IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 9, 2016 Session

NATHAN Z. VINSON v. KRISTIN DENISE BALL ET AL.

 Appeal from the Juvenile Court for Cumberland County

No. 09-JV-1092 Larry M. Warner, Judge

No. E2015-01856-COA-R3-JV-FILED-NOVEMBER 9, 2016

This is a child custody action involving two minor children. In 2010, the biological 

parents of the children entered into an agreed order, which provided that the mother 

would be the primary residential custodian with the father enjoying visitation rights. 

Thereafter, the mother sent the children to live with their maternal grandfather. In July 

2014, the father filed a petition seeking to modify the prior custody order and establish a 

permanent parenting plan wherein he would be designated the primary residential parent. 

The mother opposed this change, and the maternal grandfather sought to intervene in the 

action for the purpose of seeking custody of the children. The trial court awarded 

primary custody to the maternal grandfather, determining that a risk of substantial harm 

would result if custody of the children were awarded to the father. The father has 

appealed. Determining that there is a lack of clear and convincing evidence to support 

the trial court‟s finding of a risk of substantial harm, we reverse the custody award to the 

grandfather. We remand this matter for a hearing regarding whether a material change in

circumstance has occurred since the initial custody award and whether modifying the 

designation of primary residential parent from the mother to the father is in the children‟s 

best interest. We also remand this matter for the trial court to revisit the issue of 

changing the children‟s surnames. We affirm the trial court‟s denial of the grandfather‟s 

request for retroactive child support.

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

Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.
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Kelsy A. Miller, Cookeville, Tennessee, for the appellant, Nathan Z. Vinson.

G. Earl Patton, Crossville, Tennessee, for the appellees, Kristin Denise Ball and Richard 

Smith.

OPINION

 I. Factual and Procedural Background

Petitioner, Nathan Z. Vinson (“Father”), is the biological father of two minor 

children, A.S. and K.S. (“the Children”), who were eight and nine years of age, 

respectively, at the time of trial. Kristen Denise Ball, formerly known as Kristen Smith 

(“Mother”), is the biological mother of the Children. Father and Mother cohabitated for a 

short period of time in Tennessee following the Children‟s births but separated when 

Father returned to his family home in Louisiana. In 2009, the Cumberland County 

Juvenile Court awarded Father temporary custody of the Children for a period of seven or 

eight months while Mother was incarcerated. Subsequently, on March 24, 2010, the 

Cumberland County Juvenile Court entered an “Order Establishing Parentage,” which 

confirmed Father‟s paternity of the Children. In that order, Mother was named primary 

residential parent, and Father was granted visitation with the Children for the entire 

month of June every year, one weekend per month, and alternating holidays. The order 

provided that the issue of child support would be reserved “pending action by the 

Department of Human Services.” The order also provided that Father would be 

responsible for changing the Children‟s surnames from “Smith” to “Vinson” and that 

Mother would cooperate with this endeavor.

It is undisputed that spanning the next three years, the Children moved “back and 

forth” between Mother‟s home in Tennessee and the home of her father, Richard Smith 

(“Grandfather”), in North Carolina and later South Carolina. Mother admitted that she 

was financially unable to care for the Children on her own. Father continued to visit with 

the Children whether the Children were living with Mother or Grandfather, and Father 

moved to South Carolina for a period to be closer to the Children. Eventually, however, 

Father returned to his family home in Louisiana. Father paid no support to Mother or 

Grandfather during this time period, although he did provide for the Children‟s needs 

when they were visiting with him. 

Father asserted that at some point, Grandfather began denying his requests for 

visitation. Consequently, Father filed a “Petition to Modify Current Parenting Order and 

to Establish a Permanent Parenting Plan” on July 16, 2014. Father alleged that he had 

been unable to maintain contact with Mother and had only recently discovered that 

Mother had again sent the Children to live with Grandfather without Father‟s knowledge. 
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Father averred that he had been exercising visitation but did not wish to return the 

Children to Grandfather‟s care because Grandfather was not their legal custodian. Father 

thus contended that there had been a material change in circumstance justifying a change 

in the designation of primary residential parent from Mother to Father. 

Mother and Grandfather jointly filed an answer and counter-petition, seeking to 

hold Father in contempt for failing to return the Children from a visit, to establish a 

permanent parenting plan, and to set child support. Grandfather, who had concomitantly 

filed a motion to intervene, was listed as an “intervening counter-petitioner” on the joint 

counter-petition.1 Mother and Grandfather also filed a joint motion seeking immediate 

return of the Children to Grandfather. In these pleadings, Mother and Grandfather 

asserted that although Father was supposed to have returned the children to Grandfather 

on July 15, 2014, Father refused to do so. They also contended that it was in the 

Children‟s best interest to remain in the custody of Grandfather. Mother and Grandfather 

requested that the trial court formalize Grandfather‟s custody of the Children because he 

had been their primary caregiver for many years.

The trial court entered an Order on August 8, 2014, reciting that Father had asked 

for ex parte relief to restrain Mother and Grandfather from removing the Children from 

Father‟s custody pending a hearing. The court also noted that Grandfather, whom the 

court referred to as “the Intervening Counter-Petitioner,” and Mother had filed an answer 

and counter-petition as well as a motion seeking the immediate return of the Children to 

Grandfather. The court stated, inter alia, in its order: “The Court denied the ex parte 

relief requested by the Petitioner and Ordered, sua sponte, that the children be 

immediately returned to the custody of the Respondent [Mother] and Intervening 

Counter-Petitioner [Grandfather], pending further hearing to take place on August 15, 

2014, at 9:00 a.m.” Father subsequently filed pleadings opposing Grandfather‟s 

intervention in the case.

The trial court conducted a hearing on August 15, 2014, regarding the 

countervailing custody petitions. Mother, Father, and Grandfather were the only 

witnesses. Mother admitted that she was financially unable to care for the Children, 

which she explained was the reason she sent them to live with Grandfather. Mother 

acknowledged that she had paid no support to Grandfather during the time of his care for

the Children. Mother opined that Grandfather and his wife had done well in caring for

the Children, such that she felt it was in the Children‟s best interest to remain in their 

custody.

