                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 February 23, 2006 Session

             TAMMY KAY JOINER v. JAMES ALDEN GRIFFITH

                  Appeal from the Juvenile Court for Montgomery County
                          No. 98-235   Wayne C. Shelton, Judge


                   No. M2004-02601-COA-R3-CV - Filed on July 31, 2006


This bitter change of custody proceeding originated with Mother’s filing of a Petition to Stay
Visitation based upon concerns that the parties’ youngest child had been potentially exposed to
inappropriate sexual behavior while in Father’s custody. Father counterclaimed for a change in
custody based upon Mother’s attempt to interfere with Father’s visitation. Following a bench trial,
the trial court found Mother’s accusations unfounded, awarded Father joint custody, and decreased
Father's child support. Mother asserts that the trial court erred by finding the circumstances had
changed sufficiently to modify custody or child support. Since the outcome of the custody issue was
dependent on the trial court’s assessment of the credibility of the witnesses, we affirm the trial
court’s conclusion that there was a material change of circumstances. We, however, have concluded
the trial court erred in setting child support, and remand that issue for further proceedings.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part,
                            Vacated in Part, and Remanded

FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN , J.,
joined. PATRICIA J. COTTRELL, J., filed a concurring opinion.

Michael K. Williamson and Philip M. Mize, Clarksville, Tennessee, for the appellant, Tammy K.
Joiner.

Rodger N. Bowman and Gregory D. Smith, Clarksville, Tennessee, for the appellee, James Alden
Griffith.

                                           OPINION

        James Alden Griffith (Father) and Tammy Kay Joiner (Mother) lived together from 1997
until 2001 during which relationship they had two children. In March of 2001, Father moved out
due to a domestic dispute with Mother. Shortly thereafter, Mother filed a Complaint for Child
Support and Other Relief. Mother was designated as the primary residential parent. A visitation
schedule was established and Father was ordered to pay $4,000 per month in child support. Both
parties appealed and this Court ruled on that appeal in 2004.1 While that appeal was pending, the
present issues arose, which were litigated in the trial court and are now before this Court.

        The present dispute has its origins in May of 2003, when Mother first observed odd behavior
in the parties’ then four year old child, S.N.G. Mother claims the child was “humping” furniture,
grabbing at Mother inappropriately, and engaging in angry outbursts. She spoke with Father
regarding this behavior and her concern about S.N.G. sleeping in the same room as her half-brother
and his friends during Father’s visitation.2 Father advised Mother he would be more observant when
the children were in his home.

         Mother took S.N.G. to her physician in May 2003 because she had been exposed to “Fifth’s
Disease,” a common childhood ailment. While there, Mother asked the physician about vaginal
irritation the child had been experiencing. The physician diagnosed the vaginal irritation as “H
Influenza,” which could be contracted in numerous ways; some innocent, others not so innocent.

        After seeing the physician in May, Mother took no additional action until she initiated a call
in August, three months after learning of the H Influenza diagnosis, to schedule an appointment for
S.N.G. with a therapist. The child’s first appointment with the therapist, Nancy Conley, was on
September 8, 2003. Over the course of several appointments, Ms. Conley became concerned due
to statements by S.N.G. The statement that concerned her the most was that a friend of S.N.G’s half
brother exposed his “peanuts” in her presence.3 Based upon this information, on October 20, 2003,
Ms. Conley notified the Department of Children’s Services of what she believed may constitute
potential sexual abuse.

         Several days later, Mother requested Ms. Conley write a letter to Mother’s attorney
summarizing Ms. Conley’s assessment. Upon receipt of the letter, Mother’s attorney drafted an
affidavit for Ms. Conley to sign which was to be used in support of a petition to stay Father’s
visitation. The affidavit was mailed to Ms. Conley, she signed it and returned it to Mother’s
attorney. On October 30, 2003, Mother’s attorney filed the affidavit as an exhibit attached to
Mother’s Petition to Stay Visitation. Father promptly filed a vigorous objection, contending
Mother’s petition was part of a series of unfounded attempts to interfere with Father’s visitation,
along with a Petition for Change of Custody.

         1
           Father appealed, taking issue with visitation, child support, arrearages, and the court’s failure to make findings
of fact regarding the alleged domestic assault. Mother appealed claiming the trial court erred by rejecting most of her
claim for attorney fees. This Court affirmed the trial court’s determinations concerning child support and visitation,
modified the offset against the arrearage owed for child support, and reversed and remanded Mother’s request for
attorney fees. See Joiner v. Griffith, No. M2003-00536-COA-R3-JV, 2004 WL 1334519, at *1 (Tenn. Ct. App. June 14,
2004), perm. app. denied (Tenn. Oct. 11, 2004).

