                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 March 8, 2016 Session


   ANGELA MICHELLE NEWBERRY v. JEREMY MACK NEWBERRY

                 Appeal from the Circuit Court for Hamilton County
                     No. 07D262     W. Neil Thomas, III, Judge

                         ________________________________

                             No. E2015-01801-COA-R3-CV
                                 FILED-MAY 2, 2016
                         _________________________________


Father filed a petition to modify the parties’ permanent parenting plan to make him the
primary residential parent. The trial court granted Father’s petition, finding that there had
been a material change of circumstances and that a change of primary residential parent
was in the best interest of the two younger children. Because the trial court applied an
erroneous legal standard in making its determination of a material change of
circumstances, we vacate and remand.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and CHARLES D. SUSANO, JR., J., joined.

Lucy C. Wright, Chattanooga, Tennessee, for the appellant, Angela Michelle Newberry.

Selma Cash Paty, Chattanooga, Tennessee, for the appellee, Jeremy Mack Newberry.

                                        OPINION

                       FACTUAL AND PROCEDURAL BACKGROUND

       Angela Newberry (“Mother”) and Jeremy Newberry (“Father”) were declared
divorced on April 8, 2010, with all other issues being reserved. In a final judgment
entered on October 12, 2010, the trial court addressed the remaining issues, including
parenting provisions for the parties’ three minor children.1 Mother was named the
primary residential parent, and Father was given parenting time every other week from
Friday after school until Tuesday morning before school, and every other Monday after
school until Tuesday morning before school. Father also had the children for four days
during the summer. Holidays were to “be determined by agreement of the parties.” The
trial court ordered Father to pay child support in the amount of $1406 per month. On
November 16, 2010, the trial court modified the child support amount to $2197 per
month to take into account all of Mother’s child care expenses.

        On February 23, 2011, the trial court entered an agreed order representing the
parties’ settlement of issues raised in several outstanding motions. On the issue of child
support, the parties agreed to a modification to take into account the birth of Father’s
fourth child and other changes. The court ordered Father to pay Mother $1000 per month
in child support beginning the first day of the month following the entry of the order.

       On July 28, 2011, the trial court approved and entered a modified permanent
parenting plan agreed to by the parties in mediation. Under the plan, Mother remained
the primary residential parent with Father having parenting time every other week from
Friday after school until Tuesday morning before school.2 Specific provisions were
included regarding holidays. Child support remained at $1000 per month. Father was to
have the children every other week during the summer. Decision making was to be joint.

       Father filed the instant complaint to modify primary residential custody on April
3, 2014. As grounds for his request, Father alleged:

       [Mother] no longer has the ability to run the household and care for the
       children. [Mother] does not appear to be stable and is making poor
       parenting decisions. [Husband] fears for the safety and well-being of the
       two youngest children, who are ages 8 and 10. Mother does not assist the
       children with their homework and does not encourage the children to do
       assignments. This is negatively impacting their education. [Mother] allows
       their daughter, Makaila Raven Newberry, date of birth March 19, 1998, to
       date an older boy who is permitted in her bedroom.

       Mother answered, denying Father’s allegations and counterclaiming for a change
in the previous parenting plan. She alleged that Father had two children with his current
wife prior to their marriage and that, after the birth of this couple’s first child, Father had

       1
           There was no actual parenting plan form; the parenting provisions were part of the judgment.
       2
          Although the plan did not provide for alternate Monday parenting time, the parties continued
this schedule as provided under the October 2010 plan.
                                                   -2-
another girlfriend. Mother further alleged that Father signed one of their children up for
baseball in Ooltewah without consulting Mother (who lived in Dayton), and that the
travel required by this decision caused disruption in the children’s schedules. According
to Mother’s petition, she had moved to Dayton after the divorce to be closer to Father but,
after about a year and a half, Father moved farther away, which had “caused issues with
school nights.” Mother therefore requested that the court modify the parenting plan to
eliminate Father’s Monday overnight parenting time and recalculate child support based
upon the parties’ current income and the new schedule.

        Father subsequently amended his complaint, by agreement of the parties, to add
the following allegations:

              [Father] alleges that [Mother] is guilty of parental alienation . . . .
       [Father] asserts [Mother] has told the parties’ daughter, Makaila, about the
       parties going to court over custody and [Mother] allowed her to read the
       court documents in her possession. . . . Since she had read the documents,
       Makaila Newberry, has been very upset with [Father] and she knows
       contents of the court documents she would not otherwise know about.

