                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  March 6, 2013 Session

               SANDY JANE SMART v. BRIAN WAYNE SMART

                  Appeal from the Circuit Court for Franklin County
                      No. 16148CV       Buddy D. Perry, Judge


                  No. M2012-00818-COA-R3-CV- Filed July 31, 2013


Mother and Father were divorced in 2007 and granted joint custody of their then-six year old
child. Mother filed a petition for modification in which she asked to be named the primary
residential parent because the joint arrangement was not working for the parties and was not
in Child’s best interest. Trial court granted Mother’s petition to be named primary residential
parent, but directed that major decisions for Child should be made jointly. Father appealed,
arguing that trial court erred in finding material change of circumstances had occurred since
the initial parenting plan was entered and that the comparative fitness analysis favored
Mother as the primary residential parent. Mother appealed trial court’s judgment regarding
major decision making. We affirm trial court’s judgment modifying the parenting plan to
name Mother the primary residential parent and amend the plan to have Mother make major
decisions for Child rather than both Mother and Father jointly. We affirm the trial court’s
denial of Mother’s attorney fees but award her reasonable fees incurred on appeal.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                            Part and Amended in Part

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

Floyd Don Davis, Norris Arthur Kessler, III, Winchester, Tennessee, for the appellant, Brian
Wayne Smart.

Cynthia A. Cheatham, Manchester, Tennessee; for the appellee, Sandy Jane Smart.

                                         OPINION

      Sandy Jane Smart (“Mother”) and Brian Wayne Smart (“Father”) were married in
1993 and had one child (“Child”) who was born in December 2000. Mother and Father were
divorced in 2007, and the parenting plan (the “Initial Parenting Plan”) provided for a joint
custodial arrangement whereby each party was awarded equal time with Child. In 2011,
when Child was ten years old, Mother filed a Petition to Modify Current Visitation and
Custody because she did not believe the joint custody arrangement was working well for
Child or the parties.

        The trial court held an evidentiary hearing in February 2012. The individuals who
testified included Mother, Father, and Mother’s sister. The court also permitted Child, who
was then eleven years old, to testify in a private setting. The evidence showed that for the
first three years after the parties were divorced, Mother and Father discussed getting back
together, and during this time they did not adhere strictly to the Initial Parenting Plan. Child
spent more time with Mother than with Father during this time. Mother testified that Child
stayed with her most of the weeks when school was in session and that Child went to Father’s
house every other weekend. When Child went to Father’s during the school week Father
usually brought Child back to Mother’s the following morning before school. Mother took
Child to her doctor’s appointments, to many of her extracurricular activities, and was
generally more involved with Child’s day to day activities.

       When Mother told Father that their attempted reconciliation was not going to work
out, Father began to insist that they follow the Initial Parenting Plan more closely. Father’s
parents live close to Father’s house, and when Father was working during his week with
Child, Father had his parents pick Child up after school and keep her at their house. If Child
needed help with her homework while Father was working and her grandparents were unable
to help her, Child had to wake up early the next morning and ask Father for help before
school. Mother asked Father to let Child stay with her when Father was working and could
not spend time with Child, but Father refused and insisted that Child spend time with his
family during his weeks, regardless of whether he personally had time to spend with Child.

        Mother showed her willingness to exchange days with Father when Father wanted
Child to attend a special event with him or his family, but Father was unwilling to
reciprocate. Father’s unwillingness to cooperate with Mother was evidenced when Mother’s
sister wanted Child to be in her wedding and the wedding happened to be when Father was
supposed to have Child with him. Both Mother and Mother’s sister asked Father to let Child
attend the wedding, but Father refused. While Father was testifying about this at the hearing,
the trial court interjected as follows:

       The Court:     Why would you not let your daughter attend the wedding? Tell
                      me about that. I am interested in it.

