                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 January 23, 2013 Session

                   STEVE E. DOWLEN v. LUANA A. DOWLEN

                 Appeal from the Circuit Court for Robertson County
                  No. 747CC12009CV490        Ross H. Hicks, Judge


                  No. M2012-01049-COA-R3-CV - Filed May 30, 2013


Mother and Father were divorced in 2010, and Father filed a petition for modification of the
parenting plan seven months later in an effort to reduce Mother’s parenting time. The trial
court determined Father did not show a material change of circumstances and denied Father’s
petition. Father appealed, alleging the trial court erred in four different ways: (1) concluding
Father had not proved a material change of circumstances; (2) precluding Father from
introducing evidence of Mother’s mental health prior to the divorce; (3) allowing the
parenting plan to stay intact such that Mother is able to return to court to prove her mental
stability and seek an increase in her parenting time; and (4) not awarding Father his
attorney’s fees. We affirm the trial court’s judgment in all respects.

  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 R ICHARD H. D INKINS, JJ., joined.

Kimberly Lane Reed Bracey, Goodlettsville, Tennessee, for the appellant, Steve E. Dowlen.

Gregory D. Smith, Clarksville, Tennessee; Charlotte Ann Fleming, Springfield, Tennessee,
for the appellee, Luana A. Dowlen.

                                          OPINION

                                      I. B ACKGROUND

       Steve E. Dowlen (“Father”) and Luana A. Dowlen (“Mother”) were divorced in
August 2010. They have two children who were three and six years old at the time of the
divorce. Father was named the primary residential parent in the Permanent Parenting Plan
Order and was granted 242 days with the children each year. Mother was granted 123 days
per year and was expressly permitted to petition the court for additional time as set forth in
the parenting plan:

       Based upon the recommendations of Guardian Ad Litem, Jennifer L. Evans,
       she recommends that it is premature to decide a Parenting Plan for the
       remainder of the Minor Children’s minority; therefore, the parties may agree,
       or the Mother may file a Petition, stating that her continued mental health
       stability (for example, compliant with assessment, therapy and medication)
       will constitute a material change of circumstances such that the Parenting Plan
       should be modified to increase her parenting time. Mother will not need to
       prove that the Father has not cared properly for the Minor Children but only
       that the Mother has remained mentally stable and should enjoy more time with
       the Minor Children. Mother may not file such a Petition with the Court until
       at least 6 months after the Final Decree has been entered.

        Father filed a Petition to Modify in March 2011 in which he argued a material change
in circumstances warranted modifying the parenting plan to reduce Mother’s time with the
children. Mother filed an Answer and Counter-Petition to Modify Parenting Plan in which
she asked the court to award her more time with the children. Mother alleged she was “in
compliance with all aspects of the Parenting Plan and Final Decree and her treatment in this
matter and [is entitled to] more residential time with the Minor Children in this matter.”

       Following a two-day hearing in March and April 2012, the trial court denied both
Father’s and Mother’s petitions. The court found that neither party satisfied his/her burden
of proof justifying a change in the parenting plan. As to Father’s petition, the court found that
the evidence regarding Father’s complaints did not “justify any reduction in Ms. Dowlen’s
time.”

       As to Mother’s petition, the court stated:

              I don’t know, based on this file, what Ms. Dowlen’s diagnosis was,
       what her condition or prior treatments were and I don’t know today whether
       she is mentally stable. And I find that she has not proven to me that she has
       remained mentally stable or that she has continued mental health stability. So
       her petition is dismissed as well.

       The trial court thus let stand the parenting plan that was adopted as part of the divorce.
The parenting plan provides for all major decisions to be made jointly, including those
regarding the boys’ education, non-emergency health care, religious upbringing, and
extracurricular activities.

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       Father appealed the trial court’s judgment arguing the trial court erred in the following
ways: (1) finding that Father had not proved a material change in circumstances; (2) denying
Father the opportunity to introduce pre-divorce evidence of Mother’s mental health; (3) not
limiting Mother’s opportunity to return to court in the future to prove her mental stability and
seek more time with the children; and (4) denying Father his attorney’s fees. Mother did not
appeal the court’s dismissal of her petition.

