HOLLY GENEACE GARRETT V. MARK ANTHONY GARRETT
Court: TN Court of Appeals - April 12, 2013
Attorneys:
Mark N. Foster, Rockwood, Tennessee, for the appellant, Holly Geneace Garrett.
Brett A. York, Crossville, Tennessee, for the appellee, Mark Anthony Garrett.
G. Earl Patton, Crossville, Tennessee, for the appellee, the Cumberland County Board of Education.
Judge: MCCLARTY
This post-divorce appeal concerns the agreed-upon parenting plan designating Mother as the primary residential parent. When Mother registered the Children in a new school district, Father objected. The trial court entered an order requiring the Children to remain in their current school district, despite the Cumberland County Board of Education’s policy providing otherwise. The Cumberland County Board of Education filed a motion to intervene, which was granted. Following a limited hearing, the court designated Father as the primary residential parent, allowing the Children to remain in their current school district per the applicable policy. Mother appeals. We reverse the decision of the trial court.
Modification of an existing custody or visitation arrangement involves a two-step
analysis. First, the parent attempting to modify the existing custody or visitation arrangement must prove that a material change in circumstances has occurred. If a material change in circumstances has occurred, it must then be determined whether the modification is in the child’s best interest.
The determination of whether a “material change in circumstance” occurred requires
a different standard depending upon whether a parent is seeking to modify custody (i.e.,
change the primary residential parent) or modify the residential parenting schedule. The Tennessee Code establishes a lower threshold for modification of a residential parenting schedule.
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.
To determine whether a material change in circumstances has occurred, the court should consider whether: (1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child’s well-being in a meaningful way.
Opinion Located at:
garrettm_041213.pdf
Mother appeals the trial court’s designation of Father as the primary residential parent of the parties’ minor child, the parenting plan, and the division of marital property. The trial court found that the majority of the factors set forth in Tennessee Code Annotated § 36-6-106 weighed equally in favor of both parents but designated Father as the primary residential parent primarily because the court awarded Father the marital residence, which provides stability for the child. The trial court, however, did not make any findings concerning a wealth of evidence of physical and emotional abuse by Father, some of which Father admitted, and we have determined that the preponderance of the evidence established that Father was abusive of Mother, sometimes in the child’s presence. Because Tennessee Code Annotated § 36-6-406(a) mandates that a parent’s parenting time shall be limited if the parent is found to have engaged in abuse, we reverse the designation of Father as the primary residential parent, as well as the parenting plan adopted by the court, and remand with instructions to designate Mother as the primary residential parent and establish a new parenting plan considering all applicable factors. As for the division of the marital estate, the trial court awarded Father 68% of the marital estate and Mother 32%, which Mother contends is inequitable. She asserts the inequitable distribution is due to Father being awarded the marital residence, which was unencumbered and valued at $216,000, with Mother receiving $55,000, being 26% of the equity, as her share of the marital residence. Considering the length of the marriage, that each spouse contributed substantially to satisfying the mortgage on the residence, and the relatively equal earning capacities of the parties, inter alia, we have determined it is inequitable to award Father 74% of the equity in the marital residence, the result of which awards him 68% of the marital estate. Therefore, we remand with instructions to modify the award by ordering Father to pay Mother $97,200, instead of $55,000, for her interest in the marital residence. As for attorney’s fees, we find no error in the trial court’s denial of Father’s request for his attorney’s fees at trial and we deny each party’s request for attorneys’ fees on appeal.
There are currently two different statutes setting out non-exclusive lists of factors for the trial court to apply to help it reach the goal of determining a child’s best interest. Tennessee Code Annotated § 36-6-106, which applies to custody determinations, and Tennessee Code Annotated § 36-6-404, which governs the establishment of permanent parenting plans.
Tennessee Code Annotated § 36-6-406, which provides that:
(a) The permanent parenting plan and the mechanism for approval of the permanent parenting plan shall not utilize dispute resolution, and a parent’s residential time as provided in the permanent parenting plan or temporary parenting plan shall be limited if it is determined by the court, based upon a prior order or other reliable evidence, that a parent has engaged in any of the
following conduct:
(1) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting responsibilities; or
(2) Physical or sexual abuse or a pattern of emotional abuse of the parent, child or of another person living with that child as defined in § 36-3-601.
As recognized in Burden, under either Tennessee Code Annotated § 36-6-106 or 36-4-404, the trial court is required to consider evidence of physical or emotional abuse against the other parent in determining the custody and parenting schedule of the minor child. Burden, 250 S.W.3d at 913. Abuse is defined as “inflicting, or attempting to inflict, physical injury on an adult or minor by other than accidental means, placing an adult or minor in fear of physical harm, physical restraint, or malicious damage to the personal property of the abused party.” Tenn. Code Ann. § 36-3-601(1).
Opinion located at: