                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  June 18, 2014 Session

                                   IN RE LAUREN S.

                    Appeal from the Juvenile Court for Dyer County
                     No. 09JV10    Danny H. Goodman, Jr., Judge




                 No. W2013-02760-COA-R3-JV - Filed August 5, 2014




Father petitioned the trial court to, inter alia, modify the residential parenting schedule set
forth in the permanent parenting plan. By a preponderance of the evidence, the trial court
found that there was no material change in circumstances that would justify a change in the
residential parenting schedule and, accordingly, dismissed Father’s petition. We reverse and
remand.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed
                                  and Remanded

A NDY D. B ENNETT, J., delivered the opinion of the court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.

Vanedda Prince Webb, Dyersburg, Tennessee, for the appellant, Derek Andrew S.

No Appellee Brief filed.

                                         OPINION

                           F ACTUAL AND P ROCEDURAL H ISTORY

       Lauren S. was born to unmarried parents Kimberly S. (“Mother”) and appellant Derek
S. (“Father”). Upon petitions by both parents, the trial court entered an order of parentage
dated September 2, 2009 that established Mother and Father as Lauren’s natural and legal
parents, named Mother as the primary residential parent, and awarded Father parenting time

                                              1
with the child. The parties approved a proposed parenting plan order, but it was never
approved by the court. For this reason and because the parties found conflicts between the
parenting time schedule contained in the September 2, 2009 order and their proposed
parenting plan order, they petitioned the court for a hearing.

       Following a hearing, the court found that “the pattern of conflict and disagreement
over the visitation schedule” constituted a material change in circumstances affecting
Lauren’s best interest. Accordingly, the court modified the September 2, 2009 order of
parentage by entering a permanent parenting plan dated October 27, 2010. As relevant to this
appeal, the permanent parenting plan designated Mother as primary residential parent and
awarded Father 130 days of parenting time per year to be exercised on alternating weekends,
alternating Wednesday nights during the school year, alternating summer weeks, and certain
holidays and school vacations. At the time the court entered the permanent parenting plan,
Father lived with his parents in Dyersburg, Tennessee, and two-year-old Lauren lived with
Mother and her parents in Union City, Tennessee.1 It was anticipated that she would attend
preschool and school in Obion County.

       On August 2, 2013, Father filed an amended petition to modify prior orders; this
petition is the subject of this appeal. Father alleged that “there has come to exist a material
change of circumstances such that it is in the best interest of the minor child that [Father] be
named as the primary residential parent,” and requested equal parenting time on an
alternating weekly basis. On October 4, 2013, Mother filed a response asking the trial court
to dismiss Father’s petition.

                                  Evidence Adduced at the Hearing

        Mother, Father, Father’s father (“Grandfather”), Father’s mother (“Grandmother”)
(collectively, “Grandparents”), Lauren’s maternal grandmother, Mother’s aunt, a family
friend, Lauren’s dance teacher, and Lauren’s former pre-kindergarten teacher testified at the
hearing.2

       In February 2011, less than four months after the court entered the permanent
parenting plan, Mother and Lauren’s maternal grandmother had a falling out. Mother called
Grandmother to inform her that she was leaving Union City. The Grandparents welcomed
Mother and Lauren into their five-bedroom, three-bathroom Dyersburg home in which Father


       1
           Dyersburg and Union City are about thirty-six miles apart.
       2
          A human resources manager at Mother’s workplace and Father’s former workplace also testified,
but her testimony is not relevant to this appeal.

                                                     2
still lived.3 This was the parties’ living arrangement for about fourteen months. During that
time, Father and Mother, who worked opposite shifts, shared equal parenting time and acted
as Lauren’s primary caregivers. According to Father, Mother was “very caring and generous
with Lauren” and Lauren “loved her to death.” He stated that sometimes he and Mother
scheduled activities together so that Lauren could spend time with both of them.

