Jacob Daniel Drucker v. Colleen Erin Daley ( 2020 )

11/25/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 8, 2020 Session
JACOB DANIEL DRUCKER V. COLLEEN ERIN DALEY
Appeal from the Juvenile Court for Rutherford County
No. 6737C Adam Dodd, Judge
No. M2019-01264-COA-R3-JV
Mother challenges the trial court’s granting of father’s petition to modify the residential
parenting schedule to give him equal residential parenting time. She argues that the father
failed to establish a material change in circumstances affecting the child’s well-being in a
meaningful way. We have determined that the evidence does not preponderate against the
trial court’s findings that there was a material change of circumstances under Tenn. Code
Ann. § 36-6-101(a)(2)(C) and that modification of the parenting schedule was in the best
interest of the child.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
ANDY D. BENNETT, J.,1 delivered the opinion of the Court, in which W. NEAL MCBRAYER,
J., joined. RICHARD H. DINKINS, J., not participating.
Stephen Walker Pate, Murfreesboro, Tennessee, for the appellant, Colleen Erin Daley.
Edward Evan Cope, Murfreesboro, Tennessee, for the appellee, Jacob Daniel Drucker.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Jacob Daniel Drucker (“Father”) and Colleen Eric Daley (“Mother”) are the parents
of a daughter, Danica, born in March 2008. In April 2009, the trial court entered an agreed
order incorporating an agreed permanent parenting plan pursuant to which Mother was
named the primary residential parent of the child.
1
This case was assigned to the authoring judge on September 15, 2020.
In March 2018, Father filed a petition for modification of custody alleging that a
substantial and material change of circumstances had occurred since the entry of the agreed
order and that these changed circumstances justified modification of the order. Father
asserted that, at the time of the agreed order, Mother lived in a county that was
approximately a three-hour drive from him, but she had subsequently moved back to
Rutherford County and currently lived less than a mile from his home. Father’s petition
included allegations regarding the child’s Instagram account and his concerns about
Mother’s exploitation of the child through social media as well as allegations questioning
Mother’s judgment and fitness as a parent.
After answering Father’s petition, Mother filed a counter-petition for modification
of the permanent parenting plan to change the provision ordering joint decision-making.
Mother alleged that there had been a material change of circumstances because of the
inability of Mother and Father to agree in making decisions. The case was tried on
February 4, 2019.
Father lives in Rutherford County with his wife and four-year-old son. Their house
is approximately 500 yards from Mother’s house. Father is employed as a project manager
in the IT department at HCA and earns $84,000 a year. He described a flexible work
schedule under which he can work at home several days a week and adjust his appointments
and meetings to make sure Danica gets to school.
When the agreed parenting plan was entered in 2009, Mother lived in Selmer,
Tennessee, about 200 miles from Rutherford County. At that time, Danica was thirteen
months old. According to Father, he did not realize when he entered into the agreed order
that Mother would return to Rutherford County. He felt that the child’s needs had changed
from the age of fourteen months to age ten.
As to the reasons why he did not file a petition when Mother first moved back to
Rutherford County in 2010, Father expressed regret that he did not file sooner. He
eventually filed his petition because he “had concerns over some decision-making that had
happened, that was going on, that scared me for my daughter’s wellbeing.” Father testified
that Mother set up an Instagram account using Danica’s name and images “and was
commenting in the first person as if [Mother] was [Danica] and had amassed close to
10,000 followers who are now allowed to view, save, and distribute any images posted at
free will.” Father found a follower on the Instagram page whose profile included
pornographic content and alerted Mother, who blocked the follower. Father asked Mother
to take down the Instagram account and did not think she was honest with him about her
actions in response to his request.
At trial, Father proposed a parenting plan naming him the primary residential
parent with each parent having equal parenting time. Under Father’s proposed plan, the
child would spend alternating weeks with Mother and Father. Danica has her own room
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and clothes at Father’s house and “doesn’t need to pack a bag when she goes house to
house [except the] occasional[ ] dance bag because there are costumes and outfits that she
has more of at her mother’s house.” Father testified that, “as a daughter gets older, she
needs to understand what a good man is, how a father loves a child, how a father loves a
daughter, how a man treats his wife.”
Father also requested a change from joint decision-making. He wanted to have sole
decision-making authority with respect to educational decisions and the child’s religious
upbringing, with all other decisions remaining joint. Father explained that he and Mother
disagreed about whether Danica should remain in elementary school for the sixth grade or
transition to middle school for the sixth grade. Father was in favor of moving the child,
who is an excellent student, to the middle school to allow her to pursue a more advanced
curriculum. As to the issue of religious upbringing, Father and his wife attended church
regularly and wanted to “be able to continue to bring [Danica] to church with us.” Father
also expressed concern about the amount of time the child spent at dance practice and
competitions and the effect of that time commitment on her ability to spend time with
family and do her homework as she advanced in school.
