                                                                                          09/20/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 July 17, 2018 Session

               COURTNEY P. BRUNETZ v. NEIL A. BRUNETZ

                 Appeal from the Circuit Court for Hamilton County
                     No. 13D1347     Don R. Ash, Senior Judge



                             No. E2017-01391-COA-R3-CV



In this post-divorce action involving the father’s petition to modify the parties’ existing
permanent parenting plan and the mother’s subsequent counter-petition, the trial court
increased the father’s co-parenting time by ten days during the summer, for a total of 130
parenting days per year, and granted the mother sole decision-making authority with
respect to the children’s education and extracurricular activities. The father has appealed.
Discerning no reversible error, we affirm the trial court’s ruling in all respects.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.

Donald J. Aho, Chattanooga, Tennessee, for the appellant, Neil A. Brunetz.

John R. Morgan, Chattanooga, Tennessee, for the appellee, Courtney P. Brunetz.

                                        OPINION

                        I. Factual and Procedural Background

       Courtney P. Brunetz (“Mother”) and Neil A. Brunetz (“Father”) were divorced by
final decree of the Hamilton County Circuit Court (“trial court”), entered October 22,
2013. The parties had two minor children born during the marriage: I.B., who was nine
years of age at the time of entry of the final decree, and M.B., who was five years of age
(collectively, “the Children”). At the time of the divorce, Mother and Father executed a
Marital Dissolution Agreement (“MDA”) and a Permanent Parenting Plan (“PPP”).
Pursuant to the PPP, Mother was designated primary residential parent and enjoyed 245
days of co-parenting time per year. Father enjoyed the remaining 120 days per year with
the Children. All major decisions required joint agreement of the parents, and mediation
was the anticipated means of resolution to any impasse.

       Regarding the choice of schools for the Children, the PPP outlined the following
in relevant part:

       It is contemplated at this time that the children will attend Baylor, McCallie
       or GPS; however, as otherwise set forth in this plan, the parties will
       together make these decisions at the appropriate time and with both parties
       reserving the right to engage mediation or court intervention regarding any
       disagreement, circumstance or related issues which may arise in the future.
       The parties shall divide the cost of private school tuition at St. Nicholas and
       whichever secondary private school the children attend through 12th grade,
       including McCallie, Baylor and/or GPS, and any other incidentals, pro rata
       according to the percentages derived from their prior year’s income. The
       costs to be divided pro rata include tuition, books, supplies and fees. This
       obligation will begin in conjunction with the 2014-2015 school year.

        On May 25, 2016, Father filed a petition in the trial court, seeking to modify the
existing PPP due to an alleged material change in circumstance. Father, a practicing
attorney, stated in his petition that by reason of the length of time he had been employed
at his law firm, his work schedule had recently become more flexible such that he would
be able to exercise more co-parenting time with the Children. Father also stated that the
“methods and behavior of the Mother” had begun to negatively affect the Children.
According to Father, Mother often disparaged him in the presence of the Children,
interfered with his co-parenting time, failed to encourage the Children’s relationship with
him, and threatened to withhold his co-parenting time unless he paid expenses that were
not his obligation. Father requested that Mother be ordered to submit to a mental health
evaluation by a third-party professional, and he further sought a change in the parenting
plan to “maximize available co-parenting time between minor children and both of their
parents” pursuant to Tennessee Code Annotated § 36-6-106. Father attached a new
proposed parenting plan to his petition, which suggested an allocation of parenting time
of 182.5 days annually for each parent.

       Father concomitantly filed a separate motion seeking a court-ordered
psychological examination or parental fitness assessment for Mother pursuant to
Tennessee Rule of Civil Procedure 35.01. On June 10, 2016, the judges of the Eleventh
Judicial District entered an order recusing themselves from this matter.


                                             2
        On July 15, 2016, Mother filed an answer and counter-petition, denying the
allegations of Father’s petition and alleging, inter alia, that the Children were intimidated
by Father’s “abusive, controlling, [and] domineering personality in the presence of his
new live-in girlfriend.” Mother asserted that the only substantial and material change in
circumstance was Father’s behavior, which she characterized as “belligerent,”
“demanding,” and “threatening.” Mother also alleged that Father had been placing undue
stress on the Children by insisting on communicating with Mother through the Children.
Mother claimed that Father’s proposed modifications to the parenting plan were
“designed for him to exert greater control over the children and the Mother” and were
“further motivated by his effort to minimize his financial obligations on behalf of his
children.” Mother submitted a counter-proposal for an amended PPP that added a
provision stating, “Father shall exercise no overnight visitation with the parties’ minor
children while having overnight guests of the opposite sex, unless such person is married
to the Father.”1 Mother also sought to increase Father’s monthly child support payments
based on a purported increase in Father’s gross monthly income.

