Kendrick v. Shoemake

• Decision Date: 01 November 2002
• Citation: 90 S.W.3d 566
• Parties: Timothy Lee KENDRICK v. Judy Kendrick SHOEMAKE.
• Court: Tennessee Supreme Court

Page 566

90 S.W.3d 566

Timothy Lee KENDRICK v. Judy Kendrick SHOEMAKE.

Supreme Court of Tennessee, at Knoxville.

April 30, 2002 Session Heard at Jefferson City.¹

November 1, 2002.

COPYRIGHT MATERIAL OMITTED

Glenna M. Ramer, Chattanooga, Tennessee, for the appellant, Timothy Lee Kendrick.

Harold L. North, Jr. and Robert D. Philyaw, Chattanooga, Tennessee, for the appellee, Judy Kendrick Shoemake.

OPINION

JANICE M. HOLDER, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and WILLIAM M. BARKER, JJ, joined.

We granted this appeal to determine the proper standard to apply to a petition to modify custody when both parents are parties. We hold that a trial court may modify an award of child custody when both a material change of circumstances has occurred and a change of custody is in the child's best interests. We hold that the preponderance of the evidence does not support the trial court's ruling that a material change of circumstances has occurred. We therefore do not address the second inquiry — whether a change of custody is in the child's best interests. The judgment of the Court of Appeals is affirmed, as modified, and the case is remanded to the trial court for proceedings consistent with this opinion.

PROCEDURAL HISTORY

Timothy Kendrick ("Mr. Kendrick") and Judy Kendrick Shoemake ("Mrs. Shoemake") were married on April 25, 1981. Two children were born of the marriage, Kelli Faye Kendrick, born on November 24, 1981, and Jordan Lee Kendrick, born on April 8, 1986. Jordan, who is the subject of this custody dispute,² has been developmentally delayed since birth and has had difficulty walking and communicating.

Mr. Kendrick and Mrs. Shoemake divorced in October of 1990. Pursuant to the Marital Dissolution Agreement ("MDA") incorporated into the final decree of divorce, Mrs. Shoemake received custody of the children. Mr. Kendrick was to have visitation every other weekend. In 1992, Mrs. Shoemake married Sammy Shoemake ("Mr. Shoemake"). Mr. Shoemake had been married to Tuesday Bradley ("Ms. Bradley") prior to his marriage to Judy Kendrick Shoemake.³ In 1993, Mr. Kendrick married Jacqueline Schulten ("Ms. Schulten").

On February 23, 1998, Mr. Kendrick filed an emergency petition seeking custody of his two children. The petition alleged, inter alia, that "much upheaval and discontent [exist] in [Mrs. Shoemake's] home," that Mrs. Shoemake "has been absent from her home all night," and that Mr. and Mrs. Shoemake "have engaged in repeated and verbally hostile and profane arguments in front of [Kelli and Jordan Kendrick]." Mr. Kendrick attached the affidavit of Ms. Bradley, which attested to the facts alleged in the petition. The trial court awarded temporary custody to Mr Kendrick by ex parte order on the day the petition was filed. Mrs. Shoemake requested an immediate hearing, which the trial court granted. On February 27, 1998, the trial court set aside the award of temporary custody to Mr. Kendrick, and the parties agreed to submit their custody dispute to mediation.

The mediation proved unsuccessful. On May 29, 1998, Mrs. Shoemake filed an answer denying the allegations in Mr. Kendrick's petition. She also filed a counter-petition seeking child support arrearages and reimbursement for Jordan's medical expenses and costs necessary to repair the marital home. The trial court held a hearing on July 1, 1999, on the petition to modify custody.⁴

At the close of proof, the trial court postponed a ruling in the case so that the parties could have a final opportunity to determine which arrangement would be in Jordan's best interests. The trial court reconvened on September 3, 1999, after the parties were unable to resolve the issue. The trial court granted Mr. Kendrick's petition for modification of custody. The trial court failed to make any specific factual findings, but only stated generally that circumstances had changed warranting a modification of custody. With regard to the material change in circumstances, the court stated:

Let me say that, that clearly I think the circumstances surrounding this child have changed; I think the circumstances surrounding the families, that is of the mother and of the father have changed. And I think the medical needs of this child have changed. And I find that it is essential that I look to the best interest[s] of the child here especially. And, of course, that is always the criteria by which you decide custody, but it is especially true in this case.

