                                                                                                06/04/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 February 21, 2018 Session

                                     IN RE AVERY B.1

                   Appeal from the Juvenile Court for Tipton County
                     No. 08-JV-10382 William A. Peeler, Judge
                       ___________________________________

                             No. W2016-02542-COA-R3-JV
                         ___________________________________

This appeal arises from a modification of a permanent parenting plan established in 2010
in which Mother was designated as the primary residential parent. In December of 2012,
Father filed a petition to modify the parenting plan alleging that Mother’s mental health
impeded her ability to properly care for their child. He also alleged that Mother alienated
the child from Father due to numerous false allegations that Father abused the child,
which resulted in temporary but substantial decreases in his parenting time. Although no
evidence was produced indicating that Father abused the child, Mother continued to
accuse Father of abuse and to take the child for repeated evaluations and physical exams.
Following a three-day trial, the trial court designated Father as the primary residential
parent, established a temporary parenting plan, and ordered Mother to attend counseling
until the court was satisfied with her mental health so that it could issue a permanent
parenting plan. Mother appealed that order; however, we dismissed the appeal for lack of
subject matter jurisdiction because the order appealed from was not a final judgment. On
remand, following an assessment of Mother’s compliance with the court-ordered
intensive therapy, the trial court entered a final judgment that included a permanent
parenting plan from which Mother appeals. Mother contends the trial court erred in
holding, inter alia, that there was a substantial and material change in circumstances
requiring a modification of the parties’ permanent parenting plan. She also contends the
court erred in holding that it was in the child’s best interest to change the primary
residential parent to Father due, in part, to the fact the court failed to consider factors
added to Tenn. Code Ann. § 36-6-106 pursuant to the 2014 amendment that became law
on July 1, 2014. Finding no error, we affirm.

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



1
  This Court has a policy of protecting the identity of children in dependent and neglect cases by
initializing the last names of the parties.
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

Rachel L. Lambert, Arlington, Tennessee, for the appellant, Mary K. B.

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellee,
Charles C.

                                       OPINION

        Most of the relevant facts and procedural history of this case were previously
identified in our opinion in the first appeal, In re Avery B., No. W2014-01974-COA-R3-
JV, 2015 WL 4055057, at *1-2 (Tenn. Ct. App. July 2, 2015), which read as follows:

      The parties in this case are unmarried parents to the minor child at issue,
      Avery B. (“Avery”). On December 22, 2008, approximately a month after
      Avery’s birth, Mother filed a petition for child support and medical
      expenses in the Juvenile Court of Tipton County. Father responded on
      December 23, 2008, by filing a motion for genetic testing. Genetic testing
      later confirmed that Father was the biological parent of Avery, and initially,
      the parties were able to reach an agreement as to parenting issues. On
      March 26, 2010, the trial court approved an agreed permanent parenting
      plan that designated Mother as the primary residential parent. Father was
      awarded specified parenting time under the plan and was also ordered to
      pay $1,533.00 in monthly child support. Unfortunately, whatever peace was
      achieved through this parenting plan did not last.

      On December 18, 2012, Father filed a petition to modify the parties’
      parenting plan. His petition averred that Mother’s mental capacity impeded
      her ability to properly care for Avery and also alleged that Mother had
      engaged in a pattern of behavior that alienated Avery from Father. In
      particular, Father claimed that Mother had made numerous false allegations
      that Father had sexually abused Avery. Father asserted that these
      allegations had resulted in a substantial decrease in his parenting time with
      Avery due, in part, to investigations of Father by the Department of
      Children’s Services (“DCS”) at the instigation of Mother. On January 8,
      2013, Father filed a petition for criminal contempt against Mother. Father’s
      contempt petition was predicated on Mother’s alleged failure to honor
      Father’s holiday parenting time.

      On March 28, 2013, the trial court entered a consent order adjudicating
      Father’s petitions. Although the trial court did not alter its designation of
      Mother as Avery’s primary residential parent, it did approve an agreed
                                          -2-
parenting plan that afforded Father increased parenting time. Father’s
petition for criminal contempt was dismissed without prejudice. As before,
the resolution of the litigation brought only temporary peace between the
parties.

On December 16, 2013, Mother filed a pleading styled “Emergency
Petition for Injunction and Petition to Modify the Previous Order of the
Court to Suspend Father’s Parenting Time and For Father to Receive
Supervised Parenting Time.” The petition alleged that Avery had made
recent disclosures of sexual abuse committed by Father and expressed
general concern for Avery’s welfare. The petition requested that the trial
court immediately suspend Father’s parenting time or enter an order
imposing conditions on his parenting time for Avery’s care and protection.
The petition also prayed that Father’s parenting schedule be modified after
a hearing, consistent with Avery’s best interest.

Father responded to Mother’s emergency petition on December 19, 2013.
In his response, Father submitted that Mother had a history of making false
allegations against him regarding his conduct towards Avery. He further
stated that DCS had never found any evidence that Avery had been sexually
abused. Contemporaneous with the filing of his response, Father filed his
“Emergency Petition to Modify Parenting Plan, for Criminal Contempt, for
Injunctive Relief, and for Supervised Parenting Time.” The petition
recounted Mother’s alleged history of making false allegations against
Father and averred that Mother’s behavior reflected a pattern of mental
instability. The petition stated that Mother should be required to seek long-
term therapy and requested that her parenting time with Avery be
supervised. Father contended that it was in Avery’s best interest to
designate him as the primary residential parent. Moreover, he alleged that
Mother should be held in criminal contempt for willfully refusing to allow
Father to exercise his parenting time.

