                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               November 7, 2011 Session

             JONATHAN PAUL GRAY v. CASEY RENEA JEANS

                  Appeal from the Circuit Court for Hamblen County
                      No. 05CV238       John K. Wilson, Judge


             No. E2011-00692-COA-R3-CV-FILED-JANUARY 25, 2012




Casey Renea Jeans (“Mother”) and Jonathan Paul Gray (“Father”) are the parents of two
minor children, Tyler and Alexia (“the Children”, collectively). Mother and Father never
were married. As part of the Permanent Parenting Plan (“the PPP”), Mother and Father
shared custody of the Children, with Father designated as the primary residential parent.
Mother filed a motion in the Circuit Court for Hamblen County (“the Trial Court”) to modify
the PPP. Specifically, Mother sought to become the primary residential parent of the
Children. Mother also requested that she then be allowed to relocate with the Children.
After a trial, the Trial Court declined either to make Mother the primary residential parent
of the Children or to permit her to relocate with the Children. Mother appeals. We affirm.


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


D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P . F RANKS,
P.J., and C HARLES D . S USANO, J R., J., joined.


Casey Renea Jeans, pro se appellant.

C. Dwaine Evans, Morristown, Tennessee, for the appellee, Jonathan Paul Gray.
                                          OPINION

                                         Background

              In August 2005, Father filed a petition in the Trial Court to approve an agreed
parenting plan, the PPP. The Trial Court granted Father’s petition and approved the PPP.
The PPP designated Father as the primary residential parent of the Children. Among other
provisions, the PPP stated that the parents would rotate care of the Children every two weeks
and neither parent would pay child support.

              In April 2010, Mother filed her Petition for Contempt and to Modify Permanent
Parenting Plan. Mother requested that she be designated the primary residential parent.
Mother stated that in 2009, the Hamblen County General Sessions Court granted an Order
of Protection to Tyler against Father that prohibited Father from using physical discipline
against the Children. Among other allegations, Mother asserted that Father failed to provide
the Children with appropriate medical care. Mother also filed a Notice of Intent to Relocate.
Mother stated that she was to be married and her fiancé’s home and employment were near
Rutherford County. Mother noted that Orders of Protection against Father were set to expire
in May and July of 2010 and that she could be in danger from Father.

                Trial in this case was held in February 2011. First to testify was Mother.
Mother lived in Russellville at the time of trial. Mother and Father never were married.
Mother alleged that Father forced her to accept the 2005 PPP on his terms. Mother lived
with Father from 2007 until May 2009 when she filed for an Order of Protection. Mother
testified that Father called her a number of vulgar names over the course of their relationship
and did so in front of the Children. Mother stated that Father struck Tyler with a belt and left
bruises. Mother also stated that a reason for her filing for an Order of Protection was that
Father grabbed Tyler by his throat and slung him onto a bed.

               Mother claimed that, between 2007 and 2009, she, among other things,
prepared meals for the Children and did their laundry. Mother testified that she had not
worked outside the home after the Children were born and had last worked as a substitute
teacher. Mother suffered vertebrae damage as a result of an injury during her stint as an
athletic trainer. Mother received monthly disability payments.

               Since 2009, Mother and Father shared custody of the Children on the basis of
the original 2005 PPP. Mother’s home had two bedrooms in which the Children each slept
alone while Mother slept in the living room. Mother stated that she was engaged to be
married.



                                              -2-
              Mother stated that Father engaged in abusive behavior towards her. Mother
alleged that Father made a sexually suggestive comment about Mother to Alexia. Mother
stated that sometimes when Father has the Children, they are at the home of Lori Camp, a
friend of Father’s. Mother testified that in the fall of 2010, she picked Tyler up and found
that he had been wounded by a pellet gun. In October of 2010, Mother found out that,
contrary to her wishes, Father had warts removed from Tyler’s hand. Mother also testified
that, sometime after the Order of Protection was entered, Alexia was returned to her with a
high fever. Mother asked the Trial Court to make her the primary caretaker of the Children.

              On cross-examination, Mother acknowledged that, in the two year period in
which she lived with Father, she did not call the police over Father’s alleged instances of
abuse towards her. Mother also acknowledged that in 2010-2011, Tyler had earned all As
and Bs, save for one C, in school. Mother also recognized that Alexia received no
unsatisfactory marks in school. Regarding another disagreement with Father about medical
decisions concerning Tyler’s apparent seizures, Mother acknowledged that one MRI on Tyler
yielded a negative result. Mother acknowledged spending time at a shopping area and having
meals with Father in 2010. Mother stated that her current fiancé, Scottie Wilde, was the
fourth man she had planned possibly to marry, though she stated that he was the only one she
was “serious” about.

