Opinion
No. M2003-02312-COA-R3-CV.
September 7, 2004 Session.
Filed September 27, 2004.
Appeal from the Chancery Court for Lawrence County; No. 10543-01; Stella L. Hargrove, Judge.
Judgment of the Chancery Court Affirmed.
Randy Hillhouse, Lawrenceburg, Tennessee, for the appellant, Tonya Smith Davis.
Christopher V. Sockwell, Lawrenceburg, Tennessee, for the appellee, Mark Dion Davis.
William C. Koch, Jr., P.J., M.S., delivered the opinion of the court, in which William B. Cain and Patricia J. Cottrell, JJ., joined.
OPINION
This appeal concerns a dispute over the custody of a child who is less than three years old. Within four months after the parents' divorce in the Chancery Court for Lawrence County, the father filed a petition to modify the permanent parenting plan because the mother was obstructing and discouraging his visitation with the child. Following a bench trial, the trial court determined that the wife's post-divorce conduct amounted to a material change in circumstances and that the parents should have equal parenting time with the child. The trial court also relieved the father of his child support obligation in light of the change in the permanent parenting plan. The mother has appealed both the change in the permanent parenting plan and the termination of her child support. We affirm the trial court.
I.
Mark Davis and Tonya Smith Davis ("Ms. Smith") married on November 11, 2000 and separated four months later. Before their separation, the couple conceived a child, Katie Davis, who was born on December 27, 2001. They were divorced in the Chancery Court for Lawrence County in February 2002. The permanent parenting plan they entered into at that time allowed Ms. Smith to care for Katie at all times except for two hours each Sunday, Tuesday, and Thursday, certain holidays, two weeks during each summer, and at other such times as both parties agreed. The parenting plan further provided that all major decisions regarding education, non-emergency health care, and religion would be made jointly.
Despite the spirit of cooperation reflected in the permanent parenting plan, Ms. Smith quickly set about obstructing Mr. Davis's efforts to nurture his relationship with Katie. In June 2002, Mr. Davis filed a petition in the Chancery Court for Lawrence County asserting that Ms. Smith had denied him reasonable visitation opportunities and had refused to consult with him when making major decisions concerning Katie. He alleged that Ms. Smith had refused to allow him the two weeks of summer visitation. Mr. Davis also asserted that while Ms. Smith was at work she insisted on placing Katie in daycare even though he was available to care for Katie during the day. In addition, he alleged that Ms. Smith made major decisions without consulting him, including choosing Katie's daycare and physician. Because of Ms. Smith's efforts to exclude him from Katie's life, Mr. Davis requested either to have equal parenting time with Katie or to be designated as the primary residential parent.
Ms. Smith denied Mr. Davis's allegations and filed a counter-petition, which she withdrew at trial, alleging that she had concerns as to Mr. Davis's parenting ability. She sought a home study, counseling, increased child support, and a restraining order against Mr. Davis to prevent him from coming to her work, church, and Katie's doctor's office and daycare. Ms. Smith accused Mr. Davis of exhibiting strange, disruptive, and harassing behavior around Katie. She also filed a motion to dismiss Mr. Davis's petition to modify the parenting plan.
The trial court declined to dismiss Mr. Davis's petition and conducted a hearing in July 2003. During the hearing, both parties stated that the original parenting plan was not in Katie's best interests. Accordingly, the court awarded equal parenting time to Ms. Smith and Mr. Davis on an alternating four-day schedule and terminated Mr. Davis's child support obligation accordingly. After noting that it was impressed with Mr. Davis's desire to be involved in Katie's life, the court observed that the parties' inability to communicate effectively was not in Katie's best interests and recommended individual and group counseling. On this appeal, Ms. Smith takes issue with the trial court's decisions to modify the permanent parenting plan and to terminate her child support.
II. The Standard of Review
Custody and visitation decisions are among the most important decisions that courts make. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn.Ct.App. 2001); Adelsperger v. Adelsperger, 970 S.W.2d 482, 484 (Tenn.Ct.App. 1997). Their chief purpose is to promote the child's welfare by creating an environment that promotes a nurturing relationship with both parents. Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996).
