                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                          Assigned on Briefs August 29, 2011

                 JACQUELINE L. SHULTZ v. KIRBY FULLER

                    Appeal from the Circuit Court for Knox County
                     No. 111227    Wheeler A. Rosenbalm, Judge




              No. E2011-00874-COA-R3-CV-FILED-JANUARY 4, 2012


Upon the divorce of the parties, the permanent parenting plan designated the mother as the
primary residential parent of the couple’s daughter. Both parties eventually filed petitions
to modify the permanent parenting plan. The trial court concluded that there had been a
material change of circumstance and that it was in the best interest of the daughter that her
parenting be shared equally between the parties. Mother appeals the trial court’s
modification decision. We reverse the order of the trial court and remand for further
proceedings regarding the best interest of the child.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

Russell L. Egli and Keith Wesolowski, Knoxville, Tennessee, for the appellant, Jacqueline
L. Shultz Fuller.

Kirby E. Fuller, Powell, Tennessee, pro se appellee.

                                        OPINION

                                   I. BACKGROUND

       Jacqueline L. Shultz (“Mother”) and Kirby Fuller (“Father”) were married on April
8, 2000. During the marriage, they became the parents of a daughter (“the Child”), born on
May 29, 2003.
       Mother filed for divorce in July 2008. Her complaint was accompanied by a
temporary parenting plan (“TPP”) and a Local Rule 28B verified statement as required by
the Fourth Circuit Court for Knox County. Mother asserted in the verified statement that
Father was “financially and emotionally unstable” and had “anger issues.” In her complaint,
Mother sought to be named the primary residential parent of the Child; she requested that
Father be provided residential time with the Child as set forth in the TPP. The trial court
entered Mother’s TPP, awarding her the full care and custody of the Child with the exception
of every other weekend visitation by Father.

        The final judgment of divorce was entered by the trial court on February 6, 2009,
incorporating by reference the parties’ marital dissolution agreement, along with the
permanent parenting plan (“PPP”). The PPP named Mother the primary residential parent
of the Child. Mother was awarded 245 days per year with the Child and Father was provided
with 120 days per year co-parenting time.

       Not long after the parties’ divorce was entered, Mother filed a contempt charge
alleging that Father had not complied with the PPP. Father, in turn, filed charges against
Mother for allegedly dropping health insurance on his daughter Kayla that she had
purportedly agreed to maintain; for making negative comments about him to the Child; for
harassment; and for not returning to him items awarded to him in the divorce.

       Eventually, on September 16, 2009, Mother filed a petition for modification of the
PPP, alleging that a material change of circumstance had occurred since the entry of the final
judgment of divorce. She asserted that “it is in the minor child’s best interest that she be
awarded permanent legal and physical custody of the minor child and that respondent be
granted reasonable visitation.” In December 2009, Father filed a response that the trial court
considered to be an answer to Mother’s petition, proclaiming that “the best interest of the
minor child is split custody with both parents.” Three months later, the trial court entered
an order that Father was enjoined from having overnight visitation with the Child until he
ceased cohabitation with Jamie Rudd, who eventually became his wife.

       In August 2010, Mother filed a verified statement containing certain contentions
regarding Father. According to the statement, Father was residing in a three-bedroom mobile
home with at least seven other people. The statement indicated that in May 2010, a minor
in Father’s home had been taken into custody for contributing alcoholic beverages to a minor
at Powell Middle School. Mother’s statement also provided that on June 8, 2010, the Knox
County Sheriff’s Department had been dispatched to Father’s home for a domestic violence




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call.1 Further indicated was that in May 2010, Mother had received a call from East Knox
Elementary School that the Child had written a disturbing message containing sexual content.
As a result of this incident, Mother made a formal complaint to the Department of Children
Services (“DCS”), who investigated the matter. According to Mother, it was the finding of
DCS that the Child “doesn’t appear to have been molested [but] she has been exposed to
inappropriate amounts of information pertaining to sex and the male [genitalia] area.”

        On August 26, 2010, the trial court entered a TPP filed with Mother’s petition that
modified Father’s co-parenting time to every other Saturday and Sunday, 10 a.m. until 4 p.m.,
with no other persons present. Shortly thereafter, Father filed his own petition for
modification of the PPP. While he agreed with Mother that there had been a substantial and
material change in circumstance since the entry of the original PPP, Father averred “that it
is in the minor child[’]s best interest that he be awar[d]ed 50/50 custody.”

