                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                October 26, 2012 Session

                LAWRENCE TAYLOR, JR. v. LADONNA KNOTT

                 Appeal from the Juvenile Court for Davidson County
               No. 2004004244PT125106     Betty K. Adams Green, Judge


                No. M2012-00172-COA-R3-JV - Filed December 12, 2012


Mother of two children appeals the trial court’s finding of a material change of circumstances
and modification of the parenting plan; Mother also appeals the requirement that she
reimburse Father for certain costs incurred. Finding no error, we affirm.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.

Jonathan Lynn Miley and Fannie Jordan Harris, Nashville, Tennessee, for the Appellant,
LaDonna Knott.

Danny J. Baxter, Nashville, Tennessee, for the Appellee, Lawrence Taylor.

                                         OPINION

       Lawrence Taylor (“Father”) and LaDonna Knott (“Mother”), who never married, are
the parents of two children; this appeal is from the ruling on Father’s petition to modify the
parenting plan.

I.       Facts and Procedural History

       On October 14, 2005, the court entered an order designating Father as the primary
residential parent and establishing a parenting schedule. In May 2007, the court modified
the parenting schedule so that the parties shared equal parenting time.

       On April 19, 2010, Father filed a Petition for Modification and for Other Relief
alleging that Mother agreed to care for the children during Father’s vacation to Mexico in
March of 2010; that after he arrived in Mexico, Mother informed him that she would not
keep the children; that Mother threatened to allow the children to go into state custody if
Father did not arrange for their care; and that Father purchased an early return ticket home
from Mexico as a result. Mother filed her response asserting that she made a “good faith
effort to care for the children during the Father’s parenting time.”

       The petition was heard on February 11, May 27, and August 22, 2011. The court
entered a final order on October 17, 2011, holding that there was a material change of
circumstances that required the court to modify the parenting time and that a modification
was in the best interests of the children; Mother’s parenting time was reduced to alternating
weekends, alternating holidays, and two weeks in the summer. The court further ordered
Mother to reimburse Father for his return plane ticket and his attorney fees.

       Mother raises the following issues on appeal:

       1.     Whether a material change of circumstance occurred that would justify
              modification to the existing parenting plan?
       2.     Whether a best interest of the children test was conducted by the trial
              court and if said test would justify a modification of the parenting plan?
       3.     Whether Mother should be required to reimburse Father for a plane
              ticket from Mexico?

       Father requests his attorney’s fees on appeal.

II. Discussion

       A. Modification of the Parenting Plan

        The threshold issue in proceedings to modify a parenting plan is whether a material
change in circumstances affecting the child’s best interest has occurred since the adoption
of the existing parenting plan. Tenn. Code Ann. § 36-6-101(a)(2); see Kendrick v.
Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002). After making the finding that a material
change of circumstances has occurred, the court proceeds to make a fresh determination of
the best interest of the child. Curtis v. Hill, 215 S.W.3d 836, 840 (Tenn. Ct. App. 2006);
Kendrick, 90 S.W.3d at 569. We review decisions in such cases de novo with a presumption
that the trial court’s findings of fact are correct unless the evidence preponderates otherwise.
Kendrick, 90 S.W.3d at 569; Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990). In
addition, we are reluctant to second-guess a trial court’s determination regarding parenting
schedules. Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999). “Trial courts have broad
discretion in devising permanent parenting plans and designating the primary residential
parent. In reaching such decisions the courts should consider the unique circumstances of

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each case.” Burton v. Burton, No. E2007-02904-COA-R3-CV, 2009 WL 302301, at *1
(Tenn. Ct. App. Feb. 9, 2009) (citing Parker, 986 S.W.2d at 563); see also Nelson v. Nelson,
66 S.W.3d 896, 901 (Tenn. Ct. App. 2001). A trial court’s conclusions of law are subject to
a de novo review with no presumption of correctness. Nelson, 66 S.W.3d at 901 (citing
Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997)).

