                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                     August 18, 2016 Session

                      STEPHANIE N. POTTS v. TONY CONATSER

                   Appeal from the Juvenile Court for Montgomery County
                        No. 08JV537, 08JV538 Tim Barnes, Judge
                          ___________________________________

                   No. M2015-02351-COA-R3-JV – Filed January 26, 2017
                         ___________________________________

Father appeals the modification of a parenting plan, which changed the designation of
primary residential parent to Mother and decreased Father‟s parenting time. We vacate
the judgment and remand the case for entry of factual findings in accordance with Tenn.
R. Civ. P. 52.01.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT
and W. NEAL MCBRAYER, JJ., joined.

Adrienne Gilliam Fry, Clarksville, Tennessee, for the appellant, Tony Conatser.

James R. Potter, Clarksville, Tennessee, for the appellee, Stephanie Potts.

                                   MEMORANDUM OPINION1

                           I. FACTUAL AND PROCEDURAL BACKGROUND

      Tony Conatser (“Father”) and Stephanie Potts (“Mother”) are the parents of twins
who were born in 2002. On April 2, 2009, the court adopted a parenting plan which
designated Father as primary residential parent, with each parent spending 182 ½ days of

1
    Tenn. R. Ct. App. 10 states:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
parenting time with the children. On August 16, 2013, Mother filed a petition to modify
the plan, asserting that the plan was no longer workable for various reasons and
requesting, inter alia, that her proposed parenting plan be adopted and that child support
be modified. Father answered and filed a counter petition, asserting that there was a
material change of circumstances sufficient to warrant a modification of the residential
schedule; that Mother was willfully unemployed and in contempt of the order entered
April 2, 2009; and requesting that his proposed plan be adopted.

        Trial on the petitions was held on May 11, 2015; after hearing the proof and
interviewing the children, the court made a ruling from the bench, to take effect in two
days, in which it, inter alia, designated Mother as primary residential parent; set Mother‟s
income at $8.75 per hour for a 40 hour week and Father‟s income at $41,460.40 per year
according to his 2014 W-2 and an additional $900 per year from a fireworks stand he
operated; adjusted Father‟s parenting time to six out of every fourteen days; and set a
schedule for holiday visitation. On September 30, 2015, the court entered an order,
entitled “Findings of Fact and Conclusions of Law,” in which it made findings relative to
the factors at Tennessee Code Annotated section 36-6-106(a) and adopted “[t]he
Permanent Parenting Plan effective May 13, 2015.”2 The September 30 order was
amended on December 1 in a document styled “Amended Findings of Fact and
Conclusions of Law” to order that Father pay Mother $100.00 in attorney‟s fees.

      Father appeals, contending that the court erred in changing the designation of
primary residential parent and in reducing his parenting time.

                                    II. STANDARD OF REVIEW

       In considering modifications to parenting plans, courts are to engage in a two-part
analysis. The court must first determine whether a material change in circumstance has
occurred since the previous order. Burnett v. Burnett, No. M2014-00833-COA-R3-CV,
2015 WL 5157489, at *6 (Tenn. Ct. App. Aug. 31, 2015) (citing Tenn. Code Ann. § 36-
6-101(a)(2)(B); Armbrister v. Armbrister, 414 S.W.3d 685, 697-98 (Tenn. 2013)). If so,
then the court proceeds to determine whether a modification is in the best interest of the
children. Id. (citing Armbrister, 414 S.W.3d at 705)). In making the latter determination,
the court is to utilize the factors at Tennessee Code Annotated section 36-6-106(a).



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  There is no written parenting plan dated May 13, 2015 in the record; there is only the oral ruling made
on May 11, which the court stated would take effect in two days. There was no parenting plan order
accompanying the order entered September 30; there is a Permanent Parenting Plan Order signed by the
court on August 19 and entered by the clerk on August 20, which appears in the record immediately prior
to the September 30 order. It is apparent that the August 20 parenting plan order was intended to reflect
the oral ruling and, in this opinion, we consider references to the “Permanent Parenting Plan effective
May 13, 2015” to be to the Permanent Parenting Plan Order entered August 20.
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        Whether a material change of circumstance has occurred is a factual question.
Armbrister, 414 S.W.3d at 692-93. We review the trial court‟s factual findings de novo,
accompanied by a presumption of the correctness of those findings, unless the evidence
preponderates otherwise. Id. at 692 (citing Tenn. R. App. P. 13(d); In re C.K.G., 173
S.W.3d 714, 732 (Tenn. 2005); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002);
Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). Trial courts are granted broad
discretion in decisions regarding parenting arrangements. Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001) (citing Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988);
Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)). We will not disturb a
trial court‟s parenting arrangement absent an abuse of discretion, which occurs when a
decision is based on an incorrect legal standard, is contrary to the preponderance of the
evidence, reaches an illogical result, or causes an injustice. Armbrister, 414 S.W.3d at
693 (quoting Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011)).

