                                                                                          02/20/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                           Assigned on Briefs March 1, 2018

           JOHN GLEN RENKEN v. JENNIFER MARIE RENKEN

               Appeal from the Circuit Court for Montgomery County
              No. MCCCCVDV14-734 William R. Goodman III, Judge
                     ___________________________________

                           No. M2017-00861-COA-R3-CV
                       ___________________________________


In this post-divorce dispute, the father filed a criminal contempt petition against his ex-
wife for alleged violations of a permanent parenting plan. In response, the mother filed a
counter-petition for criminal contempt, modification of custody, and permission to
relocate. The trial court denied the mother’s petition to relocate and the father’s petition
for criminal contempt. The court determined that there was not a material change
sufficient to modify custody but there was material change that met the lower threshold
required for modification of the residential parenting schedule. The court adopted the
position of the guardian ad litem that equal parenting time would serve the children’s best
interest and modified the parenting plan accordingly. The court also found the father in
criminal contempt. We conclude that the court erred in adopting the modified residential
parenting schedule without conducting a best interest analysis. So we vacate and remand
for further proceedings on this issue. In all other respects, we affirm.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON II and ARNOLD B. GOLDIN, JJ., joined.

Jacob P. Mathis, Clarksville, Tennessee, for the appellant, John Glen Renken.

Sheri S. Phillips, Clarksville, Tennessee, for the appellee, Jennifer Marie Renken.
                                                 OPINION

                                                       I.

                                                      A.

       On January 9, 2015, the Circuit Court for Montgomery County, Tennessee,
granted Jennifer Marie Renken (“Mother”) and John Glen Renken (“Father”) a divorce.
As part of the divorce decree the court adopted and incorporated a permanent parenting
plan for the parties’ four minor children. The plan named Father the primary residential
parent and granted him 234 days of residential parenting time. Mother received 131 days
under the plan.

       On August 24, 2016, Father filed a petition for criminal contempt against Mother
for alleged violations of the parenting plan. Mother filed an answer and a counter-
petition for criminal contempt and modification of the parenting plan. Mother asked the
court to find Father in criminal contempt for violations of the parenting plan. She also
sought a change in custody and permission to relocate with the children to Minnesota.

                                                      B.

       The court conducted a one-day hearing on the competing petitions. Only Father,
Mother, and Sergeant Mark Wojnarek, an investigator with the Montgomery County
Sheriff’s Department, testified.1

       The parents’ relationship was highly contentious. Both parents acknowledged
their communication difficulties and their ongoing disputes over interpretation of the
parenting plan. The court had recently clarified various provisions of the plan in
response to a previous modification request. Father contended that Mother’s current
action was simply a continuation of their previous dispute. Mother disagreed, claiming
that the situation had worsened. According to Mother, she and Father could not “agree
about what color the sky is.” Father agreed that their relationship had deteriorated to
such a degree that he would not sit next to Mother, even to support the children.

       Mother explained that Father’s interpretation of the plan vastly limited her
parenting time. The plan gave Mother parenting time every other weekend and two
nights during the week.2 Because the plan specified two nights, not two days, Father
insisted that Mother’s parenting time began at 5 p.m. and ended at 8:30 a.m. the next day.
          1
              We limit our description of the proof at trial only to the testimony relevant to the issues on
appeal.
          2
          Shortly before the hearing, the court clarified that the referenced language in the plan was
intended to allow Mother two days of parenting time each week.
                                                       2
He refused to allow Mother to pick the children up after school at 3:30 p.m. Mother
worked nights at the Clarksville Police Department on a rotation – four days on and four
days off. So, on work days, her parenting time was compressed to two hours in the
evening and less than two hours the next morning.

        Mother also related how Father had recently failed to return the children on time,
forcing Mother to change her summer vacation plans with the children at the last minute.
The plan entitled each parent to two consecutive weeks of summer vacation with the
children upon providing 30 days’ notice. In February, Father notified Mother that one of
his vacation weeks would be July 18-22. Mother, in turn, requested vacation time from
July 23 to August 5. In June, Father amended his request to July 17-22. Mother had
custody until 5 p.m. on July 17. Four days before his planned vacation, Father asked
Mother to deliver the children at 7 a.m. on July 17 so that he could get an early start on
his travel plans. Mother refused and delivered the children at 5 p.m. as previously
planned. According to Father, Mother’s delay prevented him from leaving on vacation
until the morning of July 18. In retaliation, he kept the children an additional two days.

