                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                September 8, 2010 Session

              JOSEPH PATRICK HYDE v. AMANDA BRADLEY

              Direct Appeal from the Juvenile Court for Sumner County
                       No. 81-188     Barry R. Brown, Judge


                No. M2009-02117-COA-R3-JV - Filed October 12, 2010


This is an appeal from the trial court's denial of Father/Appellant's petition to be named the
minor child’s primary residential parent or, in the alternative, to increase his parenting time.
The trial court denied Father’s petition, and also denied Father an award of attorney’s fees
and costs under Tenn. Code Ann. § 36-5-103(c). Finding that Father failed to meet his
burden to show a material change in circumstances sufficient to warrant a change in the
child’s primary residential parent and/or the child’s residential schedule, and that the trial
court did not abuse its discretion in denying attorney’s fees and costs, we affirm.

 Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Juvenile Court Affirmed

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

Mark T. Freeman, Nashville, Tennessee, for the appellant, Joseph Patrick Hyde.

James B. Hawkins and Randy Lucas, Gallatin, Tennessee, for the appellee, Amanda Bradley.


                                          OPINION

       On December 17, 2005, the minor child at issue in this case was born to the Appellee,
Amanda Bradley. Ms. Bradley was not married to the child’s father, Appellant Joseph
Patrick Hyde. The State of Tennessee, ex rel. Amanda Bradley provided Title IV-D support
for the child, and, consequently, filed a petition to establish paternity. Genetic testing
established that Mr. Hyde was the biological father, and in December, 2006, the trial court
adjudicated Mr. Hyde to be the child’s father.1

       On May 2, 2007, Ms. Bradley and Mr. Hyde appeared before the Sumner County
Juvenile Court and announced that they had entered into an agreed parenting plan. The Court
found that the parties had agreed, and entered an order on June 1, 2007. Pursuant to the
parties’ agreement, the court ordered that Ms. Bradley would be the primary residential
parent, and that Mr. Hyde would enjoy time with the child pursuant to the residential
schedule entered by the court.2


          1
              The order adjudicating Mr. Hyde to be the child’s biological father is not contained in the appellate
record.
          2
         We note that Father submitted his brief and appeal using the terms of “custody” and “visitation.”
As recently explained by this Court:

                     These terms, while not entirely obsolete, are outmoded when considering
                     a determination of parental responsibility under the parenting plan statute,
                     Tennessee Code Annotated section 36-6-401 et seq., which was adopted in
                     part to change the language of child custody decisions. See Janet Leach
                     Richards, Richards on Tennessee Family Law, § 8-2(e) (3d ed.2008)
                     (footnotes omitted). Judge Don. R. Ash, one of the leading proponents of
                     reform, explained the need to recast the terminology of these decisions:
                     “The archaic terms ‘custody’ and ‘visitation’ convey ownership over the
                     child and imply that one party is merely a visitor in the home. These terms
                     should be replaced with more user-friendly words.” Judge Don R. Ash,
                     Bridge Over Trouble Water: Changing the Custody Law in Tennessee, 27
                     U. Mem. L. Rev. 769, 801 (2007) (footnote omitted). The parenting plan
                     statute did just that, replacing the traditional concepts of joint legal and
                     physical custody with a new concept: the residential parenting schedule.
                     19A W. Walton Garrett, Tennessee Practice Series: Tennessee Divorce,
                     Alimony and Child Custody § 26:3, at 78 (2d rev. ed.2007). As a result,
                     traditional terms such as custody, visitation, custodial parent, and
                     noncustodial parent have given way to new terms, e.g., “residential
                     schedule, temporary and permanent parenting plans, primary residential
                     parent, alternate residential parent, and parenting responsibilities.”
                     Richards, supra, at § 8-2(e) (footnotes omitted). Because this change was
                     intended to inspire parties to move beyond the win-lose mentality present
                     in previous disputes over parental responsibility, see id., we find it
                     appropriate to re-frame [Father's] argument in these terms. We note,
                     however, that the change of terminology does not necessarily undermine
                     the reasoning of previous opinions deciding custody and visitation disputes
                     where the same concerns-supporting parent-child relationships, providing
                     a mechanism for decision-making, allocating time with the child, promoting
                     the child's best interests-predominated our review.
                                                                                                    (continued...)

