                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                              September 22, 2010 Session

                       ROBERT HENRY ROBINSON, JR. v.
                       ANN PREVATT ROBINSON IRONS

                  Appeal from the Circuit Court for Monroe County
                       No. 10916     J. Michael Sharp, Judge


             No. E2010-00249-COA-R3-CV - FILED OCTOBER 7, 2010




Robert Henry Robinson, Jr. (“Father”) and Ann Prevatt Robinson Irons (“Mother”) were
divorced in 1998. The parties have two minor children. Although they initially had equal
co-parenting time, in March of 1999 Mother was designated as the primary residential parent
with Father having weekend co-parenting time. In October of 2007, Father was designated
as the primary residential parent due to a threat posed by Mother’s husband, John Irons, a
suspected arsonist. The Trial Court held that this threat constituted a material change in
circumstances and that it was in the children’s best interest for Father to be primary
residential parent. In January of 2010, pursuant to a petition to modify filed by Mother, the
Trial Court determined that this threat no longer existed and the absence of the threat
constituted a material change in circumstances. The Trial Court then designated Mother as
the primary residential parent. Father appeals claiming there was no material change in
circumstances. We affirm the Trial Court’s finding that there was a material change in
circumstances. Because the Trial Court never made a finding as to what was in the children’s
best interest, we remand this case to the Trial Court for such a determination.


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


D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.

D. Mitchell Bryant, Athens, Tennessee, for the Appellant, Robert Henry Robinson, Jr.

Shari Tayloe Young, Cleveland, Tennessee, for the Appellee, Ann Prevatt Robinson Irons.
                                         OPINION

                                        Background

                Father filed for divorce from Mother in January 1998. The parties have two
children, a son who will be eighteen years old in November of 2010, and a daughter who
currently is fifteen years old. The parties entered into a marital dissolution agreement which
provided that they would have joint and equal custody of the minor children. In May of
1998, the Trial Court approved the marital dissolution agreement, and the parties were
divorced. An order entered in April of 1999 continued the joint custody arrangement, but set
Father’s co-parenting time from Thursday at 8:00 a.m. until Sunday at 1:00 p.m. Further
changes to Father’s co-parenting time occurred in June 1999 after Father moved to Maryland
to pursue better employment opportunities. When Father moved, Mother was designated as
the primary residential parent with Father’s co-parenting time being every other weekend.
Father also was granted co-parenting time for four weeks over the summer break and one
week over the Christmas break.

              The parties’ post-divorce relationship has been contentious, and they have filed
numerous petitions seeking to modify custody and petitions for contempt over the years. For
the sake of brevity, we will discuss only those petitions relevant to this appeal.

             On September 26, 2007, Father filed an “Emergency Petition for Modification”
seeking primary custody of the two children. According to Father’s petition:

                     [Mother] is married to John Wesley Irons. There have
              been problems apparently between Mr. Irons and Ms. Irons over
              the years.

                      Your Petitioner has learned John Wesley Irons has now
              been indicted for numerous counts of arson in the Federal
              District Court for the Eastern District of Tennessee at Knoxville
              in a case styled United States of America v. John Wesley Irons
              # 3:07-cr-95. According to newspaper accounts of Mr. Irons’
              arrest, Ms. Irons was also involved in said arsons, over the
              years, at least to the extent she dropped Mr. Irons off at various
              locations in the Cherokee National Forest and later picked him
              up after he had set these fires.

                   The actions of Ms. Irons, given her history in this case,
              show she is not a suitable person to continue as primary

                                             -2-
              residential custodian of the parties’ two (2) minor children, and
              as such, your Petitioner would request this court modify its
              previous orders and name him primary residential custodian of
              both minor children.

              Mother opposed Father’s petition, and a hearing was conducted in October
2007. Following that hearing, the Trial Court granted the petition and designated Father as
the primary residential parent. According to the Trial Court:

                     The Court, having reviewed the file and further having
              heard the sworn testimony of the parties in open Court finds the
              mother in this cause . . . has shown very poor judgment
              throughout this case, and the Court had previously expressed
              concerns regarding her ability to remain as primary residential
              parent for the minor children.