                                 II. S TANDARD OF R EVIEW

        In a non-jury case, our review is de novo on the record of the proceedings below,
granting a presumption of correctness to the trial court’s findings of fact unless the evidence
preponderates against those findings. Tenn. R. Civ. P. 13(d); Curtis v. Hill, 215 S.W.3d 836,
839 (Tenn. Ct. App. 2006). “[T]rial courts necessarily have broad discretion to make
decisions regarding parenting arrangements to suit the unique circumstances of each case.”
Greenwood v. Purrenhage, 2013 WL 1228022, at *1 (Mar. 26, 2013) (citing Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) and Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn.
Ct. App. 2006)). As a result, “ a trial court’s decision regarding custody or 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.’”
Curtis, 215 S.W.3d at 839 (quoting Eldridge, 42 S.W.3d at 88).

       Determinations regarding custody and visitation “often hinge on subtle factors,
including the parents’ demeanor and credibility during the divorce proceedings themselves.”
Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). We therefore “give great
weight to the trial court’s assessment of the evidence because the trial court is in a much
better position to evaluate the credibility of the witnesses.” Boyer v. Heimermann, 238
S.W.3d 249, 255 (Tenn. Ct. App. 2007).

                 III. M ODIFICATION OF R ESIDENTIAL P ARENTING P LAN

      The General Assembly has determined what a parent must prove in a request to
modify a residential parenting schedule:

       If the issue before the court is a modification of the court’s prior decree
       pertaining to a residential parenting schedule, then the petitioner must prove
       by a preponderance of the evidence a material change of circumstance
       affecting the child’s best interest. A material change of circumstance does not
       require a showing of a substantial risk of harm to the child. A material change
       of circumstance for purposes of modification of a residential parenting
       schedule may include, but is not limited to, significant changes in the needs of

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       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.

Tenn. Code Ann. § 36-6-101(a)(2)(c).

       Not every change in the circumstances of a child or a parent will qualify as a “material
change of circumstance” for purposes of this statute. Rather, the change must be significant
to be material. Boyer v. Heimermann, 238 S.W.3d 249, 257 (Tenn. Ct. App. 2007).

       Father complains about Mother’s parenting in several respects in an attempt to show
that a material change of circumstances has occurred necessitating the consideration of
whether a change in residential schedule is in the children’s best interest. Father first alleges
Mother harms the children by locking them in their room at night. Second, Father asserts
Mother is not mentally stable because she is taking three different medications to control her
anxiety and depression. Third, Father contends Mother has failed to work with the children
on educational endeavors. Fourth, Father claims Mother does not provide the older child
with necessary medical treatments. We will address each of these allegations in turn.

       We turn first to Father’s allegation that Mother is harming the children by locking
them in their room at night. Mother testified that when she and Father were still living
together, before the divorce, Father came up with the idea of turning the doorknob of the
children’s bedroom around so the children could be locked in and could not lock the parents
out. The children told their counselor they were afraid when they were locked in their room,
and the counselor called the Department of Children’s Services (“DCS”) to report this
incident.1

        Mother testified that during a visit by an individual from DCS she turned the
doorknob around correctly and the doorknob has not been turned around the wrong way since
that time. Mother testified that she has not locked the children in their room, and Father
presented no evidence that the doorknobs have been turned back around the wrong way or
that there was still an issue as of the time of trial that the children were being locked in their
room.

       Next we turn to Father’s assertion that Mother is not mentally stable because she is
taking three different medications to control her anxiety and depression. Father presented

       1
           The counselor could not pinpoint a timeframe when the children were making these complaints.

                                                   -4-
no evidence of Mother’s mental condition other than the fact that the number of medications
she is taking has increased since the parties were divorced. Mother testified she is
emotionally stable, she sees a therapist on a regular basis, and she does not miss any
scheduled therapy sessions. Mother’s mother testified that she sees Mother nearly every day
and that in her opinion Mother’s mental and physical condition have improved “100%” since
the divorce. Mother’s current therapist testified that Mother has not missed any appointments
with him and that he had no reason to be concerned about Mother’s current emotional
condition.

