                                                                                        07/09/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                 June 19, 2019 Session

LARRY DANIEL CANTEY v. ALYSON LINDSAY CANTEY (VIOLETTE)

                Appeal from the Chancery Court for Gibson County
                     No. 22159 George R. Ellis, Chancellor
                    ___________________________________

                           No. W2018-01331-COA-R3-CV
                       ___________________________________


This appeal involves a petition to modify an agreed permanent parenting plan. The trial
court denied the petition. We conclude that the trial court’s order does not contain
sufficient findings of fact and conclusions of law. We vacate the order of the trial court
and remand for entry of an appropriate order.

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

CARMA D. MCGEE, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and THOMAS R. FRIERSON, II, J., joined.

G. Michael Casey, Jackson, Tennessee, for the appellant, Alyson Lindsay Cantey
(Violette).

Michael R. Hill, Milan, Tennessee, for the appellee, Larry Daniel Cantey.


                                       OPINION

                            I.   FACTS & PROCEDURAL HISTORY

       Alyson Lindsay Cantey (Violette) (“Mother”) and Larry Daniel Cantey (“Father”)
divorced in September 2016. Together, they have two minor children, a daughter
(“Daughter”) and a son (“Son”). At the time of the divorce, the parties executed a marital
dissolution agreement and an agreed permanent parenting plan, which designated Mother
as the primary residential parent. However, Mother and Father enjoyed equal parenting
time with the children. All major decisions required joint agreement of the parents, and
mediation was the anticipated means of resolution to any impasse.
        When the parenting plan was entered, Mother and Father resided in Milan,
Tennessee. Following the divorce, Mother and Father both remarried, and Mother moved
to Medina, Tennessee. Daughter is disabled and is enrolled in the special education
program at Milan Middle School. Neither parent desires to make any changes in
Daughter’s schooling. Son, at the time of the divorce, was not yet enrolled in elementary
school.

       On March 19, 2018, Mother filed a petition to modify the existing permanent
parenting plan due to an alleged material change of circumstance.1 Mother filed a new
proposed parenting plan seeking to modify several provisions, including the parties’ joint
educational decision-making authority. Alternatively, if her petition was denied, Mother
sought the authority to enroll Son in school at Medina Elementary School. Mother relied
primarily on her designation as primary residential parent to justify her claimed right to
make this decision.

       On April 20, 2018, Father filed a response to Mother’s petition (but no counter-
petition), denying that a material change of circumstance existed to change the parties’
joint decision-making. However, Father acknowledged that the parties had not been
following the existing parenting plan and agreed to revise the residential schedule and
child support provisions. Father attached to his response a proposed permanent parenting
plan, asserting that his plan accurately reflected the modifications to which the parties
informally agreed in the fall of 2017, except for the issue of Son’s schooling. The parties
attempted to mediate the issues but were unsuccessful.

        On June 6, 2019, the trial court conducted a hearing on Mother’s petition and
heard testimony from each party. At trial, both parties submitted competing parenting
plans that modified the terms of their original plan. The testimony of each party largely
centered on the issue of the appropriate school for Son, which remained in dispute.
Mother testified that it is in the children’s best interest to be in separate school districts,
based on their educational goals and circumstances. She believed that Milan Elementary
School was meeting the needs of Daughter and was the best school for Daughter.
However, she believed that it was in Son’s best interest to attend Medina Elementary
School. She described Son as being very bright. She testified that he, at age five, already
knew the periodic table of elements and different language. Her selection of Medina
Elementary School was based on her research comparing it and Milan Elementary
School. She testified that Medina Elementary was globally higher on all test scores than


       1
          Mother erroneously styled her pleading as a motion to modify rather than a petition to modify,
but this fact “is not of ultimate consequence,” because we give effect to the substance of her pleading
rather than its form. Stricklin v. Stricklin, 490 S.W.3d 8, 12 (Tenn. Ct. App. 2015).


                                                   2
Milan Elementary.2 Mother further testified to additional modifications she requested in
the existing parenting plan, including altering the residential parenting time to a week-to-
week schedule; allowing the children to be in her care on “school-free” days; and
removing the special provisions in the existing plan. Alternatively, in the event the court
did not modify the existing plan, Mother believed as the primary residential parent she
should be allowed to make the final decision regarding Son’s education.

        Father testified that he did not believe that it was in the best interest of the children
to attend separate schools. He agreed that Milan Elementary School was the best school
for Daughter and believed that school was appropriate for Son based on the services
provided to Daughter. He also testified that Son had been involved in extracurricular
activities in Milan and developed relationships with other children from Milan. Father
indicated his strong preference for Milan Elementary School was based on his philosophy
that education was not just about academic success, but also moral upbringing. Father
expressed concerns that if the children attend different schools, Son will develop an idea
of being separate from his sister.

