                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                        June 28, 2012 Session

       MERLINA ELIJAH (WILLIAMS) DRAPER v. RYAN ASHLEY
                          WILLIAMS

                  Direct Appeal from the Circuit Court for Sumner County
                        No. 2004-CV-25665C       C. L. Rogers, Judge


                    No. M2011-00875-COA-R3-CV - Filed October 2, 2012


This case involves the modification of a parenting plan. The trial court modified the
parenting plan upon its finding that a material change in circumstances had occurred such
that primary residential custody with Mother was no longer in the child's best interest. On
appeal, Mother argues that the trial court erred in granting primary residential custody to
Father, and Father argues that the trial court erred in denying his request for attorney’s fees.
Discerning no error, we affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

James G. King, Nashville, Tennessee, for the appellant, Merlina Elijah (Williams) Draper.

Joseph Y. Longmire, Jr., Nashville, Tennessee, for the appellee, Ryan Ashley Williams.

                                   MEMORANDUM OPINION 1



       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
       On December 9, 2004, Merlina (Williams) Draper (“Mother”) and Ryan Williams
(“Father”) were divorced pursuant to a Final Decree of Divorce. Mother was named the
primary residential parent of the parties’ minor child.

        On December 28, 2010, Father filed a petition to modify the parenting plan alleging
that a material change of circumstances occurred such that he should be named the primary
residential parent. Father’s petition alleged that Mother failed to provide a stable home
environment because she moved nine times since the entry of the Final Decree, which caused
their minor child to change schools several times. Father further alleged that since the
divorce, Mother had lived with one man who was a registered sex offender, and currently
lives with her boyfriend who physically assaulted the minor child.2 Additionally, Father
alleged that Mother was frequently involved in altercations with her oldest daughter,3 which
was disruptive to the minor child.

        On March 1, 2011, the trial court conducted a hearing on Father’s petition to modify
the parenting plan. The trial court considered, inter alia, the instability of the child’s current
environment, the performance of each parent in providing for the child, the stability of the
family units of each parent, evidence of child abuse, and the character and behavior of other
persons in the child’s home and their interactions with the child. The trial court also heard
the testimony of the child’s counselor, who testified that the child experienced withdrawal,
witnessed domestic disturbances between Mother and her live-in boyfriend, and was
subjected to punishment for telling Father about her circumstances living in Mother’s home.
At the conclusion of the hearing, the trial court found that the child was withdrawn, scared,
fearful of her Mother and her live-in boyfriend, emotional over comments by the live-in
boyfriend to harm the Father, and unsettled with the constant moves and school changes.
The trial court further found that the Father was stable, married, had stable employment and
an appropriate home, and that the child had a close relationship with Father’s stepsons.4
Thus, on March 3, 2011, the trial court entered an order modifying the parenting plan,
naming Father the primary residential parent. Mother timely filed a notice of appeal to this
Court.




       2
        The alleged assault involved an incident where Mother’s live-in boyfriend gave the child a
“wedgie.” At trial, Mother testified that she was not aware that this occurred until the Department of
Children’s Services arrived at her home to discuss the incident.
       3
           Father is not the biological father of Mother’s oldest daughter.
       4
           Father’s stepsons include a nine year old and five year old twins.

                                                      -2-
                                          Issues Presented

       On appeal, Mother argues that the trial court erred in finding that a material change
in circumstances had occurred such that primary residential custody with Mother was no
longer in the child’s best interest. In addition, Father argues that the trial court erred in
denying his request for attorney’s fees, and further requests attorney’s fees incurred on
appeal.

                                         Standard of Review

       We review the trial court’s findings of fact with a presumption of correctness unless
the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Accordingly, we will not
reverse the trial court's factual findings unless they are contrary to the preponderance of the
evidence. We review the trial court’s conclusions on matters of law de novo, however, with
no presumption of correctness. Tenn. R. App. P. 13(d). Our review of a trial court’s
application of the law to the facts is de novo, with no presumption of correctness. State v.
Ingram, 331 S.W.3d 746, 755 (Tenn. 2011).

                                              Discussion

        Trial courts have wide discretion to establish a parenting arrangement that is in the
best interests of the child. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations
omitted). The trial court’s judgment often turns on subtle factors which require the court to
assess the credibility and demeanor of the witnesses. Adelsperger v. Adelsperger, 970
S.W.2d 482, 485 (Tenn. Ct. App. 1997). We will not substitute our judgment for that of the
trial court on these matters. Eldridge, 42 S.W.3d at 88. Rather, we will disturb a trial court's
decision regarding parental responsibility only if it “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.” Id.