                     The Court further finds a dangerous situation has been
              created by the actions of [Mother] and her relationship with her
              present husband who is currently in custody pursuant to a
              Federal Indictment.

                     The Court further finds though the children would
              express a preference to remain with the mother, this only further
              shows they do not recognize the magnitude of potential danger
              and harm in this case. And the Court finds the safety of the
              children being paramount that a change of primary residential
              custodian is necessary . . . .

The children were ages twelve and fourteen when the order was entered on November 2,
2007, changing primary residential custody to Father.

               Approximately three months after the above order was entered, Mother filed
a petition seeking to change custody. Mother claimed that at times the children were being
left without adult supervision, the children’s grades were rapidly declining, Father’s current
wife was a Wiccan, the children witnessed Father’s seventeen year-old step-daughter come
home drunk, and Father was encouraging the parties’ son to make smoke bombs.

            Following a hearing on Mother’s petition, the Trial Court entered an order on
March 31, 2008, stating as follows:



                                             -3-
                [Mother] must show a material change in circumstance between
                the date of the hearing and the filing of her petition such as
                would necessitate a change of primary residential parent.

                        The Court has reviewed the allegations . . . and finds that
                there is no creditable proof regarding any Wiccan practices
                taking place in the Robinson home. The Court further finds that
                no harm was occasioned by the making or setting off of any
                smoke bombs, but does find that if said smoke bombs are made
                or set off in the future that that should be done under direct adult
                supervision.

                        The Court further finds that both children are very
                intelligent, and there is no real reason for the parties’ son not to
                be making good grades. The Court finds that no actions or
                conduct on the Father’s part have caused the son’s grades to
                drop, and that the Father has addressed the situation
                appropriately. . . .

               The Trial Court went on to state that both Father and his wife have addressed
situations involving the children and the wife’s daughter appropriately. Even though the
children again expressed a preference to live with Mother, the Trial Court found that Mother
had failed to prove the existence of a material change in circumstances.

              On October 26, 2009, Mother filed another petition for modification. In this
petition, Mother alleged, among other things, that:

                        [Petitioner’s] estranged Husband, John Irons was arrested
                for 14 counts of arson on federal property. Petitioner cooperated
                with Federal authorities as they made their case against John
                Irons. John Irons was denied bail and has been incarcerated
                since his arrest in 2007. The trial for John Irons had been
                postponed several times, but is currently set for trial on
                November 9, 2009 1 . . . .

                      Petitioner filed for divorce from John Irons in November
                2008, which is currently before this Court. Petitioner and John


        1
       The parties indicated at oral argument that the criminal trial of John Irons was continued from the
November 9, 2009, trial date as well.

                                                   -4-
                Irons announced to the Court on March 2, 2009, that the parties
                had agreed to terms to resolve the divorce and that [the] parties’
                attorneys would draft the appropriate documents to present to
                the Court. Those documents were drafted with Petitioners’
                signature, but due to John Irons’ issues with his criminal
                attorney, they have not been executed by John Irons at this
                time. . . .

                       Petitioner’s estranged husband, John Irons, remains in
                federal custody and is not a threat to Petitioner or her
                children. . . . [T]he minor children spent the entire summer with
                Petitioner in Tennessee, and experienced no danger from John
                Irons.

              A hearing was conducted on Mother’s petition for modification. At the
hearing, both parties and the children testified. The pertinent testimony at the hearing, as set
forth in a Tenn. R. App. P. 24(c) statement of the evidence, was as follows 2 :

                         [Father] testified at the December 1, 2009 hearing in the
                above-styled matter. . . . [Father] testified the children were
                doing well in his home academically. The son . . . was involved
                in band, and his daughter had several friends, with whom she
                was involved. Father took the daughter to school early each
                morning, so she could meet with and spend time with her
                friends. Father testified that both children were loved and cared
                for in his home. He further testified that he was concerned
                about the situation involving Mr. John Irons, although he was
                still in custody. [Mother] had presented documents where Mr.
                Irons’ sanity had been questioned by his criminal counsel. . . .