       Mother further complained that Father had failed to furnish her with a working
telephone number to contact the children as required by the plan. See Tenn. Code Ann.
§ 36-6-101(a)(3)(B)(i) (2017). After the discontinuation of his cell phone service, Father
obtained a new phone with a different carrier. But he did not provide the new phone
number to Mother until ten or eleven days later. Father claimed Mother did not need the
phone number because she could use Facetime instead.

       Mother explained that Father’s controlling behavior had escalated. Recently, the
children had witnessed him make a derogatory gesture at her during an exchange. And
Mother believed he was watching her movements. She saw his truck at a coffee shop
across the street from her apartment two to three times per week. After the disputes over
school pick up and summer vacation, Father began filing police reports every time he
believed Mother violated the plan. He also sent letters to the chief of police and
contacted the city council. He even aired his grievances with Mother publicly at a recent
city council meeting. Shortly before trial, she received notice that he had requested a
copy of her personnel file.

       The chief of police asked the Montgomery County Sheriff’s Department to
investigate. Sergeant Wojnarek3 conducted a stalking investigation. Although he was


        3
          Father argues on appeal that the court erred in allowing Sergeant Wojnarek to testify. We
conclude that any objection was waived. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error.”). Although Father’s
attorney initially objected, he then agreed to hear the testimony and never renewed his objection.

                                                    3
concerned about Father’s behavior, as of the time of trial, no criminal charges had been
filed.

       Mother testified that the current plan was unworkable. She asked the court to
modify the plan even if she was not allowed to move. But Father maintained that the
current plan was a good one; it simply needed a few more “tweaks” and clarifications.

        The guardian ad litem recommended that the court award each parent equal
parenting time. Father strenuously objected. He claimed that equal parenting time would
not increase Mother’s time with the children because of her work schedule. And he
complained that she violated the current plan. Mother, however, agreed that a more
consistent schedule would enable her to attend more of the children’s extracurricular
activities.

       After hearing the evidence, the court dismissed Father’s contempt petition and
denied Mother’s petition to relocate. Although determining that the evidence of material
change did not rise to the level necessary to change custody, the court found that the
lower threshold for modification of the parenting schedule had been met. The court
adopted the position of the guardian ad litem and modified the parenting plan to award
equal parenting time. The court also found Father in criminal contempt for two
violations of the parenting plan and sentenced him to two days in jail.

                                           II.

               A. MODIFICATION OF THE PERMANENT PARENTING PLAN

        We review the trial court’s factual findings de novo on the record, with a
presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App.
P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013). We review
the trial court’s conclusions of law de novo with no presumption of correctness. Id. at
692.

       All final divorce decrees involving a minor child must include a permanent
parenting plan. Tenn. Code Ann. § 36-6-404(a) (2017). Once a permanent parenting
plan is incorporated in a final divorce decree, absent an agreement, the parties must
comply with the plan’s terms unless they are modified by the court. Id. § 36-6-405(b)
(2017). Tennessee courts apply a two-step analysis to requests for either a modification
of the primary residential parent or the residential parenting schedule. See, e.g., In re
T.R.Y., No. M2012-01343-COA-R3-JV, 2014 WL 586046, at *11-12 (Tenn. Ct. App.
Feb. 12, 2014) (primary residential parent modification); In re C.R.D., No. M2005-
02376-COA-R3-JV, 2007 WL 2491821, at *6 (Tenn. Ct. App. Sept. 4, 2007) (parenting
time modification). The threshold issue is whether a material change in circumstance has
occurred since the court adopted the current parenting plan. Tenn. Code Ann. § 36-6-
                                            4
101(a)(2)(B), (C). Only if a material change in circumstance has occurred do we
consider whether a modification to the parenting plan is in the child’s best interest by
examining the statutory best interest factors. Cranston v. Combs, 106 S.W.3d 641, 644
(Tenn. 2003).