               Christy Dalton (“Dalton”), a friend of Mother’s, testified. Dalton supervised
visits of the Children with Father based on the Order of Protection of 2009. Dalton testified
regarding an incident where Tyler allegedly was left without adult supervision near a road
while Father and Lori Camp went out. Dalton testified that while she had not seen the
Children play with air guns, she had collected air pellets in her yard.

              Cheryl Jeans (“Jeans”), Mother’s mother, testified. Jeans stated that she saw
Father smack Tyler in the mouth when Tyler was around five or six. Jeans also testified that
Father called Mother vulgar names in front of the Children. Shanna Matthews, a close friend
of Mother’s, also testified that Father used foul language.

               Wanda Gray (“Gray”), Father’s mother, testified. Gray testified that her
husband, Father, the Children, and two of her other grandchildren live in her home. Gray
stated that Father spent time with the Children and assisted them with their schoolwork.
Gray testified that she had not seen Father do anything that concerned her about his ability
to take care of the Children. Gray acknowledged that the mobile home was crowded with
seven inhabitants.

              Father testified. Father stated that he worked at Overman, USA, an
organization that makes furniture for IKEA. Father denied having grabbed Tyler by his

                                             -3-
throat. Father further denied ever having forced Mother to have sex with him. Father
acknowledged he once “back-handed” Mother after she hit him in the nose.

               Regarding the Children, Father denied ever leaving them without adult
supervision at Lori Camp’s residence. Father also denied cursing the Children. Father stated
that the Children had done well in Hamblen County schools and that it was his opinion that
their relocation would be detrimental to the Children.

              Father testified regarding his treatment of the Children:

       Q.     Casey testified about an incident I think back in October of 2009 that
              she said an [sic] Ali had a temperature when you brought her back.

       A.     Yes.

       Q.     Had Ali been sick during the time you had her?

       A.     She was running a temperature that morning of 101 and I give her some
              Tylenol but prior to that week she had a cold and I treated it with over-
              the-counter medicine.

       Q.     But had you monitored her temperature during the time that you had her
              there for those days she had a cold?

       A.     Yes.

       Q.     And did it ever go above 101?

       A.     No.

                                            ***

       Q.     Has there ever been an occasion that you have inappropriately punished
              or spanked, used corporal punishment on your children?

       A.     I discipline my children, yes. But not abuse them, or kick them, or slap
              in the face, or punch them or hit them. No I don’t.

       Q.     Have you hit them so hard by spanking them that you left marks on
              them?

                                             -4-
       A.     No.

       Q.     Do you discipline them in any way that different than the way that you
              and Casey when you all lived together?

       A.     No.

                Regarding medical treatment, and specifically Tyler’s seizures, Father further
testified, in part:

       Q.     And you and Casey have had some disagreements over medical issues
              for the children, right?

       A.     Yes.

       Q.     And under the Parenting Plan you all have joint decision making, so she
              has as much say so about medical as you do and you have as much as
              she does. You understand that?

       A.     Yes.

       Q.     And on the issues of the seizures, just tell us what your concerns were
              I guess when she first told you that Tyler had seizures.

       A.     Well she said he was having seizures and had took him to Dr. Dealey
              here in Morristown. And I think he had referred her ... referred Tyler
              on to Dr. Miller in ... Dr. Chris Miller in Knoxville. And they done an
              EEG and an MRI.

       Q.     Okay ...

       A.     The MRI came back negative. The EEG did come back abnormal.

       Q.     Okay ...

       A.     When she received the kids back she told me that Sunday that there was
              an appointment for Tyler to see Dr. Miller concerning treatment and
              how to go about it. And which I was unable to attend, cause twenty-
              four hours I mean, I just can’t call into work and say I can’t be at work
              because it wasn’t an emergency. So I wasn’t able to be at the doctor’s

                                             -5-
              appointment. So I did not approve of the medication by just what I read
              in the report so I wanted to speak to the Doctor personally and I got ...
              November the 16 th I got to.

       Q.     Okay ...

       A.     And I asked for a second opinion and I asked for a second EEG to be
              done. They did do a second EEG and it came back abnormal and we
              started him on medication.

       Q.     I mean, did you just want to be involved in the decision making and be
              able to talk to the doctor directly yourself?

