               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                August 12, 2015 Session


         JOSHUA TIMOTHY CANADA v. TONYA MARIE CANADA

                  Appeal from the Chancery Court for Dyer County
                    No. 12CV194     Tony Childress, Chancellor

                         ________________________________

              No. W2014-02005-COA-R3-CV – Filed September 4, 2015
                      _________________________________

This post-divorce appeal arises from the trial court‟s denial of Father‟s petition to modify
custody. Following a one-day trial, the court found that Father failed to demonstrate a
sufficient material change in circumstances and denied his petition. We affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and KENNY ARMSTRONG, J., joined.

Thomas E. Weakley, Dyersburg, Tennessee, for the appellant, Joshua Timothy Canada.

Jason R. Creasy, Dyersburg, Tennessee, for the appellee, Tonya Marie Canada.


                                        OPINION

                      BACKGROUND AND PROCEDURAL HISTORY

        Prior to their divorce in October 2012, Petitioner/Appellant Joshua Timothy Canada
(“Father”) and Respondent/Appellee Tonya Marie Canada (“Mother”) had two children
together, a daughter, born in 2000, and a son, born in 2004. At the time of the divorce, the
parties were living in Dyer County, and both children attended public schools there. Along
with the parties‟ divorce decree, the trial court entered an agreed permanent parenting plan
that granted equal parenting time to each parent on an alternating week-to-week basis but
designated Mother the primary residential parent of both children.
       The parties adhered to the parenting arrangement set forth in the original permanent
parenting plan until approximately April 2014. Around that time, the relationship between
Mother and Daughter became strained, and the parties agreed to let Daughter stay exclusively
with Father for an extended period of time. In June 2014, while Daughter was staying
exclusively with Father, Father filed a petition for modification of custody in which he
alleged that a material change of circumstances had occurred such that it was in the best
interest of both children that Father be designated their primary residential parent. Along
with the petition, Father submitted a proposed permanent parenting plan that designated him
the children‟s primary residential parent and granted Mother parenting time on alternating
weekends and on specified holidays and school vacations. Mother filed a response to
Father‟s petition for modification of custody, asserting that no material change of
circumstances had taken place and requesting that the trial court dismiss Father‟s petition.
On August 27, 2014, the trial court held an evidentiary hearing at which Father, Mother, and
Daughter each testified.

        During the hearing, Father testified that he had remarried and moved in with his
current wife and her three children in Milan Tennessee, approximately forty-five miles from
Mother‟s home. Father testified that two of his current wife‟s children are in high school and
live with them full-time; the other is in college and lives in a dorm during the school year.
Father testified that he was working full-time for Ceco Door in Milan. Mother testified that
she has continued living in the parties‟ former marital residence in Dyer County. Mother
testified that she was working part-time as a tutor at Dyersburg State Community College and
pursuing a master‟s degree in social work, which she planned to complete by May 2015.
Both Mother and Father testified that following their divorce, they had exchanged the
children on an alternating weekly basis but had also worked to accommodate each other‟s
schedules as necessary.

        Father testified that the children were never left alone while they were in his care and
expressed concern that the children were left alone at times in Mother‟s care. Father testified
that, on days when they rode the bus to Mother‟s house from school, there was a period of
time when they were at home alone. Daughter testified that on one occasion when she was at
Mother‟s house alone, she saw a car parked in front of the house, and she became very scared
and hid in her closet crying until Mother arrived home. Father indicated that he was
concerned about the impact that and other experiences might have on the children. Father
stated that he discussed his concerns with Mother and did “[n]ot entirely” agree with her
opinion that the children were old enough to stay at home alone. Father also testified that he
knew of several occasions in which the children had been locked out of Mother‟s house after
riding the bus home from school. Daughter acknowledged in her testimony, however, that
she had forgotten her key on those occasions and indicated that Son could still get into the
house through a side door.
                                                2
        The parties testified that Daughter generally performed well in school, though Son
struggled at times. They acknowledged that for a while, Son had been successful in
misleading them about whether he had completed his homework each night. However, they
testified that once Son‟s struggles in school became apparent, Father spoke to him about the
importance of taking his schoolwork more seriously. Father testified that since that time, he
has gone through Son‟s backpack after school to find his homework and make sure he gets it
done. Father testified that although Mother also recognizes the importance of the children‟s
education, he had concerns about Son‟s homework getting done while he was in her care. To
support his concern, Father testified that in the week prior to trial, while Son was staying
with his Mother, he received a grade of 45 on a homework assignment.