       On August 8, 2016, then Chief Justice Sharon G. Lee of the Tennessee Supreme
Court assigned Senior Judge Don R. Ash to preside over this matter. Subsequently, on
September 30, 2016, Judge Ash entered a scheduling order, which provided, inter alia,
for a parental fitness assessment and evaluation to be performed with regard to each
parent. On October 10, 2016, the trial court appointed Dr. Thomas Biller to perform such
assessment and evaluation of the parents.

       On March 9, 2017, Father filed an answer to Mother’s counter-petition, denying
all substantive allegations and raising several affirmative defenses. In his answer, Father
noted in particular that the PPP contained “no restriction against either party moving on
with the social component of their respective lives.”

         On April 4, 2017, the trial court conducted a bench trial upon the petition and
counter-petition for modification, hearing testimony solely from the parties. The trial
court also considered the deposition testimony and reports of Dr. Biller. In its subsequent
order entered June 11, 2017, the trial court determined that there had been a material
change in circumstance affecting the best interest of the Children and modified the
existing PPP. The court’s modifications to the PPP included (1) an increase in Father’s
co-parenting time by the court’s award of ten additional days annually with the Children
during the summer and (2) designation of Mother as sole decision-maker with respect to
educational decisions and extracurricular activities. In support of its decision to modify
the decision-making authority of the parties, the trial court explained in its memorandum
opinion:

1
    Mother withdrew her request for restricted overnight visitation by the time of trial.
                                                        3
             It seems to me this major decision-making is not working. Sorry
      about that, but it’s not. Y’all continue to fuss over that. And this private
      school thing, which is provided for in the child support issue, that’s what it
      says. So, ma’am, in regard to educational decisions, I’m going to let you be
      the decider on that. I’m going to take that out of the joint box. . . . Then
      I’m also going to modify it where the mom is the decision maker in regard
      to extracurricular activities.

The trial court also suggested that the parents “find a counselor to help with
communication skills and parenting” and modified the PPP to forbid “communication via
either parent sending messages through the children.” Father timely appealed.

                                  II. Issues Presented

      Father presents three issues for our review, which we have restated slightly:

      1.     Whether the trial court abused its discretion by increasing Father’s
             parenting time by only ten days annually instead of dividing co-
             parenting time equally between the parties.

      2.     Whether the trial court’s division of tuition payments for private
             schools of Mother’s choosing constituted an upward deviation in
             Father’s child support obligation.

      3.     Whether the trial court abused its discretion by sua sponte granting
             Mother the sole decision-making authority with respect to education
             and extracurricular activities.

                                III. Standard of Review

      With regard to the proper standard of review in a case involving modification of a
co-parenting schedule, our Supreme Court has elucidated:

             In this non-jury case, our review of the trial court’s factual findings
      is de novo upon the record, accompanied by a presumption of the
      correctness of the findings, unless the preponderance of the evidence is
      otherwise. See Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d
      566, 570 (Tenn. 2002); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.
      1984). We review the trial court’s resolution of questions of law de novo,
      with no presumption of correctness. Kendrick, 90 S.W.3d at 569. Statutory


                                            4
interpretation is a question of law, which we review de novo. Mills v.
Fulmarque, 360 S.W.3d 362, 366 (Tenn. 2012).

        A trial court’s determinations of whether a material change in
circumstances has occurred and whether modification of a parenting plan
serves a child’s best interests are factual questions. See In re T.C.D., 261
S.W.3d 734, 742 (Tenn. Ct. App. 2007). Thus, appellate courts must
presume that a trial court’s factual findings on these matters are correct and
not overturn them, unless the evidence preponderates against the trial
court’s findings. See Tenn. R. App. P. 13(d); In re C.K.G., 173 S.W.3d
[714,] 732 [(Tenn. 2005)]; Kendrick, 90 S.W.3d at 570; Hass, 676 S.W.2d
at 555.

