                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 September 4, 2002 Session

     SUSAN FORD (PURVIS) TURNER v. JEFFREY THOMAS PURVIS

                  Appeal from the Chancery Court for Montgomery County
                      No. 95-09-0046   Michael R. Jones, Chancellor



                     No. M2002-00023-COA-R3-CV - Filed April 9, 2003


Mother appeals from a trial court modification of the custody and visitation arrangement which had
been in place since the divorce in 1997. The previous arrangement gave Mother primary residential
custody, and Father was to have liberal visitation as agreed upon by the parties. After declining to
adopt the parenting plan submitted by either Mother or Father, the trial court devised a plan
establishing a specific residential schedule. Mother argues that there was not a material change of
circumstances that warranted the trial court’s decision. Because we determine that a material change
in circumstances occurred and because the modification of the custody arrangement was in the best
interests of the children, we affirm the decision of the trial court.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and ALLEN W. WALLACE , SP . J., joined.

Roger A. Maness, Clarksville, Tennessee, for the appellant, Susan Ford (Purvis) Turner.

Mark R. Olson, Clarksville, Tennessee, for the appellee, Jeffrey Thomas Purvis.

                                            OPINION

                                                 I.

        Susan Ford Turner (“Mother”) and Jeffrey Thomas Purvis (“Father”) were divorced by Final
Decree on June 13, 1997. Two minor children, T.P. and C.P., both boys, were born during the
marriage, in 1988 and 1990, respectively. The parties filed a Marital Dissolution Agreement
(“MDA”) that was incorporated into the final decree of divorce. According to the MDA, the parties
were to have joint custody of the two minor children. Mother would act as the primary residential
parent and would undertake primary responsibility for decisions regarding the education, religious
training, non-emergency health care, and discipline of the children. Father was to have reasonable
and liberal visitation with the children, and he agreed to provide some advance notice when he
desired to exercise that visitation.

        Mother has lived at the same residence with the minor children for thirteen years. Mother
and Father live approximately five (5) minutes away from each other by car. Mother remarried in
early 2000 to Jeff Turner. Father is engaged to Margo Turner (Jeff Turner’s ex-wife). Margo and
Jeff Turner’s three children are at Father’s house on a regular basis. Father is a race car driver and
travels extensively as a result of his job, frequently being out of town from Wednesday or Thursday
through Saturday or Sunday and traveling approximately 32 weeks out of the year.

         On May 23, 2001, Father filed a petition for a modification of the custody arrangement.
Father argued that since the entry of the divorce decree, difficulties had arisen with regards to
visitation, namely that the parties were unable to agree about the requirement of advance notice prior
to visitation. Father asserted that his career as a race car driver prohibited him from complying with
the extensive pre-planning required by Mother as a prerequisite to visitation with the children and
that as a result of: (1) Mother’s actions; (2) the increasing age of the children; (3) the children’s need
for the influence of their Father; and (4) Mother’s use of the children as a medium of
communication, a material change of circumstances had occurred so as to justify a modification of
the visitation arrangements.

         On December 3, 2001, both Mother and Father filed Proposed Parenting Plans. The trial
court heard the matter on that date and declined to adopt either party’s parenting plan. The court
issued an oral ruling from the bench, and entered a slightly modified written order the next day. On
December 20, 2001, the trial court entered a final order incorporating its previous orders and
detailing the new visitation schedule, as follows:

        The Court does not adopt the parenting plan submitted by either party. The Court
        finds it appropriate that the Court fashion a specific visitation schedule for the
        children, which is set forth as follows: . . .

        Each Monday at 3:00 p.m., or the close of school, whichever is sooner, the Father
        shall pick the children [up] at school and keep them with him until Thursday morning
        at 9:00 a.m., or whenever school begins. The father shall return the children to the
        school. During the summer vacation, the same schedule is to be observed, however,
        the children are to be returned to the Mother at the end of the Father’s visitation
        schedule and shall be delivered by the Mother to the Father at the beginning of the
        scheduled visitation.

        During each month of December commencing with December 2002, and each month
        of December thereafter, the children shall reside with the Father for the entire month
        of December except for the first and third weekend of the month of December, and
        Christmas Eve and Christmas Day. The Mother shall receive the children on the first



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         and third Friday at 5:00 p.m., and shall return the children to the Father on the first
         and third Sunday at 5:00 p.m.