        The parties testified regarding an instance in which Son walked home by himself after
Mother dropped him off alone at a public swimming pool near her house. According to
Mother‟s testimony, she dropped Son off to meet a friend and his father at the pool and told
him she would be back around 5:00 p.m. Mother testified that she thought Son knew her cell
phone number and could call her if he needed her before that time. Apparently, Son either
did not know or had forgotten Mother‟s cell phone number. At some point prior to the time
Mother was supposed to return, Son decided he wanted to leave the pool and called Mother‟s
house. When Mother did not answer, he left the pool and walked to Mother‟s house alone.
Father testified that after Daughter, who was staying with him at the time, received a phone
call from a friend telling her that Son left the pool, he started calling Mother‟s cellular and
home phones repeatedly. Father testified that Son eventually answered Mother‟s home phone
and was crying because he was scared. Father expressed concerns about Son‟s safety
walking through Mother‟s neighborhood alone, though he agreed that the neighborhood was
safe.

        During her testimony, Daughter stated that she would prefer to live with Father.
Daughter testified that she enjoys staying with Father and gets along well with Father‟s wife
and stepchildren. She testified that she has made many friends in Milan during her time with
Father and has even tried out for, and made, the high school volleyball team there. Daughter
testified that when she returned to Mother‟s house in June 2014 following her extended stay
with Father, Mother had made changes to her bedroom that led her to believe Mother planned
to convert the room for some other use. Daughter testified that seeing the changes to her
room made her feel unloved. Daughter also testified that she thinks Mother favors Son over
her because Mother gets mad at her more than she does at Son. Mother denied that she
favors either of the children. Though Mother acknowledged that she and Daughter have a
tendency to “butt heads,” she testified that it was because they are so much alike. Mother
further explained that to the extent that she treats the children differently, it is because she
has higher expectations for Daughter as the older of the two.

                                               3
        Mother and Daughter also both testified concerning the incident that precipitated
Daughter‟s request to spend more time with Father in April 2014. Daughter testified that the
incident started when she was in a rush to go to the bathroom one day after school. When she
got off the school bus and arrived at Mother‟s house, Daughter realized she had forgotten her
key and sent Son to go into the house through the side door. While she waited for Son to let
her in, Daughter started knocking on the door. Mother happened to be home at the time and
tried to open the door. After hearing Mother unlock the door, Daughter tried to push her way
into the house but was unsuccessful because Mother had not unlatched the chain lock.
Daughter testified that Mother started yelling at her to quit pushing on the door so that she
could unlatch the chain and that she did stop pushing, but pleaded with Mother to hurry.
Daughter testified that once they got the door open, Mother was very angry and she grabbed
Daughter and slung her, nearly causing her to fall down as she ran to the bathroom. Mother
acknowledged that she may have grabbed Daughter out of frustration, but testified that she
did so because she did not realize Daughter had to use the bathroom and thought she was just
acting foolish. Shortly after the incident, Daughter asked to stay with Father.

       On September 3, 2014, the trial court entered detailed findings of fact and conclusions
of law. The trial court considered the logistical difficulties Mother‟s work and school
schedules presented. The court noted that, on occasion, Mother had been late picking up the
children from after-school activities. The court also noted that the children stayed alone at
Mother‟s house after school and, on some occasions, had been locked out because Daughter
forgot her key. The court concluded that although such behavior could constitute a material
change of circumstances, none of those instances appeared to impact the children‟s well-
being in any meaningful way. The court expressed concern regarding the incident in which
Son walked home alone from a public swimming pool, but noted that he left the pool on his
own accord prior to the time Mother was supposed to pick him up. Finally, the court noted
the extended period Daughter stayed with Father following her disagreement with Mother.
The court considered each of the foregoing facts collectively, along with Daughter‟s
preference to live with Father and the fact that Father had remarried and moved, but
concluded that Father failed to demonstrate a material change of circumstances had occurred
since entry of the initial custody order. As such, the court stated that it would deny Father‟s
petition to modify the parties‟ permanent parenting plan.

