                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  March 5, 2013 Session

      HOLLY GENEACE GARRETT V. MARK ANTHONY GARRETT

                Appeal from the Probate Court for Cumberland County
                No. 2012PF2642 Hon. Larry Michael Warner, Judge




                No. E2012-02168-COA-R3-CV-FILED-APRIL 12, 2013




This post-divorce appeal concerns the agreed-upon parenting plan designating Mother as the
primary residential parent. When Mother registered the Children in a new school district,
Father objected. The trial court entered an order requiring the Children to remain in their
current school district, despite the Cumberland County Board of Education’s policy
providing otherwise. The Cumberland County Board of Education filed a motion to
intervene, which was granted. Following a limited hearing, the court designated Father as
the primary residential parent, allowing the Children to remain in their current school district
per the applicable policy. Mother appeals. We reverse the decision of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Reversed;
                                  Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which D. M ICHAEL S WINEY
and T HOMAS R. F RIERSON, II, JJ. joined.

Mark N. Foster, Rockwood, Tennessee, for the appellant, Holly Geneace Garrett.

Brett A. York, Crossville, Tennessee, for the appellee, Mark Anthony Garrett.

G. Earl Patton, Crossville, Tennessee, for the appellee, the Cumberland County Board of
Education.
                                          OPINION

                                    I. BACKGROUND

        The record before this court is sparse. Holly Geneace Garrett (“Mother”) and Mark
Anthony Garrett (“Father”) were divorced by final decree in June 2012. Mother and Father
(collectively “the Parents”) had two children (collectively “the Children”). The Parents
agreed to equally split parenting time but designated Mother as the primary residential parent
in the permanent parenting plan.

       Shortly thereafter, Mother enrolled the Children in a school close to her residence.
Father objected and sought relief from the court, which entered an ex parte order on August
13, 2012, ordering the Parents to keep the Children enrolled in the pre-divorce school,
Homestead Elementary School (“Homestead”) in Cumberland County.

       The Cumberland County Board of Education (“the Board”) filed a motion to intervene
and a motion to set aside the order, asserting that its policy provided that students were to be
enrolled in the district in which the primary residential parent resided and that the court’s
order violated that policy. The Board asserted that the legislature provided it with the
authority to establish its policy, which was readily available to parents. Father objected to
the motion to intervene, arguing that the court was not bound by the Board’s policy.

        Mother responded to the order by filing a motion to clarify the divorce decree. Mother
asserted that Father had violated the divorce decree requiring them to make joint decisions.
She requested clarification or a change in the parenting plan, providing that she was entitled
to make decisions pertaining to education. Father responded to Mother’s motion by asserting
that she had violated the parenting plan when she attempted to enroll the Children in different
school systems. He claimed that her “unilateral decision . . . to uproot the [C]hildren was not
supported by the [p]ermanent [p]arenting [p]lan that was incorporated by the [f]inal [d]ecree,
nor was [her] unilateral decision in the best interest of the [C]hildren.” He asserted that
designating him as the primary residential parent would be in the best interest of the Children
and would remove the Board’s confusion caused by the ex parte order.

       Following arguments by counsel, the court found that the Board had a right to
intervene as a matter of law. The court also found that the Children were in need of stability,
that Mother’s unilateral decision to enroll the Children in a new school was contrary to the
need for stability, and that it was in the best interest of the Children to designate Father as
the primary residential parent, thereby allowing the Children to remain enrolled in
Homestead. This timely appeal followed.



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                                          II. ISSUES

       We consolidate and restate the issues raised on appeal as follows:

       A. Whether the trial court erred in granting the Board’s motion to intervene.

       B. Whether the trial court abused its discretion in modifying the custody
       arrangement by designating Father as the primary residential parent.

                              III. STANDARD OF REVIEW

       On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review
with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.
2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed
questions of law and fact are reviewed de novo with no presumption of correctness; however,
appellate courts have “great latitude to determine whether findings as to mixed questions of
fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

       In matters of divorce and child custody, trial courts are vested with broad discretion,
and appellate courts will not interfere with the trial court’s decision except upon a showing
of erroneous exercise of that discretion. See Whitaker v. Whitaker, 957 S.W.2d 834, 836-37
(Tenn. Ct. App. 1997). “‘Because [c]ustody and visitation determinations often hinge on
subtle factors, including the parents’ demeanor and credibility during . . . proceedings,”
appellate courts “are reluctant to second-guess a trial court’s decisions.’” Hyde v. Amanda
Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905, at *3 (Tenn. Ct. App. Oct.12,
2010) (quoting Johnson v. Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004)).

