Michael A. Roberts v. Xaviera C. Forrest

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 27, 2016 Session

MICHAEL A. ROBERTS v. XAVIERA C. FORREST

Appeal from the Circuit Court for Montgomery County
No. MCCCCVFN141017 Ross H. Hicks, Judge

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No. M2015-00230-COA-R3-CV – Filed July 29, 2016
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This appeal arises from a change in the primary residential parent for two minor children.
Mother and Father divorced in Oklahoma. After Mother and the children moved to
Tennessee, Father petitioned to modify the joint custody plan adopted in the Oklahoma
divorce proceeding. Father alleged a material change in circumstance based upon Mother’s
violations of the joint custody plan and Mother’s interference with Father’s relationship with
the children. Following a hearing, the trial court found a material change in circumstance
and that naming Father the primary residential parent was in the best interest of the children.
While not contesting that a material change in circumstance occurred, on appeal, Mother
asserts that a change in primary residential parent was not in the children’s best interest.
After reviewing the record, we do not find the evidence preponderates against the trial
court’s best interest findings. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and RICHARD H. DINKINS, J., joined.

H. Reid Poland III (on appeal) and James Phillips (at trial), Clarksville, Tennessee, for the
appellant, Xaviera Caraballo Forrest.

Christopher J. Pittman and B. Nathan Hunt, Clarksville, Tennessee, for the appellee, Michael
Anthony Roberts.
 OPINION

I. FACTUAL AND PROCEDURAL HISTORY

Xaviera Caraballo, now Xaviera Forrest, (“Mother”) and Michael Roberts (“Father”),
both active duty members of the military, divorced in Oklahoma on June 22, 2011. A Joint
Custody Plan provided for the care, custody, and control of their three minor children and
named Mother the primary custodial parent. In anticipation of moves stemming from their
military service, the parenting time or “custodial period” granted to each parent varied
depending on the distance that they lived apart following the divorce. If they lived over 200
miles apart, the Joint Custody Plan granted Father the following custodial periods:

Spring Break: Even numbered years from the night school lets out to the
day before school resumes. Exchange times will be worked out between the
parties.
Thanksgiving: Even numbered years from the night before
Thanksgiving until Sunday night. Exchange times will be worked out between
the parties.
Christmas: Odd numbered years from Christmas Eve night until the
night before school resumes. Exchange times will be worked out between the
parties.
Summer: From one week after school recesses for the summer break
until one week before school resumes. Exchange times will be worked out
between the parties.

The above is specified minimum custodial periods. Additional custodial
periods as well as liberal telephone communication is to be encouraged.

The Joint Custody Plan also provided that, if Mother was “given military orders to report to
an unaccompanied tour of duty, [Father] shall have physical custody of the minor children
until the end of said tour of duty.”

Difficulties arose soon after the divorce. In mid-December 2011, Mother moved with
the children, Mark, Micaiah, and Ava, to Clarksville, Tennessee. After Mother’s move,
Father claimed he had difficulty communicating with Mother and, as a result, he was unable
to visit with the children. Father explained that Mother would not answer the telephone or
that she denied requests to schedule visits. According to Father,

[Mother] was unreachable most of the time. A lot of the times we would talk
on the phone. She would question like, Why do you want to talk to them?
Why do you care? They’re not -- they don’t care about you. Why do you care
about them? And it’s questioning my -- like Why do you care? Why do you
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 want to talk when they don’t mean anything to you? You don’t mean anything
to them . . . .

During Christmas of 2012, Father wanted to send the children presents. He called
Mother because he had lost her address, and Mother told Father not to send any presents.
Mother also stated she was going to tell the children that any presents were from their “real
dad” Adam. Ultimately, Father did not send any Christmas gifts to his children that year.

In 2013, Mother deployed from approximately February through November.
Although the Joint Custody Plan provided that Father would have the children during
deployments, Mother left the children with her mother, the children’s grandmother, in North
Carolina. Father stated that Mother never offered to allow him to keep the children during
her deployment, but Mother stated Father never asked for the children. In either event,
Father claimed that communications with his children improved while they stayed with their
grandmother.