A hearing on the emergency aspects to the parties’ petitions was held on
December 19, 2013. On January 21, 2014, the trial court entered an order
finding that there was insufficient evidence to sustain Mother’s emergency
requests for relief. As a result, the trial court declined to suspend Father’s
parenting time or otherwise require that it be supervised. Other matters,
however, were reserved for future adjudication.

A hearing on Father’s petition to modify occurred over three separate dates
in May and June 2014. The case was taken under advisement following
trial. On September 4, 2014, the parties returned to court at which time the
trial judge made an oral ruling that Father should be designated as the
                                   -3-
primary residential parent for Avery. A written order memorializing this
ruling was subsequently entered on September 9, 2014. In pertinent part,
the trial court’s order stated as follows:

      2. A substantial and material change in circumstances exist
      such that it is in the best interest of the minor child, [Avery],
      to be in the care of Father, and Father shall be designated as
      the primary residential parent. The exchange of the minor
      child shall occur immediately.

      3. Mother shall be awarded supervised parenting time.
      Counsel for the parties shall attempt to agree on an
      appropriate supervisor and schedule, but should they be
      unable, this Honorable Court shall determine the appropriate
      supervisor and schedule for Mother. It is the goal of this
      Court to award Mother standard parenting time after this
      Honorable Court is satisfied that Mother’s long term therapy
      has appropriately addressed Mother’s psychological
      functioning.

      4. Mother shall immediately engage in intensive long term
      therapy to address those concerns of this Honorable Court
      regarding Mother’s conduct and psychological functioning.
      The parties shall address this Court in ninety (90) days to
      assess Mother’s compliance with this Court’s requirement
      that Mother receive intensive therapy. Counsel for the parties
      shall contact the Clerk of Court to schedule said hearing.

      5. Mother shall be enjoined from having anyone, including
      but not limited to, law enforcement, doctor, or therapist,
      evaluate the minor child without an Order of this Honorable
      Court.

      6. Father shall select a therapist/counselor for Avery.

      7. Father’s ongoing child support obligation is terminated
      immediately. This Honorable Court shall address child
      support when Mother is able to exercise unsupervised
      parenting time.

On September 15, 2014, Mother filed a notice indicating that she was
appealing the trial court’s September 9 order. Nearly two months later, on
November 4, 2014, the trial court entered an order setting a supervised
                                   -4-
       parenting schedule for Mother. The trial court’s November 4 order stated
       that “[t]his schedule shall be reviewed in ninety (90) days from the Court’s
       ruling on September 4, 2014, to assess Mother’s compliance with this
       Court’s order requiring Mother to receive intensive therapy and Counsel for
       the parties shall contact the Clerk of Court to schedule said hearing.”
       Father’s petition for contempt was later “denied” by an order entered on
       January 7, 2015.

       In the first appeal, we determined that the order appealed from was not a final
order; therefore, the appeal was dismissed for lack of subject matter jurisdiction. Id. at *4.

       On remand, following an assessment of Mother’s compliance with the court-
ordered intensive therapy, the trial court entered an order, similar to the September 4,
2014 order, which scheduled another review in 90 days. Following several more review
hearings, most of which focused on whether Mother had sufficiently complied with the
requisite therapy, the trial court entered an order on November 8, 2016, that expanded
Mother’s parenting time. Believing the order constituted a final judgment, Mother filed
another notice of appeal on December 8, 2016. Upon an initial review of the record, we
determined that the November 8, 2016 order was not a final judgment; however, instead
of dismissing the appeal, we entered an order that afforded the parties additional time to
obtain a final judgment. On June 20, 2017, the trial court entered an Order Expanding
Mother’s Parenting Time, which we determined constituted a final appealable judgment.
As a consequence, we allowed the appeal to proceed.

                                           ISSUES

       Mother presents three issues that we have rephrased to read as follows:

   1. Whether the trial court erred in holding that there was a substantial and material
      change in circumstances requiring a modification of the parties’ Permanent
      Parenting Plan.

   2. Whether the trial court erred by failing to consider best interest factors added to
      Tenn. Code Ann. § 36-6-106 pursuant to the 2014 amendment that became law on
      July 1, 2014.

   3. Whether the trial court erred in holding that it was in the child’s best interest to
      change the designation of primary residential parent from Mother to Father.

      For his part, Father asks that Mother be required to pay the attorney’s fees and
expenses he incurred in this appeal.


                                            -5-
                                        ANALYSIS

                        I. MATERIAL CHANGE IN CIRCUMSTANCES

       Mother challenges the finding that Father proved a material change in
circumstances on two grounds. She contends the most recent petition, filed in December
of 2013, should have been dismissed because it is based on the same allegations as the
previous petition that was filed in December of 2012, Mother filing reports that Father
sexually abused Avery, which was resolved pursuant to the March 28, 2013 order. She
also contends that none of the allegations made by Father affected Avery in any
meaningful way and that the alleged “negative” or “meaningful” effect upon Avery
amounted to pure speculation and conjecture.

       Father responds by noting that the December 2013 petition identifies numerous
events and acts by Mother that occurred subsequent to the disposition of the December
2012 petition; therefore, his petition is not barred by the doctrine of res judicata even
though the allegations pertain to her repetitive reporting of unfounded claims of sexual
abuse. Father also contends that the evidence preponderates in favor of the trial court’s
findings that the changes have affected Avery’s well-being in a meaningful and harmful
way.

       In an action to change the primary residential parent, the party seeking the change
must prove that a material change in circumstances has occurred and that it is in the best
interest of the child to modify the current custody arrangement. Tenn. Code Ann.
§ 36-6-101(a)(2)(B); Boyer v. Heimermann, 238 S.W.3d 249, 259-60 (Tenn. Ct. App.
2007).

        A petitioner seeking to change the primary residential parent is not required to
show “a substantial risk of harm” to the child; however, the petitioner must prove a
material change of circumstance by a preponderance of the evidence. Tenn. Code Ann.
§ 36-6-101(a)(2)(B). “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.” Id.