                                                         -2-
       On October 19, 2007, Mr. Hyde filed a petition for contempt against Ms. Bradley, and
appeared pro se at the November 19, 2007 hearing on the petition. Following that hearing,
the court found that Ms. Bradley was in willful contempt for failing to adhere to the
residential schedule, as established by the June 1, 2007 order, supra. Ms. Bradley was
ordered to pay Mr. Hyde $250.00 in attorney fees, as well as the court costs.

        On October 7, 2008, Mr. Hyde filed a second petition for contempt against Ms.
Bradley, and also petitioned the court to make Mr. Hyde the primary residential parent or,
in the alternative, to modify the current parenting plan to allow Mr. Hyde more time with the
child. Specifically, Mr. Hyde asked the court to find Ms. Bradley in civil and criminal
contempt, and asked the court to “deem [Mr. Hyde] the primary residential parent of the
minor child” on alleged grounds that Ms. Bradley had engaged in “intentional and malicious
act[s] of contempt...in her effort to keep...the child from [Mr. Hyde].” It is important to note
that Mr. Hyde’s petition does not state that modification of the child’s residential parent or
schedule would be in the child’s best interests. In fact, from his petition, it appears that Mr.
Hyde’s sole basis for seeking modification of the parenting arrangement is Ms. Bradley’s
alleged contempt in failing to comply with the previous order of the court. On November
13, 2008, Ms. Bradley filed an answer to Mr. Hyde’s petition, wherein she specifically denied
the allegations that she had violated the court’s order and had willfully kept the child from
Mr. Hyde. In addition to denying the material allegations of Mr. Hyde’s petition, Ms.
Bradley also averred that Mr. Hyde had:

                repeatedly refused to obey the Court’s Order regarding pickup
                time of the child...despite [Ms. Bradley’s] efforts to work with
                [Mr. Hyde, he] refuses to pick up the child on time for his
                parenting time[,] and is usually between 30 minutes and an hour
                late in picking up the child or doesn’t show up at all.

       An initial hearing was held on November 19, 2008. At that time, the parties informed
the court that they had reached an agreement to modify the child’s residential schedule
temporarily to allow certain visitation during the holiday season. On November 28, 2008,
the court entered an interim order, allowing the parties’ holiday parenting schedule, but
indicating that the regular schedule would resume on January 9, 2009. The court also set a


        2
        (...continued)
In re Emma E., No. M2008-02212-COA-R3-JV, 2010 WL 565630 at n. 2 (Tenn. Ct. App. Feb. 17, 2010).

         We also note that remnants of the “old” terminology remains in the Code as demonstrated by the use
of the term “custody” in Tenn. Code Ann. § 36-6-101(a)(2)(B).


                                                   -3-
date for the hearing on Mr. Hyde’s petition for permanent modification of the child’s
residential schedule.

       The hearing on Mr. Hyde’s petition began on February 19, 2009. Following this
hearing, the court ordered both parties to attend parenting classes “within a six-month
period” from February 19, 2009. The court then set a court date of July 23, 2009 to review
the matter. An order was entered on April 29, 2009, which indicates that the court “chooses
not to make a permanent ruling in this matter but rather to reset this matter for follow up
hearing.” The order also correctly notes that “both parties have the right to know and
participate in the child’s life.”

        At the review hearing on July 23, 2009, both parties provided proof that they had
attended a parenting class as directed by the court. Following that hearing, the court entered
its order on September 10, 2009. From our reading, it appears that the court did not make
substantive changes in the original parenting arrangement; rather, the court’s order clarifies
issues concerning Mother’s Day, Father’s Day, holidays, and summer vacation, including
applicable pick up and drop off times. In addition, Mr. Hyde was granted two non-
consecutive weeks with the child during the summer. The court further ordered that Ms.
Bradley would pay Mr. Hyde’s attorney’s fees. The amount of the attorney’s fees was
reserved, pending submission of Mr. Hyde’s attorney’s affidavit of fees. Following
submission of this information, on September 10, 2009, the court entered an order indicating
that, after review of the affidavit of fees, Ms. Bradley “should be responsible for $0 in
attorney’s fees and $0 in discretionary fees.”