       Father:        My mother had my child at my nephew’s birthday party. They

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                     wanted me to call her up and tell her to get [Child] back up here,
                     you know, that they wanted to get ready for the wedding stuff
                     and I wouldn’t do it. She was at my nephew’s birthday party.
                     I didn’t want to bother her. She knew nothing about the
                     wedding until that day.

       The Court:    The wedding was the next day?

       Father:       Yeah. They had some pretty tough words to say to me in the
                     hayfield, and I really didn’t want to get along with them.

       The Court:    I think you are giving me a good answer there. You don’t want
                     to get along with them. They don’t want to get along with you,
                     and your little girl gets hurt in the middle of that.

       Father:       Yes, sir.

        Evidence was introduced that Father has sworn at Mother and called her names in
Child’s presence, that Child has asked Mother not to phone her when she is with Father
because Father gets upset with Child, and that Father has threatened Mother’s father in a
public place when Child has been present. Father admitted to spanking Child when she
refused to eat a tomato sandwich Father had prepared for her when Father knew Child did
not like tomatoes. Mother testified that Child suffered bruises from the spanking that lasted
at least a couple of days. There was also evidence that Child’s school grades began to suffer
when Father began to insist that Child spend every other school week with him. When
Father was unhappy with Child’s school grades, he refused to allow Child to participate in
a weekend extracurricular activity he knew meant a great deal to her.

        Mother testified that Child told her Father said negative things about Mother to Child
when she was with him and that Father did not allow Mother to speak with Child much on
the telephone when Child was with Father. When Child was with Father for the week,
Mother would go to Child’s school to eat lunch with her on occasion. Mother testified Father
got upset when he found out Mother saw Child at school and told Mother that when it was
his week with Child Mother should not try to see Child because it was his time. Mother
testified that Child wanted to see Mother, but asked Mother not to come to school anymore
when she was staying with Father because she would get in trouble if Father found out.
Mother, on the other hand, testified that she encouraged Father to try to see Child at school
when it was Mother’s week with Child.

       In its Order following the hearing, the trial court first reviewed the evidence

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presented. The trial court then found the following facts by a preponderance of the evidence:

       1.     The parties, by their actions, implicitly changed the current, court
              ordered parenting plan for a period of approximately three (3) years in
              a manner that worked better for [Child] and allowed [Mother] most of
              the parenting time during school nights.

       2.     Subsequently, the parties’ attempted reconciliation failed and this
              situation directly impacted their ability to interact in a way that
              facilitates emotional stability for [Child] under the current parenting
              arrangement. Following the failed reconciliation, [Father] demanded
              strict enforcement of joint parenting, as ordered by the court, resulting
              in a rather drastic change in [Child’s] life. The results have not been
              positive.

       3.     There is frequent disagreement, lack of cooperation and an abject
              failure to communicate by the parents such that a joint parenting
              arrangement is not in [Child’s] best interests.

       4.     The joint custody arrangement is not working in [Child’s] best interests
              as she is frequently subjected to dissension and disagreement.

       The trial court thus determined that a material change of circumstances had occurred
since the Initial Parenting Plan was entered and that the change materially and adversely
affected Child. Then, after considering the factors set forth in Tenn. Code Ann. § 36-6-
106(a), the trial court conducted a comparative fitness analysis and concluded that Mother
should be designated the primary residential parent. The Permanent Parenting Plan the trial
court entered provided Mother with 240 days with Child, Father with 125 days with Child,
and indicated that major decisions were to be made jointly.

       Father appealed the trial court’s Order and argues the trial court erred in finding that
a material change of circumstances had occurred since the parties’ divorce that warranted a
modification of the initial parenting plan. Father also argues that the trial court erred in
weighing the facts in its comparative fitness analysis and determining that Mother should be
named the primary residential parent. Mother argues the trial court erred in directing in the
Permanent Parenting Plan that major decisions for Child should be made jointly and in failing
to award Mother her attorney’s fees.

