IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 20, 2021 Session

MATTHEW KEITH ALLYN v. KATHRYN ANNE DONAHUE

Appeal from the Circuit Court for Montgomery County

No. CC-18-CV-380 Kathryn Wall Olita, Judge

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No. M2019-02229-COA-R3-CV

___________________________________

This case involves a petition to modify a parenting plan. Specifically, Father filed a petition 

to modify the parties’ residential parenting schedule, arguing that a material change of 

circumstances had occurred. After a hearing on the matter, the trial court found that Father 

had failed to prove a material change of circumstances by a preponderance of the evidence 

as required by Tennessee Code Annotated section 36-6-101(a)(2)(C). For the reasons 

contained herein, we affirm the trial court. 

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

Affirmed and Remanded 

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY 

and KENNY ARMSTRONG, J., joined.

B. Nathan Hunt and Catherine W. Cheney, Clarksville, Tennessee, for the appellant, 

Matthew Keith Allyn.

Brandi L. Jones, Springfield, Tennessee, for the appellee, Kathryn Anne Donahue.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

Matthew Keith Allyn (“Father”) and Kathryn Anne Donahue (“Mother”) were 

previously married and are the parents of three minor children. Prior to the parties’ divorce, 

Mother left the state of Tennessee with the parties’ children and relocated to New York 

state. Father later filed a complaint for divorce in the Circuit Court of Montgomery County, 

Tennessee. Mother followed with a separate custody action in New York, which was 

ultimately dismissed due to lack of jurisdiction. 

02/26/2021
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On September 25, 2018, the parties attended mediation and entered into an

agreement settling their parenting issues, which was later incorporated into the permanent 

parenting plan entered by the trial court. The agreed parenting plan named Mother as the 

primary residential parent and awarded Father thirty days of supervised visitation per year. 

Father’s visitation was to be in New York, where the minor children reside with Mother, 

and supervised by Father’s mother and grandmother. Notably, a portion of Section J of the

parties’ parenting plan states, in pertinent part, 

[t]he parties agree that Father shall undergo a psychological evaluation and 

an alcohol and drug assessment, and Father agrees to follow all of the 

recommendations of the respective professionals. Upon Father providing 

proof of completion of the above requirements and compliance with all 

recommendations thereof, then this shall constitute a material change in 

circumstances warranting modification of this parenting plan. 

The day following the parties’ entry into the settlement agreement, Father 

underwent an alcohol and drug assessment at Bradford Health Services in Clarksville. The 

results of this assessment were negative, specifically stating that, “[i]t appears that this 

individual does not meet clinical criteria for substance abuse treatment at this time.” Father 

also underwent a psychological evaluation on or about October 11, 2018, where it was 

recommended that he attend two outpatient therapy sessions. Upon completion of these 

sessions, it was stated that Father would be discharged if no further issues presented 

themselves.1 Ultimately, on December 7, 2018, the trial court entered the final decree of 

divorce and approved the permanent parenting plan. 

On January 9, 2019, barely a month after the final decree of divorce had been 

entered, Father filed a petition to modify the visitation provisions of the parenting plan as 

well as his child support obligation, alleging that a material change of circumstances had 

occurred based on Section J of the parenting plan. Mother responded to Father’s petition 

and also petitioned the court for criminal contempt, alleging that Father was in willful 

violation of two separate provisions of the parenting plan. In October of 2019, almost ten 

months after filing his petition, Father received an honorable discharge from the army and 

returned to his home state of Colorado. 

A final hearing on the matter was held on November 12, 2019. Both parties, as well 

as members of their respective families, testified at the hearing. According to Mother’s 

testimony, when she made the decision to leave Tennessee and return to New York, it was 

because she felt that it was unsafe for the parties’ children to remain with Father, citing a 

combination of Father’s anger, drinking, and misuse of guns. Mother also noted that Father 

had never taken care of all three of the children at the same time alone and that she had 

 

1 Later, at the hearing on the motion to modify the parties’ parenting plan, Father testified that he 

had in fact attended these sessions and was subsequently discharged as there were no further issues. 
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seen him “very frustrated” and “slamming doors” while trying to care for them. Mother 

also testified as to her reasoning for insisting upon certain provisions being included in the 

parenting plan. She cited specific incidents where Father had a loaded gun within reach of 

the children and believed that his use of weapons was unsafe when combined with his anger 

and drinking. Mother’s testimony was further supported by her father who also testified 

concerning Father’s misuse of guns and mixing guns with alcohol. Father’s own mother 

testified as to the fights between the parties, noting that she wished that Father had “more 

patience” and needed to work on his “controlling” nature. Finally, Father’s grandmother 

similarly testified as to Father’s “extensive heavy, heavy drinking.” 