       Mr. Hyde appeals, rasing two issues for review, as stated in his brief:

              1. Whether the trial court erred in failing to modify the
              parenting time in favor or Mr. Hyde.

              2. Whether the trial court erred in failing to award attorney’s
              fees and discretionary costs to Mr. Hyde.

       We review the trial court's conclusions of law under a de novo standard, with no
deference to the conclusions made by the lower court. Kendrick v. Shoemake, 90 S.W.3d
566, 569-70 (Tenn. 2002); Southern Constructors, Inc. v. Loudon County Bd. Of Educ.,
58 S.W.3d 706, 710 (Tenn. 2001). A "review of findings of fact by the trial court in civil
actions shall be de novo upon the record of the trial court, accompanied by a presumption of
the correctness of the finding, unless the preponderance of the evidence is otherwise." Tenn.
R. App. P. 13(d); Kendrick, 90 S.W.3d at 570.



                                             -4-
       In applying the de novo standard, "we are mindful that ‘[t]rial courts are vested with
wide discretion in matters of child custody’ and that ‘the appellate courts will not interfere
except upon a showing of erroneous exercise of that discretion.'" Johnson v. Johnson, 169
S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Koch v. Koch, 874 S.W.2d 571, 575 (Tenn.
Ct. App. 1993)). "Because ‘[c]ustody and visitation determinations often hinge on subtle
factors, including the parents' demeanor and credibility during ... proceedings themselves,’
appellate courts ‘are reluctant to second-guess a trial court's decisions.’” Johnson, 169
S.W.3d at 645 (quoting Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1993)).

      Change of Primary Residential Parent and/or Modification of the Child’s
                              Residential Schedule


        In these cases, the law is well settled that, when a decree concerning a child’s primary
residential parent and/or residential schedule has been entered, that decree is res judicata and
is conclusive in a subsequent application to change the arrangement, unless some new fact
has occurred, which fact has altered the circumstances in a material way, so that the welfare
of the child requires a change of the original parenting plan. Long v. Long, 488 S.W.2d 729
(Tenn. Ct. App. 1972). In short, once the trial court has made an initial determination with
respect to a child’s residential schedule, it cannot entertain a subsequent petition to modify
that arrangement absent a material change in circumstances, such that the welfare of the child
demands a redetermination. See, e.g., Massengale v. Massengale, 915 S.W.2d 818, 819
(Tenn. Ct. App. 1995). A "material change in circumstances" justifying modification of a
child’s residential schedule may include factors arising after the initial determination or
changed conditions that could not be anticipated at the time of the original order. See Blair
v. Badenhope, 940 S.W.2d 575, 576 (Tenn. Ct. App. 1996) (citing Dalton v. Dalton, 858
S.W.2d 324, 326 (Tenn. Ct. App. 1993)). If the trial court finds that there has been a material
change in circumstances, it will then consider the petition to modify the residential schedule
using a "best interest" standard.3 Woolsey v. McPherson, No. 02A01-9706-JV-00125, 1998


       3
           The best interests factors are enumerated at T.C.A. § 36-6-106, which provides:

                 (a) In a suit for annulment, divorce, separate maintenance, or in any other
                 proceeding requiring the court to make a custody determination regarding
                 a minor child, the determination shall be made on the basis of the best
                 interest of the child. The court shall consider all relevant factors, including
                 the following, where applicable:

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

                                                      -5-
3
    (...continued)
            (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; provided, that,
            where there is a finding, under subdivision (a)(8), of child abuse, as defined
            in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in §
            37-1-602, by one (1) parent, and that a nonperpetrating parent or caregiver
            has relocated in order to flee the perpetrating parent, that the relocation
            shall not weigh against an award of custody;
            (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 § 39-15-401 or §
            39-15-402, or child sexual abuse, as defined in § 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 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.

           (b) Notwithstanding the provisions of any law to the contrary, the court has
           jurisdiction to make an initial custody determination regarding a minor
           child or may modify a prior order of child custody upon finding that the
           custodial parent has been convicted of or found civilly liable for the
           intentional and wrongful death of the child's other parent or legal guardian.
           (c) As used in this section, "caregiver" has the meaning ascribed to that
           term in § 37-5-501.
                                                                                             (continued...)

                                                 -6-
499733, at *3 (Tenn. Ct. App. July 16, 1999) (citing Smith v. Haase, 521 S.W.2d 49, 50
(Tenn. 1975.)); McDaniel v. McDaniel, 743 S.W.2d 167, 169 (Tenn. Ct. App. 1987); Hall
v. Hall, No. 01A01-9310-PB-00465, 1995 WL 316255, at *2 (Tenn. Ct. App. May 25, 1995).
Under this standard, the primary inquiry is whether there has been a material change in the
child's circumstances.

