                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  JUNE 29, 2012 Session

           BRIDGET MICHELLE AGEE v. JASON FOREST AGEE

                   Appeal from the Circuit Court for Sumner County
                     No. 2008CV31470C        C. L. Rogers, Judge


              No. M2011-02103-COA-R3-CV - Filed November 19, 2012


In this post-divorce dispute, Father challenges the trial court’s modification of the parenting
plan to designate Mother as primary residential parent and the trial court’s calculation of his
income and monthly child support obligation. Discerning no error, we affirm.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which R ICHARD H. D INKINS, J.
and B EN H. C ANTRELL, S P. J., joined.

David R. Howard, Gallatin, Tennessee, for the appellant, Jason Forest Agee.

William L. Moore, Jr., Gallatin, Tennessee, for the appellee, Bridget Michelle Agee.

                                         OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

        Bridget Gentry (“Mother”) and the appellant, Jason Agee (“Father”), divorced on May
4, 2009. They have one eight-year-old son. The final decree of divorce incorporated an
agreed parenting plan that named both Mother and Father jointly as primary residential
parents and gave them residential time on alternating weeks and alternating Wednesdays, for
a total of 182.5 days each. Under this original parenting plan, Father paid Mother $38 per
month as child support, based on reported gross monthly incomes of $1,808.03 for Father and
$1,230.21 for Mother.

        The dispute that underlies this appeal began on February 18, 2010 when Father filed
a pro se petition for reduction of child support, citing “respondent’s job change and income”
as the change in circumstances warranting the reduction. In her answer and counter-petition,
Mother stated that her income had increased to $2,521 per month, requested that Father’s
income be imputed to $3,300 per month, and alleged that Father “has paid zero child support
to [her] since May 4, 2009,” and “is underreporting his alleged income of $1,808.03 per
month, as he has been paying a mortgage note of approximately $1,300, plus utility bills of
approximately $230-$280, plus a truck note of about $220, plus truck insurance, plus meals
and entertainment.” Mother requested to increase Father’s child support obligation, to
become the sole primary residential parent, and to designate Father as the alternate residential
parent. Father’s answer to the counter-petition denied most allegations and requested
dismissal.

       The parties then filed dueling petitions to modify the permanent parenting plan.
Mother’s alleged that “[s]ince the filing of the counter-petition there has been a material
change in circumstances . . . [in that the child] is not functioning well in his school
environment due to instability and confusion caused by the equal time provision of the
permanent parenting plan” and that it was in the child’s best interest for Mother to be
designated primary residential parent and for Father to receive “standard parenting time.”
Father’s petition cited “Mother’s actions to undermine and discourage his relationship with
the minor child, as well as create an instability relating to the continuity of the child’s life”
as the material change in circumstances, and submitted that the child’s best interest would
be served by his designation as primary residential parent with Mother receiving “a liberal
shared parenting arrangement to include alternate weekends, overnights on Wednesdays,
alternate major holidays, [and] expanded parenting time during the child’s Spring, Fall, and
Summer breaks.”

        During the June 2, 2011 final hearing, Mother and Father stipulated that a material
change in circumstances had occurred, so the trial court was left to determine custody based
on the child’s best interest pursuant to Tenn. Code Ann. § 36-6-106. Mother, Father,
Mother’s husband, Father’s live-in girlfriend, and the child’s elementary school teacher
testified1 at the hearing. Father entered into evidence his 2009 income tax return and Mother
entered Father’s bank statements.2 After all evidence was submitted, the trial court took
under advisement modification of the parenting plan and ordered Mother and Father to draft
proposed parenting plans as if each were to be named primary residential parent so that it


        1
          The record does not contain any transcripts of the hearings in this case, but does include a Tenn.
R. App. P. 24(c) statement of the evidence presented at the June 2, 2011 hearing. The evidence and findings
of fact will be presented in greater detail below as relevant to the issues on appeal.
        2
          Father is self-employed. The “Agee Construction” bank statements entered as Exhibit 5 detail
deposits and purchases made from April 2010 through December 2010.

