IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 7, 2017 Session

IN RE CALEB F. ET AL.

Appeal from the Juvenile Court for Montgomery County

No. 14-JV-794, 14-JV-795 Timothy K. Barnes, Judge

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No. M2016-01584-COA-R3-JV

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Shortly after entry of an agreed permanent parenting plan, Father filed a petition to find 

Mother in contempt and to modify the parenting plan. The petition alleged that a material 

change in circumstance had occurred since the adoption of the agreed plan, such as 

Mother allegedly interfering with Father’s parenting time. The juvenile court found a 

material change in circumstance had occurred and modified the parenting plan by 

increasing Father’s parenting time. From this ruling, Father appealed, claiming that the 

court erred by not granting him equal parenting time. Because the court’s order

modifying the plan contains insufficient findings of fact and conclusions of law, we 

vacate and remand.

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

Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY B. BENNETT

and RICHARD H. DINKINS, JJ., joined.

Sharon T. Massey, Clarksville, Tennessee, for the appellant, Bryan F.

Mark R. Olson and Taylor R. Dahl, Clarksville, Tennessee, for the appellee, Kera S.

OPINION

I.

On December 18, 2014, Bryan F. (“Father”) filed a petition in the Juvenile Court 

for Montgomery County, Tennessee, for civil contempt against Kera S. (“Mother”) and 

for modification of permanent parenting plan. The plan, which had been approved by an

11/28/2017
2

October 8, 2014 order, addressed the parties’ two children: Caleb F., born in May 2007,

and Jack F., born in February 2009 (together, the “children”). According to the order 

approving the plan, the parties had “reached a substantial agreement with regard to the 

terms of the [plan].” The plan designated Mother as the primary residential parent and 

awarded her 295 days of parenting time each year, while Father received 70 days.

In his modification petition, Father alleged that Mother had “willfully violated the 

Court’s Order and plan as follows”:

a. By denying the Father his allotted parenting time;

b. By denying the Father the ability to communicate with the children by 

phone or other means;

c. By demeaning the Father to the children and instructing them to lie to 

him[;]

d. By harassing the Father to his Army superiors about child support 

despite his compliance with the Court’s Order;

e. By failing or refusing to inform Father of medical emergencies of 

children;

f. Mother is intentionally scheduling events and appointments for children 

on Father’s days of visitation.

Based on these allegations, Father asserted that a material change in circumstance

warranted a modification of the parties’ agreed parenting plan. Father sought, among 

other things, “more time with the children” and a “recalculat[ion of] any award of child 

support arrearages based upon any re-calculated child support figures resulting from this 

petition.” 

Mother filed a response, generally denying all material allegations in Father’s 

petition. She counter-petitioned for civil and criminal contempt, alleging that Father 

abused the children and requesting that Father’s parenting time be supervised.1 

A.

The juvenile court held a trial over three days in August and November of 2015 

and in January of 2016. The first day of the trial focused primarily, not on the allegations 

of Father’s petition, but on a concern identified by the children’s guardian ad litem. 

Calling the case “the strangest” he had ever seen, the GAL stated he had “grave 

concerns” for the children. In opening statements, the GAL asserted that the children 

 

1 The day following the filing of the petition for modification, the Kentucky Cabinet for Health 

and Family Services received a report of suspected child abuse or neglect involving Father and his then 

girlfriend. The court suspended Father’s parenting time as a result. Following an investigation, the 

Cabinet for Health and Family Services found the allegations to be “unsubstantiated,” and the court 

permitted Father to resume his parenting time. 
3

acted “vastly different” in Mother’s care as opposed to Father’s care. In Mother’s care, 

the children were “very much out of control,” but with Father, the children acted “like 

appropriate children.” With respect to Caleb, who had been diagnosed with autism, 

specifically, the GAL questioned “whether the conditions for which Caleb ha[d] been 

diagnosed truly exist[].” The GAL could not understand how “someone with autism 

c[ould] turn that off depending on which parent they [we]re with.”2 

The testimony during the first day of trial largely corroborated the GAL’s 

impressions. Two therapists and a case manager from Health Connect America testified 

that, when the children were with Father, they were respectful and well-behaved. But, 

when the children were under Mother’s care, the children acted unruly and defiant. 

