IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 28, 2016 Session

WILLIAM LANE LANIER v. CORIE J. LANIER

Appeal from the Chancery Court for Marshall County

No. 14072 J. B. Cox, Chancellor

________________________________

 No. M2014-02293-COA-R3-CV – Filed December 9, 2016

_________________________________

The Mother and Father of three children were divorced in 2007; in the parenting plan 

Father was designated primary residential parent, and Mother and Father received equal 

parenting time. Five years after entry of the plan, the trial court found a material change 

in circumstances with respect to the oldest child; determined that modification of the 

parenting plan was in her best interest; and reduced Mother‘s parenting time with that 

child. Seven months later, Mother filed a petition to modify the plan; Father answered 

and filed a counter-petition for contempt and modification of the parenting plan based on 

changed circumstances. A hearing was held on both petitions and the trial court entered 

an order which, inter alia, gave Father sole decision-making responsibility with respect to 

each of the children and reduced Mother‘s parenting time. Both parties appeal, raising 

numerous issues. We vacate that portion of the judgment that sets the parenting time 

during the children‘s vacation schedule and remand this issue for further consideration; in 

all other respects we affirm the judgment. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed 

in Part and Vacated in Part; Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Michael T. Fort and William P. Holloway, Franklin, Tennessee, for the appellant, Corie

Dizol.

Quinn Brandon Stewart, Lewisburg, Tennessee, for the appellee, William Lanier.
2

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Corie Dizol (―Mother‖) and William Lanier (―Father‖) were divorced on February 

21, 2007. The final decree approved and adopted an agreed permanent parenting plan 

designating Father as primary residential parent of the parties‘ three children and giving 

Mother and Father equal parenting time on a week on, week off basis. On October 10, 

2012, the trial court entered an order (referred to herein as ―the 2012 plan‖) finding a 

material change of circumstance with respect to the oldest child, who was 13 at the time, 

and reduced Mother‘s parenting time to 124 days with the oldest child, to be exercised 

every other weekend and every Wednesday afternoon until Thursday morning during the 

school year, and on a week on, week off basis during the summer months. 

On May 3, 2013, Mother filed a petition to modify the 2012 plan, stating that 

Father‘s and the oldest child‘s behavior warranted a modification of the plan to ―allow[] 

Father every other weekend parenting time and provid[e] Mother with decision making 

authority for all the parties‘ children.‖ Father answered and filed a counter-petition for 

contempt; Father also sought modification of the 2012 plan based on changed 

circumstances as well as Mother‘s and Stepfather‘s alleged misbehavior with respect to 

co-parenting the children.1 A hearing was held on the two petitions on June 19, 2014, 

and on September 16, the trial court issued a Memorandum, incorporated into an order

entered on October 21, in which the court adopted a plan which, inter alia, reduced 

Mother‘s parenting time to 147 days with the two youngest children; increased her 

parenting time with the oldest child to 147 days; and modified the children‘s vacation 

schedules. 

Both Mother and Father appeal. Mother contends that the trial court erred in 

finding that a material change of circumstance existed in such manner as to justify a 

modification of the plan, and in holding that a new parenting schedule was in the best 

interest of the children; in naming Father sole decision-maker; in finding the minor 

children to be more credible than Mother‘s husband (―Stepfather‖); in declining to 

modify the oldest child‘s vacation schedule; and in declining to award her attorney‘s fees. 

Father argues that the trial court erred in calculating Mother‘s income for the purpose of 

calculating child support and in not crediting him for health insurance payments that he 

made directly to his wife (―Stepmother‖) for the children‘s coverage. 

 

1

 Father amended his counter-petition to add a cause of action for fraud based on Mother‘s alleged 

falsification of tax documents; prior to trial, Father filed a notice that he would not pursue the fraud claim. 
3

II. STANDARD OF REVIEW

Modifying a parenting schedule is a two-step procedure in which the court must 

first determine whether a material change in circumstance has occurred. Tenn. Code 

Ann. § 36-6-101(a)(2)(C); Armbrister v. Armbrister, 414 S.W.3d 685, 697-98 (Tenn. 

2013). If so, the court is to consider the factors set forth at Tennessee Code Annotated 

section 36-6-106(a) to determine whether modification of the schedule is in the best 

interest of the child. Armbrister, 414 S.W.3d at 698. 

A trial court‘s ―determinations of whether a material change in circumstance has 

occurred and where the best interests of the child lie are factual questions.‖ In re T.C.D., 

261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). We review the trial court‘s factual findings 

de novo with a presumption that they are correct unless the evidence preponderates 

against them. See Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 

692-93 (Tenn. 2013). Evidence preponderates against the trial court‘s findings of fact 

when it supports another finding of fact with greater convincing effect. See Walker v. 

Sidney Gilreath & Associates, 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000). ―We will affirm 

the trial court‘s decision unless the evidence preponderates against the trial court‘s factual 

determinations or unless the trial court has committed an error of law affecting the 

outcome of the case.‖ Boyer v. Heimermann, 238 S.W.3d 249, 254-55 (Tenn. Ct. App. 

2007); see also Tenn. R. App. P. 36(b).

III. MODIFICATION OF THE PARENTING PLAN

A. Material Change in Circumstance

After making ninety-five findings of fact, the court discussed the legal standard 

applicable to its analysis and concluded2: 

Clearly there have been several material changes in the circumstances of 

the children that have occurred. [1.] Mother has carried her burden of 

proving that the children‘s uncle drove them in the car while under the 

influence of alcohol. She has not shown that Father knew that he had been 

drinking but nonetheless it directly affects the children. [2.] Mother has 

proven that Father has not cooperated in co-parenting with her. [3.] Mother 

and Father have not cooperated about eyeglasses, braces, clothing moving 

from one home to the other, and the list goes on. [4.] Father has shown that 

Mother has not cooperated in the co-parenting process with him by virtue 

of the sheer volume of her filings. 

 

2

 To facilitate our discussion of this issue, we have numbered the factual findings in the conclusion. 
4

[5.] Father has shown that Step-Father has given the children shots without 

consulting a physician and without his consent. [6.] Father has shown that 

Step-Father surrendered his rights to his son without real consultation with 

Mother. 

[7.] Both parents have fostered an atmosphere that cannot be healthy for the 

minor children due to their continued animosity and lack of cooperation. 

These children are under great stress due to their parents‘ conflict. 

Not every material change is a negative one. [8.] There have also been 

positive changes in the residence, work and church environment for Mother 

and Step-Father. [9.] On at least one occasion, Mother and Father initially 

cooperated to deal with [one child]‘s pornography issues and her issues 

with contacting [an older male]. Clearly, there are more than enough 

material changes that affect the best interests of the children for the court to 

consider modification of the parenting plan. 

The court proceeded to discuss the applicable statutory factors and reduced Mother‘s 

parenting time with the two youngest children from 182.5 days to 147 days. 

In her brief on appeal, Mother agrees that findings (1), (2), (6), and (8) support the 

determination of a material change in circumstance; she contends that findings (3), (4), 

(5), (7), and (9) either do not constitute a material change in circumstance or are 

unsupported by the record. She argues that ―not all of the material changes found by the 

trial court are accurate.‖ We construe Mother‘s statement that the changes are not 

accurate to assert that the evidence does not support the factual basis cited by the court,

and will review the evidence to determine if it preponderates against the factual findings.