      At the conclusion of the testimony, the trial judge announced his oral ruling
denying Mother’s petition. The court entered the following order on July 3, 2018:

          This Cause, came to be heard on the 6th day of June, 2018, before the
          Honorable Chancellor George R. Ellis in the Chancery Court of Gibson
          County, Tennessee upon the Defendant’s Motion to Modify Permanent
          Parenting Plan, Plaintiff’s Response, and statements of the parties made in
          open Court, from all of which the Court finds as follows:

                    1. The Court finds that the parties contracted a permanent parenting
                       plan upon their divorce on September 19, 2016.

                    2. Mother, Alyson Lindsay Cantey Violette, urges the Court that
                       materially substantial changes in circumstances have occurred
                       warranting the modification.

                    3. In addition, the mother desires to leave the Daughter . . . in the
                       school system where she is presently enrolled and to remove the
                       Son . . . from the system where he has been on track to enter for
                       the last three years, by agreement of both parties, to another
                       system where the Mother has relocated to in the last year.


          2
              The record contains no documentary evidence to support Mother’s assertion regarding the test
scores.


                                                      3
                4. Mother alleged that the system where she wishes to move her son
                   is superior without presenting any proof of the same.

                5. The Father, Larry Daniel Cantey, objects to this move for his son
                   due to separation of the siblings and the demographic differences
                   in the two systems.

                6. The transcript from the Judge’s ruling is attached as EXHIBIT
                   A.3

                ALL OF WHICH IS SO HEREBY ORDERED, ADJUDGED AND
                DECREED AS FOLLOWS:

                1. The Court finds that the motion by the mother is for her
                   convenience and not in the best interest of the children.

                2. The Mother’s Motion to Modify the Permanent parenting plan is
                   denied.

      Mother timely filed a notice of appeal.

                                      II. ISSUES PRESENTED

      Mother presents the following issues, which we have slightly reworded and re-
ordered, for review on appeal:

      1. Whether the trial court erred in refusing to modify the parties’ permanent
         parenting plan order, despite the fact that the parties both asked that it be
         modified.
      2. Whether the trial court erred by not allowing Mother, the primary residential
         parent, to determine which school Son attends.

       For the following reasons, we vacate the order of the trial court and remand for
further proceedings.

                                               III. DISCUSSION

        We first address Mother’s and Father’s arguments that the trial court erred in
failing to modify the parties’ permanent parenting plan because both of them requested
that it be modified. Here, the parties agree that a material change in circumstance has

      3
          The transcript provides no additional findings of fact or conclusions of law.


                                                     4
occurred to warrant modification of their residential parenting time.4 However, Father
disputes that a material change in circumstance existed to warrant modification of the
parties’ decision-making authority, as requested by Mother.

       The threshold issue, when considering a petition to modify a permanent parenting
plan, is whether a material change of circumstance has occurred since the court’s prior
custody order. See Tenn. Code Ann. § 36-6-101(a)(2)(B); Armbrister v. Armbrister, 414
S.W. 3d at 685, 697-98 (Tenn. 2013). Only after a material change of circumstance has
been found must the court decide whether modification is in the child’s best interest.
Armbrister, 414 S.W. 3d at 705. “The determinations of whether a material change of
circumstances has occurred and where the best interests of the child lie are factual
questions.” In re T.C.D., 261 S.W. 3d 734, 742 (Tenn. Ct. App. 2007).

       In this case, one of Mother’s requests is a modification of decision-making
authority for educational decisions. As this Court has previously explained:

        A modification in decision-making authority is analyzed utilizing the same
        standards governing any modification of the parenting plan. See Gider v.
        Hubbell, No. M2016-00032-COA-R3-JV, 2017 WL 1178260, at *5 (Tenn.
        Ct. App. Mar. 29, 2017) (citing Colley v. Colley, No. M2014-02495-COA-
        R3-CV, 2016 WL 3633376, at *10 (Tenn. Ct. App. June 28, 2016), perm.
        app. denied (Tenn. Nov. 17, 2016) (analyzing a parent’s request for sole
        decision-making authority under the material change analysis)). Therefore,
        once the existence of a material change in circumstance has been found, the
        trial court should consider the factors listed in Tennessee Code Annotated §
        36-6-106(a) to determine whether a modification is in the children’s best
        interest. See Allen [v. Allen, No. W2016-01078-COA-R3-CV,] 2017 WL
        908319, at *8 [(Tenn. Ct. App. Mar. 7, 2017)].

Brunetz v. Brunetz, 573 S.W. 3d 173, 184 (Tenn. Ct. App. 2018).

