                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                September 11, 2013 Session

                 JAMES ALLEN AUSTIN v. MARELY TORRES

                  Appeal from the Circuit Court for Davidson County
                       No. 11D3097      Carol Soloman, Judge


                 No. M2012-01219-COA-R3-CV - Filed March 20, 2014


The divorced father of an seven year old child filed a petition to transfer custody of the child
from the mother to himself. The trial court heard expert proof that the child suffered from
a rare genetic disorder that can cause grave neurological consequences if the child’s diet is
not strictly controlled. The mother’s testimony indicated that she was unconvinced that the
child had a disorder and that she was unwilling to adjust the child’s diet to meet his medical
needs. The court found that there had been a material change of circumstances and that it
was in the best interest of the child that custody be transferred to the father, with the mother’s
visitation limited to fifty days per year. The mother argues on appeal that the trial court’s
order should be reversed because it committed a number of procedural errors in the course
of the custody proceedings. We affirm the trial court.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, joined.

Tusca R.S. Alexis, Nashville, Tennessee, for the appellant, Marely Torres.

C. Diane Crosier, Franklin, Tennessee, for the appellee, James Allen Austin.

                                           OPINION

                                       I. B ACKGROUND

       The child at the center of this case, James Austin, Jr., was born in 2004 to James
Austin, Sr. (Father) and Marely Torres (Mother). Shortly after his birth, the child was
diagnosed with a rare genetic disorder called Phenylketonuria or PKU, in which the body
cannot break down an amino acid called phenylalanine (Phe). If Phe builds up in the blood,
it can lead to mental retardation, seizures and other serious medical problems. Phe is found
in many foods that are rich in protein, such as meat, eggs, and dairy products. In order to
prevent neurological damage, the diet of a PKU sufferer must therefore be strictly controlled.

       On November 20, 2008, Father was awarded a divorce from Mother on the ground of
irreconcilable differences. Under their Marital Dissolution Agreement and their Agreed
Parenting Plan, Mother was designated as the child’s Primary Residential Parent, but
parenting time was divided equally between the parties, with each to exercise 182.5 days of
parenting per year. Father was ordered to pay child support of $60.46 per week in
accordance with the guidelines as well as health and dental insurance for the child.

       Major decisions involving the child’s non-emergency healthcare, his religious
upbringing and extracurricular activities were to be jointly made, but Father was given
primary responsibility over educational decisions, with the proviso that “[e]ducational
decisions shall be jointly discussed, but Father shall make the ultimate decision.” Among the
“special provisions” included in the parenting plan were that

       1). Both parents shall record the child’s food intake in one document that shall
       be exchanged when the child is exchanged.
       2). The child’s diet shall be in accordance with the child’s current medical
       condition.

        The plan also included a provision that the parties would make a good faith effort to
settle disagreements or modification through “mediation by a neutral party chosen by the
parents or the Court.”

       On September 29, 2011, Father filed a petition in the Rutherford County Chancery
Court seeking a modification of the parenting plan. He proposed a new parenting plan under
which he would be designated as the child’s Primary Residential Parent, and his parenting
time would be increased to 265 days per year. Father alleged that Mother was violating the
existing parenting plan in numerous ways, including by giving the child food that was
inconsistent with his medically-prescribed diet. Father also alleged that Mother did not
provide him with an accurate record of the child’s food intake.

        The case was subsequently transferred to the Davidson County Circuit Court.
Mother’s answer and counterpetition was filed in that court on December 21, 2011. She
denied Father’s allegations, asserted that Father had transferred the child from a school near
her home without consulting with her, and she asked the court to order the parties to share
joint decision-making about the child’s education. On March 28, 2012, the parties entered
into a pre-trial stipulation that acknowledged that the child had PKU, that the condition can

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lead to brain damage unless a Phe-restricted diet is followed, and that “[m]ost experts suggest
that a Phe-restricted diet should be lifelong.”

                                       II. T RIAL P ROCEEDINGS

       On April 3, 2012, the trial court conducted a hearing on Father’s petition and Mother’s
counterpetition. Aside from the parties, the testifying witnesses included a nurse practitioner
who testified about the child’s condition and a nutritionist who has worked with the child
since he was two weeks old, when it was discovered that he had PKU.1

       The nurse practitioner testified that because of the child’s genetic condition, failure
to closely monitor his intake of Phe can cause severe brain damage and other neurological
effects over time. She also testified that Mother has been unable to properly regulate the
child’s diet and that Mother does not understand the disease and the importance of
maintaining a proper diet for the child. She acknowledged that the child has not shown any
side effects from his diet, but asserted that such effects do not appear for some time.