Mother returned from deployment on November 26, 2013. Father only learned of
Mother’s return through a Facebook post by their eldest son. The Joint Custody Plan
provided that Father would have the children that year “from Christmas Eve night until the
night before school resumes,” but Mother and her girlfriend took the children on a Christmas
trip to Texas. By that time, Father lived in Texas and learned that Mother and the children
were nearby through Facebook. However, Father again experienced communication issues
and was unable to talk with Mother.

Mother requested that Father communicate with her through her girlfriend, Lauren.
Because he was unable to speak with the children at Christmas, Father contacted Lauren via
text message to ask about speaking with the children before the New Year. Father texted,
“Nice to meet you Lauren. I hope you have a great New Year . . . as well as your Family. If
at all possible I would love to talk to Mark, Ava, and Micaiah before 2014 kicks off. I don’t
mean to be a burden. Thanks again!” Lauren responded, “I’ll talk with [Mother] thank you.”
After the New Year, Lauren sent Father the following text:

Hey guy, I asked nicely for you to leave us alone on our family vacation and
you have completely disrespected me and our wishes. I do not appreciate that
and as far as visitation . . . . The kids do not want to see you. Sorry, we are
planning a DNA test as well as court for custody change to prove your [sic] not
even capable of having kids . . . .

A few minutes later, she texted that she had asked one of the children if he wanted to call and
that he had replied “no that he forgot about you.” She also added in the apparent rejoinder,
“So back off our kids.” Despite their proximity, Father did not see or speak with his children
during their trip to Texas.
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 Like her girlfriend, Mother also denied the children’s parentage. She acknowledged,
while in the car with the children, telling Micaiah and Ava that Father was not their natural
father. In January of 2014, Mother took Micaiah to a health clinic due to concerns over his
behavior. In providing family medical history, Mother stated that she did not know who
Micaiah’s father was and that Father had adopted Micaiah at age one. At another health
clinic visit, on April 10, 2014, the medial record reflected: “Biological father is unknown.
[Micaiah] is the product of paternal sperm donations.” Mother also shared her view with
Father. Once when Father texted if he could communicate with the children by Skype or
Facetime, Mother responded “That’s prob because you don’t have any.”

The Joint Custody Plan granted Father spring break with the children in 2014. Father
sent Mother an e-mail with the children’s travel itinerary in January of 2014. Later, Mother
informed Father that Micaiah could not make the trip due to health issues. Mark and Ava did
make the trip to visit Father, but amid the visit, Mother e-mailed Father with a new itinerary
showing she had purchased an early return flight for Mark. Mother did not communicate
with Father regarding this change.

In April of 2014, Micaiah was admitted to a hospital. Father learned of the admission
through a Facebook posting. Father texted Mother, questioning her about the circumstances
of the admission and asking for the name of the hospital and to speak with Micaiah. Mother
texted back that “Your [sic] not on the access roster to speak or see him so if you call they
wont [sic] be able to give you any information.” Mother did not reveal the name of the
hospital.

In a second set of texts, Father inquired about Micaiah and how long he was expected
to be in the hospital. Father also texted, “Any info you can provide would be nice” and “I am
worried.” Mother responded by text as follows:

We are heading to breakfast with laurens [sic] mom and dad. I understand
your [sic] worried but he is getting the best care they have here. I will tell you
what happened when we leave here, but i don’t [sic] feel like starting my day
with all this today. We will contact you later. Have a good day.

A few hours later, Father texted, “Any info on Micaiah?” Mother replied: “Hello, we are still
at parents[;] please do not harass us about this right now. Still need your unit info too. Bye.”
Three days after first inquiring about Micaiah’s hospitalization, Mother provided Father with
the name of the hospital and the access number necessary to speak with his son.