 

1 Grandfather asserted that he should be allowed to intervene pursuant to either Tennessee Rule of Civil 

Procedure 24.01 or 24.02.
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Father testified that despite his repeatedly asking for custody of the Children since 

2010, Mother had refused. Father stated that he had to arrange his visitation through 

Grandfather a majority of the time. Father characterized Grandfather as initially 

cooperative but related that Grandfather became less so with time. According to Father, 

Grandfather had, of late, thwarted his attempts to visit the Children, calling Father a 

“sperm donor.” According to Father, he moved to South Carolina at some point to reside

closer to the Children. He eventually returned to Louisiana because he had not been

allowed to visit the Children freely and could not obtain lucrative employment in South 

Carolina.

Father explained that he currently resided with his grandmother at her home in 

Shreveport, where he had lived most of his life. Father was employed on an oil drilling 

rig in another state, working and living for fourteen consecutive days away from home 

and then returning home for fourteen consecutive days off. Father testified that he earned 

$24 per hour, for a gross income of approximately $60,000 per year. According to 

Father, he was able to provide for the Children‟s needs, clarifying that his mother, who 

lived nearby, and grandmother would care for the Children when he was away for work. 

Father acknowledged that he had never paid child support, rationalizing that he had never 

been ordered to do so.

Grandfather testified that he had recently moved to Fort Mill, South Carolina, 

because of the superior reputation of Fort Mill‟s school system. According to 

Grandfather, shortly after the parentage order was entered in 2010, Mother asked him to 

assume physical custody of the Children, providing him with a “letter of guardianship” so 

that he could enroll the Children in school. Grandfather stated that he was unaware of 

Father‟s address and usually exchanged the Children for visitation by meeting Father‟s 

mother or grandmother at a half-way point. Grandfather acknowledged that although 

Mother had paid no support for the Children, he supported the Children for her as he 

believed family should. 

According to Grandfather, Father had abandoned the Children since their birth. 

Grandfather asserted that he had attempted to cooperate with Father and give Father as 

much visitation as he desired, in addition to allowing Father to have telephonic access to 

the Children. Grandfather acknowledged that he felt “confident” that the Children were 

well cared for when they were with Father. However, Grandfather related that he had 

been the one providing the Children with stability throughout most of their lives, 

describing them as happy and thriving in his care.

During closing arguments, Father‟s counsel posited that before custody could be 

awarded to a non-parent, the court was required to make a finding of substantial harm. 

Upon ruling from the bench, the trial court awarded custody to Grandfather based on a 
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material change in circumstance. The court awarded Father visitation during the month 

of June only, with exchange of the Children to occur in Birmingham, Alabama. The 

court admonished Father to appear on time for the exchange or otherwise face substantial 

incarceration. 

The trial court subsequently entered an order on September 2, 2014, determining 

that a material change in circumstance had taken place since the 2010 parentage order. 

The court found that neither parent had provided for or supported the Children 

appropriately and that the Children were “blessed” to have Mr. Smith as a grandparent. 

The court accordingly awarded primary custody of the Children to Grandfather. In 

finding that neither parent had ever been ordered to pay child support, the court imputed 

minimum wage income to Mother and determined Father‟s gross income to be $4,032 per 

month based upon his testimony. Pursuant to the Child Support Guidelines, the court set 

Mother‟s child support obligation at $286 per month and Father‟s child support 

obligation at $984 per month. The court further ruled that the Children‟s surnames 

remain as “Smith.”

Mother and Grandfather thereafter filed a joint motion seeking to alter or amend 

the judgment. In support, they asserted that the trial court had not specifically ruled on 

the motion to intervene and further had not made specific findings of fact to support the 

transfer of custody to Grandfather. Mother and Grandfather also complained that the 

issues of retroactive child support and medical expenses had not been addressed. 

Meanwhile, Father filed a notice of appeal, which appeal was subsequently dismissed by 

this Court due to Father‟s failure to pay the required litigation tax. See Tenn. Code Ann. 

§ 67-4-601 (2013), et seq.

Upon remand, the trial court conducted a hearing on October 1, 2014, regarding 

the pending motion to alter or amend. When Grandfather‟s counsel advised the court that 

no written order had been entered allowing Grandfather‟s intervention, the court

remarked, “[i]t would appear to me . . . that I cured the motion to intervene when I 

granted you custody.” Grandfather‟s counsel then proffered that in order to transfer 

custody to Grandfather as a non-parent, the court was required to make a finding of 

substantial harm. At the conclusion of the hearing, the court announced:

Now, we‟ve dealt with the issues of custody, we‟ve dealt with the 

issues of visitation, I believe, and I think we‟ve also dealt with the issue of 

current support, leaving us with unpaid medical bills and retroactive child 

support. I will be very concerned with the time period from the date of the 

order establishing paternity in 2010, I believe, I‟ll be concerned with the 

income of the parties in that time frame. So, we can look at that. And, 

obviously, patterns of visitation by either parent, any of the parents. 
6

When Father‟s counsel asked the court to clarify that it was granting Grandfather‟s 

motion to alter or amend, the court responded affirmatively. Father‟s counsel then 

inquired whether the parties needed to conduct discovery only on the issues of retroactive 

child support and medical bills, to which the court again responded in the affirmative.

Grandfather subsequently filed a petition for contempt on November 24, 2014, 

regarding Father‟s alleged non-payment of child support, as well as a motion to compel 

Father‟s discovery responses. By agreed order dated June 9, 2015, the trial court set the 

matter for a final hearing on July 28, 2015. On the day of the hearing, Mother and 

Grandfather filed a joint motion seeking permission to file an amended answer and 

counter-petition, in which, for the first time, they alleged that the Children would be 

subjected to substantial harm if custody were granted to Father. 

Upon commencement of the July 28, 2015 hearing, Grandfather‟s counsel 

informed the court that the motion to amend had just been filed. Father‟s counsel argued 

that the amendment should be denied due to its filing on the day of the final hearing, 

which had been set for some time. In support, Father‟s counsel asserted that Father had 

not been provided proper notice of this claim and an opportunity to prepare a defense. 

The court stated, “I think what you [Grandfather‟s counsel] have done here is, you‟ve just 

memorialized what your proof here in the Court has been submitted . . . .” The court 

therefore granted filing of the amendment. The court subsequently inquired of Father‟s 

counsel whether she wished to seek a continuance. Counsel responded that Father 

wished to go forward with the hearing. Counsel, however, asked for a clarification of the 

issues to be addressed, stating that her understanding was that only issues of retroactive 

child support and medical expenses remained for determination. Grandfather‟s counsel 

declared that Grandfather was seeking a determination of substantial harm from the court. 