        The nutritionist testified that she had met with Mother on numerous occasions to teach
her how to keep the food records, but that she was unsuccessful because Mother did not
believe that the child had PKU or that if she prays the child will not have PKU. She further
testified that Mother often gives the child foods that he should not be eating because they are
high in Phe. Father has always provided accurate food records for the child, and the child’s
Phe levels were always better after an extended stay with Father.

       Father testified about his own efforts to teach Mother how to maintain the child’s food
records. He also testified that because the child appears to be healthy, Mother does not
believe that he has a medical condition and that she has told him that eating certain Phe-rich
foods “won’t kill him.” He further stated that Mother is unable to help the child with his
school work and other school-related matters because of the language barrier.2

       Mother admitted that the nutritionist had spent time with her on numerous occasions
to teach her how to keep the child’s food records, but on cross-examination she could not
identify the problems with her own food records. She also admitted that she had been


        1
          No transcript of the hearing was prepared, so our account of the events at trial derived from the
Statement of the Evidence, which was entered into the appellate record in accordance with Tenn. R. App.
P. 24(c).
        2
         Mother is a native of El Salvador. She testified with the assistance of a Spanish language interpreter
during the trial of this case.

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arrested for domestic assault and that her drivers license had been suspended.

       The trial court entered an order in this case on May 3, 2012. The court stated that
“Mother has not been a truthful witness,” and further, that she had failed to properly maintain
and exchange the food records of the child “which makes the Court very concerned for the
child’s health and well-being.” The court concluded that this failure constituted a material
change of circumstances that warranted a modification of the parenting plan.

       The court accordingly designated Father as the child’s Primary Residential Parent and
adopted a new Parenting Plan that limited Mother’s parenting time to fifty days per year.
Father’s child support obligation was terminated, and Mother was ordered to pay child
support to Father of $370 per month in accordance with the child support guidelines.
Mother’s compliance with the child’s dietary needs going forward was set for review in June,
with the possibility of either a suspension or an expansion of Mother’s visitation possible,
depending on the result of the review. Mother’s counterpetition was dismissed. This appeal
followed.

                                       III. A NALYSIS

       A. The Question of Mediation

       Mother’s first argument on appeal is that the trial court erred in failing to order the
parties to mediate before conducting the final hearing on Father’s petition to modify the
parenting plan. She notes that the original parenting plan specifically called for such
mediation, and she asserts that no such mediation occurred in this case.

        Father replies that the parties did attend mediation just prior to the filing of his
petition. The appellate record includes a mediator’s final report that indicates that a
mediation was conducted on September 20, 2011, that both parties appeared and participated
in the mediation, that both parties were represented by their attorneys, and that the case did
not settle.

       Mother asserts, however, that the subject of that mediation was not a modification of
the parenting plan, but rather Father’s decision to change the child’s school. Mother’s
current attorney has supplemented the record with a copy of a letter sent by her prior attorney
to Father on August 16, 2011, asking Father to participate in mediation over a question of
scheduling and the decision to change schools. We are not convinced that the trial court was
required to read that letter as establishing the limitation of the mediation.

       In any event, Mother has not presented any evidence that her attorneys asked the trial

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court to stay the hearing on Father’s modification petition pending the conduct of mediation
on the questions raised in that petition, or that they brought the issue of mediation to the
attention of the trial court in any other way. In the absence of any such evidence, we cannot
fault the trial court for failing to order the parties to go to mediation.

       B. The Modification of the Parenting Plan

       Mother challenges the trial court’s determination that a material change in
circumstances had occurred that would warrant naming Father as the Primary Residential
Parent and limiting her parenting time to only fifty days a year. She also challenges the
manner in which the court made that determination.

       A decision on a request for modification of a parenting arrangement generally requires
a two-step analysis. Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003). A party
petitioning to change an existing custody order must prove both (1) that a material change
of circumstances has occurred, and (2) that a change of custody or residential schedule is in
the child's best interest. Kendrick v. Shoemake, 90 S.W.3d 566, 575 (Tenn. 2002). A
material change of circumstances does not require a showing of a substantial risk of harm to
the child. Tenn. Code Ann. § 36-6-101(a)(2)(B). It does not take a leap of logic, however,
to conclude that the emergence of such a risk can constitute a material change of
circumstances.

       Under prior court decisions, a party alleging, for the purpose of modifying an existing
parenting arrangement, that there had been a material change of circumstances, was required
to prove that the alleged change could not reasonably have been anticipated when the initial
residential parenting schedule was established. In 2004, our legislature addressed the
concept of a material change of circumstances and added language to the existing statutes as
follows:

       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.

Tennessee Code Annotated § 36–6–101(a)(2)(C).

