                                                                                        07/26/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 June 21, 2017 Session

                                  IN RE WYATT B.

               Appeal from the Juvenile Court for Hamilton County
              No. 267068, 267592, 268180   Robert D. Philyaw, Judge


                            No. E2016-02116-COA-R3-JV


This appeal concerns a change of child custody. Jonathan B. (“Father”) filed a petition
against Tabitha O. (“Mother”) in the Juvenile Court for Hamilton County (“the Juvenile
Court”) seeking to become the primary residential parent of the parties’ minor child,
Wyatt B. (“the Child”). After a trial, the Juvenile Court found a material change in
circumstance sufficient to modify custody and that changing the Child’s primary
residential parent from Mother to Father was in the Child’s best interest. Mother appeals.
We affirm the judgment of the Juvenile Court.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined.

Jacqueline Strong Moss, Chattanooga, Tennessee, for the appellant, Tabitha O.

Robert B. Pyle, Chattanooga, Tennessee, for the appellee, Jonathan B.
                                         OPINION

                                        Background

       Mother and Father are parents of the Child, who was born in October 2009.
Mother and Father never married. Ten months after the Child’s birth, Mother and Father
separated. The Child suffers from eosinophilic esophagitis. In 2011, a parenting plan
was entered by court order. Mother was designated primary residential parent under the
original plan. Father was to have the Child every other weekend, with additional time as
agreed. At one point, Mother relocated to North Carolina from Tennessee. Father filed a
petition in opposition to the relocation. Father also petitioned for custody of the Child.
Additional procedural events unfolded in this case leading to a trial on the issue that is
now before us on appeal: whether a material change in circumstance occurred sufficient
to modify the Child’s primary residential parent from Mother to Father. The trial was in
July and September 2016. We next cite to the relevant testimony from trial.

       Officer Kevin Otto (“Otto”) of the Chattanooga Police Department testified. Otto
stated that he had been to Mother’s home several times in the past year at Father’s
request. According to Otto, a court order reflected that Father was entitled to visit the
Child on certain occasions, but that Father’s access to the Child had been denied.
However, Otto also testified to one incident in which he planned to take out a warrant
against Father for custodial kidnapping had Father not returned the Child to Mother by
midnight.

      Father testified, in part, as follows:

      Q. Okay. Are there any other problems that are going on that you want the
      judge to address when he issues his ruling in this case?
      A. Other problems have been that she just takes everything in her own
      hands. She pretty much just thinks everything is her idea and it’s going to
      go her way. And there’s usually nothing I can do about it. So that has been
      a problem.
      Q. Give some examples.
      A. Like going to pick him up. I always think that it should be me and her
      that does the exchange, where she always throws her grandparents in it so
      she don’t have to deal with it. I mean, I have to be there. I don’t see why
      she doesn’t have to be there. And she says she doesn’t, so she’s not.
      Q. And you have a mother that’s very involved with the child?
      A. Yes.

                                               ***

                                               -2-
Q. All right. There was a period of time -- let’s talk a little bit about the
doctors. When Wyatt was first involved with medicine, when he first got --
discovered this, it was discovered by a Chattanooga doctor; is that right?
A. Yes. It was discovered by Jeremy Screws at T. C. Thompson.
Q. Okay. And when did -- when and why did Dr. Screws get out of the
picture?
A. She -- there was a visitation where I got him and he was supposed to
have vegetables only, I believe, is what it was at that time, or soy only, and
she had sent beef stew with me for him to eat. Of course, he was not
supposed to have potatoes. And there was potatoes in the soup. Well, she
told me, “Well, just take the potatoes out.” Well, to me, that did not seem
right. So I actually took him to Dr. Screws and confronted him about it.
And Dr. Screws was going to turn her in for -- I forget how it was worded.
But neglect of feeding him right. She wasn’t feeding him right. So as soon
as she caught word of that, she left Dr. Screws and went to Vanderbilt. I
guess so that she didn’t get in trouble.
Q. All right. And how long were y’all with Vanderbilt?
A. About three or four years, I believe.
Q. All right.
A. It was a good amount of time.
Q. How did you-all and Tabitha get along with the Vanderbilt doctors?
A. At first I was not even allowed to be involved. She had me blocked
from everything. I had to eventually come to the Court and get a piece of
paper saying that I had rights to be there. And I had to submit them to all
of his doctors. I had to find all his doctors myself. I had to call Vanderbilt.
I went through trouble just trying to find out when his appointments were.
It wasn’t until he had been there about a year later, I finally got all the
doctors on the same page and it all started to work. Towards the end it
worked well. All the doctors knew who I was, knew who she was, and
knew the situation. So it all worked very well in the end. And, in my
opinion, they fixed it.