The court permitted Grandfather to proceed with the presentation of proof regarding this 

claim without further objection by Father‟s counsel.

Grandfather testified that he had recently paid a substantial medical bill resulting 

from an incident wherein K.S. suffered a broken arm. According to Grandfather,

although Father had stated that he would contribute to these medical expenses, he had not 

done so. Grandfather characterized the Children as “theirs,” referring to Grandfather and 

his wife, by reason of the Children having been in their physical custody for a majority of 

the Children‟s lives. Acknowledging that the Children appeared to enjoy spending time 

with Father and his family, Grandfather added that he knew the Children loved Father 

and that Father loved them. While Grandfather indicated that he believed the Children 

were “okay” when they were in Father‟s care, he expressed displeasure that Father had 

not paid child support until ordered to do so by the court.
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Grandfather also admitted that there had been occasions when Father had 

requested to visit with the Children but Grandfather had refused. Moreover, Grandfather 

conceded that he left a voicemail message for Father stating that he would do everything 

in his power to make sure Father never saw the Children. Grandfather explained that he

was upset because upon their return from visitation, the Children had articulated that 

Grandfather wanted a “do-over” because he had not done a good job raising his own 

children. Grandfather was also disturbed when the Children reported Father‟s use of a 

racial slur upon referring to the Children‟s half-sister. Furthermore, according to 

Grandfather, Father had offered to add the Children to his medical insurance through his 

employment but never followed through.

Mother testified that Father demonstrated a bad temper and had physically pushed 

her while she was pregnant with K.S. She reported that another incident of physical 

assault had occurred previously. As Mother explained, both incidents happened before 

she agreed to allow Father to exercise visitation with the Children in the 2010 parentage 

order.

Father related that although he wanted to maintain custody of the Children in 2010 

when the parentage order was entered, the trial court had informed the parties that it

would not remove custody from Mother because Mother had made “one mistake.” Father 

testified that Grandfather and his wife worked six days per week, often into the evening 

hours, such that the Children were frequently left in the care of a babysitter. Father also

explained that he was unable to add the Children to his medical insurance coverage 

because Grandfather refused to send copies of the Children‟s birth certificates or social 

security numbers. Father expressed his distress at only having seen the Children one time 

during the prior year, indicating that he had been denied visitation at Christmas. 

According to Father, the Children reported that they would be in trouble if they wished to 

call Father or send him a letter when they were with Grandfather. Father also reported 

that the Children were extremely sad upon leaving his home to return to Grandfather. 

Father asserted that should his work schedule be the basis for his not being granted 

custody, he would find a new full-time job in Louisiana. Concerning allegations of 

domestic violence, Father explained that when he was residing with Mother, he had not 

assaulted her; rather, he insisted it was Mother who assaulted him. Father further 

indicated that the assault incident was the reason he had left and returned to Louisiana.

At the conclusion of the hearing, the trial court determined that no retroactive 

child support would be awarded and that each parent would be responsible for $7,500 in 

medical expenses. The court reaffirmed its earlier award of custody to Grandfather, 

finding that substantial harm to the Children would result if custody were granted to 

Father. The court noted that if the Children moved to Louisiana with Father, there would 

be “too many unknowns” because the court did not know who would care for the 
8

Children or where they would go to school. The court also observed that a grant of 

custody to Father, considering his current work schedule and living situation with his 

grandmother, would basically be “trading” one grandparent for another. By virtue of the 

time the Children had resided with Grandfather and the totality of the circumstances, the 

court determined that the Children should remain in Grandfather‟s custody.

The trial court subsequently entered an order on September 10, 2015, stating in 

pertinent part:

The Court finds that the Petitioner Father lives in Shreveport, 

Louisiana and that he is employed as a motor man on an oil-drilling rig, and 

that such work takes him out of town, regularly for two weeks at a time, 

and that he has to remain out of town and stay at a bunk house during these 

working periods. Father earns approximately $60,000.00 per year, and 

when not working, resides in a home owned by his grandmother.

The Respondent Mother resides in Cookeville, Tennessee and is 

currently unemployed. The proof showed that she has relied upon the 

Intervening Petitioner, her father, for support. Respondent mother testified 

that it was in the best interests of the children to continue residing with her 

father in Fort Mill, South Carolina. . . .

The Court finds that [Grandfather] currently lives in Fort Mill, SC, a 

town to which he moved specifically because of the reputation of the school 

system there as would relate to the children. Richard Smith has had 

physical custody of the parties‟ children, with the parties‟ full knowledge 

and consent for a majority of the children‟s lives, and has received no 

financial support from either parent, prior to [the] Court‟s temporary Order 

in this cause. Despite this, the proof demonstrated that Richard Smith has 

made great attempts to maintain and encourage a relationship between the 

children and both parents, regularly traveling great distances to meet the 

mother and even further distances for the children to meet their father for 

periods of visitation.

The Court further finds that legal custody of the children should be 

granted to the Intervening Petitioner as substantial harm would result to the 

children in the custody of either of the parents in this case. Specifically, it 

is noted that the Mother in the case has joined the Intervening Petitioner in 

advocating for her father as being in the best position to take care of the 

children. In doing so, she has waived the requirement of a showing of 

substantial harm as to her. However, the Court also finds that her 
9

testimony supports a finding that the children would be subjected to 

substantial harm in the custody of the mother, as she has demonstrated a 

sustained inability to support the children financially and such a pattern of 

poor choices in her life that the children would be subjected to such harm. 

As to the Petitioner Father, prior to the Court‟s temporary Order in 

this cause, he had failed to support the children financially other than 

purchasing necessaries for the brief and sporadic periods of visitation he 

has exercised. He has never paid any medical expenses for the children, 

opting consciously to allow [Grandfather] to support the children 

completely. The Court finds that this sustained abandonment of the 

children, along with his inability to care for the children while he works 

away from his home for long periods of time, supports a finding that the 

children would be subjected to substantial harm in his care as well. The 

Court finds that Father‟s work schedule essentially requires the Court to 

choose between the maternal grandfather and the paternal greatgrandmother whom the Father has indicated would care for the children 

while he was working on the oil rig. The length of time that the children 

have been with the [m]aternal grandfather in an apparently satisfactory and 

stable environment weighs heavily in the Court‟s analysis.