        Because decisions regarding parenting arrangements are factually
driven and require careful consideration of numerous factors, Holloway v.
Bradley, 190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit,
948 S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have the
opportunity to observe the witnesses and make credibility determinations,
are better positioned to evaluate the facts than appellate judges. Massey-
Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus,
determining the details of parenting plans is “peculiarly within the broad
discretion of the trial judge.” Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.
1988) (quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App.
1973)). “It is not the function of appellate courts to tweak a [residential
parenting schedule] in the hopes of achieving a more reasonable result than
the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). A
trial court’s decision regarding the details of a residential parenting
schedule should not be reversed absent an abuse of discretion. Id. “An
abuse of discretion occurs when the trial court . . . appl[ies] an incorrect
legal standard, reaches an illogical result, resolves the case on a clearly
erroneous assessment of the evidence, or relies on reasoning that causes an
injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A
trial court abuses its discretion in establishing a residential parenting
schedule “only when the trial court’s ruling 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.” Eldridge, 42 S.W.3d at 88.

***

       Once a permanent parenting plan has been incorporated in a final
divorce decree, the parties are required to comply with it unless and until it
                                      5
       is modified as permitted by law. See Tenn. Code Ann. § 36-6-405 (2010).
       In assessing a petition to modify a permanent parenting plan, the court must
       first determine if a material change in circumstances has occurred and then
       apply the “best interest” factors of section 36-6-106(a). Id. § 36-6-
       101(a)(2)(B)-(C) (2010), -106(a) (2010 & Supp. 2013); see also Kendrick,
       90 S.W.3d at 570; Boyer [v. Heimermann], 238 S.W.3d [249,] 255 [(Tenn.
       Ct. App. 2007)]. Finally, pursuant to the modification procedures described
       in section 36-6-405(a), the court must apply the fifteen factors of section
       36-6-404(b), so as to determine how, if at all, to modify the residential
       parenting schedule. Just as the court’s processes for determining the child’s
       best interests and residential schedule when making its initial custody
       decisions overlap substantially, here again the two analyses are likely to be
       quite similar. Compare Tenn. Code Ann. § 36-6-106(a), with Tenn. Code
       Ann. § 36-6-404(b).

Armbrister v. Armbrister, 414 S.W.3d 685, 692-93, 698-99 (Tenn. 2013). Subsequently,
in 2014, the General Assembly amended Tennessee Code Annotated § 36-6-404(b) to
replace its list of factors with a reference to the revised list of factors contained in
Tennessee Code Annotated § 36-6-106(a). See 2014 Tenn. Pub. Acts, Ch. 617 (S.B.
1488). Therefore, following such amendment, once the trial court determines that a
material change of circumstance has occurred, the court should “proceed[] to determine
whether modification of the schedules is in the best interest of the child[ren], utilizing the
factors at § 36-6-106(a).” See Allen v. Allen, No. W2016-01078-COA-R3-CV, 2017 WL
908319, at *8 (Tenn. Ct. App. Mar. 7, 2017) (quoting Wheeler v. Wheeler, No. M2015-
00377-COA-R3-CV, 2016 WL 3095695, at *3 (Tenn. Ct. App. May 24, 2016)).

                            IV. Division of Co-Parenting Time

        Father contends on appeal that the trial court’s decision to modify the PPP to grant
him only an additional ten days of co-parenting time, for a total of 130 days per year,
failed to maximize his time with the Children. Father bases his argument on our Supreme
Court’s recognition that the “statutory goal . . . is to allow both parents to enjoy the
‘maximum participation possible’ in the lives of their children.” See Armbrister, 414
S.W.3d at 707; see also Tenn. Code Ann. § 36-6-106(a) (2014).

       Father acknowledges that the trial court properly determined that a material
change in circumstance had occurred since entry of the previous PPP. See Allen, 2017
WL 908319, at *8. Father argues, however, that the trial court did not properly consider
the factors listed in Tennessee Code Annotated § 36-6-106(a) because, inter alia, (1) the
court did not accord the proper weight relative to the court-ordered evaluation suggesting


                                              6
shared parenting time and (2) the court improperly considered Father’s live-in girlfriend
as a negative factor.