       A decree pertaining to a residential parenting schedule order may be modified where
the petitioner demonstrates, by a preponderance of the evidence, that a material change of
circumstances has occurred such that modification is in the best interest of the child. Tenn.
Code Ann. § 36-6-101(a)(2)(C) (2010).5 Thus, the trial court must utilize a two-part test in


       5
           Tennessee Code Annotated section 36-6-101(a)(2)(C) provides:

       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
                                                                                             (continued...)

                                                   -3-
determining whether a change of custody or visitation is warranted. First, the trial court must
determine whether a material change of circumstances has occurred that affects the well
being of the child. Second, if a material change in circumstances has occurred, the trial court
must utilize the factors in section 36-6-106 to determine whether the modification of custody
is in the child’s best interest. Id.

       In its final order modifying the parenting plan, the trial court stated as follows:

              A material change of circumstances has occurred since the 2004
       Permanent Parenting Plan order. The Mother will not properly communicate
       with Father regarding the child’s interest and welfare. After a comparative
       analysis of the evidence and factors regarding modification of custody, it is in
       the childs [sic] best interest and welfare for the Father to be Primary
       Residential Parent.

              The Court has considered, continuity, primary care giver, school
       records, performance of each parent in providing for the child, the child’s
       current environment stability, the childs [sic] current environment, the stability
       of the family units of each parent, evidence of abuse to the child, and the
       character and behavior of other persons in the childs [sic] home and their
       interaction with the child. The child is in an unsafe and unstable environment.
       Mother has no stable family unit. The child has reported wrongful touching
       by the Mothers [sic] live in boyfriend. The character and behavior of the live
       in boyfriend is not in the childs [sic] best interest.

               The child has been moved 9 times and enrolled in 5 different schools
       over the last 5 years without good cause. It is Mothers [sic] involvement with
       her live in boyfriend driving the constant moves and school changes. The
       child reported sexual touching by the live in boyfriend to her Mother. Mother
       failed to protect the child, instructing the child nothing could be done since the
       live in boyfriend paid the bills. Mother resisted and was totally uncooperative


       5
        (...continued)
       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.

                                                    -4-
       in Fathers [sic] efforts to obtain a child counselor at his expense for the
       daughter. The Court finds the child was in need of such counseling. The
       counseling disclosed withdrawal, witnessing domestic disturbances between
       Mother and her live in boyfriend, police presence in the home, and being
       constantly punished by the Mother for telling her Father about her home
       circumstances. The child counselor obtained by Father is found to be very
       professional and credible. The child is withdrawn, scared, fearful of her
       Mother and her live in boyfriend, emotional over comments by the live in
       boyfriend to harm her Father, and unsettled with the constant moves and
       school changes.

              Father is found to be stable, married, [has] stable employment, and an
       adequate and appropriate home. Father has remarried and step mother is found
       to be supportive and attentive. The three step brothers age 5, 5, and 9 have a
       close relationship with the child and use appropriate demeanor and manners.

               Mother has no credibility with the Court. Her claims of recent found
       changed beliefs and the boyfriend having moved out the weekend before the
       trial are not credible and more importantly come very late for the Court to
       believe Mothers [sic] statement of her intent to change.

              A comparative analysis establishes the child lives in an unstable, unsafe
       environment, lacks stability in the current placement, and is subjected to a third
       person with questionable behavior and character. Mothers [sic] reliance on
       continuity and primary care giver do not support the child’s continued
       placement with Mother as Primary Residential Parent in light of the foregoing.

       We must first address whether a material change of circumstances occurred since the
entry of the Final Decree that affected the child’s well being. It is undisputed that Mother
moved the child nine (9) times since the entry of the Final Decree, which resulted in the child
having to enroll in five (5) different schools. These decisions by Mother caused great
instability in the child’s life. It is also undisputed that Mother continued to live with her
boyfriend, even after she learned of his inappropriate behavior toward the child. The
environment in Mother’s home was such that the child witnessed domestic disturbances,
frequent altercations involving Mother’s oldest daughter, and was punished if she informed
Father of these circumstances. Moreover, as testified by the child’s counselor, the child was
withdrawn, scared, and fearful of Mother and her live-in boyfriend. Accordingly, we cannot
say that the evidence preponderates against the trial court’s finding that a material change of
circumstances occurred that affected the well being of the child.



