                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   October 10, 2005 Session

                                         IN RE: D.A.J.

                   Appeal from the Juvenile Court for Montgomery County
                          No. 58-133   L. Raymond Grimes, Judge



                   No. M2004-02421-COA-R3-JV - Filed December 9, 2005




Romina Jessica Clifton (“Mother”) and Dwight Cain Jemison (“Father”) are the parents of a six year
old daughter. In 2004, Father filed a petition to modify custody of the child by seeking to be
designated the child’s primary residential parent. Following a hearing, the Juvenile Court concluded
that there had been a material change in circumstances and that it was in the child’s best interest to
designate Father the primary residential parent. The Juvenile Court also set forth Mother’s co-
parenting schedule as well as her monthly child support payments. Mother appeals challenging the
propriety of the Juvenile Court’s decision to designate Father the primary residential parent as well
as the amount of her child support. We affirm the designation of Father as the primary residential
parent but modify the amount of Mother’s monthly child support.


                    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                    Juvenile Court Affirmed as Modified; Case Remanded


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
CHARLES D. SUSANO , JR., J., joined.


Thomas R. Meeks and Gregory D. Smith, Clarksville, Tennessee, for the Appellant Romina Jessica
Clifton.


Stacy Turner Olson, Clarksville, Tennessee, for the Appellee Dwight Cain Jemison.
                                                   OPINION

                                                  Background

                This is a custody and child support dispute between Mother and Father which
involves their six year old daughter who was born out of wedlock in September of 1999. After the
child was born, Mother was the primary residential parent inasmuch as there was no order of custody
to the contrary.1 In March of 2004, Father petitioned the Juvenile Court seeking to be designated the
child’s primary residential parent. A hearing on Father’s petition was conducted in August of 2004,
with Father being the first witness. Father testified that he recently became certified in refrigeration
and is looking for employment in that field. Father is a veteran of the armed forces and his VA
counselor currently is assisting him in finding employment. Father obtained the certification from
Tennessee Technical College and intends on continuing his education at that institution.

                After the parties’ daughter was born, Father and Mother shared time with their
daughter even though no formal parenting plan existed. Father maintained a calendar on which he
kept track of when he exercised co-parenting time with the child. Father claimed he was caring for
the child more than fifty percent of the time, at least until he filed the petition seeking to be
designated the primary residential parent, at which time “everything changed.” Father is a single
parent and has custody of another daughter who is twelve years old. Father’s older daughter has a
good relationship with the younger daughter. Father was ordered to pay child support in 2003 and
is current on those payments. According to Father, for at least the past year Mother sent the parties’
daughter to daycare even though Mother was unemployed and, therefore, at home.

                 Father described an incident where Mother became upset and told Father she was
coming to get the child. Mother became violent when she arrived and caused a scene to the point
where Father called the police. Father stated that Mother even threatened his fiancee, Debra
McClure. Father’s opinion is that it would be in the child’s best interest for him to be the primary
residential parent. Father stated that he and the child do a lot of “educational things” such as going
to the library, etc., which would be better than the child simply “sitting at a day care … she needs
to do something other than being at day care.” Father explained that the parties’ child has asthma
which is exacerbated from being around Mother, who smokes. Father and Mother exchange physical
custody of their child at a store. As Father does not pick up or drop off the child at Mother’s house
he cannot state whether Mother smokes inside of her house when the child is present. However,
Father has seen Mother smoking in her car when they were exchanging physical custody of the child.
Father described another incident where the child had been in the care of one of Mother’s friends for
three days, Mother had not told Father where the child was, and Mother’s whereabout were unknown
to Father.




        1
           Tenn. Code Ann. § 36-2-303 provides that “[a]bsent an order of custody to the contrary, custody of a child
born out of wedlock is with the mother.”