On May 23, 2014, Father filed a petition to “domesticate”1 and modify the Oklahoma

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Under the Uniform Child Custody Jurisdiction and Enforcement Act, registration of the child-custody
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Joint Custody Plan in the Circuit Court for Montgomery County, Tennessee. Father
requested that the court “determine that there has been a material change in circumstances
warranting the Court to enter a new parenting plan designating the Father as the primary
residential parent of the parties’ two (2) younger children.” Father also alleged that it would
be in Mark’s best interest to reside with Father, but due to the child’s age and “strong desire
to remain with his Mother,” Father did not seek to be named Mark’s primary residential
parent. Mother filed an answer and counter-petition for modification of the parenting plan
and child support. Later, Mother received permanent reassignment orders to Hawaii, and she
filed a motion also requesting that the court permit her to relocate to Hawaii with the
children.

The court conducted a hearing on Father’s petition on December 10, 2014. Father,
Mother, a close friend of Mother, and Mother’s mother testified. Father testified that his
difficulties exercising parenting time continued after the filing of his petition. Only Ava
visited him during the summer. According to Father, the oldest child did not want to visit.
When asked if their relationship was strained, Father stated “Yes, he didn’t want to come.
He doesn’t want to talk to me. He doesn’t want nothing to do with me.” Father testified that
Mother did not permit Micaiah to visit due to his health.

Father also recounted an incident involving Ava. A few months before the trial,
Father planned to visit Ava for her birthday. However, that week, Father injured himself
breaking up a “dog fight” and was hospitalized. Father e-mailed Mother the day before
Ava’s birthday to let her know that he had been in the hospital and could not make it until the
following day. Father’s e-mail continued:

I still plan on coming. As soon as I’m able to coherently drive tomorrow I will
leave to make it there by Friday. I’m sad that this happened and very
disappointed. I was wondering if I could have an extra hour on Friday? It is
nice that you are allowing me to see them that day. I’m grateful for that . . . . I
wish I had more time . . . .

Mother replied within a few minutes indicating that the family had other plans for that day.

An email was sent the day before yesterday asking about possible Friday
visitation and asking for notice that you would be taking advantage of this
visitation. No response was ever given, so now we have plans for Friday and

determination of another state permits enforcement of the determination as if it were a Tennessee child-custody
determination; however, registration does not permit modification. Tenn. Code Ann. § 36-6-230 (2014). In
this case, the trial court possessed jurisdiction to modify the Oklahoma joint custody plan because it had
jurisdiction to make an initial custody determination and the parents and children no longer resided in
Oklahoma. See id. § 36-6-218 (2014).
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 this weekend like I said in the last email I just sent. However, like I said we
can discuss an alternate weekend for possible visitation at a later date. Again,
we have plans for this weekend, next weekend, Halloween weekend, and a
weekend at the beginning of November. So let me know any ideas for possible
visitation on a weekend and I will let you know if we have plans or not. Again
I’m sorry this happened.

Despite Mother’s reply, Father traveled to visit with Ava on Friday. Father briefly
spent time with Ava at her school. Father also contacted Mother to let her know that he was
in town and to ask if he could drop-off a present for Ava. According to Father, Lauren
instructed him to leave the present on the street in front of the house, which he did.
Undeterred, Father called Mother’s house. The children answered, but Father testified that
he could hear Lauren telling the children to hang up just before they did so.

That same weekend, Father showed up at Micaiah’s football game. Father saw
Mother, Lauren, Mark, and Ava sitting in the bleachers, and he “sat down kind of next to
them hoping that I could at least give Ava a hug or come see her.” Father testified that, when
he sat down, they moved to the other side of the bleachers.

A few months later, Father contacted Mother for permission for the children to come a
day early for the Thanksgiving holiday. Mother declined. Mother also demanded that
Father, who had remarried in October of 2012, produce his marriage certificate as a
precondition to the visit. Although Father produced the requested certificate, only Micaiah
and Ava came to visit; Mark did not want to go.

Finally, Father expressed concerned about the children going with Mother to Hawaii.
In the words of Father, his relationship with the children would “go downhill and it’s going
to continue to go downhill.