Finding (3). Mother argues that there is no proof in the record that she was

uncooperative relative to eyeglasses, braces, clothing, and moving between homes. 

Neither party has cited to testimony or other proof relative to these specific matters, other 

than Father‘s testimony that he did not know that the oldest child‘s dentist recommended 

braces and that he did not want her to get braces because, due to her history of brain 

surgeries, she regularly undergoes MRI procedures, and her braces would have to be 

removed. As to more general matters, Mother and Father both testified that they 

disagreed as to whether the two younger children needed psychological counseling. In 

addition, there was some testimony regarding restrictions placed on the children‘s being 

able to take certain belongings from one parent‘s home to that of the other. As proof 

contrary to the finding, Mother cites her testimony that she contacted Father about 

upcoming doctor appointments and tried to send reminder emails. While we have not 

been cited to evidence in support of some of the specific matters cited by the court, taking 
5

the testimony of Mother and Father as a whole and in context, the evidence does not 

preponderate against the finding that the parties have not cooperated generally in matters 

relating to the well-being of the children. 

Finding (4). Mother argues that the record does not support the finding, based on 

the volume of her court filings, that she has not cooperated with Father. In her brief, 

Mother identifies ―three (3) separate and distinct actions‖ since October 4, 2012—a 

petition for modification of child support filed by the State on January 7, 2013; a notice 

of appeal filed by Mother, which related to a motion to alter or amend the 2012 order; 

and the petition for modification of parenting plan filed by Mother on May 3, 2013—and 

contends that these do not render her so litigious as to constitute a material change in 

circumstances. The record, however, shows that Mother filed three other pleadings 

which resulted in protracted litigation. 

On November 2, 2012, Mother filed a Motion for Contempt in which, inter alia, 

she alleged that Father was ―in arrears of [child] support by $48‖ and that Father had 

failed to pay his portion of certain medical bills from 2007 to 2012; she requested that 

―Father be directed to pay the overdue child support immediately.‖ Related to the 

contempt motion, on that same date, filed a Motion for Production of Documents seeking 

copies of pay stubs and other evidence of income, as well as Father‘s payment of health 

care expenses. On November 2, Mother also filed a Motion to Alter or Amend the 

October 12 order in which she sought to correct what she asserted were errors in the 

calculation of the parties‘ incomes and health insurance payments and in the reduction in 

her parenting time with the oldest child. Following a hearing, the court dismissed the 

Motion for Contempt on the basis of res judicata and the Motion to Alter or Amend for 

not being properly filed with the original signature of counsel and not corrected in a 

timely manner. In that order, the court also directed that ―the parties shall work together 

for the benefit of the children.‖ We have reviewed the six pleadings and conclude that 

the timing and matters complained of and relief sought in the contempt motion; her 

failure to correct her Motion to Alter or Amend to comply with the appropriate rule of 

procedure which led to its dismissal; her inaccurate portrait of ―three actions‖; and the 

instruction that the parties work together for the sake of the children lends credence to 

determination that she has been uncooperative, as evidenced by her filings. The evidence 

supports this finding. 

Finding (5). Mother next contends that the court erred in finding that ―Stepfather

giving Minor Children shots without consulting a physician and without Father‘s consent 

constituted a material change in circumstances.‖ Mother argues that the evidence shows

that Stepfather is a licensed pharmacist who can administer flu shots without consulting a 

physician, and that the only type of shot he administered to the children were, in fact, flu 
6

shots; Mother also cites Father‘s testimony that he cannot recall an instance in which she

failed to consult him on a decision with respect to the children. 

The parenting plan states that Mother and Father would have joint decisionmaking authority with respect to non-emergency medical decisions regarding each child; 

the decision to administer flu shots falls within that category. Stepfather admits to giving 

the children flu shots; there is no evidence that Father was consulted. The fact that 

Stepfather can administer flu shots without consulting a physician does not establish

compliance with the order. Moreover, the fact that Father could not recall an instance in 

which Mother failed to consult him is not dispositive of this issue. The holding that 

Stepfather‘s action was evidence of a change of circumstance is supported by the record. 

Finding (7). With respect to the finding that Mother and Father foster an 

unhealthy atmosphere due to their animosity and lack of cooperation, Mother contends 

that the evidence only supports a finding that Father was uncooperative; she states that 

―the record is replete with examples of Father creating an unhealthy atmosphere,‖ but she

does not cite to evidence to support this contention. Father does not challenge the 

findings with respect to his lack of cooperation; in support of the court‘s finding, he cites 

testimony of the youngest child pertaining to Mother‘s behavior toward her.

3

 The 

testimony cited by Father is evidence of the atmosphere in which the children live and, 

together with evidence pertinent to other factual findings, supports the holding that, by 

their behavior and animosity, Mother and Father have created an atmosphere that is 

detrimental to the children. 

 

3 The testimony cited by Father is as follows:

Q. Have you ever heard your mom say anything bad about your dad?

A. Before, like she‘s like said something like when I didn‘t eat maybe something, she 

was like because you‘re exactly like your dad. 

Q. Does she say that in a good way?

A. No. 

* * *

Q. Do you feel like you‘ve been treated the same way - - well, wait - - have you told 

your mother that you want to stay with your father?

A. Yes.

Q. How many times have you told her that?

A. Once.

Q. Did things change since you told her that?

A. Like she‘s - - I think she probably been a little bit meaner, yes.

Q. Are you allowed to have friends over at your dad‘s house?

A. Yes.

Q. What about your mom‘s house?

A. Not anymore, no.
7

Finding (9). During the course of the hearing, Mother testified that one of the 

children had, on occasion, accessed websites containing pornographic images; Mother 

and Father testified that the same child engaged in an inappropriate relationship with a 

23-year-old male. The court found that Mother and Father worked together to deal with 

what the court characterized as the child‘s ―pornography issues‖ and the inappropriate 

relationship. Mother agrees with the finding that she and Father worked together relative 

to the child‘s relationship with the older male; she argues that the evidence does not 

support the finding that Father cooperated with Mother to address the child‘s access to 

pornographic images. 

The testimony relative to this finding was conflicting as to whether Mother and 

Father cooperated. Mother testified that she installed an application on the child‘s iPod4

to monitor her internet activity and prevent her from downloading applications without 

permission; that she gave Father the password to the application after he requested it; and 

that after doing so, she lost her ability to monitor child‘s internet activity. She also cites

portions of Father‘s trial testimony in which he denies requesting the password to the 

internet application in order to delete it; his deposition testimony in which he admits ―he 

did delete something‖; and his conflicting testimony regarding whether he prohibited the 

child from taking the device to Mother‘s house. In response to Mother‘s argument, 

Father cites to evidence of his cooperation with Mother with respect to the child. He also 

cites to his trial testimony that he installed a monitor on the device as well as deposition 

testimony that he did not think he informed mother of the monitor. The trial court did not 

make a credibility determination or otherwise resolve the conflicting testimony, nor did it 

make a finding as to whether Father interfered with the application Mother installed on 

the device. In the absence of these findings, the testimony standing alone does not 

support the finding that Mother and Father cooperated to address the child‘s access to 

pornographic images. 