                                                        -2-
                On cross-examination, Father stated that his current income is derived primarily from
VA disability benefits. Father became disabled after being injured in Saudi Arabia years ago. Father
intends on finding employment in the refrigeration field which will allow him to have a flexible
schedule so he can take care of his children properly. Father added that he can do work as an
independent contractor if necessary because he already owns the tools required to perform
refrigeration work. Father currently lives with his fiancee and there are a total of four children living
in the house, two boys and two girls, ranging from eight to fourteen years of age. Father’s fiancee,
Debra McClure (“McClure”), is a manager at Convergy’s and typically works from 7:45 a.m. to 4:45
p.m.

                McClure was called as a witness on Father’s behalf. McClure acknowledged that she
is living with Father and that they are engaged to be married. McClure verified the accuracy of
Father’s calendar showing when Father exercised co-parenting time with the parties’ daughter.
McClure testified that she has three children, all of whom consider Mother’s and Fathers’s daughter
a sibling. The parties’ daughter attends all of the McClure’s family functions. McClure testified that
Father is very active with both of his children and is an excellent father. McClure is aware of Mother
working a total of five to seven weeks in the past two years.

                The final witness was Mother. Mother testified that she currently is not employed
because she recently had another child and has not been released by her doctor to return to work.
With regard to Mother’s work history, she stated that she worked for Frigidaire on two different
occasions. Her most recent employment at Frigidaire was in November of 2003, but her pregnancy
caused her to miss too much work and she described this employment as “brief”. Prior to her most
recent employment at Frigidaire, Mother worked three or four months as a nursing assistant. Prior
to the nursing assistant job, Mother worked at Frigidaire for four and one-half years.

                Mother acknowledged that she sent the child to day care even when she was not
working. Mother claimed she did this because her daughter benefitted from being in day care as
opposed to sitting at home with Mother. While Mother admitted she smoked cigarettes, she denied
smoking in her house or around the child.

                According to Mother, she got into a “fight” at a night club called the Dynamic 6. As
a result of this fight, Mother was taken to the emergency room and eventually pressed charges
against the other person in the fight. Mother admitted there was another incident where she again
claims to have been assaulted. Mother denied that the parties’ child was present during either of the
assaults. Mother also admitted that McClure has called the police when she and McClure got into
“altercations.”

                 On cross-examination, Mother acknowledged that she lives in government assisted
housing and when she is not working she does not have to pay any rent. Mother stated it has been
“quite some time” since she has had to pay rent. Although Mother claimed that she could not work
during her most recent pregnancy, she was well enough to go to Virginia for a week to visit with the
father of her latest child. Mother’s only employment in the past three years was the “brief” time she


                                                  -3-
worked at Frigidaire and the nursing assistant job. However, Mother had the parties’ child attending
daycare throughout these three years. Mother’s current income consists of government assistance
and the child support she receives from Father.

                 Mother was questioned about a police report that was made when someone allegedly
tried to back over Mother with a truck. Mother reviewed the report and even though she
acknowledged “something happened because my name is on this police report, … I do not remember
this incident at all.” Mother went on to describe an incident which occurred in November of 2003,
at which time she claims to have been the victim of a domestic assault. Mother allegedly was
assaulted by her own sister and her (i.e. Mother’s) boyfriend. Although this alleged assault happened
in Mother’s apartment at 2:15 a.m., Mother nevertheless claimed the child was with a babysitter.

              Following the hearing, the Juvenile Court announced its decision from the bench.
According to the Juvenile Court:

                      The proof before the Court is that during the last thirteen
               months the child was with the father for a greater period than the
               mother. In fact, … the father has had the child significantly more
               days than the mother.

                       The evidence is that the mother lives in subsidized housing
               with no rent having been paid, that she doesn’t work or perhaps
               works sparingly. That she’s … been involved with several
               altercations of violence. At least two fights. One time … someone
               was trying to back over her. A domestic assault at 2:15 in the
               morning when the child is somewhere at day care. Another instance
               where the mother and her sister… [were] involved in an altercation.

                       All these instances continue to concern the Court. Although
               the child is not with her, sooner or later this type of violent behavior,
               the child is going to be with her.… [W]hen the child returned from
               summer vacation, the mother failed to call the child back after the
               child called her on her return and didn’t get back to her for several
               days.