During his testimony, Father discussed the burdens he allegedly faced under the 

current provisions of the parenting plan. Specifically, he noted the costs of traveling to 

New York along with his mother and grandmother for every visit. As such, he contended 

that the parenting plan as is was no longer feasible. However, when questioned as to what 

changed between the entry of the final decree of divorce and the filing of his petition for 

modification, Father only stated that, “[w]hat changed is I sold a lot of my tools to try to 

make things right.” Father also claimed that he had complied with the requirements set 

forth in Section J of the parenting plan. In support of this, Father introduced a memorandum 

from Health Connect America concerning his clinical assessment. According to this 

memorandum, Father was “recommended, and agreed to attend, 2 Outpatient therapy 

sessions to process his current situation.” The memorandum provides that, upon 

completion of these sessions, Father would be discharged if no other issues were present, 

and Health Connect America would thereafter provide a progress report and discharge 

summary. Thus, it was Father’s position that he was in compliance with Section J of the 

parenting plan and a material change had thus occurred such that it was now appropriate to 

revise the plan. 

Ultimately, after hearing testimony from both parties and their respective witnesses, 

the trial court dismissed Father’s petition to modify the parenting plan, finding that a 

material change had not been established.2 In its order, the trial court noted that, while 

Father testified that he had attended the two outpatient sessions as recommended, he did 

not introduce into evidence any documentation as to the progress report or discharge 

summary. Furthermore, Father presented no evidence at trial that established that he was 

in fact discharged from therapy. The trial court also took issue with Father’s testimony at 

trial. Specifically, it found Father to be “less than forthcoming” about numerous issues 

during his testimony, including these outpatient sessions, and also that he had “minimized” 

his potential anger issues, among others. Finally, the trial court also found there to be 

inconsistencies in Father’s testimony concerning his contention that Mother refused to 

provide him with information regarding the children’s medical treatment, as well as the 

difficulty he faced exercising his visitation rights. Ultimately, the trial court found that 

 

2

In addition to finding that no material change had occurred, the trial court also dismissed Mother’s 

petition for contempt against Father. 
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Father did not present sufficient proof to establish a material change by a preponderance 

of the evidence and, therefore, the parenting plan should not be modified.3 Father thereafter 

filed a timely notice of appeal. 

ISSUES PRESENTED

Father raises a single issue for our review on appeal:

Whether the trial court erred in finding there to be no material change of 

circumstances such as to warrant a modification of the parties’ residential 

parenting schedule.

Mother, likewise, sets forth only one issue on appeal: 

 Whether Mother is entitled to attorney’s fees for this appeal. 

STANDARD OF REVIEW 

A trial court’s findings of fact are reviewed de novo by this Court and are 

accompanied by a presumption of correctness unless the preponderance of the evidence 

indicates otherwise. Byrd v. Byrd, 184 S.W.3d 686, 691 (Tenn. Ct. App. 2005) (citing Tenn. 

R. App. P. 13(d); Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn. 

Ct. App. 2001)). A trial court’s determination as to whether a material change of 

circumstances has occurred is a factual determination and requires “careful consideration 

of numerous factors.” Brunetz v. Brunetz, 573 S.W.3d 173, 178 (Tenn. Ct. App. 2018) 

(citing In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007); Brumit v. Brumit, 948 

S.W.2d 739, 740 (Tenn. Ct. App. 1997)). As such, the trial judges who have the opportunity 

to “observe the witnesses and make credibility determinations” are deemed to be in a better 

position to make these determinations than appellate judges. Id. (citing Massey-Holt v. 

Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007)).

DISCUSSION

The Trial Court Did Not Err in Finding No Material Change of Circumstances

The threshold issue in this case concerns whether there exists a material change of 

circumstances such that the parties’ parenting plan should be modified. As our Supreme 

Court articulated in Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013),4 Tennessee 

 

3

In its order, the trial court noted that, because it determined that a material change had not been 

established, it did not reach the issue of whether it was in the children’s best interest to modify the parenting 

plan. 