         During the NASCAR race season, the children shall be with the Father for two race
         weekends per season. The Father shall select those weekends by giving the Mother
         10 days notice of the weekends selected.

         During the summer, each parent shall have the children for two uninterrupted weeks.

         No provision is made for other holidays, the parties shall simply have the children
         with them during that time period which is set forth herein.

         Should either party desire to take the children more than 100 miles from their home
         during the time that they are going to be with that parent, that parent shall provide 48
         hours notice to the other parent of the intent to take the children more than 100 miles
         from home, and shall provide an itinerary as to where the children shall be residing
         and a telephone number at which the children can be reached. . . .

         Essentially, the trial court replaced the loosely-defined “liberal and reasonable visitation to
be agreed upon by the parties” upon unspecified advance notice previously granted father with a
specific visitation or residential schedule. The Father sought modification in this case shortly after
the effective date of the new parenting plan legislation, see Tenn. Code Ann. § 36-6-401 et seq., and
there is no dispute that the plan applies herein. Each party submitted proposed parenting plans to
the trial court. Any decree of modification “shall incorporate a permanent parenting plan.” Tenn.
Code Ann. § 36-4-404(a).1 Tenn. Code Ann. § 36-6-404(b) requires that a parenting plan include
a residential schedule, which designates in which parent’s home the child will reside on given days
during the year. A residential schedule is defined as:

         . . . the schedule of when the child is in each parent’s physical care, and it shall
         designate the primary residential parent [the parent with whom the child resides more
         than 50% of the time]; in addition, the residential schedule shall designate in which
         parent’s home each minor child shall reside on given days of the year, including
         provisions for holidays, birthdays of family members, vacations, and other special
         occasions, consistent with the criteria of this part; provided, that nothing contained
         herein shall be construed to modify any provision of § 36-6-108; . . . .

Tenn. Code Ann. § 36-6-402(5).



         1
           The requirement of a permanent parenting plan does not apply to “parties who were divorced prior to July 1,
1997, and thereafter return to court to enter an agreed order modifying terms of the previous court order.” Tenn. Code
Ann. § 36 -6-404(a). The parties herein did not return to court to enter an agreed order, and, therefore, the new parenting
plan legislation is applicable in the case herein.

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        Mother appeals. Although she acknowledges that both parents came before the court seeking
a specific visitation schedule, she argues that the modification made by the court totally changed the
circumstances of the children and deprived her of her role as primary custodial parent although she
had performed that role well.
                                                    II.

        Once a valid order of custody has been issued, a court may modify that custody arrangement
when both a material change in circumstances has occurred and a change of custody is in the child’s
best interests. Kendrick v. Showmake, 90 S.W.3d 566, 570 (Tenn. 2002); Blair v. Badenhope, 77
S.W.3d 137, 148 (Tenn. 2002). “While there are no hard and fast rules for determining when a
child’s circumstances have changed sufficiently to warrant a change of his or her custody,” Blair,
77 S.W.3d at 150, a material change of circumstance does not require a showing of a substantial risk
of harm to the child. Kendrick, 90 S.W.3d at 570 n.5 (citing Tenn. Code Ann. § 36-6-101(a)(2)). To
justify modification, the change must have occurred after entry of the order sought to be modified,
and must be one that was not known or reasonably anticipated when the original order was entered,
and must affect the child’s well-being in a meaningful way. Kendrick, 90 S.W.3d at 570; Blair, 77
S.W. at 150.

       Although Kendrick speaks in terms of an actual change in custody, its principles apply to
changes in a custodial and visitation arrangement, including arrangements that are now established
in a permanent parenting plan designating decision making authority and a specific residential
schedule. Under the plan adopted by the court herein, Mother remains the primary residential parent.
When faced with a request to establish a specific visitation schedule, the court properly applied the
requirements of the parenting plan legislation. We will apply the material change of circumstances
and best interests standard.