As to the issue of the children‟s name change, which was addressed 

in the March 24, 2010 Order, to the effect that it was [Father‟s]

responsibility to change the children‟s surnames []from Smith to Vinson, 

the Court finds that due to the fact that [Father] has not in fact acted to 

change the children‟s names since that time, that the children are now eight 

and nine years old, and that the children have been in school, using the 

surname Smith for five and four years respectively, that it is no longer in 

the children‟s best interests for that name change to occur.

 Father timely appealed.

II. Issues Presented

Father presents the following issues for our review, which we have restated 

slightly:

1. Whether the trial court erred by allowing Grandfather to intervene in 

this custody action.
10

2. Whether the trial court abused its discretion by awarding primary 

custody of the Children to Grandfather absent a showing that the 

Children would be substantially harmed in Father‟s care.

3. Whether the trial court erred by ordering that the Children‟s last 

name should not be changed despite a previous agreed order 

mandating the change.

Grandfather and Mother present the following additional issue:

4. Whether the trial court erred by failing to order retroactive child 

support.

III. Standard of Review

Regarding the standard of review applicable to a child custody determination, this 

Court has explained:

Our review of this bench trial is de novo. The trial court‟s findings 

of fact, however, come to us with a presumption of correctness that we 

must honor unless the evidence preponderates against those findings. Tenn. 

R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). In 

weighing the preponderance of the evidence, great weight is accorded to the 

trial court‟s determinations of witness credibility, which shall not be 

ignored by us absent clear and convincing evidence against those 

determinations. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). We 

review a trial court‟s judgment determinations of witness credibility with 

great deference and will not re-evaluate a trial judge‟s credibility 

determinations unless they are contradicted by clear and convincing 

evidence. Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

No presumption of correctness attaches to the trial court‟s conclusions of 

law. Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002); 

Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).

As a general rule, decisions regarding custody are within the broad 

discretion of the trial judge and will not ordinarily be reversed absent some 

abuse of that discretion. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 

439, 442 (Tenn. 1992); Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.

1988). Accordingly, a trial court‟s discretionary judgment will be upheld if 

the decision is one about which reasonable minds might disagree. A trial 

court abuses its discretion when it “applies an incorrect legal standard, or 
11

reaches a decision which is against logic or reasoning that causes an 

injustice to the party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 

(Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

In re Abigail G.D.H., No. E2011-00118-COA-R3-JV, 2011 WL 3209180, at *5-6 (Tenn. 

Ct. App. July 28, 2011).

IV. Grandfather‟s Intervention

Father argues that the trial court should not have been permitted Grandfather to 

intervene because there was no demonstration of parental unfitness. Mother and 

Grandfather assert that the trial court appropriately granted intervention because the 

Children had been in Grandfather‟s care for a substantial amount of time and Father had 

failed to support the Children during that timeframe.

The Tennessee Rules of Civil Procedure provide for two types of intervention: 

intervention as of right and permissive intervention. Intervention as of right is addressed 

in Tennessee Rule of Civil Procedure 24.01, which states:

Upon timely application anyone shall be permitted to intervene in an 

action: (1) when a statute confers an unconditional right to intervene; or (2) 

when the applicant claims an interest relating to the property or transaction 

which is the subject of the action and the applicant is so situated that the 

disposition of the action may as a practical matter impair or impede the 

applicant‟s ability to protect that interest, unless the applicant‟s interest is 

adequately represented by existing parties; or (3) by stipulation of all the 

parties.

Tennessee Rule of Civil Procedure 24.02 addresses permissive intervention, providing:

Upon timely application anyone may be permitted to intervene in an action: 

(1) when a statute confers a conditional right to intervene; or (2) when an 

applicant‟s claim or defense and the main action have a question of law or 

fact in common. In exercising discretion the court shall consider whether 

or not the intervention will unduly delay or prejudice the adjudication of the 

rights of the original parties.

Our thorough review of the record in this matter reveals no order expressly 

granting Grandfather‟s motion to intervene or providing a basis for allowing his 

intervention. Instead, during the October 1, 2014 hearing on the motion to alter or 

amend, Grandfather‟s counsel inquired regarding the status of Grandfather‟s motion to 
12

intervene. The judge announced, “It would appear to me . . . that I cured the motion to 

intervene when I granted you custody.” Father contends that neither Tennessee Rule of 

Civil Procedure 24.01 nor 24.02 would provide a basis for allowing Grandfather to 

intervene in this custody action because Grandfather was not a parent and had no direct 

claim of custody that would supersede Mother‟s or Father‟s claim. Father asserts that the 

custody determination should have been made between Mother and Father only. 

Grandfather argues that the right of grandparents to permissive intervention in 

custody cases involving their grandchildren has been established in prior rulings from this 

Court. See, e.g., Toms v. Toms, 209 S.W.3d 76, 80 (Tenn. Ct. App. 2005) (trial court 

allowed intervention by grandparents when the grandparents alleged in their petition that 

the parents were not properly caring for the children); Elmore v. Elmore, 173 S.W.3d 

447, 448 (Tenn. Ct. App. 2004) (trial court allowed intervention by grandparents when

the grandparents alleged in their petition that they had been caring for the children for 

over two years and that the mother had abandoned her responsibilities as a parent); Dean 

v. Compton, No. M1998-00052-COA-R3-CV, 2000 WL 329351, at *14 (Tenn. Ct. App. 

Mar. 30, 2000) (trial court allowed intervention by grandparents when the grandparents 

alleged in their petition that both parents had failed to provide for the children, forcing 

the grandparents to assume that responsibility). But see In re Marquise T.G., No. 

M2011-00809-COA-R3-JV, 2012 WL 1825766, at *1 (Tenn. Ct. App. May 18, 2012)

(holding that although the grandmother was not precluded from seeking custody, the trial 

court did not err in limiting her intervention to seeking “any visitation rights to which she 

might have been entitled to under Tenn. Code Ann. § 36-6-306” because her petition 

failed to allege substantial harm).