       Grandfather testified that, under the equal parenting arrangement that the parties were
following, Lauren acted like “a well-behaved child” and he “saw her blossom.”
Grandmother observed that Lauren had a good, loving relationship with both parents. A
family friend who had known Lauren since she was four months old testified that Father
“does a wonderful job” of parenting Lauren and that she listens to him. Lauren’s pre-
kindergarten teacher during the 2012-2013 school year described her as very outgoing,
loving, friendly, and socially active. When Lauren began the school year, she seemed happy
and well-adjusted.

        In April 2012, Mother decided to move out of the Grandparents’ home to live in her
own home with Lauren. Everyone supported Mother’s decision; in fact, Grandmother helped
find the Newbern4 apartment that Mother ultimately moved into. Even after Mother and
Lauren moved to Newbern, Lauren’s schedule stayed the same in that both parents cared for
her on rotating shifts and continued to spend equal time with her. Sometimes, the
Grandparents would help. For example, Grandmother transported Lauren to and from pre-
kindergarten for most of the 2012-2013 school year. Grandfather described the parties’
working relationship as “good” while they were living in separate households, and noticed
that “they shared in the responsibilities.” Even though he was living with his parents, Father
spent one-on-one time with his daughter. He and Lauren often enjoyed “daddy/daughter”
days playing in the park, fishing, shopping, seeing a movie, eating ice cream, and dining out.

       On March 10, 2013, Mother went to retrieve Lauren from the Grandparents’ home
and, in front of everyone, announced to her that “she wouldn’t be seeing Daddy as much.”
Mother’s reason was because she missed Lauren and “wanted to spend a little more time with
her.” As a result of Mother’s decision, the parties resumed following the October 27, 2010
parenting plan which allowed Father parenting time with Lauren every other Wednesday
night and every other weekend during the school year. Father observed a change in Lauren’s
behavior:

       Q. Okay. And at that point then did [Mother] insist that you go back to the


       3
           Mother, Father, and Lauren each had a separate bedroom.
       4
           Newbern and Dyersburg are approximately nine miles apart.

                                                   3
       schedule that Judge Hudson put down in the parenting plan order entered
       October 2010?

       A. Yes, ma’am.

       Q. Okay. And after that date and after that time and the change was
       implemented did you see a change in Lauren’s behavior?

       A. Very much so. For a period of time she was as close to herself as she could
       be. She seemed almost confused that she didn’t understand what was going
       on and over time she became very loud whenever she talked. She was more
       aggressive. She just seemed angry and I had to discipline her far, far more
       often . . . . She was hostile, not physically aggressive but her attitude was very
       negative.

       Q. Okay. And were you aware that she was having problems at school?

       A. Yes.

Lauren’s teacher also perceived a “definite change in her behavior” beginning in the spring
of 2013. She testified that Lauren began acting out, crying in the mornings and “at the drop
of a hat,” and being disruptive in class. Grandfather also noticed that, during this time
period, Lauren “became more withdrawn like she was angry” and that Father had “to do a
lot more discipline with her.” Mother, however, testified that Lauren did not display hostility
or aggressiveness around her.

       During the summer of 2013, Mother and Father resumed spending equal time with
Lauren on a rotating weekly basis, as set forth in the October 27, 2010 parenting plan.
Grandmother noticed some improvement in Lauren’s behavior. Grandfather thought that
Lauren’s behavior normalized after the first week of the summer schedule, and Father saw
that Lauren “didn’t want to be by herself so much” and that, over the summer, “[s]he
continued to get around to [being] her sweet, outgoing, happy self.” Mother testified that,
because the house rules were not the same at her house as they were at the Grandparents’
house, she had to discipline Lauren more frequently when she would first return from a stay
with Father, but that she would be “fine after a couple of days.”

