Finding of Material Change of Circumstances Reversed 2-1 in Tennessee Child Custody Case: Armbrister v. Armbrister

Facts: The parties were divorced in 2009. The Permanent Parenting Plan had Mother caring for the children for 280 days to Father’s 85 days. In 2011, Father filed a motion to modify the parenting plan alleging that he had moved, remarried, and his work schedule had changed. Mother asserted there had been no material change of circumstances sufficient to modify the parenting plan. After a trial, the Court found both homes to be stable, secure, and healthy, and the children to be happy and well-adjusted. Importantly, the trial court further found a material change of circumstances that was not sufficient to change custody but was sufficient to change the parenting schedule. After finding modification to be in the children’s best interest, the trial court entered a new parenting plan awarding Mother 222 days with the children and Father 143 days. Mother appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

Determining whether a parenting plan can or should be modified is a two-step process.

First, the court must determine whether a material change in circumstances has occurred after the initial custody determination. Although there are no bright-line rules for determining when such a change has occurred, there are several relevant considerations: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way.

Second, after finding that a material change in circumstances has occurred, the trial court must determine whether modification of custody is in the child’s best interests using the factors enumerated in Tennessee Code Annotated § 36-6-106.

Further complicating matters, Tennessee requires a “lower threshold” for establishing a material change of circumstances in cases seeking only to change the parenting schedule. The standard for changing the primary residential parent is more stringent.

After reviewing the record, the majority of the Court concluded Father failed to prove a significant or material unanticipated change of circumstances which affected the children’s well-being in any meaningful way. The Court explained:

The father’s move was not significant (from Greeneville to Johnson City) as he testified that his home was only 30 minutes from the mother’s home. The father’s move was also not unanticipated, as he admitted that he testified at the original divorce trial that he might move. The father’s work schedule had not changed significantly, as he testified that the only difference was that he was off “more Fridays,” and he also testified that he did not expect that to change. There was no testimony that the move caused the children to spend too much time in transit, or the father was not able to participate in their activities, or that he was unable to spend significant time with them, or any other such proof that would show that his move was a material and unanticipated change which affected the children in a meaningful way.

The party seeking to change the existing [parenting plan] has the burden of proving that there has been a material change of circumstances. If that party cannot demonstrate that the child’s circumstances have changed in some material way, the trial court should not go forward with the “best interests of the child” analysis. . . . There was no proof that there had been “significant changes” in the father’s “living or working condition that significantly affected” his parenting, as his schedule remained largely the same, as did his home environment. . . . The proof was that the parties got along well, that they had no disagreements regarding education, extra-curricular activities, religion, or any other issue regarding the children, that both parents had great relationships with the children, that both homes were stable and happy, and that the children were healthy and well-adjusted. As such, the evidence preponderates against the Trial Court’s finding of a material change of circumstances warranting alteration of the [parenting plan].

Accordingly, the trial court was reversed.

Dissent: Judge Susano dissented, writing:

Father has remarried and, from all indications, this relationship has had a positive impact on the parties and their children. Father’s work schedule is such that he has more flexibility than at the time of the divorce. . . . It seems to me that the subject changes have “affect[ed]” in a positive way “the child[ren]’s best interest” in that they have made it possible for father and children to have more time together.

K.O.’s Comment: Judge Susano hits the nail on the head. I was quite surprised by the majority’s decision, particularly given their acknowledgment that a trial court’s discretionary decision should not be disturbed unless it affirmatively appears that the decision was against logic or reasoning and caused an injustice or injury to the party complaining. Nonetheless, this case should serve as a reminder to all those alleging a material change of circumstances that they must prove a connection between the new circumstances and the child’s well-being. If you don’t show an impact on the child — positive or negative — you will not get a modification.

UPDATE: The Tennessee Supreme Court accepted this appeal on October 16, 2012. Stay tuned!

Armbrister v. Armbrister (Tennessee Court of Appeals, Eastern Section, July 27, 2012).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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