       A change in circumstance with regard to a residential parenting schedule is “a
distinct concept” from a change in circumstance with regard to custody. Massey-Holt v.
Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007); see also Tenn. Code Ann. § 36-6-
101(a)(2)(B), (C). In the context of a modification of custody, also known as a change in
the primary residential parent, a material change in 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.”
Tenn. Code Ann. § 36-6-101(a)(2)(B)(i). Although there are “no hard and fast rules” for
determining when a material change in circumstance has occurred, factors for our
consideration include: (1) whether the change occurred after entry of the order sought to
be modified; (2) whether the change was known or reasonably anticipated when the order
was entered; and (3) whether the change affects the child’s well-being in a meaningful
way. Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002). Not every change in
circumstance is a material change; “[t]he change must be ‘significant’ before it will be
considered material.” In re T.C.D., 261 S.W.3d 734, 744 (Tenn. Ct. App. 2007).

       The threshold for establishing a material change in circumstance is much lower
where the issue before the court is a modification of the residential parenting schedule.
See, e.g., Boyer v. Heimermann, 238 S.W.3d 249, 259 (Tenn. Ct. App. 2007); see also
Tenn. Code Ann. § 36-6-101(a)(2)(B), (C). The petitioner still must “prove by a
preponderance of the evidence a material change of circumstance affecting the child’s
best interest,” and like a material change for modification of the primary residential
parent, the change must have occurred after entry of the order sought to be modified.
Tenn. Code Ann. § 36-6-101(a)(2)(C); Caldwell v. Hill, 250 S.W.3d 865, 870 (Tenn. Ct.
App. 2007). But, unlike the standard for a change of primary residential parent, whether
the change was reasonably anticipated when the prior plan was entered is irrelevant.
Armbrister, 414 S.W.3d at 703. To modify a residential parenting schedule, “merely
showing that the existing arrangement [is] unworkable for the parties is sufficient to
satisfy the material change of circumstance test.” Rose v. Lashlee, No. M2005-00361-
COA-R3-CV, 2006 WL 2390980, at *2 n.3 (Tenn. Ct. App. Aug. 18, 2006). A material
change of circumstance in this context may include, but is not limited to:

       [S]ignificant changes in the needs of the child over time, which may
       include changes relating to age; significant changes in the parent’s living or
       working condition that significantly affect parenting; failure to adhere to
       the parenting plan; or other circumstances making a change in the
       residential parenting time in the best interest of the child.

                                             5
Tenn. Code Ann. § 36-6-101(a)(2)(C).

       The “determination[] of whether a material change in circumstances has occurred”
is a question of fact. Armbrister, 414 S.W.3d at 692. The parent seeking a modification
of the permanent parenting plan has the burden of proving a material change by a
preponderance of the evidence. Tenn. Code Ann. § 36-6-101(a)(2)(B), (C). As in every
primary residential parent or parenting time determination, the child’s needs are
paramount; the desires and behaviors of the parents are secondary. In re T.C.D., 261
S.W.3d at 742.

1. Material Change in Circumstance

         Father argues the court erred in modifying the parenting schedule because Mother
did not request an increase in parenting time in her counter-petition.4 See Turner v.
Turner, 473 S.W.3d 257, 270 (Tenn. 2015) (explaining that a judgment is absolutely void
if it “is wholly outside of the pleadings, and no consent thereto appears” (quoting Gentry
v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996))). But our courts have the authority to
grant appropriate relief to a prevailing party even if that relief was not demanded in the
pleadings if the issue was tried by consent. See Tenn. R. Civ. P. 54.03. When issues not
raised by the pleadings are tried by consent, “they shall be treated in all respects as if they
had been raised in the pleadings.” Tenn. R. Civ. P. 15.02.

        After reviewing the transcript of the trial, we conclude that the issue of parenting
time was tried by consent. Mother testified, without objection, that the current plan
should be modified even if she was not allowed to move. She explained that an increase
in her parenting time would make it easier to transport the children to their extracurricular
activities. The guardian ad litem recommended equal parenting time. And Father
expressed his view that Mother was not entitled to increased parenting time.

