# FILED April 13, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) ELPIDIO PETE PLACENCIA , ) Shelby County Circuit Court ) No. 138164 R.D. Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 02A01-9803-CV-00065 ) LAUREN ROCHELLE PLACE NCIA , )

) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Cour

t of Shelby County at M

emphis. Honorable George H. Brown, Jr., Judge

Edward M. Bearman , Anthony Sammons , BRANSON & BEARMAN, PLLC, Memphis, Tennessee Attorneys for Plai

ntiff/Appellant. Robert A. Talley , BROWN, BRASHER & SMITH, Memphis, Tennessee Attorney for Defendant/Appellee.

OPINION FILED: AFFIRMED IN PART,

REVERSED IN PART, VACATED IN PART AND R EMANDED FARMER, J. CRAWFORD, P.J., W

.S. : (Concurs) HIGHERS, J. : (Concurs)

In this child

custody dispute, the trial court granted a petition to change custody filed1 Throughout the record, Mr. Placencia’s first name is listed as “Elpidio.” When giving

his deposition testimony, however, Mr. Placencia informed counsel for Mrs. Placencia that the correct spelling of his name is “Elpipio.” All of the pleadings, including those filed by Mr. Placencia, state

“Elpidio.” In ord

er to remain cons

istent with the rec

ord, we have pur

posefully used this spelling of Mr. Placencia’s name in this opinion. by Lauren Rochelle Placencia. The court also ordered Elpidio Pe

te Placencia 1 to pay discretionary costs and attorney fee

s incurred by Mrs.

Placencia. Mr. Pl

acencia a ppeals the ruling of the trial court. Because we find no material chang e in circumstanc

es occurring subsequent to the par ties’ original custody agreement, we reverse the trial court’s order granting Mrs. Placencia’s petitionto change custody. Additionally, because we find that the court did not abuse its discretion in awarding costs to Mrs. Placencia, we affirm the p ortion of the trial court’s ruling regarding this matter. Finally, because we find no statutory a u thority under which Mrs. Placencia may recover attorney fees, we vacate the trial court’s ruling to the extent that it awarded a

ttorney fees to Mr

s. Placencia.

Factual and Procedura

l History

Mr. and Mrs. Placencia were married in December of 1 989. Megan, the pa rties’ only child, was born in July of 1990. In February of 1992, when Megan was one and one-half years old, Mr. Placencia fil

ed for divorce, alleging that irreconcilable differences had arisen between the parties. Mr. and M

rs. Placencia sub

sequently entere

d into a marital dissolution agreement, which providedthat Mr. Placencia would h ave custo dy of Megan and that Mrs. Placencia would have reasonable

visitation rights. A final divorce decree, which in corporated the parties’ marital dissolution agreement, was entered in May of 1992.

In March of 1997, after discovering that Mr. Placencia intend ed to reloc ate with Megan to Statesboro, Ge orgia, Mr s. Placencia file d a petition to chan

ge custody. Mrs. Pla

cencia then petitioned for and received a tempora ry injunction prohibiting Mr. Placencia from removing Megan from the state

of Tennessee. Additionally, Mr. Placencia filed a petition seeking permission to relocate with Me

gan to the state of

Georgia. In May o

f 1997, the trial c

ourt entered an order providing that, during the pendency of the petition to change custody and the pe tition to relocate, custody of Megan should be placed with Mrs. Placencia and that Mr. Placencia should have reasonable

and liberal visitation. After hearing the pending motions on December 4 and 5, 1997,the trial court took the matter under advisement. Thereafter on February 3, 1998, the trial court

issued a memorandum opinion holding that there had been a material change in circumstance s occurring since the original custody determination and that, considering all relevant factors, it was in Megan’s best interes ts to remov e her from the custody of Mr. Placencia and place her in the custody of

Mrs. Placencia. Consistent with its memorandum opinion, the court then entered an order granting Mrs. Placencia’s petition to change custody. Additionally, the trial court ordered Mr. Placencia to pay $3,936.30 in discretionary costs and $9,063.70 in attorney fees incur red by Mrs. Placencia.
Change of Custody