According to the testimony, the children would throw tantrums, squeal, moan, run around 

the office, and kick and hit each other and Mother. 

One therapist opined that Mother “enables” the children’s behavior, and she 

recommended that Mother have a mental health assessment. The other therapist was of 

the opinion that Mother’s “anxieties and her hatred towards [Father]” were detrimental to 

the children’s mental health. She also recommended that Mother be mentally evaluated. 

The second day of testimony undercut many, if not all of the concerns, expressed 

by the witnesses from Health Connect America. A psychologist, who gave Mother a

psychological assessment after the first day of trial, stated that she found nothing 

abnormal with Mother. When asked to square her assessment with the concerns 

expressed by the Health Connect America witnesses, the psychologist testified that the 

Health Connect America witnesses may have made assumptions about how Mother was 

parenting, without speaking to Mother. And, in the psychologist’s view, some of the 

statements by the Health Connect America witnesses “were not based on anything other 

than speculation.” 

The psychologist also explained why the children might behave differently in the 

care of Mother and Father. In the psychologist’s view, it was not uncommon for children 

to exhibit different behaviors in the home of one parent versus the home of the other. 

The behavioral difference could be attributed to the fact that Mother had dealt with the 

children all their lives whereas Father was relatively new to their lives. The psychologist 

also pointed to the difference in the voice used by a father versus a mother and the 

expectations that each parent might be placing on the children. 

 

Only on the last day of the trial did the evidence focus on Father’s reasons for 

seeking a modification of the parenting plan. Father asserted that Mother interfered with 

his parenting time. He cited an incident on December 10, 2014, when Mother was not 

home at an agreed-upon time for exchange of the children and failed to contact him. But 

 

2 During the course of the trial, Father stipulated that Caleb was autistic. 
4

Mother explained that she took the children’s half-brother to the emergency room for a 

chest x-ray. While at the hospital, Mother also had Caleb seen because of an asthma 

attack earlier in the day at school. To establish that she communicated these events to 

Father, Mother entered into evidence her phone records. The phone records included a 

text message sent to Father forty minutes prior to the exchange time detailing their 

whereabouts and showed a three-minute phone call to Father’s phone later that day. 

Father also accused Mother of not giving him the children on another occasion 

around Thanksgiving when they did not have school. Under the agreed parenting plan, 

Father exercised parenting time with the children on non-school days other than specified 

holidays. According to Mother, only Jack was out of school the day Father referenced. 

In addition, because it was close to the Thanksgiving break, which under the plan 

alternated between Mother and Father, Mother did not believe that Father was entitled to 

have the children for that additional day. 

Although the parenting plan allowed Father two phone calls per week, Father 

complained that Mother would sometimes not answer the phone. According to Father, 

when Mother did answer, she would either refuse to let him speak to the children, make 

noise in the background during the call, or cut the call short. 

Father testified to other complaints regarding Mother. Father claimed Mother 

would tell the children that she could not buy Christmas presents because of Father’s 

failure to pay child support and that she called Father a liar in the children’s presence. 

During Father’s time in the military, Mother contacted Father’s superiors regarding past 

due child support. Father also alleged that Mother did not keep him adequately informed

about the children while they were in her care. Father complained that Mother failed to 

advise him of Caleb’s asthma attack at school until after the fact and that Mother did not 

give adequate notice of changes in the children’s extracurricular activities. 

Mother testified that it was difficult to communicate with Father because he would 

use obscene words and call her names. She admitted that her conduct when interacting 

with Father and his wife had been inappropriate on occasion, such as “flipp[ing them] 

off” at an exchange. Mother explained that Father and his wife videotaped the 

exchanges, which irritated Mother. But Mother denied ever interfering with Father’s 

parenting time and, in fact, claimed to have offered him more time than he was entitled to 

receive. Mother also complained that Father undermined her parenting and told the 

children she was a liar. 

B.

At the conclusion of trial, the juvenile court announced that it would modify the 

permanent parenting plan. Among other things, the court stated its purpose was “to try to 
5

do what’s in the best interests of these children, particularly Caleb.” On May 4, 2016, the 

court entered its “Final Order,” making the following findings: 

The Court found, by a preponderance of the evidence, that the 

children exhibit different behavior with the Father than with the Mother. 

