Michael Holley v. Bethany Holley Ortiz

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 12, 2016 Session

MICHAEL HOLLEY, ET AL. v. BETHANY HOLLEY ORTIZ

Appeal from the Chancery Court for Giles County
No. 219 Stella L. Hargrove, Judge
___________________________________

No. M2015-01432-COA-R3-CV – Filed February 24, 2017
___________________________________

This appeal concerns a mother‟s petition to modify an agreed order granting custody of
her two minor children to their maternal grandparents. The trial court determined that the
mother was entitled to invoke the doctrine of superior parental rights because it
concluded that the previous order was a temporary custody order. The court then
awarded the mother custody of her children. The grandparents seek review of the trial
court‟s decision, first, to deny the grandparent‟s request for a continuance to secure new
counsel and, second, to allow the mother a presumption of superior parental rights.
While we disagree that the presumption of superior parental rights applied, we conclude
that Mother still demonstrated a material change in circumstances and that a change in
custody was in the children‟s best interests. We also conclude that the trial court did not
abuse its discretion in denying the grandparents‟ motion to continue. Therefore, we
affirm the judgment of the trial court.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and ARNOLD B. GOLDIN, JJ., joined.

Douglas Thompson Bates, IV, Centerville, Tennessee, for the appellants, Michael Holley
and Jenny Holley.

Timothy P. Underwood and Joseph W. Henry, Jr., Pulaski, Tennessee, for the appellee,
Bethany Holley Ortiz.
 OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Bethany Holley Ortiz (“Mother”) is the biological mother of two minor children,
Ezekiel, born in 2009, and Brooklyn, born in 2010. At the time of the children‟s births,
Mother was unmarried and resided with her parents, Michael Holley (“Grandfather”) and
Jenny Holley (“Grandmother”) (collectively “Grandparents”), in Pulaski, Tennessee.

A. INITIAL PETITION AND AGREED ORDER

On January 7, 2013, Grandparents filed a petition to terminate parental rights and
for adoption in the Circuit Court for Giles County, Tennessee. The petition alleged that
Mother moved out of Grandparents‟ home in the summer of 2010 and gradually
abandoned her parental obligations. Grandparents claimed Mother saw the children only
four times during the four months preceding the filing of the petition and failed to
provide financial support. 1

Grandparents also filed a motion for ex parte relief in which they sought to retain
physical custody of the children. That same day, the trial court entered an order granting
the motion for ex parte relief and enjoining Mother from contacting her children.

Mother filed a motion to dismiss, but the trial court never heard the motion.
Instead, on April 29, 2013, Mother and Grandparents signed a handwritten agreement
resolving all matters among them. The first sentence of the one-page agreement states:
“[Grandfather] & [Grandmother] custodians; [Mother] loses parental superior rights.”
Next, the agreement outlines three phases of visitation over a ten-month period, whereby
Mother would enjoy one weekend of visitation per month.

The first phase, which was to last four months beginning in May 2013, allowed
Mother supervised visitation with the children one weekend per month at Grandparents‟
home. The second phase, which was to last six months beginning in September 2013,
permitted mostly unsupervised visitation one weekend per month at Mother‟s home.
However, Grandparents were entitled to randomly check on the children, and the children
could not stay with Mother overnight. Finally, the third phase, which began in March
2014, permitted Mother one overnight, unsupervised visit per month.

On May 23, 2013, the trial court approved the agreement and entered an agreed
order reflecting the parties‟ resolution of the issues. Notably, the first paragraph of the
order states as follows:

1
Grandparents also sought to terminate the parental rights of the children‟s biological father. The
biological father is not a party to this appeal.
2
 [M]other hereby agrees to the following permanent custody schedule which
defeats her superior parental rights pursuant to Blair v. Badenhope, 77
S.W.3d 137 (Tenn. 2002)[.] [F]or purposes of future proceedings, she must
show that it is in the best interest of the minor children for her to receive
custody.