When considering a petition to modify custody, the threshold issue is whether there has been a mat eria l change in circumstances occurring subsequent to the initial custody determination. See, e.g., Masseng ale v. Massengale , 915 S.W.2d 818, 819 (Tenn. App. 1995) (citing Dailey v. Dailey , 635 S.W.2d 391, 393 (Tenn. App. 1981)). If the trial court determines that there has, in fact, been a material change in circumstances, the court then seeks to devise a custody arrangement

that is in the best interests of the child. See, e.g., Varley v. Varley , 934 S.W.2d 659, 665-66 (Tenn. App. 1996)(quoting Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. App. 1993)); Tenn. Code App. § 36-6-106 (Su pp. 1998). Absent a

ma terial chang e in circumstances, however, the petition to m odify custody must be denied. Our review of the trial court’s ruling on a petition t o modify custody is de novo on the record, accompanied by a pr esumpti on of correctness of the findings below. See Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984); Gaskill v. Gaskill , 936 S.W.2d 626, 631 (Tenn. App. 1996); T.R.A.P. 13(d). Thus, we may not reverse the ruling of the trial court unless it is contrary to the preponderance of the evidence. See Hass , 676 S.W.2d at 555; Massengale , 915 S.W.2d at 819; T.R.A.P. 13(d).

In its memorandum opini on, th e trial court found “that a change in material circumstances exist[s] which support[s] a conclusion that a change of custody is in the bes

t interests of the minor child.” In support of this finding, the court first expressed concern with Mr. Placencia’s decision to relocate with Megan to Statesboro, Georgia. In Taylor v. Taylor , 849 S.W.2d 319 (Tenn. 1993), the Tennessee Supreme Court expressly held the removal of a child from the jurisdiction was2 In 1998, the Tennessee General Assembly enacted a new statute relative to parental

relocation, whic

h provides in perti

nent part as follo

ws: The parent spending the greater amount of time with the child shall be permitted to relocate with t

he child unless the

court finds: (1) The relocation does not have a reasonable purpose; (2) The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of a change of custody; or (3) The parent’ s motive for reloc ating with the child

is vindictive in that

it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child. Tenn. Code Ann. § 36-6-108(d) (Supp. 1998)(effective May 7, 1998).

3 The trial court expressly found that Mr. Placencia’s decision to relocate was not the result of “malevolent motives.” not, in and of itself, a material change in circumstances sufficient to justify the modification of an original custody order. See id. at 332. In Aaby v. Strange , 924 S.W.2d 623 (Tenn. 1996), the court further explained that “a custodial parent will be allowed to remove the chil

d from the jurisdiction unless the non-custodial parent can show, by a preponderance of the evidence, that th e custodial parent’s motives for moving are vindictive—that is, intended to defea

t or deter the visit

ation rights of the non-custodial parent.” Id. at 62 9. See a lso Tyndall v. Tynda ll , 934 S.W.2d 57, 57 (Tenn. App. 1996). 2 In the case at ba r, there is absolu

tely no evi dence that Mr. Placencia’s motives for relocating were vindictive. 3 Rather, it appears that Mr. Placencia desired to relocate because he had been offered employm

ent in Statesboro, G

eorgia with a high

er sa lary. Additi onally, it is notable that, prior to his decision to relocate, Mr. Placencia investigated the educational opportunities that were available in Statesboro, Georgia, arranging for Megan to atte

nd a private scho

ol in this area. Thus, because the pro

posed relocation

was not the result o

f vindictive mo tives, Mr. Placencia’s intention to relocate with Megan cannot serve as a material change in c i rcumstances warranting a redetermination of custody.

In support of her

petition to

change custody, Mrs. Placencia alleged concerns other than Mr. Placencia’s removal of Megan from the state of Tenness ee. With respec t to these allegations, the tr

ial court found as

follows:
First, Ms. Placencia notes that Mr. Placencia has not always adhered to the visitation schedule. On a number of occa sions in the past, Mr. Placencia unilaterally cha

nged the visitation

schedule, refu

sing Ms. Placencia’s scheduled visitation with her daughter when such visitation conflicted with hi s personal plans.

Second, Ms. Placencia4 When asked to est imate the number o

f times that she wa

s denied visitation,

Mrs. Placencia stated that she was unable to give a specific number but that it had occurred several times. When recalled to the witness stand, however, Mrs. Placencia estimated that she had been denied visitation o

n fifteen to twent

y occasions. is co n cerned about certain instances when her daughter has been exposedto inappropriate con duct between Mr. Plac encia and his fiancee. When Me gan l ived with her father, on occasions she was allowedto sleep in the same bed with him and Ms. Koile. Third, Ms. Placencia has cited instanc

es in which Ms. Koile

has interfered

with her relati onship with her daughter by not allowing Megan to speak withher mother on the p

hone, or cutting ph

one call s sh ort during a recent extended visit to Georgia. Finally, Ms. Placencia is concerned withMegan’s education. Megan w as absent from school twentyeight days in the previ o us year without any adequate explanation. Further, Mr. Placencia does not provide any religi ous education for Megan, who attends Sunday School when in the care of her mother.