Father described the warm relationship he shared with Danica and acknowledged
that Mother generally promoted a good relationship between him and the child. He further
acknowledged the importance of encouraging a good relationship between Danica and
Mother. Father then expressed some concerns about the stability of Mother’s household—
namely, that she had five children with three different fathers, none of whom resided in her
house, and that she had moved five times in the past ten years.
Father stated that the current plan, which gave him 99 days a year, did not allow
him the “role that I would like to play in my daughter’s life.” He commended Mother for
her parenting of the child, and testified that he wanted to have a “bigger role in the day-to-
day life of [the child], drop her off at school, pick her up, day to day help her out with
homework.” On cross-examination, Father acknowledged that, to date, Mother had
performed the majority of the daily parenting responsibilities. There was no dispute that
Danica was a happy child.
Mother has five children; at the time of the hearing, they were ages 14, 10 (Danica),
8 (twins), and 5. She worked as a receptionist and account clerk at City Auto in
Murfreesboro and earned $14.00 an hour. The house where she and her children live is
owned by Mother’s parents, and she pays them approximately $1,500.00 a month in rent.
Mother testified that, because of bad credit from her previous marriage, she did not have a
checking account and would deposit her pay check into her father’s bank account. With
her earnings and child support, Mother’s monthly income was approximately $4,750.00.2
2
Mother testified that she had not received child support from the father of her oldest child in approximately
two years.
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Mother stated that she drove Danica to school every day on her way to work, and
the child rode the bus home from school. Then, either Mother or the maternal grandmother
would drive Danica to Franklin for dance, which lasted until about 8:00 p.m. The child
was able to eat dinner and do homework during breaks at dance. Mother testified that she
moved Danica to a dance studio in Franklin to accommodate Father’s desire not to have
dance classes over the weekend.
When asked about the lack of stability reflected in the fact that she had moved five
times in ten years, Mother acknowledged that it was preferable for the child to have
consistency. She stated that she had lived in her current house for about four years. Mother
pointed out that, despite moving, she had remained in the same neighborhood with the child
at the same school.
Mother testified that she had “bent over backwards to work with [Father] whenever
he needed.” She “made sure [Father] saw [Danica] when he was supposed to see her,” and
“[i]f he wanted to see her on top of that, I made sure it happened.” Mother felt that she did
“whatever it takes to nourish, replenish, and support” the relationship between Father and
Danica. By contrast, she testified, Father was “willing to file bogus, frivolous petitions
that will lie, fabricate, say or do whatever he has to say to sabotage my daughter’s
relationship with me.”3 In part because of Father’s prior allegations against her, Mother
opposed his proposal to modify the parenting plan.
Mother stated that, over the past ten years, she had shown consistency and continuity
as a parent and had taught her daughter self-discipline and self-motivation. She testified
that she performed the majority of the daily parenting responsibilities and had taken Danica
to “every single [doctor’s] appointment except for one.” The parents agreed that Mother
was responsible for getting the child to school 95 percent of the time. According to Mother,
Father participates in Danica’s activities “when he feels like it.” He had not paid for dance
or taken Danica to practice before he filed his petition for modification. Mother
acknowledged that Father is a good parent and takes good care of Danica when she is with
him.
Mother described Danica’s close relationship with all four of Mother’s other
children. She further described the house where they have lived for the past four years.
Danica has her own room, and the garage has been converted into a small studio for dance
and play.
Mother explained that, when Danica was born, she lived in Murfreesboro. Shortly
after the birth, she moved to Selmer, Tennessee, and she moved back to Murfreesboro
3
In conjunction with his original petition for modification, Father filed a petition for contempt in which he
alleged that Mother had mental health problems. He also requested a psychological evaluation. Father
subsequently dismissed the contempt petition.
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when the child was about one-year old. According to Mother, she talked to Father upon
her return to Murfreesboro about reevaluating the parenting plan to increase his parenting
time, but he felt that he was too busy with school. (Father denies that the parties ever had
this discussion.) Mother further testified that, in the years preceding Father’s filing of the
petition for modification, he never asked for a change in the parenting schedule. If he asked
for a day here or there, she would accommodate him.
The owner of Danica’s dance studio testified that most of the children at the studio
have Instagram accounts. Mother testified that she had deactivated the child’s Instagram
account.
Mother requested that she be given sole decision-making authority on educational
matters and that the parenting schedule remain the same.