        For purposes of modification of the residential parenting schedule, the petitioner has
the burden to prove by a preponderance of the evidence a material change of circumstance,
“which may include, but is not limited to, significant changes in the needs of the child over
time . . . 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). The statute regarding changes to a residential parenting schedule “sets a very
low threshold for establishing a material change of circumstances. Indeed, merely showing
that the existing arrangement has proven unworkable for the parties is sufficient to satisfy the
material change of circumstances test.” Rose v. Lashlee, M2005-00361-COA-R3-CV, 2006
WL 2390980, at *3 n.3 (Tenn. Ct. App. Aug. 18, 2006) (citing Rushing v. Rushing, No.
W2003-01413-COA-CV, 2004 WL 2439309, at *6 (Tenn. Ct. App. Oct. 27, 2004), and
Turner v. Purvis, No. M2002-00023-COA-R3-CV, 2003 WL 1826223, at *4 (Tenn. Ct. App.
Apr. 9, 2003)).

       In the Final Order, the court made the following findings of fact:

       1) Mother deliberately sabotaged Father’s vacation by agreeing to keep the
       children and then changing her mind after he had left the country.
       2) Mother will not co-parent. She is unable to share in activities where Father
       and Step-mom are present.
       3) The comments and actions of Mother are increasingly noticeable to the
       boys.
       4) While Mother accuses Father of being controlling and harassing, the proof
       did not [support] this and her e-mails indicate her own controlling and
       harassing behavior.

Mother takes issue with these findings and cites what she contends is contrary testimony in
the record.

        We have reviewed the testimony cited by Mother and, while the specific testimony
she cites arguably conflicts with several of the court’s findings, the entire evidence, taken as
a whole and in context, does not preponderate against the court’s findings.1 The trial court,


       1
           In her brief, Mother cites primarily to her testimony and that of Father. Ronette Taylor
                                                                                       (continued...)

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which characterized its involvement in this dispute as “a long, painful history,” was able to
assess the credibility of each witness, to give appropriate weight to the testimony, and make
its findings.2

       Mother argues that the findings do not support the conclusion that there was a material
change in circumstances because the children were not impacted in a material way. We do
not agree.

        Father testified regarding a specific incident at a school orientation program in August
2010, began at the same time as Mother’s normal pick up time. He testified that Mother
arrived and pulled the children out in the middle of the program like “two puppies on a
leash”; that Mother later returned with the children to a separate portion of the program, but
held the children’s hands the entire time and would not let the children interact with Father
or Stepmother; and that the children’s entire demeanor changed from outgoing to “passive”
once Mother arrived. Ms. Thurston testified that “when we’re at activities and there is an
exchange of the children . . . [the children] almost seem to shut down because it’s like they’re
afraid [and saying] who am I allowed to talk to at this particular moment.” Ms. Thurston also
testified that she observed telephone calls between the children and Mother, and that the
children “get shut down” in these conversations when speaking about Father.3

        1
            (...continued)
(“Stepmother”), Amber Rigsby, an after school caretaker, and Wendy Thurston, the children’s godmother,
also testified at the hearing; in addition, substantial email communications between Mother and Father were
admitted into evidence.
        2
          We do not find it necessary to characterize Mother’s behavior with respect to Father’s Mexico trip
as “deliberate sabotage”; we agree that record supports the finding that Mother’s behavior was inappropriate
and led to Father’s early return from his trip.
        3
          Ms. Thurston, who frequently babysits the children, testified that the children often will put their
phones on speaker or video conference when speaking with Mother and that, as a consequence, she is able
to hear the conversations. She testified as follows:

        Q:          So you observed Mr. Taylor with the children after they come back from Ms.
                    Knott’s house?
        A:          Yes.
        Q:          What have you seen?
        A:          When they -- he asks them what they did, did you have a good time. They will talk
                    about what they did with mom, or what they’re going to do and he’s very
                    encouraging of that. That’s great, that sounds like fun. I have also been there when
                    they’ve been on the phone with her and talking about what they’re doing with him
                    and they just get shut down.
        Q:          What did you see or hear?
        A:          I hear[d] Ms. Knott changing the subject, or well, mommy misses you so
                                                                                                   (continued...)

