                                                                                           10/31/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                              September 13, 2018 Session

                   JASON PRICE v. BRANDI PRICE CARTER

                  Appeal from the Chancery Court for Dyer County
                   No. 09-CV-294     Tony Childress, Chancellor
                     ___________________________________

                           No. W2018-00229-COA-R3-CV
                       ___________________________________

This case involves a petition to modify a parenting plan to change the primary residential
parent. The father sought to be designated as the primary residential parent, citing to the
children’s excessive absenteeism from school while in the mother’s care. The trial court
agreed and found that, while the children were doing well in school, they could be doing
better and would be less stressed without the problem of their excessive absenteeism. We
reverse, finding that the mother had remedied the children’s excessive absenteeism from
school prior to trial and that the prior absenteeism does not rise to the level of a material
change in circumstance warranting a modification of the parenting plan so as to change
the designation of the primary residential parent from mother to father.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Jason R. Creasy, Dyersburg, Tennessee, for the appellant, Brandi Price Carter.

Vanedda Prince Webb, Dyersburg, Tennessee, for the appellee, Jason Price.

                                        OPINION

                       BACKGROUND AND PROCEDURAL HISTORY

       Brandi Carter (“Mother”) and Jason Price (“Father”) divorced in October 2009.
Together, they have two minor children (“the Children”), born in May, 2007 and June,
2009. In February 2012, the Dyer County Chancery Court entered an Agreed Permanent
Parenting Plan, naming Mother as the Children’s primary residential parent. Five years
later, on May 25, 2017, Father filed the instant Petition to Modify the Permanent
Parenting Plan, asking the trial court to name him as the Children’s primary residential
parent.

       In the five years between the entering of the parenting plan and Father’s petition
for modification, Mother and Father both remarried. Following the divorce, Mother
married Michael Kimbro, and they moved into a house near her parents in Dyer County.
Together, she and Mr. Kimbro have two minor children.1 Father, in 2014, married his
current wife, Jennifer Price. Mother and Mr. Kimbro divorced in the summer of 2016,
after which point Mother moved in with her parents.2 Then, in October 2016, Mother
married her current husband, Derek Carter, who lives in Rockwood, Tennessee, which is
approximately thirty miles east of Crossville, Tennessee in Cumberland County. Mother,
however, continues to live in Dyer County and, since her marriage to Mr. Carter, travels
frequently to East Tennessee with the Children to be with him.

       In the May 2017 petition for modification, Father raised two claims which he
alleged amounted to a material change in circumstance such that it would be in the best
interests of the Children that he be designated the primary residential parent. Father
asserted that (1) since approximately September 2016, Mother had spent a significant
amount of time in or near Crossville, Tennessee and that (2) during the Children’s 2015-
2016 and 2016-2017 school years at Fifth Consolidated Elementary School (“Fifth
Consolidated”), the Children had acquired an excessive number of unexcused absences,
which occurred solely during Mother’s parenting time.

       As to Father’s second claim, Jamie McGowan—a records-keeper at Fifth
Consolidated testified to the following: during the 2015-2016 school year, one child had
19 absences, 10 of which were unexcused, and 13 incidents of tardy, 12 of which were
unexcused, and the other child had 16 absences, 9 of which were unexcused, and 9
incidents of tardy, 8 of which were unexcused, during the 2016-2017 school year, one
child had 13 absences, 10 of which were unexcused, and 15 incidents of tardy, 14 of
which were unexcused, and the other child had 11 absences and 15 incidents of tardy, all
of which were unexcused. During the portion of the 2017-2018 school year that the
Children had attended through the date of the underlying trial on December 22, 2017, one
child had three unexcused absences, and one incident of tardy, which was unexcused, and
the other child had three unexcused absences, and one incident of tardy, which was
unexcused.

      On July 28, 2017, the first day of the 2017-2018 school year, Father went to Fifth
Consolidated “to see if [the Children] had checked in.” Once there, he learned that the
       1
           The older child was in born May, 2012, and the younger was born in May, 2014. At the time of
the trial court’s February 5, 2018 order, Mother and Mr. Kimbro’s two children were ages 5 and 3.
       2
          Mother and Mr. Kimbro’s parenting plan is not a part of the record on appeal, but testimony in
the record does reflect that Mother is the primary residential parent of their two children.
                                                 -2-
Children were not at school and that SailAway Learning & Academy—a homeschool
located in Kingston, Tennessee—had requested records from Fifth Consolidated
regarding the Children. Father claimed that Mother, during the pendency of his May
2017 petition for modification and without his permission, attempted to transfer the
Children from Fifth Consolidated in Dyer County to SailAway Learning & Academy in
Kingston, Tennessee. After learning of this, Father, on July 31, 2017, filed a motion
seeking to hold Mother in contempt for violating the February 2012 parenting plan,
which provided that Mother and Father were to jointly make educational decisions for the
Children. The motion also sought to temporarily modify the existing permanent
parenting plan by naming Father the primary residential parent of the Children. A few
days later, on August 2, 2017, Father received Mother’s formal notice of her intent to
relocate with the children to Rockwood, Tennessee.3 Father responded on August 22,
2017 by filing a Petition in Opposition to Relocation, asserting that the proposed
relocation did not have a reasonable purpose, that it would pose a threat of specific and
serious harm to the Children, and that Mother’s motive for relocating was vindictive with
the intent to defeat Father’s parenting time. The trial court entered an Agreed Temporary
Order on August 30, 2017, providing that, pending Father’s May 2017 Petition to Modify
the Permanent Parenting Plan, Mother would not relocate with the Children and that they
would remain enrolled at Fifth Consolidated.4 Mother and Father attended mediation on
October 18, 2017, but they could not resolve the pending issues.