        On November 3, 2010, a hearing on the competing petitions was heard with no court
reporter present. Although Mother was the initial petitioner, Father was allowed to open
proof in his petition for modification of custody first.2 Father’s wife, Jamie (“Wife”), took
the stand first and Father, appearing pro se, asked her a number of leading questions on
direct. According to Mother, when she objected to the questions as leading, the trial court
overruled the objections because “lay persons are granted more leeway in this Court.” 3 Wife
testified that the family home had been investigated by DCS because of her ex-husband and
that both she and Father had undergone drug and alcohol counseling and testing. According

        1
      The official incident report related as follows: “UPON ARRIVAL OFFICERS SPOKE WITH THE
VICTIM WHO STATED THAT SHE AND HER HUSBAND (SUSPECT) HAD BEEN IN A VERBAL
ARGUMENT FOR THE LAST TWO HOURS. THE VICTIM STATED THAT THE ARGUMENT HAD
NOT ESCALATED. THE SUSPECT REFUSED TO TALK WITH THE OFFICERS ABOUT THE
SITUATION. BOTH PARTIES REFUSED TO LEAVE THE RESIDENCE. . . .
        2
        Interestingly, the record reveals that Father formerly worked in some capacity in the Knox County
Fourth Circuit Court.
        3
            We have set out principles for dealing with pro se litigants:

        Parties who decide to represent themselves are entitled to fair and equal treatment by the
        courts. The courts should take into account that many pro se litigants have no legal training
        and little familiarity with the judicial system. However, the courts must also be mindful of
        the boundary between fairness to a pro se litigant and unfairness to the pro se litigant’s
        adversary. Thus, the courts must not excuse pro se litigants from complying with the same
        substantive and procedural rules that represented parties are expected to observe.

See Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn. Ct. App. Aug.
12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003)).

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to Wife, they successfully passed all four random drug tests they had been given. Wife
further noted that they had been visited by counselors for drug and alcohol abuse, domestic
violence, and anger management. She also confirmed the following: the crowded conditions
at the family residence; her son was arrested at school in an incident involving alcohol; the
domestic violence police report; and that her minor son’s pregnant girlfriend, also a minor,
lived in the family residence.4

        Upon Father taking the stand, he accused Mother of causing him problems with DCS,
his taxes, and the Fire Marshal. Mother’s counsel objected to Father’s statements on the
grounds of speculation and hearsay, but the trial court allowed Father to continue because
of his pro se status. On cross examination, when Father was asked if the police had come to
his residence on a domestic violence call, he said he could not remember. Once reminded
about three calls to the police made in May and June of 2010, Father admitted that the police
had come to his residence.5

       The last person to testify was Father’s daughter, Kayla. She stated that she got along
well with Father’s new wife, that she made good grades in school, and that she enjoyed
seeing her sister, the Child.

        On November 29, 2010, the trial court entered the following memorandum opinion:

        At the outset of the cause it was stipulated after opening statements that a
        material change of circumstances had occurred since the permanent parenting
        plan of January 27th of ‘09. That material change of circumstances is the
        father’s remarriage and his move from apartment to a mobile home, in effect
        a four bedroom mobile home.

        The child in question is seven years old; she attends East Knox Elementary
        School. The father’s prayer for more co-parenting time does not include a
        prayer for a change in child’s school district. This is good for the child, who
        prospers in her present school.



        4
        In Father’s brief, he indicated that the girlfriend no longer resides with the family because it was
discovered that Wife’s son was not the father of the child.
        5
         In regard to the incident at school involving Wife’s son, Father related that “[t]here was no evidence
and all charges were dropped and there was never any charges of a sexual nature.” In his brief, Father
indicated that his Wife’s son is on medication for bipolar disorder and ADHD. An incident report in the
record reflects that police officers have responded to a violent outburst of Wife’s son.


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        Accordingly, the case moved on to consideration of the best interest of the
        child, the threshold matter of material change of circumstances having been
        met. It was noted that since the permanent parenting plan of January 27th of
        ‘09 an emergency matter had been brought to this court pursuant to local rule
        28, reducing the father’s co-parenting time to daytime only on weekends.
        There was some testimony as to whether the father had violated the strictures
        contained therein -- that he have the child with him only and not around other
        persons -- and the Court finds minimal and insignificant violations of that
        extreme stricture.