As stated earlier, Mother agrees that the evidence supports four of the findings 

made by the court relative to the holding that there was a material change of 

circumstance. We have determined that the evidence does not preponderate against the 

other findings, with the exception of the finding that Father cooperated with Mother to 

address the child‘s access to pornography. Taken in their entirety and in context, the 

findings support the holding of a material change of circumstance sufficient to justify a 

modification of the parenting plan. Accordingly, we proceed to discuss the court‘s 

modification to the parenting schedule. 

 

4

 Mother referred to this device as an iPod; Father referred to it as either a ―phone‖ or ―device‖. For ease 

of reference we will refer to it as a ―device.‖
8

B. Best Interest Determination 

Mother‘s petition to modify the parenting plan was filed on May 3, 2013; Father 

filed his counter-petition on June 12, 2013; the hearing on the petitions was held June 19, 

2014, and the order disposing of the petitions entered October 21, 2014. Prior to July 1, 

2014, Tennessee Code Annotated section 36-6-106(a), which governs the development of 

parenting plans, listed ten factors to be considered by the court; on July 1, amendments to 

the statute took effect which, inter alia, added five factors to be considered. In the 

decision which is the subject of this appeal, the court applied the version of section 36-6-

106 effective prior to July 1, 2014. In her brief, Mother contends that the court should 

have considered the fifteen factors in the statute as of July 1, 2014, and discusses the 

fifteen factors; likewise, Father discusses the fifteen factors in his brief on appeal. We 

agree that the fifteen factors at section 36-6-106 are the appropriate factors for the court 

to have considered. Inasmuch as the parties have briefed the fifteen factors, in our 

resolution of this appeal, we will first consider the court‘s determination of the factors in 

effect prior to July 1, 2014, and, as necessary, address the factors in effect after July 1, 

2014.5 

1. The Factors at Tennessee Code Annotated Section 36-6-106

Prior to July 1, 2014

The ten factors to be considered prior to July 1, 2014, and which were applied by 

the trial court, were: 

(1) The love, affection and emotional ties existing between the parents or 

caregivers and the child;

(2) The disposition of the parents or caregivers to provide the child with 

food, clothing, medical care, education and other necessary care and the 

degree to which a parent or caregiver has been the primary caregiver;

(3) The importance of continuity in the child‘s life and the length of time 

the child has lived in a stable, satisfactory environment; provided, that, 

where there is a finding, under subdivision (a)(8), of child abuse, as defined 

in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-

602, by one (1) parent, and that a nonperpetrating parent or caregiver has 

relocated in order to flee the perpetrating parent, that the relocation shall 

not weigh against an award of custody;

(4) The stability of the family unit of the parents or caregivers;

(5) The mental and physical health of the parents or caregivers. The court 

 

5

 We consider the factors added to the statute effective July 1, 2014 to be remedial in nature; thus, the 

statute can be applied retroactively. See In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004).
9

may, when it deems appropriate, order an examination of a party pursuant 

to Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for 

the conduct of the proceedings, order the disclosure of confidential mental 

health information of a party pursuant to § 33-3-105(3). The court order 

required by § 33-3-105(3) shall contain a qualified protective order that, at 

a minimum, expressly limits the dissemination of confidential protected 

mental health information for the purpose of the litigation pending before 

the court and provides for the return or destruction of the confidential 

protected mental health information at the conclusion of the proceedings;

(6) The home, school and community record of the child;

(7)(A) The reasonable preference of the child, if twelve (12) years of age or 

older;

(B) The court may hear the preference of a younger child on request. The 

preferences of older children should normally be given greater weight than 

those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other parent 

or to any other person; provided, that, where there are allegations that one 

(1) parent has committed child abuse, as defined in § 39-15-401 or § 39-15-

402, or child sexual abuse, as defined in § 37-1-602, against a family 

member, the court shall consider all evidence relevant to the physical and 

emotional safety of the child, and determine, by a clear preponderance of 

the evidence, whether such abuse has occurred. The court shall include in 

its decision a written finding of all evidence, and all findings of facts 

connected to the evidence. In addition, the court shall, where appropriate, 

refer any issues of abuse to the juvenile court for further proceedings;

(9) The character and behavior of any other person who resides in or 

frequents the home of a parent or caregiver and the person‘s interactions 

with the child; and

(10) Each parent‘s or caregiver‘s past and potential for future performance 

of parenting responsibilities, including the willingness and ability of each 

of the parents and caregivers 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. In determining 

the willingness of each of the parents and caregivers to facilitate and 

encourage a close and continuing parent-child relationship between the 

child and both of the child‘s parents, the court shall consider the likelihood 

of each parent and caregiver to honor and facilitate court ordered parenting 

arrangements and rights, and the court shall further consider any history of 

either parent or any caregiver denying parenting time to either parent in 

violation of a court order.
10

Tenn. Code Ann. § 36-6-106(a) (2013).

The trial court found that factors (1),

6

(2)7and (3)

8

did not weigh in favor of 

Mother or Father; made no finding with respect to factor (4)9; found ―no mental or 

physical health issues with the parents‖ concerning factor (5)10; as to factor (6),11 the 

court held that ―[t]he home school and community records of the children are good 

especially considering the animosity between parents‖; and found that factor (8)12was 

not applicable. Neither Mother nor Father contend that the court erred in making the 

findings nor raise any issues with respect to these factors. Accordingly, we limit our 

review to the remaining factors. 

a.) Factor 7- The reasonable preference of the child13

With respect to factor (7), the court found:

The children prefer to live with their father. They are unequivocal and 

unwavering in their preference and they make believable witnesses. The 

Court finds their testimony credible. The girls want to go where they are 

not being yelled at, and where corporal punishment has been imposed by 

the stepfather. The Court gives greater weight to the preference of the older 

child over the younger child. This factor favors the Father. 

While acknowledging that Tennessee Code Annotated section 36-6-106 required 

the court to consider the preference of the two children, Mother argues that ―the record in 

this case does not indicate a reasonable preference of Minor Children;‖ and that the 

children‘s motivation for moving was based on not having to do as many chores at 

Father‘s house, having a less strict upbringing, getting an iPod, and not being grounded.14 

 

6 This factor is comparable to factor (6) in the amended version of the statute.

7 This factor is comparable to factor (4) in the amended version of the statute.

8

 This factor is comparable to factor (10) in the amended version of the statute.

9

 There is no comparable factor in the amended version of the statute. 

10

 This factor is comparable to factor (8) in the amended version of the statute.

11

 This factor is comparable to factor (9) in the amended version of the statute. 

12

 This factor is comparable to factor (11) in the amended version of the statute.

13

 This factor is comparable to factor (13) in the amended version of the statute.