                                     ***

Q. All right. Tell the Court what problems you’ve been having when you
get notified of doctor’s appointments and show up.
A. The last one I had the biggest problem with was the dietitian
appointment. And I took off work the whole day and I sat in the doctor’s
office for up to two hours waiting on Tabitha and Wyatt to show up. They
never showed up. They never called in to reschedule. And I was never told
                                      -3-
of a reschedule date. Other times I’ve had problems. I have to call the
doctor myself and get when his next dates are, next appointments. But here
recently she’s told me about a couple in October. I think October the 19th is
the next one. Recently has been the only time she’s ever told me without
me having to find out first. She’s never told me when she found out.
Q. Okay. And under this new agreement, assuming it’s acceptable to the
Court and it’s approved by the Court, you would still want to make sure
that if she changes the date, you find out when she finds out?
A. Yes.
Q. Now, you said you sat there for two or three hours. When did you
actually find out that that appointment had been canceled?
A. I actually went up -- after an hour and 45 minutes, I think it was, I
finally got up and went to the front desk and asked how long it takes till
they actually cancel the appointment. And they said, “Well, usually an
hour or two.” And I said, “Well, it’s been almost two hours.” So they
wrote me a note saying that -- like, what they would send her in the mail,
saying that she didn’t show up and she needed to call in and reschedule.
And I never was notified of the reschedule. So about two hours.
Q. Did you eventually find out when it was rescheduled?
A. After it happened, yes.
Q. Okay.
A. So after it happened, she called me and provided me the next weekend I
picked him up with the paperwork. But this was after the appointment. So I
never had a chance to be at the appointment.
Q. And this was the dietitian?
A. Yes.
Q. And so it would be important for you to have that so you would know
how to take care of feeding on your weekend?
A. Yes.
Q. Okay.
A. Very important.

For her part, Mother testified as follows:

Q. And Magistrate Owens wanted you-all talking to each other; is that
right?
A. Yes, sir. Uh-huh.
Q. So?
A. I’ve been told by my attorney once again that me and Jonathan can’t
stop arguing and we cannot get along, that it needs to go through the
attorneys until we can figure it out.
                                     -4-
Q. So it doesn’t matter what Judge Owens says, it’s just a matter of you
aren’t going to do it.
A. It goes -- I’m going by my attorney.
Q. Okay. And not by a Judge.
A. I’m going by my attorney who said not to speak to him.
Q. Okay.
A. We cannot get along.

                                      ***

Q. So, so Wyatt was back in town and you didn’t allow visitation.
A. I was told by my attorney not to. We had court coming.
Q. The long and the short of it is, no visitation.
A. And once again, my attorney.
Q. How many attorneys have you had, by the way?
A. Three. Oh, wait. On that one, four. I’ve had four. That was from 2011,
right? There was a different attorney on that one.
Q. I was going to say, I remember four, at least.
A. Yeah. He’s, he’s a different attorney.
Q. As part of his regular three month physical, does he get an endoscopy?
A. He was until -- May of last year he went in remission. There was no
reason to scope him every three months once he hits remission. Before
that, it was every three months.
Q Okay. But you’re saying that it no longer is necessary.
A. He’s being scoped tomorrow. After so long, about a year, they usually
want to rescope after it’s been so long just to see if the numbers are still
low, if he’s still in remission, or if the numbers are high again.
Q. Did you notify [Father] about the, the physical tomorrow?
A. No. The doctor’s office said they would call him and let him know.
Q. Did the -- did the parenting order tell you to do the notification?
A. What parenting order?
Q. The one that you and your attorney, Tabitha Finch --
A. Those are no longer -- those aren’t in effect, so I’m not really sure why
you’re asking me that. We’re not using those.
Q. When did it go out of effect?
A. It hasn’t been signed. If it was -- if we -- they want to agree on it, there,
there -- it would make sense. But after those -- after I signed those and
Jonathan signed those, things changed. That’s why there’s still things that
aren’t agreed upon.
Q. When did your signature get removed from this document?