The Court found that there is not sufficient evidence to conclude that the 

Mother has been doing anything wrong with regard to parenting the 

children. No expert testimony was presented related to any deficiency of 

the Mother. The testimony showed that the Mother’s parenting has been 

appropriate.

There has been a material change of circumstances which would 

warrant a modification of the current Permanent Parenting Plan. 

The order then modified the parenting plan by increasing Father’s parenting time to 120 

days and correspondingly decreasing Mother’s parenting time to 245 days. The court set 

child support at $977 per month and awarded retroactive child support. In addition, the 

court ordered the parties to split equally the cost of Caleb’s private school education.

From this decision, Father filed a notice of appeal. Father argues that the court 

abused its discretion by not ordering equal parenting time and that the court’s “ruling was 

erroneous, contrary to the weight of evidence and not supported by the record.”

II.

A.

As an initial matter, we must address Mother’s argument that Father’s notice of 

appeal was untimely. An untimely notice of appeal deprives us of subject matter 

jurisdiction over the appeal. Ball v. McDowell, 288 S.W.3d 833, 836 (Tenn. 2009). 

Subject matter jurisdiction implicates our power to adjudicate a particular type of case or 

controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Toms v. Toms, 98 

S.W.3d 140, 143 (Tenn. 2003); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 

2000). If we lack subject matter jurisdiction, we are required to dismiss the appeal. See 

Tenn. R. App. P. 3(e); Arfken & Assocs., P.A. v. Simpson Bridge Co., Inc., 85 S.W.3d 

789, 791 (Tenn. Ct. App. 2002). 

The thirty-day period in which a party aggrieved by the final judgment must file 

either a post-trial motion or a notice of an appeal begins with the entry of a final 

judgment. See Tenn. R. Civ. P. 59.02; Tenn. R. App. P. 4(a)-(b). Mother points out that 

the “Final Order” adopting the modified permanent plan was entered on May 4, 2016, but 

Father did not file his notice of appeal until July 27, 2016. Consequently, our analysis of 
6

whether this appeal was timely turns on whether the “Final Order” constituted a final 

judgment.

We conclude that the “Final Order” was not a final judgment.3 The Tennessee 

Rules of Appellate Procedure define “final judgment” by exclusion. A final judgment is 

not an “order that adjudicates fewer than all the claims or the rights and liabilities of 

fewer than all the parties.” Tenn. R. App. P. 3(a). Orders that resolve fewer than all 

claims or the rights and liabilities of fewer than all the parties are “subject to revision at 

any time before entry of a final judgment adjudicating all the claims, rights, and liabilities 

of all parties.” Id. Our Supreme Court has described a final judgment as a judgment 

“that resolves all of the parties’ claims and leaves the court with nothing to adjudicate.” 

Ball, 288 S.W.3d at 836-37. 

Clearly, the court’s May 4, 2016 order did not resolve the parties’ claims. The 

order did not address Mother’s counter-petition for contempt and request that Father’s 

parenting time be supervised. While this case was pending on appeal, this Court 

“identified at least four issues that appear to remain unresolved.” And as a result, on 

October 25, 2016, we ordered the parties to obtain from the juvenile court a final order 

disposing of all the pending claims and motions. On November 23, 2016, the court 

entered an order disposing of outstanding motions and requests for relief. With the entry 

of the November 23, 2016 order, Father’s prematurely filed notice of appeal was treated 

as filed as of November 23, 2016. See Tenn. R. App. P. 4(d). 

Alternatively, Mother argues that, because Father’s notice of appeal does not 

reference the “Final Order” entered on May 4, 2016, the scope of his appeal is limited to 

matters addressed in an order that was referenced in the notice.4 See id. 3(f) (“The notice 

of appeal . . . shall designate the judgment from which relief is sought[.]”). We disagree. 

The notice of appeal is not a “review-limiting device.” Id. 13(a) advisory committee cmt. 