The order designated Grandparents as the custodians of Brooklyn and Ezekiel but
specifically stated that “[t]he petition to terminate the parental rights of both biological
parents is hereby dismissed with prejudice.”2

B. MOTHER‟S PETITION TO MODIFY

On April 21, 2014, Mother filed a petition to modify the court‟s previous order.
She alleged a significant and material change in circumstance since the entry of the prior
order and argued that it would be in the children‟s best interest to name Mother primary
residential parent. Specifically, Mother asserted in her petition that Grandparents
frequently used derogatory language concerning Mother in the presence of the children,
provided an inadequate living environment, and unnecessarily refused Mother access to
her children. Grandparents answered in opposition to the petition.

1. Motion to Withdraw and Request for Continuance

On February 4, 2015, less than a week before the matter was scheduled to be
heard, Grandparents fired their attorney, William M. Harris. Consequently, Mr. Harris
filed a motion to withdraw on February 9, 2015, and requested that his clients be
permitted 30 days to retain substitute counsel. The motion to withdraw indicated that it
would be heard the next day, February 10, “or as soon thereafter as is convenient with the
court.”

On February 10, the morning of the hearing on Mother‟s petition, Mr. Harris did
not personally appear to prosecute his motion to withdraw. Grandparents did appear and
requested a continuance.

The trial court granted the motion to withdraw but denied Grandparents‟ request
for a continuance. In its subsequently entered order, the court noted that the February 10,
2015, hearing date was the fourth setting of the case.3 The order further noted its concern

2
Grandparents later filed a motion under Rule 60 of the Tennessee Rules of Civil Procedure
seeking correction of the court‟s order, which the trial court granted. The order as revised, which was
entered on November 20, 2013, contains the same quoted language.
3
The record indicates that the court initially set the case for September 12, 2014. However,
because of the Grandparents‟ hiring of Mr. Harris, the parties agreed to reset the case for October 15,
3
regarding Grandparents‟ credibility relative to their reasons for seeking another
continuance. Thus, the court conducted the hearing on Mother‟s petition as scheduled
with Grandparents proceeding pro se.

2. Proof at the Hearing

Mother‟s proof at the hearing consisted of several witnesses, including herself, her
new husband, and two additional relatives. At the outset, Mother admitted that she was
not the person or the mother that she should have been in 2013. However, she testified
that she had since changed into a more mature, responsible person and that she was now
in a position to care for her children.

Regarding her current situation, Mother explained that she found work as a call
center agent in August 2013. Mother testified:

I have changed a lot. I am financially stable. I‟ve got a good job. I‟m in
management at my job now. I‟m actually applying for a supervisor
position . . . . I love my children so much and I miss them when they are
not at the house.

She also stated that she had enrolled in and attended a parenting class in March 2014.

Concerning her relationship with her children, Mother emphasized that she loved
them and they also loved her. She married in 2013, and according to Mother, the
children also loved her husband. She further testified that she and her husband were
financially able to meet the children‟s needs.

Mother had also made preparations for the change in custody. Before trial,
Mother arranged for the children to attend elementary school near her home and secured
after-school care for the children while Mother worked. She also planned for the
children‟s pediatric and dental care in Columbia and could add the children to her
employer-provided health insurance.

Mother complained that, while in their custody, Grandparents did not foster
Mother‟s relationship with the children. Mother testified that she consistently took
advantage of the visitation that she was entitled to under the 2013 agreed order, but she
claimed Grandparents often prevented her from seeing the children. According to
Mother, she filed an incident report with the Sheriff‟s Department in September 2013
because she was not permitted visitation. She claimed that Grandparents did not permit

2014, to allow him time to prepare. As a result of a personal scheduling conflict involving Mr. Harris, the
court postponed the trial a second time until November 18, 2014. The court continued the case a third
time due to a scheduling conflict involving the guardian ad litem.
4
her to visit with her children on their birthdays and did not invite her to their birthday
parties. Additionally, Mother stated that Grandparents failed to provide her notice of
school and church activities.

