                                                                                         07/03/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  June 5, 2018 Session

               MARY ALICE AKINS v. GRIFF ELLIOTT AKINS

                   Appeal from the Chancery Court for Wilson County
                    No. 2014-CV-223    Charles K. Smith, Chancellor
                         ___________________________________

                             No. M2017-00594-COA-R3-CV
                         ___________________________________

In this appeal, the father sought to revise the permanent parenting plan in order to permit
him greater participation in the life of his daughter. The trial court denied the requested
revision, finding that the father had failed to prove by a preponderance of the evidence
that there had been a material change in circumstances that affected the child’s best
interest. The father appeals. We affirm the trial court’s ruling regarding the permanent
parenting plan, but we vacate the award of attorney’s fees and costs.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

James L. Collier, Nashville, Tennessee, for the appellant, Griff Elliott Akins.

John L. Meadows, Lebanon, Tennessee, for the appellee, Mary Alice Akins.


                                        OPINION

                                   I. BACKGROUND

       The Defendant/Petitioner, Griff Elliott Akins (“Father”), and the
Plaintiff/Respondent, Mary Alice (Eckel) Akins (“Mother”) were divorced in April 2013.
They have one child (“the Child”) who was born in 2008, and was, at the time of trial,
eight years of age. A permanent parenting plan (“the parenting plan”) was incorporated
with the final divorce decree. It listed Mother as the Primary Residential Parent with 265
days of residential parenting time. Father was awarded supervised parenting time of 100
days, including every other weekend and alternating weeks during the summers. At the
time of the divorce, Father suffered from various illnesses, including a bipolar condition
and migraine headaches. His health and medication needs affected his parenting ability,
which is the reason the parenting plan required Father to have supervised visitation. His
time with the Child was to be supervised by Father’s mother. Mother was given sole
decision making authority regarding the Child’s education.

       In the initial request for modification, Father alleged that his health had
significantly improved. He noted that his bipolar condition and migraines were under
control and that he had discontinued the use of narcotic drugs.1 Father also asserted
increased flexibility in his work schedule, claiming that he “could kind of get off work”
when he wanted to attend to any matters for the Child. Additionally, he contended that
Mother and the Child had moved closer to his residence.

       On May 6, 2014, the parties entered into an agreement modifying the parenting
plan in order to gradually remove Father’s supervised visitation.2 Upon each visit, so
many days of supervised visitation were to be removed until none remained. The agreed
order provided that “Father’s parenting time shall be supervised by his current fiancé,
Valerie Wemli, for one hundred twenty days to gradual unsupervised parenting time at
the end of one hundred twenty day time period.” The order further stated “[t]hat Father’s
parenting time shall be fully supervised for at least sixty days and then shall gradually
become unsupervised with short to longer increments of unsupervised parenting time.
That other approved supervisors shall supervise Father’s overnight parenting time until
Father and his fiancé marry . . . .”3 Additionally, Father’s weekend parenting time was
extended from Sunday to Monday, with Father taking the Child to school on Mondays
(instead of returning her to Mother on Sundays).

        On March 4, 2015, Father filed a Petition to Terminate/Suspend Alimony and a
Petition for Contempt. He also filed another Petition to Modify, seeking to increase his
time with his daughter because his medical condition had resolved, stepmother and the
Child had developed a meaningful relationship, and his working conditions gave him
more flexibility in his work schedule and required him to work less hours. By the time of
trial, however, Father dropped all of his claims except for his request for co-equal
visitation.

       A hearing was held on January 12 and 13, 2017. During Father’s testimony, it
became apparent that little had truly changed since the June 2014 agreement. The trial
court found that Father did not prove by a preponderance of the evidence that there had
been a material change of circumstances affecting the Child’s best interest since June 5,


       1
          Evidence presented at trial revealed that Father had received surgery that helped
alleviate his pain.
        2
          Agreed order was entered on June 5, 2014.
        3
          The couple married on May 13, 2014.
                                           -2-
2014. The court entered its final order granting Mother’s oral motion to dismiss on
February 27, 2017. This timely appeal followed.