Mother testified that her communication problems with Father only really developed
in 2014. Prior to that, she described herself as “more flexible with being reached,” and
according to Mother, Father “would call whenever he wanted and, you know, I would just
answer.” Mother explained that the situation had changed. First, she had married Lauren in
April of 2014. Second, Micaiah was diagnosed with autism, a mild mood disorder, and
depression, and although he was high functioning, Micaiah required routine. In the words of
Mother,

And now since I’ve been back and I’m married and because of everything that
[Micaiah’s] going through, we have to be on a stricter routine, and I don’t
think that [Father] completely understands or maybe he just doesn’t really
think that we’re being honest or maybe we’re trying to hinder on how rigid we
have to maintain the schedule.
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 Mother denied attempting to impede Father’s visitation. Mother explained that she
had no problem with Ava visiting, but she did not permit Micaiah to visit earlier in the year
over concern that “[h]e would break down.” She believed visitation was now possible
because she could prepare the child for the change in his routine. She testified that, “through
lawyers and also with help of his [applied behavior analysis therapy], we gave [Micaiah] a
very basic routine to help with visitation . . . , and we all felt comfortable that he would be
able to go on his visits in more basic routine . . . .”

Mother addressed each incident of which Father complained. Mother did not think
spending the Christmas of 2013 with the children was an issue given her deployment and that
her actions were consistent with the Joint Custody Plan. Mother thought Father’s loss of
time was offset by his opportunity to exercise more visitation while she was deployed.
Mother explained her thinking as follows: “I was gone nine months, I missed everything. I
thought that he might have used visitation, but I figured that I’ve been gone nine months. I
got home November 26, and I thought it would be okay to have Christmas with the kids.”

As for the text messages, Mother claimed that some of the messages that came from
her phone actually came from Lauren. When she discovered the back-and-forth, Mother
stated she was upset, and not just because Lauren was using her phone. She also claimed that
she had called Father to apologize. In the call, she said she promised “it wouldn’t happen.”

She admitted purchasing the early return ticket for spring break, but she claimed she
did so only because the itinerary she received did not show a return flight. However, Mother
was forced to concede on cross-examination that the itinerary did include a return flight. She
also acknowledged receiving the itinerary prior to purchasing the early return ticket.

Mother blamed a power outage and snow for not immediately informing Father of the
name of the hospital where Micaiah was admitted in April of 2014. Although she stated the
hospital did have power, she explained that she was stuck at her home because of the
snowfall and then had to return to work. She claimed that, as soon as she was able to get
power and as soon as the installation had power, she notified Father “right away.” When
asked why she did not use her mobile phone to inform Father of the name of the hospital,
Mother blamed Lauren. Mother testified that Lauren had her mobile phone and that she was
responsible for the texts to Father, but Mother did acknowledge sending the text asking
Father not to bother her while she was with Lauren’s parents and Micaiah was in the hospital.

Mother also acknowledged most of the incidents in which she denied that Father was
the natural father of Micaiah and Ava. Mother testified that she told Micaiah and Ava that
Father was not their natural father out of anger. She conceded it was “very wrong” to do so.
When asked if she was also angry when she told a medical provider that Micaiah was the
product of a parental sperm donation, Mother replied, “Technically, that’s kind of what he
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is.” Mother attempted to explain away her text reply to Father in which Father asked about
communicating with the children by Skype or Facetime and Mother responded “That’s prob
because you don’t have any.” At first, Mother testified that she was mad. Later, Mother
explained that she was not denying that Father had children, rather she was informing Father
that he did not have Skype or Facetime.

The trial court entered a judgment granting Father’s petition to modify the Joint
Custody Plan on December 18, 2014. The court found a material change of circumstances
“based upon both the pattern and conduct of the Mother that has impacted the Father’s ability
to maintain a relationship with the children and the Mother’s pending move to the State of
Hawaii.” The court’s order also reflected “that this is the most outrageous and egregious
case of wrongful conduct of a primary residential parent in terms of deliberately alienating
the alternate residential parent’s ability to enjoy a parenting relationship with his children that
this Court has ever seen.” The court also found that adopting the Father’s proposed parenting
plan was in the best interest of the children.

