                                                                                           12/12/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               September 4, 2019 Session

                                 IN RE JONATHAN S.

                Appeal from the Juvenile Court for Davidson County
               No. 2009-2850, PT-208361      Sheila Calloway, Judge
                      ___________________________________

                           No. M2018-02072-COA-R3-JV
                       ___________________________________

This is the second appeal of a case involving a father’s petition to modify the parties’
parenting plan, wherein he requested that he be named the primary residential parent. At
the close of father’s proof during the initial trial, mother moved for a directed verdict.
Finding that father’s evidence was insufficient to establish a material change in
circumstances, the trial court granted mother’s motion and dismissed father’s petition.
Father then appealed to this Court. We concluded that father did present sufficient
evidence to establish a material change. Accordingly, we reversed the judgment of the
trial court and remanded the case so that mother could present her evidence. Following
the entry of this Court’s decision—but prior to the remand trial on father’s first petition—
father filed a second petition to modify the parenting plan, raising new allegations. The
parties agreed to consolidate the two matters and further agreed to a bifurcated trial in
which the remand trial on father’s first petition would be conducted first, followed by a
trial on father’s second petition. Additionally, the parties agreed to a timeframe
regarding the presentation of evidence, whereby mother, during the remand trial on
father’s first petition, would be limited to evidence that arose prior to the date of the
initial trial; all evidence arising after that date would be covered in the trial on father’s
second petition. Ultimately, the trial court found that father proved a material change in
circumstances and that it was in the best interest of the child that he be named the
primary residential parent. Consequently, the trial court mooted father’s second petition.
Mother appealed. We affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Karla C. Miller and Rachel S. Upshaw, Nashville, Tennessee, for the appellant, Elizabeth
S.
Tarsila Crawford and James Widrig, Nashville Tennessee, for the appellee, Jonathan S.

Laura A. Stewart, Nashville, Tennessee, Guardian Ad Litem for J.E.S., Jr.

                                               OPINION

                           BACKGROUND AND PROCEDURAL HISTORY

       This is the second appeal of a case between Elizabeth S. (“Mother”) and Jonathan
S. (“Father”), the unwed parents of J.E.S. (the “Child”),1 in which Father sought to
modify the agreed order and permanent parenting plan entered into on June 2, 2014,
which had designated Mother as the primary residential parent (the “2014 Order and
Parenting Plan”). The Child was born in February 2009, but Mother and Father’s
relationship had ended several months prior. At the time the Davidson County Juvenile
Court (the “trial court”) had entered the 2014 Order and Parenting Plan, Mother lived in
Nashville, Tennessee with her then-husband, and Father lived in Michigan.2

       In late June 2015, Father came to Tennessee to pick up the Child in order to
exercise his summer parenting time. While in Michigan, Father, on July 2, 2015, filed a
petition in the trial court to designate him as the primary residential parent as well as an
ex parte restraining order to suspend Mother’s parenting time (the “First Petition”).
According to the First Petition, Mother had lost her home and job, separated from her
husband,3 and moved in with her mother, the Child’s maternal grandmother (“the
Grandmother”). Mother, however, was kicked out of the Grandmother’s home following
a physical altercation between the two of them that occurred on June 6, 2015 and from
which Mother was arrested and charged with assault and domestic violence. Thereafter,
Mother and the Child moved into a friend’s home, renting out two bedrooms and a
bathroom. Following a hearing on Father’s petition for an ex parte restraining order on
July 29, 2015, the trial court ruled that Mother would remain the primary residential
parent in accordance with the 2014 Order and Parenting Plan, pending a hearing on
Father’s petition to modify the parenting plan. Accordingly, the Child returned to
Mother’s custody in Tennessee at the end of the 2015 summer. After a hearing on
Father’s First Petition, the trial court, on September 15, 2015, entered an order, adopting
Father’s proposed parenting plan and designating him as the primary residential parent
(the “2015 Order and Parenting Plan”). As a result, the Child moved back to Michigan
with Father in September 2015 and enrolled in school there.