                                       II. ISSUES

      Father raises the following issues on appeal:

             1. Whether the trial court erred in finding that Father had not
             met his burden of proof in regard to whether there had been a
             substantial and material change in circumstances such that
             Father would receive additional parenting time.

             2. Whether the trial court erred in granting Mother her
             attorney’s fees.


                            III. STANDARD OF REVIEW

       The factual findings of the trial court are given a presumption of correctness, and
we will not overturn those findings unless the preponderance of evidence is otherwise.
Tenn. R. App. P. 13(d); Bogan v. Bogan, S.W.3d 721, 727 (Tenn. 2001). We review
questions of law “under a pure de novo standard of review, according no deference to the
conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon
Cnty Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

       A trial court’s determinations of whether a material change in circumstances has
occurred and whether modification of a parenting plan serves a child’s best interests are
factual questions. See In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). Thus,
appellate courts must presume that a trial court’s factual findings on these matters are
correct and not overturn them unless the evidence preponderates against the trial court’s
findings. See Tenn. R. App. P. 13(d).

       A trial court’s decision regarding the details of a residential parenting schedule
should not be reversed absent an abuse of discretion. Eldridge v. Eldridge, 42 S.W.3d
82, 88 (Tenn. 2001). “An abuse of discretion occurs when the trial court . . . appl[ies] an
incorrect legal standard, reaches an illogical result, resolves the case on a clearly
erroneous assessment of the evidence, or relies on reasoning that causes an injustice.”
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court abuses its
discretion in establishing a residential parenting schedule “only when the trial court’s
ruling 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,
42 S.W.3d at 88.
                                           -3-
                                   IV. DISCUSSION

        Permanent parenting plans are incorporated into final divorce decrees involving
minor children, and parties are required to adhere to such plans until modified by law.
See Tenn. Code Ann. §36-6-404; Armbrister v. Armbrister, 414 S.W.3d 685, 697 (Tenn.
2013). “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) (citing
Young v. Smith, 246 S.W.2d 93, 95 (Tenn. 1952)). However, the law recognizes that
circumstances change; therefore, the court is “empowered to alter custody arrangements
when intervening circumstances require modifications.” Scofield, 2007 WL 624351, at
*2 (citing Tenn. Code Ann. §36-6-101(a)(1)).

        A change in circumstances with regard to a residential parenting schedule is “a
distinct concept” from a change in circumstance with regard to custody. Massey-Holt v.
Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007); see also Tenn. Code Ann. §§ 36-6-
101(a)(2)(B), -101(a)(2)(C). If a parent requests a change of the primary residential
parent, then the parent must “prove by a preponderance of the evidence a material change
in circumstance.” Massey-Holt, 255 S.W.3d at 607. The threshold for establishing a
material change in circumstance where the issue before the court is a modification of the
residential parenting schedule is much lower. See, e.g., Boyer v. Heimermann, 238
S.W.3d 249, 259 (Tenn. Ct. App. 2007); see also Tenn. Code Ann. §§ 36-6-101(a)(2)(B),
-101(a)(2)(C). The petitioner still must “prove by a preponderance of the evidence a
material change of circumstance affecting the child’s best interest” and that the change
occurred after the entry of the order sought to be modified. Caldwell v. Hill, 250 S.W.3d
865, 870 (Tenn. Ct. App. 2007). However, unlike the standard for a change of primary
residential parent, whether the change was reasonably anticipated when the prior
residential parenting schedule order was entered is irrelevant. Armbrister, 414 S.W.3d at
703. “[A] material change of circumstance for purposes of modification of a residential
parenting schedule may include, but is not limited to, significant changes in the needs of
the child over time, which may include changes relating to age; significant changes in the
parent’s living or working condition that significantly affect parenting; failure to adhere
to the parenting plan; or other circumstances making a change in the residential parenting
time in the best interest of the child.” Tenn. Code Ann. § 36-6-101(a)(2)(C).
Modification of a residential parenting plan is a two-part process: the court must first
determine whether there has been a material change in circumstances, and then second,
the court applies the “best interest” factors set forth in Tennessee Code Annotated section
36-6-106. Armbrister, 414 S.W.3d 697-98). The two analyses will likely substantially
overlap. Id. at 698. As a threshold issue, the trial court must determine whether there has
been a material change in circumstances that affects the child’s best interest since the
implementation of the plan. In re M.J.H, 196 S.W.3d 731, 744 (Tenn. Ct. App. 2005).