        Father also contends that the court used the wrong standard to determine whether a
material change had occurred. We disagree. The court found that the parents’ inability
to operate under the existing parenting plan was a material change in circumstance
sufficient to modify the parenting schedule. The threshold for finding a material change

        4
          Father also complains that Mother never filed a proposed parenting plan. See Tenn. Code Ann.
§ 36-6-405(a) (“In a proceeding for a modification of a permanent parenting plan, a proposed parenting
plan shall be filed and served with the petition for modification and with the response to the petition for
modification.”). But a parent’s failure to file a proposed parenting plan is not fatal. See Freeman v.
Freeman, No. E2017-02110-COA-R3-CV, 2018 WL 6601563, at *5 (Tenn. Ct. App. Dec. 14, 2018)
(holding that failure to “attach a proposed parenting plan to a petition to modify custody . . . does not
nullify the parent’s attempt to invoke the trial court’s jurisdiction”); Allen v. Allen, No. W2017-02332-
COA-R3-CV, 2018 WL 4677619, at *8 (Tenn. Ct. App. Sept. 28, 2018) (concluding that failure to file a
proposed parenting plan may affect the overall success of the party’s claim but does not necessitate
dismissal).
                                                    6
to modify a parenting schedule is low. Rose, 2006 WL 2390980, at *2 n.3. A finding
that the current plan is not working is enough. Id.; see Lovlace v. Copley, 418 S.W.3d 1,
32 (Tenn. 2013) (holding that “evidence that the parties’ relationship has degenerated to
the point that an existing visitation arrangement has proven unworkable in a significant
way is sufficient to establish a material change”).

       Here, Mother proved a material change in circumstance sufficient to modify the
residential parenting schedule. The parents “can’t agree about what color the sky is.”
Their refusal to communicate and cooperate has made the current plan unworkable.
Mother explained that the constant conflict was adversely affecting the children. And
while Father claimed that Mother was simply reviving old grievances, Mother testified
that the conflict had escalated, pointing to numerous recent events. The court credited
Mother’s testimony on this issue. We give great deference to the trial court’s findings
with regard to credibility of witnesses, In re Alexandra J.D., No. E2009-00459-COA-R3-
JV, 2010 WL 5093862, at *3 (Tenn. Ct. App. Dec. 10, 2010), and we will not overturn
such findings absent clear and convincing evidence to the contrary. See Kelly v. Kelly,
445 S.W.3d 685, 692 (Tenn. 2014).

2. Best Interest Analysis

       The finding of a material change in circumstance does not end the inquiry.
Armbrister, 414 S.W.3d at 705. The court must then determine whether modification is
in the child’s best interest. Burnett v. Burnett, No. M2014-00833-COA-R3-CV, 2015
WL 5157489, at *6 (Tenn. Ct. App. Aug. 31, 2015) (citing Armbrister, 414 S.W.3d at
705). Tennessee Code Annotated § 36-6-106(a) (2017) lists several factors that courts
may consider in making a best interest determination. A court is not required to “list and
discuss each factor.” Keisling v. Keisling, 196 S.W.3d 703, 723 (Tenn. Ct. App. 2005).
But the court’s findings should demonstrate consideration of the relevant factors.

         Here, the court’s best interest analysis was limited to a sole paragraph in the final
order:

         That the Guardian Ad Litem states that it is in the best interests of the
         children that the current Plan be modified whereby the day to day schedule
         is modified to reflect that the parties each have 182.5 days and shall
         exchange the children on a week on, week off basis, exchanging from
         school on Mondays. The Court adopts the position of the Guardian Ad
         Litem.

The best interest analysis is a “particularly fact-intensive process.” McEvoy v. Brewer,
No. M2001-02054-COA-R3-CV, 2003 WL 22794521, at *5 (Tenn. Ct. App. Nov. 25,
2003). Simply adopting the position of the guardian ad litem does not satisfy the
requirement that the court conduct a best interest analysis. So we vacate that portion of
                                             7
the court’s order that modified the residential parenting schedule.

       On remand, the court should consider the factors in Tennessee Code Annotated
§ 36-6-106(a) and make a determination of whether it is in the children’s best interest to
modify the residential parenting schedule. After examining the children’s best interest,
the court may again adopt an equal parenting time schedule or another schedule that
serves the children’s best interest. Until the court renders its decision on remand, the
current, modified plan will remain in place as a temporary plan.