                       On the other hand, the father is getting an education, lives in
               a stable household. Although he lives with Ms. McClure in an
               unmarried relationship, the testimony is that the relationship is stable.
               That her children are involved in several extracurricular activities
               including AAU sports and travel teams. The Court believes this is a
               good environment for the minor child.




                                                 -4-
                      The Court does believe that there’s a significant change of
               circumstances… [and that] it’s the child’s best interest to … appoint
               [Father] as the primary custodian.

                After concluding that a material change in circumstances had occurred and that it was
in the child’s best interest to designate Father the primary residential parent, the Juvenile Court set
forth Mother’s co-parenting schedule. Father’s child support obligation ceased and the parties were
instructed to determine Mother’s child support obligation and to make an appropriate adjustment in
light of this Court’s opinion in Casteel v. Casteel, No. 03A01-9703-CV-00073, 1997 WL 414401
(Tenn. Ct. App. July 24, 1997), perm. app. denied Mar. 2, 1998. The parties later submitted a
parenting plan to the Juvenile Court which, among other things, established Mother’s monthly child
support obligation at $141.48. The Juvenile Court then entered a final judgment setting forth its
findings from the hearing and incorporating the terms of the parenting plan.

               Mother appeals raising two issues, which we quote:

               I.      The Trial Court erred in not following the mandate of Tenn.
                       Code Ann.§ 36-6-404(b) in determining the custody of [the
                       child].

               II.     Child support should be set according to the orders of the
                       Trial Court, which included a Casteel adjustment which was
                       not credited to [Mother].

                                             Discussion

                The factual findings of the Juvenile Court are accorded a presumption of correctness,
and we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

               We first address Mother’s claim that the Juvenile Court erred by not following “the
mandate of Tenn. Code Ann. § 36-6-404(b) in determining the custody of [the child].” (emphasis
added). Tenn. Code Ann.§ 36-6-404(b) lists sixteen factors which must be considered by a trial
court when implementing a parenting plan. More specifically, the portion of the statute immediately
preceding the sixteen factors states:

                      Any permanent parenting plan shall include a residential
               schedule as defined in § 36-6-402(3). The court shall make
               residential provisions for each child, consistent with the child's
               developmental level and the family's social and economic


                                                 -5-
                  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. If the
                  limitations of § 36-6-406 are not dispositive of the child's residential
                  schedule, the court shall consider the following factors ….2

                The most glaring problem with Mother’s first issue is her argument that the Juvenile
Court erred by not detailing its findings with regard to each of the sixteen factors when arriving at
its “custody” decision. The statute’s plain language is such that these factors are to be considered
when developing a parenting plan, as opposed to making a custody determination. Except for the
amount of her monthly child support obligation, Mother does not argue that her co-parenting time
or any other aspect of the parenting plan is in error if Father was properly designated the primary
residential parent.

                As noted previously, once the parties’ child was born Mother had custody because
there was no order of custody to the contrary designating Father or anyone else as the primary
residential parent. See Tenn. Code Ann. § 36-2-303. What is unclear from the record, however, is
whether an order of custody designating Mother as the primary residential parent was entered
sometime after the child was born. We know that Father was ordered to pay child support in 2003,
but that order is not in the record which prevents our being able to determine whether that order
fairly can be characterized as an “order of custody.” If there was no initial order of custody, then
Father needed only to prove that designating him as the primary residential parent was in the child’s
best interest applying the comparative fitness test, and he was not required first to prove that there
also had been a material change in circumstances. See Williams v. Barnes-Mason, No. E2002-
01442-COA-R3-CV, 2003 WL 2010755 (Tenn. Ct. App. Apr. 30, 2003), no appl. perm. appeal filed,
where we concluded:

                  Tenn. Code Ann. § 36-2-303 provides that the custody of a child
                  born out of wedlock shall be with the mother unless there is an Order
                  otherwise. This Court has held that if a custody dispute arises
                  between parents over a child born out of wedlock the comparative
                  fitness test is the proper standard to be applied, where there has been
                  no previous custody decree.