         2
           Father had custody of two children from a prior marriage, C.G. and K.G. These children often had other
friends spending the night.

         3
         Nancy Conley testified that at some point in her counseling sessions with S.N.G. she confirmed that “peanuts”
were boys’ testicles.

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        An emergency hearing was held within ten days of the filing of Mother’s petition. While the
parties were waiting to be heard, Ms. Conley advised Mother and her attorney that the affidavit
contained erroneous statements, which she discovered as she reviewed it in preparation for the
hearing. No one advised Father, Father’s counsel, or the trial court, of the errors in Ms. Conley’s
affidavit at that hearing. Moreover, neither Mother nor her counsel ever advised the trial court of
the errors in Ms. Conley’s affidavit.4 It was not until Ms. Conley disclosed the errors during the five-
day trial in July of 2004 that the court became aware of the errors in the affidavit.

        A five-day bench trial was conducted in July 2004 on the competing petitions, at the
conclusion of which the trial court judge found Mother’s conduct constituted a material change in
circumstances sufficient to modify custody. The trial court also found it in the best interest of the
children that the parents share joint custody. Because custody was changed, which increased
Father’s parenting time significantly, the trial court found it appropriate to reduce Father’s child
support obligation to $860 per month. The trial court additionally denied Father’s request to assess
his attorney fees and costs against Mother.

        Mother appeals both rulings, contending there was no material change of circumstance, thus,
no justification to change custody, and without a change of custody there was no basis to modify
child support. Father appeals the denial of his request to assess attorney fees and costs against
Mother.

                                               STANDARD OF REVIEW

        This court reviews custody and visitation decisions de novo with a presumption that the trial
court's findings of fact are correct unless the evidence preponderates otherwise. Kendrick v.
Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002); Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn.1990).
Moreover, appellate courts are reluctant to second-guess a trial court’s determination regarding
custody and visitation. Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999). This is because of the
broad discretion given trial courts in matters of child custody, visitation and related issues. Id.; see
also Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001). Custody decisions often hinge
on subtle factors, such as the parents' demeanor and credibility during the proceedings. Adelsperger
v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). Accordingly, trial courts have broad
discretion to fashion custody and visitation arrangements that best suit the unique circumstances of
each case. Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999).

         Furthermore, it is not the role of the appellate courts to "tweak [parenting plans] . . . in the
hopes of achieving a more reasonable result than the trial court." Eldridge v. Eldridge, 42 S.W.3d
82, 88 (Tenn. 2001). This is particularly true when no error is evident from the record. Id. Thus,
a trial court's decision regarding custody or visitation will 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." Id.


        4
            Father and his counsel were not aware until it was disclosed in a deposition shortly prior to trial.

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        We review the record de novo with a presumption that the court’s factual findings are correct,
absent a showing that the evidence preponderates to the contrary. Tenn. R. App. P. 13(d); see
Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000); Farrar v. Farrar, 553 S.W.2d 741, 743
(Tenn. 1977). It is also well settled that the burden rests upon petitioner to prove a significant
variance between the obligation applicable to his alleged current income and the original child
support obligation. Turner v. Turner, 919 S.W.2d 340, 345 (Tenn. Ct. App. 1995). Broad discretion
is afforded the trial court in its child support determinations. That discretion is bounded on all sides
by the child support guidelines and should not be disturbed on appeal unless this Court finds in its
de novo review that the evidence preponderates against that finding. See Butler v. Butler, 680
S.W.2d 467 (Tenn. Ct. App. 1984).

                                    MODIFICATION OF CUSTODY

        Mother contends the evidence preponderates against the trial court’s finding of a material
change of circumstances that warranted a modification of custody. Finding the evidence more than
sufficient to support the trial court’s findings, we affirm the modification of custody.

        Notwithstanding the importance of stability and continuity, intervening changes in a child's
circumstances may require modifying an existing custody and visitation arrangement. Tenn. Code
Ann. § 36-6-101(a)(1) empowers the courts to change custody “as the exigencies of the case may
require,” and courts will change custody when the party seeking to change custody proves (1) that
the child's circumstances have materially changed in a way that could not have been reasonably
foreseen at the time of the original custody decision, see Smith v. Haase, 521 S.W.2d 49, 50
(Tenn.1975); McDaniel v. McDaniel, 743 S.W.2d 167, 169 (Tenn.Ct. App. 1987), and (2) that the
child's best interests will be served by changing the existing custody arrangement. See Solima v.
Solima, 7 S.W.3d 30, 35 (Tenn.Ct.App. 1998).

