IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 18, 2013 Session
DAVID ANDREW THORNELOE v. CHEREE ANNE OSBORNE
Appeal from the Law Court for Sullivan County (Kingsport)
No. C39259 E.G. Moody, Judge
No. E2012-02004-COA-R3-CV-FILED-AUGUST 26, 2013
This case involves a parent’s petition to relocate pursuant to Tennessee Code Annotated §
36-6-108 (2010). The mother, Cheree Anne Osborne (“Mother”), notified the father, David
Andrew Thorneloe (“Father”), of her intent to relocate to Wisconsin with the parties’ two
children for the purpose of residing with her new husband. Father opposed the relocation.
The parties stipulated that they were not spending substantially equal intervals of time with
the children. Following a bench trial, the trial court denied Mother’s request to relocate
based on Tennessee Code Annotated § 36-6-108(d), finding that the relocation did not have
a reasonable purpose and that the relocation would pose a threat of specific and serious harm
to the children. The trial court also found that the relocation was not in the children’s best
interest. Mother appeals. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Law Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Robert A. Anderson, Nashville, Tennessee, for the appellant, Cheree Anne Osborne.
Thomas F. Bloom, Nashville, Tennessee, and W. Stephenson Todd, Jr., Kingsport,
Tennessee, for the appellee, David Andrew Thorneloe.
OPINION
I. Factual and Procedural Background
Mother and Father were married on May 20, 2000, and two children were born of their
union: Kristin, now age ten, and Lindsey, age seven. The parties divorced in the Circuit
Court for Montgomery County1 on November 1, 2007. The parties were residing in
Clarksville at that time as Father, who was enlisted in the military, was stationed at Fort
Campbell. An agreed permanent parenting plan was entered incident to the divorce, which
order provided Mother 265 days annually with the children and Father 100 days. The
parenting plan designated Mother as primary residential parent. Mother and the children
moved to Blountville to live with the maternal grandparents. Father was thereafter deployed
to Afghanistan for one year, after which he left active duty and returned to the United States
in January 2009. Father subsequently obtained employment with the U.S. Attorney’s Office
in Asheville, North Carolina. He also served as a member of the North Carolina Army
National Guard. Father purchased a home in Weaverville, North Carolina, seventy-five miles
away from Mother’s residence in Blountville.
Mother remarried in 2008. That marriage ended in divorce less than one year later.
Mother briefly left her parents’ home during that marriage but then returned to live with her
parents. Father married Amy Thorneloe in June 2011, at which time she moved into his
Weaverville home. On December 24, 2011, Mother married Theodore Gast, who maintained
his domicile in Wisconsin. At the time of trial, Mother was still residing in her parents’
home in Blountville with the children. Visits to and from Mr. Gast occurred approximately
once every month or two.
Following the divorce, the parties loosely followed the co-parenting schedule
specified in their parenting plan. Some flexibility was exercised due to Father’s National
Guard duties and the distance between the parties’ homes. Father testified that this fluid
arrangement ended, however, in July 2011 when Mother notified him of her intent to relocate
and he opposed same. Thereafter, as Father stated, Mother insisted on strict compliance with
the parenting plan and would not allow him to spend extra parenting time with the children.
Both parties petitioned the trial court to modify the permanent parenting plan and
adjust Father’s child support obligation accordingly. Further, both sought an award of
attorney’s fees.
Following a bench trial on July 2, 2012, the trial court entered an order denying
Mother’s request to relocate to Wisconsin with the children. The trial court determined that
Mother’s proposed relocation did not have a reasonable purpose, would pose a threat of
specific and serious harm to the children, and was not in the children’s best interest. The
court made extensive findings of fact.
1
This matter was transferred to the Law Court for Sullivan County at Kingsport on January 11,
2012, as Mother and the children were residing in Blountville.
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The trial court also determined that the parties’ permanent parenting plan should be
modified and adopted the new plan proposed by Father. The court further adjusted the
amount of Father’s child support obligation and awarded Father attorney’s fees in the amount
of $6,000. Mother timely appealed.