Mother also indicated that Grandparents were inflexible with the visitation
schedule, occasionally leading her to seek assistance from her attorney. While she
admitted to not attending Thanksgiving or Christmas gatherings at Grandparents‟ home,
Mother claimed that the tension between the parties was high and that Grandparents
prevented her from parenting or disciplining the children in their presence.

In addition to claiming interference with physical visitations, Mother claimed that
Grandparents often interfered with her twice weekly phone calls, which the 2013 agreed
order permitted her to exercise. Mother further complained that Grandparents withheld
the children‟s school pictures and medical information from her.

Freddie Ortiz, Mother‟s husband, testified that he loved the children and wished to
help Mother parent them. Mr. Ortiz had three children of his own. Only his youngest
child was still a minor, and she visited Mr. Ortiz every-other weekend.4 Mother
confirmed that Ezekiel and Brooklyn had a close relationship with Mr. Ortiz‟s daughter.

Stacey Smith, who is Grandmother‟s brother, testified as to his belief that Mother
should regain custody of Ezekiel and Brooklyn. He explained that Mother, his niece, had
matured and grown since she relinquished custody of her children. Mr. Smith testified
that Mother‟s husband was an excellent influence on Mother and the children. Mr. Smith
had no doubt that Mother and Mr. Ortiz could be good parents.

Mr. Smith claimed that he had witnessed Grandparents deny Mother the
opportunity to talk to the children on the phone. Additionally, Mr. Smith described an
occasion when Grandfather made disparaging remarks concerning Mother in the
children‟s presence. Mr. Smith claimed that Grandfather, after a phone call with Mother,
expressed his frustration with Mother and stated he “could just grab her by the hair . . .
and just drag her down the road.”

Dorothy Smith, Grandmother‟s mother, also was of the opinion that the children
should reside with Mother. Ms. Smith testified that Mother, her granddaughter, was
“physically, mentally, and financially able to take care of these [children].”

Besides their own testimony, Grandparents offered the testimony of their youngest
daughter, Brittany Jordan. Ms. Jordan lived near Grandparents, and Grandparents often
kept Ms. Jordan‟s child while she was working. She testified that she has been present on
a few occasions when Mother came to Grandparents‟ home to pick up Ezekiel and

4
Mr. Ortiz testified that he had “partial custody” of his children.
5
Brooklyn. According to Ms. Jordan, the children cried, hid, and begged not to leave with
Mother on these occasions. She also denied hearing Grandparents speak negatively of
Mother in the children‟s presence.

Grandfather testified that Mother refused to comply with the visitations provisions
of the agreed order, despite Grandparents‟ cooperation. He also claimed that Mother
often criticized Grandparents in the children‟s presence. Grandfather repeatedly testified
that he loved his daughter. Still, he admitted to making disparaging remarks about her
“out of anger.”

Grandfather conceded that his personal finances were “somewhat” unstable and
that he had been forced to file for bankruptcy on five occasions, most recently in 2014.
Regarding employment, Grandfather admitted to being laid off several times, often for
poor job performance. He also acknowledged that, on a number of occasions, he failed to
pay the electric bill, which resulted in the electricity being cut off approximately 12
times. However, Grandfather explained that the electricity was always “cut right back on
the same day.”

Grandfather further admitted that he and Grandmother both “had issues in the
past” with writing bad checks. He acknowledged that this included a bounced check
written to the guardian ad litem in the present case.

Grandmother testified that she and her husband had been cooperative with Mother
and even offered her additional visitation time beyond what was required by the 2013
order. Grandmother claimed that she also offered her daughter additional phone calls
with the children. But she claimed that Mother often refused and had “chosen not to be a
part of our life.” Grandmother also testified to her belief that she was able to care for the
children financially. She explained that the children had never gone overnight without
the utilities working.