       We note that the determination of whether a “material change of circumstances” has
occurred requires a different standard depending upon whether a parent is seeking to change
the primary residential parent, or seeking to modify the existing residential parenting
schedule. Tenn. Code Ann. § 36-6-101(a)(2)(B)-(C); see also Pippin v. Pippin, 277 S.W.3d
398, 406-07 (Tenn. Ct. App. 2008) (citing Massey-Holt v. Holt, 255 S.W.3d 603 (Tenn. Ct.
App. 2007)).4 As previously stated by this Court, “a ‘change in circumstance’ with regard


       3
           (...continued)
                   (d) Nothing in subsections (a) and (c) shall be construed to affect or
                   diminish the constitutional rights of parents that may arise during and are
                   inherent in custody proceedings.
       4
           In pertinent part, Tenn. Code Ann. § 36-6-101(a)(2)(B)-(C) provides:

                  (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 circumstance. A material change of
                  circumstance does not require a showing of a substantial risk of harm to the
                  child. A material change of circumstance may include, but is not limited to,
                  failures to adhere to the parenting plan or an order of custody and visitation
                  or circumstances that make the parenting plan no longer in the best interest
                  of the child.

                  *                              *                              *

                  (C) 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
                                                                                                    (continued...)

                                                       -7-
to the parenting schedule is a distinct concept from a ‘change in circumstance’ with regard
to the identity of the primary residential parent.” Massey-Holt, 255 S.W.3d at 607. Tenn.
Code Ann. § 36-6-101(a)(2)(C) establishes a lower threshold for modification of a residential
parenting schedule. Scofield v. Scofield, No. M2006-00350-COA-R3-CV, 2007 WL 624351,
at *3 (Tenn. Ct. App. Feb. 28, 2007) (citing Rose v. Lashlee, No.
M2005-00361-COA-R3-CV, 2006 WL 2390980, at *2, n. 3 (Tenn. Ct. App. Aug. 18, 2006)
(holding that Tenn. Code Ann. § 36-6-101(a)(2)(C) “sets a very low threshold for
establishing a material change of circumstances”)).

       Although there is no concrete definition of what constitutes a material change in
circumstances, this Court has enumerated several factors that should be taken into
consideration when determining whether such a change has occurred. In general, the change
must occur after the entry of the order sought to be modified, and the change cannot be one
that was known or reasonably anticipated when the order was entered. Turner v. Turner, 776
S.W.2d 88, 90 (Tenn. Ct. App. 1988); Dalton v. Dalton, 858 S.W.2d 324, 326 (Tenn. Ct.
App. 1993), perm. app. denied (Tenn. July 6, 1993). In addition, the material change in
circumstances must be a change in the child's circumstances, not the circumstances of either
or both of the parents. McCain v. Grim, No. 01A01-9711-CH-00634, 1999 WL 820216, at
*2 (Tenn. Ct. App. Oct.15, 1999). Finally, the change must affect the child's well-being in
a material way. Dailey v. Dailey, 635 S.W.2d 391, 393 (Tenn. Ct. App. 1981), perm. app.
denied (Tenn. Feb. 16, 1982).

       If the petitioner makes a prima facie case of a material change in circumstances, then
the court must determine whether a change in the primary residential parent, or the child’s
residential schedule is in the best interests of the child. In re J.C.S., No.
M2007-02049-COA-R3-PT, 2008 WL 2924982, at *6 (Tenn. Ct. App. July 28, 2008). This
determination requires consideration of a number of factors, including those set forth at
Tenn. Code Ann. § 36-6-106(a) to make an initial custody determination, and those set forth
at Tenn. Code Ann. § 36-6-404(b) to fashion a residential schedule. Id. 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. Tenn. Code Ann. §§
36-6-101(a)(2)(B)-(C) , 36-6-106. In short, the party seeking to change a child’s existing
primary residential parent or residential schedule has the burden of proving that there has
been a material change of circumstances. Tenn. Code Ann. § 36-6-101(a)(2)(B). If the
petitioner cannot demonstrate that the child's circumstances have changed in some material
way, the trial court should not reexamine the comparative fitness of the parents, Caudill v.
Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999), perm. app. denied (Tenn. April 17, 2000),


       4
           (...continued)
                   change in the residential parenting time in the best interest of the child.

                                                       -8-
or engage in a "best interests of the child" analysis. In the absence of proof of a material
change in the child's circumstances, the trial court should not change custody. Curtis v. Hill,
215 S.W.3d 836, 840 (Tenn. Ct. App. 2006), perm. app. denied (Tenn. Nov. 27, 2006);
Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999), perm. app. denied (Tenn.
May 15, 2000).