        The Court finds that the mother or her agents steadily instigate investigations
        by various agencies, making phone calls that lead to investigations, as often as
        on a weekly basis, of the father’s circumstances. Perhaps this is done in good
        faith. Perhaps this is merely good parenting and concern for the child, but the
        investigations have led to little and they are disrupting.

        The Court finds that the father’s home is crowded but that he and his new wife
        are working hard to make this situation work. The Court finds that the father
        is sincere, he’s honest, he’s straightforward and hardworking; it is in the best
        interest of the child that she have more contact with him. It shall be on a seven
        and seven basis, with exchange every Wednesday. So, fifty/fifty co-parenting
        time. The decision making shall be left in the joint posture at the present time,
        the Court hoping that these parents can cooperate -- they do have certain levels
        of cooperation. If in the future it is not possible for these two parents to
        cooperate in decision making this Court will chose one of them to have sole
        decision making authority. . . .


       On December 1, 2010, Mother, upon hiring a new attorney with a conflict with the
original trial judge, moved to recuse the judge from conducting further hearings in this
matter. Nine days later, the trial judge entered an order of recusal. Mother timely filed a
Rule 59 motion, asking that the order modifying the PPP be set aside or that a new trial be
conducted. The judge who heard arguments regarding this matter in February 2011 affirmed
the findings of the trial court.6 This appeal followed.




        6
        The matter was assigned to the Presiding Judge of the 6th Judicial District, the Honorable Wheeler
A. Rosenbalm.

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                                        II. ISSUES

       Mother raises the following issues:

       1. Whether the trial court erred in not addressing specific factors contained in
       Tenn. Code Ann. § 36-6-106 in evaluating the best interests of the Child.

       2. Whether the trial court erred, based upon the evidence at trial, in finding
       that it was in the best interests of the Child to spend fifty percent of her time
       with her father.

       3. Whether the trial court erred in denying Mother’s Rule 59 Motion to alter
       or amend the order modifying the parties’ permanent parenting plan or for a
       new trial.


                             III. STANDARD OF REVIEW

       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).

       In applying the de novo standard, we acknowledge 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.” 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 v. Johnson, 165 S.W.3d 640, 645 (Tenn. Ct. App. 2004)(quoting
Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)). Appellate courts should
only set aside the trial court’s judgment in such cases when 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.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).




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                                     IV. DISCUSSION

       It is well settled that “[a] custody decision, once final, is res judicata upon the facts
in existence or reasonably foreseeable when the decision was made.” Scofield v. Scofield,
No. M2006-00350-COA-R3-CV, 2007 WL 624351, at *3 (Tenn. Ct. App. Feb. 28, 2007).
However, because the circumstances of children and parents can change, the courts are
“empowered to alter custody arrangements when intervening circumstances require
modifications.” Id. at *2 (citing Tenn. Code Ann. § 36-6-101(a)(1)); see also Massengale
v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995).

       Modification of an existing parenting arrangement involves a two-step analysis. Tenn.
Code Ann. §§ 36-6-101(a)(2) (B) and (C). The parent attempting to modify the existing
custody or visitation arrangement first must prove that a material change in circumstance has
occurred. Id. We note that the determination of whether a “material change of
circumstance” has occurred requires a different standard depending upon whether a parent
is seeking to modify custody (i.e., change the primary residential parent) or modify the
residential parenting schedule. See Tenn. Code Ann. §§ 36-6-101(a)(2)(B) and (C); Massey-
Holt v. Holt, 255 S.W.3d 603, 608 (Tenn. Ct. App. 2007) (Tenn. Code Ann. § 36-6-
101(a)(2)(C) has been found to set “a very low threshold for establishing a material change
of circumstances”)).

       Tenn. Code Ann. § 36-6-101(a)(2)(B) specifically provides:

       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 of 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.

(Emphasis added). Tenn. Code Ann. § 36-6-101(a)(2)(C) reflects the following:

       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 circumstances 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

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       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.