        While the trial court’s conclusions of law are reviewed under a pure de novo standard, with
no deference accorded, we review the findings of fact by a trial court de novo with a presumption
of correctness for the trial court’s decision, unless the preponderance of the evidence is otherwise.
Tenn. R. App. P. 13(d); Kendrick, 90 S.W.3d at 569-70; Brooks v. Brooks, 992 S.W.2d 403, 404
(Tenn. 1999). Where the trial court makes no specific findings of fact, we must review the record
to determine where the preponderance of evidence lies. Kendrick, 90 S.W.3d at 570; Ganzevoort
v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

         The determinations of whether a material change or circumstances has occurred and where
the best interests of the children lie are factual questions, absent a failure to use proper legal
standards. Trial courts must exercise broad discretion in child custody matters. Parker v. Parker,
986 S.W.2d 557, 563 (Tenn. 1999). Because of the discretion given trial courts in this area and
because of the fact specific nature of such decisions, appellate courts are reluctant to second-guess
a trial court’s determination regarding custody and visitation. Nelson v. Nelson, 66 S.W.3d 896, 901
(Tenn. Ct. App. 2001); Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn. Ct. App. 1997)
(quoting Gaskill v. Gaskill, 936 S.W.2d 626, 631(Tenn. Ct. App. 1996)). Accordingly, this court
will decline to disturb the parenting plan fashioned by the trial court herein unless that decision is


                                                 -4-
based on a material error of law or the evidence preponderates against it. Adelsperger v.
Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). Similarly, a trial court’s determination
on issues of visitation should be set aside only when it “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 v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).

                                                         III.

       Evidence that an existing custody and visitation arrangement is not working 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); Dalton v. Dalton, 858 S.W.2d 324, 326 (Tenn. Ct. App. 1998).
While the parties herein agreed to joint custody and to the original custody and visitation
arrangement, it is not surprising that the ill-defined liberal visitation provision, dependent upon
agreement of the parties and non-specific advance notice requirements, led to problems.2

         The parents had difficulty communicating with each other; Father asserts he was denied
visitation because the timing of his requests did not suit Mother’s rigid approach to scheduling; he
asserts that his career as a race car driver prohibited him from complying with the extensive pre-
planning required by Mother as a prerequisite to visitation with the children. Mother asserts that she
tried unsuccessfully to work out a visitation schedule with Father and that Father would often call
only minutes before the children left for school to let Mother know that he wanted to have visitation
with them that afternoon. Father was not allowed some requested visits, including a request to take
the children to watch him in a particular race. Specific incidents were testified about, and Father
believes Mother wants to limit his interaction with the children and has failed to provide him with
information about their activities. Mother admitted withholding some important information about
one son for a month.

        The trial court found that “the joint custody arrangement entered by the Court in 1997
without a specific visitation schedule was destined to fail” and that it was appropriate that the
custody arrangement be set forth in specific fashion.3 At the trial herein, both parties testified they
wanted a set visitation schedule; both testified that the current situation was not working. Thus, we
find the evidence does not preponderate against the trial court’s implicit finding of a material change
of circumstances.

       Although Mother argues that the exigencies of the situation did not require or justify the
modification made by the court, or, stated another way, that there was no showing of a change of
circumstances materially affecting the children, her real argument is that the modification ordered
by the court went beyond that necessary to remedy the problem of undefined visitation. Mother

         2
           Those problems appear to have emerged as a result of, or be en exa cerbated b y, the unusual extended family
relationships and the variou s animo sities inhere nt therein.

         3
          The trial court also noted that the parties had submitted proposed visitation schedules to the judge who had
granted the d ivorce, but that judge had d ied before he ruled on tho se pro posals.

                                                         -5-
asserts the plan developed by the court places the children with Father approximately 175 nights per
year. She particularly objects to the Father having residential custody 3 out of 5 school nights. She
testified about her concerns that they have structure on school nights, get their homework done, and
arrive at school on time and her reservations about Father’s ability or willingness to provide this
structure. Thus, Mother’s real argument is that the parenting plan and residential schedule designed
by the court is not in the children’s best interests.

        Mother offered a proposed parenting plan that would have given Father custody or residential
placement every other weekend, with alternating weeks in the summer. Father proposed every other
week placement throughout the year. Father’s occupation as a NASCAR driver requires him to be
absent from his home Thursday through Saturday or Sunday to participate in testing and racing. He
races in 32 to 41 races per year. Mother acknowledged that Father’s career does not make it easy
for traditionally scheduled visitation to take place.