       Once the parties went back to the October 27, 2010 parenting plan, various people
cared for Lauren while Mother was at work during her parenting days. At first, Mother’s
boyfriend’s mother watched Lauren. Once that arrangement ended, Mother posted an



                                               4
advertisement in search of a babysitter.5 Mother admitted that she searched for a babysitter
knowing that Father and the Grandparents were willing to care for Lauren when needed.6
Then, Mother’s friend Nikki kept Lauren at her home where she slept “on a kid cot or a kid
bed.” Mother recalled that “sometime there in the summer or so” one of her sisters watched
Lauren in Mother’s home, and another sister watched Lauren at the maternal grandmother’s
home while Mother worked.7

        At the time of the October 11, 2013 hearing on Father’s petition, Father was living
with his parents and attending classes to earn his machinist degree. Mother was working
full-time, and she and five-year-old Lauren were living in a two-bedroom duplex in
Newbern. During Mother’s work hours, Lauren was staying in her aunt’s home where she
shared a bed with her seven-year-old female cousin.

      When asked why he requested a residential parenting schedule that allows Lauren to
spend equal time with each parent, Father explained:

        I feel that it would be in Lauren’s best interest. I don’t want to take her away
        from her mother, but I feel that spending equal time with both of us would help
        her grow and give her more continuity and stability in her life and it would
        help her to develop into a healthier young lady mentally and physically. She
        would get to have friends and family and just get to see everyone on an even
        amount of time.

      At the conclusion of the hearing, the trial court rendered its ruling from the bench.
The ruling was set forth in a final order entered November 26, 2013. On the issue of
modification of the residential parenting schedule, the court found:

                  [Father] has alternatively plead that a material change in circumstance

        5
            The advertisement, which was apparently posted on Facebook, read:

        Need a sitter for my 4 year old at night. Need one by Sunday night! And I’m a single mom
        so can not spend a whole lot! . . . Around 8:30pm til about 7 or so in the morning . . . . Right
        now it will be from this Sunday til Thursday then off a week cause she[’s] at her dad[’]s
        then the week after the same days. That’s for the summer . . . . I will also need a sitter
        throughout the year[.] [H]er dad only gets her every other weekend and every other
        Wednesday until we go back to court.
        6
         In their testimony, the Grandparents reaffirmed their willingness to transport Lauren to and from
school and extracurricular activities in Newbern.
        7
            Lauren’s maternal grandmother testified that she did not see Lauren very often before March 2013.

                                                       5
has occurred which warrant[s] a change to the residential parenting schedule.
Pursuant to Tenn. Code Ann. § 36-6-101(a)(2)(C), if the issue before the Court
is a modification of the Court’s prior decree, then [Father] must prove by a
preponderance of the evidence a material change in circumstance affecting the
child’s best interest. A material change in circumstance for purposes of
modification of a residential parenting schedule does not require [a] showing
of substantial risk of harm to the minor child. The Court has already found
that there was no substantial risk of harm to the minor child.

       A material change in circumstances for the purposes of modification of
the residential parenting schedule may include, but is not limited to, a
significant change in the needs of the child over time, which may include
changes relating to age. The Court finds that at the time the original petition
was filed, the child was two years old and she is now five years old. Although
the child was not in school at the time the decree was entered, both the parties
and the Court were aware that the minor child would be attending preschool.[ 8 ]

        Additionally, at the time the decree was entered [Mother], was living
in Obion County and [Father] was living in Dyer County. Since the time the
decree was entered, [Mother] has re-located to Dyer County. The Court finds
that this is not a detrimental change to the minor child, but rather is a
beneficial change to the child, as [Mother] moved closer to [Father]. The
Court finds that by a preponderance of the evidence, there is no change in the
minor child’s needs over time relating to her age [that] would warrant a change
in the residential parenting schedule.