14

 To support this argument, Mother cites the youngest child‘s testimony that she has to do more chores 

at Mother‘s and that Mother imposes harsher punishments than Father; she also cites the middle child‘s 

testimony in which she responded ―I don‘t know‖ when asked if she would still prefer to live with Father 

if she had to do twice as many chores at his house than at Mothers, and her testimony that getting an iPod 

was one reason for wanting to live with Father.
11

As a separate issue, Mother contends the finding that the children were more credible 

than Stepfather is undermined by youngest child‘s age and both children‘s conflicting 

testimony.15 

As the trier of fact, the trial court‘s function is to resolve conflicts in testimony; in 

performing this function, the trier of fact is often called upon to make credibility 

determinations of the various witnesses. Absent clear and convincing evidence to the 

contrary, we do not disturb the trial court‘s determination that minor children were 

credible witnesses. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 

1999) (―[A]ppellate courts will not re-evaluate a trial judge‘s assessment of witness 

credibility absent clear and convincing evidence to the contrary.‖). We have reviewed 

the testimony cited by both parties; the children do offer contrasting testimony at times 

and the same or similar testimony at others. The court heard the testimony and resolved 

the conflicts, partly on the basis of its finding that the children were credible witnesses. 

The mere fact that their testimony contrasts at times does not undermine the 

determination that the preference the children expressed is reasonable; the evidence does 

not preponderate against this determination. Neither do the conflicts or contrast in the 

children‘s testimony undermine the court‘s credibility determination or deprive it of the 

deference to which it is entitled. The court gave substantial weight to the children‘s 

preferences, as it is privileged to do, and did not abuse its discretion in doing so. See 

Spencer v. Spencer, No. M2014-01601-COA-R3-CV, 2016 WL 761109, at *6 (Tenn. Ct. 

App. Feb. 25, 2016) (―[W]e are mindful of the broad discretion trial judges hold in 

fashioning parenting arrangements, especially given their ability to  ̳observe the 

witnesses and make credibility determinations‘‖) (quoting Massey–Holt v. Holt, 255 

S.W.3d 603, 607 (Tenn. Ct. App. 2007).

 

15 As evidence of the youngest child‘s conflicting testimony, Mother cites testimony in which the child 

offered differing answers as to whether she overheard Mother call middle child her favorite or was told so 

directly by Mother; her testimony that Mother is ―mean‖, which Mother argues is contradicted by 

youngest child‘s subsequent testimony admitting that Mother and Stepfather do things out of love. As 

evidence that the youngest child is not credible, Mother cites to the child‘s testimony that she could only 

recall certain events because, before trial, the child was able to read from a notebook which she began 

keeping after the oldest child went to live with Father; Mother also argues that the youngest child was 

grounded at Mother‘s house at the time she testified that Mother was more strict than Father. 

As evidence that youngest child‘s and middle child‘s testimony was ―directly contradictory,‖ 

Mother cites only portions of middle child‘s testimony that she never observed Stepfather call youngest 

child names or get physical with her, and that she is not allowed to have friend‘s over Mother‘s house and 

her subsequent testimony in which she recalled an occasion Mother allowed a friend to visit. 
12

b.) Factor 9- The character and behavior of any other person in the 

home16

With respect to this factor, the court stated: 

The Court is concerned with the nature and character of the Step-Father 

who has chosen to ignore the Court‘s order concerning punishment of the 

children. The Court is further concerned with his decision to surrender his 

parental rights to his other child even though the Court is sympathetic to his 

rationale behind the decision. The Court is also concerned with the nature 

and character of the Step-Mother who will not put down Facebook for the 

sake of her Step-Daughters. The Court is concerned with the character and 

nature of an uncle who will not tell the Father that he had been drinking 

alcohol and takes a risk to transport his nieces anyway. The Court is 

concerned with the method and manner that the Step-Father employs for 

immediate discipline. The Court‘s greatest concern here is the manner that 

the Step-Father approaches the children. The Court credits the children‘s 

testimony concerning his yelling and what he calls them over the testimony 

of the Step-Father. The factor favors the Father.

Mother contends that the concerns expressed by the court regarding Stepfather‘s

use of corporal punishment despite the court‘s order,

17 the surrender of his parental rights

to his son, and his yelling at the children, as well as the finding that this factor favored 

Father, are not supported by the record. Upon our review of the record, there is evidence 

to support the court‘s concerns as to Stepfather, other than with respect to Stepfather‘s 

use of corporal punishment in violation of the October 2012 order.

18

The evidence with respect to the surrender of Stepfather‘s parental rights to his 

son was Stepfather‘s testimony that his son suffered from behavioral issues, which 

resulted in the son not being allowed around the girls without adult supervision; and his 

belief that his decision to surrender his parental rights to his son was best for all of the 

children. With respect to the court‘s ―greatest concern‖ relative to the Stepfather‘s 

treatment of the children, in addition to the testimony by youngest and middle child that 

 

16 In the amended version of the statute, this factor is comparable to factor (12).

17 In the order entered October 10, 2012, the court ordered that no corporal punishment be used relative 

to the oldest child. 

18 The only evidence relative to corporal punishment was Stepfather‘s testimony that he used corporal 

punishment on youngest child in the summer of 2011; this was prior to the October 2012 order. 
13

Stepfather yelled at them, discussed earlier, Stepfather admitted to raising his voice at the 

girls. The youngest child also testified that Stepfather yells at her on a weekly basis, has 

called her explicit names, and has ―grabbed‖ her. 

Mother also argues that the court erred in finding that this factor favored Father, 

contending that that the evidence shows that Stepmother has shown ―incredibly poor 

parenting skills,‖ that Stepmother‘s Facebook posts ―contain vile and inappropriate 

language,‖ and that Stepmother ―disparages Mother on Facebook publically [sic] and to 

Minor Children.‖ Mother also relies on Stepmother‘s testimony that she can ―post 

whatever [she] feel[s] and want[s]‖ on her Facebook account; that Stepmother found 

humor in oldest child‘s use of an expletive on Facebook; and testimony by Stepmother 

concerning negative statements she posted on Facebook, which Mother claims were 

directed at her. In response to Mother‘s contention, Father points to Stepmother‘s 

testimony that she has taken measures to make sure minor children cannot view her 

Facebook content; that she recognizes her language at times was not appropriate; and that 

she would make sure not to post inappropriate content in the future. 

While there is evidence that Stepmother engaged in problematic behavior, the 

finding that this one factor favored Father focused on the physical and emotional wellbeing of the children and gave substantial weight to Stepfather‘s conduct with the 

children—which the court articulated was its ―greatest concern. The evidence does not 

preponderate against the trial court‘s finding in this regard. 

c.) Factor 10- Each parent’s potential for future performance of 

parenting responsibilities19

The court stated the following as to factor 10:

The Mother shows greater future potential for performance of parenting 

responsibilities than does the Father. She will clearly go farther to facilitate 

and encourage a relationship than Father will. This factor favors Mother. 

In her brief, Mother states that she ―agrees with this finding of the Trial Court‖; however, 

she argues that the court did not place enough weight on this factor, and that this finding 

should have justified her being named Primary Residential Parent.