       A.     Yes.

       Q.     And once you were able to do that were you okay with the treatment
              that was being provided to him?

       A.     Not until I got the second opinion. I wanted to ...

       Q.     I mean, after you were able to get the second opinion and talked to the
              doctors?

       A.     Yes after the second opinions and both were the exact same I called her
              that evening and talked to her after I left Dr. Mahmood ... well actually
              texted her and she called me and we discussed it and we agreed to start
              Tyler on Keppra. That’s the medication that Dr. Miller had prescribed.

       Q.     Does he take that medication when he’s with you?

       A.     Yes two times a day.

              On cross-examination, Father acknowledged answering the phone as “Jon
Gray’s whore house,” but not in front of the Children. Father admitted that he has cursed
around the Children. Father acknowledged having left the Children at Lori Camp’s residence
at least once. Father denied that Lori Camp, who is married, was his girlfriend. Father
denied putting marks on the Children or threatening Mother.

              James Richard Camp, IV (“Camp”) testified as a rebuttal witness. Camp was
separated from his wife, Lori Camp. Camp testified that Father once told him that Father had

                                             -6-
engaged in anal sex with Mother against her will. On cross-examination, Camp
acknowledged that he believed Father had an affair with Lori Camp.

              Mother testified as a rebuttal witnesses. Mother played audio tapes that
purported to reveal Father cursing on the telephone near the Children in 2010. Another tape
was played purporting to reveal Father making an alleged sexual statement about Mother.

              After the trial, the Trial Court entered an order stating, in part:

       1.     The parties shall not curse, use profanity or call the other parent names
              in the presence of the children.

       2.     Father must show respect for Mother and he is prohibited from making
              any negative or derogatory comments about Mother on the telephone
              or otherwise.

       3.     The parent who has the children shall relay to the other parent
              appropriate information concerning medical treatments of the children
              and the parties shall mutually agree upon the course of treatment for a
              child, except in the case of an emergency; and in the case of an
              emergency the course of medical treatment for a child shall be made by
              that parent who has the child.

       4.     The children shall remain in the Hamblen County, Tennessee School
              System.

       5.     Except as specifically modified herein, the Permanent Parenting Plan
              entered by this Court on August 31, 2005 shall remain in full force and
              effect.

       6.     Except for the specific relief granted herein, Mother’s Petition for
              Contempt and to Modify Permanent Parenting Plan is dismissed.

       7.     The costs of this cause are taxed one-half to Father and one-half to
              Mother, for which execution may issue if necessary.

Thus, apart from adding certain restrictions, the Trial Court kept the PPP as it existed and
denied Mother’s requested relief. Mother appeals.




                                              -7-
                                          Discussion

               Although Mother raises numerous issues on appeal, we perceive her appeal to
be based on two fundamental issues, which we restate as follows: 1) whether the Trial Court
erred in failing to find that a material change of circumstances existed which justified a
change of the PPP; and, 2) whether the Trial Court erred in failing to permit Mother to
relocate with the Children.

               Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710
(Tenn.2001).

              We first address whether the Trial Court erred in failing to find that a material
change of circumstances existed which justified a change of the PPP. Existing custody
arrangements are favored because children thrive in stable environments. Hoalcraft v.
Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). A custody decision, once made and
implemented, is considered res judicata upon the facts in existence or those which were
reasonably foreseeable when the decision was made. Steen v. Steen, 61 S.W.3d 324, 327
(Tenn. Ct. App. 2001). However, our Supreme Court has held that a trial court may modify
an award of child custody “when both a material change of circumstances has occurred and
a change of custody is in the child's best interests.” Kendrick v. Shoemake, 90 S.W.3d 566,
568 (Tenn. 2002). According to the Kendrick Court:

       As explained in Blair [v. Badenhope, 77 S.W.3d 137 (Tenn. 2002) ], the
       “threshold issue” is whether a material change in circumstances has occurred
       after the initial custody determination. Id. 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) (2010).



                                              -8-
               The Kendrick Court went on to explain that if a material change in
circumstances has been proven, “it must then be determined whether the modification is in
the child's best interests ... according to the factors enumerated in Tennessee Code Annotated
section 36–6–106.” Kendrick, 90 S.W.3d at 570 (footnote omitted). It necessarily follows
that if no material change in circumstances has been proven, the trial court “is not required
to make a best interests determination and must deny the request for a change of custody.”
Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999).

              Mother requested that she be designated the primary caretaker of the Children.
Mother, in her brief, argues as evidence of a material change of circumstances the following:
“medical neglect, living arrangement of Father, abuse, stability, use of profanity by Father
around children, violations of the Permanent Parenting Plan, and Mother’s engagement.”
After a careful review of the record1 , including all of the evidence presented at trial, we
cannot conclude that the Trial Court erred in failing to find that a material change of
circumstances existed which justified a change of the PPP.