                                      IV. DISCUSSION

                                               A.

        While neither party raised the issue of the Board’s intervention on appeal, we are
troubled by the court’s grant of the motion over Father’s objection at the trial court level.
Accordingly, we will examine this issue as well as the modification of the parenting plan.
See Tenn. R. App. 13(b) (providing that this court may consider issues not raised in an effort
to prevent needless litigation, to prevent injury to the public interest, and to prevent prejudice
to the judicial process).

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      Intervention as of right is governed by Rule 24.01 of the Tennessee Rules of Civil
Procedure, which provides,

       Upon timely application anyone shall be permitted to intervene in an action:
       (1) When a statute confers an unconditional right to intervene; or (2) when the
       applicant claims an interest relating to the property or transaction which is the
       subject of the action and the applicant is so situated that the disposition of the
       action may as a practical matter impair or impede the applicant’s ability to
       protect that interest, unless the applicant’s interest is adequately represented
       by existing parties; or (3) by stipulation of all the parties.

        There are essentially four elements that a party seeking to intervene as of right must
establish before an application for intervention will be granted. State v. Brown & Williamson
Tobacco Corp., 18 S.W.3d 186, 190-91 (Tenn. 2000). The party must show that: “(1) the
application for intervention was timely; (2) [he or she had] a substantial legal interest in the
subject matter of the pending litigation; (3) [the] ability to protect that interest is impaired;
and (4) the parties to the underlying suit cannot adequately represent [that] interest[].” Id.
While the precise nature of the interest required to intervene as of right has eluded exact
definition, it is clear that the right does not include a mere contingent, remote, or conjectural
possibility of being affected as a result of the suit, but must involve a direct claim on the
subject matter of the suit such that the intervenor will either gain or lose by direct operation
of the judgment.” Id. at 192.

       Here, the application for intervention was timely. The Board also had a legal interest
in the subject matter because it had been granted the authority to enact policy regarding
enrollment of students. However, we fail to see how that interest was substantial when
custody decisions must be made in the best interest of the child, regardless of any
countervailing policies that may be implicated. The parties and the court were apprised of
the unique situation regarding the enrollment policy after the ex parte order was entered. The
Parents could have argued that the Board’s policy heightened his or her position on the issue
before the trial court, namely which parent should be designated as the primary residential
parent. With these considerations in mind, we conclude that the trial court erred in granting
the motion to intervene pursuant to Rule 24.01 of the Tennessee Rules of Civil Procedure.
This conclusion does not end our inquiry because the court’s grant of the motion may have
been supported by the rule providing for permissive intervention of a party.

       Rule 24.02 of the Tennessee Rules of Civil Procedure provides,

       Upon timely application anyone may be permitted to intervene in an action: (1)
       when a statute confers a conditional right to intervene; or (2) when an

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       applicant’s claim or defense and the main action have a question of law or fact
       in common. In exercising discretion the court shall consider whether or not
       the intervention will unduly delay or prejudice the adjudication of the rights
       of the original parties.

In custody and parenting decisions, the court is tasked with considering a variety of factors.
Here, the court’s decision was solely based upon Mother’s failure to safeguard the Children’s
need for stability by placing them in a new school district. The court noted that its
designation of Father as primary residential parent allowed the Children to remain in the
current school district pursuant to the Board’s policy, thereby fulfilling the need for stability.
We believe that the court’s consideration of the Board’s policy prejudiced the adjudication
of the rights of the Parents and the best interest of the Children because the need for stability
was but one of the factors that should have been considered by the court before revising the
permanent parenting plan. Accordingly, we conclude that the Board’s intervention was also
not supported by Rule 24.02 of the Tennessee Rules of Civil Procedure.

                                               B.

       Mother asserts that the trial court erred in modifying the custody arrangement without
holding an evidentiary hearing. She argues that the court failed to consider whether an
unforeseeable material change in circumstance necessitated a change in custody. Father
responds that any issues raised by Mother are waived on appeal because she did not request
an evidentiary hearing or raise any objections to the manner in which the court reached its
decision. He alternatively responds that the court implicitly made the required findings and
was not required to list each factor and analyze how each factor impacted its decision. He
notes that the change at issue, Mother’s unilateral decision to enroll the Children in a new
school, was a sufficient change in circumstance to warrant modification of custody.