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could decide the need for modification of the original parenting plan. The court further
ordered that “Mother is to prepare a proposed determination of Father’s income for the
calculation of child support” and that Father would be afforded “an opportunity to prepare
and submit a response to this proposed income determination.”

       Father submitted his proposed permanent parenting plan on June 10, 2011; Mother
submitted hers on June 14, 2011, and the trial court signed and entered Mother’s parenting
plan that same day.3 Pursuant to this parenting plan, Mother was designated primary
residential parent; she would have 265 days with the child and Father would have 100 days
with the child. Additionally, Father’s child support obligation–based upon Mother’s gross
monthly income of $2,859 and an imputed income of $5,660 for Father–increased from $38
per month to $1,130 per month.

        On June 17, 2011, Father, pursuant to Tenn. R. Civ. P. 52, requested findings of fact
and conclusions of law, stating that it was unclear why the parenting plan had been modified.
Pursuant to Tenn. R. Civ. P. 59 and by motion filed July 7, 2011, he also requested that the
court alter or amend its judgment. The trial court heard Father’s Rule 52 motion on June 29,
2011, and, by order entered July 14, 2011, directed Mother “to prepare specific proposed
findings of fact as to why primary residential care of the parties’ minor child should be
modified to name her the primary residential parent, as well as the determination of Father’s
gross monthly income for the purposes of calculating child support” and directed Father “to
prepare specific proposed findings of fact as to why primary residential care of the parties’
minor child should not have been modified . . . as well as objection to the determination of
[his] gross monthly income for the purposes of calculating child support.”

       In his proposed findings of fact, filed July 11, 2011, Father summarized the testimony
from the June 2, 2011 hearing, submitting that, “while the parties may have effectively
stipulated to the notion that there had been a material change of circumstances,” “radical
modification” of the parenting plan and the court’s adoption of Mother’s proposed parenting
plan was against the child’s best interest. Father’s proposed findings of fact also presented
his objections to the determination of his gross monthly income. The trial court considered
Mother’s and Father’s proposed findings of fact and, by order entered July 29, 2011, found
Mother’s residence to be “significantly more stable” than Father’s, expressed concern over
“Father’s intentional and significant understating of his income,” and found Father’s income
to be $5,660 per month. Finally, the trial court found that the child’s best interest was served
by Mother’s designation as primary residential parent, and found that Mother’s submitted


        3
          Unlike Mother’s plan, Father’s proposed parenting plan did not address child support and did not
include a child support worksheet. Father’s notice of filing states that he “has purposefully reserved the issue
of child support pending the final ruling in this matter.”

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child support worksheet was “correct and approved for calculation of the child support as per
the child support guidelines.”

        After a hearing and by order entered September 1, 2011, the trial court denied Father’s
motion to alter or amend. Father appeals and raises two issues for review: (1) Whether the
trial court erred in modifying the permanent parenting plan, and (2) Whether the trial court
erred in calculating his income and monthly child support obligation.

                                         S TANDARD OF R EVIEW

       In cases involving custody and visitation, we review the trial court’s findings of fact
de novo with a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002);
Marlow v. Parkinson, 236 S.W.3d 744, 748 (Tenn. Ct. App. 2007). Determinations
regarding custody and visitation “often hinge on subtle factors, including the parents’
demeanor and credibility during the divorce proceedings themselves.” Gaskill v. Gaskill, 936
S.W.2d 626, 631 (Tenn. Ct. App. 1996). We “give great weight to the trial court’s
assessment of the evidence because the trial court is in a much better position to evaluate the
credibility of the witnesses.” Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App.
2007). “Although we accord trial courts broad discretion in these decisions, they must still
base their decisions on the proof and upon the appropriate application of the applicable
principles of law.” Thompson v. Thompson, No. M2011-02438-COA-R3-CV, 2012 WL
5266319, at *5 (Tenn. Ct. App. Oct. 24, 2012).