                                           -4-
                            Material Change in Circumstances

      Considering Father’s alleged changes in circumstances under the factors set forth
in Tennessee Code Annotated section 36-6-101(a)(2)(C), we find that the evidence
supports the findings of the trial court as stated below:

               1. Changes in need of the child over time: The Court finds
               there is no evidence put on whatsoever that there was any
               change in the needs of the child.

               2. Changes relating to the age of a child: The Court finds
               there was no proof one-and-a-half years of age more since the
               last Order caused any [material] changes. . . .

               3. Significant changes in the parents’ living condition that
               significantly affected the parenting: This right here is
               where the rubber meets the road. The Court finds there was
               significant change that affected it, but it did not affect it in a
               manner that the case law requires for there to be a change of
               circumstance. The Court further finds that Father testified the
               real problem and the primary reason he filed this Petition was
               the Mother was getting remarried and it hurt Father that the
               Step-Father would be spending more time with the minor
               child than with Father. That is the real basis for this lawsuit.
               Father basically admitted this on the stand during his
               testimony. So that is the real significant change, Mother’s
               remarrying and Step-Father spending more time with [t]he
               child. But that is not a material change that would constitute
               circumstances affecting the child’s best interest. . . .4 The
               Court finds that the other change is eating and sleeping habits
               of the Father have changed. That Father carried that proof
               that that is a change, but the Court fails to find that this
       4
          At trial, Father testified about stepfather: “He’s a good guy. He seems like he loves
Alexia. But the bottom line is, he’s the stepfather. He’s not the father. So it doesn’t make sense
to me – I need to be the main fatherly figure in my daughter’s life. It doesn’t make sense to me
why I get 4 days a month basically, and the stepfather would get the other 27. I’m not saying
anything bad about him at all . . . .” The trial court observed: “All the evidence was that he was
a good stepfather, that there was, again, no problem with him. So, if [s]he was spending more
time with the stepfather and the stepfather was abusing h[er] somehow mentally, physically,
sexually, that would be a difference, or if the stepfather was abusing drugs, but there’s been no
evidence of that. And all the evidence has been and testified by the father that the stepfather was
okay, he was okay.”
                                               -5-
               change affects the child’s best interest and he failed to prove
               it was a material change. It was just a change. That Father
               proved that he remarried and that his new wife is living in his
               home now and she was there and she and the child developed
               a good relationship. The Court finds that Father failed to
               prove by a preponderance of the evidence that this is a
               material change of circumstances affecting the child’s best
               interest. Father has failed to prove that his eating habits, the
               relationship with the Step-Mother, and his sleeping habits
               have affected the child’s well being in a meaningful way.
               Father has not shown this in any form and fashion. As to
               significant changes in parent’s working conditions, the
               flexibility is not a change. It existed as of June 5, 2014. But
               the fewer hours going from 70 to 80 hours to 40 hours a week
               is a change. Merely proving that Father is working less
               hours, however, does not show that this affects the child’s
               well being in a meaningful way.5 Further, Father chose to not
               have his Wife testify about her relationship with the minor
               child.