      Tennessee Code Annotated § 36-6-106(a) provides the following concerning
modification of a parenting plan:

      (a)    In a suit for annulment, divorce, separate maintenance, or 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. In taking into
             account the child’s best interest, the court 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 out in this subsection (a), the location of the residences of
             the parents, the child’s need for stability and all other relevant
             factors. The court shall consider all relevant factors, including the
             following, where applicable:

             (1)    The strength, nature, and stability of the child’s
                    relationship with each parent, including whether one
                    (1) parent has performed the majority of parenting
                    responsibilities relating to the daily needs of the child;

             (2)    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;



                                             7
(3)    Refusal to attend a court ordered parent education
       seminar may be considered by the court as a lack of
       good faith effort in these proceedings;

(4)    The disposition of each parent to provide the child
       with food, clothing, medical care, education and other
       necessary care;

(5)    The degree to which a parent has been the primary
       caregiver, defined as the parent who has taken the
       greater responsibility for performing parental
       responsibilities;

(6)    The love, affection, and emotional ties existing
       between each parent and the child;

(7)    The emotional needs and developmental level of the
       child;

(8)    The moral, physical, mental and emotional fitness of
       each parent as it relates to their ability to parent the
       child . . . ;

(9)    The child’s interaction and interrelationships with
       siblings, other relatives and step-relatives, and
       mentors, as well as the child’s involvement with the
       child’s physical surroundings, school, or other
       significant activities;

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

(11)   Evidence of physical or emotional abuse to the child,
       to the other parent or to any other person. The court
       shall, where appropriate, refer any issues of abuse to
       juvenile court for further proceedings;

(12)   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;
                              8
             (13)   The reasonable preference of the child if twelve (12)
                    years of age or older. The court may hear the
                    preference of a younger child upon request. The
                    preference of older children should normally be given
                    greater weight than those of younger children;

             (14)   Each parent’s employment schedule, and the court
                    may make accommodations consistent with those
                    schedules; and

             (15)   Any other factors deemed relevant by the court.

       Our review of the trial court’s memorandum opinion reveals that the trial court
explicitly considered each and every factor contained in Tennessee Code Annotated § 36-
6-106(a), making specific findings with regard to each factor. Having determined that a
material change in circumstance had occurred, the court stated:

             And then the next thing I do is I look at the factors and that’s TCA
      36-6-106. Stability and strength of a child’s relationship with each parent
      including one parent performing the majority of the parenting
      responsibilities. It’s obvious for me listening to this case that the mother
      has done that.

              Next, each parent’s ability to facilitate a positive relationship with
      each other. I don’t think either one of y’all do that. I think, ma’am, I think
      occasionally you’ve become the advocate or the hero for the child and
      that’s not good when the enemy is the dad. And, sir, I think sometimes you
      don’t facilitate it either based upon some of the choices that you’ve made.

             Number three is not applicable. Number four, disposition of each
      party to provide the child with food, clothing, etc. I think you both do a
      wonderful job at that. Next, the primary caregiver, that’s the mother. Love
      and affection for the children, I think both of you love the children.
      Emotional needs of the child, at first I circled both because I read the good
      doctor’s report. To be quite honest, I think you both fall short in that. I
      think when we play the children to make the dad look bad, that’s not
      serving their emotional needs. And, sir, when you make choices that is in
      your best interest instead of the children’s, you’re not looking out for their
      emotional needs.


                                            9
              The moral, physical and emotional fitness of each parent, I think you
      both are, like I said, nice people. I just think you’ve gone down this path of
      war or making the other one feel bad or making you feel better and I think
      that’s harmful.

             The children’s interaction or relationship with siblings and family
      and child’s involvement in significant activities, I think the mother
      primarily has done that. Length of time the children have been in a stable
      environment, I think that’s the mother as well. The parents’ employment
      schedule. While the father’s schedule is better, I think the mother’s
      schedule is better than his. And then finally any other factors. So I really
      don’t find any additional factors.

       Based on our thorough review of the evidence presented at trial, we determine that
the proof supports the trial court’s findings with regard to the applicable factors. The
evidence demonstrated that Mother had provided a more stable home for the Children,
performing a majority of parenting responsibilities with regard to the Children’s daily
needs. Although both parents performed most parenting responsibilities well, neither had
demonstrated a wholehearted willingness to facilitate and encourage the relationship
between the Children and the other parent. Both parents amply provided for the
Children’s physical and educational needs, although historically Mother had been the
primary caregiver.

