                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    JULY 11, 2001 Session

             DEE ANN WOOLMAN v. EARL CLENTON WOOLMAN

                 Direct Appeal from the Circuit Court for Williamson County
                     No. II-98460; The Honorable Russ Heldman, Judge



                   No. M2000-02346-COA-R3-CV - Filed December 28, 2001


The Appellant and the Appellee are the parents of three minor children. Following the Appellant
and the Appellee’s divorce, they shared joint legal and physical custody of the children. The
Appellant filed a Petition for Modification of Custody in the Circuit Court of Williamson County
seeking to relocate with the children to Illinois. Following the close of the Appellant’s proof at the
hearing on the Petition, the Appellee made a Motion to Dismiss. The trial court granted the Motion
to Dismiss and awarded attorney’s fees to the Appellee.

        The Appellant appeals the order entered by the Circuit Court of Williamson County granting
the Motion to Dismiss and awarding attorney’s fees to the Appellee. For the reasons stated herein,
we affirm in part and reverse in part the trial court’s decision. We remand the case to the trial court
for further proceedings consistent with this opinion.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,
                              Reversed in Part & Remanded

ALAN E. HIGHERS , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Rebecca E. Byrd, Franklin, TN, for Appellant

Joanie L. Abernathy, Franklin, TN, for Appellee

                                             OPINION

                                 I. Facts and Procedural History

        On March 23, 1999, the Appellant, Dee Ann Woolman (“Ms. Woolman”), and the Appellee,
Earl Clenton Woolman (“Mr. Woolman”), were divorced by Final Decree of Divorce on the grounds
of irreconcilable differences. The Final Decree of Divorce provided that the parties would share joint
and legal physical custody of their three minor children. (Id.). The Final Decree of Divorce provided
that the children would spend one week each month with Ms. Woolman during the school year and
three weeks each month with Ms. Woolman during the summer months. The Final Decree of Divorce
also provided that neither party change the residence of the children outside of Williamson County,
Tennessee without first obtaining written authorization of the other party or approval of the court.

        In January, 2000, Ms. Woolman received notice that her job was ending and began looking
for another job. Ms. Woolman claims that she made all efforts to obtain a job in the same location;
however, she eventually accepted a job in Illinois. On April 20, 2000, Ms. Woolman filed a Petition
for Modification of Custody in the Circuit Court of Williamson County. The Petition alleged that
there had been a substantial and material change in circumstances to warrant a modification of
custody in that Ms. Woolman had moved to Illinois. The Petition alleged that the move to Illinois
was in the children’s best interest and requested that Ms. Woolman be named the primary physical
custodian of the children. On July 19, 2000, Mr. Woolman filed an Answer to Petition for
Modification of Custody. The Answer denied that there had been a substantial and material change
in circumstances and denied that it was in the children’s best interest to change their primary
residence to Illinois.

        The hearing on the Petition was held on July 20, 2000. At the close of Ms. Woolman’s proof,
Mr. Woolman made a Motion to Dismiss in accordance with Rule 41.02(2) of the Tennessee Rules
of Civil Procedure. Mr. Woolman argued that the proof failed to show a significant and material
change in circumstances and should not withstand the Motion to Dismiss. On July 27, 2000, Mr.
Woolman filed Defendant’s Brief in Support of Motion to Dismiss. Ms. Woolman filed Brief in
Support of Plaintiff’s Position that a Material Change in Circumstances has Occurred since the Prior
Custody Order. On August 10, 2000, the trial court entered an Order granting the Motion to Dismiss.
The trial court awarded attorney’s fees to Mr. Woolman. This appeal followed.

                                     II. Standard of Review

        The standard of review for a non-jury case is de novo upon the record. See Wright v. City of
Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the trial
court’s factual findings, unless the preponderance of the evidence is otherwise. See TENN. R. APP .
P. 13(d). For issues of law, the standard of review is de novo, with no presumption of correctness.
See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).