                          I. M ODIFICATION OF P ARENTING P LAN



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       A. Material Change of Circumstances and Child’s Best Interest

        Our review on appeal 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); Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006); Bogan v. Bogan, 60 S.W.3d
721, 727 (Tenn. 2001); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). We review
a trial court’s conclusions of law de novo, with no presumption of correctness. Whaley v.
Perkins, 197 S.W.3d 665, 670 (Tenn. 2006); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993).

       When a petition to change a parenting plan is filed, the parent seeking the change has
the burden of showing that a material change in circumstances has occurred which makes a
change of custody in the child’s best interest. Blair v. Badenhope, 77 S.W.3d 137, 148
(Tenn. 2002); In re M.J.H., 196 S.W.3d 731, 744 (Tenn. Ct. App. 2005); In re Bridges, 63
S.W.3d 346, 348 (Tenn. Ct. App. 2001). The needs of the child(ren) are the most important
to consider; the parties’ desires are secondary. Boyer v. Heimermann, 238 S.W.3d 249, 255
(Tenn. Ct. App. 2007).

       A decision on a request for modification of a parenting arrangement requires a
two-step analysis. Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003). A party
petitioning to change an existing plan must prove both (1) that a material change of
circumstances has occurred and (2) that a change of residential schedule is in the child’s best
interest. Kendrick v. Shoemake, 90 S.W.3d 566, 575 (Tenn. 2002). Only after a threshold
finding that a material change of circumstances has occurred is the court permitted to go on
to make a fresh determination of the best interest of the child. Kendrick, 90 S.W.3d at 569;
Blair, 77 S.W.3d at 150; Curtis v. Hill, 215 S.W.3d 836, 840 (Tenn. Ct. App. 2006).

      As to the first requirement, i.e., a material change of circumstances, the Tennessee
Supreme Court has stated:

       Although there are no bright line rules as to whether a material change in
       circumstances has occurred after the initial custody determination, there are
       several relevant considerations: (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; and (3) whether a
       change is one that affects the child’s well-being in a meaningful way.

Cranston, 106 S.W.3d at 644 (citing Kendrick, 90 S.W.3d at 570).

       The General Assembly has also addressed the question of what constitutes a material

                                              -5-
change of circumstances for purposes of changing a residential parenting schedule:

       (B) 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).

       After finding that a material change in circumstances has occurred, the trial court must
next determine whether modification of custody is in the child’s best interest. The factors
a court is to consider in making this determination include:

       (1) The love, affection and emotional ties existing between the parents or
       caregivers and the child;

       (2) The disposition of the parents or caregivers to provide the child with food,
       clothing, medical care, education and other necessary care and the degree to
       which a parent or caregiver has been the primary caregiver;

       (3) The importance of continuity in the child’s life and the length of time the
       child has lived in a stable, satisfactory environment; provided, that, where
       there is a finding, under subdivision (a)(8), of child abuse, as defined in
       §39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602,
       by one (1) parent, and that a nonperpetrating parent or caregiver has relocated
       in order to flee the perpetrating parent, that the relocation shall not weigh
       against an award of custody;

       (4) The stability of the family unit of the parents or caregivers;

       (5) The mental and physical health of the parents or caregivers;

       (6) The home, school and community record of the child;

       (7)(A) The reasonable preference of the child, if twelve (12) years of age or
       older;

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       (B) The court may hear the preference of a younger child on request. The
       preferences of older children should normally be given greater weight than
       those of younger children;




       (8) Evidence of physical or emotional abuse to the child, to the other parent or
       to any other person; provided, that, where there are allegations that one (1)
       parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402,
       or child sexual abuse, as defined in § 37-1-602, against a family member, the
       court shall consider all evidence relevant to the physical and emotional safety
       of the child, and determine, by a clear preponderance of the evidence, whether
       such abuse has occurred. The court shall include in its decision a written
       finding of all evidence, and all findings of facts connected to the evidence. In
       addition, the court shall, where appropriate, refer any issues of abuse to the
       juvenile court for further proceedings;