        When fashioning the residential schedule, the court is instructed to take into account the
factors listed in Tenn. Code Ann. § 36-6-404(b), which states:

       . . . the court shall make residential provisions for each child, consistent with the
       child’s developmental level and the family’s social and economic circumstances,
       which encourage each parent to maintain a loving, stable, and nurturing relationship
       with the child. The child’s residential schedule shall be consistent with this part. .
       . . [T]he court shall consider the following factors:

       (1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a
       life of service, and to compete successfully in the society which the child faces as an
       adult;
       (2) The relative strength, nature, and stability of the child’s relationship with each
       parent, including whether a parent has taken greater responsibility for performing
       parenting responsibilities relating to the daily needs of the child;
       (3) The willingness and ability of each of the parents to facilitate and encourage a
       close and continuing parent-child relationship between the child and the other parent,
       consistent with the best interests of the child;
       (4) Willful refusal to attend a court-ordered parent education seminar may be
       considered by the court as evidence of that parent’s lack of good faith in these
       proceedings;
       (5) The disposition of each parent to provide the child with food, clothing, medical
       care, education, and other necessary care;
       (6) The degree to which a parent has been the primary caregiver, defined as the parent
       who has taken the greater responsibility for performing parental responsibilities;
       (7) The love, affection, and emotional ties existing between each parent and the
       child;
       (8) The emotional needs and developmental level of the child;



                                                -6-
         (9) The character and physical and emotional fitness of each parent as it relates to
         each parent’s ability to parent or the welfare of the child;
         (10) The child’s interaction and interrelationships with siblings and with significant
         adults, as well as the child’s involvement with the child’s physical surroundings,
         school, or other significant activities;
         (11) The importance of continuity in the child’s life and the length of time the child
         has lived in a stable, satisfactory environment;
         (12) Evidence of physical or emotional abuse to the child, to the other parent or to
         any other person;
         (13) The character and behavior of any other person who resides in or frequents the
         home of a parent and such person’s interactions with the child;
         (14) The reasonable preference of the child if twelve (12) years of age or older. . . .
         (15) Each parent’s employment schedule, and the court may make accommodations
         consistent with those schedules; and
         (16) Any other factors deemed relevant by the court.

        These factors incorporate those set out in Tenn. Code Ann. § 36-6-106 (the statute which
previously guided the trial court in custody determinations) as well as factors established by the
courts. The primary concern in determinations of a child’s residential placement remains the best
interests of the child, and consideration of the factors under Tenn. Code Ann. § 36-6-404(b) still
necessitates a comparative analysis.

        Thus, by statute as well as case law, the welfare and best interests of the children are the
paramount concern in custody, parenting and residential placement determinations, and the goal of
any such decision is to place the child in an environment that will best serve his or her needs.
Parker, 986 S.W.2d at 562 (Tenn. 1999). This determination is factually driven and requires the
court to carefully weigh many considerations. Gaskill, 936 S.W.2d at 630.

        In the case herein, the trial court heard extensive testimony from Mother and Father regarding
their parenting styles, their relationships with the children, the existing custody arrangement, and
their preferences as to any modification of that arrangement. According to that testimony, we have
ascertained that Mother and Father live approximately five minutes away from each other. Both
children perform relatively well in school and will attend the same school whether they live with
Mother or Father. About a year ago, the older child expressed reluctance in visiting with Father.
According to Father, this reluctance was the result of derogatory comments made about Father by
Mother; according to Mother it was because that child was unable to spend time alone with his
Father since Father’s future wife and her children were usually around.4 The younger child, on the
other hand, has a good relationship with his Father. Both parents are able to provide financial
stability for the children and both parents have adequate homes; in fact, both Mother and Father are


         4
           It is apparent from the record that the older child has experienced some difficulties, apparently resulting from
the changes in the family situations and interactions. The trial court ordered counseling for the children to include the
parents if recommended.

                                                           -7-
more than capable of providing the children with many advantages. In reviewing the transcript of
the hearing, it is also apparent that both Mother and Father love these children and are concerned not
only for their stability and safety, but for other important matters such as their health, education, and
happiness.

       Although the trial court did not make specific findings of fact, from our review of the record,
we cannot find that the evidence preponderates against the trial court’s determination that the
children’s best interests were served by the parenting plan it adopted.

        For the foregoing reasons, we affirm the decision of the trial court. Costs of the appeal are
taxed to the appellant, Susan Ford (Purvis) Turner.



                                                        ___________________________________
                                                        PATRICIA J. COTTRELL, JUDGE




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