                                     III. Law and Analysis

       The following two issues are presented for our review:

(1) whether the trial court erred by refusing to allow the children to relocate to Illinois with Ms.
Woolman; and
(2) whether the trial court erred by awarding Mr. Woolman attorney’s fees and failing to award Ms.
Woolman attorney’s fees.
We will address each issue in turn.


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        The first issue presented for our review is whether the trial court erred by refusing to allow
the children to relocate to Illinois with Ms. Woolman. Tennessee law on the issue of parental
relocation is governed by section 36-6-108 of the Tennessee Code. Section 36-6-108 delineates
between parents who spend substantially equal amounts of time with their children and those who do
not. See TENN. CODE ANN . § 36-6-108 (Supp. 2000). Section (c) governs parental relocation where
the parents are spending substantially equal amounts of time with the child. See id. Section (d)
governs parental relocation where the relocating parent is spending the greater amount of time with
the child. See id. In the case at bar, the parties testified that they spent substantially equal amounts
of time with the children. The trial court found that the parties exercised “pure joint legal and
physical custody of the children and spent substantial, equal intervals of time caring for them.”
Accordingly, the applicable provision in this case is section 36-6-108(c) which requires the
application of a best interest analysis in determining whether relocation is appropriate. Section 36-6-
108(c) provides the following:

               (c) If the parents are actually spending substantially equal intervals
               of time with the child and the relocating parent seeks to move with
               the child, the other parent may, within thirty (30) days of receipt
               of notice, file a petition in opposition to removal of the child. No
               presumption in favor of or against the request to relocate with the
               child shall arise. The court shall determine whether or not to permit
               relocation of the child based upon the best interests of the child. The
               court shall consider all relevant factors including the following where
               applicable:
               (1) The extent to which visitation rights have been allowed and
               exercised;
               (2) Whether the primary residential parent, once out of the jurisdiction,
               is likely to comply with any new visitation arrangement;
               (3) The love, affection and emotional ties existing between the parents
               and child;
               (4) The disposition of the parents to provide the child with food, clothing,
               medical care, education and other necessary care and the degree to which
               a parent has been the primary caregiver;
               (5) The importance of continuity in the child’s life and the length of time
               the child has lived in a stable, satisfactory environment;
               (6) The stability of the family unit of the parents;
               (7) The mental and physical health of the parents;
               (8) The home, school and community of the parents;
               (9) 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 preferences of older children should normally be given
               greater weight than those of younger children;
               (10) Evidence of physical or emotional abuse to the child, to the
               other parent or to any other person; and


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                (11) 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.

TENN. CODE ANN . § 36-6-108(c).

         In denying Ms. Woolman’s request to relocate with the children to Illinois, the trial court
stated that it considered the relevant factors set forth in section 36-6-108(c). The trial court stated
that, in light of those factors as applied to the evidence, relocation to Illinois would not be in the best
interest of the children. At the hearing on the Petition, the trial court heard testimony from Ms.
Woolman, Mr. Woolman, Ms. Woolman’s father, and the parties’ fourteen-year-old daughter, Jessie.
Upon reviewing the record, we cannot say that the evidence preponderates against a finding that
relocation to Illinois would not be in the best interest of the children.

        Ms. Woolman testified that her job in Illinois requires her to travel to Asia four times per year
for two weeks at a time. Her job also requires travel within the United States. Ms. Woolman testified
that a majority of her travel could take place while Mr. Woolman had the children. Ms. Woolman
also testified that her father had agreed to stay with the children when she traveled.

        Ms. Woolman testified that she has been diagnosed with depression and has had suicidal
thoughts since the divorce. Ms. Woolman testified that her depression is controlled by her
medication. Ms. Woolman testified that she drinks socially three times per week. Since the divorce,
Ms. Woolman has had three boyfriends. Ms. Woolman’s current boyfriend, Paul, whom she had been
dating for three months at the time of the hearing, stayed overnight with the children while she was
on a business trip. Ms. Woolman testified that she never told Mr. Woolman that Paul stayed
overnight with the children. Ms. Woolman testified that the children like Paul.