Finally, the children‟s guardian ad litem offered her observations of Grandparents,
Mother, and the children. Addressing the court, the guardian ad litem stated that she was
“gravely concerned about the quality of [the] time that [Mother] ha[d] been able to spend
with her children” while in Grandparents‟ care. She also expressed her belief that Mother
“[wa]s a very different person now than when the original petition was filed” and that
Mother had worked hard to establish a good relationship with her children. The guardian
ad litem further observed that Mother was “ready to be a mother and ha[d] made that
apparent.” Finally, she stated that Mother‟s husband, Mr. Ortiz, was an “excellent
influence on the children” and that the couple‟s marital home was “more than adequate”
for raising the children.

6
3. Ruling of the Trial Court

On February 20, 2015, the trial court entered an order granting Mother‟s petition.
In awarding Mother custody, the court concluded that Grandparents only had temporary
custody of the children. The court reasoned that “[the 2013 custody order] was not meant
to be a final custody Order but an Order giving the mother an opportunity to re-establish
her relationship with the children and to reunite the family.”

The court found Mother had established physical, emotional, and financial
stability over the previous year, specifically noting her steady employment for two years
and her improvement of position within the company. Regarding Grandparents‟
credibility, the court stated: “[G]randparents were not credible in numerous particulars
and this was a strong factor considered by this Court in making its ruling.” The court
also expressed “great difficulty reconciling [Grandparents‟ claims] with the proof
presented.”

Alternatively, the order provided that “the Court finds that even if the burden of
proof required the mother to establish a material change in circumstances and the best
interest analysis that she in fact carried that standard of proof . . . .” After considering the
relevant statutory factors in Tennessee Code Annotated § 36-6-106, the order stated as
follows:

[G]randparents have unnecessarily hindered [Mother‟s] access to her
children and have interjected themselves and their temporary custodial
privileges in a way that has failed to promote a loving and nurturing
relationship between the mother and the minor children.

. . . [G]randparents‟ financial and personal instability [affects] their
parenting skills and places the children in an inappropriate environment.

II. ANALYSIS

On appeal, Grandparents argue that the trial court abused its discretion in denying
their request for a continuance to secure counsel for trial. Grandparents also argue that
the court erred by applying the presumption of superior parental rights in the custody
proceeding. We consider each of these issues in turn.

A. STANDARD OF REVIEW

As we have often noted, “[c]ustody and visitation determinations often hinge on
subtle factors.” Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996).
Consequently, we “are reluctant to second-guess a trial court‟s decisions” on such
matters. Id. We review the trial court‟s factual findings de novo on the record, with a
7
presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App.
P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013). We review
the trial court‟s conclusions of law de novo with no presumption of correctness. Tenn. R.
App. P. 13(d).

B. GRANDPARENTS‟ REQUEST FOR CONTINUANCE

We first consider whether the trial court erred in denying a continuance for
Grandparents to secure counsel. Tennessee Code Annotated § 20-7-101 governs
continuances and provides that continuances “may always be granted by the court, upon
good cause shown, in any stage of the action.” Tenn. Code Ann. § 20-7-101 (2009).
This Court recently explained the standard a trial court applies when ruling on a motion
to continue in Tidwell v. Burkes:

Decisions regarding the granting or denial of a continuance are fact-specific
and should be viewed in the context of all existing circumstances present at
the time of the party‟s request for continuance. In order to prove that a
requested continuance is justified, the party requesting the continuance
must supply some strong excuse for postponing the trial date. When
considering a motion for continuance, the following factors are relevant to
the trial court‟s decision: (1) the length of time the proceeding has been
pending, (2) the reason for the continuance, (3) the diligence of the party
seeking the continuance, and (4) the prejudice to the requesting party if the
continuance is not granted.