       A material change in circumstances that would justify a change in the
residential parenting schedule also includes significant changes in the parent’s
living or working conditions that significantly affect parenting. There has
been a change in the parents’ living and working conditions several times since
the decree was entered. There was a change in circumstances when [Mother]
moved in with [Father] and his parents; there was a change in circumstances
when [Mother] moved out of the [Father’s] residence; and there was a change
in circumstances when [Mother] went to work. [Mother] has to work and


8
    On this point, the court stated as follows in its bench ruling:

I know that she was not in school when the order originally went down, but it anticipated
that she was going to go to preschool. I think everyone knew that. I think the Judge knew
that that was going to happen when he entered that decree.

                                                6
       provide for her child, which is not a negative reflection on [her]. Additionally,
       when [Father] and [Mother] were living with [Father’s] parents, the parties
       agreed and thought that the living arrangement was in the minor child’s best
       interest, so that is not a material change of circumstances. When [Mother]
       moved out of the home, the parties agreed that it was in the minor child’s best
       interest. [Father’s] mother, Carla [S.], testified that she helped [Mother] find
       an apartment . . . . Therefore, the Court finds that the change in working and
       living conditions do not rise to the level of a material change in circumstances
       that would justify a change in the residential parenting schedule.

               A material change in circumstances that would justify a change in the
       residential parenting schedule also includes a 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. The Court finds that [Mother] has not failed
       to adhere to the parenting plan. [Father’s] argument is that there is a material
       change in circumstances because [Mother] is adhering to the parenting plan.
       The Court finds that is not a material change in circumstances because
       [Mother] is doing what she is court-ordered to do: The Court ordered her to
       follow the parenting plan and she is following the parenting plan. Therefore,
       she is not failing to adhere to the parenting plan and there is no material
       change in circumstances that would justify a change in the residential
       parenting schedule.

               A material change in circumstances that would justify a change in the
       residential parenting schedule also includes any other circumstances making
       a change in the residential parenting time in the best interest of the child. The
       Court finds that there was a change in parenting time, as [Mother] allowed
       [Father] to have more time than the parenting plan required. The parenting
       plan sets out the minimal amount of time that a parent receives and the Court
       always encourages all parents to provide more time than the parenting plan
       requires. However, if that does not work out, th[e]n the parties must follow
       what is ordered by the Court. The Court finds that [Mother] had issues in
       providing additional visitation beyond what the parenting plan required
       because of where she lived and that she had to drive. The Court finds that the
       change in parenting time does not rise to the level of a material change in
       circumstances that would justify changing the residential parenting time in the
       best interest of the child.

Accordingly, the trial court dismissed Father’s petition. Father appeals.



                                              7
                                      ISSUE P RESENTED

       Father raises one issue on appeal: Whether the trial court erred in ruling that Father
failed to establish a material change in circumstance in regard to modification of the
residential parenting schedule. Father does not challenge the trial court’s designation of
Mother as Lauren’s primary residential parent.

                                   S TANDARD OF R EVIEW

       Whether a material change in circumstances has occurred and whether modification
of a parenting plan serves a child’s best interest are factual questions. Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013); In re T.C.D., 261 S.W.3d 734, 742 (Tenn.
Ct. App. 2007). We review a trial court’s findings of fact de novo with a presumption of
correctness. Tenn. R. App. P. 13(d). Because “determining the details of parenting plans is
‘peculiarly within the broad discretion of the trial judge,’” we review such decisions for an
abuse of discretion. Armbrister, 414 S.W.3d at 693 (citing Suttles v. Suttles, 748 S.W.2d
427, 429 (Tenn. 1998)). “An abuse of discretion occurs when the trial court . . . 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.” Gonsewski v.
Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court abuses its discretion in
establishing a residential parenting schedule “only when the trial court’s 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.” Eldridge v. Eldridge, 42 S.W.3d 82, 88
(Tenn. 2001).

                                          A NALYSIS

       On appeal, Father contends that “the trial court applied a much higher standard for
determining the existence of a material change of circumstance in regard to the residential
parenting schedule than is required.” The relevant statute with respect to a change in the
residential parenting schedule (and not a change in primary residential parent) is Tenn. Code
Ann. § 36-6-101(a)(2)(C), which states:

       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

                                              8
       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.