      If the court finds a material change in circumstances, the trial court must then
determine whether a modification of the parenting plan is in the child’s best interest.
Armbrister v. Armbrister, 414 S.W.3d 685, 697-98 (Tenn. 2013).

       Here, the trial court found Mother’s actions in continuing to allege Father sexually
abused Avery constituted a material change in circumstances. On June 14, 2010, the
parties executed their first permanent parenting plan. Less than three months after this
plan was executed, Mother took Avery, then nineteen months old, to the emergency room
at LeBonheur Children’s Hospital (“LeBonheur”). LeBonheur’s records reveal that
                                           -6-
Mother was concerned about whether Father was “touching” the child. The staff at
LeBonheur found no evidence of sexual abuse and did not report this incident to DCS.

       Mother did not make another allegation until April of 2012 when Mother took the
child to DCS, alleging Father was being sexually inappropriate with the child. Mother
subsequently took the child to LeBonheur for an exam but the child became physically
violent and refused to allow the nurses to examine her. Based on Mother’s allegations
that Father was sexually inappropriate with the child, DCS filed a petition to adjudicate
dependency and neglect on April 20, 2012, in the Juvenile Court of Shelby County.

       Father was first made aware of any allegations of sexual abuse in May 2012 when
the Child Advocacy Center contacted Father. DCS conducted an investigation based on
Mother’s allegations, and the Child Advocacy Center conducted a forensic exam of the
child. During the investigation, Father’s parenting time was supervised at the Exchange
Club. While at the Exchange Club, Avery told Father, which statement was heard by a
supervisor, that “Mommy told me you hurt me and you are very, very mean.”
Furthermore, at another visit, the Exchange Club records reflected that the “Child
appeared to have and/or expressed inappropriate knowledge of the parental conflicts
regarding referral issue for visitation. Avery commented [to Father] several times that
‘Mommy said you are mean.’”

       After concluding their investigation and reviewing a court-ordered mental and
custodial evaluation of both parents and the child, prepared by Dr. Wyatt Nichols, DCS
requested that the Juvenile Court of Shelby County dismiss the Petition. The Juvenile
Court agreed and on November 14, 2012, dismissed the petition.

        Father resumed unsupervised parenting time after the dismissal of the petition.
According to Father, Mother interfered with Father’s parenting time on multiple
occasions which prompted Father to file a petition to modify the parenting plan. Father
also filed a petition for contempt due to Mother’s alleged continued interference. The
parties proceeded to mediation in March 2013 and entered into a consent order and a new
permanent parenting plan, which increased Father’s parenting time. The order was
entered on March 28, 2013.

        Although Mother contends the allegations in the petition at issue in this appeal
pertain to events that occurred prior to the entry of the March 28, 2013 order, therefore,
they cannot constitute a material change of circumstances, we have determined that the
trial court’s findings pertain to incidents that occurred thereafter, as the following reveals.

       On July 8, 2013, Mother took the child to Pediatrics East and made allegations that
Father was abusing the child. The medical records reveal the following:

       The symptoms [vaginal discomfort] began [two] days ago. The symptoms
                                       -7-
       are reported as being mild. Mother is concerned that father has been
       abusing [Avery], child denies inappropriate touching at her father’s last
       week. [The child] had been at the beach with [Father] and his family, lots of
       swimming.

The pediatrician examined the child, found no signs of abuse, and elected to not report
the allegations to DCS.

        On July 10, 2013, two days after Mother took the child to Pediatrics East, the child
had a counseling session at the University of Memphis Department of Psychology during
which Mother reported to the counselor that when the child returned home from vacation
with Father and Step-Mother, the child was “playing” with her genitals so Mother took
her to the pediatrician. The records do not reflect that Mother informed the counselor that
the child had denied any abuse at the pediatrician’s office.

        At a separate counseling session on August 21, 2013, Mother informed the
counselor that Father was getting undressed in front of Avery and using the toilet in front
of Avery. According to the counseling records, “no additional reporting was deemed
necessary by the therapist or supervisor” because the child “did not report this to
therapist.” Mother was informed to discuss these actions with Father. However, Mother
failed to do so.

       In September 2013, Avery confided in Step-Mother that Mother told her to lie to
“Ms. Rachel,” who is Avery’s counselor, Rachel Tillery, M.S. Father subsequently
contacted Ms. Tillery to inquire about the counseling, and on October 1, 2013, Father and
Step-Mother met with Ms. Tillery to discuss this matter and Avery’s counseling.

      Avery’s last counseling session occurred on October 23, 2013. However, on
November 26, 2013, Mother contacted Ms. Tillery again and alleged that Father was
molesting Avery. Ms. Tillery did not report these allegations to DCS. The following day,
November 27, 2013, Mother called the University of Memphis Department of
Psychology and alleged Father was molesting Avery. Ms. Tillery was not available to
speak with Mother but the supervising psychologist on hand, Dr. James Whelan, spoke
with Mother. Because the allegations were made by Mother and not the child, Dr.
Whelan did not contact DCS.

       Five days later, on December 1, 2013, Mother took Avery to the emergency room
at LeBonheur at approximately 9:00 p.m. Mother again reported Father was sexually
abusing Avery. Avery was examined by the staff at LeBonheur and, again, there were no
signs of abuse found. While at LeBonheur, two uniformed police officers from the
Memphis Police Department Sex Crimes Unit arrived and questioned Avery regarding
the alleged abuse. DCS was subsequently contacted and an investigation was initiated.
Avery was then questioned by Ms. Vickie Watts, a case worker for DCS.
                                         -8-
       On December 13, 2013, Mother sought an ex parte suspension of Father’s
parenting time from the trial court, which refused her request. That same day, Mother
took Avery to Pediatrics East alleging Father was touching Avery inappropriately. The
child was again examined. The records reflect that the vaginal area was “normal.” Mother
then unilaterally withheld parenting time from Father on the weekend of December 13,
2013 through December 16, 2013, despite the request of Father’s counsel to abide by the
parenting plan.