       The evidence at trial further demonstrated that both parents maintained a loving
and nurturing bond with the Children, although, as the trial court found, neither parent
had necessarily placed the Children’s emotional needs before his or her own. Both
parents were fit custodians, and there was no evidence of any type of abuse or neglect.
The proof demonstrated that the Children had thrived in school, extracurricular activities,
and relationships while Mother was the primary residential parent, and the court properly
considered the importance of continuity for the Children. The court also properly
considered that Mother’s work schedule, which allowed her to work from home a great
deal of the time, was much more flexible than Father’s, although his flexibility had
improved in recent years. Overall, the evidence supported the trial court’s decision to
generally continue the previous co-parenting schedule with an award of additional days
annually to Father in the summer.

       The trial court specifically noted that Dr. Biller’s testimony and reports had been
taken into consideration in its decision. However, Father argues that the court did not
place enough emphasis on Dr. Biller’s recommendations. Although Dr. Biller did opine
that a more equal co-parenting schedule might be beneficial to decrease “arguing about
who had more one way or the other” and to increase the Children’s access to both
                                            10
parents, Dr. Biller also acknowledged that he had no concerns about placement of the
Children primarily with either parent. As Mother points out in her appellate brief, Dr.
Biller’s opinion was not binding upon the trial court and did not address every factor that
the court was required to consider. See Sweeney v. Sweeney, No. 02A01-9212-CV-
00335, 1993 WL 157668, at *5 (Tenn. Ct. App. May 14, 1993) (“While Mr. Sweeney
may take issue with the court’s failure to accept [the expert’s] recommendation [with
regard to custody], the court was not bound by this one piece of evidence . . . .”); see also
Forrest Constr. Co., LLC v. Laughlin, 337 S.W.3d 211, 233 (Tenn. Ct. App. 2009) (“The
trial judge, as the trier of fact, is not compelled to unequivocally accept expert
opinions.”).

       Furthermore, with regard to Father’s argument that the trial court placed undue
emphasis on Father’s living situation with his girlfriend, our review of the court’s
memorandum opinion does not reveal that any improper weight was afforded. In fact, in
its consideration of the above factors, the only reference that the trial court made to
Father’s residential environment was regarding factor number seven, concerning the
Children’s emotional needs. The court stated, referring to Father, “when you make
choices that is in your best interest instead of the children’s, you’re not looking out for
their emotional needs.” However, the court also stated, referring to Mother, “when we
play the children to make the dad look bad, that’s not serving their emotional needs.”
The court ultimately concluded that both parents “fell short” in their efforts to serve the
emotional needs of the Children. Therefore, the trial court’s analysis of this factor did
not favor one parent over the other.

        In conclusion, we determine that the trial court’s decision regarding the co-
parenting schedule was not an abuse of discretion. The trial court’s ruling did not
“appl[y] an incorrect legal standard, reach[] an illogical result, resolve[] the case on a
clearly erroneous assessment of the evidence, or rel[y] on reasoning that cause[d] an
injustice.”   See Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).
Furthermore, “[i]t is not the function of appellate courts to tweak a [residential parenting
schedule] in the hopes of achieving a more reasonable result than the trial court.”
Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). We therefore affirm the trial
court’s co-parenting residential schedule in this matter.

                      V. Modification of Decision-Making Authority

       Father’s remaining issues relate to the trial court’s determination that Mother
should have sole decision-making authority concerning the Children’s education and
extracurricular activities. Father contends that the trial court’s decision to grant Mother
sole decision-making ability was “not raised by any party below, and neither party
briefed it or argued it before the trial court.” Father further asserts that “the trial court did
                                               11
not make any factual findings explaining the rationale for its unfounded decision to
change the Parenting Plan.” In contrast, Mother argues that the trial court properly
modified the allocation of decision-making authority in the PPP because “to leave these
two parties to jointly make the decisions with regard to the Children’s private school
education and extracurricular activities would only result in more discord.” Mother
thereby asserts that the court “made the appropriate modification in the best interest of
the children.” We agree with Mother.

