Facts: Mother and Father were divorced in March, 2010. Mother was designated as the primary residential parent for their two children. The trial court prohibited Mother from allowing her paramour to be around the children pending further order of the court. Both parents were prohibited from having overnight guests of the opposite sex while the children were present. Father was also ordered to pay transitional alimony to Mother. Barely two months after the divorce, Father petitioned to change custody based upon Mother’s violations of the court’s orders regarding her paramour. After a hearing, the trial court changed custody because of Mother’s flagrant violations of the court’s order, terminated Father’s alimony obligation, and awarded Father his attorney’s fees. Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Change of custody. When the issue is whether there should be a modification of the primary residential parent, Tennessee Code Annotated § 36-6-101(a)(2)(B) governs and it provides:

If the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change of circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.

Thus, a material change of circumstance does not require a showing of a substantial risk of harm to the child and may be based upon a parent’s failure to adhere to the parenting plan or other court order.

The proof showed that Father’s private investigator photographed Mother’s paramour at the apartment complex where Mother and the children resided, his car parked at the apartment complex late at night and early in the morning, and him taking one of the children in his car when Mother was not there. The paramour’s driver’s license revealed that he listed his home address as Mother’s address.

After concluding that a material change of circumstances existed, the Court analyzed the children’s best interest:

A key factor in these cases is often each parent’s desire and ability to encourage and facilitate a close and continuing relationship between the child and the other parent. Father exhibited a willingness to work with Mother for the sake of the children’s welfare while Mother exhibited the opposite. . . .

After considering the entire record and the [] statutory factors, we have concluded that the evidence does not preponderate against the trial court’s finding that it is in the childrens’ best interests for Father to be the primary residential parent. We, therefore, affirm the trial court on this issue.

Termination of alimony. Tennessee Code Annotated § 36-5-121(g)(2)(C) provides that transitional alimony may not be modified unless:

(C) The alimony recipient lives with a third person, in which case a rebuttable presumption is raised that:

(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or

(ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.

Based upon the evidence from Father’s private investigator, the Court affirmed the trial court’s termination of Father’s transitional alimony obligation.

Attorney’s fees. The Court affirmed the trial court’s award to Father of his attorney’s fees and then ruled that Father was entitled to his attorney’s fees on appeal. The case was remanded to the trial court to determine the amount.

Reed v. Reed (Tennessee Court of Appeals, Middle Section, March 30, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.