This statute “sets a very low threshold for establishing a material change of circumstances.
Indeed, merely showing that the existing arrangement has proven unworkable for the parties
is sufficient to satisfy the material change of circumstance test.” Rose v. Lashlee, No.
M2005-00361-COA-R3-CV, 2006 WL 2390980, at *2 n.3 (Tenn. Ct. App. Aug. 18, 2006).
Tennessee Code Annotated section 36-6-101(a)(2)(C) “reflects the General Assembly’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.” Armbrister, 414
S.W.3d at 703 (Tenn. 2013) (quoting Boyer v. Heimermann, 238 S.W.3d 249, 259 (Tenn. Ct.
App. 2007)).

        As to a significant change in the child’s needs over time, including an age-related
change, the trial court found that Lauren was two years old when the existing parenting plan
went into effect and five years old at the time of the hearing on Father’s petition. The court
declined to find that Lauren’s enrollment in preschool constituted a material change in
circumstances because it was “anticipated” by the prior court order. The Tennessee Supreme
Court recently considered whether a change in circumstances could justify a modification of
a parenting plan, even when the change was one that could have been anticipated when the
initial parenting plan was established. The Court held that it could, in light of Tennessee
Code Annotated section 36-6-101(a)(2)(C), “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.’” Armbrister, 414 S.W.3d at 704.9 We conclude that the trial court
applied an incorrect standard and incorrect reasoning in determining whether Lauren’s
enrollment in preschool constituted a material change in circumstances affecting her best
interest.

        As to significant changes in Mother’s and Father’s living or working conditions, the
trial court found “a change in the parents’ living and working conditions several times since
the decree was entered,” as the proof clearly established. However, the court reasoned that
one of the significant changes, Mother’s moving into and out of the Grandparents’ home, did
not “rise to the level of a material change in circumstances” because it was “beneficial” and
not “detrimental” to Lauren and because the parties agreed to it. The court also reasoned that


       9
          Our Supreme Court issued the Armbrister opinion on October 21, 2013, after the hearing on
Father’s petition, but several weeks before the trial court’s November 26, 2013 final order.

                                                9
another change, Mother’s beginning a full-time work schedule, did not “rise to the level of
a material change in circumstances” because it was “not a negative reflection on [Mother].”
We conclude that the trial court applied an incorrect standard by implicitly requiring Father
to prove that changes in the parties’ living and working conditions were detrimental to the
child or reflected negatively on Mother.

        As to failure to adhere to the parenting plan, the trial court found “that there was a
change in parenting time, as [Mother] allowed [Father] to have more time than the parenting
plan required,” but found that “[Mother] has not failed to adhere to the parenting plan.” The
testimony clearly established that, even though a parenting plan allowing Mother and Father
to enjoy 235 and 130 days of respective yearly parenting time was in effect, for over a year,
both parents lived together with Lauren while they each provided care for her equally.
Thereafter, for almost ten months, they continued to share equal parenting time while living
apart. Given the low threshold for establishing a material change in circumstances for a
proposed modification to a residential parenting schedule, we have determined that the
evidence in the record preponderates against the trial court’s finding that “the change in
parenting time does not rise to the level of a material change in circumstances that would
justify changing the residential parenting time in the best interest of the child.”

        Based on the entire record, we conclude that Father has established a material change
in circumstances and, accordingly, reverse the trial court’s order dismissing Father’s petition
on this ground. Our conclusion answers the first question in this modification proceeding.
On remand, the trial court shall determine the child’s best interests in accordance with the
statutory factors and the principles set forth in Armbrister.

                                        C ONCLUSION

       For the foregoing reasons, we reverse and remand for further proceedings consistent
with this opinion. Costs of appeal are assessed against the appellee, Kimberly S., for which
execution may issue if necessary.




                                                              _________________________
                                                              ANDY D. BENNETT, JUDGE




                                              10
