                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs September 5, 2012

                                     IN RE PRESTON C. G.

                     Appeal from the Juvenile Court for Maury County
                         No. 09JV178     George L. Lovell, Judge


                 No. M2011-01777-COA-R3-JV - Filed November 15, 2012


This appeal involves Father’s petition to be named primary residential parent of his son. The
trial court held that a material change in circumstances had occurred and that it was in the
child’s best interest to spend more time with the Father; however, the court determined that
Mother should remain the child’s primary residential parent. Father appeals the trial court’s
determination that it is in the best interest of the parties’ son for Mother to be the primary
residential parent. Finding no error, we affirm.

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

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

Jennifer Sheppard, Nashville, Tennessee, for the appellant, Damoon G.

No appellee brief filed.

                                               OPINION

                                F ACTS AND P ROCEDURAL H ISTORY

       Damoon G. (“Father”) and Natasha W. (“Mother”) are the parents of a son, Preston
G., born March 30, 2001. Mother and Father were never married. In February 2007, the
Davidson County Juvenile Court entered an order granting Mother and Father joint custody
and equal parenting time with Preston.1 The residential parenting schedule required Mother


        1
          Although the record on appeal does not include the February 2007 order, an August 11, 2010 order
of the Juvenile Court of Maury County references a February 16, 2007 order establishing joint custody
                                                                                             (continued...)
and Father to alternate parenting time every other week.

        On June 22, 2010, Father filed a petition to modify custody requesting the court to
designate him as Preston’s primary residential parent. The juvenile court held a hearing on
the petition and entered an order on August 11, 2010. The court determined that both Mother
and Father had “acquiesced in mutually abandoning the prior order” and that the prior order
was not feasible now that the parties live in separate counties and the child is of school age.
The court designated Mother as the primary residential parent and allowed Father parenting
time on the first, third, and fifth weekends of the month. The parties shared parenting time
during fall and spring breaks and alternated holidays.

       The dispute giving rise to this appeal originated in April 2011 when Father filed
another petition to modify custody, seeking to be designated as the primary residential parent
of Preston. Father alleged that there had been a material change in circumstances since the
entry of the August 2010 order, based on Mother’s pleading guilty and being convicted of
two counts of possession of a controlled substance resulting in a two-year suspended
sentence, her pending harassment charge, her screaming obscenities about Father or his
family when on the telephone with the child, her failure to foster a good relationship between
the child and Father, and her inconsistent employment.

       The trial court held a hearing on the petition on June 24, 2011 at which Mother,
Father, and Preston’s paternal aunt testified. The court entered an order on July 12, 2011
holding that a material change of circumstance had occurred since its last order involving
custody of the child. The court conducted a detailed best interest analysis pursuant to Tenn.
Code Ann. § 36-6-106 and held Father’s parenting time should increase to include an
additional weekend per month as well as Preston’s entire two-week fall and spring breaks.
The court determined Mother should remain the primary residential parent.

       Father appeals and asserts the trial court erred in failing to name him the primary
residential parent of Preston.

                                   S TANDARD OF R EVIEW

        In cases involving custody and visitation, our review of the trial court’s findings of
fact is de novo with a presumption of correctness, unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002).
Custody decisions “often hinge on subtle factors, including the parents’ demeanor and


       1
        (...continued)
between the parties.

                                              -2-
credibility.” Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). “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

       In order to modify custody in an existing parenting plan, a trial court must engage in
a two-step analysis. First, the court must determine whether a material change in
circumstances has occurred since the entry of the prior order.2 Tenn. Code Ann. § 36-6-
101(a)(2)(B); Boyer, 238 S.W.3d at 259. Pursuant to Tenn. Code Ann. § 36-6-101(a)(2)(B),
the party seeking modification has the burden of proving a material change in circumstances.
Second, upon finding a material change in circumstances has occurred, the court must
consider the factors enumerated in Tenn. Code Ann. § 36-6-106(a) and make a determination
whether it is in the child’s best interests to modify the current custody arrangement.
Kendrick, 90 S.W.3d at 570.