After the trial, the magistrate made findings of fact and conclusions of law, which
were incorporated into the court’s order entered on April 1, 2019.4 The court concluded
that there had been a material change of circumstance warranting a change in the residential
parenting schedule:
The Court does find that there is a material change in this case with
regard to an adjustment of parenting time that is warranted in this particular
matter. The Court would allocate or state to the parties its findings as to
reasons for reallocation of parenting time in this case.
The child’s age at the time the plan was implemented. The child was
14 months. She’s now nine years. She’s about to be ten, I believe, very soon.
There’s a lot of difference in the needs and relationships of a 14 month old
than there is in a nine or ten year old.
The parties’ location relative to one another. There’s a lot of
difference in ability to co-parent and child’s accessibility to each parent
between 200 miles, multiple counties away, and, you know, the next
neighborhood over as we have in this particular case. And that relates to the
parents’ ability to facilitate a more equal and sharing parenting responsibility.
I believe that to be greater now than it was nine years ago.
Both are -- the father has got an MBA now. He’s got a good job.
Mother has been working on her own for a long time. Nine years ago, they
were positioned most differently in maturity levels and all the issues involved
with parenting. They each have multiple or other children in addition to
Danica now so they are more seasoned parents. And I just think that it’s
4
The court found no evidence of bad parenting with respect to the child’s Instagram account.
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brought the circumstances of this case regarding the ability to share more
shared parenting responsibilities has been improved greatly over this
significant period of time.
In addition to that, I would note that nine years ago the wording in the
statute, the legislature has stated an intent for the Court to try to maximize
parenting time with both parents where possible and where it’s feasible in
any form, and the case law would support the legislature’s designation of
that. You can agree with that or not. I’m just telling you, basically, there’s
been a migration in the state of the law that is more geared toward, where
possible, expanding parenting time. We don’t have a lot of cases anymore
unless there’s drugs or abuse or things like that where we’re limiting
parenting time. We don’t have any other every-other-weekends and two-
weeks-in-the-summer parents these days. And that’s just the state of
migration of the law.
In this case, as I noted, both parents are good people. They both have
good homes. There is good social networks around the homes. They have
got some disagreements in issues but, you know, on a scale of issues, I’m not
stating they are not important to each of you and to the child, but in a scale
of issues and disputes, they are not major, and they seem within your
capabilities of easily resolving.
Now, obviously, capability and willingness become sort of sparse in
words and so you have to get into that. But, certainly, these are not issues
that should confound or bring you to the level of where you just can’t work
together. They are within your grasps to work out. And there’s really no
reason that I can see that there’s any sort of major issue between you that
can’t be resolved.
In all candor, it’s rare to see a case, frankly, that’s more suited to equal
parenting time. Largely, due to the stature of parents, the -- the child’s being
so well-adjusted and being so high-functioning and the distance between the
parties, in the Court’s judgment, this case is well-suited for a designation of
equal parenting time. Therefore, the Court does adopt the father’s parenting
plan as admitted into evidence as Exhibit Two, finding that plan to be in the
child’s best interest, finding that there was, in fact, a material change of
circumstance based on the previously announced factors.
Based upon these findings, the court adopted Father’s proposed parenting plan with some
revisions. The court ordered that Mother and Father would continue to exercise joint
decision-making and that Mother would remain the primary residential parent, though the
parties would have equal parenting time.
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The trial court denied Mother’s motion to alter or amend. On July 12, 2019, the
juvenile court entered an agreed order stating that, pursuant to Tenn. Code Ann. § 37-1-
107,5 the parties waived their right of de novo appeal and the order entered on June 26,
2019, denying Mother’s amended motion to alter or amend would be deemed the final
order of the court.
STANDARD OF REVIEW
Our review of a trial court’s findings of fact is de novo upon the record accompanied
by a presumption of correctness, unless the preponderance of the evidence is otherwise.
TENN. R. CIV. P.. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We
review a trial court’s conclusions of law de novo, according them no presumption of
correctness. Armbrister, 414 S.W.3d at 692; Rigsby v. Edmonds, 395 S.W.3d 728, 734
(Tenn. Ct. App. 2012). A trial court’s determinations of whether a material change in
circumstances has occurred and where the best interests of the children lie are factual
issues. Armbrister, 414 S.W.3d at 692; In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App.
2007). Appellate courts must, therefore, presume a trial court’s factual findings on these
matters are correct and not overturn them unless the evidence preponderates to the contrary.
Armbrister, 414 S.W.3d at 693.