 

19

 This factor is comparable to factor (2) in the amended version of the statute. 
14

In our consideration of Mother‘s argument in this regard, we are guided by the 

standard for reviewing a trial court‘s decision as to the weight to be given particular 

factors set forth Spencer: 

Mother contends the trial court failed to place the appropriate weight on 

several factors, including the fact that she has been the child‘s primary 

caregiver. We have reviewed the statement of the evidence approved by the 

trial court and have considered Mother‘s arguments regarding the weight 

the trial court assigned to particular factors. In sum, we cannot say the trial 

court abused its discretion in devising a residential schedule that allows 

both parties ―to enjoy the maximum participation possible in the life of the 

child.‖ Tenn.Code Ann. § 36-6-106(a). In reaching this conclusion, we are 

mindful of the broad discretion trial judges hold in fashioning parenting 

arrangements, especially given their ability to ―observe the witnesses and 

make credibility determinations.‖ Massey–Holt v. Holt, 255 S.W.3d 605, 

607 (Tenn. Ct. App. 2007). . . . The result reached by the trial court is not 

outside the spectrum of rulings that reasonably results from applying the 

correct legal standards to the evidence. Therefore, we decline to ―tweak‖ 

the parenting plan in the hopes of achieving a more reasonable result. See 

Eldridge [v. Eldridge], 42 S.W.3d [82] at 88 [(Tenn. 2001)].

2016 WL 761109, at *6. 

We have considered Mother‘s argument as well as the evidence presented, and 

conclude that the court did not abuse its discretion with respect to the weight it assigned 

to this factor in the course of the determination of who should be designated primary 

residential parent. While the court found that this factor weighed in Mother‘s favor, the 

court considered other factors, including the preference of the children to live with Father 

and the concerns with Stepfather‘s behavior toward the children. In its discretion, the 

court assigned weight to each factor, and in doing so, did not reach an illogical or 

incorrect result. 

2. The Factors at Tennessee Code Annotated § 36-6-106 effective

July 1, 2014

We next examine the factors in the version of Tennessee Code Annotated section

36-6-106 as of July 1, 2014,

20 which were not addressed by the trial court, i.e., factors 

 

20

 Factors (1)-(15) are: 

(1) The strength, nature, and stability of the child‘s relationship with each parent,
15

 

including whether one (1) parent has performed the majority of parenting responsibilities 

relating to the daily needs of the child;

(2) Each parent‘s or caregiver‘s past and potential for future performance of parenting 

responsibilities, including the willingness and ability of each of the parents and 

caregivers 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. In determining the willingness of each of the parents and caregivers to facilitate 

and encourage a close and continuing parent-child relationship between the child and 

both of the child‘s parents, the court shall consider the likelihood of each parent and 

caregiver to honor and facilitate court ordered parenting arrangements and rights, and the 

court shall further consider any history of either parent or any caregiver denying 

parenting time to either parent in violation of a court order;

(3) Refusal to attend a court ordered parent education seminar may be considered by the 

court as a lack of good faith effort in these proceedings;

(4) The disposition of each parent to provide the child with food, clothing, medical care, 

education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, defined as the parent 

who has taken the greater responsibility for performing parental responsibilities;

(6) The love, affection, and emotional ties existing between each parent and the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it relates to their 

ability to parent the child. The court may order an examination of a party under Rule 35 

of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the 

proceedings, order the disclosure of confidential mental health information of a party 

under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified 

protective order that limits the dissemination of confidential protected mental health 

information to the purpose of the litigation pending before the court and provides for the 

return or destruction of the confidential protected mental health information at the 

conclusion of the proceedings;

(9) The child‘s interaction and interrelationships with siblings, other relatives and steprelatives, and mentors, as well as the child‘s involvement with the child‘s physical 

surroundings, school, or other significant activities;

(10) The importance of continuity in the child‘s life and the length of time the child has 

lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the other parent or to any 

other person. The court shall, where appropriate, refer any issues of abuse to juvenile 

court for further proceedings;

(12) The character and behavior of any other person who resides in or frequents the home 

of a parent and such person‘s interactions with the child;

(13) The reasonable preference of the child if twelve (12) years of age or older. The court 

may hear the preference of a younger child upon request. The preference of older 

children should normally be given greater weight than those of younger children;

(14) Each parent‘s employment schedule, and the court may make accommodations 

consistent with those schedules; and

(15) Any other factors deemed relevant by the court.

Tenn. Code Ann. § 36-6-106(a) (2014).
16

(1), (3), (5), (7), (14), and (15). Of those factors, we have determined that factor (3) is 

not applicable, as there is no evidence in the record that either parent refused to attend a 

court ordered parenting seminar; factor (14) is not applicable, as there is no evidence that 

either parent has an employment schedule that necessitates an accommodation. In their 

briefs, the parties do not contend that factor (15) applies or cite to evidence pertinent to 

this factor, and in our review, we do not find evidence pertinent to this factor. Thus, our 

analysis is confined to factors (1), (5), and (7). Inasmuch as the trial court did not 

consider the factors in its ruling, we make the determination of the applicability of the 

factors to the evidence in the first instance. 

(1) The strength, nature, and stability of the child’s relationship with each 

parent, including whether one (1) parent has performed the majority of 

parenting responsibilities relating to the daily needs of the child

As cited by Father and upon our review of the record, the evidence of the strength 

and nature of the children‘s relationship with each parent consisted of the youngest

child‘s testimony that Mother ―grabbed‖ the child‘s face and yelled at her; the middle

child‘s testimony that she was more afraid of Mother than Father; and both children‘s 

testimony that they preferred to live with Father. We agree that this testimony is 

evidence that is pertinent to this factor inasmuch as it addresses specific concerns the 

children have, primarily with Mother‘s treatment of them. Their preference to live with 

Father; their testimony of Mother‘s behavior towards them; and the youngest child‘s 

expressed fear of Mother is evidence that the children‘s bond is stronger and the nature of 

their relationship better with Father. This factor favors Father. 

(5) The degree to which a parent has been the primary caregiver, defined 

as the parent who has taken the greater responsibility for performing 

parental responsibilities

Father argues that he has taken more responsibility for performing parental 

responsibilities with respect to the oldest child; he concedes that ―with regard to the two 

youngest children it would appear both parents have been equal caregivers....‖ Mother 

does not make an argument as to this factor in her brief on appeal. As respects the two 

youngest children, there is no evidence in the record to indicate that either party has taken 

on greater parental responsibilities. Accordingly, this factor favors neither parent with 

respect to the two youngest children; with respect to oldest child, this factor favors 

Father. 
17

(7) The emotional needs and developmental level of the child

The evidence of the emotional needs and development level of the children 

consisted of Father‘s testimony that Mother does not want the oldest child to seek 

counseling, despite his belief that the oldest child needs counseling to address her low 

self-esteem and that he believes all three children would benefit from psychological 

counseling, as well as youngest child‘s testimony that Stepfather calls her names and that 

she threatened to commit suicide if she had to live with Mother.21 While this evidence 

does not establish that the children have serious emotional or developmental needs, taken 

with their testimony that they prefer to live with Father and Father‘s testimony that, in his 

opinion, the children have emotional issues and would benefit from counseling, we 

conclude that this factor favors Father. 