        Despite stating that Father failed to prove a material change of circumstances and that
his petition should be dismissed, the trial court proceeded to analyze whether a modification
of custody would have been in the children‟s best interest if such a change had been
established. The court stated that:

       [Mother] relied heavily on [Father] and his extended family to help her with
       the children, and this help might not be as readily available as it has been now
                                              4
       that [Father] has moved forty-five miles from the place where he once lived.
       The Court would have concluded that it was in the children‟s best interest to
       name [Father] primary residential parent if a . . . material change of
       circumstance had been proven in this case.

Additionally, the court attached an unsigned permanent parenting plan that it would have
entered if a material change of circumstances had taken place. The unsigned plan designated
Father the primary residential parent of both children and granted Mother 141 annual days of
parenting time on alternating weekends and during certain school holidays. On September
11, 2014, the trial court entered an order denying Father‟s petition for modification of
custody and incorporating its earlier written findings of fact and conclusions of law. Father
timely filed a notice of appeal.

                                    ISSUES PRESENTED

       Father raises a single issue on appeal, which we have restated slightly:

       1.      Whether the evidence presented preponderates against the trial court‟s
       finding that no material change of circumstances occurred in light of the trial
       court‟s subsequent statement that, if a material change of circumstances had
       occurred, it would have been in the children‟s best interest to designate Father
       their primary residential parent.

                                  STANDARD OF REVIEW

       In Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013), the Tennessee Supreme
Court set out the standards that apply to appellate review of a trial court‟s resolution of a
petition to modify an existing permanent parenting plan:

              In this non-jury case, our review of the trial court‟s factual findings is
       de novo upon the record, accompanied by a presumption of the correctness of
       the findings, unless the preponderance of the evidence is otherwise. See Tenn.
       R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002);
       Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). We review the trial
       court‟s resolution of questions of law de novo, with no presumption of
       correctness. Kendrick, 90 S.W.3d at 569. Statutory interpretation is a question
       of law, which we review de novo. Mills v. Fulmarque, 360 S.W.3d 362, 366
       (Tenn. 2012).


                                              5
                A trial court‟s determinations of whether a material change in
       circumstances has occurred and whether modification of a parenting plan
       serves a child‟s best interests are factual questions. See In re T.C.D., 261
       S.W.3d 734, 742 (Tenn. Ct. App. 2007). Thus, appellate courts must presume
       that a trial court‟s factual findings on these matters are correct and not overturn
       them, unless the evidence preponderates against the trial court‟s findings. See
       Tenn. R. App. P. 13(d); In re C.K.G., 173 S.W.3d at 732; Kendrick, 90 S.W.3d
       at 570; Hass, 676 S.W.2d at 555.

               Because decisions regarding parenting arrangements are factually
       driven and require careful consideration of numerous factors, Holloway v.
       Bradley, 190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit, 948
       S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have the opportunity
       to observe the witnesses and make credibility determinations, are better
       positioned to evaluate the facts than appellate judges. Massey–Holt v. Holt,
       255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus, determining the details of
       parenting plans is “peculiarly within the broad discretion of the trial judge.”
       Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988) (quoting Edwards v.
       Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)). “It is not the function
       of appellate courts to tweak a [residential parenting schedule] in the hopes of
       achieving a more reasonable result than the trial court.” Eldridge v. Eldridge,
       42 S.W.3d 82, 88 (Tenn. 2001). A trial court‟s decision regarding the details
       of a residential parenting schedule should not be reversed absent an abuse of
       discretion. Id. “An abuse of discretion occurs when the trial court . . .
       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.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn.
       2011). A trial court abuses its discretion in establishing a residential parenting
       schedule “only when the trial court‟s ruling falls outside the spectrum of
       rulings that might reasonably result from an application of the correct legal
       standards to the evidence found in the record.” Eldridge, 42 S.W.3d at 88.

Armbrister, 414 S.W.3d at 692-93.
                                          ANALYSIS

        At the time of a divorce involving at least one minor child, the trial court must make
an initial custody determination “on the basis of the best interests of the child.” See Tenn.
Code Ann. § 36-6-106(a) (2014) (outlining the factors courts should consider when taking
into account a child‟s best interest). Once the court has made an initial determination of
custody, it is generally reluctant to change that determination unless it is clear that such a
                                               6
modification is necessary. See Curtis v. Hill, 215 S.W.3d 836, 840 (Tenn. Ct. App. 2006)
(“Because children are more likely to thrive in a stable environment, the courts favor existing
custody arrangements.”). When a parent files a petition to modify custody, the parent
seeking the modification must demonstrate “that a material change in circumstances has
occurred, which makes a change in custody in the child‟s best interests.” Kendrick v.
Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002). Thus, the decision to modify custody is a two-
part test. As a threshold issue, the trial court must determine whether there has been a
material change in circumstances since the initial (or previous) custody determination. In re
M.J.H., 196 S.W.3d 731, 744 (Tenn. Ct. App. 2005). If the court finds that a material change
in circumstances has occurred, the court must proceed to the second step of the analysis to
determine whether the modification sought is in the child‟s best interest.1 In re M.J.H., 196
S.W.3d at 744. If the court finds that a material change in circumstances has not occurred, it
“is not required to make a best interests determination and must deny the request for a change
of custody.” Pippin v. Pippin, 277 S.W.3d 398, 405 (Tenn. Ct. App. 2008) (quoting Caudill
v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999)).

       Tennessee Code Annotated section 36-6-101(a)(2)(B) sets forth the standard a
petitioning parent must meet to prove a material change in circumstance sufficient for
consideration of whether custody modification is in the best interest of the child:2

        (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.




1
  In determining whether modification is in the child‟s best interest, the trial court should order a custody
arrangement that permits both parents to enjoy the maximum participation possible in the child‟s life consistent
with the factors enumerated in Tennessee Code Annotated section 36-6-106(a)(1)-(15), as well as the location
of the parents‟ residences, the child‟s need for stability, and all other relevant factors. Tenn. Code Ann. § 36-
6-101(a).
2
  A different standard applies when a parent seeks modification of a residential schedule but not the
designation of primary residential parent. See Tenn. Code Ann. § 36-6-101(a)(2)(C). It is “easier to
establish that a material change in circumstances has occurred” when the parent only seeks to modify the
residential parenting schedule. Armbrister, 414 S.W.3d at 703.
                                                       7
See also Armbrister, 414 S.W.3d at 698-703 (explaining the purpose and historical
development of the material changes concept). Although there are no bright-line rules for
determining whether such a change has occurred, there are several relevant considerations:
(1) whether the change occurred after the entry of the order sought to be modified; (2)
whether the change was not known or reasonably anticipated when the order was entered;
and (3) whether the change is one that affects the child‟s well-being in a meaningful way.
H.A.S. v. H.D.S., 414 S.W.3d 115, 123 (Tenn. Ct. App. 2013) (quoting Cranston v. Combs,
106 S.W.3d 641, 644 (Tenn. 2003)).