                                              -5-
        Next, we must address whether modification of the parenting plan was in the child’s
best interest in light of the comparative fitness of Mother and Father. In making its decision,
the court must consider the following factors:

               (1) The love, affection and emotional ties existing between the parents
       or caregivers and the child;
               (2) The disposition of the parents or caregivers 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 on 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; provided, that, where there are allegations that
       one (1) parent has committed child abuse, as defined in [section] 39-15-401 or
       [section] 39-15-402, or child sexual abuse, as defined in [section] 37-1-602,
       against a family member, the court shall consider all evidence relevant to the
       physical and emotional safety of the child, and determine, by a clear
       preponderance of the evidence, whether such abuse has occurred. The court
       shall include in its decision a written finding of all evidence, and all findings
       of facts connected to the evidence. In addition, the court shall, where
       appropriate, refer any issues of abuse to the juvenile court for further
       proceedings;
               (9) The character and behavior of any other person who resides in or
       frequents the home of a parent or caregiver and the person's interactions with
       the child; and
               (10) 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.

Tenn. Code Ann. § 36-6-106(a)(1)-(10).

                                              -6-
        Like the determination of whether a material change in circumstance has occurred,
the determination of where the best interest of the child lies is largely a factual matter.
Adams v. Adams, No. W2008-00225-COA-R3-CV, 2009 WL 690697, at *12 (Tenn. Ct. App.
Mar. 17, 2009). Moreover, as in most custody actions, the factual matters to be determined
by the trial court when considering the factors set forth in Tennessee Code Annotated section
36-6-106 require an assessment of the credibility of the parties and the witnesses. “Because
the trial judge is in the best position to assess the credibility of the witnesses, such credibility
determinations are entitled to great weight on appeal.” Burden v. Burden, 250 S.W.3d 899,
905 (Tenn. Ct. App. 2007) (citing Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.
Ct. App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991)).

        Although Mother was the primary care giver for the child since the entry of the Final
Decree, the environment in Mother’s home with her live-in boyfriend and oldest daughter
was unstable and unsafe. On the other hand, Father has a safe and stable home in which his
wife and stepchildren maintain a strong relationship with the child. Despite Mother’s
claimed intent to change and statements that her boyfriend moved out shortly before trial, the
trial court concluded that Mother was not credible. Moreover, the testimony of the child’s
counselor, who the trial court found to be very credible, illustrates the effects that Mother’s
decisions and unstable home environment had on the child. Accordingly, giving due
deference to the trial court’s credibility determinations, we conclude that the evidence in the
record does not preponderate against the trial court’s finding that modification of the
parenting plan was in the best interest of the child.

       Finally, we must address Father’s claim that the trial court erred in denying his request
for attorney’s fees at trial. Father also requests an award of attorney’s fees incurred on
appeal. Father seeks attorney fees pursuant to Tennessee Code Annotated section 36-5-
103(c), which provides:

       The plaintiff spouse may recover from the defendant spouse, and the spouse
       or other person to whom the custody of the child, or children, is awarded may
       recover from the other spouse reasonable attorney fees incurred in enforcing
       any decree for alimony and/or child support, or in regard to any suit or action
       concerning the adjudication of the custody or the change of custody of any
       child, or children, of the parties, both upon the original divorce hearing and at
       any subsequent hearing, which fees may be fixed and allowed by the court,
       before whom such action or proceeding is pending, in the discretion of such
       court.

Tenn. Code Ann. § 36-5-103(c). This statutory provision also applies to awards of attorney
fees incurred on appeal. See Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App.

                                                -7-
2004)(“Tenn. Code Ann. § 36-5-103(c) (Supp.2004) vests in this court the discretionary
authority to award these fees and costs in proper cases.”).

        In the proceedings below, the trial court ordered that each party was responsible for
their respective attorney’s fees. An award of attorney’s fees in child custody actions is within
the discretion of the trial court. Kesterson v. Varner, 172 S.W.3d 556, 573 (Tenn. Ct. App.
2005). We emphasize that the abuse of discretion standard does not permit this Court to
substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920,
927 (Tenn. 1998). Rather, “[u]nder the abuse of discretion standard, a trial court's ruling
‘will be upheld so long as reasonable minds can disagree as to propriety of the decision
made.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Scott, 33
S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000)). After
reviewing the record, we find no error in the trial court’s discretionary decision to deny
Father’s request for attorney’s fees. Further, exercising our discretion, we decline to award
attorney’s fees incurred on appeal.

                                         Conclusion

       For the foregoing reasons, we affirm the judgment of the trial court. Costs of this
appeal are taxed to the Appellant, Merlina (Williams) Draper, and her surety, for which
execution may issue if necessary.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE




                                              -8-