                                                A NALYSIS

                          I. Modification of the Permanent Parenting Plan

       It is well-established that to modify a parenting plan to change the primary residential
parent, the trial court must apply a two-part analysis: the court must find that “both a material
change of circumstances has occurred and a change of custody is in the child’s best
interests.” Kendrick, 90 S.W.3d at 575; Tenn. Code Ann. § 36-6-101(a)(2)(B). Mother and
Father conceded through their dueling petitions and through an oral motion during the final
hearing that a material change in circumstances4 had occurred, so the trial court was left to


       4
           Even so, the trial court found a material change in circumstances:

       Both parties have alleged under oath in these respective pleadings that indeed a material
       change in circumstances has occurred. Since the child has started attending elementary
                                                                                          (continued...)

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determine whether modification of the parenting plan served the child’s best interest.

        The best interest determination is based on the non-exhaustive factors set forth in
Tenn. Code Ann. § 36-6-106(a)5 and turns on the particular facts of each case. See Taylor
v. Taylor, 849 S.W.2d 319, 326 (Tenn. 1993); In re Parsons, 914 S.W.2d 889, 893 (Tenn.
Ct. App. 1995). Though the trial court has to consider all relevant factors, including those
set out in Tenn. Code Ann. § 36-6-106(a), it is not required to list and discuss each of those
factors in its order.6 See In re Elaina M., No. M2010-01880-COA-R3-JV, 2011 WL
5071901, at *8 (Tenn. Ct. App. Oct. 25, 2011); Keisling v. Keisling, 196 S.W.3d 703, 723
(Tenn. Ct. App. 2005). The trial court analyzed the statutory factors as follows:

        The Court finds that the residence of the Mother is significantly more stable
        than the Father’s residence. This is based primarily on the on again off again
        live-in arrangement between Father and his girlfriend, Ms. Gallant. Ms.
        Gallant admitted to the Court that on at least one occasion she ended her live-
        in arrangements with the Father to commence a live-in romantic relationship
        with one of the Father’s best friends. Mother’s husband, Mr. Gentry on the
        other hand has a stable relationship with his wife. Given the comparative


        4
         (...continued)
        school, he has exhibited significant levels of confusion and frustration, particularly with the
        transportation issues due to the week to week alternati[ng] parenting schedule.

We note that “[e]vidence that an existing custody and visitation arrangement is not working is sufficient
to support a finding of material change of circumstances.” Turner v. Purvis, M2002-00023-COA-R3-
CV, 2003 WL 1826223, at *4 (Tenn. Ct. App. Apr. 9, 2003) (citing Vaccarella v. Vaccarella, 49 S.W.3d
307, 315-16 (Tenn. Ct. App. 2001)).
        5
           The statutory factors are: (1) the love, affection, and emotional ties between the parents and the
child; (2) the parents’ disposition to provide the child with food, clothing, medical care, education, and other
necessary care, as well as the degree to which a parent 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; (5) the parents’ mental and physical health; (6) the child’s
home, school, and community record; (7) the reasonable preference of the child, if twelve years of age or
older; (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 parent’s home and the
person’s interactions with the child; and (10) each parent’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each parent to facilitate and encourage a
close and continuing parent-child relationship between the child and both parents, consistent with the child’s
best interest. Tenn. Code Ann. § 36-6-106(a).
        6
          We do, however, encourage trial judges to make findings as precisely as possible, especially in
matters involving child custody.

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       character of these third persons who will reside with the child, the Court finds
       that Mother’s circumstances provide the environment providing for the child’s
       best interest.

       The Court is concerned with Father’s intentional and significant understating
       of his income, while at the same time petitioning the Court for a reduction in
       child support currently set at only thirty-eight ($38.00) a month. This
       demonstrated an unwillingness to properly provide for his child. Father was
       content to have Mother wrongfully carry the financial burden.
       ...

       It is in the best interest of the child to have the Mother designated as the
       Primary Residential Parent.

        Father contends that “the evidence presented at trial, as well as the statutory factors
found at Tenn. Code Ann. § 36-6-106, weigh as much in his favor as they do [in Mother’s]
and that, under the best interest analysis, they preponderate against the conclusions of law
that were reached and, therefore, against modification.” Respectfully, we disagree. While
some of the statutory factors do not weigh in either Mother’s or Father’s favor, the trial court
properly reviewed them and found that those at Tenn. Code Ann. § 36-6-106(a)(2), (4), and
(9) favor Mother. The evidence shows that Mother is more disposed to provide for her child
and financially more stable than Father, and that Mother’s and her husband’s home offers the
child greater stability. After examining the entire record and giving appropriate weight to
the trial court’s findings, we conclude that the trial court did not err in modifying the
parenting plan to designate Mother as primary residential parent, and that doing so served the
child’s best interest.

                          II. Calculation of Income and Child Support

       Broad discretion is afforded the trial court in its child support determinations, and
“that discretion is bounded on all sides by the child support guidelines.” 7 Smith v.
Darmohray, No. M2003-00236-COA-R3-JV, 2004 WL 904095, at *4 (Tenn. Ct. App. Apr.
27, 2004) (citing Butler v. Butler, 680 S.W.2d 467 (Tenn. Ct. App. 1984)). We review the
record de novo with a presumption that the court’s factual findings are correct, absent a
showing that the evidence preponderates to the contrary. Tenn. R. App. P. 13(d); see
Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). Where the trial court’s
determinations are based on its assessment of witness credibility, we “will not reevaluate that
assessment absent evidence of clear and convincing evidence to the contrary.” Owens v.


       7
           Tenn. Comp. R. & Regs. 1240-02-04-.04.

                                                    -6-
Tenn. Rural Health Improvement Ass’n, 213 S.W.3d 283, 285 (Tenn. Ct. App. 2006).

       The trial court made these findings:

       The Court is concerned with Father’s intentional and significant understating
       of his income, while at the same time petitioning the Court for a reduction in
       child support currently set at only thirty-eight ($38.00) a month. This
       demonstrated an unwillingness to properly provide for his child. Father was
       content to have Mother wrongfully carry the financial burden.

       Father is self-employed and admits he only reports his income if he receives
       a 1099 form and all other income is not reported. Exhibit 5 from the June 2,
       2011 hearing, Father’s bank account records, shows average income of
       $5,660.00 each month. The Father claimed monthly income of only $1,808.03
       for his child support calculation. The Court finds Father’s income to be
       $5,660.00 per month.
       ...
       The Court also adopts the child support worksheet submitted by the Mother
       and finds that the worksheet is correct and approved for calculation of the
       child support as per the child support guidelines.

       Father argues that he was not afforded a chance to refute calculations of his monthly
income and child support obligation. However, in his proposed findings of fact submitted
July 11, 2011, Father did, with specificity, challenge and attempt to refute these calculations,
and the trial court considered this before entering the July 29, 2011 findings detailed above.
Furthermore, he asserts that he did not receive credit for child support payments that he
submits for another child, and that he was not given allowable income credits for self-
employment taxes and reasonable business expenses. There is no evidence in the record
before us to contradict the court’s findings: it contains no evidence of additional child
support Father allegedly pays and no evidence of business expenses; and the only proof of
Father’s payment of self-employment taxes is his 2009 federal income tax return. What we
have before us is Exhibit 5, details of Father’s bank account, which in turn show deposits that
amount to significantly more than Father’s reported gross monthly income of $1,808.03, and
Father’s concession in oral argument that Exhibit 5 shows an average monthly income of
$5,660. We are bound to consider only the facts established by the evidence in the trial court
and set forth in the record. Tenn. R. App. P. 13(c).

       After studying the record, and considering the deference we give to the trial court’s
determination of Father’s credibility, we conclude that the evidence does not preponderate
against the trial court’s finding that Father’s monthly income is $5,660 per month, and the

                                              -7-
court properly used that amount in setting Father’s child support obligation.

                                       C ONCLUSION

       For the foregoing reasons, we affirm the trial court’s decision. Costs of appeal are
assessed against the appellant, Jason Agee, and execution may issue if necessary.


                                                     ______________________________
                                                          ANDY D. BENNETT, JUDGE




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