                                      -5-
        A. I just said I signed it, but circumstances change. I no longer agree with
        that. I just said that.
        Q. When did your signature get removed from here?
        A. Oh God. My signature is on it. I just said that more than once.

       In September 2016, the Juvenile Court entered its final judgment changing the
Child’s primary residential parent from Mother to Father. Father was awarded 183 days
with the Child to Mother’s 182.1 The Juvenile Court found and held as follows, in
pertinent part:

        The child was diagnosed with eosinophilic esophagitis as an infant and was
        treated by Dr. Screws at Children’s Hospital at Erlanger for over a year.
        During this time, Mother and Father lived together with the child. The
        Father attended doctor’s appointments and saw the child every day. In the
        second year of the child’s life, Mother left with the child.

        Father testified that Mother denied him access to the child and he agreed to
        the 2011 Order because “it was better than nothing”. Father testified that
        Mother continued to deny visits often and that despite his pleas he rarely
        saw the child outside of the times required in the Order.

                                                   ***

        Mother entered into another relationship, married, and moved with the child
        to North Carolina. Mother did not give Father timely notice of her intended
        move out of state. During the time Mother and child lived in North
        Carolina, Father again attempted to be involved in the child’s health care.

        Father did not see the child for some six months except for one trip to
        attend a doctor’s appointment in Riley, NC. Father requested a visit then
        but Mother refused unless Father drove another approximate three (3)
        hours. In her testimony, Mother said she offered Father to come stay in her
        house with the child. During the time she was in North Carolina Mother
        returned to Chattanooga twice for court but denied Father visitation with
        the child both times.



1
  The Juvenile Court termed this arrangement ‘joint custody,’ but the legal effect of the Juvenile Court’s
ruling was to make Father primary residential parent. See Brown v. Brown, No. E2011-00421-COA-R3-
CV, 2012 WL 1267872, at *7 (Tenn. Ct. App. Apr. 13, 2012), rule 11 appl. perm. appeal denied Aug. 15,
2012.
                                                   -6-
While his request for modification was pending Father filed a “Petition in
Opposition to Removal of Child from Tennessee”. Before that matter was
fully heard, Mother and child moved back and ultimately into a home
owned by maternal great grandparents.

Mother testified that she has lived with her great grandmother, in Georgia,
back with her great grandmother, in a couple houses in North Carolina, and
in a house owned by her great grandparents within the last approximate
eighteen (18) months.

Mother now rents a home from her great grandparents who she relies on for
childcare most every day. Father married three years ago and lives in a two
bedroom home with his wife and her two boys, ages four (4) and eight (8).

Father works independently as a subcontractor tile-layer, has a steady
business, and sometimes travels to Kentucky and Ohio for a few days at a
time for work. The stepmother is primarily a home-maker. Mother has had
several jobs since this matter has been pending and currently works at a
drycleaning facility. Father has consistently paid Two Hundred Seventy
Dollars ($270.00) per month child support to Mother. The child has
insurance through the State.

                                     ***

Throughout the hearings in this case, the Court noted Mother’s lack of
appreciation for the tone of the proceedings and the proof presented against
her appropriate parenting of the child, particularly regarding her controlling
approach to managing the Father’s access to the child, the child’s medical
care, education, and Father’s relationship with the child. It is clear to the
Court that Mother does not desire for Father and child to have a
relationship. What is more troublesome is that Mother seems unabashed by
that and unconvinced that Father should be involved in their son’s life at
all.

                                     ***

Since the 2011 Order, the child’s medical condition has improved
significantly, the child has lived in multiple homes, both Parents have
married, the Mother is going through a divorce, the Mother has denied
Father appropriate access to child’s medical care, and the Mother has not
followed the Order, primarily in that she routinely denies Father access to

                                     -7-
       the child in violation of the Order and has refused to follow the parenting
       plan.

       The Court finds that a material change of circumstances has occurred that
       make the parenting plan of the 2011 Order no longer in the best interest of
       the child. The Court further finds that the parenting issues at the heart of
       this matter have affected the child’s well-being in a meaningful way. While
       some of the Mother’s actions could have been anticipated due to the pre-
       Order history, the extent and depth of Mother’s failure to adhere to the
       parenting plan could not have been reasonably anticipated by Father.

                                              ***

       The Mother’s and Father’s moral, physical, mental and emotional fitness as
       it relates to their ability to parent the child is not a factor except that Mother
       has shown to be so unreasonably overprotective and controlling of Father’s
       parenting of the child that it may be reflective of an inappropriate emotional
       dependence on the child.

