because of the dearth of evidence in the record on appeal, we cannot make this
determination and we do not believe it is appropriate to assume the Trial Court made such
a determination. Therefore, we vacate the Trial Court’s judgment transferring primary
residential custody to Mother and remand this case to the Trial Court to make an express
finding as to the children’s best interest consistent with the factors set forth in Tenn. Code
Ann. § 36-6-106(a).4 In the meantime, the children are to remain where they are at the
present time pending the Trial Court’s determination as to what is in their best interest.
4
We realize that the parties’ son will turn eighteen on November 29, 2010, and that these proceedings
as to custody will become moot as far as the parties’ son is concerned.
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Conclusion
The judgment of the Trial Court is affirmed in part and vacated in part and this
cause is remanded to the Circuit Court for Monroe County for further proceedings consistent
with this Opinion and for collection of the costs below. Costs on appeal are taxed one-half
to the Appellant, Robert Henry Robinson, Jr., and his surety, and one-half to the Appellee,
Ann Prevatt Robinson Irons, for which execution may issue, if necessary.
________________________________
D. MICHAEL SWINEY, JUDGE
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