4

In Armbrister, the Supreme Court notes that Tennessee Code Annotated section 36-6-101(a)(2)(C) 

abrogates any prior Tennessee decision “which may be read as requiring modification of a residential 
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Code Annotated section 36-6-101(a)(2)(C) governs requests for a modification of a court’s 

prior decree pertaining to a residential parenting schedule. See Tenn. Code Ann. § 36-6-

101(a)(2)(C); Armbrister, 414 S.W.3d at 704. In pertinent part, the statute sets forth as 

follows: 

If the issue before the court is a modification of the court’s prior decree 

pertaining to a residential parenting schedule, then the petitioner must prove 

by a preponderance of the evidence a material change of circumstance 

affecting the child’s best interest. A material change of circumstance does 

not require a showing of a substantial risk of harm to the child. A material 

change of circumstance for purposes of modification of a residential 

parenting schedule may include, but is not limited to, significant changes in 

the needs of the child over time, which may include changes relating to age; 

significant changes in the parent’s living or working condition that 

significantly affect parenting; failure to adhere to the parenting plan; or other 

circumstances making a change in the residential parenting time in the best 

interest of the child. 

Tenn. Code Ann. § 36-6-101(a)(2)(C). Thus, a petitioner requesting modification of a 

parenting plan “must prove by a preponderance of the evidence a material change of 

circumstance affecting the child’s best interest, and the change must have occurred after 

the entry of the order sought to be modified.” Gentile v. Gentile, M2014-01356-COAR3-CV, 2015 WL 8482047, at *5 (Tenn. Ct. App. Dec. 9, 2015) (citing Caldwell v. Hill, 

250 S.W.3d 865, 870 (Tenn. Ct. App. 2007)) (emphasis added). This Court has recognized 

section 36-6-101(a)(2)(C) as setting a “very low threshold for establishing a material 

change of circumstances.” Boyer v. Heimermann, 238 S.W.3d 249, 257 (Tenn. Ct. App. 

2007) (quoting Rose v. Lashlee, No. M2005-00361-COA-R3-CV, 2006 WL 2390980, at 

*2 n.3 (Tenn. Ct. App. Aug. 18, 2006)). 

Father contends that the trial court erred in determining that no material change of 

circumstances had occurred under the requirements set forth in the parties’ parenting plan. 

Not only does Father assert that he is in compliance with the requirements of the parties’ 

parenting plan, but he also supports his request for modification by noting that this Court 

has previously recognized “a very low threshold” for establishing a material change of 

 

parenting schedule to prove that the alleged change in circumstances could not reasonably have been 

anticipated when the initial residential parenting schedule was established.” Armbrister, 414 S.W.3d at 

704. Instead, the Court went on to state that, consistent with Tennessee Code Annotated section 36-6-

101(a)(2)(C), facts or changed conditions which could have been reasonably anticipated when the initial 

residential parenting schedule was adopted may be sufficient to support a finding of a material change of 

circumstances, provided that the party seeking a modification has satisfied the preponderance of the 

evidence standard set forth in the statute. Id. (citing Tenn. Code Ann. § 36-6-101(a)(2)(C) (2010)). 

However, this is merely but one factor in the analysis and is not intended to be outcome determinative. Id.

(citing Boyer v. Heimermann, 238 S.W.3d 249, 256 (Tenn. Ct. App. 2007)).
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circumstances. However, although we recognize the relatively low burden of proof 

required for the modification of a residential parenting schedule, we respectfully disagree 

with Father’s assertion that he successfully carried his burden of proof as required by 

Tennessee Code Annotated section 36-6-101(a)(2)(C). 

In his brief, Father relies on Rose v. Lashlee for the contention that Tennessee courts 

have “consistently held that ‘merely showing that the existing arrangement [is] unworkable 

for the parties is sufficient to satisfy the material change of circumstance test’” for a 

modification of a residential parenting schedule. In support of his argument, Father points 

to the testimony he provided at the trial court’s hearing on the matter. Specifically, he 

reiterates that the current parenting plan is unworkable due to the “burdens of time and 

financial cost” imposed on him and his family, and that it has interfered with his “ability 

to properly and meaningfully parent his children.” 

