Opinion
No. M2007-02843-COA-R3-CV.
March 24, 2009 Session.
Filed April 27, 2009.
Direct Appeal from the Circuit Court for Davidson County; No. 04D-725; Carol Soloman, Judge.
Judgment of the Circuit Court Affirmed; and Remanded.
Amy J. Farrar and Donald Capparella, Nashville, Tennessee, for the appellant, Teresa Price Ateca.
Paul A. Rutherford and Wende J. Rutherford, Nashville, Tennessee, for the appellee, Joseph Ateca.
David R. Farmer, J., delivered the opinion of the court, in which Alan E. Highers, P.J., W.S., and J. Steven Stafford, J., joined.
OPINION
Mother appeals the trial court's order modifying primary residential parent status and naming Father primary residential parent of the parties' minor child. We affirm.
This is a modification of child custody/primary residential parent case. Petitioner/Appellee Joseph Ateca ("Father") and Respondent/Appellant Teresa Price Ateca, now known as Teresa Curley ("Mother"), were divorced in January 2005. They have one minor child, Elisa Beth, born April 2003. In addition to Elisa Beth, Mother has two daughters from a prior marriage. Under the 2005 MDA and parenting plan, Mother was named primary residential parent of Elisa Beth and Father was granted alternate parenting time every other weekend from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. However, Father worked a night shift and Mother worked during the day, and Father provided child care for Elisa Beth during the day when Mother was working. Father also exercised additional visitation during the evenings when he was not working. In May 2006, Mother resigned from her job in Tennessee and divided her time between Tennessee and Maryland, where she resided with Mr. Trey Curley (Mr. Curley). Mother married Mr. Curley in November 2006.
On August 24, 2006, Father filed a petition in the Circuit Court for Davidson County praying for temporary emergency custody and for a change of custody of Elisa Beth from Mother to Father.
In his petition, Father alleged that Mother had been arrested and jailed on charges of domestic violence against her eldest daughter, who was then 16 years of age; that she was facing prosecution and had left the State; that Mother had been mixing alcohol and depression medication; that neither of Mother's older daughters was residing with Mother; that Mother left Tennessee for Maryland in April or May 2006, leaving Elisa Beth with Father; that Mother took Elisa Beth out of Tennessee after Mother was arrested on criminal charges and without notice to Father; that Mother was unstable and was more interested in spending time with her boyfriend than with Elisa Beth; and that, since the January 2005 divorce, Father had provided most of Elisa Beth's care. Father asserted that, to the best of his belief, Mother would be returning temporarily to Tennessee with Elisa Beth on August 25, 2006. He asserted that he feared for Elisa Beth's safety and well-being; that a material change of circumstance had occurred; and that it was in Elisa Beth's best interest for him to be named primary residential parent. The trial court granted Father's petition for temporary emergency custody.
Mother answered Father's petition in September 2006, admitting that she had been charged with domestic assault and that she would be returning to Tennessee, but denying the remainder of Father's assertions. She asserted that she had maintained a residence in Tennessee while working in Maryland; that she had left Tennessee for Maryland for employment purposes; that Father had visited with Elisa Beth in Maryland; and that she had returned to Tennessee and was employed on a full-time basis in Tennessee. She further asserted that she had allowed Father parenting time in excess of that provided by the parenting plan in order to promote a good relationship between Father and Elisa Beth. Mother counter-petitioned and prayed for Elisa Beth to be returned to her custody. Following a hearing on September 27, the trial court appointed a guardian ad litem and granted Mother supervised visitation. In January 2007, Mother was granted unsupervised visitation following a hearing on December 15, 2006.
The trial court heard the entire matter in March and July, 2007. By amended final order entered on November 19, 2007, the trial court determined that a material change of circumstance had occurred and that it was in Elisa Beth's best interest to name Father primary residential parent. The trial court granted Mother alternate parenting time every other weekend from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, and alternate Thursday nights. Mother filed a timely notice of appeal, and oral argument on the matter was heard by the Western Section of this Court sitting in Nashville on March 24, 2009.
On March 17, 2008, this Court stayed all proceedings on appeal following Mother's Chapter 13 bankruptcy petition. The stay was dissolved on August 18, 2008, following entry of an order by the United States Bankruptcy Court for the Middle District of Tennessee allowing the appeal to proceed.
Issues Presented
Mother raises the following issues, as we slightly reword them, for our review:
(1) Whether the trial court erred in finding that a material change in circumstance had occurred.
(2) Whether the trial court erred in failing to conduct a comparative fitness analysis.