I. Substantial and Material Change in Circumstances

       With respect to the threshold issue, the trial court held that a substantial and material
change in circumstances had occurred since the entry of the August 11, 2010 order.
Specifically, the court found that Mother had been convicted of a misdemeanor crime and
sentenced to probation and that Mother made “grossly inappropriate comments, both by
content and temperament,” to Preston during a series of phone conversations that were
recorded by Father.3

       The following three factors are considered appropriate bases for holding that a
material change in circumstances has occurred: “(1) the change occurred ‘after the entry of
the order sought to be modified,’ (2) the change was ‘not known or reasonably anticipated
when the order was entered,’ and (3) the change ‘affects the child’s well-being in a


        2
           Tennessee has different criteria for determining whether a material change of circumstance has
occurred to justify modification of “custody” or a “residential parenting schedule.” Tenn. Code Ann. § 36-6-
101(a)(2)(B)-(C). In this case, the statutory criteria related to modification of “custody” in Tenn. Code Ann.
§ 36-6-101(a)(2)(B) is the proper standard because Father has requested a change in the child’s primary
residential parent. See Rigsby v. Edmonds, No. E2011-02265-COA-R3-CV, 2012 WL 3218082, at *6-7
(Tenn. Ct. App. Aug. 9, 2012).
        3
         Mother does not appeal the trial court’s determination that a substantial and material change in
circumstances occurred.

                                                     -3-
meaningful way.’” Dishman v. Dishman, No. M2008-01194-COA-R3-CV, 2009 WL
1181341, at *2 (Tenn. Ct. App. May 1, 2009) (quoting Kendrick, 90 S.W.3d at 570). From
our review of the record, and according the appropriate deference to the trial court’s
evaluation of the witnesses’ credibility, we conclude that the evidence does not preponderate
against the trial court’s finding that there has been a material change in circumstances since
the entry of the August 11, 2010 order. Mother’s criminal behavior and her inappropriate
comments toward Preston constituted substantial and material changes that affected the
child’s well-being in a meaningful way.

II. Best Interests of the Child

       Father’s primary contention on appeal is that the trial court erred in determining it is
in Preston’s best interests for Mother to remain Preston’s primary residential parent. Father
argues that Mother’s unwillingness to foster a relationship between him and the child should
necessitate a change in Mother’s status as primary residential parent.

      In making its decision in this case, the trial court considered the factors at Tenn. Code
Ann. § 36-6-106(a) and conducted a best interests analysis as follows:

       (1) The love and emotional ties between parent and child: The child loves both
       parents. This factor does not favor either parent.

       (2) Disposition to care for the child: Father and his extended family have more
       financial means, but Mother has been able to provide for the basics all the
       child’s life. This factor favors Mother.

       (3) Continuity in a stable, satisfactory environment: The child has been in
       Mother’s care and she has been the sole caregiver for the vast majority of his
       life. However, the Court has real concerns about how satisfactory that
       environment is. If the language and tone she uses at home are anywhere
       remotely like the language and tone of her conversations over the phone with
       the child, she should not be able to talk to the child. This factor does not favor
       either parent.

       (4) Stability of the family unit: Father’s family lives together and seems
       supportive of the child. Mother does not have close family support and is
       raising this child and another child, both of whom were born out of wedlock.
       This factor favors Father.

       (5) Mental and physical health of the parents: There is no evidence that either

                                              -4-
       parent has any physical infirmity that would impact their ability to care for the
       child. Mother has been diagnosed with an anxiety disorder. She is seeing a
       Centerstone mental health counselor, is taking two prescription medicines, and
       has to report her counseling progress every two months to the Williamson
       County Court. Mother claims that all of her anxiety has arisen due to Father’s
       actions. This factor favors Father.

       (6) Community record of the child: Child’s grades in school are excellent, but
       he has a significant number of absences and tardies. This factor does not favor
       either parent.

       (7) Preference of child: The child is now ten years old and was not called to
       testify. There is no evidence either way. This factor does not favor either
       parent.

       (8) Evidence of physical or emotional abuse: There is no proof of physical
       abuse, but Mother’s telephone tirades with the child could not encourage a
       positive mental attitude in the child. This factor favors Father.

