                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   January 25, 2008 Session

                                   DEVONNA TAYLOR
                                          v.
                                  BRANDICUS McKINNIE

                      Appeal from the Juvenile Court for Gibson County
                           No. 8292     Robert W. Newell, Judge


                     No. W2007-01468-COA-R3-JV - Filed August 5, 2008


This appeal involves modification of a parent’s status as primary residential parent. The mother and
the father never married, and the mother was the children’s primary residential parent. The father
filed a petition to modify, requesting to be named the primary residential parent. As a material
change in circumstances, he alleged that the children had been living primarily with him for the past
several months. After a hearing, the juvenile court established the father as the primary residential
parent, gave the mother alternate parenting time, and set child support payments for the mother. The
mother appeals, arguing that she never received proper notice of the father’s petition to modify, that
there had been no material change in circumstances, and that the evidence did not support a finding
that designating the father as the primary residential parent was in the children’s best interest. We
affirm, finding that the mother waived her challenge to the sufficiency of service of process, and that
the evidence supports the designation of the father as the primary residential parent.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and
DAVID R. FARMER , J., joined.

Jennifer Twyman King, Jackson, Tennessee, for Appellant Devonna Taylor

David Wayne Camp and Michael Brandon Barber, Jackson, Tennessee, for Appellee Brandicus
McKinnie

                                             OPINION

       Petitioner/Appellee Brandicus McKinnie (“Father”) and Respondent/Appellant Devonna
Taylor (“Mother”) had two children together but were never married. Their first child was born on
August 19, 2002, and their second child was born on December 9, 2003.
        The record before this Court does not include the original order designating the children’s
primary residential parent. From the record, however, it appears undisputed that Mother was
originally established as the primary residential parent.1

        In February 2007, Father filed a petition in the Gibson County (Trenton) Juvenile Court,
seeking to be designated as the children’s primary residential parent. In the petition, Father asserted
that there had been a “substantial and material change in circumstances, to wit that the minor
children have been living primarily with [Father] for several months.” The copy of Father’s petition
in the appellate record does not include a certificate of service. The record also contains no
responsive pleadings from Mother.

        A hearing on Father’s petition was held on June 12, 2007. Mother appeared at the hearing
without counsel. At the outset of the hearing, the Juvenile Court Judge asked Mother if she desired
an attorney; she declined. The hearing then proceeded with Mother representing herself. Mother
did not object or state that she was not given notice of Father’s petition.2

       Father was the first witness. He testified that he lives in Whiteville, Tennessee, and that he
is employed full time with a group home for the mentally challenged. At the time of the hearing,
Father’s work shift began at 8:00 a.m and ended at 4:00 p.m., Monday through Friday.3 Father was
under an order to pay child support, and stated that he was current with his obligation.

        Father then testified about the children. He asserted that, since June 2006, he had been the
children’s primary caretaker. He said that he used a calendar to keep track of the time he spent with
his children,4 and claimed that between June 2006 and December 2006, the children had stayed with
him for 135 days. While he was at work, he said, his mother babysat the children. Father said he
had no other children living with him.

        Father proffered the testimony of several witnesses. The pastor of his church testified that
Father regularly attends services on Sunday and Tuesday and has his children with him most of the
time. Another member of Father’s church corroborated the pastor’s testimony. A co-worker of
Father, who has a daughter similar in age to Father’s daughters, testified that he often saw Father
with the parties’ daughters and that their children played together regularly. All of Father’s
witnesses testified that Father appeared to have a loving relationship with the parties’ children, and
that the children appeared to be well cared-for.

         1
         The record contains a petition filed by M other on M ay 26, 2005 with the Gibson County Juvenile Court, in
which she states that she is the custodian of the parties’ two children, and asks the trial court to determine Father’s child
support obligation.
         2
           At one point during her testimony, Mother indicated that she had not received any “letter,” only telephone
calls and text messages from Father “about him taking my kids.” She did not, however, assert that she had not gotten
notice of Father’s petition, or indicate that any lack of notice left her unprepared or unable to proceed.
         3
             Father stated that he had previously worked a twelve-hour shift from 8:00 a.m. to 8:00 p.m.
         4
             The calendar itself is not a part of the record.

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        Mother testified next. She said that she no longer lives in Gibson County, and that she had
lived in Jackson, Madison County, Tennessee since 2005. In response to questions from the court,
Mother disputed Father’s assertion that the parties’ daughters had been staying with him most of the
time. Mother maintained that, over the prior six months, the children had been with her seventy-five
percent of the time. In addition to the parties’ daughters, Mother testified that her three other
children, ages 13, 12, and 7, lived with her as well.

        After Mother testified, her mother, Gloria Croom (“Grandmother”), provided testimony.
Grandmother said that she lives in Atwood, Tennessee.5 Despite the fact that she lived in another
county, Grandmother testified that she babysat all five of Mother’s children while Mother was at
work. Grandmother maintained that Mother, not Father, had physical custody most of the time.
Grandmother could not recall how many days in June of 2006 she took care of the children, but
asserted that she “kept them almost the whole month of July [2006].”