        We decline to hold that this issue is waived. The trial court was statutorily required
to determine whether a material change in circumstances necessitated a change in custody
before even considering whether to alter the prior custody arrangement. Tenn. Code Ann.
§ 36-6-101(a)(2)(B). The court was also required to make a finding “as to the reason and the
facts” supporting its decision to change the custody arrangement. Tenn. Code Ann. § 36-6-
101(a)(2)(B). Indeed, “[a] custody decision, once final, is res judicata upon the facts in
existence or reasonably foreseeable when the decision was made.” Scofield v. Scofield, No.
M2006-00350-COA-R3-CV, 2007 WL 624351, at *3 (Tenn. Ct. App. Feb. 28, 2007) (citing
Young v. Smith, 246 S.W.2d 93, 95 (Tenn. 1952)). However, because the circumstances of
children and parents change, our courts are “empowered to alter custody arrangements when
intervening circumstances require modifications.” Scofield, 2007 WL 624351, at *2 (citing
Tenn. Code Ann. § 36-6-101(a)(1)).

                                               -5-
        Modification of an existing custody or visitation arrangement involves a two-step
analysis. Tenn. Code Ann. § 36-6-101(a)(2)(B), (C). First, the parent attempting to modify
the existing custody or visitation arrangement must prove that a material change in
circumstances has occurred. Tenn. Code Ann. § 36-6-101(a)(2)(B), (C). “If a material
change in circumstances has occurred, it must then be determined whether the modification
is in the child’s best interest[].” Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002)
(footnote omitted).

        The determination of whether a “material change in circumstance” occurred requires
a different standard depending upon whether a parent is seeking to modify custody (i.e.,
change the primary residential parent) or modify the residential parenting schedule. Tenn.
Code Ann. § 36-6-101(a)(2)(B), (c). The Tennessee Code establishes a lower threshold for
modification of a residential parenting schedule. Scofield, 2007 WL 624351, at *3. Here,
the trial court modified custody by designating Father as the primary residential parent.
Thus, the higher threshold applies. Pippin v. Pippin, 277 S.W.3d 398, 406-07 (Tenn. Ct.
App. 2008). The Code provides, in pertinent part,

       (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.

              (i) In each contested case, the court shall make such a finding as
              to the reason and the facts that constitute the basis for the
              custody determination.

Tenn. Code Ann. § 36-6-101(a)(2)(B). “There are no hard and fast rules for when there has
been a change of circumstances sufficient to justify a change in custody.” Cosner v. Cosner,
No. E2007-02031-COA-R3-CV, 2008 WL 3892024, at *4 (Tenn. Ct. App. Aug.22, 2008)
(citing Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003)). However, to determine
whether a material change in circumstances has occurred, the court should consider whether:

       (1) the change occurred after the entry of the order sought to be modified; (2)
       the changed circumstances were not reasonably anticipated when the
       underlying decree was entered; and (3) the change is one that affects the
       child’s well-being in a meaningful way.

                                              -6-
Cosner, 2008 WL 3892024, at *4 (citing Kendrick, 90 S.W.3d at 570).

       Here, the trial court failed to specifically find or identify any changed circumstances
that warranted a change in custody. Father asserts that Mother’s failure to adhere to the
parenting plan by unilaterally enrolling the Children in a new school operated as a material
change in circumstance supporting the court’s decision. We disagree. The Board’s policy
regarding enrollment was readily available to the Parents. Additionally, it was entirely
foreseeable and reasonably anticipated that the Parents would live in different school zones,
thereby necessitating a decision regarding which school the Children should attend in
accordance with relevant policies regarding enrollment. We agree that Mother should have
discussed the issue with Father before enrolling the Children in the new school. However,
we decline to hold that her failure to speak with Father before enrolling the Children in
school pursuant to the established enrollment policy was an unforeseen material change in
circumstance that necessitated a change in custody. With these considerations in mind, we
conclude that Father failed to establish that a material change in circumstances had occurred.
Having made such a determination, we need not address whether the change in custody was
in the best interest of the Children. Accordingly, we hold that the trial court erred in
modifying the custody arrangement by designating Father as the primary residential parent.

                                    V. CONCLUSION

      The judgment of the trial court is reversed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed equally to the appellees,
Mark Anthony Garrett and the Cumberland County Board of Education.


                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




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