                       Mother testified she was not having any contact with Mr.
                John Irons. She admitted the parties were not yet divorced, but
                she had been trying to obtain a divorce from Mr. Irons.
                [Mother] had apparently filed for divorce from Mr. Irons, and



        2
          We have been provided a Tenn. R. App. P. 24(c) statement of the evidence in lieu of a transcript
from the hearing. The statement of the evidence was approved by the Trial Court. Although both parties
attached a transcript of the hearing to their briefs, the transcript cannot be considered on appeal because it
is not part of the record.

                                                     -5-
                had obtained some type of temporary support, which she was
                unable to enforce because of his continued incarceration.

                        There has previously been some written communication
                from [Mother] to Mr. Irons and vice versa, but that had ceased.
                [Mother] testified Mr. Irons posed no danger to the children as
                he was incarcerated, and both children had expressed a strong
                desire to return to the Tellico Plans area. . . .3

Both children testified in chambers and “expressed a strong preference to return to Tennessee
and live with Mother.”

              Following the hearing, an Order was entered in January 2010 resolving
Mother’s petition for modification of custody. After discussing various financial issues
which are not pertinent to this appeal, the Trial Court stated:

                        In regards to [Mother’s] Petition for Modification, the
                Court finds that a material change in circumstance has occurred
                in that the dangerous situation which existed in October 2007
                when the Court changed custody from [Father] to [Mother] no
                longer exists.

                       In regards to [Mother’s] Petition for Modification, the
                children, ages 17 and 14, have expressed their desire to the
                Court to return to the custody of their Mother. . . .

            Father appeals raising one issue: “Was there a Material Change in
Circumstance such as would justify the Court changing custody of the parties’ two minor
children?”

                                             Discussion

               Father claims that the Trial Court erred when it found there had been a material
change in circumstances. Existing custody arrangements are favored since children thrive
in stable environments. Aaby v. Strange, 924 S.W.2d 623, 627 (Tenn. 1996); Hoalcraft v.
Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). A custody decision, once made and
implemented, is considered res judicata upon the facts in existence or those which were


        3
         We have omitted testimony pertaining solely to the contempt issues surrounding financial matters
which are not at issue on appeal.

                                                  -6-
reasonably foreseeable when the initial decision was made. Steen v. Steen, 61 S.W.3d 324,
327 (Tenn. Ct. App. 2001). Our Supreme Court, however, has held that a trial court may
modify an award of child custody “when both a material change of circumstances has
occurred and a change of custody is in the child’s best interests.” See Kendrick v. Shoemake,
90 S.W.3d 566, 568 (Tenn. 2002). According to the Kendrick Court:

              As explained in Blair [v. Badenhope, 77 S.W.3d 137 (Tenn.
              2002)], the “threshold issue” is whether a material change in
              circumstances has occurred after the initial custody
              determination. Id. at 150. While “[t]here are no hard and fast
              rules for determining when a child’s circumstances have
              changed sufficiently to warrant a change of his or her custody,”
              the following factors have formed a sound basis for determining
              whether a material change in circumstances has occurred: the
              change “has occurred after the entry of the order sought to be
              modified,” the change “is not one that was known or reasonably
              anticipated when the order was entered,” and the change “is one
              that affects the child’s well-being in a meaningful way.” Id.
              (citations omitted).

Kendrick, 90 S.W.3d at 570. See also Tenn Code Ann. § 36-6-101(a)(2)(B)(“If the issue
before the court is a modification of the court’s prior decree pertaining to custody, the
petitioner must prove by a preponderance of the evidence a material change in circumstances.
A material change of circumstances does not require a showing of a substantial risk of harm
to the child.…”).

               The Kendrick Court went on to explain that if a material change in
circumstances has been proven, “it must then be determined whether the modification is in
the child’s best interests . . . according to the factors enumerated in Tennessee Code
Annotated section 36-6-106.” Kendrick, 90 S.W.3d at 570. It necessarily follows that if no
material change in circumstances has been proven, the trial court “is not required to make a
best interests determination and must deny the request for a change of custody.” Caudill v.
Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999).