         At the close of the proof, the Juvenile Court read its ruling. It stated:

         The Court finds, upon testimony in court and evidence presented, that circumstances
         exist that the Court orders that custody or primary caregiver of the children . . . be
         given to the father, Brandicus McKinnie. The Court orders child support to be
         terminated. . . . I’m going to ask that a visitation plan be presented to the Court. It
         will be a liberal visitation plan.

In its subsequent written order, the Juvenile Court found a material change in circumstances and
determined that it was “in the best interest and welfare of the minor children to award custody to the
father.” After the hearing, a permanent parenting plan was entered, in which Father was designated
as the primary residential parent. He was awarded parenting time for 261 days per year, and Mother
was awarded parenting time for 104 days. Mother was also ordered to pay $241 per month in child
support to Father.6 Mother now appeals.

        On appeal, Mother raises several issues. She asserts first that she did not receive proper
notice of Father’s petition for modification. She argues next that the Juvenile Court erred in finding
a material change in circumstances sufficient to justify a modification of primary residential parent
status. Aside from a change in circumstances, Mother contends that the Juvenile Court erred in
failing to conduct a comparative fitness analysis, and that the evidence overall does not support a
modification to designate Father as the primary residential parent.
        We review the trial court’s findings of fact de novo on the record, presuming those findings
to be correct “unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d);
Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). We review its legal conclusions de
novo with no presumption of correctness. Campbell, 919 S.W.2d at 35. In addition, we note that

         5
             Atwood is in Carroll County, Tennessee.
        6
          At the hearing, the Gibson County Juvenile Court stated its intent to transfer the case to Hardeman County,
Tennessee, Father’s residence, since neither party was living in Gibson County. The appellate record contains no
indication of such a transfer.

                                                        -3-
“the details of custody and visitation with children are peculiarly within the broad discretion of the
trial judge.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).

        First, we address Mother’s assertion that she was not served with notice of Father’s petition
for modification of custody. A defendant waives her objection to service of process by making a
general appearance before the court in which the suit is pending, without objecting to the adequacy
of the service of process. In re Grosfelt, 718 S.W.2d 670, 672 (Tenn. Ct. App. 1986); see also Dixie
Sav. Stores, Inc. v. Turner, 767 S.W.2d 408, 410 (Tenn. Ct. App. 1988) (“[I]f a party makes a
general appearance and does not take issue with venue, adequacy of service of process, personal
jurisdiction, or other similar matters, the courts customarily find that the party has waived its
objections to these matters.”) (citations omitted). We will find the defendant to have made a general
appearance “unless the contrary appears.” P.E.K. v. J.M., 52 S.W.3d 653, 660 (Tenn. Ct. App.
2001) “Waiver occurs only if there is no objection to personal jurisdiction in the first filing, either
a Rule 12 motion or an answer.” Landers v. Jones, 872 S.W.2d 674, 676 (Tenn. 1994).

         In this case, Mother filed no pleadings in response to Father’s petition, but, nonetheless,
appeared at the hearing on Father’s petition. Mother represented herself, testified before the court,
and brought a witness to testify. She did not challenge the adequacy of service of process, venue,
or the exercise of jurisdiction by the Gibson County Juvenile Court. While she stated at one point
in her testimony that she never received a “letter” from Father, Mother made no statement that could
reasonably be interpreted as an objection or assertion that she did not receive notice of Father’s
petition or of the hearing. Under these circumstances, we must conclude that Mother waived any
objection to the adequacy of service of Father’s petition.

        We next address Mother’s argument that there was insufficient evidence of changed
circumstances to justify modification of her status as the primary residential parent. Under
Tennessee statutes, a parent seeking to modify the primary residence of a minor child must “prove
by a preponderance of the evidence a material change in circumstance.” T.C.A. § 36-6-101(a)(2)(B)
(2005 & Supp.2007). This statute was applied by our Supreme Court in Kendrick v. Shoemake, 90
S.W.3d 566, 570 (Tenn. 2002). The Kendrick Court stated that once a valid order designating the
primary residential parent has been issued, if the other parent seeks to change that designation, the
threshold issue is whether a “material change in circumstances has occurred after the initial custody
determination.” Id. (citing Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002)). The Court may
look to the following factors to determine that a child’s circumstances have changed sufficiently to
warrant modification of the primary residence of the child: (1) whether the change occurred after
entry of the order to be modified; (2) whether the change was known or “reasonably anticipated”
when the previous order was entered; and (3) whether the change “affects the child’s well-being in
a meaningful way.” Id. (quoting Blair, 77 S.W.3d at 150). Under the applicable statute, “[a]
material change of circumstances does not require a showing of a substantial risk of harm to the
child.” T.C.A. § 36-6-101(a)(2)(B). It may include, however, “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.