       (9) The character and behavior of any other person who resides in or frequents
       the home of a parent or caregiver and the person’s interactions with the child;
       and

       (10) Each parent’s or caregiver’s past and potential for future performance of
       parenting responsibilities, including the willingness and ability of each of the
       parents and caregivers to facilitate and encourage a close and continuing
       parent-child relationship between the child and both of the child’s parents,
       consistent with the best interest of the child. In determining the willingness of
       each of the parents and caregivers to facilitate and encourage a close and
       continuing parent-child relationship between the child and both of the child’s
       parents, the court shall consider the likelihood of each parent and caregiver to
       honor and facilitate court ordered parenting arrangements and rights, and the
       court shall further consider any history of either parent or any caregiver
       denying parenting time to either parent in violation of a court order.

Tenn. Code Ann. § 36-6-106(a).

       Evidence that a parenting plan providing for joint custody or joint primary residential
placement is not working for the parties is sufficient to support a finding of material change
of circumstances. Vaccarella v. Vaccarella, 49 S.W.3d 307, 315-16 (Tenn. Ct. App. 2001);
Turner v. Purvis, 2003 WL 1826223, at *4 (Tenn. Ct. App. Apr. 9, 2003); see Dalton v.

                                              -7-
Dalton, 858 S.W.2d 324, 326 (Tenn. Ct. App. 1993) (when joint custody fails to work due
to recalcitrance of one or both parents, there is a material change of circumstances
unanticipated when earlier parenting plan was put into place); Dodd v. Dodd, 737 S.W.2d
286, 290 (Tenn. Ct. App. 1987) (“the most important ‘changed’ circumstance is the fact –
the proven fact – that the joint-custody plan fashioned by the court and the parties has worked
to the detriment of the children”).




       The trial court found that Father’s strict enforcement of the Initial Parenting Plan
resulted in frequent disagreement and lack of cooperation between Mother and Father, which
is not in Child’s best interest. The trial court’s conclusion that a material change of
circumstances has occurred since the entry of the Initial Parenting Plan was based on its
finding that the parties are unable to work together in a joint custody and joint primary
residential arrangement. The evidence does not preponderate against the trial court’s
determination of this issue. Our review of the evidence reveals that the change of
circumstance occurred after the entry of the order sought to be modified; the change was not
known or reasonably anticipated when the order was entered; and the change is one that
affects Child’s well-being in a meaningful way. We therefore agree with the trial court’s
determination that Mother has satisfied her burden of establishing that a material change of
circumstances has occurred.

       We now turn to the second issue of whether a change the residential schedule is in
Child’s best interest and review the trial court’s comparative fitness analysis. The trial court
reviewed the factors set out in Tenn. Code Ann. § 36-6-106(a) and concluded Mother should
be named the primary residential parent. The trial court found that both Mother and Father
have demonstrated love for Child and that both parents are able to provide Child with food,
clothing, medical care, education, and other necessities of life. When considering the
importance of continuity in Child’s life, the court determined that Mother was better
equipped to provide Child with the continuity she needs.

       In considering the mental and physical health of the parties the court wrote: “The facts
support the conclusion that [Father] has had some difficulty controlling his anger. The anger
issues have adversely affected [Child]. This factor weighs slightly in favor of [Mother].”
Turning to the home, school, and community record of Child, the court found that Child’s
school grades have been adversely affected by the strict enforcement of the joint parenting
schedule. The trial court considered Child’s preference for which school she would attend,
the one located in Mother’s county of residence or the one located in Father’s county of
residence, and ultimately concluded Child should attend the school in Franklin County,
where Mother resides.

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         The evidence presented at the hearing supports the trial court’s comparative fitness
analysis and decision to modify the parenting plan and name Mother the primary residential
parent. Mother appears more willing to encourage Child to communicate with Father while
Child is with Mother and to keep Father informed of Child’s activities in an effort to keep
Father involved with Child as much as possible. We affirm the trial court’s judgment that
it is in Child’s best interest that the parenting plan be modified and that Mother be named the
primary residential parent.