Addressing Father’s argument, this Court has indeed previously held that 

“[e]vidence that an existing custody and visitation arrangement is not working is sufficient 

to support a finding of material change of circumstances.” Rushing v. Rushing, No. W2003-

01413-COA-R3-CV, 2004 WL 2439309, at *5 (Tenn. Ct. App. Oct. 27, 2004) (quoting 

Turner v. Purvis, No. M2002-00023-COA-R3-CV, 2003 WL 1826223, at *4 (Tenn. Ct. 

App. Apr. 9, 2003)). However, we again refer to Tennessee Code Annotated section 36-6-

101(a)(2)(C), which clearly provides that “the petitioner must prove by a preponderance of 

the evidence a material change of circumstance[.]” See Tenn. Code Ann. § 36-6-

101(a)(2)(C) (emphasis added). Thus, while we note that a parenting plan’s unworkability 

may be sufficient to constitute a material change of circumstances, we cannot circumvent 

the statutory requirement that there must still be evidence that a change of circumstances 

has occurred.

In Hartmann v. Hartmann, No. M2018-00891-COA-R3-CV, 2019 WL 4187500 

(Tenn. Ct. App. Sept. 4, 2019), the mother filed a petition to modify the parties’ parenting 

plan based on several factors that she contended constituted a material change. While the 

trial court found that the mother had satisfied the requisite burden, this Court reversed, 

noting that only one of the changes cited by the mother had actually occurred between the 

final decree of divorce and the petition for modification. Id. at *4-5. Thereafter, we 

determined the sole change that had occurred after the entry of the final decree was not 

sufficient to warrant modification. Id. Similarly, in the present case, we do not find that the 

evidence preponderates against the trial court’s finding that a material change of 

circumstances has not occurred. The parties’ parenting plan was incorporated into the final 

decree of divorce, which was entered on December 7, 2018. Father thereafter filed a 

petition to modify said plan on January 9, 2019, barely a month after its entry. Upon review 

of the record and, more specifically, the transcripts of the hearing on the matter, we do not 

find any evidence of a material change that occurred between the entry of the final decree 

and Father’s filing of the petition to modify. In support of this conclusion, we refer back 

to Father’s own testimony, when, upon being asked what material change had occurred, he 
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testified that he had sold his tools “to make things right.” However, we do not find that his 

arguments, nor the evidence in the record, support that a material change of circumstances 

has occurred since the entry of the final decree and the parties’ parenting plan. 

Furthermore, in his brief, Father notes that the current residential parenting schedule 

not only unduly burdens him financially, but it also interferes with his ability to exercise 

his rights with his children. However, considering the evidence in its entirety, we do not 

find that Father carried his burden in regard to his request for a modification. Initially, as 

alluded to above and discussed further below, Father has not pointed to any specific 

changes in the parties’ circumstances since the entry of the final decree. Second, as to the 

proof he offered on the parties’ circumstances, we note, as did the trial court, the 

inconsistencies found in his testimony. For example, Father testified as to the difficulties 

of exercising his visitation due to the distance, but then later admitted to taking a trip to 

Panama City Beach, Florida from Montgomery County, Tennessee after the cancellation 

of one of his planned visitations. Ultimately, the trial court, when confronted with Father’s 

evidence at trial, found that it was “not able to credit Father’s testimony” due to his 

inconsistencies and combativeness when questioned.

Accordingly, we agree with the trial court that the instances cited by Father do not 

amount to a material change of circumstances, and we do not find any evidence of a 

material change of circumstances in this record. Specifically, there was barely a month 

between the entry of the parenting plan and Father’s petition, and he presents no evidence 

of a change in his financial situation since the parenting plan was first entered. Second, as 

to Father’s contention that the parenting plan is “unworkable,” we conclude that this is also 

not supported by the record. While there is undoubtedly underlying tension between the 

parties, “[a]crimony and hostility between the parties does not, in and of itself, amount to 

a material change in circumstances sufficient to permit modification or termination of 

visitation.” See Lovlace v. Copley, 418 S.W.3d 1, 32 (Tenn. 2013) (citing Rennels v. 

Rennels, 257 P.3d 396, 401-02 (Nev. 2011)). Here, there is evidence that Mother is open 

to setting a schedule for Father to have phone calls with the children and also visit the 

children. 