II. Issues Presented
Mother presents the following issues for our review, which we have restated slightly:
1. Whether the trial court’s denial of Mother’s planned out-of-state
relocation must be reversed because Father had no standing to invoke
application of Tennessee Code Annotated § 36-6-108 and the trial court
was without subject matter jurisdiction to rely on Tennessee Code
Annotated § 36-6-108.
2. Whether the trial court’s judgment should be reversed because its
findings that the proposed relocation (1) was without a reasonable
purpose and (2) posed a threat of specific and serious harm to the
parties’ children were against the preponderance of the evidence or
were reversible error as a matter of law.
3. Whether the trial court abused its discretion by modifying the parties’
existing parenting plan without sufficient findings of a material change
of circumstance affecting the children’s best interest.
4. Whether the trial court erred when it adjusted the child support
obligation of Father.
5. Whether the trial court abused its discretion in awarding Father his
attorney’s fees.
III. Standard of Review
The standard of review is de novo upon the record with a presumption of correctness
as to the trial court’s findings of fact, unless the preponderance of the evidence is otherwise.
Blair v. Brownson, 197 S.W.3d 681, 683-84 (Tenn. 2006). For the evidence to preponderate
against a trial court’s finding of fact, it must support another finding of fact more
convincingly. Mann v. Mann, 299 S.W.3d 69, 71 (Tenn. Ct. App. 2009). We also give great
weight to a trial court’s determinations of witness credibility. Id. For questions of law, the
standard of review is de novo without a presumption of correctness afforded to the lower
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court’s conclusions of law. Blair, 197 S.W.3d at 684.
IV. Tennessee Code Annotated § 36-6-108
Tennessee Code Annotated § 36-6-108, also known as the parental relocation statute,
provides, inter alia, that if a parent “desires to relocate outside the state or more than one
hundred2 (100) miles from the other parent within the state,” the relocating parent must send
notice to the other parent and seek court approval of the relocation if the other parent objects.
(Emphasis added.) Mother argues that Father had no standing to rely on this statute in
opposition to her proposed relocation because he does not reside in Tennessee, construing
the statutory phrase “the other parent within the state” to mean that the non-relocating parent
must reside within Tennessee before the statute will apply. Mother also argues that the trial
court had no subject matter jurisdiction to address and rule upon Father’s opposition to
Mother’s relocation, based on Tennessee Code Annotated § 36-6-108, for the same reason.
Mother relies on Kawatra v. Kawatra, 182 S.W.3d 800 (Tenn. 2005), in support of her
interpretation of this statute. This issue was not addressed by the Court in Kawatra,
however, as there the non-relocating parent resided in Tennessee. See id.
Father argues that Mother’s interpretation of Tennessee Code Annotated § 36-6-108
is erroneous. Father contends that the correct interpretation of the parental relocation statute
is that its application is triggered either when (1) a parent wishes to move out of the state or
(2) a parent wishes to relocate within the state, but the distance is more than 100 miles from
the other parent. We agree. See Mann v. Mann, 299 S.W.3d 69, 71 (Tenn. Ct. App. 2009)
(“When a divorced parent seeks to relocate with the parties’ children more than 100 miles
from the other parent, Tenn. Code Ann. § 36-6-108 provides that the relocating parent shall
give notice of the proposed move to the other parent. Knoxville is more than 100 miles from
Nashville; therefore, Mother gave notice to Father of her planned relocation with the
children.”); Edgeworth v. Edgeworth, No. W2006-01813-COA-R3-CV, 2007 WL 2403356
at *6 (Tenn. Ct. App. Aug. 23, 2007) (“Tennessee Code Annotated § 36-6-108 . . . sets out
the framework for courts to determine whether to permit the primary residential parent to
relocate with the child, or children, outside Tennessee or more than 100 miles away inside
Tennessee.”). See also Watson v. Watson, 196 S.W.3d 695, 696 (Tenn. Ct. App. 2005)
(parental relocation statute applies when a parent is moving from Lexington, Tennessee, to
Murfreesboro, Tennessee).
Further, where the parties were divorced in Tennessee, this Court has previously
allowed a parent who lives out of state to oppose the other parent’s proposed relocation,
2
This statute was amended effective July 1, 2013, to change the mileage requirement from one
hundred miles to fifty miles.