Furthermore, as our Supreme Court has explained:
Because decisions regarding parenting arrangements are factually driven and
require careful consideration of numerous factors, Holloway v. Bradley, 190
Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit, 948 S.W.2d
739, 740 (Tenn. Ct. App. 1997), trial judges, who have the opportunity to
observe the witnesses and make credibility determinations, are better
positioned to evaluate the facts than appellate judges. Massey-Holt v. Holt,
255 S.W.3d 603, 607 (Tenn. Ct. App. 2007).
Id. Trial courts have broad discretion to work out the details of parenting plans. Id. A trial
court abuses its discretion when it “‘appl[ies] an incorrect legal standard, reaches an
illogical result, resolves the case on a clearly erroneous assessment of the evidence, or
relies on reasoning that causes an injustice.’” Id. (quoting Gonsewski v. Gonsewski, 350
S.W.3d 99, 105 (Tenn. 2011)). This standard of review “‘reflects an awareness that the
decision being reviewed involved a choice among several acceptable alternatives,’ and thus
‘envisions a less rigorous review of the lower court’s decision and a decreased likelihood
5
Tennessee Code Annotated section 37-1-107(e) provides, in pertinent part, that “if the right to the hearing
[before the juvenile court judge] is expressly waived by all parties within the specified time period, the
magistrate’s order becomes the order of the court.” Moreover, the order is subject to appeal in accordance
with Tenn. Code Ann. § 37-1-159. Tenn. Code Ann. § 37-1-107(e).
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that the decision will be reversed on appeal.’” Gonsewski, 350 S.W.3d at 105 (quoting
Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)).
ANALYSIS
Determining whether to modify the primary residential parent or the residential
parenting schedule requires a two-step analysis. See Tenn. Code Ann. § 36-6-101(a)(2).
The first step is to determine whether a material change in circumstances has occurred
since the court’s previous custody order. Tenn. Code Ann. § 36-6-101(a)(2)(B), (C);
Armbrister, 414 S.W.3d at 702; Duke v. Duke, No. M2013-00624-COA-R3-CV, 2014 WL
4966902, at *19 (Tenn. Ct. App. Oct. 3, 2014). If the trial court finds that there has been
a material change in circumstances, the court must then address the second step of the
process by determining whether it is in the child’s best interest to modify the parenting plan
as requested. Armbrister, 414 S.W.3d at 705. In the present case, the trial court determined
that there had not been a material change in circumstances sufficient to warrant a change
in the primary residential parent but found that there had been a material change in
circumstances warranting modification of the residential parenting schedule. On appeal,
Mother challenges the latter determination. She also argues that the trial court failed to
make any specific findings regarding the best interest factors as required by Tenn. Code
Ann. § 36-6-401(a)6.
I. Material change in circumstances/change in residential parenting schedule.
A material change in circumstances for purposes of modifying the primary
residential parent is “‘a distinct concept’” from a material change in circumstance for
purposes of modifying the residential parenting schedule. Burnett v. Burnett, No. M2014-
00833-COA-R3-CV, 2015 WL 5157489, at *6 (Tenn. Ct. App. Aug. 31, 2015) (quoting
Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007)). A different statutory
provision applies to each circumstance. See Tenn. Code Ann. § 36-6-101(a)(2)(B), (C).
Where the issue before the court is a modification of the residential parenting schedule
only, the threshold for determining whether there has been a material change of
circumstances is “much lower” as compared to the threshold for modification of the
primary residential parent. Burnett, 2015 WL 5157489, at *6. To modify the residential
parenting schedule, a showing7 that the current schedule is not workable for the parties can
be enough to satisfy the material change of circumstances standard. Id. (citing Rose v.
6
Tennessee Code Annotated section 36-6-401(a) provides, in pertinent part, that, “In any proceeding
between parents under this chapter [on child custody and visitation], the best interests of the child shall be
the standard by which the court determines and allocates the parties’ parental responsibilities.”
7
Whether seeking to modify the residential schedule or to change the primary residential parent, the
petitioner carries the burden of establishing that there has been a material change of circumstances. Tenn.
Code Ann. § 36-6-101(a)(2)(B), (C); Armbrister, 414 S.W.3d at 704.
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Lashlee, No. M2005-00361-COA-R3-CV, 2006 WL 2390980, at *2 n.3 (Tenn. Ct. App.
Aug. 18, 2006)).
The statutory provision regarding modification of the residential parenting schedule
provides as follows:
If the issue before the court is a modification of the court’s prior decree
pertaining to a residential parenting schedule, then the petitioner must prove
by a preponderance of the evidence a material change of circumstance
affecting the child’s best interest. A material change of circumstance does
not require a showing of a substantial risk of harm to the child. A material
change of circumstance for purposes of modification of a residential
parenting schedule may include, but is not limited to, significant changes in
the needs of the child over time, which may include changes relating to age;
significant changes in the parent’s living or working condition that
significantly affect parenting; failure to adhere to the parenting plan; or other
circumstances making a change in the residential parenting time in the best
interest of the child.