Williams, 2003 WL 2010755, at *2 (citing Durant v. Howard, No. E2000-02072-COA-R3-CV, 2001
WL 1103500 (Tenn. Ct. App. Sept. 20, 2001), no appl. perm. appeal filed).3


         2
           Tenn. Code Ann. § 36-6-406 sets forth when restrictions on co-parenting time in a temporary or permanent
parenting plan are appropriate based on specified conduct of a parent, such as when a parent abuses a child, etc.

         3
          W e note that in In re B.A.L. and A.E.L, No. W 2004-00826-COA-R3-JV, 2004 W L 3008810 (Tenn. Ct. App.
Dec. 23, 2004), no appl. perm appeal filed, the W estern Section of this Court seems to suggest that a mother’s having
custody by virtue of Tenn. Code Ann. § 36-2-303 is sufficient to require that a material change in circumstances first be
                                                                                                          (continued...)

                                                          -6-
               In short, the record does not contain an “order of custody,” and in the absence of such
an order Father was required only to establish by a preponderance of the evidence that designating
him as the primary residential parent after applying the comparative fitness test was in the child’s
best interest. However, it is clear, for whatever reason, that the Juvenile Court and the parties
proceeded on the assumption that Father was required to satisfy the more stringent material change
in circumstances standard. It also is clear that if the Juvenile Court correctly concluded that Father
met the more stringent standard, then whether or not the less stringent standard actually applied
becomes moot. For this reason alone, we now examine whether the Juvenile Court correctly
concluded that Father had proven the existence of a material change of circumstance and, if so,
whether designating him as the primary residential parent was in the child’s best interest.

                 According to our Supreme Court in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn.
2002):

                 The “threshold issue” is whether a material change in circumstances
                 has occurred after the initial custody determination. [Blair v.
                 Badenhope, 77 S.W.3d 137] at 150. While “[t]here 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,” the following
                 factors have formed a sound basis for determining whether a material
                 change in circumstances has occurred: the change “has occurred after
                 the entry of the order sought to be modified,” the change “is not one
                 that was known or reasonably anticipated when the order was
                 entered,” and the change “is one that affects the child’s well-being in
                 a meaningful way.” Id. (citations omitted).

Kendrick, 90 S.W.3d at 570. See also Tenn Code Ann. § 36-6-101(a)(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.…”).

                If a material change in circumstances has been proven, when undertaking a best
interests analysis Tenn. Code Ann. § 36-6-106 (a) requires a trial court to consider the following:

                         (1) The love, affection and emotional ties existing between
                 the parents and child;

                         (2) The disposition of the parents to provide the child with
                 food, clothing, medical care, education and other necessary care and
                 the degree to which a parent has been the primary caregiver;


         3
          (...continued)
proven in any future change of custody proceedings.

                                                      -7-
        (3) The importance of continuity in the child’s life and the
length of time the child has lived in a stable, satisfactory
environment; provided, that where there is a finding, under § 36-6-
106(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or
child sexual abuse, as defined in § 37-1-602, by one (1) parent, and
that a non-perpetrating parent has relocated in order to flee the
perpetrating parent, that such relocation shall not weigh against an
award of custody;

       (4) The stability of the family unit of the parents;

       (5) The mental and physical health of the parents;

       (6) The home, school and community record of the child;

       (7) (A)The reasonable preference of the child if twelve (12)
       years of age or older;

       (B) The court may hear the preference of a younger child
       upon request. The preferences of older children should
       normally be given greater weight than those of younger
       children;

        (8) Evidence of physical or emotional abuse to the child, to
the other parent or to any other person; provided, that where there are
allegations that one (1) parent has committed child abuse, as defined
in §39-15-401 or § 39-15-402, or child sexual abuse, as defined in
§ 37-1-602, against a family member, the court shall consider all
evidence relevant to the physical and emotional safety of the child,
and determine, by a clear preponderance of the evidence, whether
such abuse has occurred. The court shall include in its decision a
written finding of all evidence, and all findings of facts connected
thereto. In addition, the court shall, where appropriate, refer any
issues of abuse to the juvenile court for further proceedings;

        (9) 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; and

        (10) Each parent’s past and potential for future performance
of parenting responsibilities, including the willingness and ability of
each of the parents to facilitate and encourage a close and continuing



                                 -8-
               parent-child relationship between the child and the other parent,
               consistent with the best interest of the child.