Upon our review of the ten factors listed at Tennessee Code Annotated section 36-

6-106 prior to July 1, 2014 which were considered by the court in rendering its decision, 

as well as the additional factors as of July 1, 2014, the majority of the factors weigh in 

Father‘s favor. The evidence does not preponderate against the court‘s determination that 

Father be named primary residential parent. 

C. Decision-Making Authority 

After naming Father primary residential parent, the court stated the following: 

Given the Court‘s previous analysis, the Court vests major decision making 

with the Father. The Court requires the Father to consult with the Mother 

and consider her input in major decisions before finally making major 

decisions.

 

21 The testimony pertaining to youngest child‘s threat was as follows:

Q: Do you remember telling your dad that you would kill yourself if you had to –

Mr. Fort: Objection, leading.

The Court: Sustained. Don‘t suggest an answer.

Q: (By Ms. Stewart) Have you ever said you would do something to yourself if you had 

to stay with your mom?

A: Yes.

Q: What have you said, sweetie?

A: Kill myself.

Q: Are you that unhappy?

A: (Witness nods head.)

The Court: If you need a tissue, there‘s one over to your right. Do you need to take a 

break? Let‘s take about two minutes.
18

The parties will make day to day decisions when the children are with 

them.

Mother contends that the court erred in vesting Father with sole decision-making 

authority. 

―Residential schedule and parenting responsibility decisions are peculiarly within 

the broad discretion of the trial judge; accordingly, we review these decisions under an

abuse of discretion standard.‖ Christie v. Christie, No. M2012-02622-COA-R3-CV, 

2014 WL 4293966, at *2 (Tenn. Ct. App. Aug. 28, 2014), appeal denied (Jan. 15, 2015)

(citing Eldridge, 42 S.W.3d at 85. A trial court abuses its discretion when it applies an 

incorrect legal standard or reaches a decision against logic or reasoning and causes an 

injustice to the complaining party. Id. 

In allocating decision-making authority, Tennessee Code Annotated section 36-6-

407 requires the court to consider the following factors:

(1) The existence of a limitation under § 36-6-406;

(2) The history of participation of each parent in decision making in each of 

the following areas: physical care, emotional stability, intellectual and 

moral development, health, education, extracurricular activities, and 

religion; and whether each parent attended a court ordered parent education 

seminar;

(3) Whether the parents have demonstrated the ability and desire to 

cooperate with one another in decision making regarding the child in each 

of the following areas: physical care, emotional stability, intellectual and 

moral development, health, education, extracurricular activities, and 

religion; and

(4) The parents‘ geographic proximity to one another, to the extent that it 

affects their ability to make timely mutual decisions.

Tenn. Code Ann. § 36-6-407(c)(1)-(4). 

Mother argues that, of the four factors, the only factor upon which proof was 

presented was factor (3). As evidence that she should be allocated decision-making 

authority, Mother cites to her testimony that she attempts to make joint decisions with 

Father; Father‘s testimony that he could not recall an instance in which Mother did not 

consult him before making a decision; and his testimony that he did not want oldest child 

to get braces. Father does not cite evidence to support the trial court‘s decision; he 

argues that Mother has shown a lack of cooperation with oldest child‘s extracurricular 

activities and in refusing to allow the children to get psychological counseling. 
19

While the trial court did not cite Tennessee Code Annotated section 36-6-407 in 

rendering its decision, the evidence recounted by the court in its discussion of the factors 

pertaining to the children‘s best interest, as referenced in the statement, ―Given the 

court‘s previous analysis,‖ supports the decision to award Father sole decision-making 

authority. As noted earlier, the court found that Mother and Father have not cooperated 

on certain decisions with respect to the children and that both parents have fostered an 

unhealthy atmosphere for the children due to their continued animosity and lack of 

cooperation. We have previously held that the evidence does not preponderate against 

that finding, which relates to factors (2) and (3) at section 36-6-407(c). The court‘s 

decision to allocate decision-making authority to Father was supported by the evidence 

and complied with the correct legal standard. 

D. The Oldest Child’s Vacation Schedule 

Mother argues that the trial court erred in not modifying oldest child‘s Spring 

Break, Fall Break, and Christmas Break schedule. She states, inter alia:

Due to the Court‘s requirement that the holiday schedule follow the 

―regular schedule‖ Mother is never permitted a Spring Break, Fall Break, or 

even Christmas Break with Minor Children. Such a decision is not based 

upon any proof submitted at trial. Mother should receive holiday parenting 

time with Minor Children in an equal amount to that of Father. Mother 

receives week on/week off parenting time in the summer so there is clearly 

no justifiable reason that she should not receive Spring Break, Fall Break, 

on an alternating schedule with Father and 1⁄2 of the Christmas Break with 

Minor Children.

In the 2012 plan, the residential parenting time schedule for the two youngest 

children was week on/week off with Mother; the oldest child spent every other weekend 

with Mother. As respects Spring Break and Fall Break, the plan stated that ―the day-today schedule shall apply‖; the Christmas Vacation schedule was ―Christmas Eve morning 

at Nana‘s. Christmas Eve night with Denise. Christmas Day morning with Mother‘s 

grandparents. Christmas nght [sic] at Meme‘s.‖ We have not been cited to any 

testimony as to how the children spent the remainder of Christmas Vacation or how 

residential parenting time was exercised during the remainder of the break. As a result of 

the modification in the October 21, 2014 ruling, the day-to-day schedule for all three 

children changed, and they spent every other weekend with Mother and the Spring Break 

and Fall break was to follow the day-to-day schedule; the provision for Christmas 

Vacation was the same as that in the 2012 plan. Under the modified plan, Mother would 

not have visitation with any of the children during Fall and Spring Break; in the absence 
20

of evidence as to how the remainder of the Christmas Vacation is spent, we cannot 

discern what parenting time Mother would have with children during that period. 

Tennessee Code Annotated section 36-6-106(a) provides that, in determining the 

children‘s best interest, the court ―shall order a custody arrangement that permits both 

parents to enjoy the maximum participation possible...consistent with the factors set 

out....‖ In the absence of specific findings by the court relative to Mother‘s parenting 

time during vacation periods, the order does not appear to comply with the statute and, as 

a consequence, we are unable to affirm the schedules for the vacation periods. 

Accordingly, we vacate this portion of the judgment; we remand the case for the court to 

reconsider Mother‘s parenting time for the Fall, Spring, and Christmas breaks in 

accordance with section 36-6-106 and to make appropriate findings relative thereto. 

IV. CHILD SUPPORT GUIDELINES 

A. Calculation of Mother’s Income for Child Support Purposes

1. Income from Employment

Because the residential parenting schedule was modified, the court was required to 

recalculate Mother‘s child support obligation. The trial court found that Mother‘s 2014 

income for child support purposes was $44,321.88; Father contends this was in error. 

Specifically, he argues that the court erred in calculating Mother‘s income based on W-2 

statements alone rather than, in the case of her civilian employment,22 also considering 

other information contained on the leave and earnings statement entered into evidence as 

part of Exhibit 1923; in not including $12,827.21 of debt which was cancelled in 2013; 

and in not including the amount of certain ―non-taxable benefits‖ Mother received. 