        B. D ECISION M AKING

       In the Permanent Parenting Plan the trial court directed Mother and Father to make
decisions jointly insofar as they concern Child’s education, non-emergency health care, and
religious upbringing. Mother contends the trial court erred in this regard because the parties
have had so much difficulty communicating and reaching any sort of consensus with regard
to Child during the time they were sharing custody equally. We agree with Mother and
amend the Permanent Parenting Plan to change the decision making authority from “joint”
to “Mother” for Child’s educational decisions, non-emergency health care, and religious
upbringing. Mother shall remain the decision maker for Child’s extracurricular activities.
See Dalton, 858 S.W.2d at 326 (joint decision-making is not possible between parents who
are unable to communicate effectively concerning their children).

                                        II. A TTORNEY’S F EES

       In her petition to modify Mother asked the trial court to award her reasonable attorney
fees, but the trial court declined to award Mother her fees.1 Tennessee Code Annotated § 36-
5-103(c) permits one parent to recover from the other parent reasonable attorney’s fees
incurred in an action seeking a change of custody:

        The plaintiff spouse may recover from the defendant spouse, and the spouse
        or other person to whom the custody of the child, or children, is awarded may
        recover from the other spouse reasonable attorney fees incurred in enforcing
        any decree for alimony and/or child support, or in regard to any suit or action
        concerning the adjudication of the custody or the change of custody of any
        child, or children, of the parties, both upon the original divorce hearing and at
        any subsequent hearing, which fees may be fixed and allowed by the court,


        1
         The trial court did not mention anything about Mother’s attorney’s fees either at the hearing or in
its Order. The trial court thus impliedly rejected Mother’s request for these fees.

                                                    -9-
       before whom such action or proceeding is pending, in the discretion of such
       court.

        As the statute makes clear, the award of fees is not mandatory; it is up to the discretion
of the court. Mother did not explain how the trial court abused its discretion in failing to
award her these fees. Although we believe the trial court would not have erred in exercising
its discretion to award Mother her fees at trial, we conclude the trial court did not abuse its
discretion in failing to award Mother her fees.




       Mother also seeks an award of the attorney’s fees she has incurred on appeal. The
decision to award fees incurred on appeal is a matter within this Court’s discretion. Moran
v. Willensky, 339 S.W.3d 651, 666 (Tenn. Ct. App. 2010). Mother is the prevailing party
with regard to all issues raised on appeal, and we exercise our discretion to award Mother the
reasonable attorney’s fees she incurred on appeal. See Moran, 339 S.W.3d at 666 (in
considering request for attorney’s fees on appeal, Court of Appeals considers party’s ability
to pay fees, requesting party’s success on appeal, good faith of the appeal, and any other
relevant equitable factors). We remand this issue to the trial court to determine Mother’s
reasonable attorney’s fees incurred in this appeal and for further proceedings consistent with
this opinion.

                                       III. C ONCLUSION

        The trial court’s judgment is affirmed in part and amended in part. The Permanent
Parenting Plan naming Mother as the primary residential parent is affirmed in all respects
except that Mother shall have sole decision making authority for Child including those
regarding Child’s education, non-emergency health care, religious upbringing, and
extracurricular activities. The trial court’s decision not to award Mother her attorney’s fees
incurred at trial is affirmed. Mother is awarded her reasonable fees incurred on appeal. This
case is remanded to the trial court to determine the amount of Mother’s reasonable attorney’s
fees incurred on appeal and for any further necessary proceedings.

      The costs of this appeal shall be assessed against the appellant, Brian Wayne Smart,
for which execution shall issue if necessary.




                                                            ____________________________
                                                            PATRICIA J. COTTRELL, JUDGE

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