Tenn. Code Ann. § 36-6-101(a)(2)(C). In the present case, the trial court based its finding
that there had been a material change in circumstances upon several factors: changes in
the child’s needs related to age (from age 14 months to age 10), changes in the location of
the parties’ residences (from residing 200 miles apart to living in the same neighborhood),
and changes in the maturity of the parties (from being students and new parents to being
employed, experienced parents). The court determined that the parties’ “ability to share
more shared parenting responsibilities has been improved greatly over this significant
period of time.”
Relevance of impact on child’s well-being
Based upon the undisputed evidence that Danica is an excellent student and a happy
child, Mother argues that Father failed to prove that the alleged changes in circumstances
“‘affect[] the child’s well-being in a meaningful way.’” Kathryne B.F. v. Michael B., No.
W2013-01757-COA-R3-CV, 2014 WL 992110, at *4 (Tenn. Ct. App. Mar. 13, 2014)
(quoting Cosner v. Cosner, No. E2007-02031-COA-R3-CV, 2008 WL 3892024, at *4
(Tenn. Ct. App. Aug. 22, 2008)). Thus, we must consider whether, in the context of a
motion to modify a residential parenting schedule, the petitioner has proven that the
material change of circumstances affects the child’s well-being in a meaningful way.
Prior to the enactment of Tenn. Code Ann. § 36-6-101(a)(1)(C), caselaw generally
identified the following three factors as relevant considerations in determining whether
there had been a material change in circumstances:
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(1) whether a change has occurred after the entry of the order sought to be
modified; (2) whether a change was not known or reasonably anticipated
when the order was entered; and (3) whether a change is one that affects the
child’s well-being in a meaningful way.
Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003); see also Blair v. Badenhope, 77
S.W.3d 137, 150 (Tenn. 2002). The Court in Armbrister v. Armbrister, 414 S.W.3d at 704,
expressly overruled this line of authority to the extent that it required “a party requesting
modification of a residential parenting schedule to prove that the alleged material change
in circumstances could not reasonably have been anticipated when the initial residential
parenting schedule was established.” We find the Court’s analysis in Armbrister
instructive as to the continuing viability of the third factor regarding the effect of the
changed circumstances on the child’s well-being.
Under the original parenting plan in Armbrister, the mother was the primary
residential parent, with the father spending 85 days of residential parenting time with the
two minor children, ages three and almost one. Armbrister, 414 S.W.3d at 688-89. About
one year later, the father filed a petition for modification alleging that there had been a
material change of circumstances because he had remarried, his work schedule had
changed, he had relocated to his own home, and the mother had not been willing to allow
changes to the visitation schedule. Id. The mother opposed the motion, testifying that the
current schedule “worked well” and that “the children were well-adjusted and stable.” Id.
at 688. The trial court concluded that the father had proven a material change of
circumstances and that modification of the residential parenting schedule was in the best
interest of the children. Id. at 691. In support of this conclusion, the trial court cited
Father’s relocation and remarriage, the close relationship between the stepmother and the
children as well as the stepmother’s positive relationship with the mother, and the distance
(30 minutes) between the parents’ homes. Id. A divided panel of this court reversed, based
in part on the majority’s conclusion that the father’s move was “not unanticipated” at the
time of the divorce. Id. at 692. The majority further noted that the father was dating his
new wife at the time of the divorce, so the remarriage also was not an unanticipated change.
Id.
In its opinion reversing this court’s decision, the Supreme Court reviewed the
historical development of the common law regarding modification of parenting plans and
the requirement that there be a material change in circumstances. Id. at 698-702. Over
time, the concept of material change in circumstances came to include the idea that “‘the
change has occurred after the entry of the order sought to be modified and the change is
not one that was known or reasonably anticipated when the order was entered.’” Id. at 701
(quoting Blair, 77 S.W.3d at 150). The Court in Armbrister then proceeded to analyze the
impact of Tenn. Code Ann. § 36-6-101(a)(2)(C), passed in 2004, which addresses the
concept of a material change of circumstances in the context of the modification of a
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residential parenting schedule only (as opposed to a change in the primary residential
parent). Id. at 702-03.
The Court described the requirements of Tenn. Code Ann. § 36-6-101(a)(2)(C) as
setting “‘a very low threshold for establishing a material change of circumstances’” to
modify a residential parenting schedule. Id. at 703 (quoting Boyer v. Heimermann, 238
S.W.3d 249, 257 (Tenn. Ct. App. 2007)). With respect to the issue before it, the Court
stated:
By declaring that changes relating to a child’s age or a parent’s living or
working conditions may constitute a material change in circumstances, the
General Assembly has plainly expressed its intent to permit modification of
residential parenting schedules based on changes that reasonably could have
been anticipated when the original residential parenting schedule was
established.