               With respect to medical neglect, the record reveals rather reasonable
differences of opinion between Mother and Father as to medical care. Father’s living
arrangement with his parents, while apparently somewhat cramped, does not constitute a
material change in circumstances. The audio tapes purporting to demonstrate Father’s
vulgarity were inconclusive at best. With regard to Mother’s engagement, we observe that
Mother testified that she either has been engaged or considered marriage with four
individuals, including the most recent. Respectfully, we do not find Mother’s engagement
to constitute a material change of circumstance.

               Mother alleges that Father has abused her and the Children. Abuse, emotional
or physical, would indeed affect the Children’s well-being and be a significant basis for
finding a material change of circumstances. Father denied any abuse, however, and his
parents testified to having seen no abuse. Faced with conflicting accounts of abuse, we are
left with the judgment of the Trial Court, which, while denying Mother’s requested relief,
made no specific finding as to abuse. The Trial Court’s implicit finding, however, was a
clear rejection of Mother’s abuse contentions.

              We normally do not second guess a trial court’s credibility determinations as
to a witness who testified before the trial court. As our Supreme Court has instructed:


        1
         The record contains depositions of Mother and Father. While these depositions were referenced
at times at trial, the depositions as a whole never were used by the parties at trial in a manner as permitted
by Tenn. R. Civ. P. 32.01. We did not consider these depositions in reaching our judgment. We did,
however, review the depositions, and we note that they would not have altered our Opinion.

                                                     -9-
       When credibility and weight to be given testimony are involved, considerable
       deference must be afforded to the trial court when the trial judge had the
       opportunity to observe the witnesses’ demeanor and to hear in-court testimony.
       Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997) (quoting
       Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)). Because trial
       courts are able to observe the witnesses, assess their demeanor, and evaluate
       other indicators of credibility, an assessment of credibility will not be
       overturned on appeal absent clear and convincing evidence to the contrary.
       Wells v. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn.
2011). The evidence in the record does not preponderate against any of the the Trial Court’s
findings, including its implicit finding. As we affirm the Trial Court’s finding and decision
that no material change in circumstances has occurred, we forego a best interest analysis.

               We next address whether the Trial Court erred in failing to permit Mother to
relocate with the Children to the Middle Tennessee area. As the parents in this case spend
substantially equal time with the Children per the PPP, the applicable statute is Tenn. Code
Ann. § 36-6-108 (c)2 , which provides:

       (c) If the parents are actually spending substantially equal intervals of time
       with the child and the relocating parent seeks to move with the child, the other
       parent may, within thirty (30) days of receipt of notice, file a petition in
       opposition to removal of the child. No presumption in favor of or against the
       request to relocate with the child shall arise. The court shall determine
       whether or not to permit relocation of the child based upon the best interests
       of the child. The court shall consider all relevant factors including the
       following where applicable:

       (1) The extent to which visitation rights have been allowed and exercised;

       (2) Whether the primary residential parent, once out of the jurisdiction, is
       likely to comply with any new visitation arrangement;

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

       (4) The disposition of the parents to provide the child with food, clothing,

       2
           The parties do not dispute this standard.

                                                       -10-
       medical care, education and other necessary care and the degree to which a
       parent has been the primary caregiver;

       (5) The importance of continuity in the child's life and the length of time the
       child has lived in a stable, satisfactory environment;

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

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

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

       (9)(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;

       (10) Evidence of physical or emotional abuse to the child, to the other parent
       or to any other person; and

       (11) 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.

Tenn. Code Ann. § 36-6-108 (c) (2010)

               Based on the record before us, we are unable to conclude that the Trial Court
erred in denying Mother’s request to relocate the Children to Rutherford County. The
evidence shows that the Children are well-established in their community and school in
Hamblen County. Although Mother testified that she intends to marry her fiancé, as
discussed above, we note that she testified to having had several tentative engagements to
marry in the past, and did not marry. Further, in keeping with the statutory factors and
mindful of the Children’s best interests, we afford much weight to stability and continuity
in the Children’s lives, including the Trial Court’s decision now affirmed by us that Father
remain the primary residential parent. The Trial Court did not err in denying Mother’s
request to relocate the Children. We affirm the judgment of the Trial Court.




                                             -11-
                                       Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Casey Renea Jeans, and her surety, if any.

                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




                                            -12-