       On December 16, 2013, Mother filed an emergency petition for an injunction and
to modify the parties’ permanent parenting plan. In her petition, Mother alleged that
Father was sexually abusing Avery and asked the trial court to suspend Father’s parenting
time.

       After learning of these allegations, Father filed an Emergency Petition to Modify
Parenting Plan, for Criminal Contempt, for Injunctive Relief, and for Supervised
Parenting Time on December 19, 2013. On the same day, the trial court held a hearing on
Mother’s emergency petition. Ms. Watts, the DCS case worker, testified that Mother had
informed her that Avery made allegations of sexual abuse against Father. Furthermore,
Ms. Watts testified that when she met with Mother and Avery, Mother mainly discussed
her issues with Father rather than the allegations of sexual abuse. Ms. Watts also testified
that the previous case worker indicated that there were concerns with Mother’s
psychological evaluation, which was performed by Dr. Nichols, and that it had been
recommended for Mother to receive ongoing counseling.

       In Mother’s emergency petition, she stated that Ms. Watts told Mother that she did
not have to release Avery to Father for his parenting time. However, at the December
19th hearing, Ms. Watts testified to the contrary. Ms. Watts stated that she did not tell
Mother that she did not have to release Avery to Father. On January 9, 2013, the trial
court entered an order denying Mother’s petition.

       A bench trial was then held on Father’s petition on three non-consecutive days in
May and June 2014. At trial, the history mentioned above was revealed. The trial also
included evidence of a recording in which Avery states, inter alia, that Mother “wanted
me to tell that you’re touching my privates, so I did tell [Ms. Rachel].” There was also
expert testimony introduced at trial that the child was experiencing extreme tantrums
during counseling and visits to the doctor and that these could be the result of Mother’s
insistence that the child is being abused. Furthermore, Mother’s expert, Dr. Jolene Bailey,
conducted psychological testing and an evaluation of Mother’s parenting abilities which
revealed Mother had an elevated score in the areas of hypochondriasis and hysteria.

       Father’s expert, Dr. John V. Ciocca, opined that these scores suggest that Mother
will be overly preoccupied with the issue of physical illness and distress. Furthermore,
                                          -9-
the hysteria elevation will likely serve to intensify Mother’s reaction to potential physical
claims made by the child. Dr. Ciocca also testified that these elevated scores tie into the
number of times Mother has taken Avery to the doctor. Lastly, Dr. Ciocca testified that
Mother’s continuation in making false allegations is damaging to Avery’s emotional
well-being and her relationship with Father.

       At the conclusion of proof, the trial court took the issue under advisement. On
September 9, 2014, the trial court then issued its order finding that a material change in
circumstances had occurred since the entry of the March 28, 2013 permanent parenting
plan. Specifically, the court stated that since the entry of the prior plan,

       Mother has made at least seven additional documented allegations that
       Father has either abused or has been inappropriate with Avery. Mother has
       taken Avery to be physically examined on at least two occasions, and has
       subjected Avery to multiple evaluations and interviews by a variety of
       adults, including a uniformed police officer. In July 2013, Avery exhibited
       an extreme temper tantrum that lasted for one hour and twenty minutes,
       wherein she kicked, spat, and hit Mother, and also told Mother that she was
       a B**** and that she hated her. Avery has even informed Father that
       Mother told Avery to lie to the Department of Children’s Services and tell
       them that Father touched Avery’s privates. Avery told Father that Mother
       was mad at her because she did not tell the Department of Children’s
       Services these lies. Avery is clearly experiencing serious distress as a result
       of Mother’s behavior in repeatedly making these allegations and in
       communicating these beliefs to Avery.

       In this appeal Mother contends that the petition at issue should have been
dismissed because it is based on the same allegations as the previous petition that were
resolved by the March 28, 2013 order, Mother is essentially arguing that Father was
precluded from asserting, or re-asserting, her allegedly false allegations of sexual abuse
because this same conduct was raised in the prior petition and was known to the parties
and to the court when the current parenting plan went into effect. We disagree, having
determined that Mother misapprehends the meaning of a material change of
circumstances as it pertains to the facts of this case.

       The facts and reasoning in Staggs v. Staggs, No. M2001-01192-COA-R3-CV,
2002 WL 31769112 (Tenn. Ct. App. Dec. 11, 2002) are instructive. In Staggs both
parents were recovering alcoholics and this was known to the court and the parties when
the prior parenting plan went into effect. Id. at *1. Following a relapse by the mother, the
father prevailed on a petition to be named the primary residential parent. Id at *3. As the
trial court explained following trial on the petition, there had been a material and
substantial change of circumstances that “has been detrimental to the children, borderline
devastating, and certainly would warrant consideration of a change of custody.” Id.
                                            - 10 -
        The judge then considered the relevant factors found in Tenn. Code Ann. § 36-6-
106 for determining which parent is better suited to exercise primary custody of the
children. The court found that there was not much difference between the parties with
regard to most of the factors enumerated in the statute, such as the “love, affection and
emotional ties existing between the parents and the child,” and “the disposition of the
parents to provide the child with food, clothing, medical care, education. . . .” Id. (citing
Tenn. Code Ann. § 36-6-106(1) and (2)). The trial judge also commended Ms. Staggs for
admitting to her alcohol problem and attempting to deal with it but found that she had not
completely conquered the emotional problems associated with it. However, the court
found that Mr. Staggs had proven himself to be “mentally physically healthy and stable.”
Id. (citing Tenn. Code Ann. § 36-6-106(5)). Based on these and other findings, the trial
court designated Mr. Staggs as the primary residential parent. Id.