Id. The Court interpreted Tenn. Code Ann. § 36-6-101(a)(2)(C) to reflect the legislature’s
“‘policy decision to make it easier to establish that a material change in circumstances has
occurred’ when a party seeks to modify a residential parenting schedule.” Id. (quoting
Boyer, 238 S.W.3d at 259). The Court, therefore, held:
[F]acts or changed conditions which reasonably could have been anticipated
when the initial residential parenting schedule was adopted may support a
finding of a material change in circumstances, so long as the party seeking
modification has proven by a preponderance of the evidence “a material
change of circumstance affecting the child’s best interest.”
Id. at 704 (quoting Tenn. Code Ann. § 36-6-101(a)(2)(C)). The Court added that, even
under prior caselaw, the “reasonably anticipated” factor “was never intended to be
outcome-determinative.” Id.Applying its holding to the facts before it, the Armbrister Court reversed this court’s
decision and reinstated the trial court’s determination that there had been a material change
in circumstances. Id. The Court made the following observations concerning the relevant
proof:
The proof is undisputed that, as a result of the sale of his 50% interest in the
Greeneville dentistry practice and the purchase of a dentistry practice in
Johnson City, Father worked fewer Fridays and had greater flexibility and
control of his work schedule, both of which allowed him to spend more time
with the children than he could have at the time when the residential
parenting plan was established. That Father lived a greater distance from the
children after his relocation and spent more of his parenting time with them
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in transit are also undisputed facts. The children, who were three and not
quite one at the time of the divorce, were five and three years old at the time
of the modification proceeding. Finally, the proof established that Father had
remarried and that Mrs. Armbrister had developed and maintained a positive
relationship with Mother and the children.
Id. at 704-05. Through this proof, the father aimed to establish a material change in
circumstances based upon “‘significant changes in the needs of the child[ren] over time,
which may include changes relating to age’ and ‘significant changes in the parent’s living
or working condition that significantly affect parenting.’” Id. at 705 (quoting Tenn. Code
Ann. § 36-6-101(a)(2)(C)). The Court determined that the evidence did not preponderate
against the trial court’s finding that the father had met his burden of proof. Id. In reaching
this conclusion, the Court agreed with the dissenting judge on this court that the father’s
“remarriage significantly affected his parenting in a positive way.” Id. After citing the
mother’s primary parenting role at the time of the divorce and the fact that the father “had
‘spent considerable portions of his recreational time traveling and playing golf’ during the
marriage,” the Court emphasized that the proof at the modification hearing showed “that
Father’s move and adjustment of his work schedule now allow him to participate
enthusiastically in his son’s extracurricular activities and that he is looking forward to
participating in his daughter’s activities as well.” Id. The Court also noted the positive
relationship between the stepmother and the children. Id.Although the Court in Armbrister was not presented with the issue of whether there
must be proof that the change in circumstances affects the child’s well-being in a
meaningful way in order to modify a residential parenting schedule, the Court’s holding
seems to offer some guidance on this issue. Based upon the reasoning applied and the
result reached by the Supreme Court in Armbrister, it appears that, 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 (as described in Tenn. Code Ann. § 36-6-
101(a)(2)(C)) that will allow more parenting time and/or a better parent-child relationship
in the future. Thus, in Armbrister, the father was not required to show that the changes in
circumstances had affected the children’s well-being but that, because of changes in the
father’s “living or working condition that significantly affect parenting,” Tenn. Code Ann.
§ 36-6-101(a)(2)(C), he would be able to participate more in the children’s lives and
exercise more residential parenting time in the future. Id. at 705.