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        The trial court, in discussing the evidence, stated in part:

        There is tension at school functions and other activities when both parents are
        present. (Instead of this being the supportive and encouraging environment
        for the boys that it could be, it becomes one of hostility.) When the boys had
        a sleep over at a friend’s house, Mother called and told them she was sad
        when they weren’t with her and that she would have been happy to keep them
        and continued to tell them how sad she was, visibly upsetting the younger
        child.
        ***
        It is obvious that Mother loves the boys. It is also obvious that she is not
        willing to work with others in their lives and cannot put her jealousy and
        insecurity aside for the betterment of the boys.
        ***
        Mother states she never intended for the children to go into DCS custody.
        That is not, however, the impression she gave Father via her e-mails, nor is it
        what witnesses testified to in court. Her anger and bitterness bleed through her
        e-mails. Children are more perceptive than adults believe them to be and
        these two boys are literally caught between the two people they love the most.

       Taken as a whole, the record supports the conclusion that a change of circumstances
had occurred since the entry of the May 2007 order. Among conditions constituting a
material change of circumstances as set forth in Tenn. Code Ann. § 36-6-101(a)(2)(C) are
“other circumstances making a change in the residential parenting time in the best interest
of the child”; this is such a case. The conflict between Mother and Father continued to
escalate following the court’s 2007 order and was heightened by the marriage of Father to
Stepmother in February 2008.4 The events surrounding the Mexico trip that ultimately
caused Father to file for a modification were not isolated but were part of a larger pattern of

        3
            (...continued)
                    much, or we’re going to do that, too. She just doesn’t listen to it. It just
                    gets swept under the carpet, to the point where the boys stop talking about
                    it.
        Q:          Have you seen that affect the children?
        A:          Yes.
        Q:          How do they act differently?
        A:          They just seem to be -- they just shut down. They just do. They’re not
                    excited anymore. It’s kind of like, why should I talk about it.
        4
           Mother testified that Father has attempted to replace her with Stepmother; the evidence showed
that, on one occasion, Mother would not allow the school to release the children into Stepmother’s care, and
on numerous occasions where Stepmother signed the children’s school materials, Mother covered
Stepmother’s signature with correction fluid and replaced it with her own.

                                                        -5-
conduct by Mother; they constitute a material change in circumstance. We affirm, therefore,
the trial court’s holding, and turn to a review of the determination that modifying the
parenting schedule was in the best interest of the children.

        Mother contends that the court “failed to conduct an actual best interest of the child
test” and that there is “no evidence” that Mother was unwilling or unable to facilitate and
encourage a close and continuing parent-child relationship between the children and the other
parent.

        In its order, the court discussed the best interest of the children as follows:

        In comparing the factors that Court must consider (T.C.A. § 36-6-404(b)) in
        setting a residential schedule, Mother and Father are equal with one very
        important exception—Mother has repeatedly shown this Court that she is
        either unwilling or unable to facilitate and encourage a close and continuing
        parent-child relationship between the children and the other parent, consistent
        with the best interest of the children

The court further stated that “when a parent’s actions cause discomfort and anxiety for the
children, it is time for the Court to step in and put an end to the continued strife.” The court
concluded that a change in the parenting schedule would be in the children’s best interest

        Based upon our review of the record, the trial court appropriately reviewed the factors
enumerated in Tenn. Code Ann. § 36-4-404(b) and in light of the children’s needs.5 The
evidence, especially the numerous e-mails, fully support the court’s conclusion that Mother
is bitter, and we agree that this bitterness has, in turn, prevented Mother from being able to
encourage a relationship between the children and Father. As observed by the court, the
record reflects the discomfort and anxiety the children experienced as a result of Mother’s