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pursuant to Tennessee Code Annotated § 36-6-108. See Bulick v. Thompson, No. W2004-
00816-COA-R3-CV, 2005 WL 123502 at *2 (Tenn. Ct. App. Jan. 18, 2005). In Bulick, the
parties were residing in Tennessee at the time of the divorce, and their marital dissolution
agreement provided that the mother would have custody of the parties’ child, with the father
to enjoy liberal visitation. Id. The father later relocated to Mississippi. Id. Thereafter, the
mother’s new husband received a promotion in his employment, which required him to
relocate from Memphis to White Pine, Tennessee. Id. The trial court and this Court both
applied the provisions of Tennessee Code Annotated § 36-6-108 in that factual scenario, even
though the father no longer lived in this state. Id.
As this Court has previously explained, a trial court “having subject matter jurisdiction
over custody of a child also has subject matter jurisdiction over a petition to relocate filed by
one of the child’s parents.” Price v. Bright, No. E2003-02738-COA-R3-CV, 2005 WL
166955 at *9 (Tenn. Ct. App. Jan. 26, 2005). The Court noted that this was appropriate
because the trial court would often need to “craft a new visitation schedule if the parent was
permitted to relocate,” or perhaps even modify the child’s custody. In this case, both parties
conceded that the trial court retained subject matter jurisdiction over the custody of these
children. As such, we conclude that the trial court also retained subject matter jurisdiction
over Mother’s proposed relocation with the children. Mother’s arguments asserting the
inapplicability of Tennessee Code Annotated §36-6-108, Father’s lack of standing, and the
trial court’s lack of subject matter jurisdiction are without merit.
V. Proposed Relocation
Mother next asserts that the trial court erred in ruling that there was no reasonable
purpose for her relocation and that relocation posed a threat of specific and serious harm to
the parties’ children. As relevant to this action, Tennessee Code Annotated §36-6-108 3
provides:
(d)(1) If the parents are not actually spending substantially equal intervals of
time with the child and the parent spending the greater amount of time with the
child proposes to relocate with the child, the other parent may, within thirty
(30) days of receipt of the notice, file a petition in opposition to removal of the
child. The other parent may not attempt to relocate with the child unless
expressly authorized to do so by the court pursuant to a change of custody or
primary custodial responsibility. The parent spending the greater amount of
time with the child shall be permitted to relocate with the child unless the court
3
As previously noted, the parties herein stipulated that they were not spending substantially equal
intervals of time with the children.
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finds:
(A) The relocation does not have a reasonable purpose;
(B) The relocation would pose a threat of specific and serious harm to
the child that outweighs the threat of harm to the child of a change of
custody; or
(C) The parent’s motive for relocating with the child is
vindictive in that it is intended to defeat or deter visitation rights
of the non-custodial parent or the parent spending less time with
the child.
The trial court found that Father had proven that the proposed relocation did not have a
reasonable purpose and that the relocation posed a threat of specific and serious harm to the
children. We will address each finding in turn.
A. No Reasonable Purpose
Mother contends that the evidence established a reasonable purpose for her relocation
with the children, including (1) potentially higher income for Mother in teaching positions
in Wisconsin, (2) a pledge of financial support from Mr. Gast, (3) “better housing” in an
“affluent” area, (4) greater family support system, (5) better educational opportunities for the
children, and (6) a loving family environment with her and Mr. Gast. Father asserts that he
met his burden of proving that the relocation lacked a reasonable purpose because (1) there
is no valid economic purpose for the move, (2) relocation will cause an abandonment of the
children’s family support network in Tennessee, (3) Mother’s new marriage has “shallow
roots,” and (4) Mother’s proffered reasons for relocation are insufficient when weighed
against the gravity of Father’s inability to participate fully in the children’s lives. Upon our
considered review of the record in this cause, we agree with Father.
Mother’s main purpose for relocating was so that she could live with her husband of
six months, Mr. Gast, at his home in Wisconsin. Although the proof showed that he owned
a very nice home unencumbered by mortgage debt, the evidence did not establish that this
home surpassed the quality of the home where Mother and the children were currently
residing. Although Mother testified that the public schools in Wisconsin were better than the
school the children were currently attending, she provided no basis for this opinion. Mother
then stated, however, that she wanted the children to attend a private school in Wisconsin,
at a cost of $13,500 per child per year.
