                                                                                              10/04/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   May 21, 2019 Session

                                 IN RE CAROLINE U.1

                   Appeal from the Juvenile Court for Knox County
                        No. J-0493 Timothy E. Irwin, Judge
                      ___________________________________

                             No. E2018-01951-COA-R3-JV
                        ___________________________________


This is a modification of residential schedule case. The father requested an increase in
parenting time based on a material change in circumstances. The court ruled that the
father failed to demonstrate a material change in circumstances. We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Mario L. Azevedo, II and Timothy K. Jones, Knoxville, Tennessee, for the appellant,
Reid Michael T.

Ben H. Houston, II, Knoxville, Tennessee, for the appellee, Madison Anne U.


                                          OPINION

                                    I. BACKGROUND

       The parties in this case, Reid Michael T. (“Father”) and Madison Anne U.
(“Mother”), were never married. In January, 2017, their child, Caroline June U. (“the
Child”), was born. Following the Child’s birth, the parties engaged in litigation that
ultimately culminated in the entry of a permanent parenting plan (“the PPP”) order on
November 13, 2017, that awarded Mother 251 days and Father 114 days. Father
thereafter moved to reconsider and/or alter the judgment pursuant to Rule 59 of the
       1
         In cases involving a minor child, it is this court’s policy to redact names in order to
protect the child’s identity.
Tennessee Rules of Civil Procedure. On April 19, 2018, the trial court entered the final
PPP order adjudicating all pending claims at that time other than child support and
awarded Father an additional two weeks of co-parenting time (“the April order”). As a
result, Father’s total number of days with the Child increased to 128 days while Mother’s
total number of days decreased to 237. On June 20, 2018, the parties entered into an
agreed order setting child support based upon the number of days outlined in the April
order. On the same day, however, Father sought to modify the PPP. Mother responded
with a motion to dismiss Father’s petition.

        At a hearing held on September 27, 2018, Father argued that changes in his work
schedule and college major along with his decision to stop teaching jujitsu classes
constituted a material change in circumstances. In his pleadings, Father noted that he had
been “working a fluctuating schedule that was often unpredictable” but that he had
“modified his schedule such that he only works Friday through Monday nights when the
child is asleep such that he can maximize his co-parenting time.” Counsel for Father
asserted during the hearing that “at the time of the entry of the original parenting plan in
October of 2017,” Father “had five, at one time, separate jobs and he was full-time at
Pellissippi State on campus.” Father, however, failed to present any proof specifying
what his previous work schedule was or exactly when the work schedule changed. With
regard to his college major, Father noted that he had changed from engineering to
political science. He observed in his pleadings that his new major has more classes
online and requires only about 3 hours a week in a classroom. However, Father did not
provide specifics about his current school schedule as compared to the prior one, and
there was no evidence presented as to when he changed his major. As to the jujitsu
classes, counsel indicated that Father had stopped being an instructor, but Father did not
discuss when he stopped teaching the classes. At the hearing, Father testified that the
Child “never knows that I’ve left the house. Sleeps through the whole night.” He noted
that his mother keeps the Child any time he is away working or at school.

       In her pleadings, Mother revealed that she had graduated from Pellissippi State
and secured full-time employment. During her testimony at the hearing, she discussed
the fact that Father’s mother, rather than Father, usually meets her at exchanges of the
Child. She noted that on the rare occasions Father appeared, he would not discuss the
Child with her, whereas Father’s mother would frequently engage in such conversations
with Mother for five or ten minutes.

       Despite Father’s assertions that he has attempted to have greater participation in
the Child’s life, there was little to no evidence presented regarding how the alleged
changes in Father’s circumstances have impacted the Child. Counsel for Father did not
identify any concerns or problems with the Child’s care.

       The trial court determined that Father had failed to prove by a preponderance of
the evidence that there had been a material change in circumstances affecting the Child’s
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best interest. The court observed that the hours of Father’s jobs were still mostly the
same, that he was still working mostly nights, and that he was still attending school. The
court recognized that Father had stopped teaching jujitsu classes but found this fact was
not significant enough to support a finding that there had been a material change in
circumstances. The trial court dismissed Father’s petition to modify the permanent
parenting plan on October 18, 2018. Father filed a timely notice of appeal.


                                          II. ISSUES

       The issues before this court are restated as follows:

               1. Whether the trial court correctly determined that Father
               failed to present facts establishing that a material change in
               circumstances had been proven by a preponderance of the
               evidence since the entry of the most recent PPP order.