        Father next contends Mother fails to work with the children on educational endeavors
and that Mother has taken the children out of school during Father’s parenting time without
his knowledge or consent. Father presented evidence that Mother kept the older child out of
his first grade class one day to see a religious leader without Father’s knowledge; that Mother
brought the boys with her to watch a friend’s child at a time when one of the children had a
mild fever; and that Mother took the older child to an educational testing center to determine
what sort of a learner he was without informing Father of this beforehand.

        Despite Father’s complaints about the way Mother “teaches” the children at home, the
evidence was undisputed that both children are doing very well in school. The majority of
issues Father complains of occurred during the 2010-11 school year and were no longer
problems during the 2011-12 school year, when the children were five and seven years old.
In fact, Father testified that the concerns he had when he filed his petition for modification
were no longer concerns by the time of trial and that he believed Mother was helping the
children with their homework more than she had previously.

        The final issue Father raises to support his argument that there has been a material
change in circumstances is that Mother does not consistently give the older child his asthma
medicine. The evidence showed that the older child is supposed to have nightly breathing
treatments and that on at least one occasion Mother has not administered this treatment.
Father testified, however, that by the time of trial Mother was “doing a lot better,” suggesting
that the breathing treatments were no longer an issue of concern.2

       After the close of evidence the trial court stated, “I’ve heard a lot about incidents, all
of which the Court understands were concerning to Mr. Dowlen and/or Ms. Dowlen at the
time they happened. But as I look at them and try to look at the big picture here, the Court
is unpersuaded that they justify any reduction in Ms. Dowlen’s time.” Our review of the


        2
         Father alleged Mother wants to take the older child off all medications, but the evidence showed
only that Mother has investigated other options of treatment by seeking second opinions in an effort to
determine the best course for treating the child’s asthma.

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evidence leads us to agree with the trial court. Father has failed to satisfy his burden of
proving by a preponderance of the evidence that a material change of circumstances has
occurred affecting the children’s best interests.3 In addition, Father has failed to show that
Mother has not adhered to the parenting plan or that the parenting plan is no longer in the
children’s best interest.4 Tenn. Code Ann. § 36-6-101(a)(2)(c). Indeed, Father testified that
by the time of trial the concerns that caused him to file his petition initially had improved.

                 IV. E VIDENCE OF M OTHER’S H EALTH P RIOR TO THE D IVORCE

        Father attempted to introduce evidence of Mother’s mental health prior to the divorce
in an effort to defeat Mother’s petition as well as to show a material change of circumstances
had occurred to support his petition. Mother’s attorney objected to Father’s introduction of
evidence of Mother’s mental health prior to the divorce, and the trial court sustained the
objection.

        Father appeals the court’s ruling sustaining Mother’s objection to Father’s
introduction of this evidence. The admissibility of evidence is within the sound discretion
of the trial court, and we will not overturn the trial court’s decision without proof that the
trial court abused its discretion. Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121, 131
(Tenn. 2004). A trial court abuses its discretion when it applies an incorrect legal standard
or reaches a decision that is contrary to logic or reasoning and that causes an injustice to the
party complaining. Id. (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).

       To succeed on his petition to modify, Father had the burden at trial to prove by a
preponderance of the evidence that a material change of circumstances had occurred that
affected the children’s best interest. Since the trial court did not grant Mother’s petition, and
since Mother does not appeal the court’s dismissal of her petition, we need not address
whether the trial court should have permitted Father to introduce evidence of Mother’s
mental health prior to the divorce in an effort to defeat her petition.