               4. Failure to adhere to the Parenting Plan: The Court finds
               that both parties have been adhering to the Parenting Plan [of
               June 5, 2014].6



       5
           The court observed: “I’m still of the opinion, even under the guidelines from what I
recall that was testified to, he testified that he was working 40 hours as opposed to 80 hours. I do
not recall, and this statute, 36-6-101(a)(2)(c) says, significant change in parent’s working
condition that significantly affects parenting. I do not feel like he put on any proof showing that
it significantly affected parenting. You could work less hours and spend the total time watching
TV or playing cards or playing video games. You still have the burden of proving that because
of this, at night when me and her work on her school work, we play games, we play this game,
that game, do that, we have a bible study, we do something. I might have just forgot it when he
testified to it, but I don’t remember him testifying how it affected his parenting skills, the fact
he’s working less hours. I think you-all want me to just understand that obviously a person who
is working 80 hours is less available to be a good parent than one working 40 hours, could be,
could not be. The 80-hour-week father might be a great father, makes time for the child. An 80-
hour-week father might be a horrible parent. A 40-hour parent may be horrible, may be great.
That’s my finding and justification for it. I do not find that there was proof put on to that effect.”
         6
           Father argued that the school was leaving him out of educational decisions and events,
but testified that it was not Mother’s fault and that she was a good mother and had been adhering
to the parenting plan. The court found that Father did not help with educational expenses of the
Child, so Mother should be allowed to make educational decisions on behalf of the Child.
                                                -6-
              5.     Other circumstances making [a] change in the
              parenting time in the best interest of the child: The Court
              finds that Father put on no proof of any other circumstances
              making a change of parenting time in the best interest of the
              child.

       Despite Father now arguing several material changes in circumstances, such as the
resolution of his medical conditions and the flexibility of his work schedule, it appears
that these changes were present or occurring at the time of the original petition to modify
and were considered during the prior agreement between the parties. The evidence
presented does not preponderate against the trial court’s determination that the changes
asserted by Father do not amount to a material change in circumstances for purposes of
modifying the parenting plan.

                                       Best Interest

       If the court had found that material changes in circumstances had occurred, the
second determination the court would have made was whether a modification of the
existing parenting plan would be in the Child’s best interest using the factors set forth in
Tennessee Code Annotated section 36-6-106(a). Armbrister, 414 S.W.3d at 705. See
Tenn. Code Ann. §36-6-101(a)(2)(C). “In any proceeding between parents under this
chapter, the best interests of the child shall be the standard by which the court determines
and allocates the parties’ parental responsibilities.” Tenn. Code Ann. 36-6-401(a). The
statute emphasizes the need for stability and consistency in the child’s life. Id. “[T]he
best interests of the child are served by a parenting arrangement that best maintains a
child’s emotional growth, health and stability, and physical care.” Id.

       Because the trial court concluded that Father failed to prove a material change of
circumstances in this case, it heard no “best interests” testimony. The record reveals that
the Child is doing well under the current parenting plan. Father admitted that the Child is
not nervous, does not suffer from anxiety, has no depression or aggression, and gets
along well with other children. Father acknowledged that the Child was a “very happy,
healthy little girl.” He testified:

              THE WITNESS: Your Honor, if I could just say this. I’m
              not in any way, shape, or form trying to get any more custody
              of my child because of a bad mother. I’m not trying to say
              she’s an unhealthy, unstable child and that something needs
              to be changed that way. She’s a good mom. I just would like
              more time with her.



                                           -7-
On re-direct, Father testified: “My job was always flexible, but the hours I worked
between 2014 and 2015 have drastically changed.” When asked if he had anything to add
to his testimony:

              Just that I’m here, not for money. I’m not here to say she’s a
              bad mother. I’m not here saying the stepfather is a bad
              person. Like I said earlier, [the Child] is very well loved. I
              can’t help that I was sick. I can’t help that. I can’t help that
              I’m bipolar Type 2.