        Tennessee Code Annotated section 36-6-407 gives further direction to courts in
dealing with the issue of decision-making. Section 36-6-407(b) states in relevant part:
“The court shall order sole decision-making to one (1) parent when it finds that: . . . Both
parents are opposed to mutual decision making; or . . . [o]ne (1) parent is opposed to
mutual decision making, and such opposition is reasonable in light of the parties’
inability to satisfy the criteria for mutual decision-making authority.” Id. (emphasis
added). In determining who should be the sole decision-maker the trial court must
consider the following criteria:

        4
         The parties indicated at oral argument that they agree a material change of circumstance exists
to modify the residential parenting schedule.


                                                   5
      (1) The existence of a limitation under § 36-6-406;
      (2) The history of participation of each parent in decision making in each of
      the following areas: physical care, emotional stability, intellectual and
      moral development, health, education, extracurricular activities, and
      religion; and whether each parent attended a court ordered parent education
      seminar;
      (3) Whether the parents have demonstrated the ability and desire to
      cooperate with one another in decision making regarding the child in each
      of the following areas: physical care, emotional stability, intellectual and
      moral development, health, education extracurricular activities, and
      religion; and
      (4) The parents’ geographic proximity to one another, to the extent that it
      affects their ability to make timely mutual decisions.

Tenn. Code Ann. § 36-6-407(c)(1)-(4).

       Our role on appeal is to review the specific findings of the trial court against the
evidence in the record. Kathryne B.F. v. Michael B., No. W2013-01757-COA-R3-CV,
2014 WL 992110, at *7 (Tenn. Ct. App. Mar. 13, 2014). This court has held that
“[f]indings of fact are particularly important in cases that involve the custody and
parenting schedule of children.” In re Connor S.L., No. W2012-00587-COA-R3-JV, 2012
WL 5462839, at *4 (Tenn. Ct. App. Nov. 8, 2012) (quoting Hyde v. Bradley, No. M2009-
02117-COA-R3-JV, 2010 WL 4024905, at *3 (Tenn. Ct. App. Oct. 12, 2010)).

       Findings of fact are also required by the Tennessee Rules of Civil Procedure.
Rule 52.01 requires that a trial court make appropriate findings of fact and separate
conclusions of law following a bench trial. This Court has previously explained the
importance of this Rule to the appellate process:

      [T]he requirement to make findings of fact and conclusions of law is “not a
      mere technicality.” In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL
      1362314, at *8 (Tenn. Ct. App. May 15, 2009). Instead, the requirement
      serves the important purpose of “facilitat[ing] appellate review and
      promot[ing] the just and speedy resolution of appeals.” Id.; White v. Moody,
      171 S.W.3d 187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce, 801 S.W.2d
      102, 104 (Tenn. Ct. App. 1990). “Without such findings and conclusions,
      this court is left to wonder on what basis the court reached its ultimate
      decision.” In re K.H., 2009 WL 1362314, at *8 (quoting In re M.E.W. No.
      M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. Ct. App. Apr.
      21, 2004)).

Westfall v. Westfall, No. E2017-01819-COA-R3-CV, 2018 WL 2058198, at *3 (Tenn. Ct.

                                            6
App. May 2, 2018) (quoting Babcock v. Babcock, No. E2014-01670-COA-R3-CV, 2015
WL 1059003, at *6 (Tenn. Ct. App. Mar. 9, 2015)).

       Shifting our attention to the present case, the trial court denied Mother’s petition
as a whole, stating that the petition was for her convenience and not in the best interest of
the children. The Court did not make any findings as to whether a material change in
circumstance had occurred, or state whether the parties agreed on that issue at trial.
Further, there is nothing in the record to show us that the court conducted a best interest
analysis. According to our Supreme Court, “[t]here is no bright-line test by which to
assess the sufficiency of factual findings, but ‘the findings of fact must include as much
of the subsidiary facts as is necessary to disclose to the reviewing court the steps by
which the trial court reached its ultimate conclusion on each factual issue.’” Lovlace v.
Copley, 418 S.W.3d 1, 35 (Tenn. 2013) (quoting 9C Federal Practice and Procedure §
2579, at 328).5

      The parents are unable to exercise joint decision-making regarding Son’s education
and Mother has filed a petition to modify their decision-making authority. Therefore, the
trial court is statutorily required to make findings pursuant to Tennessee Code Annotated
section 36-6-407(b) to determine whether the decision-making authority in the parenting
plan should be modified. The evidence is clear that Mother and Father cannot agree upon
which school Son should attend, based upon their individual assessments of Son’s
educational needs. The record indicates both parents believe Son’s education is of great
importance to his welfare. Despite this evidence the trial court failed to designate a
primary decision-maker for Son’s education or make any findings as to the issue. See
generally Coley v. Coley, No. M2007-00655-COA-R3-CV, 2008 WL 5206297, at *7
(Tenn. Ct. App. Dec. 12, 2008). The absence of those findings hinders our ability to
review the findings against the evidence.