       Father does not explain how evidence of Mother’s mental health prior to the divorce
has any bearing on the issue of whether the trial court should have further limited Mother’s




        3
            The children’s therapist testified that the children have adjusted to the current residential schedule.
        4
         Father presented evidence that Mother has occasionally been late picking the boys up from Father’s
house or having the boys ready to leave when Father arrives to pick them up. These incidents do not prove,
however, that Mother is not adhering to the parenting plan.

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time with the children as of the time of trial.5 The only evidence Father introduced at trial
to show Mother’s mental health constituted a material change of circumstances was that she
was taking more medications than she was taking before the divorce. However, Mother’s
therapist testified Mother has not missed her appointments with him and that he had no
reason to be concerned about Mother’s current emotional condition.

       The trial court did not abuse its discretion in excluding evidence of Mother’s mental
health prior to the divorce. We affirm the trial court’s judgment on this issue.6

                      V. M OTHER’S O PPORTUNITY TO R ETURN TO C OURT

       The parties’ permanent parenting plan expressly provides that “Mother may file a
Petition, stating that her continued mental health stability . . . will constitute a material
change of circumstances such that the Parenting Plan should be modified to increase her
parenting time.” When the parties were seeking a divorce, they submitted the parenting plan
to the court for approval contemporaneously with the MDA. The trial court adopted the
MDA in its entirety as an order by the trial court, as set forth in the Final Decree of Divorce,
and the trial court approved the parenting plan as proposed.

        Father complains that when the trial court was ruling on the parties’ petitions to
modify, the trial court should have modified the language of the parenting plan to preclude
Mother from returning to court in the future to prove her mental stability and seek more time
with the parties’ children. Father argues: “Since the Court found that the Mother had not
carried her burden, she should not be allowed another bite at the apple to prove it at a later
date and drag the Father and children through a similar proceeding any time she desires to
try to prove her case.”

       We note first that Father raises an issue that is not ripe for adjudication because he is
objecting to an uncertain or contingent future event that may not occur as anticipated, or may
not occur at all, and therefore does not present a justiciable legal issue. See B & B Enter. of
Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 848-49 (Tenn. 2010) (court will
decline to act where there is no need for court to act or where refusal to act will not prevent


        5
          Father made an offer of proof which consisted of behavior Mother engaged in to harm herself before
the parties were divorced. Father does not suggest Mother has repeated any of this behavior since the divorce
or that she has done anything else since the divorce that renders this pre-divorce evidence relevant or material
to the court’s ruling.
        6
         Father’s reliance on Gillum v. McDonald, 2004 WL 1950730 (Tenn. Ct. App. Sept. 2, 2004), does
not support his argument because unlike Gillum, Father does not contend Mother’s conduct prior to the
divorce had any relevance to the children’s best interest when the modification petition was tried.

                                                      -7-
parties from raising the issue at a more appropriate time). Second, the statute pertaining to
modification of a residential parenting schedule does not limit the number of times a party
may petition the court if the party believes he or she can prove by a preponderance of the
evidence that a material change of circumstances has occurred that affects the children’s best
interest and that the residential parenting schedule should be altered. See Tenn. Code Ann.
§ 36-6-101(a)(2)(c).

       The trial court did not err by leaving intact the terms of the parties’ parenting plan.

                                   VI. A TTORNEY’S F EES

       The trial court did not award either Father or Mother their attorney’s fees. Father’s
final argument is that the trial court erred in failing to award him the attorney’s fees he
incurred at the trial level. Father also seeks an award of his fees incurred on appeal. A trial
court has the discretion to award a prevailing party attorney’s fees in a case involving custody
or alimony. Tenn. Code Ann. § 36-5-103(c). Father is not a prevailing party in this case.
The trial court thus committed no error in declining to award Father his fees.

        The decision whether to award attorney’s 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).
Father is not the prevailing party in this appeal, and we decline to exercise our discretion to
award him the fees he incurred in this appeal.

                                     VII. C ONCLUSION

       We affirm the trial court’s judgment in all respects. Costs of this appeal shall be
assessed against the appellant, Steve E. Dowlen.




                                                           ____________________________
                                                           PATRICIA J. COTTRELL, JUDGE




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