        A hearing was scheduled for December 22, 2017, and the trial court issued its final
order on February 5, 2018. In its order, the trial court concluded that Father had
established a material change in circumstance that was not foreseeable and that affected
the Children’s well-being in a meaningful and negative way, and that it was in the best
interests of the Children that Father be designated the primary residential parent. The
trial court also concluded that Mother was in criminal contempt for willfully disobeying
its order regarding major educational decisions. As to the relocation issue, the trial court
concluded that Father failed to establish why Mother should not be permitted to relocate
and that, “if a material change in circumstances had not been established or if it was not
established that it was in the children’s best interest that the primary parent designation
should be changed[,] the mother would be allowed to relocate.” Mother timely appealed.

                                       ISSUES PRESENTED

       Mother raises two issues on appeal, which we repeat verbatim:


       3
          According to Mother, only after she and Father discussed her potential relocation to East
Tennessee did Father file the May 2017 Petition to Modify the Permanent Parenting Plan. Mother then
hired an attorney, who drafted and sent Father the formal notice of her intent to relocate.
       4
         All issues regarding contempt raised in Father’s July 31 motion were reserved until the final
hearing on the Petition to Modify the Permanent Parenting Plan.
                                                -3-
         1. Whether there is a material change in circumstance that warranted a change
            of custody.
         2. Whether it is in the best interests of the minor children for Father to be
            named the primary residential parent.

                                STANDARD OF REVIEW

       In Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013), the Tennessee
Supreme Court set out the standards that apply to appellate review of a trial court’s
resolution of a petition to modify an existing permanent parenting plan:

             In this non-jury case, our review of the trial court’s factual findings
      is de novo upon the record, accompanied by a presumption of the
      correctness of the findings, unless the preponderance of the evidence is
      otherwise. See Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d
      566, 570 (Tenn. 2002); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.
      1984). We review the trial court’s resolution of questions of law de novo,
      with no presumption of correctness. Kendrick, 90 S.W.3d at 569. Statutory
      interpretation is a question of law, which we review de novo. Mills v.
      Fulmarque, 360 S.W.3d 362, 366 (Tenn. 2012).

             A trial court’s determinations of whether a material change in
      circumstance 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); In re C.K.G., 173 S.W.3d at
      732; Kendrick, 90 S.W.3d at 570; Hass, 676 S.W.2d at 555.

Armbrister, 414 S.W.3d at 692-93.

                                      DISCUSSION

        When a parent files a petition to modify custody, the parent seeking the
modification must demonstrate “that a material change in circumstances has occurred
which makes a change in custody in the child’s best interests.” Kendrick, 90 S.W.3d at
570. Thus, the decision to modify custody is a two-part test. As a threshold issue, the
trial court must determine, by a preponderance of the evidence, whether there has been a
material change in circumstance since the initial custody determination. See In re M.J.H.,
196 S.W.3d 731, 744 (Tenn. Ct. App. 2005). If the court finds that a material change in
circumstance has occurred, the court must proceed to the second step of the analysis to
determine whether the modification sought is in the child’s best interest. In re M.J.H.,
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196 S.W.3d at 744. If the court finds that a material change in circumstance has not
occurred, it “is not required to make a best interests determination and must deny the
request for a change of custody.” Pippin v. Pippin, 277 S.W.3d 398, 405 (Tenn. Ct. App.
2008) (quoting Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999)).

        Tennessee Code Annotated section 36-6-101(a)(2)(B) provides the standard which
a petitioning parent must meet to prove a material change in circumstance sufficient for
consideration of whether a modification of custody is in the best interest of the child:5

        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.

        Although there are no bright-line rules for determining whether such a change has
occurred, there are several relevant factors to consider: (1) whether the change occurred
after the entry of the order sought to be modified; (2) whether the change was not known
or reasonably anticipated when the order was entered; and (3) whether the change is one
that affects the child’s well-being in a meaningful way. H.A.S. v. H.D.S., 414 S.W.3d
115, 123 (Tenn. Ct. App. 2013) (quoting Cranston v. Combs), 106 S.W.3d 641, 644
(Tenn. 2003). Applying the analysis outline above to the present case, we are of the
opinion that the trial court erred in its conclusion that Father established by a
preponderance of the evidence that a material change in circumstance had occurred for
purposes of changing the designation of the primary residential parent.