        On appeal, Ms. Staggs argued that since her alcohol issues were known at the time
of the entry of the final decree, her drinking issues could not be considered unforeseeable.
Id. *4. That is because this court previously held that “the change of circumstances relied
upon by the petitioner should be one that could not have been foreseen at the time of the
original custody decision.” Id. This court, however, rejected the argument and held as
follows:

       Regrettably, our prior pronouncements on foreseeability are a poor fit for a
       situation like the present one. It is now widely acknowledged by society
       that alcoholism is a disease that cannot be permanently cured, and that the
       recovering alcoholic is always in danger of succumbing to his or her
       addiction. In theory then, it is always foreseeable that an alcoholic will
       begin drinking again. We do not believe, however, that our recognition of
       this unfortunate fact should prevent us from considering a change of
       custody where a previously sober parent has fallen back into habits that are
       detrimental to the children in her care.

Id.

      Father contends in his brief that the reasoning in Staggs applies to this matter, and
we agree. Father was not precluded from bringing new allegations of false sexual abuse
simply because Father raised similar allegations in the past. And, from our review of the
December 2012 and December 2013 petitions, Father does raise new allegations against
Mother. Therefore, Mother’s argument fails.

       We also find Mother’s second argument unavailing. She contends that none of the
allegations made by Father affected Avery in any meaningful way and that the alleged
“negative” or “meaningful” effect upon Avery amounted to pure speculation and
conjecture. Whether an accusation of child sexual abuse against a parent “affects the
                                        - 11 -
child in a meaningful way” was at issue in Keisling v. Keisling, 196 S.W.3d 703, 718
(Tenn. Ct. App. 2005) (perm. app. denied May 30, 2006).

       Accusations of child sexual abuse by one parent against the other parent
       presents one of the most difficult issues faced by a trial court. Suspicion of
       such abuse must be taken seriously and were investigated thoroughly, for
       the consequences to the child of allowing any abuse to continue are grave.
       However, mistakenly concluding that a parent has abused his child, when
       in fact there has been no abuse, has serious consequences as well,
       including the almost-certain destruction of the parent-child relationship
       and disgrace to the accused parent. In addition, determining whether abuse
       has occurred can be enormously difficult; there is frequently a paucity of
       physical evidence, and the alleged child victim may be unable to accurately
       relate pertinent events. Finally, even investigating the accusation is
       delicate; the suggestibility of the alleged victim is almost invariably an
       issue, and heavy-handed or repetitive interrogation or physical
       examination can itself inflict long-lasting trauma on a child.

                                      .      .      .

       In a case such as this, any concern about reporting allegations of child
       sexual abuse must be balanced with the awareness that false accusations of
       such abuse can be a “reprehensible tool” against an ex-spouse, remarkable
       for its “brutal effectiveness.”

Id. at 722 (emphasis added).

       With the foregoing in mind and after a thorough review of the entire record, we
have determined that the record fully supports the trial court’s finding that Avery
experienced serious distress as a result of Mother’s behavior in repeatedly making these
allegations and in communicating these beliefs to Avery. Furthermore, Mother coerced
the child into lying about these allegations of sexual abuse, which also caused significant
negative effects to Avery. Moreover, and significantly, Mother subjected Avery to
numerous invasive physical exams by healthcare professionals as well as questions and
evaluations by physicians, DCS workers, and police officers. Yet, after all of these
examinations, evaluations, and investigations, there is no evidence of sexual abuse by
Father.

      Based on the foregoing, we affirm the trial court’s determination that Father has
proven a material change of circumstance. Therefore, we turn our focus to whether a
modification of the parenting plan is in the best interest of the child. See Armbrister, 414
S.W.3d at 697.

                                           - 12 -
                     II. TENNESSEE CODE ANNOTATED § 36-6-106 (2014)

       Mother contends the trial court failed to consider new and additional best interest
factors under Tenn. Code Ann. § 36-6-106 that went into effect on July 1, 2014. Father
contends the trial court applied the correct version of the statute because the court applied
the version that was in effect when the case was tried. Father also contends this issue has
been waived because Mother never raised the issue in the trial court. We agree with
Father on both points.

        The amendment to Tenn. Code Ann. § 36-6-106 at issue here went into effect on
July 1, 2014.2 See 2014 Pub. Acts, c. 617, § 4, eff. July 1, 2014. The case was tried over
three days, on May 19, 2014, May 29, 2014 and June 26, 2014. Thus, when the trial
concluded, the 2014 amendment had not yet gone into effect. Although the trial court’s
ruling was not announced until after the amendment went into effect, we have determined
that the trial court did not err in applying the pre-amendment factors, that being those
stated in Tenn. Code Ann. § 36-6-106 (2013).3 See Roland v. Roland, No. M2014-02032-
COA-R3-CV, 2015 WL 5719833, at *5 (Tenn. Ct. App. Sept. 29, 2015) (applying the
statute that was in effect at the time of the proceedings and not when the order was
entered); see also Mackey v. Mayfield, No. E2014-02052-COA-R3-CV, 2015 WL
5882657, at *3-4, *7-8 (Tenn. Ct. App. Oct. 8, 2015) (applying the previous statute when
trial was held on June 25-27, 2014, the statute took effect on July 1, 2014, and the order
was entered on July 25, 2014). Therefore, the court acted correctly by applying the
relevant statutory best interest factors in effect when the case was tried.