       We note at the outset that Father’s petition seeking modification of the PPP
averred that “a substantial and material change of circumstances exists which vests the
Court with jurisdiction and requires implementation of a new [PPP] better catered to the
best interests of these minor children.” Father thus sought a “modification of the [PPP]
governing the rights and obligations of the parties with regard to these minor children.”
Pursuant to Tennessee Code Annotated § 36-6-404(a)(2), as part of its modification of the
parties’ PPP, the trial court had the ability, authority, and the legislative directive, to
“[e]stablish the authority and responsibilities of each parent with respect to the child[ren],
consistent with the criteria in this part.” Tennessee Code Annotated § 36-6-404(a)(3)
further directs the trial court to “[m]inimize the child[ren]’s exposure to harmful parental
conflict.”

        During trial, both parties presented a considerable amount of testimony regarding
their inability to cooperate when making major decisions, especially decisions concerning
the Children’s school enrollment and extracurricular activities. The parties also
acknowledged that their conflict with respect to these subjects detrimentally affected the
Children. Therefore, we conclude that the trial court had the authority and sufficient
justification to modify the decision-making authority of the parents in the modified PPP.

        A modification in decision-making authority is analyzed utilizing the same
standards governing any modification of the parenting plan. See Gider v. Hubbell, No.
M2016-00032-COA-R3-JV, 2017 WL 1178260, at *5 (Tenn. Ct. App. Mar. 29, 2017)
(citing Colley v. Colley, No. M2014-02495-COA-R3-CV, 2016 WL 3633376, at *10
(Tenn. Ct. App. June 28, 2016), perm. app. denied (Tenn. Nov. 17, 2016) (analyzing a
parent’s request for sole decision-making authority under the material change analysis)).
Therefore, once the existence of a material change in circumstance has been found, the
trial court should consider the factors listed in Tennessee Code Annotated § 36-6-106(a)
to determine whether a modification is in the children’s best interest. See Allen, 2017
WL 908319, at *8. As the trial court determined, the prior allocation of joint decision-
making authority with regard to education and extracurricular activities was simply “not
working.” The parties acknowledged numerous disputes regarding the Children’s school
enrollment and extracurricular activities.


                                             12
        As previously explained, the best interest factors enumerated in Tennessee Code
Annotated § 36-6-106(a) weighed in Mother’s favor with regard to stability and
continuity in school and at home, as well as encouragement of the Children’s
involvement in activities and their interpersonal relationships with relatives and peers.
Therefore, we again determine that the trial court’s determination to afford Mother sole
decision-making authority regarding education and extracurricular activities did not
“appl[y] an incorrect legal standard, reach[] an illogical result, resolve[] the case on a
clearly erroneous assessment of the evidence, or rel[y] on reasoning that cause[d] an
injustice.” See Gonsewski, 350 S.W.3d at 105. We accordingly affirm the trial court’s
allocation of decision-making authority in the modified PPP.

       Finally, Father contends that the original PPP did not contemplate the Children’s
enrollment in private schools as a permanent arrangement, instead reserving educational
decisions to be made jointly “at the appropriate time.” Father thus interprets the original
PPP provision to mean that he should not be liable for tuition costs when the parties did
not jointly agree on the private school. Accordingly, Father contends that the trial court’s
requirement that he pay tuition costs pro rata for a school unilaterally chosen by Mother
would be an “erroneous finding of an upward deviation of child support.” We determine
Father’s argument in this regard to be unavailing.

       The parties’ original PPP provided the following concerning school enrollment:

       It is contemplated at this time that the children will attend Baylor, McCallie
       or GPS; however, as otherwise set forth in this plan, the parties will
       together make these decisions at the appropriate time and with both parties
       reserving the right to engage mediation or court intervention regarding any
       disagreement, circumstance or related issues which may arise in the future.
       The parties shall divide the cost of private school tuition at St. Nicholas and
       whichever secondary private school the children attend through 12th grade,
       including McCallie, Baylor and/or GPS, and any other incidentals, pro rata
       according to the percentages derived from their prior year’s income. The
       costs to be divided pro rata include tuition, books, supplies and fees. This
       obligation will begin in conjunction with the 2014-2015 school year.

(Emphasis added.)