Tenn. Code Ann. § 36-6-106(a).

               Even if we give Mother the benefit of the doubt and proceed as if she argues that the
Juvenile Court erred when it failed to detail its findings with regard to the factors set forth in Tenn.
Code Ann. § 36-6-106(a), as opposed to Tenn. Code Ann. § 36-6-404(b), her argument still fails.
Recently, in Craig v. Craig, No. E2003-02479-COA-R3-CV, 2004 WL 1906448 (Tenn. Ct. App.
Aug. 26, 2004), no appl. perm. appeal filed, we rejected a similar argument. After noting that trial
courts should be as detailed as possible, we nevertheless stated:

                       Husband claims the Trial Court failed to compare the relative
               fitness of the parties since most of the relevant factors contained in
               Tenn. Code Ann. § 36- 6-106(a) favor Husband. In its memorandum
               opinion, the Trial Court did not list each of the applicable factors and
               explain how that particular factor impacted its overall decision.
               While this statute does require a trial court to consider all of the listed
               factors which are applicable, it does not require a trial court, when
               issuing a memorandum opinion or final judgment, to list every
               applicable factor along with its conclusion as to how that particular
               factor impacted the overall custody determination.

Craig, 2004 WL 1906448, at * 7 (footnotes omitted).

               We again emphasize that a trial court should be as detailed as possible when
rendering a decision in a custody case. Nevertheless, we believe the Juvenile Court’s findings in the
present case are sufficiently detailed for us to conclude that the evidence does not preponderate
against the Juvenile Court’s findings that there was a material change in circumstances and that
designating Father as the primary residential parent was in the child’s best interest.

              The second issue surrounds the amount of Mother’s monthly child support payment
which was set at $141.48. We review child support decisions for abuse of discretion. State ex rel.
Vaughn v. Kaatrude, 21 S.W.3d 244 (Tenn. Ct. App. 2000). However, a trial court’s discretion is
limited because such “discretion must be exercised within the strictures of the Child Support
Guidelines.” Berryhill v. Rhodes, 21 S.W.3d 188, 193 (Tenn. 2000); see also Jones v. Jones, 930
S.W.2d 541, 545 (Tenn. 1996).

               The parties agree that the Juvenile Court determined Mother’s child support should
be based on the federal minimum wage since Mother was not working, and there should be a Casteel
adjustment because Mother was exercising more than standard visitation. The parties further agree
that Mother’s annual child support obligation before any adjustment should be $1,992.00, which
equals $166.00 per month or $5.46 per day. The disagreement arises from the amount of the


                                                  -9-
adjustment to be made for Mother’s increased visitation. Father argues that Mother’s annual co-
parenting time is 146 days, while Mother argues her co-parenting time totals 150 days. While it is
difficult to determine Mother’s exact co-parenting time because the parties alternate various holidays
each year, we believe Mother’s claim that her co-parenting time totals 150 days is the most accurate.
Mother’s total co-parenting time of 150 days per year is 70 days more than the presumptive 80 days
under the Guidelines. The amount of daily child support of $5.46 for these seventy days equals
$382.20, which should be deducted from the total annual support of $1,992.00. This reduces
Mother’s child support obligation to $1609.80 annually, or $134.15 per month. Accordingly, we
modify the Juvenile Court’s judgment to reflect Mother’s monthly child support obligation to be
$134.15. As modified, the Juvenile Court’s judgment is otherwise affirmed.

                                            Conclusion

               The Judgment of the Juvenile Court is affirmed as modified and this cause is
remanded to the Juvenile Court for collection of the costs below. Exercising our discretion, costs
on appeal are assessed against the Appellant, Romina Jessica Clifton, and her surety.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




                                                -10-