        1
           In cases involving minor children, it is this Court’s policy to redact names sufficient to protect
the children’s identities.
         2
           Because Father lived in Michigan and Mother lived in Tennessee, Father was to exercise his
parenting time in the summer from June 6th until July 6th, as well as most of the holidays.
         3
           Mother testified that she and her husband separated after she discovered that he was married to
three other women at the same time, with whom he had five or six children, all of whom he had
abandoned.
                                                   -2-
        Mother timely filed a request for a rehearing before the trial court as well as a stay
of the 2015 Order and Parenting Plan. The rehearing was held on April 28 and 29, 2016,
and, at the close of Father’s proof, Mother’s counsel made an oral motion for directed
verdict. In support of the motion, she argued that Father had failed to present evidence
that a material change in circumstances had occurred after the entry of the 2014 Order
and Parenting Plan. In response, Father’s counsel, as well as the Child’s guardian ad
litem, argued that Mother’s instability—evidenced by her unsettled living arrangements,
her altercation with the Grandmother, and her subsequent arrest—constituted a material
change in circumstances sufficient to support a modification of the Child’s primary
residential parent. On May 31, 2016, the trial court entered its order and granted
Mother’s motion for a directed verdict (the “2016 Order”), noting that while there was
“no question that the Mother had a very difficult four month period of time[,]” there was
not enough to support a finding of a material change in circumstances. Additionally, the
trial court directed the parties to operate pursuant to the 2014 Order and Parenting Plan
after the Child finished the 2015-2016 school year in Michigan with Father.4 Father then
appealed the 2016 Order to this Court.

       On July 24, 2017, we reversed the trial court’s decision and remanded the case
back to the trial court with instructions. See In re Jonathan S., No. M2016-01365-COA-
R3-JV, 2017 WL 3149600, at *7 (Tenn. Ct. App. July 24, 2017) (hereinafter “In re
Jonathan I”). Specifically, after citing to Father’s proof at trial, we concluded as follows:

        Compared to the apparent stability in Mother’s life when the initial
        permanent parenting plan was entered, it is not a stretch to say that the
        changes that occurred in Mother’s life in 2015 were significant. Faced with
        that evidence, however, the trial court found only that Mother “had a very
        difficult four month period of time.” The problem with the trial court’s
        assessment, in our view, is that it infers a subsequent improvement in
        Mother’s stability that is not reflected in the record. While a fleeting period
        of hardship may not rise to the level of a material change in circumstance, it
        is difficult to make that determination without evidence that the period of
        hardship is, in fact, fleeting.

Id. at *6. Accordingly, we reversed the trial court’s dismissal of the First Petition and
remanded the case so that Mother could present her evidence. Id. at *7.

       After this Court issued its opinion, Father, on August 31, 2017, filed a separate
petition to modify the permanent parenting plan (the “Second Petition”), in which he
offered additional evidence that a material change in circumstances had occurred since


        4
            Accordingly, the Child moved back to La Vergne, Tennessee to live with Mother on July 6,
2016.
                                                 -3-
the April 2016 rehearing and Father’s appeal.5 At the request of both parties, the trial
court, on November 21, 2017, entered an order consolidating the two matters.6
Additionally, the order provided that the Child would return to Father in Michigan at the
completion of his school’s winter break in Tennessee.7 After a hearing, the trial court, on
April 6, 2018, entered an order on the remand trial on Father’s First Petition, wherein it
found that there had been a material change in circumstances and that it was in the
Child’s best interest to primarily reside with Father in Michigan (the “2018 Order and
Parenting Plan”). With regard to Father’s Second Petition, the trial court entered a
separate order on May 9, 2018, dismissing it as moot “since there was a favorable ruling
on behalf of the Father in the first Petition[.]” After the entry of the 2018 Order and
Parenting Plan, both Father and Mother filed various post-trial motions in order to correct
and clarify finer points in the final order. Following a resolution of these post-trial
motions by the trial court, this second appeal followed.

                                        ISSUES PRESENTED

      As we perceive it, Mother raises four issues on appeal, which we rephrase as
follows:

            1. Whether the trial court erred in finding a material change in circumstances
               such as to warrant a change of custody.
            2. Whether the trial court erred in finding a change of custody was in the
               Child’s best interest.
            3. Whether the trial court abused its discretion in failing to consider all
               evidence through the date of the trial on April 4, 2018.
            4. Whether Mother should be awarded her attorney’s fees and costs incurred
               on appeal.

      Father raises no separate issues of his own but seeks his attorney’s fees and costs
on appeal.

                                      STANDARD OF REVIEW

       In Armbrister v. Armbrister, the Tennessee Supreme Court set out the standards
that apply to appellate review of a trial court’s resolution of a petition to modify an
existing permanent parenting plan:

        5
           Father alleged new facts including Mother’s failure to cooperate at visitation exchanges—which
resulted in Mother being found in contempt of court—issues with the Child’s medical treatment, and
issues regarding Mother placing more importance on the Child’s playing football than his visiting with
Father.
         6
           As such, it was agreed that the trial court would conduct a hearing on the remand of Father’s
First Petition first, followed by a hearing on Father’s Second Petition.
         7
           The Child returned to Father’s custody in December 2017.
                                                  -4-
             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
      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
      circumstance 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 at
      732; Kendrick, 90 S.W.3d at 570; Hass, 676 S.W.2d at 555.

Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013).

                                      DISCUSSION

                         I. Modification of the Parenting Plan

        When a parent files a petition to modify custody, the parent seeking the
modification must demonstrate “that a material change in circumstance has occurred
which makes a change in custody in the child’s best interests.” Kendrick, 90 S.W.3d at
570. Thus, the decision to modify custody is a two-part test. As a threshold issue, the
trial court must determine, by a preponderance of the evidence, whether there has been a
material change in circumstances since the initial custody determination. See In re
M.J.H., 196 S.W.3d 731, 744 (Tenn. Ct. App. 2005). If the court finds that a material
change in circumstances has occurred, the court must proceed to the second step of the
analysis to determine whether the modification sought is in the child’s best interest. Id.
If the court finds that a material change in circumstances has not occurred, it “is not
required to make a best interests determination and must deny the request for a change of
custody.” Pippin v. Pippin, 277 S.W.3d 398, 405 (Tenn. Ct. App. 2008) (quoting Caudill
v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999)).

                        A. Material Change in Circumstances


                                          -5-
      In Blair v. Badenhope, the Tennessee Supreme Court noted the following in
determining whether a material change in circumstances has occurred:
      “[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.” Nevertheless, the following factors have formed a sound basis to
      determine whether such a change has occurred: the change has occurred
      after the entry of the order sought to be modified and 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.

Blair v. Badenhope, 77 S.W.3d 137, 148 (Tenn. 2002) (quoting Solima v. Solima, 7
S.W.3d 30, 32 (Tenn. Ct. App. 1998) (citations omitted)).

        Here, in the 2018 Order and Parenting Plan, the trial court found that, “[b]ased on
all of the evidence presented, even though Mother’s difficulties occurred during a brief
period of time, it does rise to the level of a material change of circumstance.” As noted
by the trial court, the record reflects that Mother separated from her then-husband in
February 2015 after she discovered that he had been living a double-life. Then, in March
2015, the ranch where Mother had been living and working for over three years was sold.
Having lost her husband, her job, and her home in a short period of time, Mother then
moved into the Grandmother’s home with the Child in order “to get back on [her] feet.”
However, this living arrangement ended abruptly following a physical altercation
between Mother and the Grandmother on June 6, 2015, as a result of which Mother was
arrested and charged with assault and domestic violence. After Mother was released
from custody the following day, she and the Child then moved in with a friend of hers,
from whom she rented out two rooms and a bathroom. Later that same month, Father
picked up the Child in order to exercise his summer parenting time, after which Mother
took significant steps to move to Texas.8 Mother, however, never completed the move to
Texas and, on January 9, 2016, moved into a two-bedroom home in La Vergne,
Tennessee in order to take care of her friend’s mother who suffered from stage 3
emphysema. Around the same time, Mother started working for Ritchie Bros.
Auctioneers. On March 1, 2016, her friend’s mother was transferred to hospice care,
after which Mother allowed another friend and her three children to move into the home.9
These changes in Mother’s living situations occurred after the entry of the 2014 Order
and Parenting Plan and were not known or reasonably anticipated when the order was

        8
           Mother classified the move as a “vacation” to visit her family. The trial court, however, noting
that she had signed a lease on an apartment and had found a part-time job, stated that Mother “definitely
made enough steps to follow up on that arrangement.” Moreover, on September 10, 2015, Mother sent
Father a relocation letter stating her intent to move to Texas with the Child in November 2015.
         9
           According to Mother, this friend contacted her and informed her that she was in a “very unsafe”
situation with her own mother. Mother testified as follows: “I completely understood where she was and
without hesitation I said come on, and I said we’re going to be stacked on top of each other, but you need
to be safe, we’ll figure it out. So she came with her three girls.”
                                                   -6-
entered. Moreover, this evidence indicates that Mother’s period of instability was not
merely “temporary,” as questioned by this Court in In re Jonathan I. On the contrary, the
record indicates that Mother’s living and employment situations remained unstable until a
few months before the April 2016 rehearing. Accordingly, the evidence supports the trial
court’s conclusion that such period rose to the level of a material change in
circumstances.