The trial court then concluded that, even absent Mr. Placencia’s decision to relocate, these additional factors were sufficient to justify a change in custody.

On appeal, we must consider whether the aforementioned findings of fact made by the trial court are contrary to the preponderance of the evidencein the record. First, we address the trial court’s fi nding that Mr. Placencia has not been cooperative with respect to Mrs. Placencia’s visitation with Megan. Under the parties final decree of divorce, Mrs. Placencia w as gran ted “reasonable

visitation rights.” The divor ce decree, however, did not set forth a specific visitation schedule. Instead, the parties devised a schedule under which Meg an would visit with Mr s. Placencia during every other weekend and on every othe

r major holiday. Mr

s. Placencia

testified that Mr. Placencia was st

rict or rigid rega

rding the visitation

schedule and tha

t he would

get angry when Mrs. Placencia was late bringing Megan home. Mr. Placencia, however, denied that he has been strict regarding visitation, noting times when Megan would visit with Mrs. Placencia during successive weekends. Additionally, Mr. Placencia testified that the parties often arranged for Megan to spend time

with both of their families during the major holidays. Mrs. Placencia alleged that Mr. Place ncia has occasionally denied her visitation with Megan. 4 Specifically, she referred to an incident that occurred on the fourth of July approximately two years prior to the hea ring. Mrs. Placencia had planned to take Megan to a family gathering in Arkansas. At the last moment, Mr. Placencia informed her that she could not visit with Megan. Mr. Placencia admitted that he denied visitation on this occasion but explained that the denial occurred bec ause ther e was confusionregarding whose turn it was to visit with Mega

n. Both parties had

planned vacatio

ns during the same periodof time. According to Mr. Placencia, he informed Mrs. Placencia

that if she could r

eschedule her vacation, she could spend time with Megan whe

n they returned.

Additionally, Mrs.

Placencia testified that she was denied visitat ion on the Easter im

mediately prior to the hearing. Apparently, h owever, the reason that Mr . Placencia deni

ed visitation on this o

ccasion was that

Mrs. Placencia had been allowed to vi

sit with Megan on New Years Eve, which was supposed to be Mr. Placencia’s holiday. Other than these two incidents, Mrs. Placencia did not describe in detail any other conflic

ts regarding visitation. The fa ct that Mr. Placen

cia denied visitation on two isolated occasions during
a five year perio

d of time does not es

tablish any intent o

n the part of Mr. Pla

cencia to interf

ere with the relationship between Mrs. Placencia and Megan. On the contrary, Mr. Placencia testified that he is willing to do “absolutely anything” to ensure that Megan maintains a relation shi p with her mother, even offering to fly Mrs. Placencia to Georgia twice per year at his expense so that she have extended visitation with Mega

n. Given their pas

t conflicts regar

ding visitation, it m

ay be appropr

iate for the parties to seek an order from the trial court more clearly defining or perhaps enforcing the parties’ visitation schedule. Based on the aforementioned testimony, however, we cannot say that Mr. Placencia’s denial of visitation ontwo occasions is sufficient to es tablish a materia

l change in circumstances.

We next address the t

rial court’s f

indin g that Megan has be en exposed to inappropriate

conduct between Mr. Placencia and his fiancee. It is undisputed that, during the period of time that he had custody of Megan, Mr. Placencia resided with his fiancee Kimberly Koile. At the time of trial, Mr. Placencia continued to live with Ms. Koile in Statesboro, Georgia. It is also undisputed that, on several o ccasions, Megan

has slept in

the same bed

with Mr. Placencia

and Ms. Koile. Mrs. Placencia testified that shedoes not have a mor al objection to

Mr. Placencia liv

ing with Ms. Koile but that she d oes h ave concerns regarding the fact that Megan occasionally slept in the
samebed with the couple. Mr. Placencia testified, however, that Megan was not exposed to anything inappropriate

while sleeping with him and Ms. Koile. Additionally, there is no allegation that either Mr. Placencia or Ms. Koile was unclothed or that they engaged in any type of sexual activity while Megan was in their bed. According to Mr. Placencia, Megan sometimes became afraid at night. In order to comfort the child and make her feel safe, Mr. Placencia occasionally allowed Megan to sleep withhim. We do not think that this is in any way an abnormal or inappropriate parenting practice.Thus, the mere fact that Megan has been allowed to sleep in

the same bed with Mr

. Placencia

and Ms. Koile does not constitute a material change in circumstances requiring a redetermination of custody.