Tidwell v. Burkes, No. M2015-01270-COA-R3-CV, 2016 WL 3771553, at *5 (Tenn. Ct.
App. July 8, 2016) (citations omitted) (quoting Howell v. Ryerkerk, 372 S.W.3d 576, 580-
81 (Tenn. Ct. App. 2012)) (internal quotation marks omitted).

A trial court‟s decision to grant or deny a motion for continuance is discretionary
and “will not be disturbed unless the record clearly shows abuse of discretion and
prejudice to the party seeking a continuance.” Blake v. Plus Mark, Inc., 952 S.W.2d 413,
415 (Tenn. 1997); see also Comm’r of Dep’t of Transp. v. Hall, 635 S.W.2d 110, 111
(Tenn. 1982) (“[I]n order to show an abuse of discretion, the plaintiff must show some
prejudice or surprise which arises from the trial court‟s failure to grant the
continuance.”). The Tennessee Supreme Court has stated that appellate courts are to set
aside a discretionary decision “only when the court that made the decision applied
incorrect legal standards, reached an illogical conclusion, based its decision on a clearly
erroneous assessment of the evidence, or employs reasoning that causes an injustice to
the complaining party.” Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249
S.W.3d 346, 358 (Tenn. 2008) (emphasis added).

8
 Here, Grandparents argue that the trial court should have granted a continuance to
allow them to replace the attorney they dismissed. However, because they chose to
dismiss Mr. Harris only days before trial, Grandparents were directly responsible for their
predicament. Cf. Barish v. Metro. Gov’t of Nashville & Davidson Cty. Tenn., 627
S.W.2d 953, 955 (Tenn. Ct. App. 1981) (remanding, under similar facts, for an
evidentiary hearing on whether plaintiff was responsible for the withdrawal of her
attorney and whether she used due diligence in seeking a new attorney prior to trial).

Additionally, the trial court had sufficient reasons for denying Grandparents‟
motion. Grandparents did not deny that they were unable to pay the retainer fee to secure
new counsel. Further, Mother‟s petition concerned the custody of minor children and had
been pending for 10 months at the time of trial. And, as the court pointed out, the case
had already been continued several times before Grandparents‟ request on the morning of
the trial. The court was also concerned with Grandparents‟ credibility and their reasons
for seeking another continuance. Presumably, the trial court suspected that Grandparents
sought the continuance to further delay the proceedings.

Even so, Grandparents argue that, because they were not permitted additional time
to secure counsel, they were prejudiced by several instances of violations of the
evidentiary rules. For example, Grandparents claim that “the trial court allowed
[Mother‟s] counsel to ask multiple leading questions without objection” and admitted
“hearsay and unauthenticated letters” into evidence. The trial court, however, addressed
Grandparents‟ failure to object at trial, stating “[Grandparents] are here without counsel.
I can‟t consider [hearsay] statements unless they are an exception under the hearsay rule.
I‟ve heard a lot of that. It will not affect my ruling unless it falls within [a] hearsay
exception.”

Further, our review of the record does not leave us convinced that Grandparents, if
granted the requested continuance, would have been able to produce additional evidence
or witnesses to disprove Mother‟s claims. See Tidwell, 2016 WL 3771553, at *7
(explaining that prejudice can be proved by showing “that the party was „deprived of
some evidence which he could have produced if the trial had been postponed.‟”) (quoting
Reagan v. McBroom, 51 S.W.2d 995, 1000 (Tenn. 1932)). When asked about witnesses
at trial, Grandfather explained that his youngest daughter intended to testify and that he
wanted to call “other witnesses” not in attendance. But Grandparents do not identify
these other witness on appeal, and they admitted that they had not been subpoenaed for
trial.