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Mother was employed as a teacher with Kingsport City Schools, earning in excess of
$42,000 per year. By her estimate, she could earn an additional $5,000 to $8,000 per year
as a teacher in Wisconsin. The proof, however, showed that the cost of living was higher in
that area as well. Mother had applied for numerous teaching jobs in the vicinity of Mr.
Gast’s home but had received no requests for interviews and no offers of employment.
Mother also asserted she would have a large family support network in Wisconsin via Mr.
Gast’s family. The proof evinced that Mr. Gast’s aging parents live near his home and that
he has a brother, an aunt, and cousins who live an hour or more away from him. In
Tennessee, the children have lived with their maternal grandparents for the last five years.
The proof demonstrated that the children have a very close relationship with these
grandparents and that their maternal grandmother has provided care for them on a daily basis.
The children also have an uncle and cousin living nearby with whom they enjoy a close
relationship. Father likewise has family members who live close to his home. His parents
recently purchased unimproved real property with the intent of building a residence minutes
from Father’s home. Therefore, the proof did not support Mother’s claims of better
employment opportunities and a larger family support network in Wisconsin.
Likewise, although Mother claimed that she could rely upon Mr. Gast for financial
support, the proof demonstrated otherwise. The trial court found that the Marital Property
Agreement signed by Mother and Mr. Gast prior to their marriage evinced the couple’s intent
to remain financially independent and showed that Mr. Gast was not required to support
Mother financially. The proof supports this finding. As the trial court aptly observed,
“Given that Mother would be trading employment for unemployment and the evidence shows
no apparent intent for Mr. Gast to provide for Mother to the extent that her own family has
done so, Mother’s assertion that she has a reasonable economic purpose is unsupported.”
In other cases where there existed no guarantee of employment or financial security
upon relocation, this Court has found that a reasonable purpose was not shown. As stated
in Butler v. Butler, No. M2002-00347-COA-R3-CV, 2003 WL 367241 at *2 (Tenn. Ct. App.
Feb. 20, 2003):
Doubtless, relocation because of a better job opportunity, greater salary, and
career advancement opportunities, establishes a “reasonable purpose” within
the meaning of the statute. The proof offered in this case, however, does not
sustain the allegations of such increased salary and increased opportunities.
The proof establishes that both Mother and Father are good and attentive
parents and that Father faithfully exercises his visitation rights with his
daughter. The daughter is well settled in the Davidson County area with
adequate schooling facilities. However, such considerations are inadequate
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under the statute to prevent a custodial parent from relocating if a reasonable
purpose is established. The difficulty is that, while Mother discusses in her
testimony a job in Ft. Worth and career advancement opportunities, when the
record as a whole is considered, she presents to the court no job offer but,
rather, a litany of things that she hopes to be able to accomplish after such a
move.
Id.; see also Rogers v. Rogers, No. M2008-00918-COA-R3-CV, 2009 WL 1034795 at *6
(Tenn. Ct. App. Apr. 16, 2009) (concluding that where the mother had no firm job offer and
no proof of better job opportunities, the trial court improperly found a reasonable purpose
for relocation.)
The evidence does not preponderate against the trial court’s finding that Mother’s
proposed relocation in the present action had no reasonable purpose. This case is
substantially similar to the case of Mitchell v. Mitchell, No. M2004-00849-COA-R3-CV,
2005 WL 1521850 (Tenn. Ct. App. June 27, 2005), wherein the mother wished to relocate
to California to live with her new husband. Id. at *1. The evidence showed that she sought
employment in California but had not located same. Id. at *3. The mother also provided no
proof of her assertion that the schools in California were superior, other than her own
testimony. Id. at *4. Finally, the mother stated that she wanted to reside with her new
husband and be near his family, but this Court found that reason alone to be insufficient. Id.
at *3.