               If a material change in circumstances has been proven, undertaking a best
interests analysis applying Tenn. Code Ann. § 36-6-106(a) requires a trial court to consider
the following:

                    (1) The love, affection and emotional ties existing
              between the parents or caregivers and child;

                                             -7-
                    (2) The disposition of the parents or caregiver to provide
             the child with food, clothing, medical care, education and other
             necessary care and the degree to which a parent or caregiver has
             been the primary caregiver;

                    (3) The importance of continuity in the child’s life and
             the length of time the child has lived in a stable, satisfactory
             environment . . . ;

                    (4) The stability of the family unit of the parents or
             caregivers;

                    (5) The mental and physical health of the parents or
             caregivers;

                    (6) The home, school and community record of the child;

                    (7) (A) The reasonable preference of the child if twelve
             (12) years of age or older;

                       (B) The court may hear the preference of a younger
             child upon request. The preferences of older children should
             normally be given greater weight than those of younger children;

                     (8) Evidence of physical or emotional abuse to the child,
             to the other parent or to any other person . . . ;

                    (9) The character and behavior of any other person who
             resides in or frequents the home of a parent or caregiver and
             such person’s interactions with the child; and

                     (10) Each parent or caregiver’s past and potential for
             future performance of parenting responsibilities, including the
             willingness and ability of each of the parents and caregivers to
             facilitate and encourage a close and continuing parent-child
             relationship between the child and both of the child’s parents,
             consistent with the best interest of the child.

Tenn. Code Ann. § 36-6-106(a) (Supp. 2009).



                                            -8-
              Although we have been provided little factual information, the information that
has been provided enables us to conclude that the evidence in the record before us does not
preponderate against the Trial Court’s finding that there has been a material change in
circumstances. Mother testified to the steps she had taken to eradicate Mr. Irons from her
and the children’s lives. The evidence contained in the record does not preponderate against
the Trial Court’s finding that the threat once posed by the presence of Mr. Irons has been
eliminated by Mother and the federal criminal prosecution of Mr. Irons.

               If Mr. Irons’ presence or potential for being present was such that it presented
a threat to the children which constituted a material change in circumstances in November
2007, it necessarily follows that the removal of that threat also constitutes a material change
in circumstances. Accordingly, we conclude that the evidence does not preponderate against
the Trial Court’s finding that Mother had proven a material change in circumstances.

               As set forth previously, if a trial court concludes that there has been a material
change in circumstances, the next required step is to ascertain whether a change in custody
is in the child’s best interest according to the factors set forth in Tenn. Code Ann. § 36-6-
106(a). Kendrick, 90 S.W.3d at 570. In the present case, the Trial Court never made this
determination. The order changing custody from Father to Mother never mentions the best
interest of the children or which of the factors in Tenn. Code Ann. § 36-6-106(a) are
applicable and impacted the decision.

               Because of the dearth of evidence in the record on appeal, we cannot make this
determination and we do not believe it is appropriate to assume the Trial Court made such
a determination. Therefore, we vacate the Trial Court’s judgment transferring primary
residential custody to Mother and remand this case to the Trial Court to make an express
finding as to the children’s best interest consistent with the factors set forth in Tenn. Code
Ann. § 36-6-106(a).4 In the meantime, the children are to remain where they are at the
present time pending the Trial Court’s determination as to what is in their best interest.




        4
         We realize that the parties’ son will turn eighteen on November 29, 2010, and that these proceedings
as to custody will become moot as far as the parties’ son is concerned.

                                                    -9-
                                        Conclusion

              The judgment of the Trial Court is affirmed in part and vacated in part and this
cause is remanded to the Circuit Court for Monroe County for further proceedings consistent
with this Opinion and for collection of the costs below. Costs on appeal are taxed one-half
to the Appellant, Robert Henry Robinson, Jr., and his surety, and one-half to the Appellee,
Ann Prevatt Robinson Irons, for which execution may issue, if necessary.




                                                    ________________________________
                                                    D. MICHAEL SWINEY, JUDGE




                                             -10-