               2. Whether this court should award Mother her attorney’s
               fees on appeal pursuant to Tennessee Code Annotated section
               36-5-103(c).


                              III. STANDARD OF REVIEW

        “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.” Armbrister v. Armbrister, 414 S.W.3d 684, 692 (Tenn. 2013). We
review a trial court’s findings of fact de novo with a presumption of correctness. Tenn.
R. App. P. 13(d). We will not overturn such findings unless the evidence preponderates
against them. Id. “Determining the details of parenting plans is ‘peculiarly within the
broad discretion of the trial judge.’” Armbrister, 414 S.W.3d at 693 (citing Suttles v.
Suttles, 748 S.W.2d 427, 429 (Tenn. 1998)). “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 standard to the evidence found in the record.” Eldridge v.
Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).




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                                   IV. DISCUSSION

       To modify an existing parenting plan, the trial court must first determine whether a
material change in circumstances has occurred. Armbrister, 414 S.W.3d at 697-98 (citing
Tenn. Code Ann. § 36-6-101(a)(2)(C)). “The petitioner . . . must prove by a
preponderance of the evidence a material change of circumstance affecting the child’s
best interests, and the change must have occurred after entry of the order sought to be
modified.” Gentile v. Gentile, No. M2014-01356-COA-R3-CV, 2015 WL 8482047, at
*5 (Tenn. Ct. App. Dec. 9, 2015) (citing Caldwell v. Hill, 250 S.W.3d 865, 870 (Tenn.
Ct. App. 2007) (emphasis added)). “[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). If a material change in circumstances is
found, the court must then determine whether a modification of the parenting plan is in
the child’s best interest in consideration of the factors set forth in Tennessee Code
Annotated section 36-6-106(a). Armbrister, 414 S.W.3d at 697-98. “Not every change in
the circumstances of either a child or parent will qualify as a material change in
circumstances. The change must be significant before it will be considered material.”
Null v. Cummins, No. M2017-00191-COA-R3-CV, 2018 WL 3954321, at *5 (Tenn. Ct.
App. Aug. 17, 2017).

       The original PPP was entered on November 13, 2017. It was superseded by the
PPP entered on April 19, 2018. However, the April order did not become final until the
agreed order setting support based on the amended number of days set forth in it was
entered on June 20, 2018. See In re Gabrielle R., No. W2015-00388-COA-R3-CV, 2016
WL 1084220 at *3 (Tenn. Ct. App. Mar. 17, 2016) (holding that where the trial court had
not yet revisited the child support amount following the modification of a permanent
parenting plan, the order modifying the plan was not a final order because it had not
adjudicated all issues); see also Hensley v. Hensley, No. E2017-00354-COA-R3-CV,
2017 WL 5485320, at *7 (Tenn. Ct. App. Nov. 15, 2017). Father filed his petition to
modify the PPP on June 20, 2018, which was the same day the PPP he seeks to modify
became a final order.

       In our view, there could not have been a material change in circumstances at the
time that Father filed his petition to modify because the PPP order had only become a
final order that very same day. See In re Gabrielle R., 2017 WL 1084220 at *3. The
facts used to establish a material change in circumstances sufficient to modify a
residential parenting schedule must occur after the entry of the plan to be modified. See
Gentile, 2015 WL 8482047, at *5 (holding that petitioners seeking to modify a residential
parenting schedule “must prove by a preponderance of the evidence a material change of
                                           -4-
circumstance affecting the child’s best interests, and the change must have occurred after
entry of the order sought to be modified”) (emphasis added). See Caldwell, 250 S.W.3d
at 870. In this case, it is clear that no material change could have occurred between the
time that the order became final and the time that Father filed his petition seeking
modification.