This Court stated:
Mother, understandably, desires to reside with her new husband; however,
residing with her new husband does not necessitate that she and the child
relocate to California. Moreover, her desire to reside with her new husband
in California does not necessitate that it is reasonable for the child to relocate
to California. A relocation based solely on a new marriage has been held to
be insufficient. See Schremp, 2000 WL 1839127 at *2. As this court
explained, while it is reasonable for a husband and wife to want to live
together, marriage often requires sacrifices on the part of the husband and wife
so they can share a residence. Id. Mother did not offer any additional
evidence to explain why she had to relocate to California as opposed to her
new husband relocating to Putnam County, Tennessee or another location. As
Schremp explained, new spouses have to make many choices, one of which is
where they desire to reside. 2000 WL 1839127 at *2. Furthermore, if one of
them is a parent residing in Tennessee, then there is another choice to make
and that is whether it is reasonable, or more reasonable, for the husband to
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relocate to the wife’s community or for the wife to relocate to the husband’s
community. Id. Here, the evidence does not preponderate against the trial
judge’s finding that it was not reasonable for Mother to relocate with the child
to California.
Mitchell, 2005 WL 1521850 at *3.
In this case, because the proof did not bear out Mother’s other stated purposes, it
appears that the main purpose behind Mother’s proposed relocation is to reside with her new
husband. As noted above, remarriage alone is not a sufficient reason to grant a party’s
request for relocation. Id. This Court has previously explained that in such instances, the
analysis will generally focus on whether it is more reasonable for the new spouse to relocate.
Carman v. Carman, No. M2011-01265-COA-R3-CV, 2012 WL 1048600 at *5 (Tenn. Ct.
App. Mar. 26, 2012). In Carman, the mother’s new husband lived in Canada and claimed
he could not relocate to Tennessee because he would have to obtain the proper authorization
from the United States Customs and Immigration Services in order to get a job. Id. at *6.
He cited, as additional reasons, his role as an elder in his local church and his responsibility
to care for his elderly mother. Id. at *7.
When considering whether it was reasonable for the mother’s new spouse to relocate,
this Court stated:
On balance, Mr. Gallant’s career, church duties, and his responsibility to his
mother are not sufficient to render it unreasonable for Mr. Gallant to relocate
to Tennessee to live with his new wife. To the contrary, as the trial court
found, it is more reasonable for him to move to Tennessee than for Mother to
relocate a distance of 2,700 miles with seven minor children to live with him
in Canada.
Furthermore, these considerations must also be weighed against “the gravity
of the loss” of Father’s ability to participate fully and meaningfully in the lives
of his seven minor children, the youngest of which was less than three years
old at the time of the hearing in this matter. Given the distance to Grande
Prairie from Hartsville, the difficulties and time and expense to travel to and
from Grande Prairie, and the number of children and their ages, we find
Father’s loss would be grave.
Id. at *7-8.
Likewise, in the case at bar, Mother failed to show why she and the children had to
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relocate to Wisconsin, rather than Mr. Gast relocating to Tennessee. Mother argues that it
is not reasonable for Mr. Gast to move to Tennessee because he would be unable to find
similar employment in this state and because he needs to live close to his parents for whom
he provides assistance. Mother’s contention ignores Mr. Gast’s testimony that he did not
have to work and that his parents lived independently with minimal assistance from Mr. Gast.
We conclude that the evidence does not preponderate against the trial court’s finding that
Mother’s proposed relocation had no reasonable purpose.
B. Harm to the Children
Having determined that the trial court’s finding that Mother’s proposed relocation had
no reasonable purpose should be affirmed, we do not need to reach the alternate ground for
denying Mother’s proposed relocation. Therefore, the issue of whether the proposed
relocation would pose a threat of specific and serious harm to the children is hereby
pretermitted.
C. Best Interest
Based upon the above findings, the trial court was also statutorily required to
determine whether to permit relocation based on the best interest of the children. Tenn. Code
Ann. § 36-6-108(e). The court found that it was not in the children’s best interest to relocate
with Mother to Wisconsin. Having carefully considered the record, we agree.
Pursuant to Tennessee Code Annotated §36-6-108, factors to be considered in a best
interest analysis include, but are not limited to, the following:
(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is
likely to comply with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and
child;
(4) The disposition of the parents to provide the child with food, clothing,
medical care, education and other necessary care and the degree to which a
parent has been the primary caregiver;
(5) The importance of continuity in the child’s life and the length of time the
child has lived in a stable, satisfactory environment;
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(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) The reasonable preference of the child if twelve (12) years of age or older.