Children thrive in stable environments. Aaby v. Strange, 924 S.W.2d at 627; National Interdisciplinary Colloquium on Child Custody, Legal and Mental Health Perspectives on Child Custody Law: A Deskbook for Judges § 5:1, at 51 (1998) (" Legal and Mental Health Perspectives on Child Custody Law"). Accordingly, the courts favor existing custody arrangements. Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn. 1993); Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn.Ct.App. 1999). In fact, a custody decision, once made and implemented, is considered res judicata upon the facts in existence or reasonably foreseeable when the decision was made. Young v. Smith, 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Steen v. Steen, 61 S.W.3d at 327; Solima v. Solima, 7 S.W.3d 30, 32 (Tenn.Ct.App. 1998).
Despite a preference for continuing existing custody arrangements, the courts have recognized that the circumstances of children and their parents change. Accordingly, our statutes and decisions empower the courts to alter custody arrangements when intervening circumstances require modifications. Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 2003). Thus, courts may modify an existing custody arrangement when required by unanticipated facts or subsequently emerging conditions. Smith v. Haase, 521 S.W.2d 49, 50 (Tenn. 1975); Adelsperger v. Adelsperger, 970 S.W.2d at 485. In the interests of stability in the child's life, a court should not alter an existing custody arrangement until (1) it is satisfied either that the child's circumstances have changed in a material way since the entry of the presently operative custody decree or that a parent's circumstances have changed in a way that affects the child's well-being, (2) it has carefully compared the current fitness of the parents to be the child's custodian, and (3) it has concluded that changing the existing custody arrangement is in the child's best interests. Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002).
There are no bright line rules for determining when a change of circumstances should be deemed material enough to warrant changing an existing custody arrangement. Kendrick v. Shoemake, 90 S.W.3d at 570; Taylor v. Taylor, 849 S.W.2d at 327; Solima v. Solima, 7 S.W.3d at 32. These decisions turn on the unique facts of each case. As a general matter, however, the following principles illuminate the inquiry. First, the change of circumstances must involve either the child's circumstances or a parent's circumstances that affect the child's well-being. Kendrick v. Shoemake, 90 S.W.3d at 570. Second, the changed circumstances must have arisen after the entry of the custody order sought to be modified. Turner v. Turner, 776 S.W.2d 88, 90 (Tenn.Ct.App. 1989). Third, the changed circumstances must not have been reasonably anticipated when the underlying decree was entered. Adelsperger v. Adelsperger, 970 S.W.2d at 485. Fourth, the change in circumstances must affect the child's well-being in some material way. Kendrick v. Shoemake, 90 S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d at 150; Hoalcraft v. Smithson, 19 S.W.3d at 829.
The person seeking to change an existing custody arrangement has the burden of demonstrating both that the child's circumstances have changed materially and that the best interests of the child require a change in the existing custody arrangement. In re Bridges, 63 S.W.3d 346, 348 (Tenn.Ct.App. 2001); Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn.Ct.App. 1991). The threshold question is whether there has been a material change in the child's circumstances. Kendrick v. Shoemake, 90 S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d at 150; Placencia v. Placencia, 48 S.W.3d 732, 736 (Tenn.Ct.App. 2000). If the person seeking the change of custody cannot demonstrate that the child's circumstances have changed in some material way, the trial court should not re-examine the comparative fitness of the parents, Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn.Ct.App. 1999), or engage in a "best interests of the child" analysis. Rather, in the absence of proof of a material change in the child's circumstances, the trial court should simply decline to change custody. Hoalcraft v. Smithson, 19 S.W.3d at 828.
Custody and visitation decisions often hinge on subtle factors, including the parents' demeanor and credibility during the divorce proceedings themselves. Adelsperger v. Adelsperger, 970 S.W.2d at 485. Accordingly, trial courts have broad discretion to fashion custody and visitation arrangements that best suit the unique circumstances of each case. Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999); Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988); Helson v. Cyrus, 989 S.W.2d 704, 707 (Tenn.Ct.App. 1998). It is not our role to "tweak [these decisions] . . . in the hopes of achieving a more reasonable result than the trial court." Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).