For these reasons, we conclude that the trial court‟s decision to deny
Grandparents‟ motion did not constitute an abuse of discretion.5

5
We do find it troubling that counsel for Grandparents did not appear on the morning of trial
when apparently he had not yet received permission from the court to withdraw. The local rules for the
9
 C. MOTHER‟S PETITION TO MODIFY

Next, we consider whether the trial court erred in granting Mother custody of her
children. This question requires a discussion of the applicable standard to modify an
order awarding custody to a non-parent. On appeal, Mother argues that to deprive her of
custody required clear and convincing evidence of substantial harm. Conversely,
Grandparents argue that Mother was required to prove a material change in
circumstances, which makes a change in custody in the children‟s best interest.

A parent has a fundamental right, based in both the federal and State constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Blair v. Badenhope, 77
S.W.3d 137, 141 (Tenn. 2002) abrogated by statute on other grounds as recognized by
Armbrister, 414 S.W.3d at 693. Accordingly, the Tennessee Constitution “requires that
courts deciding initial custody disputes give natural parents a presumption of „superior
parental rights‟ regarding the custody of their children.” Blair, 77 S.W.3d at 141. Under
this doctrine of superior parental rights, courts must favor the biological parent when
faced with a competing custody claim by a non-parent. Ray v. Ray, 83 S.W.3d 726, 732
(Tenn. Ct. App. 2001). Indeed, in an initial custody proceeding, a court cannot award
custody to a non-parent over a natural parent “unless the third party can demonstrate that
the child will be exposed to substantial harm if custody is awarded to the biological
parent.” Id.

However, a parent is generally not entitled to invoke the doctrine of superior
parental rights when seeking to modify a valid order placing custody with a non-parent.
Blair, 77 S.W.3d at 148. In such cases, trial courts “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. And, as this
Court has previously explained, the material change in circumstances standard is applied
even if the biological parent voluntarily ceded custody of the children to the non-parent.
Bryan v. Miller, No. M2015-00550-COA-R3-CV, 2016 WL 4249291, at *9 (Tenn. Ct.
App. Aug. 8, 2016); see also Blair, 77 S.W.3d at 147 (“[T]he parent‟s voluntary transfer
of custody to a non-parent, with knowledge of the consequences of that transfer,
effectively operates as a waiver of these [superior] parental rights.”).

Still, a natural parent can retain his or her superior parental rights despite the fact
that a non-parent has been awarded custody in certain instances. Our Supreme Court, in

Twenty-Second Judicial District, of which Giles County is a part, provide that “[n]o attorney may
withdraw except for good cause and by leave of court upon motion after notice to his or her party and
adverse parties.” Rule 4.03, Twenty-Second Judicial District Local Rules of Practice.

10
Blair v. Badenhope, identified four such circumstances:

(1) when no order exists that transfers custody from the natural parent;

(2) when the order transferring custody from the natural parent is
accomplished by fraud or without notice to the parent;

(3) when the order transferring custody from the natural parent is invalid on
its face; and

(4) when the natural parent cedes only temporary and informal custody to
the non-parents.

Blair, 77 S.W.3d at 143.

1. “Temporary and Informal Custody”

In the present case, the trial court determined that Mother retained her superior
parental rights because it found the 2013 agreed order concerning custody to be a
temporary order.6 We disagree.

The order uses express language representing that it is a final custody
determination. Cf. Bryan, 2016 WL 4249291, at *10 (finding a custody order temporary
where the order expressly stated that it was not a final custody determination). As noted
above, in the first numbered paragraph it states “[M]other hereby agrees to the following
permanent custody schedule.” (emphasis added). Moreover, both the agreed order and
the handwritten agreement upon which the order was based plainly state that the
arrangement “defeats [Mother‟s] superior parental rights.” The order goes on to
specifically cite Blair v. Badenhope, the very case in which our Supreme Court
recognized that a parent who voluntarily cedes custody cannot invoke the doctrine of
superior parental rights to modify a valid order transferring custody to a non-parent. See
Blair, 77 S.W.3d at 147.