        In child custody and visitation cases, the welfare and best interests of the child are paramount
concerns. Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The determination of
the child's best interest must turn on the particular facts of each case. Taylor v. Taylor, 849 S.W.2d
319, 326 (Tenn. 1993); In re Parsons, 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995). This Court
established general guidelines for making the determination of the child's best interest in Bah v. Bah,
668 S.W.2d 663 (Tenn. Ct. App. 1983). As the Court stated:

       We adopt what we believe is a common sense approach to custody, one which we
       will call the doctrine of “comparative fitness.” The paramount concern in child
       custody cases is the welfare and best interest of the child. Mollish v. Mollish, 494
       S.W.2d 145, 151 (Tenn. Ct .App. 1972). There are literally thousands of things that
       must be taken into consideration in the lives of young children, Smith v. Smith, 188
       Tenn. 430, 437, 220 S.W.2d 627, 630 (1949), and these factors must be reviewed on
       a comparative approach:




                                                  -4-
               Fitness for custodial responsibilities is largely a comparative matter.
               No human being is deemed perfect, hence no human can be deemed
               a perfectly fit custodian. Necessarily, therefore, the courts must
               determine which of two or more available custodians is more or less
               fit than others. Edwards v. Edwards, 501 S.W.2d 283, 290-91 (Tenn.
               Ct. App. 1973).

Bah, 668 S.W.2d at 666. The trial court should also consider factors set forth in Tenn. Code Ann.
§ 36-6-106, which include, without limitation, the love, affection and emotional ties existing
between the parents and child; the disposition of the parents to provide the child with food, clothing,
medical care, education and other necessary care; the degree to which a parent has been the primary
caregiver; the importance of continuity in the child's life and the length of time the child has lived
in a stable, satisfactory environment; and the mental and physical health of the parents. Other
significant statutory factors are evidence of physical or emotional abuse to the child, to the other
parent or to any other person; 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 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 parent-child
relationship between the child and the other parent, consistent with the best interest of the child.

        The guardian ad litem and the social worker from the Mid Cumberland Community Services
Agency both recommend the parents have equal time and joint custody with the children. The trial
court found that Mother had demonstrated emotional instability and open hostility toward Father.
Based on these findings, the trial court concluded it was in the children's best interests to change the
current custody arrangement by giving Father joint custody with Mother. As the trial court
explained:

       Visitation was suspended between James Alden Griffith and [S.N.G.] and then
       allowed only with supervision based on the allegation of [Mother] and the Affidavit
       filed in connection with that Petition. Said Affidavit was signed by Nancy Conley
       of the Rape and Sexual Abuse Center (RASAC). The Court finds that Nancy Conley,
       during this hearing, disavowed said Affidavit and the Court finds that Nancy Conley
       had disavowed said Affidavit soon after it was filed. The Court was not made aware
       of Nancy Conley’s disavowing of the Affidavit until the hearing in this matter. This
       Court took action interfering with [Father’s] visitation with his children based on the
       Petition and Affidavit. The Affidavit and the Petition was not prepared by the current
       attorney for [Mother], Carrie Gasaway.

       ***
       The filing of a questionable Affidavit by [Mother] with the Court and the filing of a
       letter to the Governor of the State of Tennessee with the questionable Affidavit
       attached, after the allegations contained in the Affidavit had been disavowed by the
       Affiant, causes this Court to question the stability of the Petitioner. [Father’s]


                                                  -5-
       unwavering efforts to clear the allegations and the implications made towards him
       demonstrate a solid stability. [Father] submitted to days of testing and required the
       older sibling to [S.N.G.] to submit to any and all testing and questioning to address
       the allegations. The test of stability weighs heavily towards [Father].

       ***
       The Court in making its finding takes into consideration recommendations of the
       Guardian Ad Litem and the recommendation of Mid Cumberland Community
       Services Agency which both recommended that custody be on a 50/50 basis.

        The presumption of correctness applicable to a trial court's findings of fact pursuant to Tenn.
R. App. P. 13(d) applies in child custody cases. Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.
1984); Whitaker, 957 S.W.2d at 838. Based upon the foregoing, we find the evidence does not
preponderate against the trial court’s finding of a material change in circumstances warranting a
modification of custody and the award of joint custody to Father and Mother. Accordingly, we
affirm on this issue.