                                           B. Best Interests

        If the court finds a material change in circumstances, it must then determine
whether a modification of the parenting plan is in the child’s best interest. Tenn. Code
Ann. § 36-6-101(a)(2)(C); Armbrister, 414 S.W.3d at 705. In conducting a best interest
analysis, Tennessee Code Annotated section 36-6-106(a) sets forth a non-exclusive list of
fifteen factors to be considered, to the extent relevant. Determining a child’s best interest
is a fact-intensive inquiry, and, depending upon the significance of certain facts, a single
factor can control the outcome of this determination. See Steakin v. Steakin, No. M2017-
00115-COA-R3-CV, 2018 WL 334445, at *5 (Tenn. Ct. App. Jan. 9, 2018). Here, after
finding that a material change in circumstances had occurred, the trial court addressed all
fifteen factors and found that “[a]ll of the difficulties Mother experienced did affect the
best interest of the child.” Mother, however, argues on appeal that the trial court erred in
its application of these factors, noting specifically that, out of the fifteen, the trial court
found that two favored Mother and Father each, and that the remaining eleven were either
neutral or not applicable. We address Mother’s concerns below.

       As to Mother’s contention that the trial court erred in finding that the best interests
of the Child had been affected because the section 36-6-106(a) factors weigh equally in
favor of both her and Father, we note that this is an improper application of the law. This
Court faced a similar argument in Woolbright v. Woolbright. There, the father argued
that the residential parenting schedule ordered by the court was illogical and inconsistent
with the best interests of the child because the majority of the factors set forth in section
36-6-106(a) clearly weighed in his favor. Woolbright v. Woolbright, No. M2016-02420-
COA-R3-CV, 2018 WL 934815, at *7 (Tenn. Ct. App. Feb. 16, 2018). We, however,
noted that “[e]ven if a majority of the factors did weigh clearly in favor of Father, that
would not necessarily mean that the trial court abused its discretion by awarding an equal
amount of parenting time to each parent.” Id. Further, as this Court has stated,
determining a child’s best interest does not call for a “rote examination” of each of the
relevant factors and then a determination of whether the sum of the factors tips in favor of
or against the parent. See In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005).10
Accordingly, while “the sum of the factors” tipped in neither Mother’s nor Father’s favor,

        10
          Stated differently, this Court has also noted that “child custody litigation is not a sporting event
that can be determined by simply tallying up wins and losses.” Paschedag v. Paschedag, No. M2016-
00864-COA-R3-CV, 2017 WL 2365014, at *4 (Tenn. Ct. App. May 31, 2017).
                                                    -7-
such a result is unnecessary to support the trial court’s conclusion that a modification of
the parenting plan is in the Child’s best interest.
       Moreover, the trial court found that “[t]he importance of continuity in the child’s
life and the length of time the child has lived in a stable, satisfactory environment”
favored Father. As this Court has stated:

        [C]ourts faced with a request for modification of the designation of a
        child’s primary residential parent emphasize the importance of continuity in
        the child’s life, and so are normally disinclined to change the original
        designation. This is based on the premise that children tend to thrive in a
        stable environment.

S.A.M.D. v. J.P.D., No. W2011-01256-COA-R3-CV, 2012 WL 5266194, at *18 (Tenn.
Ct. App. Oct. 25, 2012). However, as described above, the Child’s environment while
living with Mother—especially from February 2015 until June 2015—was unstable, the
effects of which are reflected in the record. For example, Father testified during the April
2016 rehearing that when he picked up the Child in June 2015 in order to exercise his
summer parenting time, Mother admitted to him that the recent changes in their lives had
started to affect the Child. Specifically, Father testified as follows:

              [Mother] says that through all the things that [the Child] has been
        through in his life has started to affect him negatively and he’s starting to
        develop behavioral – behavioral problems.

               And she says during that conversation, it’s starting to affect him
        behaviorally with boundary issues and just – she talked about having a very
        hyper, over – hyperactive child, and she’s noticed that he’s starting to have
        behavioral issues based upon what he’s gone through in this life.

Mother’s own testimony during the remand on Father’s First Petition echoed the same,
during which she described the period from February 2015 to June 2015 as one that she
and the Child had “survived.” Mother’s and Father’s testimonies are reflected in the
Child’s report card for the 2014-2015 school year. The report card contains a section
titled “Student Responsibilities for Behavior,” which itself contains six categories:
following school rules; demonstrating self-control; accepting responsibility for actions;
respecting the rights and property of others; respecting authority; and interacting well
with peers. The report card indicates that the Child needed to improve in two of those
categories in the first quarter of the 2014-2015 school year, one in the second, two in the
third, and three in the fourth.11 Notably, the Child’s behavioral issues peaked during the
last quarter of the 2014-2015 school year—the same period of time in which Mother was

        11
          Specifically, the three categories in which the Child needed to improve during the fourth
quarter were following school rules, accepting responsibility for his actions, and respecting authority.
                                                 -8-
experiencing the period of instability recounted above. However, the record reflects that
the Child’s behavioral problems began to improve after he had moved to Michigan with
Father following the entry of the 2015 Order and Parenting Plan. Father testified during
the April 2016 rehearing that, when the Child first came to live with him, “he had lots of
anxiety and hyperactivity” and that he would talk excessively and interrupt class while at
school. Again, Father’s testimony is reflected in the Child’s report card for the 2015-
2016 school year. Initially, the report card indicated needs for improvement in listening
to and following multi-step directions, respecting adults and peers, and practicing self-
control. However, by the third quarter, the report card indicates that the Child’s
evaluation in these categories had improved to “[p]rogressing as expected[.]” The trial
court further found that Child’s improvement could be attributed in part to the fact that
Father enrolled him in weekly play therapy sessions.