       We have also determined that at no time during the trial, or prior to the trial
court’s oral ruling on September 4, 2014, or the entry of the final judgment, did Mother
ask the trial court to apply the new best interest factors enacted by the 2014 amendment.
At the conclusion of the trial on June 26, 2014, the court asked the parties to submit
proposed findings of fact and conclusions of law, which they did. By the time the parties

        2
           The legislative history reveals that the 2014 amendment was enacted to address several
circumstances including the fact that the legislature determined that “subsections 36–6–106(a), 36–6–
404(b), and 36–6–108(c) and (e) of the Tennessee Code Annotated establish different factors pertaining to
judicial review of custodial arrangements and the establishment of residential schedules for minor
children”; “the factors listed in each section differ slightly in their specifics, causing confusion and
inconsistent application of the law”; “the factors that determine custodial arrangements or establish a
residential schedule for minor children should be consistent”; “the wording of Tennessee Code
Annotated, subdivision 36–4–106(d)(5) concerning relocation of a parent also causes confusion and
inconsistent application of the law”; and the wording of “subdivision 36–6–101(a)(3)(A) concerning the
rights of parents also causes confusion and inconsistent application of the law.” TN LEGIS 617 (2014),
2014 Tennessee Laws Pub. Ch. 617 (S.B. 1488).
        3
          Our reference to Tenn. Code Ann. § 36-6-106 (2013) refers to the statute as it read prior to the
July 1, 2014 amendment going into effect. See 2013 Pub. Acts, c. 385, § 1, eff. May 14, 2013.

                                                 - 13 -
returned to court to receive the trial court’s oral ruling, which was on September 4, 2014,
the 2014 amendment had gone into effect; nevertheless, Mother did not ask the trial court
to apply the new best interest factors enacted by the 2014 amendment.4 Moreover, at no
point in the trial court proceedings did Mother argue that the trial court applied the wrong
version of the statute. In fact, it was first raised in her brief in this appeal.

       “The law in Tennessee is well settled that issues not raised in the trial court may
not be raised on appeal.” Blankenship v. Anesthesiology Consultants Exch., P.C., 446
S.W.3d 757, 760 (Tenn. Ct. App. 2014) (citing In re: The Guardianship of R.D.M., 306
S.W.3d 731, 736 (Tenn. Ct. App. 2009)); Hill v. Moncier, 122 S.W.3d 787, 792 (Tenn.
Ct. App. 2003), on reh’g (July 11, 2003) (quoting State Dept. of Human Servs. v.
Defriece, 937 S.W.2d 954, 960 (Tenn.Ct.App.1996) (“It is well-settled that issues not
raised at trial may not be raised for the first time on appeal.”)). Therefore, this issue has
been waived.

                                    II. BEST INTEREST FACTORS

     Mother argues that the trial court erred in finding that it was in the best interest of
Avery to name Father the primary residential parent. Mother claims that she is
comparatively more fit to serve as the primary residential parent.

       Tenn. Code Ann. § 36-6-106(a) (2013) provides that “in any other proceeding
requiring the court to make a custody determination regarding a minor child, the
determination shall be made on the basis of the best interest of the child.” The court is to
consider the child’s best interest and “shall order a custody arrangement that permits both
parents to enjoy the maximum participation possible in the life of the child consistent
with the factors set forth in Tenn. Code Ann. § 36-6-106(a)(1)-(10).” Tenn. Code Ann.
§36-6-106(a) (2013). In coming to a determination of what is in the child’s best interest,
the court must consider all relevant factors, including, where applicable, the following:

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

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

        (3) The importance of continuity in the child’s life and the length of time

        4
          We acknowledge that Mother’s memorandum in support of her post trial proposed findings of
fact and conclusions of law, which was filed on July 18, 2014, cited Senate Bill No. 1488 and that she
attached a copy of the bill as an exhibit; however, at no point did Mother inform the trial court that it
should apply the new best interest factors in making its decision.
                                                 - 14 -
the child has lived in a stable, satisfactory environment; provided, that,
where there is a finding, under subdivision (a)(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 nonperpetrating parent or caregiver has
relocated in order to flee the perpetrating parent, that the relocation shall
not weigh against an award of custody;

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

(5) The mental and physical health of the parents or caregivers. The court
may, when it deems appropriate, order an examination of a party pursuant
to Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for
the conduct of the proceedings, order the disclosure of confidential mental
health information of a party pursuant to § 33-3-105(3). The court order
required by § 33-3-105(3) shall contain a qualified protective order that, at
a minimum, expressly limits the dissemination of confidential protected
mental health information for the purpose of the litigation pending before
the court and provides for the return or destruction of the confidential
protected mental health information at the conclusion of the proceedings;

(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 on 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 to the evidence. 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 or caregiver and the person’s interactions
with the child; and
                                 - 15 -
       (10) Each parent’s or caregiver’s past and potential for future performance
       of parenting responsibilities, including the willingness and ability of each
       of the parents and caregivers to facilitate and encourage a close and
       continuing parent-child relationship between the child and both of the
       child’s parents, consistent with the best interest of the child. In determining
       the willingness of each of the parents and caregivers to facilitate and
       encourage a close and continuing parent-child relationship between the
       child and both of the child’s parents, the court shall consider the likelihood
       of each parent and caregiver to honor and facilitate court ordered parenting
       arrangements and rights, and the court shall further consider any history of
       either parent or any caregiver denying parenting time to either parent in
       violation of a court order.

Tenn. Code Ann. § 36-6-106(a)(1)-(10) (2013).

       Determining a child’s best interest is a fact-sensitive inquiry, and, depending upon
the significance of certain facts, a single factor can control the outcome of this
determination. As we have explained:

       Ascertaining a child’s best interests does not call for a rote examination of
       each of [the relevant] factors and then a determination of whether the sum
       of the factors tips in favor of or against the parent. The relevancy and
       weight to be given each factor depends on the unique facts of each case.
       Thus, depending upon the circumstances of a particular child and a
       particular parent, the consideration of one factor may very well dictate the
       outcome of the analysis.