We recognize that the next line of the order stating that “for purposes of future
proceedings, [Mother] must show that it is in the best interest of the minor children for
her to receive custody” is misleading. As explained in Blair, a parent in cases such as
this one must demonstrate both a material change of circumstance and that a change in
custody is in the child‟s best interest in order to regain custody, as is further discussed

6
Mother presented some evidence that she did not understand the custody agreement when she
signed it in 2013, suggesting that perhaps the order was obtained through fraud. See Blair, 77 S.W.3d at
143. However, her position at trial and on appeal was that she ceded only temporary and informal
custody to Grandparents.
11
below. Id. at 148. Still, despite the inconsistency in the 2013 order, we conclude it was a
final order granting Grandparents custody of Mother‟s children.

Because the 2013 order did not temporarily and informally cede custody of the
children and was a final order placing custody with Grandparents, Mother was not
entitled to the presumption of superior parental rights. Mother was required to show that
a material change in circumstances had occurred, which made a change in custody in the
children‟s best interests

2. Material Change in Circumstances and the Children‟s Best Interest

In light of our conclusion that the 2013 custody order was a final order, we address
Grandparents‟ argument that we should remand the case for a hearing under the
appropriate material change in circumstance standard. Such a result might ordinarily be
appropriate under these circumstances. However, despite our disagreement with the trial
court‟s conclusion as to the nature of the 2013 order, the court found alternatively that
Mother had proven a material change of circumstance and that a change in custody was
in the children‟s best interest. After reviewing the record, we agree with this alternative
finding of the trial court.

Final custody orders, such as the custody order at issue here, are res judicata and
cannot be modified absent “a material change in circumstances that makes a change of
custody in the child‟s best interest.”7 In re E.J.M., No. W2003-02603-COA-R3-JV, 2005
WL 562754, at *16 (Tenn. Ct. App. Mar. 10, 2005) (citing Blair, 77 S.W.3d at 148). A
material change in circumstance in this context 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.”
Wilkerson v. Wilkerson, No. M2014-02412-COA-R3-CV, 2016 WL 3044371, at *3
(Tenn. Ct. App. May 19, 2016) (quoting Tenn. Code Ann. § 36-6- 101(a)(2)(B) (Supp.
2015)). Although there are “no hard and fast rules for determining when” a material
change in circumstance has occurred, factors for our consideration include: (1) whether
the change occurred after entry of the order sought to be modified; (2) whether the
change was known or reasonably anticipated when the order was entered; and (3)
whether the change affects the child‟s well-being in a meaningful way. Kendrick v.
Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002), abrogated by statute on other grounds as
recognized by, Armbrister, 414 S.W.3d 685.

7
As explained above, this is the same standard applied in parent-vs-parent modification
proceedings, and therefore, decisions from such parent-vs-parent cases provide relevant authority. In re
K.C., No. M2005-00633-COA-R3-PT, 2005 WL 2453877, at *5 & n.8 (Tenn. Ct. App. Oct. 4, 2005).

12
 The evidence in this case does not preponderate against the trial court‟s finding
that a material change had occurred sufficient to modify the custody arrangement. In its
order, the trial court found that “[G]randparents have unnecessarily hindered [Mother‟s]
access to her children and have . . . failed to promote a loving and nurturing relationship
between [Mother] and the minor children,” and the court further found that
“[G]randparents‟ financial and personal instability [affects] their parenting skills and
places the children in an inappropriate environment.”8

Mother presented evidence that Grandparents interfered with her relationship with
her children. See Williamson v. Lamm, No. M2015-02006-COA-R3-CV, 2016 WL
5723953, at *5 (Tenn. Ct. App. Sept. 30, 2016) (“[I]nterference with the parent-child
relationship can be a material change sufficient to modify the primary residential parent
. . . .”). Mother‟s testimony in addition to the testimony of the two other relatives—
Stacey Smith and Dorothy Smith—all demonstrate Grandparents‟ unwillingness to
cooperate with Mother in exercising her visitation permitted under the 2013 order. The
evidence also indicated that Grandparents prevented Mother from participating in the
children‟s lives by actively excluding her from birthday celebrations and other activities
in which the children were involved. Although Grandparents vehemently denied these
allegations, the trial court specifically found that Grandparents lacked credibility. In re
Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007) (“[G]reat weight is afforded to
the trial court‟s determinations of witness credibility, which shall not be reversed absent
clear and convincing evidence to the contrary.”).

