Caldwell v. Hill

• Decision Date: 27 June 2007
• Docket Number: No. E2007-00082-COA-R3-JV.,E2007-00082-COA-R3-JV.
• Citation: 250 S.W.3d 865
• Parties: Crystal Lashea CALDWELL v. Joshua Randall HILL.
• Court: Tennessee Court of Appeals

250 S.W.3d 865

Crystal Lashea CALDWELL v. Joshua Randall HILL.

No. E2007-00082-COA-R3-JV.

Court of Appeals of Tennessee, at Knoxville.

June 19, 2007 Session.

June 27, 2007.

Rehearing Denied July 24, 2007.

Permission to Appeal Denied by Supreme Court November 19, 2007.

Thomas V. Testerman, Newport, Tennessee, for the Appellant, Crystal LaShea Caldwell.

Brad L. Davidson, Newport, Tennessee, for the Appellee, Joshua Randall Hill.

OPINION

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.

Father and Mother entered into an agreed permanent parenting plan following their separation in 2004. In 2005, Father requested a modification of the plan to increase his co-parenting time with the parties' daughter. The petition to modify was filed shortly after the trial court increased his child support from $30 per week to more than $100 per week, and also less than a week after his marriage to his longtime girlfriend. The trial court found that Father's marriage and the fact that he had quit smoking marijuana were both material changes of circumstance, and that Father should receive equal parenting time with the child. Mother appeals. After careful review, we find that there has been no material change of circumstance justifying reconsideration of the parties' parenting arrangement. Accordingly, we reverse the trial court's modification of the parenting plan and remand.

I. Background

This dispute stems from the modification of a parenting arrangement. Crystal LaShea Caldwell ("Mother") and Joshua¹ Randall Hill ("Father") are the parents of one child, Brandi Nicole Hill, born October 13, 2000. Mother was 17 years old and a high school junior when she became pregnant with the child. Father was 22 or 23 years old at the time.² A few weeks after Mother attained majority, she and Brandi moved in with Father. Approximately three years later, the couple separated. The parties submitted an agreed Permanent Parenting Plan to the trial court, which was approved on April 7, 2004. The plan provided that Mother was the primary residential parent of the child, with Father having parenting time with the child every other weekend and one night per week. The parties also agreed that Father would pay $30 per week in child support to Mother.

The following year, Mother petitioned the trial court for modification of Father's child support obligation. On September 20, 2005, the trial court entered an order increasing Father's child support payment to $106 per week upon finding that Father was earning substantially more money than he did at the time the initial parenting plan was entered.³ Three days later, Father married his longtime girlfriend, Benita Raleigh.

Shortly thereafter, on October 11, 2005, Father filed a Motion for Modification of Parenting Plan and a proposed Parenting Plan, requesting that he and Mother have equal parenting time on an alternating week schedule. The proposed plan also provided that Father would pay $141 per month (approximately $35 per week) in child support-an amount that was not much more than the original child support payments of $30 a week set forth in the 2004 Permanent Parenting Plan. Mother filed a motion to dismiss Father's petition, and Father then filed a "Further Motion for Modification of Parenting Plan," which asserted the following as a material change in circumstances:

A substantial and material change in circumstances has occurred in that the Defendant Joshiauh Randall Hill was wed to the former Benita Raleigh on September 23, 2005. Before marriage Mr. Hill had Benita Raleigh stay elsewhere while he exercised co-parenting time. However, this is no longer necessary.

A trial was conducted on May 22, 2006, and the trial court entered an order on June 27, 2006, granting Father equal co-parenting time on an alternating week basis until entry of a new parenting plan. The trial court invited the parties to negotiate a parenting plan that reflected the new co-parenting arrangement, and if such negotiations were unsuccessful, each party was directed to file his or her own proposed parenting plan with the trial court. The trial court entered a Permanent Parenting Plan Order on December 21, 2006, which established a co-parenting schedule identical to that in the June 27, 2006, order and set Father's child support obligation at $141 per month.⁴ Mother appeals.