As part of its order, the court approved a new permanent parenting plan, which
modified the Joint Custody Plan. The new parenting plan named Father primary residential
parent of Micaiah and Ava and granted Mother 80 days of visitation each year. The new
parenting plan also directed Mother to pay Father $886 per month in child support.

Mother appeals the decision to modify the primary residential parent. She “does not
challenge the Trial Courts [sic] ruling that an unanticipated material change in circumstances
ha[d] occurred.” Instead, Mother argues that the court misapplied the best interest factors
and that changing the primary residential parent was not in the children’s best interest.

II. ANALYSIS

Adjudicating disputes over who should be designated the primary residential parent is
one of a court’s greatest responsibilities. Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn.
Ct. App. 2007). A court’s designation of the primary residential parent as part of a final
decree of divorce is considered res judicata upon the facts in existence or those which were
reasonably foreseeable when the decision was made. Steen v. Steen, 61 S.W.3d 324, 327
(Tenn. Ct. App. 2001). However, because circumstances change in unanticipated ways,
courts are statutorily empowered to modify a primary residential parent designation. See
Tenn. Code Ann. § 36-6-101(a)(1) (2014) (A decree naming a primary residential parent for a
minor child “shall remain within the control of the court and be subject to such changes or
modification as the exigencies of the case may require.”).

Courts apply a two-step analysis to requests to change the primary residential parent
designation. Keisling v. Keisling, 196 S.W.3d 703, 718 (Tenn. Ct. App. 2005). The
threshold issue is whether a material change in circumstance has occurred since the court’s
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prior order. Id.; see Tenn. Code Ann. § 36-6-101(a)(2)(B) (2014); Armbrister v. Armbrister,
414 S.W.3d 685, 697-98 (Tenn. 2013). Only if a material change in circumstance has
occurred do we consider whether a modification is in the child’s best interest. Armbrister,
414 S.W.3d at 705.

In this appeal, Mother requests we focus on the trial court’s best interest
determination. The determination of where the best interests of the child lie is a factual
question. Id. at 692; In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). We review
the trial court’s factual findings de novo upon the record, with a presumption of correctness,
unless the evidence preponderates otherwise. See Tenn. R. App. P. 13(d). Evidence
preponderates against a trial court’s factual finding when the evidence supports another
factual finding with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701
(Tenn. Ct. App. 2005).

A material change in circumstance only permits the court to reexamine the parenting
plan or, in this case, the joint custody plan in light of the child’s best interest. In re T.C.D.,
261 S.W.3d at 746. The best interest analysis is a “particularly fact-intensive process.”
McEvoy v. Brewer, No. M2001-02054-COA-R3-CV, 2003 WL 22794521, at *5 (Tenn. Ct.
App. Nov. 25, 2003). Under the analysis, the trial court must determine which parent is
“comparatively more fit than the other to be the custodial parent.” Id. However, “the
paramount consideration is the best interest of the child.” Culbertson v. Culbertson, 393
S.W.3d 678, 685 (Tenn. Ct. App. 2012). To aid in the consideration of the child’s best
interest, the Legislature directs that courts look to a non-exclusive list of statutory factors
found at Tennessee Code Annotated § 36-6-106(a)(1)-(15). Tenn. Code Ann. §§ 36-6-404(b),
-405(a) (2014).

Mother argues the trial court did not correctly apply the best interest factors in
deciding this case. She claims the trial court did not place enough weight on the strength and
stability of her relationship with her children. See id. § 36-6-106(a)(1) (2014). The trial
court weighed this factor in favor of Mother, as she had been the primary caregiver for the
children. On the other hand, the trial court also found that the relationship between Father
and the children had been impeded and harmed by Mother.

