Finding of No Material Change Reversed in Nashville, Tennessee Child-Custody Change: In re Jonathan S. jr.

Facts: Mother and Father, the parents of Child, never married, and their relationship ended several months after Child was born.

Several years later, they entered an agreed parenting plan that allowed Father to have parenting time one weekend per month and for extended periods during school holidays. By then, Mother was married and living in Nashville, while Father was living in Michigan.

In 2015, Father petitioned to modify the parenting plan to designate him as the primary residential parent.

The proof showed Mother had recently separated from her husband and moved in with her mother. Mother was kicked out of her mother’s home after a physical altercation. In the most “Tennessee” statement I’ve seen in an appellate opinion in quite some time, the Court described the altercation:

[Mother] explained she had thrown a bowl of grits at her mother during an argument about money and the two ended up scuffling on the floor. She admitted that [Child] witnessed the fracas and, in fact, emerged from it with grits on his face.

At the close of Father’s proof, Mother moved that Father’s case be involuntarily dismissed because he had failed to prove a material change in circumstances. The trial court agreed, and Father’s petition was dismissed.

Father appealed.

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

Modifying a parenting plan requires a two-step analysis. First, the party petitioning to change the parenting plan must establish that a material change in circumstance has occurred. If the court determines that a material change has occurred, then it must determine whether the modification is in the child’s best interest. Thus, the threshold issue in every case in which a parent seeks to modify a parenting plan is whether a material change in circumstance has occurred since the parenting plan was adopted.

Because not all changed circumstances of parents and their children warrant a reconsideration of the child’s best interest, a change in circumstance generally must be “significant” before it will be considered material. Additionally, while there are no hard and fast rules for determining whether a material change in circumstance has occurred, courts may consider:

  • whether the change occurred after entry of the order to be modified,
  • whether the change was reasonably anticipated when the previous order was entered, and
  • whether the change affects the child’s well-being in a meaningful way.

Upon review, the Court determined that Father had proven a material change in circumstances:

Mother and her husband separated . . . . Shortly thereafter, the ranch where Mother had been working and living for three years was sold by its owners. Having lost her husband, her job, and her home in a short period of time, Mother briefly moved in with her mother. That arrangement was short-lived, however, and Mother moved out following an altercation with her mother . . . . Compared to the apparent stability in Mother’s life when the initial permanent parenting plan was entered, it is not a stretch to say that the changes that occurred in Mother’s life in 2015 were significant. Faced with that evidence, however, the trial court found only that Mother “had a very difficult four-month period of time.” The problem with the trial court’s assessment, in our view, is that it infers a subsequent improvement in Mother’s stability that is not reflected in the record. While a fleeting period of hardship may not rise to the level of a material change in circumstance, it is difficult to make that determination without evidence that the period of hardship is, in fact, fleeting.

*     *     *     *     *

It is our view that Father met his initial burden of proving, by a preponderance of the evidence, a material change in circumstance for purposes of modifying the primary residential parent. Thus, the burden of proof shifted to Mother. While Mother’s evidence may demonstrate that the changed circumstances in her life were only temporary and do not warrant such a modification, the record before us does not contain evidence to support that conclusion. We therefore reverse the trial court’s dismissal of Father’s petition to modify the permanent parenting plan and remand this case to the trial court so that Mother may present her evidence.

Thus, the trial court’s judgment was reversed, and the case remanded for the trial to continue.

K.O.’s Comment: When I read about the “grits wrestling match” quoted above, I thought we may finally have our next World’s Most Awesome Judge. Alas, it was not to be. There were no other references to grits. Justice Kirby remains firmly entrenched as the holder of that crown for over four years running.

In re Jonathan S. Jr. (Tennessee Court of Appeals, Middle Section, July 24, 2017).

Information provided by K.O. Herston: Knoxville, Tennessee 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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