(3) Whether the trial court erred in changing custody from Mother to Father and thereby separating siblings.
Standard of Review
We review the trial court's findings of fact with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Accordingly, we will not reverse the trial court's factual findings unless they are contrary to the preponderance of the evidence. We review the trial court's conclusions on matters of law de novo, however, with no presumption of correctness. Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). Additionally, matters of child custody and visitation generally are within the broad discretion of the trial court. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted). Similarly, the trial court's determinations on matters of witness credibility are accorded great deference. Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). We will not re-evaluate a trial judge's credibility determinations unless they are contradicted by clear and convincing evidence. Id.
Analysis
A valid child custody or visitation order may be modified where a material change of circumstance has occurred such that modification is in the best interests of the child. Tenn. Code Ann. § 36-6-101(a)(2)(B) (C) (2005 Supp. 2008). Thus, the court must utilize a two-part test in determining whether a change of custody or visitation is warranted. First, it must determine whether a material change of circumstance has occurred that affects the child's well being. Second, if it finds a material change of circumstance that affects the child, the court must utilize the factors enumerated in Tennessee Code Annotated § 36-6-106 to determine whether a change of custody is in the best interests of the child. Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003) (citations omitted).
The "threshold issue" in a custody modification case is whether a material change has occurred that affects the well-being of the child. Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002). Although no "bright-line" rule exists for determining whether a material change in circumstance has occurred, the supreme court has identified several factors for consideration including: 1) whether a change has occurred subsequent to the earlier order; 2) whether the change was not known or reasonably anticipated when the order was entered; 3) whether the change affects the child in a meaningful way. Cranston, 106 S.W.3d at 644 (citations omitted). The party asserting a material change of circumstance is not required to demonstrate a substantial risk of harm to the child. Tenn. Code Ann. § 36-6-101(a)(2)(B) (C) (2005 Supp. 2008). Further, the failure to adhere to a parenting plan or order of custody, or circumstances that make the parenting plan no longer in the best interest of the child, may constitute a material change of circumstance. Id. Only if the trial court determines that a material change in circumstance has occurred may it consider whether modifying the primary residence is in the child's best interest. Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002). The factors to be considered in a "best interest" analysis are those set forth in Tennessee Code Annotated § 36-6-106. Id.
We first address whether the trial court erred in determining that a material change of circumstance occurred such that it is in Elisa Beth's best interest to modify residential parenting status in this case. In her brief to this Court, Mother denies Father's assertions that she has a drinking problem and combines alcohol and prescription medications; that Mr. Curley, with whom she cohabitated and later married, is "unstable" or that she and Mr. Curley have had physical altercations; and that she does not supervise or care for her children appropriately. Mother asserts that she left Tennessee for a temporary position in Maryland that paid almost twice as much as her job in Nashville, and submits that Father knew she would be returning to Tennessee permanently in August 2006. Mother also contends that, although Father spent more time caring for Elisa Beth than provided for by the original parenting plan, she permitted this in order to foster Father's relationship with Elisa Beth.
Mother further asserts that Father has hit her in front of Elisa Beth; that he is unstable and tries to intimidate her; that he has a drinking problem and has been arrested for DUI; and that he has been required to attend anger management courses twice. Mother also asserts Father changed jobs five times between August 2006. She contends that when the trial of this matter ended in July 2007, Father was earning approximately $12.50 per hour, plus commissions, while she, a nurse and the provider relations manager at Asera Care Hospice, earns $65,000 per year.
In its November 2007 order, the trial court found that a material change of circumstance had occurred such that the original parenting plan was no longer in Elisa Beth's best interest. The trial court found that Father had played a much greater role in Elisa Beth's life than the original parenting plan provided for, that he picked her up from daycare most of the time, and that he cared for Elisa Beth and cleaned Mother's home while Mother "did other things." The trial court found that Mother was "taking pills and drinking[,] which affected her judgment," that Mother seemed "unable to get along with her mother, her children, her ex-husband or her new husband," that Mother had inappropriately left Elisa Beth in the care of her other daughters and that Elisa Beth had been injured as a result; that she had been arrested for fighting with her older daughter; and that Mother had misused the court system and filed false complaints. The trial court found that Mother was not a credible witness, and that Mother had threatened a witness who testified against her. The court found, "alcohol and prescription drugs and having a good time are more important to Mother than raising the child."