       Under Kendrick, if, and only if, the court finds such a material change in circumstances, then
the court must determine “whether the modification is in the child’s best interests.” Kendrick, 90

                                                 -4-
S.W.3d at 570. This determination is made within the framework set forth in Tennessee Code
Annotated § 36-6-106.7 Id. The order on Father’s petition to modify the designation of primary
residential parent does not include specific factual findings from which we can determine the basis
for the Juvenile Court’s decision. Thus, we must review the record de novo with no presumption
of the correctness of the Juvenile Court’s factual findings. Goodman v. Memphis Park Comm’n,
851 S.W.2d 165, 166 (Tenn. Ct. App. 1992) (citation omitted).

        Although the record before this Court does not include an original order designating the
primary residential parent, Father does not appear to dispute that, heretofore, Mother has been the
primary residential parent for both of the parties’ children. Thus, we look first at whether the
evidence in the record supports the trial court’s finding that a material change in circumstances
occurred. The changed circumstance alleged by Father is that, for six months prior to his petition,
the parties’ children spent most of their time in his care.

        Mother argues that the evidence in the record does not preponderate in favor of a finding of
changed circumstances, pointing to her own testimony and that of her mother, and contending that
her evidence outweighed the evidence submitted by Father. The Juvenile Court was faced with
contradictory witness testimony on the issue of how much time the children spent with each parent.
Father and his witnesses testified that the children spent the majority of their time in Father’s care,
and Mother and her witness testified that the children spent most of their time with her. The trial
court apparently made an implicit credibility determination in favor of Father, crediting his
testimony that the parties’ daughters had been spending most of their time with him. “[B]ecause
there is no requirement that a trial court make express findings of fact regarding a witness’s

        7
            Section 36-6-106 states:

        (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. The court shall consider all relevant factors, including the
        following, where applicable:
                  (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 the child
                  has lived in a stable, satisfactory environment; . . .
                  (4) The stability of the family unit of the parents or caregivers;
                  (5) The mental and physical health of the parents or caregivers;
                  (6) The home, school and community record of the child;
                  ...
                  (10) Each parent 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.

T.C.A. § 36-6-106(a) (2005 & Supp. 2007).

                                                          -5-
credibility, the absence of such findings does not alter the applicable standard of review.” Richards
v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 733 (Tenn. 2002). We give “considerable deference” to
a trial court’s determinations with regard to witness credibility. Id. Giving appropriate deference
to the trial court’s credibility determinations, the evidence in the record supports a finding that the
children spent more time with Father than with Mother.

        Assuming, then, that the children were spending the majority of their time in Father’s care,
this would be contrary to the original designation of Mother as the primary residential parent. The
change occurred after the original order, and there was no evidence that this was “reasonably
anticipated” at the time the original order was entered. Such a change would also affect the
children’s well-being “in a meaningful way.” Kendrick, 90 S.W.3d at 570. Thus, the evidence
supports the trial court’s finding of a material change in circumstances.

        Finally, Mother contends that the Juvenile Court erred by not performing a comparative
fitness analysis, and that the evidence as a whole did not support its designation of Father as the
primary residential parent. Had a comparative fitness analysis been performed, she maintains, the
evidence would preponderate against naming Father the primary residential parent.

        In the Juvenile Court below, the order designating Father as the children’s primary residential
parent does not include specific findings on the comparative fitness of either Mother or Father. The
order concludes that designating Father as the primary residential parent is in the children’s best
interest, but does not elaborate on the basis for this conclusion.

        As stated above, in a modification proceeding, if the trial court finds a material change in
circumstance, it must then determine whether modifying the primary residence is in the children’s
best interest. Kendrick, 90 S.W.3d at 570. The factors to be considered in a “best interest” analysis
are set forth in Tennessee Code Annotated § 36-6-106. Id. In a proceeding to modify the
designation of primary residential parent, however, the trial court “need not repeat the comparative
fitness analysis that is appropriate at the time of the original custody decree.” Musselman v. Acuff,
826 S.W.2d 920, 922 (Tenn. Ct. App. 1991), overruled on other grounds as recognized by Kesterson
v. Varner, 172 S.W.3d 556, 560-65 (Tenn. Ct. App. 2005).

        Because the Juvenile Court order did not include specific factual findings supporting its
conclusion on the children’s best interest, we review the record de novo with no presumption of
correctness. Goodman, 851 S.W.2d at 166.
        At the hearing, the testimony presented by Father showed that, for a six-month period prior
to the hearing, Father was the children’s primary caregiver. Father provided substantial testimony
about his employment, including his schedule and the nature of his work. Father’s witnesses
described the time he spent with the parties’ daughters and his loving relationship with them.
Mother disputed only Father’s assertion that the children spent most of their time with him. In
contrast, while it is clear that the children love both parents, at the hearing, Mother submitted
virtually no evidence regarding her parenting, her time with the children, or her current or past
employment status. From our review of the record, we find that the evidence preponderates in favor


                                                 -6-
of the Juvenile Court’s finding that designating Father as the primary residential parent is in the
children’s best interest.

      The decision of the trial court is affirmed. Costs of this appeal are taxed to the Appellant,
Devonna Taylor, and her surety, for which execution may issue if necessary.




                                                      ___________________________________
                                                      HOLLY M. KIRBY, JUDGE




                                                -7-