        5
           Mother contends that the trial court erred in applying the factors enumerated in Tenn. Code Ann.
§ 36-4-404(b), rather than those found in Tenn. Code Ann. § 36-6-106. Both statutes set forth a non-
exclusive list of factors applicable when the court adopts a parenting plan. Tenn. Code Ann. § 36-6-106
enumerates factors relevant to the best interest of the child in divorce cases and other child custody
determinations; Tenn. Code Ann. § 36-6-404(b) enumerates factors relevant to the court’s designation of a
primary residential parent and the division of parenting time. The factors found in Tenn. Code Ann. § 36-6-
404(b) are substantially similar to the factors set out in Tenn. Code Ann. § 36-6-106(a); further, both statutes
allow the court to consider any other relevant factors. See Thompson v. Thompson, No. M2011-02438-COA-
R3-CV, 2012 WL 5266319, at *6 (Tenn. Ct. App. Oct. 24, 2012). “[I]n most cases, the analysis and the
result would be the same regardless of which set of factors is applied.” Id. Such is true in this case; the
conclusion that a change to the parenting plan is in the best interest of the children would be reached under
either statute.

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behavior. Thus, we affirm the trial court’s holding that the change in the parenting plan is
in the best interest of the children.

B.     Order to Reimburse Father

        Mother contends that the requirement that she reimburse Father for the cost of his
flight from Mexico was “purely punitive in nature as no prior order of the court or statute
would provide for such an award” and argues that she did not possess the state of mind
necessary to support an award of punitive damages.

        Father testified that in early March he asked Mother if she would keep the children
during his upcoming vacation; Mother agreed. After Father and Stepmother arrived in
Mexico on March 27, Mother informed Father by email that she would no longer keep the
children on Tuesday or Thursday of that week. Ms. Rigsby testified that on Tuesday
morning, Mother brought her a copy of the emails and stated that she would not pick the
children up that evening; Ms. Rigsby informed Mother that Department of Children’s
Services (“DCS”) would be called if children were not picked up by 6:30 p.m., and Mother
replied, “Do what you have to do.” Ms. Rigsby called Father to discuss the issue. Father
testified that he purchased a return flight for $730.65 on Tuesday and departed for Nashville;
Stepmother remained in Mexico. The testimony showed that Mother later arranged for the
children’s grandmother to pick the children up from school on Tuesday; Father testified that
he learned of this arrangement when he arrived in Texas for his layover and that he retrieved
the children when he arrived in Nashville.

        As an initial matter, we do not agree with Mother’s characterization of the order that
she reimburse Father for this expense as either punitive or an award of punitive damages.
Father included the request that he be reimbursed in his prayer for relief; inherent in the
court’s findings was the fact that the expense would not have been incurred but for the failure
of Mother to honor her agreement to take care of the children while Father was in Mexico.
It was within the authority of the court in enforcing its prior orders, including the parenting
plan, to make the award.

       In ordering Mother to reimburse Father for the full cost of the flight, the court
summarized a series of emails by noting that Mother told Father that he “could not force her
to keep the children, should call Wendy Thurston, the children would go into DCS custody,
etc.”6 Given the trial court’s experience with these parties and this continuing issues relating
to the parenting plan, the court’s order that Mother reimburse Father was within its
discretion, and we decline to overturn it.



       6
           We have reviewed the emails and the court’s summary is correct.

                                                  -7-
III. Attorney’s Fees

       Mother contends that she is entitled to attorney’s fees at trial and on appeal. Father
requests his attorney’s fees on appeal.

       An award of attorney’s fees in child custody actions is within the discretion of the trial
court. Kesterson v. Varner, 172 S.W.3d 556, 573 (Tenn. Ct. App. 2005). The abuse of
discretion standard does not permit this Court to substitute its judgment for that of the trial
court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). Rather, “[u]nder the
abuse of discretion standard, a trial court's ruling ‘will be upheld so long as reasonable minds
can disagree as to propriety of the decision made.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001) (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22
S.W.3d 266, 273 (Tenn. 2000)).

       After reviewing the record, we affirm the trial court’s discretionary decision to grant
Father’s request for attorney’s fees.

        An award of appellate attorney fees is within this Court’s sound discretion. Archer
v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). In our discretion, we award Father
his attorney’s fees incurred on appeal and remand for the calculation of those fees.

IV. Conclusion

      For the reasons set forth above, we affirm the court below and remand for the
determination of Father’s attorney’s fees on appeal.




                                                     ___________________________________
                                                     RICHARD H. DINKINS, JUDGE




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