Mother also presented proof of financial instability on the part of Grandparents.
Grandfather admitted to filing for bankruptcy on several occasions, to writing bad checks,
and that he often was unable to pay his utility bills. Grandfather had been laid off from a
number of jobs in recent years, and it was unclear from the testimony if he was employed
at the time of trial.

The finding of a material change in circumstance does not end the inquiry. Upon
finding a material change, the court must then determine whether modification is in the
child‟s best interest. Burnett v. Burnett, No. M2014-00833-COA-R3-CV, 2015 WL
5157489, at *6 (Tenn. Ct. App. Aug. 31, 2015) (citing Armbrister, 414 S.W.3d at 705).
Tennessee Code Annotated § 36-6-106(a) (2014)9 lists several factors that courts may
consider in making a best interest determination.

8
Although Grandparents argue that the trial court did not specifically identify the material change
in circumstance in its order, the aforementioned findings were listed in the two paragraphs immediately
following the court‟s statement that “even if the burden of proof required the mother to establish a
material change in circumstances and the best interest analysis[,] . . . she in fact carried that standard of
proof . . . .” We are, therefore, satisfied that the trial court sufficiently indicated the facts supporting its
finding of a material change in circumstance.
9
The relevant statutory factors include:
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 The trial court made detailed findings as to the best interest factors, and the
evidence does not preponderate against any of the findings relative to this issue. Mother
and Mr. Ortiz offered more stability for the children and were in a better position,
particularly financially, to successfully parent the children. As the trial court noted,
Grandparents‟ ability to provide financially for the children was “highly suspect and
improbable.” Though Mother admitted to having issues preventing her from parenting
her children in the past, she was gainfully employed, had matured, and had demonstrated
that she was ready to be a mother. She and her husband had developed a strong bond
with the children and had established a home suitable for raising them. And unlike
Grandparents, Mother demonstrated her willingness to continue to foster a relationship
between the children and Grandparents.

(1) The strength, nature, and stability of the child‟s relationship with each parent,
including whether one (1) parent has performed the majority of parenting responsibilities
...;
(2) Each parent‟s or caregiver‟s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of the parents and
caregivers to facilitate and encourage a close and continuing parent-child relationship
between the child and both of the child‟s parents, consistent with the best interest of the
child. . . . ;
(3) Refusal to attend a court ordered parent education seminar may be considered
by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as the
parent who has taken the greater responsibility for performing parental responsibilities;
(6) The love, affection, and emotional ties existing between each parent and the
child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it relates
to their ability to parent the child. . . . ;
(9) The child‟s interaction and interrelationships with siblings, other relatives and
step-relatives, and mentors, as well as the child‟s involvement with the child‟s physical
surroundings, school, or other significant activities;
(10) The importance of continuity in the child‟s life and the length of time the
child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other parent or
to any other person. . . . ;
(12) 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;
(13) 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. . . . ;
(14) Each parent‟s employment schedule . . . ; and
(15) Any other factors deemed relevant by the court.

Tenn. Code Ann. § 36-6-106(a).
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 III. CONCLUSION

In light of the foregoing, we conclude that the trial court did not abuse its
discretion in denying Grandparents‟ motion for a continuance. We also conclude that the
trial court did not err in granting Mother custody of her children. Although she was not
entitled to the presumption of superior parental rights, Mother met her burden of
establishing a material change in circumstance and that a change in custody is in the
children‟s best interest.

_________________________________
W. NEAL MCBRAYER, JUDGE

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