We note that “the decision to allow intervention is a matter within the discretion of 

the trial court. This decision should not be reversed by an appellate court absent a 

showing of abuse of discretion.” Shelby Cnty. Deputy Sheriff’s Ass’n v. Gilless, 972 

S.W.2d 683, 685 (Tenn. Ct. App. 1997). Furthermore, as our Supreme Court has 

explained:

Under the abuse of discretion standard, a trial court‟s ruling “will be upheld 

so long as reasonable minds can disagree as to propriety of the decision 

made.” State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland,

22 S.W.3d 266, 273 (Tenn. 2000). A trial court abuses its discretion only 

when it “applie[s] an incorrect legal standard, or reache[s] a decision which 

is against logic or reasoning that cause[s] an injustice to the party 

complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). The 

abuse of discretion standard does not permit the appellate court to substitute 

its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 

S.W.2d 920, 927 (Tenn. 1998).
13

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

In this case, Grandfather‟s initial petition seeking custody alleged that the Children 

had been residing with him for some time and that Father had failed to support or 

regularly visit the Children. Not until the date of the final hearing did Grandfather file an 

amended counter-petition alleging that the Children would be subjected to substantial 

harm if custody were granted to Father. Based upon the above-described precedent, 

however, we determine that the trial court did not abuse its discretion in allowing 

Grandfather to intervene in this custody dispute because of the allegations contained in 

his initial petition regarding the parents‟ failure to support and care for the Children. See

Toms, 209 S.W.3d at 80.

V. Award of Custody to Grandfather

Father asserts that the trial court erred in awarding custody to Grandfather because 

Grandfather and Mother failed to demonstrate by clear and convincing evidence that 

Father was unfit or that substantial harm would result if the Children were placed in 

Father‟s care. Father contends that if Grandfather had not been allowed to intervene, 

Father‟s burden of proof would have been to show by a preponderance of the evidence 

that a material change in circumstance had occurred since the prior custody award to 

Mother and that a modification was in the Children‟s best interest. As this Court has 

previously explained:

Because Father in his petition to modify the permanent parenting plan 

requested that he be named the primary residential parent rather than 

Mother, this action is considered one for modification of “custody.” See

Armbrister v. Armbrister, 414 S.W.3d 685, 703 (Tenn. 2013) (comparing 

the standard for an action to modify custody to the standard for an action to 

modify only a residential parenting schedule). Upon a petition to modify 

custody from one parent to the other parent, “the „threshold issue‟ is 

whether a material change in circumstance has occurred after the initial 

custody determination.” See Kendrick v. Shoemake, 90 S.W.3d 566, 570 

(Tenn. 2002) (quoting Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 

2002)). Upon a trial court‟s finding that a material change in circumstance 

affecting the children has occurred, “it must then be determined whether the 

modification is in the child[ren]‟s best interests.” Kendrick, 90 S.W.3d at 

570 (citing Tenn. Code Ann. § 36-6-106); see generally Boyer v. 

Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007) (“In approaching 

questions of custody and visitation, the needs of the children are 

paramount; the desires of the parents are secondary.”).
14

Regarding the standard a petitioning parent must meet to prove a material 

change in circumstance sufficient for consideration of whether custody 

modification is in the best interest of the child, Tennessee Code Annotated 

§ 36-6-101(a)(2)(B) (2014) provides in relevant part:

(B) If the issue before the court is a modification of the 

court‟s prior decree pertaining to custody, the petitioner must 

prove by a preponderance of the evidence a material change 

in circumstance. A material change of circumstance does not 

require a showing of substantial risk of harm to the child. A 

material change of circumstance may include, but is not 

limited to, failures to adhere to the parenting plan or an order 

of custody and visitation or circumstances that make the 

parenting plan no longer in the best interest of the child.

(i) In each contested case, the court shall make such a finding 

as to the reason and the facts that constitute the basis for the 

custody determination.

See also Armbrister, 414 S.W.3d at 703.

Muhonen v. Muhonen, No. E2013-02601-COA-R3-CV, 2015 WL 740667, at *5-6 (Tenn. 

Ct. App. Feb. 20, 2015).

Inasmuch as Grandfather was allowed to intervene and seek custody of the 

Children, however, the proper analysis is as set forth in Blair v. Badenhope, 77 S.W.3d 

137, 142 (Tenn. 2002), wherein our Supreme Court explained:

[I]n a contest between a parent and a non-parent, a parent cannot be 

deprived of the custody of a child unless there has been a finding, after 

notice required by due process, of substantial harm to the child. Only then 

may a court engage in a general “best interest of the child” evaluation in 

making a determination of custody.

The High Court expressly found that a parent would enjoy the presumption of superior 

parental rights when there was no prior order transferring custody from a parent to a nonparent. Id. In this case, because there exists no prior decree2

granting custody to

 

2 Mother testified that she sent the Children to live with Grandfather and granted him “power of attorney” 

with respect to the Children. Grandfather testified that Mother provided him with a “guardianship letter” 

so that he could enroll the Children in school. The only prior order or decree in the record regarding 
15

Grandfather, he is required to show “by clear and convincing evidence, that granting 

custody to Father subjected the children to a risk of substantial harm.” Elmore, 173 

S.W.3d at 449.3 Once such a finding has been made, the court may then proceed to 

evaluate the custody determination in light of the best interests of the Children. See 

Dean, 2000 WL 329351, at *15.

In the case at bar, the trial court determined that the Children would be subjected 

to substantial harm if allowed to reside with Father, specifically finding that:

[P]rior to the Court‟s temporary Order in this cause, [Father] had failed to 

support the children financially other than purchasing necessaries for the 

brief and sporadic periods of visitation he has exercised. He has never paid 

any medical expenses for the children, opting consciously to allow 

[Grandfather] to support the children completely. The Court finds that this 

sustained abandonment of the children, along with his inability to care for 

the children while he works away from his home for long periods of time, 

supports a finding that the children would be subjected to substantial harm 

in his care as well. The Court finds that Father‟s work schedule essentially 

requires the Court to choose between the maternal grandfather and the 

paternal great-grandmother whom the Father has indicated would care for 

the children while he was working on the oil rig. The length of time that 

the children have been with the [m]aternal grandfather in an apparently 

satisfactory and stable environment weighs heavily in the Court‟s analysis.

Father posits that no clear and convincing evidence supports the trial court‟s finding of 

substantial harm. Upon a thorough review of the record, we agree. 

 

custody of the Children is the 2010 Order Establishing Parentage, which solely involves Mother and 

Father.