       The child is blessed to have a family that cares for him deeply. The child
       enjoys an appropriate relationship with Father’s wife and sons and with
       Mother’s great grandparents. The Court does have significant concerns
       about the stepfather, but it appears that Mother is well on her way to getting
       a divorce and since there is an order restraining him from coming around
       her, it does not appear to be a factor in this part of the analysis. The great
       grandmother is unfortunately working on a cancer diagnosis as well as is
       another adult relative who lives with her and great grandfather. From all
       indication, the child is in a great school environment.

       The child has had relatively little stability as the Mother has moved more
       than several times since the breakup of Mother and Father. There is no
       evidence of physical or emotional abuse to the child except that which
       surfaces from seeing the interactions of the adults in his life and from
       hearing derogatory remarks to and about his Father.

Mother timely filed an appeal to this Court.




                                               -8-
                                         Discussion

       Although not stated exactly as such, Mother raises one issue on appeal: whether
the Juvenile Court erred in finding a material change of circumstance sufficient to modify
custody.

       Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).

       This Court has outlined the analysis to be employed when a child’s primary
residential parent, as opposed to simply the details of the residential schedule, is at issue:

              Adjudicating disputes over who should be designated the primary
       residential parent is one of a court’s greatest responsibilities. Massey-Holt
       v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). A court’s designation
       of the primary residential parent as part of a final decree of divorce is
       considered res judicata upon the facts in existence or those which were
       reasonably foreseeable when the decision was made. Steen v. Steen, 61
       S.W.3d 324, 327 (Tenn. Ct. App. 2001). However, because circumstances
       change in unanticipated ways, courts are statutorily empowered to modify a
       primary residential parent designation. See Tenn. Code Ann. § 36-6-
       101(a)(1) (A decree awarding custody of minor child “shall remain within
       the control of the court and be subject to such changes or modification as
       the exigencies of the case may require.”).

              Courts apply a two-step analysis to requests to change the primary
       residential parent designation. Keisling v. Keisling, 196 S.W.3d 703, 718
       (Tenn. Ct. App. 2005). The threshold issue is whether a material change in
       circumstance has occurred since the court’s prior custody order. See
       Armbrister v. Armbrister, 414 S.W.3d 685, 697-98 (Tenn. 2013); Tenn.
       Code Ann. 36-6-101(a)(2)(B). Only if a material change in circumstance
       has occurred do we consider whether a modification is in the child’s best
       interest. Armbrister, 414 S.W.3d at 705. The “determinations of whether a
       material change of circumstances has occurred and where the best interests
       of the child lie are factual questions.” In re T.C.D., 261 S.W.3d 734, 742
       (Tenn. Ct. App. 2007).

                                             -9-
Skowronski v. Wade, No. M2014-01501-COA-R3-CV, 2015 WL 6509296, at *5 (Tenn.
Ct. App. Oct. 27, 2015), no appl. perm. appeal filed.

      Regarding a material change in circumstances, this Court has stated:

              There is no bright line rule for determining when a change in
      circumstance is material enough to warrant changing an existing custody
      arrangement. Keisling, 196 S.W.3d at 718. Instead, when making this
      determination, courts should consider: “(1) whether a change has occurred
      after the entry of the order sought to be modified; (2) whether a change was
      not known or reasonably anticipated when the order was entered; and (3)
      whether a change is one that affects the child’s well-being in a meaningful
      way.” Cranston, 106 S.W.3d at 644. A material change in circumstance
      does not require a showing of a substantial risk of harm to the child. Tenn.
      Code Ann. § 36-6-101(a)(2)(B). Such a change includes “circumstances
      that make the parenting plan no longer in the best interests of the child.”
      Id.

Robinson v. Robinson, No. M2014-00431-COA-R3-CV, 2015 WL 1259265, at *3 (Tenn.
Ct. App. March 16, 2015), no appl. perm. appeal filed. (Footnote omitted).