Father also maintains that he is entitled to a modification of the parenting plan 

because he allegedly completed the requirements set forth in Section J of the agreed plan, 

which stipulated that completion of certain requirements would constitute a material 

change of circumstances, thus warranting a modification. However, we are similarly 

unconvinced by this argument. As we pointed out earlier, Section J of the parties’ parenting 

plan provided, in pertinent part, 

[t]he parties agree that Father shall undergo a psychological evaluation and 

an alcohol and drug assessment, and Father agrees to follow all of the 

recommendations of the respective professionals. Upon Father providing 

proof of completion of the above requirements and compliance with all 
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recommendations thereof, then this shall constitute a material change in 

circumstances warranting modification of this parenting plan. 

(emphasis added). Father argues that he testified at the hearing that he had satisfied Section 

J’s requirements as he received the required assessments at Bradford Health and Health 

Connect America and had completed all of the recommendations. However, contrary to 

the bolded language of the above provision, Father did not provide evidence of completion 

of the requirements or of compliance with its recommendations. Specifically, when 

questioned regarding the required proof at trial, Father admitted that he did not have a 

progress report or a discharge summary. In its order, the trial court cited this failure, noting 

that “Father did not present proof of a successful discharge from therapy as a result of ‘no 

further issues,’ and because this Court is not able to credit Father’s testimony . . . the Court 

finds that there has been no material change in circumstances[.]” 

Consequently, based upon our own review of the record and the parties’ contentions 

set forth in their respective briefs, like the trial court, we cannot determine that there exists 

a material change of circumstances based merely upon Father’s assertion that he completed 

the requirements set forth in Section J of the parenting plan. Despite Father’s testimony 

that he had satisfied the requirements, the trial court found that “Father did not present 

proof of a successful discharge from therapy as a result of ‘no further issues’” and, more 

significantly, it found that it was “not able to credit Father’s testimony.” Trial courts are 

typically better positioned to judge the credibility of witnesses and thus, such 

determinations are “entitled to great weight” before this Court. Gaskill v. Gaskill, 936 

S.W.2d 626, 633 (Tenn. Ct. App. 1996) (citing Massengale v. Massengale, 915 S.W.2d 

818, 819 (Tenn. Ct. App. 1995); Town of Alamo v. Forcum-James Co., 327 S.W.2d 47, 49 

(Tenn. 1959)). As such, we conclude that the evidence present in the record before us does 

not preponderate against the trial court’s findings and we, therefore, affirm its order 

denying the petition to modify the parties’ residential parenting schedule. 

Mother is Entitled to Her Attorney’s Fees on Appeal

Mother contends that she is entitled to her attorney’s fees on appeal. Tennessee 

Code Annotated section 36-5-103(c) vests this Court with the discretionary authority to 

award fees and costs where we deem proper. See Shofner v. Shofner, 181 S.W.3d 703, 719 

(Tenn. Ct. App. 2004) (citing Holt v. Holt, 995 S.W.2d 68, 78 (Tenn. 1999)). We have 

previously stated:

[W]hen this Court considers whether to award attorney’s fees on appeal, we 

must be 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 that need 

be considered.”
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Spigner v. Spigner, No. E2013-02696-COA-R3-CV, 2014 WL 6882280, at *13 (Tenn. Ct. 

App. Dec. 8, 2014) (quoting Parris v. Parris, No. M2006-02068-COA-R3-CV, 2007 WL 

2713723 at *13 (Tenn. Ct. App. Sept. 18, 2007)). 

Here, Mother defended this appeal after Father sought a review of the trial court’s 

order denying modification of the parties’ parenting plan. Mother specifically requests 

attorney’s fees based on her relative ability to pay as compared to Father and Father’s 

purported bad faith in both agreeing to the parenting plan and later filing the motion to 

modify said plan.

Considering all the relevant factors and her success in defending this appeal, we 

conclude Mother is entitled to her attorney’s fees incurred in this appeal. 

CONCLUSION

For the foregoing reasons, we affirm the ruling of the trial court and award Mother 

her attorney’s fees incurred on appeal and remand this case to the trial court for a 

determination of the amount of attorney’s fees to be awarded to Mother. 

 s/ Arnold B. Goldin 

 ARNOLD B. GOLDIN, JUDGE