(Emphasis added). As to the custody provision -- the issue relevant in this matter -- the
statute requires that “the court shall make such a finding as to the reason and the facts that
constitute the basis for the custody determination. Tenn. Code Ann. § 36-6-101(a)(2)(B)(i).

       In this case, the material change of circumstance cited by the trial court was “the
father’s remarriage and his move from apartment to a mobile home, in effect a four bedroom
mobile home.” As explained by Father, the trial court granted him increased custody because
he “is now married and can provide a two parent home for the minor child.”

        Once the trial court determines that a material change of circumstance has occurred,
the court must next determine whether modification of the existing parenting arrangement
is in the best interest 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 out at Tenn. Code Ann. § 36-6-106(a) to make the
custody determination, and those at Tenn. Code Ann. § 36-6-404(b) to establish the
residential schedule. Id. The wording of the statutory provisions places a mandatory duty
on the courts to consider these factors. See Stovall v. The City of Memphis, No. W2003-
02036-COA-R3-CV, 2004 WL 1872896, at *3 (Tenn. Ct. App. Aug. 20, 2004).

      The factors to consider in a proceeding requiring the trial court to make a custody
determination regarding a minor child are as follows:

       (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;

                                             -8-
       (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 . . . ;

       (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). The language of Tenn. Code Ann. § 36-6-106(a)
is not permissive; trial courts are required to consider all factors bearing on the child’s best
interest.

       Trial judges are not required to articulate every fact and its application in custody
cases. See Murray v. Murray, No. M2009-01576-COA-R3-CV, 2010 WL 3852218, at *8
(Tenn. Ct. App. Sept. 28, 2010)(stating that “while the statute requires the trial court to
consider all the applicable factors, there is no statutory requirement that the court list every
applicable factor along with its conclusion as to how that particular factor impacted the
overall custody determination”). However, the trial judge must make a best interest analysis
to determine which parent is comparatively more fit. Id.

       From our review of the trial court’s order, we cannot conclude that the trial court
made a comprehensive best interest analysis in this case. The court did not indicate that it
considered the fact that Mother had been the primary caregiver all of the Child’s life prior
to the change in custody. Nothing in the record indicates that Mother was unable or

                                              -9-
unwilling to provide for the Child or that Father’s “remarriage” enhanced his ability to
provide for the Child. Mother has exhibited great stability as compared to Father. Also,
consideration must be given to the character and behavior of the other persons who reside
in Father’s home and who have interactions with the Child. Indeed, Father has noted in his
brief that while Wife’s son’s bipolar episodes have decreased with medication, he still
continues to experience them. Father has further acknowledged that because of Wife’s
custody disputes regarding her children, counselors come “to our home once per week to help
us with domestic violence, anger management, and alcohol and drug awareness.”
Consideration of all these matters is required by the relevant statute to make a proper custody
decision regarding the Child.

       As we noted in Cosner v. Cosner, No. E2007-02031-COA-R3-CV, 2008 WL
3892024, at *4 (Tenn. Ct. App. Aug. 22, 2008), “[w]e recognize that the circumstances of
children and their parents inevitably change - children grow older, their needs change, one
or both parties remarry. But not all changes in the circumstances of the parties and the child
warrant a change in custody.” Id. “There are no hard and fast rules for when there has been
a change of circumstances sufficient to justify a change in custody.” Id. (citing Cranston v.
Combs, 106 S.W.3d 641, 644 (Tenn. 2003)).

        Father, as the petitioner recognized by the trial court, bears the burden of showing
both that a material change of circumstance affecting the welfare of the Child has arisen and
that such material change weighs in favor of greater custody rights than under the challenged
custody order. Under a proper analysis of the Child’s best interests pursuant to Tenn. Code
Ann. § 36-6-106, Father has failed in meeting his burden. We remand the matter so the
parties may present evidence concerning the Child’s best interest. In view of the remand, we
pretermit consideration of Mother’s remaining issues.


                                    V. CONCLUSION

       Upon review of the record, the judgment of the trial court is reversed. We remand this
case to the trial court for further proceedings consistent with this opinion and in compliance
with Tenn. Code Ann. § 36-6-1-106. Costs of the appeal are assessed against the appellee,
Kirby E. Fuller.


                                           _________________________________
                                                 JOHN W. McCLARTY, JUDGE




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