3

Pursuant to the Supreme Court‟s opinion in Blair, Father cannot be deprived of custody without receipt 

of the proper “notice required by due process.” See 77 S.W.3d at 142. Father contends that he was 

surprised and ultimately prejudiced by the allegations of substantial harm that were raised on the morning 

of the July 28, 2015 hearing. The law is well settled, however, that when a party does not request a 

continuance of the trial date in order to address any new claim or evidence brought forth shortly before 

the trial, such party cannot complain of prejudice on appeal. See Matus v. Metro. Gov’t of Nashville, 128 

S.W.3d 653, 656 (Tenn. Ct. App. 2003); Schnider v. Carlisle Corp., 65 S.W.3d 619, 621 (Tenn. Ct. App. 

2001); Farmers & Merchants Bank v. Dyersburg Prod. Credit Ass’n, 728 S.W.2d 10, 19 (Tenn. Ct. App. 

1986). The trial court offered Father the opportunity to seek a continuance of the trial date, but Father 

decided to go forward with the trial. Therefore, Father cannot now complain that he was prejudiced by 

the trial court‟s decision to allow amendment of the counter-complaint.
16

Regarding substantial harm, this Court has previously explained:

The courts have not undertaken to define the circumstances that pose 

a risk of substantial harm to a child.[FN] These circumstances are not 

amenable to precise definition because of the variability of human conduct. 

However, the use of the modifier “substantial” indicates two things. First, 

it connotes a real hazard or danger that is not minor, trivial, or insignificant. 

Second, it indicates that the harm must be more than a theoretical 

possibility. While the harm need not be inevitable, it must be sufficiently 

probable to prompt a reasonable person to believe that the harm will occur 

more likely than not.

[FN] This court has observed that a finding of substantial harm 

to a child includes “a finding of parental unfitness or of 

dependency and neglect of the child . . . .” Eason v. Bruce,

No. W2000-01326-COA-R3-CV, 2001 WL 502834, at *2 

(Tenn. Ct. App. May 10, 2001) (No Tenn. R. App. P. 11 

application filed). 

Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (additional footnote omitted). 

This Court further explained regarding custody decisions in general:

Custody decisions should not be used to punish parents for past 

misconduct or to award parents for exemplary behavior. The courts 

understand that persons are able to turn their lives around. Accordingly, 

custody decisions should focus on the parties‟ present and anticipated 

circumstances, and on the parties‟ current fitness to be custodians of 

children. 

The courts may and should consider past conduct to the extent that it 

assists in determining a person‟s current parenting skills or in predicting 

whether a person will be capable of having custody of a child. However, 

the consideration of past conduct must be tempered by the realization that 

the persons competing for custody, like other human beings, have their own 

virtues and vices. Biological parents are not required to demonstrate they 

are perfect before they can be granted custody of their children. 

Ray, 83 S.W.3d at 734 (internal citations omitted).

We note that the procedural posture of the Ray case is somewhat similar to the 

history of this cause. In Ray, the parties, Mr. and Ms. Ray, were engaged in an ongoing 
17

divorce action that encompassed a custody dispute regarding the four minor children born 

during their marriage. Id. at 728. Mr. Ray was not the biological father of the two 

youngest children, a set of three-year-old twins, and the biological father of the twins, 

Mr. Staggs, sought to intervene in the divorce action to seek custody of those children. 

Id. Mr. Staggs had no prior relationship with the twins because he did not learn that he 

was their father until approximately one month before he sought intervention. Id. at 729. 

Following his intervention, Mr. Staggs sought and was granted visitation with the twins, 

which he began exercising immediately. Id. 

Subsequent to a hearing on the custody issue, the Ray trial court determined that 

Ms. Ray was “not a fit and proper person” to have custody of any of the four children. 

Id. at 730. The court then engaged in a comparative fitness analysis between Mr. Ray 

and Mr. Staggs with regard to custody of the twins, determining that Mr. Ray was the 

better choice for custodian. Id. The court also noted its reluctance to separate the twins 

from their siblings. Id. Mr. Staggs thereafter filed a Tennessee Rule of Civil Procedure 

59.04 motion. The trial court subsequently entered an order finding that there was clear 

and convincing evidence of a risk of substantial harm to the twins if placed in Mr. 

Staggs‟s custody, stating:

[B]ecause of both natural parents‟ use of drugs, instability in relationships, 

the natural father‟s history of family mental illness, lack of father‟s 

connection with his family, anger undisputed in natural father . . . natural 

Father‟s lack of interest in trying to determine paternity until the children 

were almost two years old, Father‟s taking no part in the young children‟s 

formative years and leaving them to fend for themselves, and Father failing

to pay adequate support even after he learned he was the Father . . . .”

Id. The court thus ruled that the children would remain with Mr. Ray, who was “the only 

stable force in their li[ves].” Id. 

On appeal in Ray, this Court reviewed the trial court‟s findings of fact with a 

presumption of correctness, see Tenn. R. App. P. 13(d), but determined that the facts 

found by the trial court did not clearly and convincingly establish that the twins would be 

exposed to a risk of substantial harm if placed in the custody of Mr. Staggs. Id. at 733-

34. Reviewing each individual factual finding in detail, this Court determined that the 

evidence failed to attain the level of clear and convincing. Id. at 734-38. For example, 

this Court determined that Mr. Staggs had not demonstrated a “lack of interest in trying to 

determine paternity until the children were almost two years old,” nor had he consciously 

“[taken] no part in the young children‟s formative years and [left] them to fend for 

themselves” because the evidence demonstrated that Mr. Staggs had attempted to call Ms. 

Ray while she had changed her phone number and that he had also attempted 
18

unsuccessfully to locate her through mutual friends. Id. at 735. This Court noted that 

upon learning of his children‟s existence, Mr. Staggs immediately sought to intervene in 

the Rays‟ divorce to obtain visitation and seek custody. Id. This Court also noted that 

Mr. Staggs had successfully established a relationship with the twins by exercising 

continuing visitation. Id.

With regard to the Ray trial court‟s factual findings involving Mr. Staggs‟s past 

and personal relationships, this Court noted that Mr. Staggs had demonstrated positive 

change in his life by discontinuing his past use of cigarettes and illegal drugs, as well as

enjoying a stable and positive relationship with his wife. Id. at 736. This Court 

determined the evidence regarding Mr. Staggs‟s alleged “anger” to be “anecdotal and 

unremarkable.” Id. This Court also determined that there was no evidence that Mr. 