The trial court did not specify the changes in circumstances that were found or explain why it believed that placing Jordan in the custody of Mr. Kendrick would be in Jordan's best interests. A final order reciting only the details of the new custody arrangement was filed on May 10, 2000.

Mrs. Shoemake appealed to the Court of Appeals. The intermediate appellate court reversed the judgment of the trial court, holding that a change in custody is not justified unless the change is necessary to prevent substantial harm to the child and that Mr. Kendrick failed to show Jordan would suffer substantial harm absent a change of custody.

We granted permission to appeal to determine the proper standard to be used when modifying an award of child custody when both parents are parties. We hold that a trial court may modify an award of custody when both a material change of circumstances has occurred and a change of custody is in the child's best interests. On the facts of this case, we find that Mr. Kendrick has not shown a material change in circumstances. Therefore, we affirm the judgment of the Court of Appeals leaving custody of Jordan with Mrs. Shoemake.

STANDARD OF REVIEW

We review the trial court's conclusions of law "under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts." Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001). Furthermore, our review of the trial court's findings of fact is de novo upon the record, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); see also Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn.1990). When the trial court makes no specific findings of fact, however, we must review the record to determine where the preponderance of the evidence lies. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997).

ANALYSIS

I. Proper Standard

The principal issue in this case concerns the proper standard to be applied to a petition to modify custody from one parent to the other parent. This issue is largely resolved by our recent decision in Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002).⁵ Blair involved a custody dispute between a parent and a non-parent. We concluded that once a valid order of custody has been issued, subsequent custody modification proceedings should apply the "standard typically applied in parent-vs-parent modification cases: that a material change in circumstances has occurred, which makes a change in custody in the child's best interests." Id. at 148. As explained in Blair, the "threshold issue" is whether a material change in circumstances has occurred after the initial custody determination. Id. at 150. While "[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," the following factors have formed a sound basis for determining whether a material change in circumstances has occurred: the change "has occurred after the entry of the order sought to be modified," 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." Id. (citations omitted). We note that a parent's change in circumstances may be a material change in circumstances for the purposes of modifying custody if such a change affects the child's well-being.

If a material change in circumstances has occurred, it must then be determined whether the modification is in the child's best interests.⁶ This determination should be made according to the factors enumerated in Tennessee Code Annotated section 36-6-106.⁷

II. Application of the Proper Standard in this Case

Having decided the appropriate standard to be applied when determining whether a modification of custody is warranted, we must now apply the standard to this case. The trial court failed to specifically identify any changed circumstances that warrant a change of custody. Furthermore, the trial court did not conduct an analysis of the best interests of the child. This failure to set forth supporting findings of fact has made our task of reviewing the decision more difficult. Without specific findings of fact, we cannot know upon which facts the trial judge relied in entering the judgment or the reasons underlying the court's ruling. Mr. Kendrick, however, has identified five purported changes in circumstances affecting the child's well-being in a meaningful way, which he maintains justify a modification of custody:⁸ (1) that Mrs. Shoemake's work schedule on third shift adversely affects Jordan's welfare; (2) that Mrs. Shoemake's attention to Jordan's education has not been sufficiently aggressive and that she is incapable of meeting his educational needs; (3) that a tumultuous marital relationship between Mrs. Shoemake and her husband adversely affects Jordan's well-being; (4) that Mrs. Shoemake lacks sound judgment with respect to Jordan's medical care; and (5) that Mrs. Shoemake has a general tendency to subordinate the needs of her children to her own, which adversely affects her children's welfare. We examine each of these circumstances in turn.

Mother's Work Schedule

Mr. Kendrick asserts that a material change in circumstances has occurred based upon Mrs. Shoemake's employment on the...