Facts: When Mother and Father divorced, they lived in Clarksville and agreed to equal parenting time.

Shortly after that, Father moved to Delaware for a better job. The parties continued equal time via alternating months because Child was not yet school-aged.

Once Child started school, the trial court ordered equal parenting time via alternating years with liberal visitation. Father was ordered to pay monthly child support of $208 based on each parent having a two-year average of 182.5 days.

In the second year of this arrangement, when Child was primarily living with Mother in Tennessee, Mother petitioned to modify the parenting plan, citing these problems and others:

• Father’s daily demands about Child’s school;
• Father’s interference and micromanaging of Mother’s parenting;
• Father’s questioning of Child about Mother’s care;
• Father’s inability to communicate with Mother;
• Father’s use of Child as an intermediary between the parents; and
• Since starting the alternating-year schedule, Father’s “unrealistic and uncooperative behavior” made that schedule unworkable and not in Child’s best interest.

Mother sought a new parenting plan naming her as the primary residential parent with Father having reasonable parenting time during school holidays.

Two themes emerged from the testimony.

The first was Father’s resentment toward paying child support to Mother. For example, he sent her this text message during the year when Child lived with him: “I actually tried to maintain a civil relationship between us, and you basically destroyed that [by] seeking child support that you don’t need and don’t deserve. I provided [Child] with everything she needs financially, yet you try to earn a quick buck off my hard work.”

The second theme was that both parents agreed the alternating-year schedule was unworkable and not in Child’s best interest.

The trial court found Child’s best interest was served by naming Mother the primary residential parent and adopting her proposed parenting schedule. Father received 100 days of parenting time plus holidays. Father’s child-support obligation increased to $955 per month.

Father appealed.

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

To modify an existing parenting plan, a Tennessee court must first determine whether a material change of circumstances has occurred.

The trial court found, and the Court of Appeals agreed, that Father’s repeated failure to follow the parenting plan’s long-distance travel cost-sharing provisions while repeatedly asking Mother to waive child support to offset his expenses established the material change necessary to change the primary residential parent designation.

Once a material change is established, Tennessee courts must consider the factors at Tennessee Code Annotated § 36-6-106(a) to conduct the best-interest analysis. Notable were factors two and four:

(2) Each parent’s … past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents … 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.

(4) The disposition of each parent to provide the child with food, clothing, medical care, education, and other necessary care.

The Court found the trial court properly evaluated and weighed these two factors:

The court placed considerable weight on factor two, finding that “Mother is more likely to foster a good relationship with Father than [] Father is with [] Mother.” … Father’s “disparaging and distressing comments to Mother,” including referring to her as “ya leech,” and to himself as “just a pay day” were viewed unfavorably by the trial court. So, too, were Father’s objections to paying child support and his admonition that paying child support would “be the biggest strain on” the coparenting relationship, despite earning nearly ten times as much income as Mother. Finally, as to factor two, the trial court considered Father’s emailed complaint that Mother’s visiting the child 19 out of 127 days was “excessive” during his year of custody. The court found this to be “evidence that Father would be less likely to support a positive relationship with [] Mother should [] Father be designated the primary residential parent.”

As to the fourth factor, the trial court found:

[W]hile both parties are certainly capable of providing the child with food, clothing, medical care, education, and other necessary care, Mother has a greater disposition to provide these necessities than does Father. The Court again refers to Father’s resentment toward paying child support [] and his statement that he was financially devastated by paying only $200 in child support when his income is over $100,000 per year. This factor favors Mother.

Other factors favored Mother, Father, or were equal.

Finding that the evidence does not preponderate against the trial court’s findings, the Court affirmed the trial court’s judgment.

K.O.’s Comment: Like the mother in Church v. Jones, Mother sought to recover her attorney’s fees on appeal on the rarely successful ground of a “frivolous” appeal instead of the often-successful approach afforded by Tennessee Code Annotated § 36-5-103(c).

Why is this happening?

Gravatt v. Barczykowski (Tennessee Court of Appeals, Middle Section, May 25, 2021).

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