 

22

 Mother testified that she works for the Department of the Army and is paid for two jobs, which she 

referred to as ―civilian‖ and ―military‖; we will use that characterization in our discussion. 

23

 Exhibit 19 consisted of documents produced by the Defense Finance and Accounting Services pursuant 

to a subpoena duces tecum, seeking W-2s for 2012 and 2013 and payroll information for 2014 for 

Mother‘s civilian and military pay. There were two Civilian Leave and Earnings statements included in 

the exhibit, one for the pay period ending December 14, 2013, and the other for the pay period ending 

April 19, 2014. Father argues that the Civilian Leave and Earnings statement ―shows she actually made 

$41,349.60 once all benefits are considered,‖ and, therefore, preponderates against the court‘s finding. 

References herein to Exhibit 19 are to the Civilian Leave and Earnings statement for 2013, unless 

otherwise noted. 
21

The trial court acknowledged and rejected Father‘s argument relative to the

calculation of Mother‘s gross income in its ruling on Father‘s motion to amend the order, 

holding: 

Father urges, and not for the first time, that the Court has not considered all 

Mother‘s income and should increase the amount of pay used in the child 

support calculations. This is not the first opportunity Father has had to 

argue this position. The meat of the latest argument is an urging for the 

Court to reconsider Exhibit 19 from the trial of the cause and change the 

amount of the Mother‘s gross income based upon the theory that the Court 

did not give proper consideration to the income of the Mother based upon 

its non-taxable nature. This issue was highly contested during the trial, 

including but not limited to an investigation of whether there was a forgery 

or alteration of the documents that make up [Mother‘s] pay records. The 

Court considered these records extensively at the trial. The corollary 

urging surrounding the determination is the theory that the Court did not 

consider all of Mother‘s income from her job that has both a civilian and 

military component. 

Respectfully, the Court believes that it did consider the income in Exhibit 

19 as well as the testimony of Mother regarding the amount of monies she 

is making. The Court has no credibility issue with Mother concerning her 

income.

The holding that Mother‘s gross income for child support purposes was 

$44,321.88 is supported by her testimony and the W-2s. Mother projected her 2014 

income from civilian employment to be $34,301.32, based on her hourly rate of $21.28 

applied to the 1,612 hours she worked in 2013, and incorporating a $0.83 per hour raise 

effective January 1, 2014. Similarly, with respect to her military income, Mother‘s W-2 

for 2013 reported social security wages of $9,921.23, paid at a rate of $129.19; she 

projected her 2014 military income to be $10,020.56, based on a rate of $130.48.24 

The court considered Father‘s argument as well as the information contained in 

Exhibit 19 and, in determining Mother‘s income, credited her testimony as to the amount 

she made. Father cites no evidence to support his argument and did not introduce any 

evidence of the nature or values of any such fringe benefits nor did he project any figure 

 

24

 Mother testified that her military income was not paid hourly; she did not specify how the rate was 

established, although a chart entered as Exhibit 14, entitled ―Army Reserve Pay,‖ included the rates for 

2013 and 2014 under a column headed ―$ Per UTA/AT.‖ This is evidence supporting the figure for her 

military income. 
22

for Mother‘s gross income; he merely argues that in light of Mother‘s nontaxable fringe 

benefits, ―an amount must be imputed on top of the amount actually received in 

calculating Gross Income.‖ The determination of Mother‘s gross income for child 

support purposes is consistent with the applicable regulation25 and the evidence does not 

preponderate against the court‘s finding that Mother‘s 2014 income from her civilian and 

military employment was $44,321.88. 

 

25 Pursuant to the Child Support Guidelines, gross income is determined as follows:

1. Gross income of each parent shall be determined in the process of setting the 

presumptive child support order and shall include all income from any source (before 

deductions for taxes and other deductions such as credits for other qualified children), 

whether earned or unearned, and includes, but is not limited to, the following:

(i) Wages;

(ii) Salaries;

(iii) Commissions, fees, and tips;

(iv) Income from self-employment;

(v) Bonuses;

(vi) Overtime payments;

(vii) Severance pay;

(viii) Pensions or retirement plans including, but not limited to, Social Security, Veteran's 

Administration, Railroad Retirement Board, Keoughs, and Individual Retirement 

Accounts (IRAs);

(ix) Interest income;

(x) Dividend income;

(xi) Trust income;

(xii) Annuities;

(xiii) Net capital gains;

(xiv) Disability or retirement benefits that are received from the Social Security 

Administration pursuant to Title II of the Social Security Act, whether paid to the parent 

or to the child based upon the parent‘s account;

(xv) Workers compensation benefits, whether temporary or permanent;

(xvi) Unemployment insurance benefits;

(xvii) Judgments recovered for personal injuries and awards from other civil actions;

(xviii) Gifts that consist of cash or other liquid instruments, or which can be converted to 

cash;

(xix) Prizes;

(xx) Lottery winnings; and

(xxi) Alimony or maintenance received from persons other than parties to the proceeding 

before the tribunal.

Tenn. Comp. R. & Regs. 1240-02-04-.04 (3)(a)(1).
23

2. Cancellation of Debt

Next, Father argues that Mother had debts totaling $12,827.21 cancelled in 2013 

and that this figure should have been included in the calculation of her income for child 

support purposes. 

Mother testified that the debt in question had been allocated to her husband from a 

previous marriage under the terms of their marital dissolution agreement; that after he 

failed to pay the debt, she negotiated a reduced payoff and satisfied the debt; and that she 

received three 1099(c) forms evidencing the cancellation. Mother argues that Father‘s 

contention should fail because the debt was cancelled in 2013, prior to the trial on this 

matter, and because for the purpose of calculating child support, the debt was incurred 

prior to the birth of the children, and any benefit from this debt was received at the time 

the debt was incurred, not discharged. 

We agree that the court properly excluded the amount of the forgiven debt from 

the calculation of Mother‘s income. The amount of debt forgiven is not specifically 

included in the definition of income in the Child Support Guidelines. Moreover, the 

forgiveness of the debt was a one-time event and produced no income in 2013 or 2014. 

There is no basis from which to conclude that the amount of the debt should be included 

as part of the calculation of Mother‘s 2014 income or that the court erred in not 

considering it. 

B. Father’s Insurance Payments 

The parenting plan requires both parents to maintain reasonable health insurance 

for the children. The child support worksheet states that Mother incurs $294.41 for the 

children‘s portion of her health insurance, and allocates Father‘s share of that expense to 

be $158.98. Father contends that he is entitled to a credit on his share because he pays 

Stepmother $88.00 monthly to reimburse her for the portion of the monthly premium for 

health insurance she received through her employment which was attributable to his 

children. 