              Furthermore, [Mother] has permitted and encouraged Makaila to lie
       about her boyfriend being in her room and the incident in February when
       they had no power at the house. [Mother’s] actions have made Makaila
       angry with [Father] to the point Makaila no longer wants to spend time with
       her father.

              Finally, the father/daughter relationship has been further damaged
       such that he has always taken Makaila to her soccer games for four years
       now, and now she doesn’t want him to take her.

Father requested injunctive relief to restrain Mother from making derogatory comments
about him to or in front of the children, discussing the litigation with them, or disclosing
the contents of the litigation documents to them. Father also requested that Mother be
required to cooperate in teaching the children to respect him. Mother answered denying
all of Father’s allegations and denying that she was guilty of parental alienation.

       On May 15, 2015, the trial court granted Father’s motion to amend his petition to
modify to add a proposed parenting plan. In addition to making Father the primary
residential parent, the plan made Father the primary decision maker for educational and
non-emergency health care decisions.

      The matter was heard on January 15, 2015 and May 15, 2015. In its memorandum
and opinion entered on July 14, 2105, the trial court noted that Father was asking for “a
                                          -3-
reversal of position with respect to the original Parenting Plan entered in this case.”
Thus, Father would be designated the primary residential parent and Mother would have
parenting time every other weekend from Friday until Tuesday and two days a week on
alternate weeks. Mother withdrew her request for a change in the current plan.

       The trial court stated that three main issues “evolved” during the hearing: “(1)
Mason’s [health]; (2) sports activities of the children; and (3) the school for the children.”
As to the first issue, Mason’s health issues, the trial court determined, based upon the
evidence from Mason’s doctor, that this problem had resolved itself. With respect to
education, there remained no issue regarding Makaila, the oldest child. Father “agreed
that she may finish her senior year at Rhea County High School and may stay in Dayton
to accomplish that result.” The issue raised by Father regarding Makaila’s boyfriend was
no longer a real issue because she had not seen him in over four months. As to the
education of the two younger children, the trial court determined that there had been a
material change of circumstances. On the issue of athletic activities, the trial court
expressed concern regarding “mother’s support of and conduct at these activities, and it
would appear to the Court that she is not only non-supportive but actively alienates
herself from father.” The trial court found that there had been a material change of
circumstances with respect to the interest in and attendance of the parents, particularly
Mother, at athletic activities.

       The court went on to conclude that it was in the best interests of the children to
grant Father’s petition for modification and adopt his proposed parenting plan. A further
hearing was to be held on the issue of child support.

      In an order entered on August 20, 2015, the trial court denied both Mother’s
motion to alter or amend and amended motion to alter or amend. This appeal followed.

                                     ISSUES ON APPEAL

       Mother argues that: (1) the trial court erred in failing to apply the proper legal
standard in determining whether a material change of circumstances had occurred to
warrant a modification of the primary residential parent; (2) the evidence preponderates
against the trial court’s findings of fact and conclusions of law; and (3) the trial court
erred in failing to properly review the transcripts of the relevant hearings and the record
before issuing its memorandum opinion and ruling on subsequent motions.

                                         ANALYSIS

       Our review is de novo upon the record, accompanied by a presumption of
correctness of the trial court’s findings of fact, unless the preponderance of the evidence
is otherwise. TENN. R. APP. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692
                                             -4-
(Tenn. 2013); Rigsby v. Edmonds, 395 S.W.3d 728, 734 (Tenn. Ct. App. 2012). We
review a trial court’s conclusions of law de novo, according them no presumption of
correctness. Armbrister, 414 S.W.3d at 692; Rigsby, 395 S.W.3d at 734.

       A trial court’s determinations of whether a material change of circumstances has
occurred and where the best interests of children lie are factual issues. Armbrister, 414
S.W.3d at 692-93; In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). Appellate
courts must, therefore, presume a trial court’s factual findings on these matters are correct
and not overturn them unless the evidence preponderates to the contrary. Armbrister, 414
S.W.3d at 693. We have noted that trial courts have broad discretion in determining
which parent should be the primary residential parent, and appellate courts are reluctant
to second-guess a trial court’s decision on this issue. See Scofield v. Scofield, M2006-
00350-COA-R3-CV, 2007 WL 624351, at *2 (Tenn. Ct. App. Feb. 28, 2007). According
to the Armbrister Court, a trial court abuses its discretion when it:

       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.

Armbrister, 414 S.W.3d at 693 (quoting Gonsewski v. Gonsewski, 350 S.W.3d 99, 105
(Tenn. 2011)).