We next address the trial court’s finding that Mr. Placencia’s fiancee has interfered withMrs. Placencia’ s relationship with Megan. We have discove red little evidenc

e in the record to support this finding. Mrs. Placencia t es tified that, on one occasion, she returned Megan after visitation and it seemed as if Ms. Koile was eager to get Megan away from her. Additionally, Mrs. P lacencia stated that, on another occasion, Ms. Koile cut short a telephone conversation betwee n Mrs. Placencia and Me

gan, purportedly

because they we

re planning to

leave the house. Finally, Mrs. Placencia expressed a con

cern that, if Mr.

Pla cencia is permitted to reta in custody of Mega

n, Ms. Koile might interfere with h

er relationship

with Megan. Mrs. Placencia admitted, however, that she is not certain whether this would occur. We do not think tha t th e incidents descr

ibed by Mrs. Placencia are sufficient to establish that Ms. Koile has attempted to interfere withMrs. Placencia’s relationship

with Megan. Given this lack of evidence, we also think

that Mrs. Placencia’s fear that Ms. Koile might attempt to interfere with this relationship in the future is unfounded. Thus, we find that the aforementio

ned testimony is

insufficient to establish the existence of a material change of circumstances.
Finally, we ad dre ss the trial court’ s findings regard ing Megan’s educ

ation. By all accounts, Megan is a ve ry brigh t child and has alw ays done well in sc

hool. Both Mr. and Mr

s. Placencia have been involved

in Megan’s education. Mr. Placencia testified that he attended parent teacher conferences and helped Megan with her homework every night when she was in his custody. Add itionall y, since Megan was p laced in the tempo

rary custody of Mr

s. Placencia, Mr.

Placencia has called Megan’s school to check on her progress. Mr

s. Placencia test

ified that she also

monitors Megan’s progress, calling her school approximately on ce every two we eks. It is undispute

d that, while in the custody of Mr. Plac enc ia, Megan missed tw enty-eight days of

school. It appea

rs, however, that Megan was sick on each of these occasions. Gloria Plac encia, Megan ’s paternal grandmother, explainedthat these days of school were missed because Megan came down with the chi cken pox as well as two separate strep infections. Additionally, she noted that Megan ha s completedall of

the assignments that she missed when she was sick. While in the temporary custody5 This provision was amended in 1998 to add the following as an additional statutory

factor: Each parent’s past and potential for future performance of parenting responsibilities, i

ncluding the willing

ness and ability of

each of the par

ents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child. Tenn. Code Ann. § 36-6-106(10) (Supp. 1998)(effective May 18, 1998). of Mrs. Placencia

, Megan was on the

honor roll of the pr

ivate school that s

he attended. Whi

le we have no reason to

doubt the quality of

this school, we also note that Megan has been accepted by a private school in Statesboro, Georgia that has a graduation and college placement rate of nearly one hundredpercent. Thus, r egardless of whe

ther Megan is

placed in the custody of her mother or her father, we think that she will have an opportunity to receive a quality edu cation . Finally, it is undisputed that Mrs. Placencia takes Megan to church and that Mr. Placencia does not attend church services. There is no evidence in the record, howeve r, suggesting that Mr.

Placencia’s fa

ilure to providedreligious education to Megan has resulted in any negative effects on the child. Based on the aforementioned testimony concerning Megan’s education, we cannot find any material change in circumstances warranting a redetermination of custody.

For the reasons discussed above, we do not think that Mrs. Placencia has carried her burden of proving that there has been a material change in circumstance s sufficie nt to warrant a change of cus tody. Thus, we conclude that the trial court’s

finding of a mater

ial change in circumstances is contrary to the preponderance of the evidence. Accordingly, we hold that the trial court erred in granting Mrs. Placencia’s petition for a change in custody.

Assuming, however, that there has been a material change of circumstances in th e
case at bar, we would still find that it is in Megan’ s best interests to remain in the custody of Mr. Placencia. When determining what is in the best in

terests of a child

, the trial court a

ssesses th e comparative fitness of the parties seeking custody. See Ruyle v. Ruyle , 928 S.W.2d 439, 442 (Tenn. App. 1996); Matter of Parsons , 914 S.W.2d 889, 893 (Tenn. App. 1995). This assessment involves consideration of all relevant factors. See Tenn. Code Ann. § 36-6-106 (1996)( listing s tatutory factors) 5 ; Gaskil

l , 936 S.W.2d at 630 (quoting Bah v. Bah , 668 S.W.2d 663, 666 (Tenn. App. 1983))(listing additional factors). In thei nstant case, both parties agree that Megan is a healthy,happy, and well-adjusted child. Mrs. Placencia admits that Mr. Placencia hasnot been a bad parent to Megan. Additional ly, Mr. Placencia concedes that Mrs. Placencia did a good job of parenting while Megan was in