The court may hear the preference of a younger child upon request. The
preferences of older children should normally be given greater weight than
those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person; and
(11) The character and behavior of any other person who resides in or
frequents the home of a parent and such person’s interactions with the child.
The evidence established that Father obtained employment in Asheville, North
Carolina, with the U.S. Attorney’s Office so that he could reside as close as possible to the
children. Father indicated at trial that prior to Mother’s notice of relocation, he had always
been allowed to have as much time with the girls as his schedule and the distance from his
home to Mother’s would allow. As Father explained, the parties never strictly adhered to the
parenting plan until the relocation dispute arose and Mother began to insist upon it. The
proof showed that Father has always been significantly involved in the children’s lives,
attending school events and extra-curricular activities on a regular basis. He and the children
have enjoyed a meaningful relationship.
Some proof was presented that Mother had refused to allow Father extra parenting
time with the children upon proper notice as provided in their parenting plan; therefore, if
she were allowed to relocate, Father questioned whether Mother would comply with the new
visitation arrangement. Both parents were able to provide for the children’s needs. The
children were shown to be bonded with the maternal grandparents, with whom the children
and Mother have lived for the last five years. Removing the children from Father and their
network of family members in Tennessee and North Carolina would erase the continuity and
stability of their present home environment.
Both parents are remarried. The marriages appear stable, although Father’s marriage
is of greater duration than Mother’s. There was no evidence of any mental or physical
problems experienced by either parent. The proof demonstrated that the children performed
well in school, participated in numerous activities, and were happy and thriving in their
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current environment. Although the children did not testify, the parties admitted the children
did not wish to relocate.
Based on the facts presented at trial, we conclude that the evidence does not
preponderate against the trial court’s finding that relocation was not in the children’s best
interest. The trial court’s denial of Mother’s request to relocate with the children is
affirmed.
VI. Modification of Permanent Parenting Plan
The trial court further determined that a material change of circumstances had
occurred, warranting a modification in the existing permanent parenting plan. The trial court
did not, however, make specific findings of fact regarding what constituted the material
change of circumstances. In the absence of such findings of fact, this Court may choose to
“conduct its own independent review of the record to determine where the preponderance of
the evidence lies, without presuming the trial court’s decision to be correct.” Williams v.
Singler, No. W2012-01253-COA-R3-JV, 2013 WL 3927934 at *10 (Tenn. Ct. App. July 31,
2013) (citing Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Brooks v. Brooks,
992 S.W.2d 403, 405 (Tenn. 1999)).
Mother contends that the trial court erred in modifying the parties’ existing parenting
plan without sufficient proof of a material change of circumstances. As this Court has
previously elucidated:
The evolution of the “material change in circumstances” standard has focused
on the criteria for determining whether a particular change in circumstances
is “material” enough to require reconsideration of an existing custody or
visitation arrangement. In 2002 and 2003, the Tennessee Supreme Court
handed down three decisions that clarified the principles associated with the
“material change in circumstances” standard. The court emphasized that there
are no bright-line rules for determining whether a material change in
circumstances has occurred. Cranston v. Combs, 106 S.W.3d at 644; Kendrick
v. Shoemake, 90 S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d at 150. The
court also explained that several of the many considerations relevant to
determining whether a material change in circumstances has occurred include:
(1) whether the change occurred after the entry of the order sought to be
modified, (2) whether the change was not known or reasonably anticipated
when the order was entered, and (3) whether the change is one that affects the
child’s well-being in a meaningful way. Cranston v. Combs, 106 S.W.3d at
644; Kendrick v. Shoemake, 90 S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d
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at 150.
In 2004, the Tennessee General Assembly enacted legislation directed
specifically at the “material change in circumstances” standard. Tenn. Code
Ann. § 36-6-101(a)(2)(C) provides:
If the issue before the court is a modification of the court’s prior
decree pertaining to a residential parenting schedule, then the
petitioner must prove by a preponderance of the evidence a
material change of circumstances affecting the child’s best
interest. A material change of circumstances does not require a
showing of a substantial risk of harm to the child. A material
change of circumstances for purposes of modification of a
residential parenting schedule may include, but is not limited to,
significant changes in the needs of the child over time, which
may include changes relating to age; significant changes in the
parent’s living or working condition that significantly affect
parenting, failure to adhere to the parenting plan; or other
circumstances making a change in residential parenting time in
the best interest of the child.