Upon review of the record in this case, we observe that this dispute revolves around the question of whether, since entry of the original parenting plan, Mother has focused on her "good time[s]" and relationship with her boyfriend/new husband in lieu of appropriately caring for Elisa Beth. We further note that it is undisputed that Father has provided considerably more care for Elisa Beth than the original parenting plan anticipated. Additionally, the determination of the dispositive issues in this case and the veracity of witness's allegations of threatening behavior on Mother's part required a determination of credibility by the court. The trial court unequivocally found Mother not to be credible.
The determination of whether a material change in circumstance has occurred is a factual determination. E.g., Adams v. Adams, No. W2008-00225-COA-R3-CV, 2009 WL 690697, at *12 (Tenn.Ct.App. Mar. 17, 2009). We cannot say the evidence preponderates against the trial court's finding that a material change of circumstance has occurred such that it is in Elisa Beth's best interest to modify the 2005 parenting plan to name Father primary residential parent. Additionally, no clear and convincing evidence exists to warrant reversal of the trial court's credibility determinations in this case.
We next turn to Mother's assertion that the trial court erred by failing to conduct a comparative fitness analysis. We observe that the recent case law is inconsistent with respect to the extent to which the trial court must engage in a comparative fitness analysis when modifying custody. See, e.g., Taylor v. McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767 at *5 (Tenn.Ct.App. Aug. 5, 2008) ( no perm. app. filed) (stating the trial court "need not repeat the comparative fitness analysis that is appropriate at the time of the original custody decree.") (quoting Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn.Ct.App. 1991), overruled on other grounds as recognized by Kesterson v. Varner, 172 S.W.3d 556, 560-65 (Tenn.Ct.App. 2005)); but see, e.g., Adams v. Adams, No. W2008-00225-COA-R3-CV, 2009 WL 690697, at *12 (Tenn.Ct.App. Mar. 17, 2009)(stating: "Only if the court answers this `threshold' question in the affirmative does it proceed to perform a new comparative fitness analysis and then determine whether a new custody and visitation arrangement is in the child's best interests.") (quoting Krupp v.. Cunningham-Grogan, No. M2005-01098-COA-R3-CV, 2006 WL 2505037, at *7 (citing Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); McEvoy v. Brewer, No. M2001-02054-COA-R3-CV, 2003 WL 22794521, at *2 (Tenn.Ct.App. Nov. 25, 2003)). In this case, however, the trial court clearly determined that it was in Elisa Beth's interest to modify custody in light of the statutory factors. The basis of the trial court's judgment, as we perceive it, is that Mother's judgment has been "cloud[ed]" by alcohol, that Mother's attention after the divorce was diverted to her social life and away from her children, and that Father has provided much of Elisa Beth's care since the time of the divorce. Like the determination of whether a material change in circumstance has occurred, the determination of where the best interest of the child lies is largely a factual matter. Adams, 2009 WL 690697, at *12. Moreover, as in most custody actions, the factual matters to be determined by the trial court when considering the factors set forth in Tennessee Code Annotated § 36-6-106 require an assessment of the credibility of the parties and the witnesses. Accordingly, we are reluctant to second-guess the trial court's determinations. Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn.Ct.App. 2001). The evidence in the record does not preponderate against the trial court's finding that modifying primary residential status from Mother to Father is in Elisa Beth's best interest.
We finally turn to Mother's assertion that the trial court erred where naming Father primary residential parent separated Elisa Beth from her siblings. We have consistently recognized the importance of raising siblings together in the same household whenever possible. Thus, custody orders generally will not separate siblings in the absence of extenuating circumstances or evidence of potential harm. E.g., Scoggins v. Scoggins, No. M2007-02148-COA-R3-CV, 2008 WL 2648966, at *7 (Tenn.Ct.App. Jul. 2, 2008) ( no perm. app. filed) (citations omitted). In this case, it is undisputed that Mother was arrested for domestic assault against her eldest child, and the trial court found that Mother's middle daughter spent "a great deal of time" at the home of another family. Based on the testimony of the witnesses, the trial court found that this family did not know Mother and was unaware of Mother's whereabouts during the time Mother's daughter was in their home. The trial court also found that Mother's daughter expressed a desire to live with this family and not with Mother. The trial court found that Mother left Elisa Beth in her older daughters' care, that the older daughters were not "responsible enough" to care for Elisa Beth, and that Elisa Beth was inappropriately supervised and was injured while in their care. In light of the entirety of the record, we cannot say the trial court erred by separating Elisa Beth from her half-sisters.
Holding
In light of the foregoing, we affirm the judgment of the trial court. Father requests attorney's fees on appeal. This request is denied. Costs of this appeal are taxed to the Appellant, Teresa Price Ateca (Curley), and to her surety, for which execution may issue if necessary.