her temporary c

ustody. He furthe

r speculated tha

t Mrs. Placencia would do a good job of raising Megan if she received permanent custody of the child. Thus, it appears that both of the parties are fit parents. Under Tennessee law, however, there is a strong pre sumption in favor of continuity of

placement. See Aaby , 924 S.W.2d at 627, 6 28; Gaskill , 936 S.W.2d at 631; Taylor , 849 S.W.2d at 328, 332; Hill v. Robbins , 859 S.W.2d 355, 358 (Tenn. App. 1993). Mr. Placencia
was granted custody o f Megan at the time of the par

ties’ divorce in Ma

y of 1992. The child remained in the custody of Mr. Placencia until Ma y of 1997 when the t

rial court place

d Megan in the temporary custody of Mrs. Placencia. Megan apparently thrived during this five year period of time. Thus, we conclude

that it is in Megan’s best

interest to remain in the custody of Mr. Placencia.
Discretionary Costs

In her motion for d

iscretionary costs, Mrs. Placencia sought reimbursement for the $2,812.50 fee of the guardian ad litem and $1,123.80 in court reporter expenses. The awarding of discretionary costs is governed by Rule 54.04 of the Tenn es see Rules of Civil Procedure, which provides in pertin

ent part as follow

s:

Costs not included in the b ill of costs prepared by the clerk are allowable only inthe court’s discr etion. Discretion

ary costs allowable are: reasonable and necessary court reporter expenses for depositions or trials, reasonable and necessary expert witness fees for depositions or trials, and guardian ad litem fees ; travel expenses are not allowable disc

retionary costs.

T.R. C.P. 54.04(2)(empha sis added). Thus, R

ule 54.04 express

ly authorizes the

trial court, in its discretion, to award reasonable and necessary court reporter expenses as we ll as guardian ad litem fees. Trial courts are

afforded a gre

at deal of discre

tion when consider

ing whether to awa

rd costs. Absent a clear abuse o

f discretion, app

ellate courts ge

nerally will not alter a

trial court’s rul

ing with respect to costs. See, e.g., Perdue v. Green Branch Mining Co. , 837 S.W.2d 56, 60 (Ten n. 1992)(citations o

mitted). In the inst

ant case, Mr. Plac

encia does not challenge the reasonablenes s
or necessariness of the court reporter expenses. Additionally, we note that neither party petitionedfor

the appointment of the guardian ad litem. Rather, it a ppears that the guardian ad litem was appointed on the trial court’s own motion. There is simply no evidence in the record suggesting that the trial court abuse

d its discretion in awarding costs to Mrs. Placencia. We therefore affirm the trial court’s ruling with respect to this matter.
Attorney Fees

In cases involving child custody, the trial court is authorized to award attorney fees under section 36-

5-103(c) of the T

ennessee Code An

notated, which pr

ovides as follows:

The plaintiff spouse may recover from the defendant spouse, and the spouse or othe

r person to

whom the custody of

the child, or children, is awarded may recover from the other spou se reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any su it or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court , before whom such action or proceeding is pending, in the discretion of such court.

Tenn. Code Ann. § 36-5-103(c) (1996). Under this provision, the trial court may, in its discretion, award attorney fees to “the spouse or other person to whom the custody of the child, or children, is awarded.” Tenn. Code Ann. § 36-5-103(c) (1996). In the instant case, the trial court granted Mr s. Placencia’s petition to

change custody. Thus, at the time of the hearing on Mrs. Placencia’s motion for attorney fees, she was in fact a person to whom custody of the child had been awa

rded. As explainedabove, however, the trial court erred in grant ing Mrs. Placencia’s petition to change custody. Consequently, we do not think that she may recover attorney feesunder s ection 36-5- 103(c). We therefore vacate the trial court’s ru ling to the e xtent that the cour t awarded Mrs. Placencia $9,063 .70 in attorney fe es.

Conclusion

For the reasons stated above, we conclude that the

trial court erre

d in granting Mrs. Placencia’s petition to change custody. Additionally, however, we conclude that the trial court didnoterr in granting Mrs. Placencia’s motion for discretionary c osts. Finally, we co

nclude that, because Mrs. Placencia’s petition to chan ge custody was granted in error, she may not recover attorney fees. Thus, the ruling of the trialcourt is affirme d in part, revers

ed in part, vacated in

part, and remanded for

further proceedings consistent with this opinion. Costs on appeal are assessed to Mrs. Placencia, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. ( Concurs)

______________________________ HIGHERS, J. (Concu

rs)