       Even assuming arguendo that the relevant time frame for determining whether a
material change of circumstances had occurred began running from the April order, there
is insufficient evidence in the record to support Father’s claim that such a change
occurred. Upon our review of the record, we find that there is no evidence that a change
in Father’s work schedule had occurred because he failed to put forth any specific proof
as to what his work schedule was at the time that the PPP was originally entered on
November 13, 2017. To the extent that the record arguably establishes that some change
in the work schedule occurred, the evidence entered at the hearing failed to establish that
the change in his work schedule was significant or that the changes in the work schedule
significantly impacted his parenting. As to the change in major, there is no evidence in
the record as to when Father made the change. Without the information that would
permit us to compare Father’s prior school schedule with his current school schedule, it is
impossible to determine whether the alleged change was significant. Further, no proof
was shown as to when Father stopped teaching jujitsu classes. In any event, Father’s
decision to stop teaching such classes is clearly insufficient to establish a material change
in circumstances under section 36-1-101(a)(2)(C), as “[n]ot every change in the
circumstances of . . . a parent will qualify as a material change in circumstances. The
change must be ‘significant’ before it will be considered material.” Boyer v.
Heimermann, 238 S.W. 3d 249, 257 (Tenn. Ct. App. 2007). Without evidence in the
record, it is impossible for us to know when the alleged changes occurred. It was
Father’s burden to produce evidence sufficient to establish that a material change in
circumstances had occurred -- we cannot engage in speculation, conjecture, or surmise to
make such a determination. See Porter v. Green, 745 S.W.2d 874, 877 (Tenn. Ct. App.
1987) (“[i]t is a well-known rule of evidence a judgment cannot be based on conjecture,
speculation, or surmise.”).2

       Upon the record before us, Father failed to establish by a preponderance of the
evidence that a material change in circumstance had occurred. As the trial court
observed, Father was still working multiple jobs, was still working nights, and was still
attending school. There has been no change in relationship status for Father, nor has
there been any relocation or career change. His mother is still keeping the Child during
his work hours and while Father is attending school. There is no proof that the parties
have failed to abide by the previous PPP. No evidence before us relates to how Father’s

       2
         At the conclusion of Father’s direct examination, the trial court inquired of Father’s
counsel: “Is there anything else you want to ask him?” Father’s counsel responded: “I don’t
think so; he’s sufficiently addressed the court.”
                                             -5-
alleged change in circumstances has impacted the Child. The facts simply fail to set forth
a material change of circumstances under Tennessee Code Annotated section 36-6-
101(a)(2)(C). Accordingly, the trial court’s order dismissing the petition for modification
must be affirmed.


                                             B.

       Father asserts that the trial court applied an incorrect legal standard. However, a
careful review of the court’s statements from the bench reveals that the court utilized the
appropriate standard as set forth by Tennessee Code Annotated section 36-6-
101(a)(2)(C). The trial court recognized that significant changes to a parent’s work
and/or school schedule such as graduating, going from a night shift to a day shift
position, or starting a new career might constitute a material change in circumstances.
These statements reveal that the trial court was applying the correct legal standard
pursuant to Tennessee Code Annotated section 36-6-101(a)(2)(C). The court correctly
concluded, however, that Father’s alleged changes in his work or school schedule were
not significant and, therefore, did not meet the burden set forth by section 36-6-
101(a)(2)(C). In particular, the court noted that “[t]he hours of his jobs are still the same.
I mean, he still works mostly night. Yeah, he doesn’t teach karate any more. Maybe he’s
got a hair more time. He changed his major, but his major—he’s still going to school.”
Given the lack of evidence presented by Father, any error in the application of the legal
standard would have been harmless, as an error would not have changed the outcome.
See Tenn. R. App. P. 36(b).


                                             C.

       Pursuant to Tennessee Code Annotated section 36-5-103(c), this court has the
discretion to award attorney’s fees on appeal in cases seeking the modification of a
permanent parenting plan. When determining whether an award of attorney’s fees is
appropriate pursuant to section 36-5-103(c), courts should consider “among other factors,
the ability of the requesting party to pay his or her own attorney’s fees, the requesting
party’s success on appeal, and whether the requesting party has been acting in good
faith.” See Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App. 2004). Awarding
fees incurred on appeal is a matter of discretion. See Pippin v. Pippin, 277 S.W.3d 398,
407 (Tenn. Ct. App. 2008).

       In the instant case, all of the relevant factors weigh in favor of an award of
attorney’s fees. Mother has meager wage earnings, does not have much ability to pay her
own attorney’s fees, is likely to succeed on this appeal, and has been acting in good faith
throughout these proceedings. We find that Mother should not be required to bear the
financial burden of Father’s actions and award her reasonable attorney’s fees on appeal
                                           -6-
pursuant to the Tennessee Code Annotated section 36-5-103(c).


                                 V. CONCLUSION

        The judgment of the trial court dismissing Father’s petition to modify the
permanent parenting plan is affirmed. Mother is awarded her reasonable attorney’s fees
for this appeal pursuant to Tennessee Code Annotated section 36-5-103(c). This case is
remanded to the trial court to set Mother’s attorney’s fees and for such further
proceedings as may be necessary. Costs of the appeal are taxed to Appellant, Reid
Michael T.



                                               _________________________________
                                               JOHN W. MCCLARTY, JUDGE




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