       Accordingly, based on the foregoing, we conclude that the evidence does not
preponderate against the trial court’s finding that Mother’s period of instability
constituted a material change in circumstances and that a modification of the parenting
plan was in the Child’s best interest.

                II. Trial Court’s Limitation on the Evidence Presented

         Mother also argues on appeal that the trial court limited her ability to present proof
of her circumstances “from and after April of 2016[,]” meaning the time period following
the rehearing on Father’s First Petition. According to Mother, “the record reflects quite a
bit of confusion over exactly what time period of evidence the Court was to consider on
remand as opposed to the Father’s Second Petition[.]” Father and the Child’s guardian
ad litem, however, suggest that there was no such confusion and that all parties and the
trial court had agreed and “interpreted the remand from the Court of Appeals to mean that
Mother’s evidence should be presented as they then existed at the original date of the
trial.” (emphasis in original). Accordingly, we find it necessary to determine whether the
record reflects that such an agreement between the parties existed.

       After the entry of the 2018 Order and Parenting Plan, both Father and Mother filed
various post-trial motions in order to correct and clarify finer points in the final order.
On May 5, 2018, Father filed a motion for relief under Tennessee Rules of Civil
Procedure 59 and 60 (“Father’s First Motion for Relief”) “to correct certain mistakes and
conflicting rulings . . . that result in logistical issues surrounding Mother’s parenting
time[.]” On May 17, 2018, Mother, pursuant to Rules 59.02, 59.04, 59.06, and 60.02 of
the Tennessee Rules of Civil Procedure, filed a motion for a new trial or, in the
alternative, to alter or amend the judgment. A hearing on these two motions was held on
September 19, 2018, during which Father’s counsel made the following comments:



                                             -9-
              We were before this Court several times on pre-trial motions where
      it was discussed about the time period limitation, and everybody
      understood that and agreed to that.
              There was, what I would call, an open objection every time Mother
      tried to talk about or her counsel tried to elicit information. Beyond the
      2016 date, we would object. We had a standing objection to that. If some
      of that information came into the record, it was by mistake, because Mother
      kept talking about things that were not part of that time period.

      ....

              And, No. 2, all parties and all lawyers agreed on several occasions
      on the record before the Court that the time period would be stipulated to
      the initial filing of Father’s petition in 2015 until the 2016 April trial.

Mother’s counsel replied as follows:

             All I can say on that, Your Honor, is – I obviously was not counsel
      during the trial.

             What I can say is, I’ve looked at every order in this case, every
      pleading in this case. I have not seen an order that states that the time
      period was limited only through April 2016.

The trial court then, on October 15, 2018, entered an order on Mother’s and Father’s
motions, correcting the conflicts in the 2018 Order and Parenting Plan brought to light by
Father and denying all aspects of Mother’s motion. Additionally, in response to the
comments made by Father’s and Mother’s counsels regarding the timeframe for the
presentation of proof, the trial court found the following:

      The Court finds that there was an agreement of the parties based on the
      decision by the appellate court as to what this Court was to do on the
      remand, and that was exactly what was done by this Court according to the
      agreement of the parties. The Court finds that there was an agreement of
      all the parties, at that time, as to their expectations of what was to be
      presented at the remand trial. The Court finds that the remand trial hearing
      was held fairly for all sides and a decision was made based on the evidence
      that was presented at that time.

(emphasis added).

       On October 19, 2018, Father filed another motion for relief under Tennessee Rules
of Civil Procedure 59 and 60 (“Father’s Second Motion for Relief”), requesting that the
                                          - 10 -
trial court further clarify and correct the 2018 Order and Parenting Plan. In the motion,
Father stated that “it is apparent that Mother will appeal to the Court of Appeals this
matter so Father believes the record should be clear for the appellate court.” What Father
wished to make clear for this Court—and which had not yet been included in any prior
order entered by the trial court—was that the agreement regarding the timeframe for the
presentation of proof was discussed not just during the remand trial on Father’s First
Petition, but also during an October 17, 2017 hearing prior to the remand trial:

       The Father would show that everyone was aware, based on the pre-trial
       October 17, 2017 hearing, of what was to be presented on April 4, 2018 to
       finish the original trial and the Father would show that during the trial on
       April 4, 2018 the Father continuously objected to what time period was
       relevant for this remand petition as certain facts were not applicable, or
       relevant, for the [First Petition] but were applicable, or relevant, in Father’s
       Second Petition[.]