        Applying the analysis outlined above to the present case, we are not persuaded that the
evidence preponderates against the trial court‟s finding that Father failed to prove a material
change of circumstances sufficient to modify custody. Father failed to demonstrate that
Mother‟s decision to let the children stay at home alone in the afternoons has impacted them
in any meaningful way. Additionally, despite Father‟s contention to the contrary, the record
does not reflect that the trial court failed to appreciate the significance of the rift between
Mother and Daughter. The parties testified that Mother and Daughter have, at times, a
strained relationship, but agreed that they love each other and attributed their tendency to
“butt heads” to the fact that they are so much alike. The April 2014 disagreement between
Mother and Daughter and Daughter‟s subsequent extended stay with Father is not evidence
of a material change of circumstances. Likewise, Daughter‟s testimony that she would prefer
to live with Father is not sufficient alone to constitute a material change of circumstances.
See Hoalcraft v. Smithson, 19 S.W.3d 822, 829-30 (Tenn. Ct. App. 1999) (finding that the
children‟s preferences alone were not sufficient proof of circumstances to warrant a change
in custody). Additionally, Father failed to present sufficient evidence regarding Mother‟s
alleged role in Son‟s academic struggles. Father acknowledged that Son succeeded for a time
in misleading both parents about his homework. While it appears that Mother has remained
more trusting of Son regarding his homework than Father has since the academic struggles
became apparent, both parties testified that they help him with his schoolwork and even go
through his backpack occasionally to make sure he has done all of it. Father‟s testimony that
Son failed a homework assignment while in Mother‟s care falls far short of establishing a
sufficient material change of circumstances.

       Father contends that by finding that designating Father the children‟s primary
residential parent would serve their best interests, the trial court, in effect, found that a
material change of circumstances had occurred. In support of his argument, Father relies on
the language of Section 36-6-101(a)(2)(B) that a material change of circumstance may
include “circumstances that make the parenting plan no longer in the best interest of the
child.” Tenn. Code Ann. § 36-6-101(a)(2)(B). Father‟s argument is premised on an
interpretation of Section 36-6-101(a)(2)(B) that would allow petitioning parents to prove a
material change of circumstances by establishing that modification is in the child‟s best
                                             8
interest. This interpretation of the statute, however, would nullify the material change of
circumstances prong of the two-part test to modify custody. Although, meeting the best
interests of the child is an overarching concern in allocating parental responsibilities
following a divorce, see Kelly v. Kelly, 445 S.W.3d 685, 696 (Tenn. 2014), the material
change of circumstances requirement serves an important purpose. The concept of requiring
a parent seeking modification to prove a material change in circumstances originated out of
this Court‟s recognition that existing parenting orders are considered res judicata on the facts
as they existed at the time that the most recent order was entered. Armbrister, 414 S.W.3d at
698-99 (citing Hicks v. Hicks, 176 S.W.2d 371, 375 (Tenn. Ct. App. 1943)). In that regard,
the requirement “promotes finality, „prevents inconsistent or contradictory judgments,
conserves judicial resources, and protects litigants from the cost and vexation of multiple
lawsuits.‟” Id. at 698 n.15 (quoting Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012). It
would be a great inconvenience to the litigants, the courts, and the public, if either party, as
often as he or she chose, could re-litigate questions of custody or support on the same or
substantially similar facts. Id. at 699. Additionally, the requirement serves the courts‟
interests in preserving stable custodial relationships for the child and discouraging divorced
parents from using the child as a pawn in their ongoing conflicts through repeated petitions to
modify custody.3 See Aaby v. Strange, 924 S.W.2d 623, 627 (Tenn. 1996) (“[It is] the
collective wisdom of both the courts and child psychologists that children, especially those
subjected to the trauma of divorce, need stability and continuity in relationships most of all.”
 (quoting Taylor v. Taylor, 849 S.W.2d 319, 328 (Tenn. 1993))). As such, we reject Father‟s
argument. The decision to modify custody is a two-part test, and a petitioning parent must
prove each part separately before a prior custody determination may be modified.
Accordingly, we conclude that because Father failed to prove a material change of
circumstances in this case, the trial court correctly denied his petition to modify.

                                               CONCLUSION

      For the foregoing reasons, we affirm the trial court‟s dismissal of Father‟s petition to
modify custody. The costs of this appeal are assessed to the appellant, Joshua Timothy
Canada, and his surety, for which execution may issue if necessary.


                                                            _________________________________
                                                            ARNOLD B. GOLDIN, JUDGE
3
 For example, if decisions to modify custody were based solely on meeting the child‟s best interests without
regard for whether a material change of circumstances had occurred, parents could force modification of their
custody arrangement as often as the child‟s custodial preference changed in a case where the other best interest
factors weighed equally in favor of each parent. The requirement that petitioning parents demonstrate a
material change of circumstances prevents such a scenario.
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