This interpretation is consistent with post-Armbrister cases from this court
involving petitions to modify residential parenting schedules. This court reversed the trial
court’s decision in Cook v. Cook, No. M2015-00253-COA-R3-CV, 2015 WL 8482403, at
*1 (Tenn. Ct. App. Dec. 9, 2015), a case in which the trial court denied the father’s petition
for modification based upon changes in his work schedule, the remarriage of both parties,
and the child beginning school. The trial court reasoned that the father failed to show a
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material change in circumstances because he had not shown that the alleged changes
“actually affected the child’s best interest.” Cook, 2015 WL 8482403, at *2. In reversing
the trial court, this court cited the significant changes in the father’s work schedule. Id. at
*5. Whereas the father had previously worked the midnight shift, his new work schedule
gave him greater flexibility and allowed him to spend most evenings at home. Id. Both
parents testified that they had “failed to adhere strictly to the parenting plan.” Id.Moreover, the evidence showed that the father’s remarriage had “affected his parenting in
a positive way” and that the child had a close relationship with his stepmother, who assisted
the father with parenting responsibilities when needed. Id. Under these facts, we
determined that the trial court had erred in failing to find a material change in circumstances
for purposes of considering modification of the residential parenting schedule. Id.In Wilkerson v. Wilkerson, No. M2014-02412-COA-R3-CV, 2016 WL 3044371, at
*4 (Tenn. Ct. App. May 19, 2016), this court reversed the trial court’s finding that there
was no material change of circumstances sufficient to modify the residential parenting
schedule. In so doing, we cited the fact that seven years had passed since the entry of the
original parenting plan (“which suggests the possibility for changes”), that both parents
agreed that the current parenting plan was no longer working, “additions to both Mother’s
and Father’s families, and the fact that Father, who is on active duty with [the] U.S. Army,
is no longer eligible to deploy.” Wilkerson, 2016 WL 3044371, at *4.
There are cases involving petitions for modification of the residential parenting
schedule in which this court has affirmed a trial court decision finding no material change
of circumstances where we have cited the absence of any evidence of impact of the alleged
changes on the child. In In re Caroline U., No. E2018-01951-COA-R3-JV, 2019 WL
4896860, at *2 (Tenn. Ct. App. Oct. 4, 2019), for example, we noted that “there was little
to no evidence presented regarding how the alleged changes in Father’s circumstances have
impacted the Child,” and “Counsel for Father did not identify any concerns or problems
with the Child’s care.” The facts in that case, however, showed no change in relationship
status, no relocation, no career change, and no proof that the parties were not abiding by
the current plan. In re Caroline U., 2019 WL 4896860, at *4. The father’s mother still
cared for the child while the father worked and attended school. Id. Thus, there was no
basis for the trial court to find that the father was in a better position to participate in the
parenting of the child.
The father in Akins v. Akins, No. M2017-00594-COA-R3-CV, 2019 WL 2880051,
at *1 (Tenn. Ct. App. July 3, 2019 ), requested a modification of the residential parenting
schedule alleging a material change in circumstances based upon his improved health,
increased flexibility in his work schedule, his relocation closer to the mother and the child,
and the development of a meaningful relationship between the stepmother and the child.
The trial court found that “little had truly changed” since an earlier agreed parenting plan
and dismissed the father’s petition. Akins, 2019 WL 2880051, at *2. The trial court found
that “[m]erely proving that Father is working less hours . . . does not show that this affects
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the child’s well being in a meaningful way” and observed that “Father chose to not have
his Wife testify about her relationship with the minor child.” Id. at *3. On appeal, this
court concluded that the evidence did not preponderate against the trial court’s findings
that the father had not proven any changes that had not been considered as part of the prior
agreement between the parties. Id. at *4.
As stated under our standard of review, a trial court’s determination as to whether
there has been a material change of circumstances is a finding of fact. Armbrister, 414
S.W.3d at 692. In both Akins and In re Caroline U., the evidence did not preponderate
against the trial court’s finding on that issue. See also Kelly v. Kelly, No. M2015-01779-
COA-R3-CV, 2016 WL 6124116, at *6 (Tenn. Ct. App. Oct. 19, 2016) (affirming trial
court’s decision denying petition to modify the residential parenting schedule and noting
that “Father failed to meet his burden of proving that any allegedly material change
occurred that affected the wellbeing of the parties’ daughter”; although the father testified
credibly of his concerns about the daughter’s social media use and academic performance,
he presented no evidence that the mother failed to provide proper supervision.).
The results in cases decided under Tenn. Code Ann. § 36-6-101(a)(2)(C) are fact-
dependent. Does the evidence in this case preponderate against the trial court’s
determination that Father established a material change in circumstances for purposes of
modifying the residential parenting schedule? We have concluded that the trial court did
not err. The facts in this case are, in many ways, similar to those before the Court in
Armbrister. Danica is a happy and well-adjusted child. But, the proof shows that
circumstances have changed since the entry of the original residential parenting schedule
and those changes affect the parenting relationship. The material changes of circumstances
established by Father’s proof fall within the statutory categories of “significant changes in
the needs of the child over time, which may include changes relating to age; significant
changes in the parent’s living or working condition that significantly affect parenting.”
Tenn. Code Ann. § 36-6-101(a)(2)(C). Because of the change in Danica’s age, the court
recognized the differences in her “needs and relationships” as compared to when the
original parenting plan was devised. Moreover, because of changes in Mother’s and
Father’s residences, maturity levels, and family composition, the trial court found
improvement in the parents’ abilities to share parenting responsibilities. The trial court,
therefore, found that there had been a material change in circumstances under Tenn. Code
Ann. § 36-6-101(a)(2)(C). Based upon the record, we conclude that the evidence does not
preponderate against this finding.