The trial court agreed with Father and, on January 22, 2019, entered an order on Father’s
Second Motion for Relief,12 finding in relevant part as follows:

       It is relevant that the Court remembers that there was a discussion about the
       timeframe, and there was an agreement that it should be limited to a certain
       period of time, and the court finds that it would not have per se been
       important to include in an order because it is not something that the court
       would normally include in the findings of fact section of the order because
       it is not really a fact. It maybe should have been included in the procedural
       history section of the order but the Court did not anticipate that an attorney
       would no longer be on the case and that a later argument would be for the
       order to be vacated, and as such because of where we are in this case it
       should be included in an order. At the time of the initial remand trial, there
       was an understanding by all participants that were in the courtroom
       (Mother, Mother’s counsel, Father, Father’s counsel, and the Guardian Ad
       Litem), and an expressed understanding to the Judge, that this portion of
       the hearing would only include the time frame as if the trial had never
       ended, meaning April 2016. There was a specific understanding by all
       parties, at the time, that any proof for the time period from April 29, 2016
       to present would be included with the trial on Father’s Second Petition to
       Modify, which was filed on August 31, 2017. Even though the two
       Petitions were consolidated as to be heard on the same dates/dockets, they
       were not both heard. Father’s Petition to Modify filed on August 31, 2017


       12
          The Order also addressed Mother’s Motion for Clarification of Child Support filed on October
11, 2018; however, such motion is not pertinent to this appeal.
                                               - 11 -
       was then dismissed by this Court as moot in light of the Court’s ruling on
       the remand Petition.
(emphasis added) Additionally, the trial court incorporated a transcript of the October
17, 2017 pre-trial hearing as part of its order, during which the following exchange took
place:

       [Father’s counsel]: [W]hat we have contemplated is to consolidate the
       remand, finish up mother’s proof and then do proof of father’s new petition
       with you, if you would do that, so you don’t bounce around simultaneously.
       [Mother’s counsel]: After the remand is heard.
       [Father’s counsel]: But we need to do the remand—
       The Court: First.
       ....
       [Mother’s counsel]: . . . . I know it’s important that we address these [two
       petitions] in a timely manner, but I don’t think that the remand here is
       going to take – and [Father’s counsel] may have a different belief on this, I
       don’t think the remand is going to take more than half a day. And so to get
       the remand part of this hearing done, we would like to request that be
       sooner rather than later. And if there is a subsequent – because our
       testimony on the remand is going to be limited to that time frame. That’s
       not going to address these new issues.

(emphasis added) Accordingly, we agree with Father and conclude that, prior to the
remand trial on Father’s First Petition, all parties had agreed that Mother’s proof with
regard to the remand trial would be limited to April 29, 2016—the date of the rehearing
on Father’s First Petition. Indeed, Mother’s counsel admitted during the October 17,
2017 pre-trial hearing that her proof “is going to be limited to that time frame.”
Significantly, Mother and her counsel entered into this agreement after Father had filed
the Second Petition and with knowledge of the contents therein.

       Further, while the technical record reflects that the parties had agreed to the above-
referenced presentation of proof prior to the remand trial on Father’s First Petition, the
transcript from the remand hearing itself reflects that all parties were aware of and
requested that the trial court enforce the same during the trial, as well. Indeed, there are
numerous instances in the transcript wherein Mother’s counsel, following objections
lodged by Father’s counsel, observed the parties’ agreement and continued on. For
example, at one point during the trial, Mother was shown photographs of the Child
playing football that were taken in 2018; as Mother began to testify, Father’s counsel
objected:

       [Father’s counsel]: Sorry, I have to interject again. What year are we
       talking about, because we need to stay in 2016[.]
       The Court: 2014 to 2016.
                                          - 12 -
      [Father’s counsel]: 2014 to 2016.
      [Mother]: That’s this year.
      [Mother’s counsel]: It is?
      [Mother]: Yes, sir.
      [Mother’s counsel]: Okay. All right. Let’s move onto the next one.

Mother’s counsel then attempted to address allegations set forth in Father’s Second
Petition, to which Father’s counsel also objected:
       [Mother’s counsel]: And you’ve been castigated a little bit for being
       neglectful and ignoring his head injuries –
       [Father’s counsel]: Objection. That’s not what we’re talking about.
       [Father’s co-counsel]: That’s the second petition.
       [Mother’s counsel]: Okay.