However, trial courts must base their custody and visitation decision on the evidence and on an appropriate application of the relevant legal principles. D v. K, 917 S.W.2d 682, 685 (Tenn.Ct.App. 1995). Thus, we review these decisions de novo on the record with a presumption that the trial court's findings of fact are correct unless the evidence preponderates otherwise. Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990); Swett v. Swett, No. M1998-00961-COA-R3-CV, 2002 WL 1389614, at *5 (Tenn.Ct.App. June 27, 2002) (No Tenn. R. App. P. 11 application filed); Tenn. R. App. P. 13(d). A trial court's decision regarding custody or visitation should be set aside only when it "falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." Eldridge v. Eldridge, 42 S.W.3d at 88.
III. The Modification of the Residential Schedule
Ms. Smith takes issue with the trial court's decision to modify the residential schedule on two grounds. First, she asserts that no material change of circumstances has occurred that would require a change in the residential schedule. Second, she insists that even if the circumstances had materially changed, giving the parties equal parenting time was not in Katie's best interest. We disagree with both arguments.
A parent's failure to adhere to the requirements of a permanent parenting plan can be considered a material change in circumstances. Tenn. Code Ann. § 36-6-101(a)(2)(B) (Supp. 2003). This record contains abundant evidence that Ms. Smith has refused to adhere to the plain requirements of the parenting plan and that she has purposely and deliberately embarked on a course which, if not stopped, would eventually erode the relationship between Mr. Davis and Katie. Accordingly, we find that the trial court's conclusion that the circumstances had changed materially following the divorce is amply supported by the record.
Ms. Smith also asserts on appeal that Mr. Davis presented no evidence to show that a change in residential schedule would be in Katie's best interests. While both parties agreed at trial that the permanent parenting plan was not working and that it should be modified, Ms. Smith insists that the only change that was warranted was to give Mr. Davis increased visitation time. She argues that the trial court went too far when it decided to grant the parties equal parenting time. Again, we disagree.
The trial court considered such factors as Katie's young age, the stability of her relationship with both parents, and the willingness and ability of both parents to care for and address her needs. The court noted that Katie's relationships with both parents should be fostered unless inconsistent with Katie's best interests. The trial court found no such inconsistency and, in fact, concluded that it had discovered "nothing in the record that indicates the father does not provide nurturing and love" to Katie while she is in his care and control. After careful review of the record, this Court finds no basis upon which to hold that the equal parenting plan is not presently in Katie's best interests.
During oral argument, this court expressed some concern about the long-term viability of the revised residential schedule because the parents are currently living in different cities that are more than one hour's drive apart. Shuttling Katie back and forth every four days will no longer be in her best interests when she begins school. Ms. Smith insists that these potential difficulties provide a sufficient basis to vacate the revised residential schedule and to designate her as the primary residential parent. We respectfully disagree. Courts must base their decisions on the evidence of what has already happened, not on speculation about what might happen in the future. These parents have the power to avoid these potential difficulties by working out a mutually satisfactory parenting arrangement once Katie begins school.
III. The Termination of Mr. Davis's Child Support Obligation
Ms. Smith also takes issue with the trial court's decision to relieve Mr. Davis of his child support obligation. However, she is no longer entitled to child support because she is not spending a greater amount of time with Katie than Mr. Davis is spending. Only parents who are spending a greater amount of time with the child are entitled to child support. Gray v. Gray, 78 S.W.3d 881 (Tenn. 2002). When neither parent is the primary residential parent and the parenting schedule grants them equal parenting time, neither parent is entitled to child support. Cox v. Cox, No. E2002-02034-COA-R3-CV, 2003 WL 1797944 at *4 (Tenn.Ct.App. Mar. 31, 2003) (No Tenn. R. App. P. 11 application filed); Bailey v. Capps, No. M1999-02300-COA-R3-CV, 2001 WL 310643 (Tenn.Ct.App. April 2, 2001) (No Tenn. R. App. P. 11 application filed).
Under the revised parenting schedule, Mr. Davis and Ms. Smith now have equal parenting time with Katie. This evidence is undisputed; therefore, the trial court was not required to hear additional evidence regarding the parties' incomes or Ms. Smith's need for child support. Based on this record, we have no legal or factual basis to conclude that the trial court erred by relieving Mr. Davis of his child support obligation.
IV.
We affirm the judgment and remand the case to the trial court for whatever further proceedings may be required. We tax the costs of this appeal to Tonya Smith Davis and her surety for which execution, if necessary, may issue.