Tenn. Code Ann. § 36-6-101(a)(2)(C) is significant in at least two ways. First,
it reflects the General Assembly’s agreement with the Tennessee Supreme
Court’s rejection of the earlier decisions by this court that the “material change
in circumstances” standard required a showing of substantial risk of harm to
the child. Cranston v. Combs, 106 S.W.3d at 645. Second, it also reflects the
General Assembly’s understanding that even changes that could have been
reasonably anticipated when the original decree was entered can trigger a
reconsideration of custody and visitation.
Boyer v. Heimermann, 238 S.W.3d 249, 256-57 (Tenn. Ct. App. 2007).
In the instant action, the proof demonstrated a material change of circumstances
affecting the children’s best interest, namely significant changes in the parents’ living or
working conditions that significantly affected parenting, and failure to adhere to the
parenting plan. Following the divorce, both parents had remarried, and Mother was
commuting back and forth to Wisconsin to see her new husband. At the time of the divorce,
Father was on active duty in the military and living in Clarksville. He had since relocated
to Asheville, North Carolina, to reside closer to the children. Father removed himself from
active duty. Further, Father demonstrated that the parties had not followed the parenting plan
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that was established at the time of their divorce and that he had not been allowed as much
parenting time with the children since the dispute over relocation arose. We conclude that
these facts were sufficient to find that a material change of circumstances affecting the
children’s best interest had occurred and that modification of the parenting plan was
warranted.
VII. Modification of Child Support
Mother contends that the trial court erred in adjusting Father’s child support obligation
without such relief being sought by either party. Mother’s argument fails to consider,
however, that both parties filed motions prior to trial requesting that the existing permanent
parenting plan be modified and that any necessary child support adjustments be made. The
trial court properly modified the permanent parenting plan, concomitantly adjusting Father’s
child support obligation to reflect the correct annual allocation of days with each parent.
This issue is without merit.
VIII. Attorney’s Fees
The trial court awarded Father $6,000 as partial reimbursement of his attorney’s fees
and expenses incurred in this matter. Mother contends that this award was in error because
there was no statutory basis for it and because Father has a higher income than Mother.
As Tennessee Code Annotated § 36-6-108(i) provides in pertinent part, “[e]ither
parent in a parental relocation matter may recover reasonable attorney fees and other
litigation expenses from the parent in the discretion of the court.” We review the trial
court’s decision to award such fees under the abuse of discretion standard. Lima v. Lima, No.
W2010-02027-COA-R3-CV, 2011 WL 3445961 at *9 (Tenn. Ct. App. Aug. 9, 2011).
“Under this standard of review, we are required to uphold the trial court’s ruling ‘as long as
reasonable minds could disagree about its correctness,’ and ‘we are not permitted to
substitute our judgment for that of the trial court.’” Id. (quoting Caldwell v. Hill, 250 S.W.3d
865, 869 (Tenn. Ct. App. 2007)). In the present case, because reasonable minds could
disagree about the correctness of the award, we cannot conclude that the trial court abused
its discretion in making this fee award to Father.
IX. Post-Judgment Facts
A motion was made pursuant to Tennessee Rules of Appellate Procedure 14, asking
this Court to consider the post-judgment facts that Father has been temporarily deployed to
Egypt and his co-parenting rights have been assigned to his wife and parents during his
absence. We find that these facts do not affect the position of the parties or the subject
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matter of the action; therefore, we deny consideration of these post-judgment facts. See
Tenn. R. App. P. 14 (a). See, e.g., Town of Dandridge v. Patterson, 827 S.W.2d 797, 802
(Tenn. Ct. App. 1991).
X. Conclusion
The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Cheree Anne Osborne. This case is remanded to the trial court, pursuant to applicable law,
for enforcement of the trial court’s judgment and the collection of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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