      The modified PPP entered by the trial court on June 19, 2017, provides for a
decrease in the amount of Father’s monthly child support obligation and further states:

       [T]he parties shall divide the cost of private school tuition at St. Nicholas
       and McCallie, as well as whichever secondary private school the Mother
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       chooses for the parties’ daughter . . . to attend, including Baylor or Girls
       Preparatory School, through the 12th grade, and any other incidental
       [costs], pro rata according to the percentages derived from their prior year’s
       income. The costs to be divided pro rata include tuition, books, supplies
       and fees.

Ergo, the provision regarding private school tuition contained in the modified PPP is not
materially different from the provision contained in the original PPP. Father’s position
appears to be that if Mother unilaterally chooses to enroll the Children in a more costly
private school at some point in the future, his obligation could increase. However, this
Court cannot “render an opinion in an appeal which is dependent upon future events or
involves a purely hypothetical or theoretical set of facts.” See, e.g., Hurd v. Flores, 221
S.W.3d 14, 30 (Tenn. Ct. App. 2006).

       We further note that the parties’ MDA, entered at the time of the divorce, provided
that Father’s child support obligation “includes an upward deviation associated with the
children’s private school tuition.” Thus, Father’s argument that the trial court’s modified
PPP somehow implemented an upward deviation that did not previously exist is
unpersuasive. We further note that Father has never sought a modification of this
provision in the MDA.

       Father relies on this Court’s opinion in Pua-Vines v. Vines, No. E2016-02472-
COA-R3-CV, 2017 WL 3283415, at *4-7 (Tenn. Ct. App. May 23, 2017), in support of
his argument regarding private school tuition cost. In Pua-Vines, the father and mother
agreed at the time of their divorce that their children would attend a private Catholic
school, and their parenting plan, which designated joint educational decision-making
authority, provided that private school costs would be split equally between them. Id. at
*6. Subsequently, the mother unilaterally decided to enroll the daughter in a different,
non-Catholic private school. Id. This Court determined that “[b]ecause Father was
foreclosed from participating in the decision to enroll the older child at [the non-Catholic
school], we conclude that he should not be made to pay tuition above what was
contemplated in the [original] parenting plan.” Id. at *6. As a result, this Court ordered
the father to pay “one-half of the annual [Catholic school] tuition going forward unless
and until Mother and Father jointly agree to enroll the child in another school.” Id.

       In this case, Father objects to paying any tuition for a private school unilaterally
chosen by Mother under the theory that they did not jointly agree to send the Children to
a private school on a permanent basis. However, the parties’ original PPP contemplated
that the Children would attend private school and that the parties would divide the costs
pro rata, which has apparently been accomplished to date. The modified PPP presents no
material change in this provision. Furthermore, Father has not demonstrated any
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unilateral educational decision by Mother that has resulted in his liability for increased
costs, as was the case in Pua-Vines. We therefore determine Father’s reliance on this
Court’s opinion in Pua-Vines to be misplaced and conclude that the trial court’s
modification of educational decision-making authority did not constitute an upward
deviation in Father’s child support obligation.

                             VI. Attorney’s Fees on Appeal

       In the argument section of their appellate briefs, both parties have requested an
award of attorney’s fees incurred on appeal; however, this issue has not been properly
raised in the statement of the issues in either principal brief. As our Supreme Court has
elucidated:

      Appellate review is generally limited to the issues that have been presented
      for review. Tenn. R. App. P. 13(b); State v. Bledsoe, 226 S.W.3d 349, 353
      (Tenn. 2007). Accordingly, the Advisory Commission on the Rules of
      Practice and Procedure has emphasized that briefs should “be oriented
      toward a statement of the issues presented in a case and the arguments in
      support thereof.” Tenn. R. App. P. 27, advisory comm’n cmt.

Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012); see also Forbess v. Forbess, 370
S.W.3d 347, 356 (Tenn. Ct. App. 2011) (“We may consider an issue waived where it is
argued in the brief but not designated as an issue.”). Therefore, both requests for
attorney’s fees on appeal are deemed waived.

                                     VII. Conclusion

       For the foregoing reasons, we affirm the trial court’s judgment in all respects. We
remand this case to the trial court for enforcement of the judgment and collection of costs
assessed below. Costs on appeal are assessed to the appellant, Neil A. Brunetz.




                                                 _________________________________
                                                 THOMAS R. FRIERSON, II, JUDGE




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