Facts: Mother and Father are the divorced parents of three children. Soon after their divorce in 2014, Mother sought permission to relocate to Pennsylvania with the children.

The trial court denied Mother’s relocation after it found the relocation lacked a reasonable purpose. The Court of Appeals reversed the trial court and allowed the relocation.

After Mother moved to Pennsylvania with the children, no new parenting plan was entered, and Father continued to have 125 days of parenting time per the original parenting plan.

Several years later, Father petitioned to change the parenting plan to name him the primary residential parent for both children.

The trial court found that Mother’s relocation to Pennsylvania was a material change of circumstances that resulted in significant travel back and forth and a drastic reduction in Father’s parenting time. Despite Father alleging multiple material changes in circumstance, the trial court’s only basis for the change in custody was Mother’s relocation to Pennsylvania.

Father was named the primary residential parent, and Mother was awarded 69 days of parenting time.

Mother appealed, arguing that the trial court erred in concluding that Mother’s relocation was a material change in circumstances justifying a change in custody.

On Appeal: The Court of Appeals vacated the trial court’s ruling.

The Court found the trial court erred in treating Mother’s relocation as a material change in circumstances after the Court of Appeals allowed the relocation:

First, the finding that Mother should be allowed to relocate notwithstanding Father’s loss of parenting time is the law of the case. Under the law of the case doctrine, an appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal. The doctrine applies to issues that were actually before the appellate court in the first appeal and to issues that were necessarily decided by implication. The doctrine does not apply to dicta.

Essentially, the trial court chastised Mother for failure to adhere to the permanent parenting plan because Father could not exercise his full parenting time due to the distance resulting from Mother’s move. However, this Court had already determined that Mother was allowed to move the children that distance. The trial court erred in considering whether Mother’s relocation was a material change in circumstances warranting a custody change.

Second, this Court has previously held that a finding that a proposed move has a reasonable purpose eliminates any argument that such a move is a change of circumstances which makes a change in custody in the child’s best interest.

Insofar as this Court already gave Mother permission to relocate to Pennsylvania with the parties’ children, we conclude that Mother’s relocation alone cannot serve as the basis for a material change in circumstances. Consequently, the portion of the trial court’s order finding that Mother’s relocation constitutes a material change in circumstances is vacated.

However, Father alleged several other material changes in circumstance in his petition to modify. Among other things, Father claimed that the children have developed a strong preference to reside in Tennessee, had experienced housing and educational instability with Mother, and were not getting adequate support in their education and extracurricular activities. In its final order, the trial court touched upon some of these alleged changes but did not sufficiently expound. Consequently, the trial court’s order appears to suggest that factors other than Mother’s relocation amounts to a material change in circumstances. If this was the trial court’s intention, the foregoing findings are insufficient. Likewise, there is little to no discussion in the order about how any purported changes, other than relocation, have affected the children’s well-being. While Father alleged in his petition and argues in his brief that other significant changes have occurred, and while the proof at trial seems to support these contentions, the final order before us is insufficient for meaningful appellate review on these issues.

The Court remanded the case Back to the trial court to consider whether Father established a material change in circumstances other than Mother’s relocation to Pennsylvania.

Source: Sanko v. Sanko (Tennessee Court of Appeals, Eastern Section, April 6, 2023).

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