                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                             Assigned On Brief March 2, 2006

     ANDREW BLAKE MOOREHEAD v. STACY CHRISTINE FUGITT
                     (MOOREHEAD)

               Direct Appeal from the Chancery Court for Henderson County
                         No. 16216 James F. Butler, Chancellor



                   No. W2005-02711-COA-R3-CV - Filed August 11, 2006




DAVID R. FARMER , J., dissenting.


        I dissent from the majority opinion in this case because, in my view, the parenting plan
clearly and unequivocally designated Father as the primary residential parent. Therefore, I believe
it was necessary for the trial court to determine whether there had been a material change of
circumstances and, if so, whether a modification would be in the child’s best interest. Both parties
sought to modify the permanent parenting plan.

       As our supreme court held recently in Kindrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002):

                The principal issue in this case concerns the proper standard to be applied to
       a petition to modify custody from one parent to the other parent. This issue is largely
       resolved by our recent decision in Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002).
       Blair involved a custody dispute between a parent and a non-parent. We concluded
       that once a valid order of custody has been issued, subsequent custody modification
       proceedings should apply the “standard typically applied in parent-vs-parent
       modification cases: that a material change in circumstances has occurred, which
       makes a change in custody in the child’s best interests.” Id. at 148. As explained in
       Blair, the “threshold issue” is whether a material change in circumstances has
       occurred after the initial custody determination. Id. at 150. While “[t]here are no
       hard and fast rules for determining when a child’s circumstances have changed
       sufficiently to warrant a change of his or her custody,” the following factors have
       formed a sound basis for determining whether a material change in circumstances has
       occurred: the change “has occurred after the entry of the order sought to be
       modified,” the change “is not one that was known or reasonably anticipated when the
       order was entered,” and the change “is one that affects the child’s well-being in a
       meaningful way.” Id. (citations omitted). We note that a parent’s change in
       circumstances may be a material change in circumstances for the purposes of
       modifying custody if such a change affects the child’s well-being.

              If a material change in circumstances has occurred, it must then be
       determined whether the modification is in the child’s best interests. This
       determination should be made according to the factors enumerated in Tennessee
       Code Annotated section 36-6-106.

Id. at 570 (footnotes omitted).

        I believe the judgment of the trial court should be vacated and the matter remanded to the
trial court for a determination of whether there has been a material change of circumstances which
has occurred since the initial custody determination and, if so, whether a modification of the
permanent parenting plan is justified and in the best interest of the child.


                                                     ___________________________________
                                                     DAVID R. FARMER, JUDGE




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