                                          CHILD SUPPORT

        The modification of custody and significant change in the visitation schedule necessitate a
modification of child support. Based upon the change in custody, the trial court reduced Father’s
child support obligation from $4,000 to $846 per month. Mother contends the trial court used an
improper methodology to set child support. Finding Mother to be correct on this issue, we must
vacate and remand for further proceedings on the issue of child support.

        Father owns and operates a construction company, and his income fluctuates significantly
year to year. To accommodate for the significant fluctuations in Father’s income, the trial court
employed a five-year average to determine Father’s gross income. The trial court made a finding that
Father’s average income over the five-year period was $78,352 per year and determined Father’s
child support obligation pursuant to the child support guidelines would be $1,276 per month. The
trial court, however, did not set support at that amount. Instead, it elected to take into consideration
Mother’s income. The court determined Mother’s income was $1,750 per month and if she were
to pay child support pursuant to the guidelines, her obligation would be $416 per month.

       After determining the amount of child support each parent would have been obligated to pay
pursuant to the guidelines, the trial court deducted the amount Mother would pay from the amount
Father would pay. Based upon this methodology, the trial court set Father’s child support obligation
at $860 per month.

         Significant changes to the child support guidelines went into effect on January 18, 2005 with
the implementation of the “income shares” model. The trial in this case was conducted in July of
2004. Thus, the new “income shares” model is inapplicable to this case, and we are constrained, as
is the trial court, to apply the pre-existing child support guidelines then in effect.


                                                  -6-
        Pursuant to the Guidelines in effect in 2004, “the parent with whom the child(ren) live
primarily will be referred to as the obligee and the parent with whom the child(ren) do not primarily
live will be referred to as the obligor,” Tenn. Comp. R. & Regs. 1240-2-4-.03(1) (2003), and child
support was to be based on a flat percentage of the obligor's net income. Tenn. Comp. R. & Regs.
1240-2-4-.03(2) (2003). Thus, in 2004, an award of child support to an obligee parent was to be
calculated based solely upon the net income of the obligor parent, and the obligee parent's income
should not have been considered in the calculation. Gallaher v. Elam, 104 S.W.3d 455, 462
(Tenn.2003); Gray, 78 S.W.3d at 884. More significant to the matter on appeal, a comparative
analysis of the parties' incomes was not appropriate prior to the adoption of the “income shares”
model in 2005. Gray, 78 S.W.3d at 884.

        The Permanent Parenting Plan entered by the trial court in 2004 designated Mother as “the
custodian of the child(ren) solely for purposes of all other state and federal statutes which require
a designation or determination of custody.” Accordingly, even though the parents shared joint
custody, she was entitled to receive child support according to the 2004 guidelines because she was
designated as the primary residential parent. See Gray, 78 S.W.3d at 884 (holding only the primary
residential parent may be awarded child support). Here, the trial court awarded the parents
essentially equal parenting time. In situations where overnight time is divided more equally between
the parents, the courts must make a case-by-case determination as to the appropriate amount of
support. Tenn. Comp. R. & Regs. 1240-2-4-.02 (2003). That determination, however, may not
include a comparative analysis of the parents’ income. See Tenn. Comp. R. & Regs. 1240-2-4-.03(2)
(2003).

       Finding the trial court employed an improper methodology to set child support, we vacate
the award of child support and remand the issue to the trial court.

                                   ATTORNEY FEES AND COSTS

        We last discuss the issue of whether the trial court should have adjudged discretionary costs
and Father’s attorney fees against Mother. The trial court is given wide discretion in awarding
attorney fees and costs, Garfinkle v. Garfinkle, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996), and this
court will not interfere in the exercise of that discretion absent a clear showing of an abuse of
discretion. See Salisbury v. Salisbury, 657 S.W.2d 761, 770 (Tenn. Ct. App. 1983). Father has failed
to carry his burden on this issue. We therefore affirm the trial court’s decision concerning court
costs and attorney fees.




                                                -7-
                                         IN CONCLUSION

      The judgment of the trial court is affirmed in part and vacated in part. This matter is
remanded for further proceedings consistent with this opinion. Costs of appeal are assessed against
Tammy Kay Joiner.



                                                      ___________________________________
                                                      FRANK G. CLEMENT, JR., JUDGE




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