       Our Supreme Court recently revisited the question of whether a change of

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circumstances could justify a modification of a parenting plan, even when the change was
one that could have been anticipated at the time the initial parenting plan was established.
The court held that it could, in light of Tenn. Code Ann. § 36-6-101(a)(2)(C). Armbrister
v. Armbrister, E2012-00018-SC-R11-CV, 2013 WL 5688775 (Tenn. Oct. 21, 2013).

        In the present case, the trial court heard expert proof that the child suffers from a rare
genetic condition that can lead to mental retardation and other neurological effects if his diet
is not carefully controlled. Because of the child’s condition, the parenting plan required that
both parents provide him with a diet appropriate for his condition. The proof showed,
however, that Mother did not believe that there was anything wrong with the child, and that
during the time he was in her care, she was unable or unwilling to conform his diet to his
medical requirements or to accurately record his dietary intake, thereby failing to adhere to
the parenting plan and exposing him to an unacceptable risk of harm.

        Proof was also presented that Father was aware of the danger and that he was careful
to monitor and record the child’s diet and to regulate his intake of the substance that causes
the risk. We do not doubt that Mother loves her child or that she wants the best for him, but
she appears unable to routinely follow the restricted diet that his medical condition requires.

       No countervailing evidence was presented at trial to refute the expert testimony about
the dangers to the child arising from eating the wrong food. The trial court heard the
testimony of the witnesses directly and was able to observe their demeanor and to assess their
credibility, and it concluded on the basis of that testimony that Mother’s response to her
child’s medical/nutritional needs was a material change of circumstances that affected the
well-being of the child in a meaningful way. We affirm the trial court’s conclusion.

        Mother also argues that the court failed to take the necessary second step in deciding
a petition for modification of a parenting plan, because it did not make a specific
determination that a change in the parenting plan was in the child’s best interest, in
accordance with the factors set out at Tenn. Code Ann. § 36-6-404(b). It is true that the trial
court did not use the words “best interest” in its final order and that it did not refer to the
statutory factors. However, since the trial court found that the change in circumstances that
affected the child’s well being was Mother’s failure to follow the restrictions on diet that
affected the child’s health, it is clear to us that the same factual finding is the basis for the
court’s inherent conclusion that it was in the child’s best interest that Father be designated
as his Primary Residential Parent. See Graham v. Graham, No. 03A01–9412–CV–00448,
1995 WL 447785 at *1 (Tenn. Ct. App. July 31, 1995).

       While the trial court is obligated to consider all relevant factors in reaching its
decision, it is not required to list each of those factors in its opinions or orders, nor is it

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required to explain how each factor affected its overall determination. Woods v. Tidwell,
M2009-01972-COA-R3-CV, 2011 WL 1662900 (Tenn. Ct. App. May 3, 2011) (no Tenn. R.
App. P. 11 application filed); Woods v. Woods, M2006-01000-COA-R3-CV, 2007 WL
2198110, at *2 (Tenn. Ct. App. Jul. 26, 2007) (no Tenn. R. App. P. 11 application filed);
Matlock v. Matlock, M2004-01379-COA-R3-CV, 2007 WL 1452691, at *5 (Tenn. Ct. App.
May 16, 2007) (no Tenn. R. App. P. 11 application filed).

       Where the trial court fails to make specific factual findings, we must conduct our own
independent review of the record to determine where the preponderance of the evidence lies.
Curtis v. Hill, 215 S.W.3d 836, 839 (Tenn. Ct. App. 2006). There is very little evidence to
be found in the record of this case that is relevant to most of the factors set out at Tenn. Code
Ann. § 36-6-404(b). The pivotal factor for determining the best interest of the child in this
case is the same as was used to determine that a material change of circumstances had
occurred – the danger the child was exposed to from Mother’s inability or unwillingness to
control his diet with a proper regard for the severe medical consequences that could arise
from lack of care for his genetic condition. See, Tenn. Code Ann. § 36-6-404(b)(16), (“[a]ny
other factors deemed relevant by the court.” )

       The finding that Mother exposed the child to danger to his health by failing to follow
the necessary dietary regimen is sufficient to support a finding that it is in the best interest
of the child that Father become his Primary Residential Parent.

       Mother also objects to the provision in the parenting plan that only gives her visitation
with the child every other weekend, from 10:00 a.m. on Saturday to 6:00 p.m. on Sunday, as
well as certain holidays. The court calculated that under that plan, Father would spend 315
days with the child each year, while Mother would only get 50 days. While this is less than
the “standard visitation” described in the child support guidelines,3 it is apparent that the
purpose of the provision is to protect the child from the effects of eating too much of the
wrong kinds of foods for an individual suffering from PKU.