       Because the court did not make the requisite findings, our ability to review the
case is limited. We cannot discern from the record whether the court erred or abused its
discretion. “Appellate courts have two options when a trial court’s factual findings fail to

        5
           Even if we consider the trial court’s denial of Mother’s petition as an implicit finding that a
material change of circumstance had not occurred, we are perplexed at how the trial court came to that
conclusion. The proposed parenting plans submitted by both Mother and Father indicate that they agreed
to modify the residential schedule. The trial court’s order does not acknowledge any agreement between
the parties. It denies Mother’s petition, stating it “is for her convenience and not in the best interest of the
children.” Further, based on the evidence presented, we cannot see how the court arrived at its conclusion
that Mother seeking to enroll Son in Medina Elementary is for her convenience. It is undisputed that
Daughter will remain in school in Milan. If Son attends school in Medina, Mother will have to transport
the children to and from two different schools each day; this would not reasonably be more convenient for
a parent.




                                                       7
satisfy the Rule 52.01 requirement.” Trezevant v. Trezevant, 568 S.W. 3d 595, 623
(Tenn. Ct. App. 2018). One remedy is the appellate courts may conduct an independent
analysis of the record. See Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013
WL 657799, at *5 (Tenn. Ct. App. Feb. 22, 2013) (noting that when faced with a trial
court’s failure to make specific findings, “the appellate courts may ‘soldier on’ when the
case involves a clear legal issue, or when the court’s decision is readily ascertainable.”)
(citations omitted). The alternative and more modern remedy is to vacate the decision
and remand the case to the trial court with instructions to issue sufficient findings of fact
and conclusions of law. See, e.g., In re Caleb F., M2016-01584-COA-R3-JV, 2017 WL
5712992, at *6-7 (Tenn. Ct. App. Nov. 28, 2017); Pandey, 2013 WL 657799, at *5-6;
Hardin v. Hardin, No. W2012-00273-COA-R3-CV, 2012 WL 6727533, at *5-6 (Tenn.
Ct. App. Dec. 27, 2012); In re Connor S.L., 2012 WL 5462839, at *7.

        For us to conduct a meaningful appellate review, in the event that the parties do
not stipulate regarding the existence of a material change of circumstances, the trial court
must first make detailed findings of fact. If a material change of circumstance exists, the
trial court must conduct a best interest analysis utilizing the factors in Tennessee Code
Annotated section 36-6-106(a) to determine whether a modification of the permanent
parenting plan is warranted.6 Because the record does not contain required findings as to
either the existence of a material change of circumstance or an analysis of the best
interest of the child, this Court remands this matter to the trial court for failure to comply
with Tennessee Rule of Civil Procedure 52.01.

        We next move to Mother’s issue of whether she should be allowed, as primary
residential parent, to determine the school that Son attends. The only findings made by
the trial court on this issue were that (1) Mother presented no evidence to show that one
school was “superior”; (2) the request was made for the convenience of Mother; (3) and
the request was not in the best interest of the children. Given that Mother did in fact
present testimonial evidence to support her request and the trial court did not evaluate this
evidence, we again conclude that the trial court’s findings are deficient. Consequently, as
with Mother’s first issue, this issue is also remanded to the trial court to make the
necessary findings of fact. We note, however, that this issue may become moot for
purposes of this appeal once the trial court determines which parent is authorized to make
the educational decisions for the children. In the event that this issue remains viable, the
trial court is instructed to make all necessary findings of fact and conclusions of law
supporting its decision as required by law.


        6
           This Court has vacated the judgments of trial courts where they failed to make findings to
support their rulings or where they failed to engage in a best interest analysis. See, e.g., Iman v. Iman, No.
M2012-02388-COA-R3-CV, 2013 WL 7343928, at *13 (Tenn. Ct. App. Nov. 19, 2013 (vacating the
judgment of the trial court when it failed to make appropriate findings of fact and failed to “make an
explicit finding that modification [of the residential parenting schedule] was in the child’s best interest.”)


                                                      8
                                       IV. CONCLUSION

       We again encourage the trial court to “‘be as precise as possible in making child
custody findings’ in order to facilitate meaningful appellate review.” Belardo v. Belardo,
No. M2012-02598-COA-R3-CV, 2013 WL 5925888, at *7 (Tenn. Ct. App. Nov. 1, 2013)
(quoting In re Elaina M., No. M2010-01880-COA-R3-JV, 2011 WL 5071901, at *8
(Tenn. Ct. App. Oct. 25, 2011)).

       For the foregoing reasons, we vacate the trial court’s judgment and remand this
matter to the trial court with instructions to make specific findings of fact and conclusions
of law. Costs of the appeal are taxed equally to appellant, Alyson Lindsay Cantey
(Violette), and to appellee, Larry Daniel Cantey, for which execution may issue if
necessary.


                                                  _________________________________
                                                   CARMA D. MCGEE, JUDGE




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