Armbrister v. Armbrister

• Decision Date: 21 October 2013
• Docket Number: No. E2012–00018–SC–R11–CV.,E2012–00018–SC–R11–CV.
• Citation: 414 S.W.3d 685
• Parties: Andrew K. ARMBRISTER v. Melissa H. ARMBRISTER.
• Court: Tennessee Supreme Court

414 S.W.3d 685

Andrew K. ARMBRISTER

v.Melissa H. ARMBRISTER.

No. E2012–00018–SC–R11–CV.

Supreme Court of Tennessee,

at Knoxville.

May 30, 2013 Session Heard at Nashville.¹

Oct. 21, 2013.

Thomas C. Jessee, Johnson City, Tennessee, for the appellant, Andrew K. Armbrister.

David L. Leonard, Greeneville, Tennessee, for the appellee, Melissa H. Armbrister.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

CORNELIA A. CLARK, J.

The issue in this post-divorce proceeding is whether a parent seeking to modify a residential parenting schedule in a permanent parenting plan must prove that an alleged material change in circumstances could not reasonably have been anticipated when the residential parenting schedule was originally established. We hold that Tennessee Code Annotated section 36–6–101(a)(2)(C) (2010), enacted in 2004, abrogated any prior Tennessee decision that could have been read as requiring such proof. Accordingly, because the father who sought modification in this case was not required to prove that his remarriage, relocation, changed work schedule, and natural aging of his children were unanticipated, we reverse the Court of Appeals' judgment and reinstate the trial court's judgment modifying the residential parenting schedule to give the mother 222 days and the father 143 days of residential parenting time with the two minor children.

I. Factual and Procedural History

The facts of this case are largely undisputed. Andrew Armbrister (“Father”) and Melissa Armbrister (“Mother”), both dentists, married on June 10, 2000, and moved across Tennessee, from Columbia to Greeneville. Father purchased a 50% interest in a dentistry practice, and Mother worked in another Greeneville dentist's office. The couple had two children, a son, born August 28, 2006, and a daughter, born December 1, 2008.

Less than a month after their daughter's birth, on December 23, 2008, Father filed for divorce. Mother filed a counter complaint for divorce on January 20, 2009. A temporary parenting arrangement was established.² The matter was tried on August 24, 2009. On September 2, 2009, the trial court issued a memorandum opinion granting Mother a divorce and allocating parental responsibilities.³

The trial court, considering the various factors enumerated in the relevant statutes, found that both parents had loving and emotional ties with the children and were “appropriately disposed” to provide the children with food, clothing, education, medical, and other care. The trial court determined that Mother's home was stable and secure and that she had manifested an ability to instruct and encourage the children to prepare them for success in life and society. The trial court found that Mother had been “the primary caregiver for the children and had taken the greater responsibility for performing parental responsibilities” during the marriage and “particularly following the parties' separation.” On the other hand, the trial court found that Father had “spent considerable portions of his recreational time traveling and playing golf” during the marriage. Because the parties separated shortly after the birth of their daughter, the trial court further found that Father had “spent limited co-parenting time” with his daughter.

Based on these findings, the trial court adopted a Permanent Parenting Plan (“PPP”), which named Mother as the primary residential parent and granted her sole decision-making authority for the children regarding education, non-emergency health care, religious upbringing, and extracurricular activities. The residential parenting schedule provided for Father to exercise parenting time with the children: (1) every other weekend from 6:00 p.m. on Friday to 6:00 p.m. on Sunday; (2) every other Wednesday from 5:00 p.m. to 8:00 p.m.; (3) alternating holidays and school breaks; and (4) two non-consecutive weeks in the summer months. Overall, the residential parenting schedule allocated 280 days to Mother and 85 days to Father. Father's child support obligation was set at $2,014 per month.

On September 25, 2009, the trial court entered a final judgment of divorce, which incorporated the September 2, 2009 memorandum opinion and PPP. On September 30, 2009, Father filed a motion to reconsider, arguing, among other things, that the trial court erred by affording him less time under the PPP than he had received between the filing of the divorce complaint and the trial of the matter under the temporary parenting arrangement. On February 17, 2010, the trial court denied Father's motion to reconsider. Father did not appeal.