        At the outset of the hearing on Mr. Hyde’s petition, his attorney announced to the
court that Mr. Hyde was proceeding on grounds that Ms. Bradley had failed to adhere to the
parenting plan. Tenn. Code Ann. §36-6-101(a)(2)(C). Specifically, Mr. Hyde’s attorney
stated that “Ms. Bradley’s...willful failure, to abide by this Court’s order regarding custody
rises to such a level that it gives [the court] authority to modify custody.” Based upon this
allegation, Mr. Hyde asked the court to make Mr. Hyde the primary residential parent, or, in
the alternative, to award equal parenting time to the parties. In response, Ms. Bradley argued
that, any failure to adhere to the court’s parenting schedule was because of Mr. Hyde’s
refusal to pick the child up at the time indicated by the court.

      From the totality of the record, it is clear that there is a great deal of animosity
between these parties. This is a fact that the trial court acknowledged at the February 19,
2009 hearing, to wit:

              I think y’all both love the child, but it doesn’t take a mental
              genius to see what’s going on in some of this matter.

              *                             *                        *

                     [Ms. Bradley], your outright hatred of [Mr. Hyde] is
              astonishing.... The total hatred that you’ve got for this man, and
              I’ve been on the bench for 23 years, scares me. Whether or not
              you like it, he is the father of your baby. Whether or not he was
              there after the baby was conceived, and initially over a year or
              two, that’s water over the dam now....

The Court also noted Mr. Hyde’s part in the parties’ problematic relationship, stating that Mr.
Hyde had also engaged in behavior to aggravate Ms. Bradley, and that he had been less than
forthright in his answers during the hearing. Before sending the parties to parenting classes,
the Court further noted that:

              I don’t care how much hatred you [i.e., Ms. Bradley] have for
              [Mr. Hyde], by law, you’re going to encourage [the relationship
              between the] child [and Mr. Hyde], whether you like it or

                                                -9-
                whether you don’t like it. Children are not stupid, especially this
                child.... She’s a smart kid and can pick up on mother’s hatred
                of [Mr. Hyde].

        Both parties adhered to the trial court’s mandate to attend parenting classes. When
the hearing resumed, on July 23, 2009, the situation between the parties appeared to be much
less volatile. The Court specifically noted that it had “seen a change” in the parties’ attitudes.
Although the court ultimately declined to change the child’s primary residential parent, or
the child’s residential schedule, it did reiterate the terms of the custody arrangement, and did
caution the parties to continue along the path toward peaceful co-existence. The court made
no other findings relevant to a determination of material change in circumstances sufficient
to change either the child’s primary residential parent or the child’s residential schedule.
Having made no such findings, the court did not reach the best interests analysis.

       In Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn. Ct. App. 1997), perm. app.
denied (Tenn. May 11, 1998) this court stated the following:

                No decisions in divorce cases require a more delicate touch than
                those involving child custody and visitation. Courts must strive
                to devise custody arrangements that promote the development of
                the children's relationship with both parents and interfere as
                little as possible with post-divorce family decision-making. See
                Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn.1996); Taylor v.
                Taylor, 849 S.W.2d 319, 331-32 (Tenn.1993). These decisions
                are not intended to reward or to punish parents, see Barnhill v.
                Barnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App.1991), and, in
                fact, the interests of the parents are secondary to those of the
                children. See Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct.
                App.1992); Griffin v. Stone, 834 S.W.2d 300, 302 (Tenn. Ct.
                App.1992).

       While a parent's misconduct may provide some evidence of his or her fitness to be a
child’s primary residential parent, this decision is not, and cannot be, used to punish the
parent.5 It is well established that a child’s residential schedule is to be made to assure the


        5
          Both the courts and the legislature have recognized the importance of enabling the child to maintain
a relationship with the non-custodial parent. See Wilson v. Wilson, 987 S.W.2d 555, 564 (Tenn. Ct. App.
1999); Tenn. Code Ann. § 36-6-106(10). A custodial parent's consistent efforts to thwart a close and
continuing relationship between the child and the non-custodial parent through failure to provide visitation
                                                                                                (continued...)