                                      III. ANALYSIS

      Rule 52.01 of the Tennessee Rules of Civil Procedure requires the trial court to
make findings of fact:

      In all actions tried upon the facts without a jury, the court shall find the
      facts specially and shall state separately its conclusions of law and direct
      the entry of the appropriate judgment… If an opinion or memorandum of
      decision is filed, it will be sufficient if the findings of fact and conclusions
      of law appear therein. . . .

This court discussed the importance of findings under Rule 52.01 in Gooding v.
Gooding:

      Because “discretionary decisions must take the applicable law and the
      relevant facts into account,” Lee Med., Inc. [v. Beecher], 312 S.W.3d [515]
      at 524 ](Tenn. 2010)], our deference to a trial court‟s discretionary decision
      for which Rule 52.01 compliance is required may abate when the record
      does not reveal which legal principles and facts the trial court relied upon in
      making its decision. The effect of the trial judge failing to identify the
      reasoning underlying a discretionary decision was addressed in a recent
      decision by this court involving a challenge to a parenting plan:

          [W]e cannot determine whether the trial court applied an incorrect
          legal standard or relied on reasoning that caused an injustice
          because we do not know what legal standard the court applied, or
          what reasoning it employed. See Halliday v. Halliday, No. M2011-
          01892-COA-R3-CV, 2012 WL 7170479, at *12 (Tenn. Ct. App.
          Dec. 6, 2012), perm. app. denied (Tenn. Apr. 11, 2013) (explaining
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           that “this Court cannot determine whether the trial court abused its
           discretion” in the absence of factual findings by the trial court); see
           also In re Connor S.L., No. W20120-00587-COA-R3-JV, 2012 WL
           5462839, at *4 (Tenn. Ct. App. Nov. 8, 2012) (“findings of fact are
           particularly important in cases involving the custody and parenting
           schedule of children,” and without such findings “we are unable to
           afford appropriate deference to the trial court‟s decision”).
           “„Discretionary choices are not left to a court‟s inclination, but to
           its judgment; and its judgment is to be guided by sound legal
           principles.‟” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)
           (quoting Martha S. Davis, Standards of Review: Judicial Review of
           Discretionary Decisionmaking, 2 J.App. Prac. & Process 47, 58
           (2000)). Thus, an abuse of discretion will be found “when the trial
           court ... fails to properly consider the factors on that issue given by
           the higher courts to guide the discretionary determination.” Id.

       When the trial court fails to explain the factual basis for its decisions, we
       may conduct a de novo review of the record to determine where the
       preponderance of the evidence lies or remand the case with instructions to
       make the requisite findings of fact and conclusions of law and enter
       judgment accordingly.

477 S.W.3d 774, 782–83 (Tenn. Ct. App. 2015) (quoting In re Noah J., No. W2014-
01778-COA-R3-JV, 2015 WL 1332665, at *5 (Tenn. Ct. App. Mar. 23, 2015), no perm.
app. filed) (internal footnote omitted).

       In the order under review, the court made findings as respects the factors at
Tennessee Code Annotated section 36-6-106(a). The trial court did not state any findings
with respect to the determination that a material change in circumstance had occurred.

        While the oral ruling at the May 11, 2015 hearing contains statements that relate to
the decision to name Mother primary residential parent, those statements do not
constitute findings under Rule 52.01; moreover, the transcript of the ruling was not
incorporated into the final order and, consequently, the remarks do not inform this
Court‟s review. See Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977) (“No
principle is better known than that which states that a Court speaks through its orders and
decrees entered upon the minutes of the Court”). In the absence of such findings, we are
left with no guidance as to the basis of the court‟s determination that a material change in
circumstance had occurred and that the plan should be modified. We cannot give the trial
court the deference our standard of review requires.




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                                    IV. CONCLUSION

        For the foregoing reasons, we vacate the order modifying the parenting schedule
and changing the designation of primary residential parent; the case is remanded for the
trial court to expeditiously make findings of fact in accordance with Rule 52.01 as to the
determination that there is a material change in circumstance and the specific
modifications at issue.




                                                RICHARD H. DINKINS, JUDGE




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