Addressing this matter in the October 21, 2014 hearing, the court held: 

The Father will get no credit for paying his wife for insurance coverage

under the Court‘s interpretation of the guidelines. The Court will allow for 

Mother to have a credit on the child support worksheet for her insurance 

cost for the girls.
24

Father sought reconsideration of the ruling on the motion to alter or amend. The court

dismissed the motion, stating: 

Next counsel argues that the Court should have granted Father a credit for 

the $88.00 per month health insurance premium reimbursement made from 

Father to his present wife. This exchange of funds occurred via check from 

Father to his present wife in exchange for her putting the entire family on 

her family plan of insurance at her work. The checks are not made out to 

the insurance provider and credited toward the premium. The checks are 

simply made to the present wife and purportedly cashed by her. There are 

insufficient indicia of reliability here for the Court to give a credit under 

these circumstances. Secondly, the Court considered this argument in 

formulating the prior order. There are no new facts or change in the law 

here. The Court has previously exercised its discretion in not allowing the 

credits. 

The Child Support Guidelines state that ―the cost for the child‘s health insurance 

premium...shall be divided between the parents pro rata....‖ Tenn. Comp. R. & Regs. 

1240-02-04-.04(8)(a)(3). Moreover,  ̳―[a]mounts paid by a step-parent shall not be 

considered in the calculation‘ of child support.‖ In re Grace N., No. M2014-00803-

COA-R3-JV, 2015 WL 2358630, at *11 (Tenn. Ct. App. May 14, 2015) (pet. to rehear 

denied (Tenn. Ct. App. June 9, 2015); no perm. app. filed) (quoting Tenn. Comp. R. & 

Regs. 1240-02-04-.04(8)(a)(6)). Stepmother testified that she pays a total of $108.00 a 

month for health insurance and receives $88.00 per month from Father in reimbursements

in the amount attributable to him and children; that seven people are currently covered by 

her health insurance plan; that the children‘s portion of her health insurance premium is 

$46.42 per month; and that she did not plan on reimbursing Father for his overpayment. 

In addition to Stepmother‘s testimony, the evidence of the health insurance payments was 

Father‘s testimony that he pays Stepmother $88.00 per month for health insurance for the 

children; nine checks in the amount of $88.00 each written out to Stepmother and signed 

by Father, dating from October 31, 2013 to June 12, 2014; and a copy of Stepmother‘s 

payroll stub, listing certain deductions.

26

 

―The weight, faith, and credit to be given to any witness‘s testimony lies in the 

first instance with the trier of fact, and the credibility accorded will be given great weight 

by the appellate court.‖ In re I.E.A., No. W2016-00304-COA-R3-CV, 2016 W3997421 at 

*4 (Tenn. Ct. App. July 20, 2016) (citing Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 

1997)). As noted above, under the guidelines, payments made by a stepparent are not 

 

26

 The payroll stub did not list the amount deducted from Stepmother‘s paycheck for her health 

insurance. 
25

included in the calculation of child support. While Father concedes this point in his brief, 

he argues that, because he made the actual payments, he should get credit. The court

determined that the evidence, including the differing amounts stated by Father and 

Stepmother as to the portion of her health insurance premium attributable to the children

and the checks written by Father to Stepmother, was insufficient to establish that Father 

was entitled to a credit in the amount of $88.00; the court did not abuse its discretion in 

weighing the testimony, and we decline to disturb the court‘s holding in this regard. See 

Konvalinka v. Chattanooga-Hamilton County Hospital Authority, 249 S.W.3d 346, 358 

(Tenn. 2008) (―[R]eviewing courts will set aside a discretionary decision only when the 

court that made the decision . . . based its decision on a clearly erroneous assessment of 

the evidence. . . .‖). 

V. ATTORNEY’S FEES

On April 9, 2014, the day the petitions were set for hearing, Father moved for a 

continuance and for leave to amend his counter-petition, asserting that documents he had 

received the month prior ―show [Mother] intentionally and fraudulently manipulated and

falsified the face of her 2012 W2.‖ The parties entered into an agreed order on May 2

continuing the hearing and allowing the amendment27; of pertinence to this issue, the 

order provided:

5. Attorney‘s fees relating to this continuance shall be reserved and the 

parties agree the Court should consider the timing of the events leading to 

the continuance and the seriousness of the allegation made when accessing 

[sic] attorney‘s fees for continuance, additional procedure, effort and 

inconvenience related to the new allegation that Mother has falsified her 

income by intentionally and fraudulently falsified [sic] and manipulated

[sic] the face of her 2012 W2 and 2013 W2. 

On May 2, 2014, Father filed a Notice advising that he ―will not assert the claim of fraud 

in the above-noted matter in the Amended Counter Petition, nor will I require an Answer 

on the Amended Petition.‖ There is nothing in the record to indicate that Mother sought 

to have the court award fees pursuant to the order entered May 2. 

Mother contends that she was entitled to an award of attorney‘s fees for services at 

the trial court level because of the May 2 order as well as ―the facts of the case as a 

whole.‖ Mother‘s argument in support of this issue relates almost entirely to the 

circumstances surrounding the entry of the May 2 order. Inasmuch as this was 

 

27

 It is obvious there was some delay in the preparation of the order and its signature by the court and 

entry by the clerk. 
26

specifically reserved by the parties and not subsequently presented to the court, we do not 

find that the court erred in not making an award pursuant to the May 2 order. 

Although not relied upon by Mother in her argument, Tennessee Code Annotated

section 36-5-103(c)28 provides authority for an award of fees in a case of this type, and 

we shall consider her argument in the context of this statute. The statute provides that an 

award of fees is in the discretion of the trial court. Other than the general statement 

quoted in the immediately preceding paragraph, Mother offers no argument or evidence 

in support of her contention that she was entitled to attorney‘s fees for the trial. Mother 

and Father filed competing petitions to modify the parenting plan and Mother did not 

prevail at the trial court level. Under these circumstances, we discern no abuse of 

discretion in denying her an award of attorney‘s fees.

Mother and Father both request an award of attorney‘s fees incurred in this appeal. 

―The decision whether to award attorney‘s fees incurred on appeal is a matter within the 

discretion of this Court.‖ Yattoni-Prestwood v. Prestwood, 397 S.W.3d 583, 587 (Tenn. 

Ct. App. 2012) (citing Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995); 

Seaton v. Seaton, 516 S.W.2d 91, 93 (Tenn. 1974)). In making our determination, we are 

mindful of ―the ability of the requesting party to pay the accrued fees, the requesting 

party‘s success in the appeal, whether the requesting party sought the appeal in good 

faith, and any other equitable factor.‖ Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 

2003 WL 22071454, at *10 (Tenn. Ct. App. Sept. 3, 2003). 

Upon the record before us, in our discretion, we decline to award attorney‘s fees to 

either party. There is nothing in the record from which to conclude that the issues 

presented in this appeal were not pursued in good faith and, as is evident from the length 

and depth of this opinion, were substantive. 

 

28

 That subsection states: 

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

person to whom the custody of the child, or children, is awarded may recover from the 

other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or 

child support, or in regard to any suit 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).
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VI. Conclusion 

For the foregoing reasons, we vacate that portion of the judgment setting the

parenting schedules for the Fall, Spring, and Christmas vacation periods and remand for 

reconsideration in accordance with section 36-6-106 and to make appropriate findings 

relative thereto; in all other respects we affirm the judgment of the trial court.

RICHARD H. DINKINS, JUDGE