                                                    -10-
best interests of the child and not to reward or punish a parent. See Adelsperger, 970 S.W.2d
at 485 (neither the mother's move to Mississippi, nor her motivation for moving provided
grounds for making father the primary residential parent); Barnhill v. Barnhill, 826 S.W.2d
443, 453 (Tenn. Ct. App. 1991) (making father the primary residential parent, not to punish
the mother for her relationship with another man, but because the father was comparatively
more fit); Long v. Long, 488 S.W.2d 729, 733 (reversing the trial court's change of primary
residential parent to the father, which decision was based on the mother's boyfriend visiting
until late hours); see also Williams v. Williams, 263 S.W.2d 531, 532 (Tenn. 1953) (noting
that, although father was in contempt, best interests of child are paramount). Likewise, in
the present case, Ms. Bradley has been previously found in contempt for not allowing Mr.
Hyde his ordered visitation; however, Mr. Hyde has often failed to show up on time to pick
the child up. In short, there is fault on the part of both parents. However, we cannot go so
far as to say that the inappropriate conduct on the part of either parent rises to a level
sufficient to warrant a change in the child’s primary residential parent or a change in the
present residential schedule. In short, there is no proof that there has been a material change
in circumstances so as to warrant a change in the current arrangement. Having determined
that Mr. Hyde has failed to satisfy his burden to show a material change in circumstances,
the trial court did not reach the best interests analysis. We find this issue to be without merit.

                                            Attorney’s Fees

       Mr. Hyde asked the court to award him attorney’s fees and costs in bringing his
petition. After hearing evidence, the court stated that reasonable attorney’s fees and costs
would be taxed against Ms. Bradley, pending receipt of Mr. Hyde’s attorney’s affidavit of
fees. However, as set out above, the court ultimately denied these fees in its September 10,
2009 order, wherein the court stated that, after review of the affidavit of fees, Ms. Bradley
“should be responsible for $0 in attorney’s fees and $0 in discretionary fees.” Mr. Hyde
asserts that this ruling was in error, and contends that he should be awarded the attorney's
fees he incurred in the trial court pursuant to Tenn. Code Ann. §36-5-103.

        Tenn. Code Ann. §36-5-103(c) provides:

                The plaintiff spouse may recover from the defendant spouse,


        5
          (...continued)
could constitute a material change in circumstances since the original order foresaw such visitation. Evidence
of such efforts by the custodial parent would also be relevant in a best interests and comparative fitness
analysis.



                                                    -11-
              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.

        This statute vests discretionary authority in the court to award such fees in custody
cases. Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App.2004). "In determining
whether an award for attorney's fees is warranted, we should consider, among other factors,
the ability of the requesting party to pay his or her own attorney's fees, the requesting party's
success on appeal, and whether the requesting party has been acting in good faith." Id. (citing
Parchman v. Parchman, No. W2003-01204-COA-R3-CV, 2004 WL 2609198, at *6 (Tenn.
Ct. App. Nov.17, 2004)). We review the trial court's decision concerning the award of
attorney’s fees using the less stringent "abuse of discretion" standard of review. Richardson
v.. Spanos, 189 S.W.3d 720, 729 (Tenn. Ct. App. 2005). Under the abuse of discretion
standard, a trial court's ruling “will be upheld so long as reasonable minds can disagree as
to the propriety of the decision made.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)
(citations omitted). A trial court abuses its discretion only when it “applies an incorrect legal
standard, or reaches a decision which is against logic or reasoning or that causes an injustice
to the party complaining.” Id. The abuse of discretion standard does not permit the appellate
court to substitute its judgment for that of the trial court. Id.

        In this case, we find no abuse of the trial court's discretion in declining to award Mr.
Hyde his attorney's fees. This finding is true regardless of the fact that the court stated that
it would award fees after review of the affidavit of fees. It is well settled that a trial court
speaks through its orders. Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1997).
In its September 10, 2009 order denying any award of attorney’s fees, the court provides no
explanation for its decision. It is not the purview of this Court to trace the genesis of this
apparent change in the trial court’s mind; rather, we must determine if the trial court’s
ultimate decision is based upon an abuse of discretion. In the instant case, we find that it is
not. From the totality of the circumstances, it appears that the financial equities between the
parties are fairly even. Moreover, and as discussed above, both parties bear some fault in the
failure to adhere to the court ordered parenting plan. From the record as a whole, we
conclude that the trial court did not abuse its discretion in denying Mr. Hyde his attorney’s
fees and costs in this case.



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        For the foregoing reasons, we affirm the order of the trial court. Costs of this appeal
are assessed to the Appellant, Joseph Patrick Hyde, and his surety, for which execution may
issue if necessary.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




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