Staggs suffered from mental illness or that his estrangement from certain family members 

would affect his parenting ability. Id. Rather, this Court determined that the evidence of 

Mr. Staggs‟s current fitness to be custodian was more convincing, including the 

following:

Mr. Staggs had held a well-paying job for over eighteen months and had 

earned the trust and respect of his employer. He [had] also been married to 

a woman he had been dating for approximately eighteen months, and he 

had been fully integrated into her family. He had earned the admiration and 

respect of his wife‟s parents for his honesty and tenacity. He had also 

gained experience with young children and was serving as a volunteer 

coach for a YMCA youth basketball program. In light of this evidence, we 

find that the trial court placed undue weight on Mr. Staggs‟s past conduct 

rather than on his current fitness to have custody of his children.

Id. at 737. This Court thereby vacated the trial court‟s order regarding custody and 

remanded the matter for further hearing on the issue of whether Mr. Staggs‟s current

situation would expose the twins to substantial harm if Mr. Staggs were granted custody. 

Id. at 738.

Similarly, in Elmore, the maternal grandparents and aunt intervened in a custody 

dispute between the father and the mother, alleging that the maternal grandparents and 

aunt had been the primary physical custodians of the children for over two years. See 

Elmore, 173 S.W.3d at 448. The mother‟s family further alleged that the mother had 

abandoned her responsibilities as a parent to the children. Id. Without making a finding 

of substantial harm, the trial court awarded custody of the children to the maternal 

grandparents and aunt instead of to the mother or father. Id. 
19

On appeal in Elmore, this Court noted that although the trial court had made no 

finding of substantial harm, this Court could review the evidence presented at trial by 

both the father and the mother‟s family to determine if clear and convincing evidence 

supported a finding of risk of substantial harm. Id. at 450. The maternal grandmother 

had testified that she did not believe the father was capable of caring for three children 

while working. Id. She also testified that she had never been to the father‟s home and 

had no knowledge of whether it was suitable. Id. The mother testified that the father had 

been physically abusive to her prior to their divorce, although she acknowledged that she 

had been charged with assault, theft, and drug possession; had suffered from drug 

addiction; and had given false answers to interrogatories. Id. 

The father in Elmore admitted that he had failed to visit with the children for six 

months, explaining that he was trying to “catch” the mother in unwholesome behavior. 

Id. at 451. The father also acknowledged that he had fallen behind on his child support 

payments, resulting in the garnishment of his wages. Id. This Court noted that although 

the father lived in a trailer with only two bedrooms, he had testified that he was prepared 

and able to move to a three-bedroom trailer if granted custody. Id. While determining 

that the father had exercised “poor judgment” in his failure to visit in order to gain a 

tactical advantage in the custody dispute, this Court concluded that no clear and 

convincing evidence demonstrated that the children would be subjected to substantial 

harm if custody were granted to the father. Id. This Court therefore reversed the custody 

award to the maternal grandparents and aunt and designated the father as the primary 

residential parent of the three children based on his superior constitutional right to their 

care and custody. Id.

In the case at bar, the trial court primarily focused its substantial harm analysis on 

Father‟s past lack of child support payments prior to the court‟s order requiring such 

child support payments. While noting that Father did provide for the Children‟s needs 

during their visits with him, the trial court determined that Father “opted” to allow 

Grandfather to support the Children. The court found that this “abandonment” by Father, 

coupled with his work schedule, resulted in a determination that the Children would be 

subjected to a risk of substantial harm if placed in Father‟s custody.4

With regard to child support, Father stated that he had never been ordered to pay 

child support and had never been contacted by the Department of Human Services

regarding support. Although there is no prior order requiring Father to pay child support, 

 

4 The trial court also declared that “[t]he length of time that the children have been with the [m]aternal 

grandfather in an apparently satisfactory and stable environment weighs heavily in the Court‟s analysis.” 

We note, however, that “[e]vidence that [a child] will be harmed from a change in custody because she 

has lived and bonded with [non-parents] cannot constitute the substantial harm required to prevent the 

parents from regaining custody.” In re Adoption of A.M.H., 215 S.W.3d 793, 812 (Tenn. 2007).
20

“[a] parent‟s obligation to support his or her child exists regardless of a court order 

requiring the parent to pay support.” See In re Jacobe M.J., 434 S.W.3d 565, 572 (Tenn. 

Ct. App. 2013) (quoting Tenn. Code Ann. § 36-1-102(1)(H)). Furthermore, “[e]very 

parent who is eighteen (18) years of age or older is presumed to have knowledge of a 

parent‟s legal obligation to support such parent‟s child or children.” Id.

Father also testified, however, that he had repeatedly asked Mother to allow him to 

have custody of the Children through the years so that he could take care of them and 

provide for their needs. Father stated that Mother instead chose to send the Children to 

live with Grandfather, at times without Father‟s knowledge.5 Father testified that he 

earned an income of approximately $60,000 per year and was capable of providing for all 

of the Children‟s needs. Furthermore, it is undisputed that Father provided for the needs 

of the Children during their visits with him, some of which lasted longer than one month. 

Grandfather acknowledged that he felt “confident” that the Children were well cared for 

when they were with Father. Father also testified that he purchased clothing, toys, and 

gifts for the Children that Grandfather refused to allow the Children to take to 

Grandfather‟s home.

Father admitted that part of his reluctance to pay child support to Grandfather was 

because Grandfather thwarted his attempts to visit the Children and referred to Father as a 

“sperm donor.” During his testimony, Grandfather acknowledged that there had been 

times when Father had asked to see the Children but Grandfather refused his requests. 

Although Grandfather‟s behavior does not justify Father‟s non-payment of child support,6

it does negate Grandfather‟s and Mother‟s assertions that Father “abandoned” the 

Children or would fail to support the Children if they were in his custody. Father has 

demonstrated through the years that he is competent to provide for the Children while

they are in his care. Father has also demonstrated a consistent desire to spend time with 

the Children when allowed to do so. Thus, Father‟s past failure to pay child support, 

standing alone, is insufficient to establish substantial harm.

With regard to Father‟s work schedule, the trial court stated that Father‟s twoweek-on, two-week-off schedule “essentially requires the Court to choose between the 

maternal grandfather and the paternal great-grandmother whom the Father has indicated 

would care for the children while he was working on the oil rig.” The court made this 

 

5

Father reported that when Mother returned the Children to Grandfather‟s physical custody in April 2014, 

Father was not informed and was unable to locate Mother or the Children until he contacted the local

sheriff‟s department. 