       Tenn. Code Ann. § 36-6-106(a)(Supp. 2016) sets forth the following factors
related to the best interest of the child:

      (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. In taking into account the child’s best interest, the
      court shall order a custody arrangement that permits both parents to enjoy
      the maximum participation possible in the life of the child consistent with
      the factors set out in this subsection (a), the location of the residences of the
      parents, the child’s need for stability and all other relevant factors. The
      court shall consider all relevant factors, including the following, where
      applicable:

      (1) The strength, nature, and stability of the child’s relationship with each
      parent, including whether one (1) parent has performed the majority of
      parenting responsibilities relating to the daily needs of the child;

      (2) Each parent’s or caregiver’s past and potential for future performance of
      parenting responsibilities, including the willingness and ability of each of
                                            -10-
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. In determining the willingness
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, the court shall consider the likelihood of each parent and
caregiver to honor and facilitate court ordered parenting arrangements and
rights, and the court shall further consider any history of either parent or
any caregiver denying parenting time to either parent in violation of a court
order;

(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;

(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;

(6) The love, affection, and emotional ties existing between each parent and
the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. The court may order an
examination of a party under Rule 35 of the Tennessee Rules of Civil
Procedure and, if necessary for the conduct of the proceedings, order the
disclosure of confidential mental health information of a party under § 33-
3-105(3). The court order required by § 33-3-105(3) must contain a
qualified protective order that limits the dissemination of confidential
protected mental health information to the purpose of the litigation pending
before the court and provides for the return or destruction of the
confidential protected mental health information at the conclusion of the
proceedings;

(9) The child’s interaction and interrelationships with siblings, other
relatives and step-relatives, and mentors, as well as the child’s involvement

                                     -11-
       with the child’s physical surroundings, school, or other significant
       activities;

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

       (11) Evidence of physical or emotional abuse to the child, to the other
       parent or to any other person. The court shall, where appropriate, refer any
       issues of abuse to juvenile court for further proceedings;

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

       (13) The reasonable preference of the child if twelve (12) years of age or
       older. The court may hear the preference of a younger child upon request.
       The preference of older children should normally be given greater weight
       than those of younger children;

       (14) Each parent’s employment schedule, and the court may make
       accommodations consistent with those schedules; and

       (15) Any other factors deemed relevant by the court.

        Mother argues on appeal that the Juvenile Court erred in finding a material change
in circumstance. According to Mother, the Juvenile Court’s findings do not reflect a
substantial impact on the Child’s well-being, but rather only matters impacting the
parents. Mother acknowledges, however, that a material change in circumstance
sufficient to modify the residential parenting schedule has occurred. Father bore the
burden of proof at trial.

       We disagree with Mother’s characterization of the Juvenile Court’s final judgment
and the evidence contained in the record. The Juvenile Court found that Mother has a
“controlling approach to managing the Father’s access to the child, the child’s medical
care, education, and Father’s relationship with the child.” The Juvenile Court found
further that “Mother has denied Father appropriate access to the child’s medical care . . .
[and] she routinely denies Father access to the child in violation of the Order . . . .”
Finally, the Juvenile Court found that “the parenting issues at the heart of this matter have
affected the child’s well-being in a meaningful way.” We extend considerable deference
to the credibility determinations of trial courts. The Juvenile Court implicitly credited
Father’s testimony over Mother’s regarding the factual events of the case since the
                                            -12-
implementation of the original parenting plan. The evidence does not preponderate
against the Juvenile Court’s factual findings.

       While neither parent in this case has behaved perfectly, Mother’s failure to adhere
to the parenting plan or communicate adequately with Father when appropriate regarding
the Child’s medical needs impacts the Child’s well-being in a significant manner.
Father’s testimony, credited by the Juvenile Court, reveals the pattern of a detrimental
cat-and-mouse game whereby the Child is withheld from Father by Mother despite the
terms of the previous parenting plan with medical information concerning the Child often
being delivered by Mother in roundabout or insufficient means.

       We find and hold, as did the Juvenile Court, that a material change in
circumstance has occurred sufficient to warrant examining whether a change in primary
residential parent is in the Child’s best interest. This next step in the analysis is
determining whether changing the Child’s primary residential parent from Mother to
Father is in the Child’s best interest. The Juvenile Court properly considered all the
relevant best interest factors. We find that the evidence does not preponderate against the
Juvenile Court’s findings relative to the Child’s best interest. We discern no reversible
error in the Juvenile Court’s decision to change the Child’s primary residential parent
from Mother to Father, and to enter a new parenting plan in accordance with the change
in designation. We affirm the judgment of the Juvenile Court.

                                       Conclusion

       The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for collection of the costs below. The costs on appeal are assessed against
Tabitha O., and her surety, if any.

                                         ____________________________________
                                         D. MICHAEL SWINEY, CHIEF JUDGE




                                           -13-