      Modification of a court’s prior order determining which parent should be
designated the primary residential parent is governed by statute:

       If the issue before the court is a modification of the court’s prior decree
       pertaining to custody, the petitioner must prove by a preponderance of the
       evidence a material change in circumstance. A material change of
       circumstance does not require a showing of a substantial risk of harm to the
       child. A material change of circumstance may include, but is not limited to,
       failures to adhere to the parenting plan or an order of custody and
       visitation or circumstances that make the parenting plan no longer in the
       best interest of the child.

Tenn. Code Ann. § 36-6-101(a)(2)(B) (emphasis added). A petition to change the
primary residential parent of a child requires the court to conduct a two-step analysis:
“The threshold question is whether a material change in circumstances has occurred since
the entry of the prior [custody] order.” Boyer v. Heimermann, 238 S.W.3d 249, 259
(Tenn. Ct. App. 2007). Only if the court finds a material change in circumstances has
occurred does it proceed to consider whether changing the primary residential parent is in
the children’s best interest. Id.

                                            -5-
       Although “there are no bright-line rules” for determining when a material change
has occurred, there are a few important factors to consider: “(1) whether a change has
occurred after the entry of the order sought to be modified; (2) whether a change was not
known or reasonably anticipated when the order was entered;3 and (3) whether a change
is one that affects the child’s well-being in a meaningful way.” Cranston v. Combs, 106
S.W.3d 641, 644 (Tenn. 2003); see also Keisling v. Keisling, 196 S.W.3d 703, 718 (Tenn.
Ct. App. 2005) (same); see generally Armbrister, 414 S.W.3d at 701-04 (discussing
difference required to prove material change in circumstances for purposes of changing
primary residential parent versus modification of parenting schedule); Boyer, 238 S.W.3d
at 255-257 (discussing evolution of standard for finding material change in
circumstances).

       The trial court’s memorandum and order relies on Armbrister, 414 S.W.3d at 685,
a case involving the modification of a parenting schedule, not a modification of the
primary residential parent. The trial court also stated that, “under the present law that
change [of material circumstances] may have actually been anticipated.” This statement
of the law is applicable to modifications of a parenting schedule, not to modifications of
the primary residential parent. See Armbrister, 414 S.W.3d at 704. The trial court further
asserted that a change of circumstances could arise from changes such as “a change in
employment or a change in marital status.” Tennessee Code Annotated section 36-6-
101(a)(2)(C),4 the subsection governing modifications of the residential parenting
schedule, specifically lists “significant changes in the parent’s living or working
condition that significantly affect parenting.”5 From the language used by the trial court,

        3
          In light of the Court’s holding in Armbrister, 414 S.W.3d at 704, this consideration is no longer
relevant in cases governed by Tenn. Code Ann. § 36-6-101(a)(2)(C), which concerns modification of a
residential parenting schedule.
        4
            Tennessee Code Annotated section 36-6-101(a)(2)(C) provides:

        If the issue before the court is a modification of the court’s prior decree pertaining to a
        residential parenting schedule, then the petitioner must prove by a preponderance of the
        evidence a material change of circumstance affecting the child’s best interest. A material
        change of circumstance does not require a showing of a substantial risk of harm to the
        child. 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.
        5
          Such changes could constitute a material change of circumstances under Tenn. Code Ann. § 36-
6-101(a)(2)(B) if they were determined by the trial court to qualify as “circumstances that make the
parenting plan no longer in the best interest of the child.”

                                                   -6-
we must conclude that the court applied the standard set out in Tenn. Code Ann. § 36-6-
101(a)(2)(C), which applies to modification of the residential parenting schedule, not
modification of the primary residential parent, which is governed by Tenn. Code Ann. §
36-6-101(a)(2)(B). Thus, we agree with Mother’s argument that the trial court applied
the wrong legal standard to the facts of this case.

       In light of this conclusion, we must vacate the trial court’s decision and remand
the case to allow the trial court to decide the issues under the proper legal standard,
namely that set out in Tenn. Code Ann. § 36-6-101(a)(2)(B). The remaining issues are
pretermitted.6

                                           CONCLUSION

       The judgment of the trial court is vacated, and the case is remanded to the trial
court for further proceedings consistent with this opinion. Costs of appeal are assessed
against the appellee, Jeremy Mack Newberry, and execution may issue if necessary.


                                                                 _________________________
                                                                 ANDY D. BENNETT, JUDGE




       6
          This Court has considered the additional authority submitted by the appellee and denies the
appellant’s motion to strike.
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