        At the time of the hearing, Mr. Woolman had a girlfriend, Susan, whom he had been dating
for ten months. Jessie testified that Mr. Woolman and Susan are affectionate in public. Ms.
Woolman testified that she told Jessie that Susan was rude. Jessie testified that she liked Paul but did
not like Susan due to a personality clash. Ms. Woolman testified that she was not concerned about
Susan.

         The parties’ twelve-year-old daughter, Alyssa, has anxiety disorder and sensory integration
dysfunction which results in temper tantrums, or “meltdowns” as referred to by the parties. Ms.
Woolman testified that she did research on Alyssa’s condition and has had success with Alyssa in
implementing behavior modification. Ms. Woolman testified that Alyssa’s teachers in Williamson
County also implemented behavior modification which resulted in improvements. Ms. Woolman
testified that she has had to call Mr. Woolman twice to handle Alyssa’s meltdowns.

       Mr. Woolman testified that he has implemented behavior modification by putting less pressure
on Alyssa and giving her more latitude in her choices. On one occasion, Alyssa hit Mr. Woolman.
Mr. Woolman restrained Alyssa by sitting on her and pinning down her wrists. Mr. Woolman


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testified that he did not place any weight on Alyssa. Mr. Woolman testified that he has yelled at
Alyssa. Jessie testified that Mr. Woolman has left Jessie alone with Alyssa during a meltdown. Mr.
Woolman denies leaving Jessie alone with Alyssa during a meltdown. Jessie testified that Alyssa has
hit her siblings, has thrown things, and has tried to hurt herself. Jessie testified that Alyssa acts better
at Ms. Woolman’s house.

        The children have lived in Mr. Woolman’s house since at least five years prior to the divorce.
Ms. Woolman testified that she had no complaints about the Williamson County School District or
how they were handling Alyssa’s special needs. Ms. Woolman also testified that Alyssa is an
inflexible child that needs the least amount of classroom changes. Ms. Woolman’s father, who lives
in Nashville, Tennessee, testified that he has a close relationship with the children. Jessie testified
that she preferred to live with her mother. Jessie testified that she loved her father but that she needs
her mother right now and does not feel comfortable in her father’s house. Jessie testified that her
father’s house is unkept.

        From our review of the record, we are unable to find that the evidence preponderates against
the trial court’s finding that relocation to Illinois would not be in the best interest of the children.
Accordingly, we affirm the trial court’s decision refusing to allow the children to relocate to Illinois
with Ms. Woolman.

        In addition to denying Ms. Woolman’s request to relocate with the children, the trial court
declined to modify the existing custody arrangement. In child custody cases, the law is well
established that when a decree awarding custody of children has been entered, “that decree is res
judicata and is conclusive in a subsequent application to change custody unless some new fact has
occurred which has altered the circumstances in a material way to make the welfare of the children
require a change in custody.” Long v. Long, 488 S.W.2d 729, 731-32 (Tenn. Ct. App. 1972) (citing
Hicks v. Hicks, 176 S.W.2d 371 (Tenn. Ct. App. 1943)). In other words, once the trial court has
made an initial determination with respect to custody, it cannot entertain a subsequent petition to
modify custody absent a material change in circumstances such that the welfare of the child demands
a redetermination. See, e.g., Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995).