       (9) Character and behavior of other persons in the home: There is no proof of
       anyone frequenting Mother’s home. Father’s family at home includes a
       grandfather who seems to be a good influence. This factor favors Father.

       (10) Parent’s past and potential future performance of parenting
       responsibilities and encouragement of a close relationship with both parents:
       Again, Mother has provided nearly all of the parenting, but she certainly has
       not encouraged a good relationship between Father and child. Each parent
       seems to be able and willing to provide and care for the child, although Father
       has more material wealth than Mother. Father’s past performance as a father
       has not been outstanding, and this may have encouraged Mother’s vindictive
       attitude toward Father. This factor favors Father.

The court found that five factors weighed in favor of Father, one favored Mother, and four
favored the parties equally. Ultimately, the trial court concluded that the “best interest of the
child would be best served if he were to spend more time with his Father.” However, the
trial court determined that due to the distance between the parties, their work schedules, and
Preston’s school schedule, it was not possible to split the parenting time equally between the
parties. As a consequence, the court increased Father’s parenting time and left Mother as
Preston’s primary residential parent.



                                               -5-
        Father relies on Cranston v. Combs and Costley v. Benjamin in support of his
contention that the trial court erred in failing to assign greater weight to Tenn. Code Ann.
§ 36-6-106(10) when conducting its best interest analysis. Cranston v. Combs, 106 S.W.3d
641 (Tenn. 2003); Costley v. Benjamin, No. M2004-00375-COA-R3-CV, 2005 WL 1950114
(Tenn. Ct. App. Aug. 12, 2005). In Cranston, our Supreme Court found that the mother
exhibited a “deliberate pattern of consistent interference with [the father’s] court-ordered
visitation rights” and upheld the trial court’s order changing the child’s primary residential
parent from his mother to his father. Cranston, 106 S.W.3d at 645-46. The facts presented
here are distinguishable. There is no evidence in the record to suggest that Mother interfered
with Father’s parenting time with Preston. In fact, the record shows that Father has exercised
parenting time with Preston on a consistent basis in accordance with the residential schedule.

        Father cites Costley for the proposition that “it is the public policy of the State of
Tennessee that a child’s best interest is served when (s)he is able to have a close and loving
relationship with both parents.” We agree that encouraging each parent to maintain “a
loving, stable, and nurturing relationship with the child” is of great importance. Costley,
2005 WL 1950114, at *18 (quoting Tenn. Code Ann. § 36-6-404(b)(3)). However, courts
are not required to elevate this policy concern over the other factors enumerated at Tenn.
Code Ann. § 36-6-106(a). Moreover, Father’s contention fails to acknowledge the
preference of the legislature and the courts toward “continuity and stability” in residential
placement and schedules. Id. at *17; see also Pippin v. Pippin, 277 S.W.3d 398, 404 (Tenn.
Ct. App. 2008) (noting that “[e]xisting custody arrangements are favored since children
thrive in stable environments”).

        Our review of the record leads us to conclude that the trial court appropriately
reviewed the factors at Tenn. Code Ann. § 36-6-106 and considered them in light of the
importance of the child’s stability with regard to the parenting arrangement. As the trial
court pointed out, Mother has been the primary caregiver for Preston for the majority of his
life, and the evidence shows that Preston has thrived under her care. The evidence does not
preponderate against the trial court’s determination that Mother should remain Preston’s
primary residential parent; thus, we affirm the trial court’s ruling in all respects.4

                                             C ONCLUSION

        The decision of the trial court is affirmed. Costs of appeal are assessed against Father


        4
          Father requests this Court to award him attorney fees and costs pursuant to Tenn. Code Ann. § 36-
5-103(c). This statutory provision vests this Court with discretionary authority to award fees and costs in
proper cases. See Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App. 2004). Father is not the
prevailing party on appeal, and we decline to award him attorney’s fees.

                                                   -6-
and execution may issue if necessary.




                                              ______________________________
                                                   ANDY D. BENNETT, JUDGE




                                        -7-