In another instance, Mother was asked about the Child’s activities; when she began to
discuss those in which the Child was involved during the 2018 year, Father’s counsel
objected:
       [Father’s co-counsel]: Your Honor, I just have to object. Again, I think
       we’re into doing activities now.
       The Court: All right. I know this is difficult. When you’re asking
       questions, maybe if you can just make sure it’s between the period of time
       between 2014 and 2016.
       [Mother’s counsel]: Let’s stay 2016 and prior.

In yet another instance, when Mother’s counsel asked her to tell the trial court about the
state of her depression diagnosis and treatment in 2018, Father’s counsel objected:
        [Father’s counsel]: Time out, but we can’t do current. We have to do up
        until 2016.
        The Court: True.
        [Mother’s counsel]: Okay. All right. What was your condition and
        diagnosis in 2016 and where were—
        [Mother]: Yes, sir. I’m just going to back up a little bit . . . .

Moreover, Mother’s counsel even sought to have the agreement regarding the
presentation of proof enforced:
       [Father]: Throughout – and I have been involved in [Mother’s] life for
       many – a long time, even, you know –
       [Mother’s counsel]: 2014 to 2016.
       [Father]: And I can –
       [Father’s counsel]: Your Honor, this goes to the credibility of the witnesses
       that she presented.


                                          - 13 -
       [Mother’s counsel]: Your Honor, we played that game with me. I was
       trying to get to credibility. I was trying to get to circumstance, and I was
       restricted to 2014 to 2016.
       [Father’s counsel]: You didn’t argue credibility.
       The Court: Sustained.
       [Father]: May I answer the question?
       The Court: No.
       [Father’s counsel]: No.

Accordingly, the above-quoted exchanges reflect that Mother and Father and their
counsel were aware of and sought to—and did—enforce the agreement regarding the
presentation of proof during the remand trial.

        Mother, however, now argues on appeal that this agreement “eliminat[ed her]
ability to present proof of her circumstance from and after April of 2016[,]” thus creating
“a two-year period of time in which the Court considered no evidence pertaining to a
material change of circumstance or to the child’s best interests.” Mother’s counsel noted
at oral argument—though failed to include citations to the relevant case law in her brief
on appeal—that this Court oftentimes directs the trial court, on remand, to consider
additional evidence to ensure that any custody order is based on the parties’ current and
actual circumstances. See Flynn v. Stephenson, No. E2019-00095-COA-R3-JV, 2019
WL 4072105, at *7 (Tenn. Ct. App. Aug. 29, 2019) (“In the present case, upon remand,
the trial court may, in its discretion, hear and consider additional evidence regarding the
best interest of the child and the pertinent statutory factors.”); In re Carter K., No.
M2017-01507-COA-R3-JV, 2018 WL 896060, at *6 (Tenn. Ct. App. Feb. 14, 2018) (“In
light of the passage of time and events taking place in the lives at stake, the juvenile court
may, in its discretion, consider additional evidence to ensure than any custody order is
based on the parties’ current actual circumstance.”). While our previous decision in In re
Jonathan I contained no such language, “the trial court has discretion as to whether new
proof should be considered in the absence of an explicit appellate directive.” In re Grace
N., No. M2016-00453-COA-R3-JV, 2017 WL 4402232, at *7 (Tenn. Ct. App. September
27, 2017) (citing Thornton v. Massey, No. W2013-01022-COA-R3-CV, 2014 WL
2472206, at *12 (Tenn. Ct. App. May 30, 2014) (noting that in the absence of a directive
to reopen the proof or consider additional evidence on remand, the trial court’s decision
on whether to reopen the proof was discretionary)). Accordingly, inasmuch as we
remanded this case “so that Mother may present her evidence[,]” In re Jonathan I, 2017
WL 3149600, at *7, the trial court possessed discretion to consider additional evidence,
and, as this Court has stated, “[w]e will reverse such a decision only if the trial court
applied an incorrect legal standard, based its decision on a clearly erroneous assessment
of the evidence, or reached an illogical or unreasonable result.” In re Andrea R., No
M2014-01895-COA-R3-JV, 2015 WL 7749116, at *6 (Tenn. Ct. App. Nov. 30, 2015)
(citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010)).