In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005).

        If the issue was contested and the court changes the primary residential parent,
“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)(ii).

       The determination of where the best interests of the child lie is a factual question.
In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). On appeal, we presume that
the trial court’s findings on this matter are correct unless the evidence preponderates
against them. Armbrister, 414 S.W.3d at 693 (Tenn. 2013); see Tenn. R. App. P. 13(d). In
order for evidence to preponderate against a finding of the trial court, it must support
another finding of fact with greater convincing effect. Watson v. Watson, 196 S.W.3d
695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d
66, 71 (Tenn. Ct. App. 2000)).

                                           - 16 -
       In this case, the trial court first considered Tenn. Code Ann. § 36-6-106(a)(1)
(2013), which states “[t]he love, affection and emotional ties existing between the parents
or caregivers and the child.” The trial court found that it is undisputed that Avery loves
both Mother and Father, and both parents love Avery. From our review of the record, the
evidence at trial supports this finding.

        Next, the court considered Tenn. Code Ann. § 36-6-106(a)(2) (2013) which states,
“[t]he disposition of the parents or caregivers to provide the child with food, clothing,
medical care, education, and other necessary care and the degree to which a parent or
caregiver has been the primary caregiver.” Although the trial court did not expressly state
that this factor weighed in favor of Father, it is apparent from the language used in the
trial court’s order that it does weigh in favor of Father. The trial court was concerned
with the frequency in which Mother took the child to receive medical care and the
frequency in which the child was physically examined. Furthermore, the trial court found
that the recurring physical examinations had a very negative impact on the child’s well-
being. We agree with this finding.

       Though the court does not want to chill a parent reporting possible sexual abuse,
since the court entered the March 28, 2013 permanent parenting plan, Mother has taken
the child to the pediatrician twice alleging abuse; she has alleged abuse multiple times
during the child’s therapy sessions; and she has taken the child to LeBonheur’s
emergency department at 9:00 in the evening. These healthcare providers found no
evidence of abuse. Furthermore, due to Mother’s allegations at LeBonheur, police
interviewed the child and involved DCS for the second time in this child’s short life.
However, that investigation, like the first investigation, did not produce evidence of
sexual abuse. Lastly, there was evidence produced at trial that the child is experiencing
extreme distress due to Mother’s behaviors. (e.g., Avery’s extreme tantrums and
confusion over whether she was in trouble because she did not lie about Father to her
therapist). Therefore, this factor weighs in favor of Father.

        The third factor pertains to the importance of continuity in the child’s life and the
length of time the child has lived in a stable, satisfactory environment. See Tenn. Code
Ann. § 36-6-106(a)(3) (2013). The trial court found that this factor weighed in favor of
Father. The trial court stated that although the child “has resided with Mother for the
majority of her young life . . . the Court does not find that [the child] has lived in a stable,
satisfactory environment with Mother.” The trial court then gave a brief overview of the
child’s medical history due to Mother’s allegations and concluded that “the exposure to
such a variety of unfamiliar adults” did not provide a “stable or satisfactory environment
for a five year old child.” We agree with this finding because the child has not lived in a
stable, satisfactory environment due, mainly, to Mother’s continual need to express
allegations of sexual abuse by Father against the child. Therefore, we agree that this
factor weighs in favor of Father.

                                             - 17 -
       The fourth factor addresses “[t]he stability of the family unit of the parents or
caregivers.” Tenn. Code Ann. § 36-6-106(a)(4) (2013). The trial court found that this
factor weighed in favor of Father because Father and Step-Mother have resided in their
home for several years. On the other hand, Mother lives alone, and she has an unstable
relationship with her sister. Mother lives close to her parents, and Avery often interacts
with Mother’s parents. However, when Mother’s mother was asked whether she knew
that no evidence had been produced against Father, she replied, “To date.” She further
explained that she believes the investigation needs to continue despite all evidence to the
contrary. Having reviewed the evidence, we are unable to conclude that it preponderates
against the trial court’s finding that this factor favors Father.

        The fifth factor concerns the mental and physical health of the parents or
caregivers. See Tenn. Code Ann. § 36-6-106(a)(5) (2013). The trial court found that this
factor weighed in favor of Father and the record fully supports this finding. Expert
testimony introduced at trial proves that Mother has significant mental health issues and
that it is important she continue the court-ordered therapy. Further, concerns regarding
Mother’s mental stability are supported by her actions and other evidence in the record.
Moreover, Mother has several health issues that include fibromyalgia, kidney failure,
blood pressure issues, degenerative disc disease, and a ruptured disc in her back.
Accordingly, we agree that this factor favors Father.

       The sixth factor concerns the home, school, and community record of the child.
See Tenn. Code Ann. § 36-6-106(a)(6) (2013). The trial court found that this factor did
not favor either parent, and we agree with this finding.

       The seventh factor pertains to the preference of the child, if the child is 12 years of
age or older. See Tenn. Code Ann. § 36-6-106(a)(7) (2013). Because the child was less
than 12 years old, the trial court correctly determined that this factor was not relevant.

        The eighth factor, which pertains to evidence of physical or emotional abuse to the
child, reads as follows:

       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 to the evidence. In addition, the court shall, where appropriate,
       refer any issues of abuse to the juvenile court for further proceedings;

                                            - 18 -
Tenn. Code Ann. § 36-6-106(a)(8) (2013).