        The trial court specifically stated that the Child “is super intelligent, active, and
healthy, making good grades” and “is thriving.” In granting the motion to dismiss, the
court found that “where the child is presently living now and under the current Parent
Plan, . . . the child is doing super.” Because Father failed to prove any material change,
we do not consider whether modification would be in the Child’s best interest.
Accordingly, we affirm the decision of the trial court that Father failed to meet his burden
to prove that a material change in circumstances merited a modification of the parenting
plan.


                   Attorney’s Fees and Costs at Trial and on Appeal

      When the trial court entered its final order in the matter, the applicable version of
Tennessee Code Annotated section 36-5-103(c) provided as follows:

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

Tenn. Code Ann. § 36-5-103(c). An amended statute went into effect on July 1, 2018:

              A prevailing party may recover reasonable attorney’s fees,
              which may be fixed and allowed in the court’s discretion,
              from the non-prevailing party in any criminal or civil
              contempt action or other proceeding to enforce, alter, change,
                                          -8-
                or modify any decree of alimony, child support, or provision
                of a permanent parenting plan order, or in any suit or action
                concerning the adjudication of the custody or change of
                custody of any children, both upon the original divorce
                hearing and at any subsequent hearing.

Tenn. Code Ann. § 36-5-103(c) (emphasis added).7 The revised version of the statute
specifically allows attorney’s fees incurred in contempt proceedings and matters
involving permanent parenting plans, whereas the earlier language did not. See, e.g.,
Watts v. Watts, 519 S.W.3d 572 (Tenn. Ct. App. June 8, 2016) (reversing attorney’s fee
award for criminal contempt action for lack of statutory authority). The old version
controls the instant case.

       We note that at the trial level, Father not only sought a modification of the
parenting plan, but sought to hold Mother in contempt and to stop alimony payments.
The contempt and alimony claims were dropped on the first day of trial, but Mother had
been required to address them throughout the litigation process in addition to Father’s
modification challenge. Before the trial court, Father agreed that the awarded attorney’s
fees, $21,722.36, “are directly related to Father’s Petition to Modify and are reasonable.”
However, despite previously agreeing that the attorney’s fees requested were reasonable,
Father now asserts that the trial court “inappropriately relied on Tennessee Code
Annotated § 36-5-103(c)” and “seemed to treat this case as a custody matter rather than a
modification to Father’s parenting time.”

       In our view, the prior version of 36-5-103(c) did not authorize the award of
attorney’s fees related to petitions for contempt or modification of the permanent
parenting plan. Thus, we find that the trial court improperly awarded Mother attorney’s
fees and costs related to these issues. Accordingly, we must vacate in part the trial
court’s award and remand for a hearing regarding the attorney’s fees that may be assessed
involving the alimony issue.

       This court also has the discretion to award attorney’s fees pursuant to Tennessee
Code Annotated section 36-5-103(c). When deciding attorney’s fees on appeal, the court
considers the following factors: “the party’s ability to pay such fees, the requesting
party’s success on appeal, whether the appeal was taken in good faith, and any other
equitable factors relevant in a given case.” Moran v. Willensky, 399 S.W.3d 651, 666
(Tenn. Ct. App. 2010). Although Father raised matters resolved in a prior order, no
substantive evidence was presented, and Father even admitted that Mother was a splendid
parent and that the Child is thriving, we, exercising our discretion, do not find an award
of attorney’s fees on appeal to be appropriate. Mother’s request for attorney’s fees on
appeal is denied.

       7
           Public Chapter 905 (H.B. 2526). Signed by then Gov. Bill Haslam on May 3, 2018.
                                              -9-
                                   V. CONCLUSION

        For the foregoing reasons, we vacate in part the trial court’s order of attorney’s
fees. The trial court’s judgment is otherwise affirmed, and the case is remanded for
further proceedings consistent with this opinion. Costs of the appeal are assessed one-
half to the appellant, Griff Elliott Akins, and one-half to the appellee, Mary Alice Akins.




                                                   _________________________________
                                                   JOHN W. MCCLARTY, JUDGE




                                          - 10 -