Almost one year later, on February 11, 2011, Father filed a one-paragraph motion ⁴ to modify the PPP due to changed circumstances. Father alleged that he had remarried, that his work schedule had changed, that Mother had been unwilling to allow any modification of the visitation schedule, and that mediation had been attempted unsuccessfully. Father requested equal parenting time with the children. On March 25, 2011, Mother filed a response, asking the trial court to dismiss the motion based on Father's failure to allege “an unanticipated substantial and material change in circumstances justifying modification of the parties' [PPP].”

By the time of the October 13, 2011 hearing on the motion, the parties' son was five years old and their daughter was almost three years old. Mother, testifying first, stated that the PPP had worked well and should not be changed because the children were well-adjusted and stable. Mother explained that she had been surprised that the PPP functioned so well because she initially believed it gave Father “a lot more quality time” with the children than he had spent with them during the marriage.

Mother, whose work schedule had not changed since the PPP was adopted, worked three days per week, Tuesday through Thursday, from 8:30 a.m. to 5:00 p.m. During this time, the children stayed at a daycare center. Mother usually drove them to and from the daycare center, but the children's maternal grandmother drove them to daycare at 9:00 a.m. and picked them up at 3:00 p.m. whenever the maternal grandmother visited Mother and the children. Mother acknowledged that she relied on the maternal grandmother, instead of Father, to transport the children to and from daycare and to care for the children on the rare occasions Mother had been away from home overnight since the divorce. Mother testified that, although she ordinarily consulted Father regarding decisions about the children's education and extracurricular activities and although no disagreements had arisen, she preferred to retain sole decision-making authority regarding such matters to avoid potential future disagreements.

Mother disagreed with Father's allegation that she had been inflexible or unwilling to allow him parenting time in addition to that provided by the residential parenting schedule. Mother introduced a January 5, 2011 email by which she had agreed to Father's requests to switch one weekend and one Wednesday and had also agreed to allow the children to spend an extra night with Father near his birthday. Mother testified that she allows Father to pick up the children earlier than the residential parenting schedule requires when he and the children are traveling out of town. Mother further stated that she had already agreed to allow Father three additional hours on October 27, 2011, about two weeks after the hearing, so the children could attend a Halloween party at his country club.

Despite her disagreement with some of Father's allegations, Mother testified that she and Father get along well. To illustrate, Mother introduced a text message Father sent her on May 8, 2011, which stated: “I just wanted to tell you happy birthday and let you know that I think you're an amazing mother to our children and I hope you have a great day tomorrow.” Although Father had a relationship with his current wife during his marriage to Mother, Mother stated that she and Father's current wife get along “amazingly well.” Mother testified that Father's current wife has “been good with the kids,” and Mother agreed that the children also get along well with their stepmother. In Mother's opinion, the PPP had “completely” and “definitely” allowed the children to establish a positive relationship with their stepmother.

Testifying next, Father explained that, after the divorce was finalized, he relocated his dental practice and moved in June 2010 from Greeneville to Jonesborough. He now owns a residence about thirty minutes from Mother's home. Father stated that he married Erica Bray Armbrister (“Mrs. Armbrister”) on October 16, 2010, and that she had developed a “great relationship” with the children. As an example, Father said that Mrs. Armbrister “enjoy[ed] doing educational things” with his five-year-old son, such as helping him learn to read and write, and that she and his daughter get “along great.”

To support his request for modification, Father reiterated the changes that have occurred since the PPP was adopted, including: (1) his remarriage; (2) Mrs. Armbrister's becoming a willing and participating stepparent; (3) his relocation from a rental property in Greeneville to his own home in Jonesborough; (4) the changes in his work schedule, including greater flexibility to spend time with the children since the sale of his interest in the Greeneville dentistry practice and purchase of his own dentistry practice in Johnson City; and (5) the increased age of the children, which Father viewed as very significant, pointing out that his son was three years old and his daughter not quite one year old when the PPP was adopted.

Father emphasized that he had participated fully in his children's extracurricular activities since the PPP was adopted, explaining that he had attended his son's soccer, basketball, and flag football...