       The trial court found this factor weighed in favor of Father, and the record
supports this finding. Mother has made numerous allegations of sexual abuse, which have
been examined by numerous health care providers and investigated by DCS, and none of
which have been substantiated. Furthermore, based on evidence that Mother instructed
the child to lie in regard to Father’s alleged abuse, the trial court found that

       coercing a child into making such horrible accusations is psychologically
       damaging to the emotional well-being of the child, and that this behavior
       constitutes emotional abuse. If the Court allows the child to remain in
       Mother’s care the Court believes that Mother will continue to make these
       allegations and attempt to coerce the child into believing them.

Having examined the evidence in the record, we agree with the trial court’s finding.

        The ninth factor pertains to “[t]he character and behavior of any other person who
resides in or frequents the home or a parent of caregiver and the person’s interactions
with the child[.]” Tenn. Code Ann. § 36-6-106(a)(9) (2013). Although the trial court did
not expressly state that this factor weighed in favor of Father, it is implicit from the trial
court’s order that this factor favors Father. This is evident from the trial court’s finding
that “Step-Mother and Avery have a very close and loving relationship” and, conversely,
the trial court stated that it “has concerns . . . about Mother’s character and behavior. . . .”
Moreover, the court expressly noted that “when Mother’s mother, . . . was asked if there
had ever been any evidence of Father abusing Avery, [she] answered ‘Not yet’, indicating
that she and Mother’s family would continue to make allegations that Father has sexually
abused Avery.” The evidence preponderates in favor of the finding that this factor favors
Father; therefore, we find that this factor favors Father.

       The last factor, Tenn. Code Ann. § 36-6-106(a)(10) (2013), states the following:

       Each parent’s or caregiver’s past and potential for future performance of
       parenting responsibilities, including the willingness and ability of each of
       the parents and caregivers to facilitate and encourage a close and continuing
       parent-child relationship between the child and both of the child’s parents,
       consistent with the best interest of the child. In determining the willingness
       of each of the parents and caregivers to facilitate and encourage a close and
       continuing parent-child relationship between the child and both of the
       child’s parents, the court shall consider the likelihood of each parent and
       caregiver to honor and facilitate court ordered parenting arrangements and
       rights, and the court shall further consider any history of either parent or
       any caregiver denying parenting time to either parent in violation of a court
       order.
                                            - 19 -
The trial court found that this factor weighed in favor of Father:

       The Court heard an abundance of testimony regarding the hostile
       relationship between the parties. The Court finds that Mother’s past
       behavior indicates that she will continue making allegations that Father has
       been inappropriate with the child, which could ultimately damage the
       relationship between Father and Avery. The Court finds that Mother has a
       history of disregarding court orders regarding parenting time, and has
       consistently withheld parenting time from Father. As a result, Father has
       been forced to file three petitions in the past eighteen (18) months to
       enforce the parenting schedule. The Court did not hear any testimony that
       Father has not complied with the orders of the Court. This Court finds that
       Father is the parent that is most likely to abide by the Court’s orders and
       honor court ordered parenting arrangements and rights.

       Although there is evidence to support the trial court’s conclusion that Mother
disobeyed court orders in regard to parenting time, there was also evidence that Father
refused to talk to Mother. However, Father’s refusal to communicate with Mother is
mitigated by the severity of her accusations of assault against Father and his distrust of
what she may say about him or what he might say to her. Nevertheless, the evidence does
not preponderate against the trial court’s finding that Father is more likely to abide by the
court’s orders and honor court-ordered parenting arrangements and rights in the future.
Accordingly, the evidence does not preponderate against the finding that this factor
favors Father.

       Upon consideration of the above best interest findings and the relevancy and
weight to be given to each factor based on the unique facts of this case, and realizing that
ascertaining a child’s best interests does not call for a rote examination of each of the
relevant factors and then a determination of whether the sum of the factors tips in favor of
or against the parent as In re Marr instructs, see id., 194 S.W.3d at 499, we find that the
evidence overwhelmingly weighs in favor of Father. Therefore, we affirm the trial court’s
determination that it is in the best interest of Avery to change custody from Mother to
Father.

                            III. ATTORNEY’S FEES ON APPEAL

        Father submits that Mother should be required to pay Father’s attorney’s fees on
two alternative grounds. One is based on the contention that Mother “again” failed to
procure a final order before appealing. The other ground reads “To the extent [the court]
considers the merits of Mother’s appeal Father respectfully submits that Mother should
still be ordered to pay Father’s attorney fees and suit expenses.” The authority on which
Father relies in this respect is Tenn. Code Ann. § 36-5-103(c), which states that a person
                                           - 20 -
to whom the custody of the child is awarded may recover reasonable attorney’s fees
incurred in regard to an action concerning the adjudication of the custody or the change
of custody of any child.

       We have determined that the order from which this appeal lies was a final
judgment, although belated; nevertheless, this appeal is from a final judgment. Therefore,
the first ground on which Father relies cannot form a basis for an award of fees and
expenses.

       As for the alternative ground, whether to award attorney’s fees on appeal is within
this court’s sole discretion. Wills v. City of Memphis, 457 S.W.3d 30, 51 (Tenn. Ct. App.
2014) (citing Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995)). When
considering a request for attorney’s fees under Tenn. Code Ann. § 36-5-103(c), we will
consider “the requesting party’s ability to pay, the requesting party’s success on appeal,
whether the appeal was taken in good faith, and any other relevant equitable factors.”
Culbertson v. Culbertson, 455 S.W.3d 107, 158 (Tenn. Ct. App. 2014) (citing Moran v.
Willensky, 339 S.W.3d 651, 666 (Tenn. Ct. App. 2010)). After considering these factors,
we exercise our discretion by denying Father’s request to recover his fees and expenses
on appeal and hold that the parties shall be responsible for their respective fees and
expenses.

                                    IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Mother.



                                                   FRANK G. CLEMENT JR., P.J., M.S.




                                          - 21 -