                                 B. CRIMINAL CONTEMPT

        Father also challenges the court’s criminal contempt finding. Under Tennessee
Code Annotated § 29-9-102(3) (2012), courts have the power to “issue attachments, and
inflict punishments for contempts of court” for “[t]he willful disobedience or resistance
of any officer of such courts, party, juror, witness, or any other person, to any lawful writ,
process, order, rule, decree, or command of such courts.” A finding of contempt may be
either civil or criminal in nature. Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465,
473 (Tenn. 2003). Criminal contempt, which is at issue here, “is punishment for an
offense against the authority of the court.” Sherrod v. Wix, 849 S.W.2d 780, 786 n.4
(Tenn. Ct. App. 1992). “In criminal contempt proceedings, the defendant is presumed to
be innocent and must be proven guilty beyond a reasonable doubt.” Doe, 104 S.W.3d at
474. To find either civil or criminal contempt, “a court must find the misbehavior,
disobedience, resistance, or interference to be wilful.” Ahern v. Ahern, 15 S.W.3d 73, 79
(Tenn. 2000); see also Furlong v. Furlong, 370 S.W.3d 329, 336-37 (Tenn. Ct. App.
2011) (finding willfulness to be an element of criminal contempt based upon alleged
disobedience of a court order).

       Once convicted of criminal contempt, a person loses his presumption of
innocence. Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993). On appeal,
the person convicted “bear[s] the burden of overcoming their presumption of guilt on
appeal.” Id. We reverse a contempt finding “if the evidence is insufficient to support the
finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e).

       We can quickly dispose of Father’s contention that the court erred in adjudicating
both criminal contempt and the civil issues in the same hearing. First, Father made no
objection to the court’s procedure below and did not ask the court to bifurcate the
hearing. See Tenn. R. App. P. 36(a). Second, “it is not unusual for a contempt charge to
be tried together with the case from which it arose, for reasons of judicial economy and
for the convenience of the parties.” Norfleet v. Norfleet, No. M2013-00652-COA-R3-
CV, 2014 WL 1408146, at *6 (Tenn. Ct. App. Apr. 9, 2014). While it is important in a
combined hearing “for the trial court to keep the distinctions between the various claims
in mind[,]” Father points to no evidence that the court confused the issues or the burdens
of proof. See id. We find no reversible error in the court’s conduct of the trial.
                                            8
        The trial court found Father in contempt for extending his summer vacation by
two days and for failing to provide Mother with his new cell phone number for eleven
days. The court made no finding that Father’s actions were willful. And Father asserts
that there was no proof at trial regarding willfulness.

       In the context of criminal contempt, willfulness has two elements: (1) intentional
conduct; and (2) a culpable state of mind. See State v. Beeler, 387 S.W.3d 511, 523
(Tenn. 2012); Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346,
357 (Tenn. 2008). A person acts intentionally when “it is the person’s conscious
objective or desire to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-
11-302(a) (2018). To satisfy the culpable state of mind requirement, the act must be
“undertaken for a bad purpose.” Konvalinka, 249 S.W.3d at 357. In other words, willful
disobedience in the criminal contempt context is conduct “done voluntarily and
intentionally and with the specific intent to do something the law forbids.” Id. (quoting
State v. Braden, 867 S.W.2d 750, 761 (Tenn. Crim. App. 1993) (upholding this definition
of willful misconduct for criminal contempt)).

       The evidence at trial supports a finding that Father’s violations of the plan were
willful. Father’s vacation time ended on July 22. Mother’s refusal to shorten her
parenting time on July 17 to accommodate his travel plans did not justify his unilateral
decision to return the children two days late. And Father knew that he was required to
provide Mother with a working phone number to contact the children. He failed to do so
for eleven days with no justifiable excuse.

                                            III.

       We conclude that Father’s violations of the parenting plan were willful. So we
affirm the court’s finding of criminal contempt. And the evidence does not preponderate
against the court’s finding of a material change of circumstance sufficient to allow
modification of the residential parenting schedule. But because the trial court failed to
conduct a best interest analysis, we vacate the trial court’s modification of the residential
parenting schedule. We remand with instructions for the trial court to examine the
factors under Tennessee Code Annotated § 36-6-106(a) to determine whether modifying
the parenting schedule is in the children’s best interest and, if so, to adopt a modified
parenting schedule that serves their best interest. To avoid disruption for the children, the
current, modified plan shall remain in effect as a temporary parenting plan until the court
renders its decision on remand.


                                                   _________________________________
                                                   W. NEAL MCBRAYER, JUDGE


                                             9