II. Best interests.
Once the trial court determines that there has been a material change in
circumstances, the second step in the modification analysis requires the court to determine
whether modification is in the child’s best interests under the factors in Tenn. Code Ann.
§ 36-6-106(a). Armbrister, 414 S.W.3d at 705 (citing Tenn. Code Ann. §§ 36-1-
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101(a)(2)(C), 36-6-401(a)). We disagree with Mother’s assertion that the trial court failed
to analyze the statutory factors.
Tennessee Code Annotated section 36-6-106(a) requires the trial court to consider
the following factors in determining the best interests of the child:
In taking into account the child’s best interest, the court shall order a custody
arrangement that permits both parents to enjoy the maximum 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. The court shall consider all relevant
factors, including the following, where applicable:
(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
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;
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(11) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person. The court shall, where appropriate, refer any issues of
abuse to juvenile court for further proceedings;
(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.
The preference of older children should normally be given greater weight
than those of younger children;
(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.
The best interest determination “is a fact-sensitive inquiry.” Steakin v. Steakin, No.
M2017-00115-COA-R3-CV, 2018 WL 334445, at *5 (Tenn. Ct. App. Jan. 9, 2018). The
determination “‘does not call for a rote examination of each of [the relevant] factors and
then a determination of whether the sum of the factors tips in favor of or against the
parent.’” Id. (quoting In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)). Rather,
“‘[t]he relevancy and weight to be given each factor depends on the unique facts of each
case.’” Id. (quoting In re Marr, 194 S.W.3d at 499).
Although the trial court did not clearly demarcate its transition from a consideration
of whether a material change of circumstance had been established to the best interest
analysis, “its findings demonstrate a consideration of the relevant factors.” Broadrick v.
Broadrick, No. M2013-02628-COA-R3-CV, 2015 WL 1947186, at *6 (Tenn. Ct. App.
Apr. 29, 2015). The following excerpt from the trial court’s ruling contains references to
multiple statutory factors:
In addition to that, I would note that nine years ago the wording in the statute,
the legislature has stated an intent for the Court to try to maximize parenting
time with both parents [factor in introduction of Tenn. Code Ann. § 36-6-
106(a)] where possible and where it’s feasible in any form, and the case law
would support the legislature’s designation of that. You can agree with that
or not. I’m just telling you, basically, there’s been a migration in the state of
the law that is more geared toward, where possible, expanding parenting
time. We don’t have a lot of cases anymore unless there’s drugs or abuse or
things like that where we’re limiting parenting time. We don’t have any other
every-other-weekends and two-weeks-in-the-summer parents these days.
And that’s just the state of migration of the law.
In this case, as I noted, both parents are good people [factor 8]. They
both have good homes [factor 4]. There is good social networks around the
homes [factors 9, 12]. They have got some disagreements in issues but, you
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know, on a scale of issues, I’m not stating they are not important to each of
you and to the child, but in a scale of issues and disputes, they are not major,
and they seem within your capabilities of easily resolving.
Now, obviously, capability and willingness become sort of sparse in
words and so you have to get into that. But, certainly, these are not issues
that should confound or bring you to the level of where you just can’t work
together. They are within your grasps to work out. And there’s really no
reason that I can see that there’s any sort of major issue between you that
can’t be resolved. [factor 2]
In all candor, it’s rare to see a case, frankly, that’s more suited to equal
parenting time. Largely, due to the stature of parents [factors 2, 8], the -- the
child’s being so well-adjusted and being so high-functioning [factors 1, 6]
and the distance between the parties [factor in introduction of Tenn. Code
Ann. § 36-6-106(a)], in the Court’s judgment, this case is well-suited for a
designation of equal parenting time. Therefore, the Court does adopt the
father’s parenting plan as admitted into evidence as Exhibit Two, finding that
plan to be in the child’s best interest, finding that there was, in fact, a material
change of circumstance based on the previously announced factors.
(Emphasis added.) Thus, contrary to Mother’s contention, the trial court made findings
concerning the statutory best interest factors. Furthermore, the evidence does not
preponderate against the trial court’s determination that modification of the residential
parenting schedule was in the child’s best interest.8
CONCLUSION
The judgment of the trial court is affirmed, and the costs of appeal are taxed against
the appellant, Colleen Erin Daley. Execution may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
8
A trial court is required to use the process set forth in Tenn. Code Ann. § 36-6-404(b) to determine how
the residential parenting plan should be modified. Armbrister, 414 S.W.3d at 706.
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