         The party seeking a change in custody has the initial burden of showing a material change in
circumstances which affects the welfare of the child. See Harris v. Harris, 832 S.W.2d 352, 353
(Tenn. Ct. App. 1992). A “material change in circumstances” justifying modification of a child
custody order may include factors arising after the initial determination or changed conditions that
could not be anticipated at the time of the original order. See Blair v. Badenhope, 940 S.W.2d 575,
576 (Tenn. Ct. App. 1996) (citing Dalton v. Dalton, 858 S.W.2d 324 (Tenn. Ct. App. 1993)). If the
party seeking a change in custody satisfies the burden of proving a material change in circumstances,
the trial court will then consider the petition to modify custody using a best interests standard. See
Woolsey v. McPherson, No. 02A01-9706-JV-00125, 1998 WL 760950, at *2 (Tenn. Ct. App. Nov.
2, 1998).




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         In situations where one parent is moving, the law in Tennessee states that a move, in and of
itself, does not constitute a material change in circumstances. See Adelsperger v. Adelsperger, 970
S.W.2d 482, 486 (Tenn. Ct. App. 1998). The fact that a joint custody arrangement is no longer
working, however, does constitute a material change in circumstances which warrants a change of
custody. See Rubin v. Kirshner, 948 S.W.2d 742, 745 (Tenn. Ct. App. 1997); Dalton, 858 S.W.2d
at 326; Dodd v. Dodd, 737 S.W.2d 286, 290 (Tenn. Ct. App. 1987).

         In the case at bar, the trial court found that the evidence did not support a finding that there
had been a material change in circumstances which authorized the trial court to change custody. The
trial court stated, “it is apparent that joint legal and physical custody will not ‘work’ should mother
be allowed to relocate a residence of the children to Rockford, Illinois.” The trial court stated that
the mother should simply find work in Tennessee such that the parties can continue to share joint
custody of the children. It is doubtful, however, that Ms. Woolman will return to live in Tennessee
in the near future. Ms. Woolman testified at the hearing that she was unable to find a job in
Tennessee, that she has already secured employment in Illinois, and that she has bought a house in
Illinois. The trial court failed to address the issue of custody in the event Ms. Woolman remains in
Illinois. Rather, the trial court found that it was not in the best interest of the children to relocate with
Ms. Woolman to Illinois.

        The existing custody arrangement is unworkable under the circumstances. The Final Decree
of Divorce states that Ms. Woolman will have the children one week each month during the school
year. Additionally, the parties testified that they were spending substantially equal amounts of time
with the children prior to the move. Neither party had been designated as the primary physical
custodian of the children. As long as Ms. Woolman remains in Illinois, she will be unable to share
joint physical custody of the children with Mr. Woolman. The children will be unable to spend one
week each month during the school year with Ms. Woolman, much less substantially equal amounts
of time. We find that the unworkability of the joint physical custody arrangement is a material change
in circumstances warranting a change of custody. We reverse the trial court’s finding that there had
not been a material change in circumstances to warrant changing custody and remand this case to the
trial court for a determination of custody, visitation, and child support.

        The second issue presented for our review is whether the trial court erred by awarding Mr.
Woolman attorney’s fees and failing to award Ms. Woolman attorney’s fees. Section 36-5-103(c) of
the Tennessee Code provides that a person to whom custody of a child is awarded “may recover from
the other spouse reasonable attorney fees incurred . . . in regard to any suit or action concerning the
adjudication of the custody or the change of custody of any child.” TENN. CODE ANN . § 36-5-103(c)
(Supp. 2000). The decision to award attorney’s fees is within the sound discretion of the trial court.
See Richardson v. Richardson, 969 S.W.2d 931, 936 (Tenn. Ct. App. 1997) (citation omitted). An
appellate court will not overturn a trial court’s award of attorney’s fees absent an abuse of discretion.
See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996). Upon our review of the
record, we find no abuse of discretion on the part of the trial court in its award of attorney’s fees. We
affirm the trial court’s award of attorney’s fees to Mr. Woolman.



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                                          IV. Conclusion

         For the foregoing reasons, the decision of the trial court is affirmed in part and reversed in
part. We remand the case to the trial court for further proceedings consistent with this opinion. Costs
of this appeal are taxed against the Appellant, Dee Ann Woolman, and her surety, for which execution
may issue if necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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