6

“Under well-recognized principles of Tennessee law, the obligation of support and the right of visitation 

are both intended for the benefit of the child, and the two are not interdependent.” Rutledge v. Barrett, 

802 S.W.2d 604, 607 (Tenn. 1991).
21

finding despite Father‟s testimony that he was willing to seek full-time employment in 

Louisiana if the Children were placed in his care and despite the substantial support 

system that Father and the Children would enjoy due to the presence of the paternal 

grandmother and great-grandmother. Grandfather acknowledged that he related well to

Father‟s family and offered no concerns about their influence on the Children. 

Grandfather also admitted that the Children always enjoyed their co-parenting time with 

Father and his family. We therefore determine that a finding of substantial harm is not 

supported by clear and convincing evidence.

Furthermore, Father testified that he had excellent medical and dental insurance 

through his employer that would be available to the Children. Father stated that although 

he had attempted to have the Children added to his medical insurance coverage, he was 

unable inasmuch as Grandfather would not provide copies of the Children‟s birth 

certificates. Father testified that while he was prepared to purchase a home for himself 

and the Children, his grandmother‟s home provided plenty of room for everyone in the 

meantime. According to Father, he and the Children maintained a strong bond and the 

Children became extremely upset when it was time to leave him. Father also testified 

that Grandfather limited his contact with the Children via telephone and that the Children 

reported that they would “get in trouble” if they asked to call Father or send him mail. It 

was undisputed that in recent years, Grandfather refused Father‟s requests for additional 

visitation, even though Grandfather acknowledged that Father loved the Children and that 

the Children loved Father and enjoyed their time with him. 

It is also noteworthy that Mother and Grandfather presented no evidence regarding 

any history of drug abuse, alcohol abuse, or criminal behavior by Father. At the final 

hearing, Mother testified that Father had physically pushed her when she was pregnant 

with K.S. and committed some other prior act of assault. Father testified, however, that it 

was actually Mother who assaulted him, which precipitated his leaving Tennessee and 

returning to Louisiana. Mother acknowledged that she had been charged with domestic 

assault approximately three years before trial. The trial court made no findings regarding 

this testimony. Rather, the court focused its analysis on Father‟s past nonpayment of 

support and his employment schedule. 

Based on the totality of the evidence, we determine that Mother and Grandfather 

did not clearly and convincingly establish that the Children would be exposed to a risk of 

substantial harm if they were placed in Father‟s care. See Elmore, 173 S.W.3d at 451;

Ray, 83 S.W.3d at 736-738. We conclude that the trial court erred by granting primary 

custody of the Children to Grandfather, who is a non-parent. We therefore reverse the 

trial court‟s award of custody to Grandfather and remand this matter for a hearing 

regarding whether a material change in circumstance has occurred since the initial 

custody award and whether modifying the designation of primary residential parent from 
22

Mother to Father is in the Children‟s best interest. See Muhonen, 2015 WL 740667, at 

*5-6. The court should also establish an appropriate permanent parenting plan, to include 

the proper amount of child support to be awarded pursuant to the applicable guidelines, 

such child support issue having been reserved in the 2010 “Order Establishing 

Parentage.”

VI. Name Change

Father asserts that the trial court erred by refusing to change the Children‟s 

surnames from “Smith” to “Vinson” in accordance with the earlier parentage order. 

Father relies upon the doctrine of collateral estoppel, arguing that the earlier order had

become final prior to the instant proceedings. Mother and Grandfather assert that the 

parentage order upon which Father relies merely provided that Father could change the 

Children‟s surnames, which task Father failed to accomplish. We note that inasmuch as 

the 2010 parentage order reserved the issue of child support, it was not a final order. See

Tenn. R. App. P. 3(a); In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003)

(explaining that a final judgment is “one that resolves all the issues in the case, „leaving 

nothing else for the trial court to do.‟”) (quoting State ex rel. McAllister v. Goode, 968 

S.W.2d 834, 840 (Tenn. Ct. App. 1997)). Therefore, the doctrine of collateral estoppel 

does not apply. See Glass v. SunTrust Bank, No. W2010-02527-COA-R3-CV, 2011 WL 

3793495, at *1 (Tenn. Ct. App. Aug. 26, 2011).

Mother and Grandfather further posit that a court should not change a child‟s 

surname unless such change promotes the child‟s best interest. See Halloran v. Kostka, 

778 S.W.2d 454, 456 (Tenn. Ct. App. 1988) (“[I]n making a decision such as this that 

will impact on a child‟s life, paramount consideration must be given to what is in the best 

interest of the child, and the rights of the parents must yield to that concern.”). Although 

the trial court in its final order briefly addressed the best interest of the Children with 

regard to changing their surnames, we determine that this issue should be revisited by the 

trial court upon remand in connection with the court‟s analysis of whether a material 

change in circumstance has occurred. We therefore vacate the trial court‟s determination 

regarding changing the Children‟s surnames and remand this issue for further hearing, 

including presentation of proof regarding the best interest of the Children relative to this 

issue.

VII. Retroactive Child Support

Finally, Grandfather argues that the trial court erred by failing to order Father to 

pay retroactive child support. Although Grandfather sought retroactive support in his 

pleadings, the trial court specifically found in its final order that no retroactive support 

would be awarded. Based upon this Court‟s reversal of the award of custody to 
23

Grandfather, we affirm the trial court‟s denial of an award of retroactive child support to 

Grandfather. We conclude that it would be inappropriate to award Grandfather 

retroactive child support in this instance.

VIII. Conclusion

For the foregoing reasons, we reverse the trial court‟s award of primary custody of 

the Children to Grandfather. We remand this matter for a hearing regarding whether a 

material change in circumstance has occurred since the initial custody award and whether 

modifying the designation of primary residential parent from Mother to Father is in the 

Children‟s best interest. Upon remand, the court should also establish an appropriate 

permanent parenting plan, to include the proper amount of child support to be awarded 

pursuant to the applicable guidelines, such child support issue having been reserved in the 

2010 “Order Establishing Parentage.” We also remand for reconsideration of whether it 

is in the best interest of the Children to change their surnames. We affirm the denial of

retroactive child support to Grandfather. This matter is remanded to the trial court for 

further proceedings consistent with this opinion. Costs on appeal are assessed to the 

appellee, Richard Smith.

_________________________________ 

THOMAS R. FRIERSON, II, JUDGE