       “Trial courts have broad discretion to fashion custody and visitation arrangements that
best suit the unique circumstances of each case, and the appellate courts are reluctant to
second-guess a trial court’s determination regarding custody and visitation.” Reeder v.
Reeder, 375 S.W.3d 268, 278 (Tenn. Ct. App. 2012) (citing Parker v. Parker, 986 S.W.2d
557, 563 (Tenn. 1999); Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001)). We
are specifically instructed not to “tweak” a visitation order in the hope of achieving a more


        3
          Under the Child Support Guidelines, standard visitation for the Alternate Residential Parent is every
other weekend, Friday through Sunday, two weeks in the summer, and two weeks during the holidays, for
a total of 80 days per year. Tenn. Comp. Rules & Regs. 1240-2-4-.02(7)(a).

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reasonable result than the trial court. Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).
We do not find that the trial court abused its discretion in limiting Mother’s visitation as it
did.

       C. A Question of Child Support

       Mother’s remaining argument is that the trial court ordered her to pay child support
in an amount that deviated from the presumptively correct amount calculated under the child
support guidelines without specifically declaring in its order that the application of the
presumptive amount would be unjust and inappropriate. Such a declaration is required
before a deviation may be ordered. Tenn. Rules & Regs. 1240-2-4-.07(1)(c). Our
examination of the record shows, however, that the amount of child support ordered did not
deviate from the presumptive amount, so no such statement was required.

       The Financial Support section of the Parenting Plan set Mother’s obligation at $370
per month. The child support worksheet appended to the Plan showed that this was her
presumptively correct child support obligation under the Income Shares Child Support
Guidelines. Below the entry in the Parenting Plan setting out that amount, the pre-printed
form states, “[i]f this is a deviation from the Child Support Guidelines, explain why:” The
following language, entered below, accounts for the confusion: “The Court finds that an
upward deviation is warranted due to the high costs of the special foods required of the
child’s medical condition and due to the fact that Father has to provide all transportation
because Mother does not possess a valid driver’s license.”

       Even though there were spaces beneath this statement to fill in an amount to be added
to the presumptive obligation and a total amount of child support to be paid monthly
including the additional amount, those spaces were left blank. Thus, Mother’s child support
obligation remained at the presumptive amount, no declaration was needed to justify any
deviation, and Mother’s issue is without merit.

      Even if the trial court were required to explain the reasons for a deviation, the
explanation on the worksheet meets the requirement of the guidelines.

       D. Attorney Fees on Appeal

      Finally, Father asks this court to award him attorney fees for frivolous appeal pursuant
to Tenn. Code, § 27-1-122, which states,

       When it appears to any reviewing court that the appeal from any court of
       record was frivolous or taken solely for delay, the court may either upon

                                              -8-
       motion of a party, or of its own motion, award just damages against the
       appellant, which may include, but need not be limited to, costs, interest on the
       judgment, and expenses incurred by the appellee as a result of the appeal.

        Father does not allege that Mother’s appeal was taken solely for delay. He points out,
however, that our courts have defined a frivolous appeal as one that is so devoid of merit that
there is little prospect of it succeeding, and he contends that this is just such a appeal. See,
Byrnes v. Byrnes, 390 S.W.3d 269, 279 (Tenn. Ct. App. 2012); Young v. Barrow, 130 S.W.3d
59, 67 (Tenn. Ct. App. 2003) (citing Combustion Engineering Inc. v. Kennedy, 562 S.W.2d
202, 205 (Tenn. 1978)); Industrial Development Bd. of City of Tullahoma v. Hancock, 901
S.W.2d 382, 385 (Tenn. Ct. App. 1995).

        Our Supreme Court has cautioned, however, that “imposing a penalty for a frivolous
appeal is a remedy which is to be used only in obvious cases of frivolity and should not be
asserted lightly or granted unless clearly applicable – which is rare.” Henderson v. SAIA,
Inc., 318 S.W.3d 328, 342 (Tenn. 2010).

       The decision to award damages for the filing of a frivolous appeal, rests within the
sole discretion of the appeals court. Banks v. St. Francis Hospital, 697 S.W.2d 340, 343
(Tenn.1985); Marra v. Bank of New York, 310 S.W.3d 329, 342 (Tenn. Ct. App. 2009);
Whalum v. Marshall, 224 S.W.3d 169, 180-81 (Tenn. Ct. App. 2006). Acting in the exercise
of our discretion, we decline to award attorney fees in this case.

                                              IV.

       The judgment of the trial court is affirmed. Remand this case to the Circuit Court of
Davidson County for any further proceedings necessary. Tax the costs on appeal to the
appellant, Marely Torres.




                                                           ____________________________
                                                           PATRICIA J. COTTRELL, JUDGE




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