        As the record indicates, for the 2015-2016 and 2016-2017 school years, the
Children accumulated a large number of absences, the majority of which were unexcused.
In its order, the trial court noted:

        Being absent from school can cause a child to fall behind academically, and
        the more absences there are the more the child falls behind. A child who is
        a strong academic student can often catch themselves up and can overcome

        5
          A different standard applies when a parent seeks modification of a residential schedule but not
the designation of the primary residential parent. See Tenn. Code Ann. § 36-6-101(a)(2)(C). It is “easier
to establish that a material change in circumstances has occurred” when the parent only seeks to modify
the residential parenting schedule. Armbrister, 414 S.W.3d at 703; see also Burnett v. Burnett, M2014-
00833-COA-R3-CV, 2015 WL 5157489, at *6 (Aug. 31, 2015) (“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.”).
                                                  -5-
      absences, but a child who is not as strong academically will often struggle.
      Even though a child who struggles academically may have better than
      average grades that child’s academic success would often be better had the
      child not been absent.

The trial court concluded Father “established that [Mother’s] actions caused the children
to be absent from school on more than one occasion when there was not a legitimate
reason for them to be absent.” As to whether these absences occurred after the entry of
the order implementing the current parenting plan, the trial court concluded that the
Children’s absences occurred when Mother traveled to see her new husband and to enroll
the Children in a home school, both in East Tennessee. The trial court also concluded
that it “simply could not have foreseen that these instances of avoidable unexcused
absences would occur when it entered the current parenting plan.” The trial court,
however, improperly concluded that these absences affected the Children’s well-being in
a meaningful way.

        Although we agree with the trial court that school absences can cause a child to
fall behind academically, the evidence presented at trial clearly indicates that such a
situation is not present here. Greg Cherry, the principal at Fifth Consolidated, testified
that the Children’s absences were not keeping them from progressing in school or from
mastering their subjects. To the contrary, Mr. Cherry testified that the Children are
average to above-average students and that they are each “mastering their subjects.” The
trial court even admitted as much, finding that “both of the children are doing well
academically[.]” The trial court, however, reached the conclusion that the Children
“could be doing even better and would not have to endure the stresses of playing
academic catchup if they were not absent so much[.]” As a general matter, the Court
agrees with this conclusion—and we certainly do not condone Mother’s actions in
causing the Children’s absenteeism over the last few years—but the possibility that the
Children could be “doing even better” academically does not rise to the level of a
material change in circumstance warranting a modification of the parenting plan so as to
change the designation of the primary residential parent from Mother to Father. This
Court reached a similar conclusion in In re Kaitlyn M.W. v. Crystal D.S.P., No. W2010-
00301-COA-R3-CV, 2010 WL 5541054 (Tenn. Ct. App. Oct. 13, 2010). There, the
father filed a petition to modify the parenting plan to designate him as the primary
residential parent. Id. at *2. In his petition, he maintained that the child’s educational
needs were not being met because, while under the mother’s care, the child was
excessively absent and tardy to school. Id. The trial court found no material change in
circumstance warranting a change of custody. Id. at *5. We agreed, noting that, although
it was undisputed that the child had excessive absences and tardy days for two academic
school years, the child’s absenteeism problems were largely resolved by the time of trial.
Id. at *7. Here, during the 2015-2016 school year, one child had 10 unexcused absences
and 12 unexcused incidents of tardy, while the other child had 9 and 8, respectively,
during the 2016-2017 school year, one child had 10 unexcused absences and 14
                                            -6-
unexcused incidents of tardy, while the other child had 11 and 15, respectively. The
Children, like the child in In re Kaitlyn M.W., were excessively absent from and tardy to
school for two academic school years. However, during the 2017-2018 school year, up to
the time of the trial, each child had only 3 unexcused absences and 1 unexcused incident
of tardy. These three absences occurred during the first three days of the school year
because the Children had not yet returned from East Tennessee. Since returning from
East Tennessee, however, the Children have not had a single unexcused absence, and
Mother testified at trial that she would make sure the Children were neither absent nor
tardy in the future. Moreover, there was no proof in the record that the children’s
academic performance was negatively affected by the earlier absences. As this court
found in Kaitlyn M. W., we are of the opinion that the Children’s problems of
absenteeism and tardiness had been largely resolved by the time of the trial below and,
accordingly, do not rise to the level of constituting a material change in circumstance for
purposes of changing the designation of the primary residential parent from Mother to
Father.

                                      CONCLUSION

      For the foregoing reasons, we reverse the trial court’s order changing the
designation of primary residential parent from Mother to Father.




                                                 _________________________________
                                                 ARNOLD B. GOLDIN, JUDGE




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