II. Issue Presented

The issue presented is whether the trial court erred in modifying the existing Permanent Parenting Plan to provide for 50/50 co-parenting time between the parties.

III. Standard of Review

In a non-jury case such as this one, we review the record de novo with a presumption of correctness as to the trial court's determination of facts, and we must honor those findings unless there is evidence which preponderates to the contrary. Tenn. R.App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to the trial court's factual findings. Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999). The trial court's conclusions of law are accorded no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

The paramount concern in a child custody case is the welfare of the child. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001). The Supreme Court has noted that "the details of custody and visitation with children are peculiarly within the broad discretion of the trial judge." Id. at 85 (quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.Ct.App.1973)). Appellate courts will not interfere with a trial court's custody decision unless it is shown that the trial court exercised its discretion in an erroneous manner. Koch v. Koch, 874 S.W.2d 571, 575 (Tenn.Ct.App.1993); Mimms v. Mimms, 780 S.W.2d 739, 744-45 (Tenn.Ct.App.1989).

Under the abuse of discretion standard, we must uphold the trial court's ruling as long as reasonable minds could disagree about its correctness. DeLong v. Vanderbilt University, 186 S.W.3d 506, 511 (Tenn.Ct.App.2005). According to the Tennessee Supreme Court, "A trial court abuses its discretion only when it applies an incorrect legal standard, or reaches a decision which is against logic or reasoning that causes an injustice to the party complaining." Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001) (internal quotations omitted). Applying this standard, we are not permitted to substitute our judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998).

IV. Analysis

As the Supreme Court has noted on several occasions, trial courts are vested with wide discretion in matters of child custody. Eldridge v. Eldridge, 42 S.W.3d at 85; Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.1988). A determination of custody and visitation often hinges on subtle factors such as the parents' demeanor and credibility during the trial proceedings. Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn.Ct.App.1996). Absent some compelling reason otherwise, considerable weight must be given to the trial court's judgment with respect to the parties' credibility and their suitability as custodians of children. Bush v. Bush, 684 S.W.2d 89, 94-95 (Tenn.Ct.App.1984). In cases such as this, the welfare and best interests of the child are of paramount concern. Tenn.Code Ann. § 36-6-106(a); Koch v. Koch, 874 S.W.2d at 575.

Tennessee Code Ann. § 36-6-601 provides as follows regarding requests for a change of custody:

If the issue before the court is a modification of the court's prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of 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). Thus, the threshold inquiry for a trial court faced with a petition to modify the parties' parenting arrangement is whether a material change in circumstance has occurred. See, e.g., Cowan v. Hatmaker, No. E2005-01433-COA-R3-CV, 2006 WL 521492, at *4 (Tenn. Ct.App. E.S., filed March 3, 2006); Mulkey v. Mulkey, No. E2004-00590-COA-R3-CV, 2004 WL 2412610, at *5 (Tenn. Ct.App. E.S., filed Oct. 28, 2004); Harris v. Harris, 832 S.W.2d 352, 353 (Tenn.Ct.App.1992); Woodard v. Woodard, 783 S.W.2d 188, 189 (Tenn.Ct.App.1989). The burden of proof is on the petitioner to establish such a change. Tenn.Code Ann. § 36-6-101(a)(2)(B). We have previously stated that to constitute a material change of circumstance as contemplated by the statute, "the change must occur after the entry of the order sought to be modified and the change cannot be one that was known or reasonably anticipated when the order was entered." Cowan, 2006 WL 521492, at *4. Furthermore, the change must materially affect the child's well-being. Id.

In its order, the trial court found two material changes of circumstance since the entry of the initial Permanent Parenting Plan, stating as follows:

The Court finds the father had personal issues in the past that prevented him from having equal co-parenting time with the minor child. These personal issues of the father have been resolved by him and constitute a substantial and material changes [sic] of circumstances.

a. The father no longer uses marijuana.

b. The father has married Benita Raleigh on September 23, 2005. Prior to the marriage the father and Benita Raleigh lived together without the benefit of marriage. Benita Raleigh stayed...