Mother submits the evidence preponderates against the finding that she impeded or
harmed Father’s relationship with his children. According to Mother, the proof showed that
Father did not have much interest in parenting the children for two and a half years. She also
notes that the court specifically found that Father was “meek and reticent” in asserting his
rights through 2013.

We find Mother’s argument unavailing. The court qualified its finding of meekness
and reticence on the part of Father by noting that his attitude was due in part to Mother
placing the children with their grandmother during Mother’s deployment. The court added
9
that Father did not attempt to take the children because he did not want to disrupt their
schooling, things were going well, and grandmother allowed open communication with the
children. We find the evidence does not preponderate against the trial court’s findings with
respect to this factor.

Next, Mother argues that the factor concerning each parent’s willingness “to facilitate
and encourage a close and continuing parent-child relationship” should be weighed in favor
of both Mother and Father. See id. § 36-6-106(a)(2) (2014). She claims that the trial court
erred in placing weight on the fact that Mother’s spouse acted as a caregiver. Although
Mother acknowledges that her spouse communicated with Father in an inappropriate manner,
Mother submits she addressed her spouse’s actions and that such behavior will cease.

Mother’s argument ignores her own role in hindering a close and continuing
relationship between Father and the children. We find the record amply supports the court’s
findings that “Mother failed to foster a good relationship” and “appears to be incapable of
fostering a good relationship between [Father and] the children.” The evidence also does not
preponderate against the court’s finding that Mother’s spouse contributed to these issues.
Father’s evidence of his communications with Mother’s spouse was unchallenged, and these
communications suggest that Mother’s spouse at least played a part in discouraging a close
and continuing relationship between Father and the children.

Mother argues that the court misapplied the factor concerning the “love, affection, and
emotional ties existing between each parent.” See id. § 36-6-106(a)(6) (2014). Although the
court found the factor weighed in favor of both parties, the court stated it considered in its
determination “the conduct of Mother in alienating the children from the Father and falsely
telling the younger two children that the Father [wa]s not their father.” Mother claims this
was improper and that the factor should be weighed in her favor. We disagree. We conclude
it was appropriate to consider how Mother might have tilted this factor in her favor by her
actions.

The court did not find the “emotional needs and development level” of the children
weighed in favor of one parent over the other. See id. § 36-6-106(a)(7) (2014). However,
Mother faults the court for not considering the time, energy, and effort Mother spent to care
for a child with autism. We fail to see how a consideration of Mother’s effort would have led
to a finding that the factor favored Mother over Father. Father demonstrated that he had
access to the same care that Micaiah was currently receiving and a willingness to follow
through with such care if he were named Micaiah’s primary residential parent.

The court weighed the “moral, physical, mental and emotional fitness of each parent”
in favor of Father. See id. § 36-6-106(a)(8) (2014). Mother argues that this factor should
have been weighed in favor of both parties. We agree with the trial court that Mother’s
conduct in dealing with Father tips this factor in favor of Father.
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 Finally, Mother argues that the court did not give enough weight to the “importance of
continuity” in the children’s lives and the length of time the children had “lived in a stable,
satisfactory environment.” See id. § 36-6-106(a)(10) (2014). The court did not make a
specific finding that this factor weighed in favor of one parent over the other. The court did
find that the children had lived primarily with Mother but “that the conduct of the Mother
ha[d] resulted and will continue to result in harm to the children due to the Mother’s inability
to foster a good relationship between the children and their Father.” These findings are
supported by the record in this case. Further, we conclude, as apparently did the trial court,
that any benefit of continuity was outweighed by the negative influence of Mother on the
children. Additionally, the court determined that continuity would be disrupted regardless of
the outcome of the case due to Mother’s reassignment to Hawaii, which Mother testified
would be for at least four years.

III. CONCLUSION

After reviewing the record, we find that the evidence does not preponderate against
the trial court’s factual findings. Father proved both a material change in circumstance and
that a change in primary residential parent is in the best interest of the two youngest children.
Therefore, we affirm the judgment of the trial court.

_________________________________
W. NEAL MCBRAYER, JUDGE

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