                                            - 14 -
        After our review of the record, we have found no instances in the transcript from
the remand trial on Father’s First Petition—nor has Mother directed us to any—where
she made any offer of proof as to the “proof of her circumstances from and after April of
2016.” Mother argues that the agreement “eliminat[ed her] ability” to present such proof;
however, while the trial court may have enforced the parties’ agreement,13 Mother
maintained the ability to apprise the trial court as to the nature of the evidence it was
excluding by making an offer of proof. As we have stated, this Court “is not required to
grant relief 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. In other words,
we are not required to grant leave to a party who invited error.” Scot v. Scot, No. M2018-
00562-COA-R3-CV, 2019 WL 2323826, at *8 (Tenn. Ct. App. May, 31, 2019) (quoting
Glass v. SunTrust Bank, 523 S.W.3d 61, 79 (Tenn. Ct. App. 2016)). Moreover, as we
noted above, Mother and Father were both aware of and enforced the agreement
regarding the presentation of proof. Not only are appellate courts “loath to place a trial
court in error when the party complaining on appeal failed to take corrective action with
respect to any error which allegedly occurred below,” but “we are particularly loath to do
so where the complaining party affirmatively acquiesced in the trial court’s action.”
Glass, 523 S.W.3d at 79 (quoting State v. Schiefelbein, 230 S.W.3d 88, 117 (Tenn. Crim.
App. 2007)). While we caution against parties entering into agreements regarding
limitations on proof as to the best interests of a child or of trial courts approving such
agreements, here, Mother nevertheless failed to make an offer of proof so as to preserve
such evidence of her circumstances from and after April 2016. Accordingly, we
conclude that the trial court did not apply an incorrect legal standard, did not base its
decision on an erroneous assessment of the evidence, and did not reach an illogical or
unreasonable result. Accordingly, we find no such abuse of discretion and thus affirm the
judgment of the trial court.

                                        III. Attorney’s Fees

       Mother and Father both request this Court to award their respective attorney’s fees
incurred on appeal. Tennessee Code Annotated section 36-5-103(c) provides a right to
recover attorney’s fees in custody and child support disputes:



        13
           Significantly, our review of the record supports Father’s and the guardian ad litem’s contention
that Mother willingly entered into the agreement regarding the presentation of proof for strategic reasons.
The record reflects that, on July 20, 2017, subsequent to the April 2016 rehearing on Father’s first
petition, the trial court found Mother guilty of four counts of criminal contempt. The grounds for
contempt ranged from Mother’s failure to exchange custody of the Child with Father on the dates set forth
in the parenting plan to her failure to encourage a loving relationship with Father in the presence of the
Child. By entering into the agreement that limited the evidence in the remand trial on Father’s First
Petition to April 2016, Mother kept the documentation and evidence regarding her criminal contempt out
of the record of the remand trial.
                                                  - 15 -
       A prevailing party may recover reasonable attorney’s fees, which may be
       fixed and allowed in the court’s discretion, from the non-prevailing party in
       any criminal or civil contempt action or other proceeding to enforce, alter,
       change, or modify any decree of alimony, child support, or provision of a
       permanent parenting plan order, or in any suit or action concerning the
       adjudication of the custody or change of custody of any children, both upon
       the original divorce hearing and at any subsequent hearing.

Tenn. Code Ann. § 36-5-103(c). Thus, in considering a request for attorney’s fees on
appeal, we consider the requesting party’s ability to pay such fees, the requesting party’s
success on appeal, whether the appeal was taken in good faith, and any other equitable
factors relevant in a given case. See Darvarmanesh v. Gharacholou, No. M2004-0262-
COA-R3-CV, 2005 WL 1684050, at *16 (Tenn. Ct. App. July 19, 2005). In his brief on
appeal, however, Father makes no argument concerning the grounds for his request,
requesting only that “Mother should pay Father’s attorney’s fees as Father maintained
stability for the child throughout this ordeal.” As we have previously noted, “[i]t is not
the role of the courts, trial or appellate, to research or construct a litigant’s case or
arguments for him or her, and where a party fails to develop an argument in support of
his or her contention or merely constructs a skeletal argument, the issue is waived.”
Sneed v. Bd. of Prof'l Responsibility of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010).14
Accordingly, because Mother did not prevail on any of the issues she raised on appeal,
and because we deem Father’s request for attorney’s fees as waived, we deny both
Mother’s and Father’s requests for attorney’s fees on appeal.

                                          CONCLUSION

      For the foregoing reasons, the judgment of the trial court is hereby affirmed and
remanded for such further proceedings as are necessary and consistent with this Opinion.




                                                       _________________________________
                                                       ARNOLD B. GOLDIN, JUDGE




       14
          Further, “[a]n issue may be deemed waived, even when it has been specifically raised as an
issue, when the brief fails to include an argument satisfying the requirements of Tenn. R. App. P.
27(a)(7).” Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012) (citing Baugh v. Novak, 340 S.W.3d 372,
381 (Tenn. 2011)).
                                              - 16 -