(“[O]nce any party files a notice of appeal the appellate court may consider the case as a 

whole.”); Thompson v. Logan, No. M2005-02379-COA-R3-CV, 2007 WL 2405130, at 

 

3 Mother also argues that no Rule 59 post-trial motion was filed within thirty days of the May 4 

order to extend the deadline for the filing of the notice of appeal. Certain post-judgment motions, if 

timely made, will toll the commencement of the thirty-day period for filing the notice of appeal until the 

trial court adjudicates the pending post-judgment motion. Tenn. R. Civ. P. 59.01; Tenn. R. App. P. 4(b). 

Because of our conclusion that the May 4 order was not a final judgment, this argument is similarly 

unavailing.

4

Father’s notice of appeal referenced a “final judgment of the Juvenile Court of Montgomery 

County filed on the 1

st day of July.” The record contains no final judgment filed or entered on that date. 

Mother posits that Father’s notice of appeal may be referring to an order that was entered on July 8, 2016, 

following a hearing that occurred on July 1, 2016. The July 8, 2016 order addressed, among other things, 

Caleb’s schooling and Father’s child support obligation. 
7

*16 (Tenn. Ct. App. Aug. 23, 2007) (“[A]n appeal from a final judgment brings up all 

pre-judgment orders or decisions, and any question of law or fact may be considered.”).

B.

We now turn to Father’s issues on appeal. We review the trial court’s factual 

findings de novo on the record, with a presumption of correctness, unless the evidence 

preponderates otherwise. Tenn. R. App. P. 13(d); see, e.g., Armbrister v. Armbrister, 414 

S.W.3d 685, 692 (Tenn. 2013). Evidence preponderates against a trial court’s finding of 

fact when it “support[s] another finding of fact with greater convincing effect.” Watson 

v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005). In weighing the preponderance 

of the evidence, determinations of witness credibility are given great weight, and they 

will not be overturned without clear and convincing evidence to the contrary. In re 

Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). We review the trial court’s 

conclusions of law de novo, with no presumption of correctness. Armbrister, 414 S.W.3d 

at 692.

Trial courts have wide discretion in fashioning parenting plans. Marlow v. 

Parkinson, 236 S.W.3d 744, 748 (Tenn. Ct. App. 2007) (citing Parker v. Parker, 986 

S.W.2d 557, 563 (Tenn. 1999)). We do not interfere with these decisions except upon a 

showing of abuse of that discretion. See, e.g., Suttles v. Suttles, 748 S.W.2d 427, 429 

(Tenn. 1988). A trial court abuses its discretion only if it: (1) applies an incorrect legal 

standard; (2) reaches an illogical conclusion; (3) bases its decision on a clearly erroneous 

assessment of the evidence; or (4) employs reasoning that causes an injustice to the 

complaining party. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 

346, 358 (Tenn. 2008); see also Kline v. Eyrich, 69 S.W.3d 197, 203-04 (Tenn. 2002); 

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). In other words, if “reasonable 

minds can disagree as to [the] propriety of the decision made,” the trial court’s ruling will 

be upheld. Eldridge, 42 S.W.3d at 85 (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn. 

2000)).

Regrettably, in this case our review is hampered by the juvenile court’s failure to 

make specific findings of fact and conclusions of law. As noted by Mother in her brief, 

the court did specify the material change of circumstance that potentially justified 

modification of the agreed permanent parenting plan. And as noted by both parties, the 

court did not specify the statutory best interest factors upon which it relied in making a 

determination of the children’s best interests. The court also failed to find that the plan as 

modified was in the children’s best interest. 

Tennessee Rule of Civil Procedure 52.015requires trial courts to make findings of 

fact and conclusions of law, even if neither party requests them. See, e.g., Ward v. Ward, 

 

5 The Tennessee Rules of Civil Procedure governed this proceeding under Tennessee Rule of 
8

No. M2012-01184-COA-R3-CV, 2013 WL 3198157, at *14 (Tenn. Ct. App. June 20, 

2013). Rule 52.01 provides, in relevant part, “In all actions tried upon the facts without a 

jury, the court shall find the facts specially and shall state separately its conclusions of 

law and direct the entry of the appropriate judgment.” Tenn. R. Civ. P. 52.01. “Simply 

stating the trial court’s decision, without more, does not fulfill this mandate.” Barnes v. 

Barnes, No. M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 (Tenn. Ct. App. Oct. 

24, 2012). 

“[F]indings of fact are particularly important in cases involving the custody and 

parenting schedule of children, as these determinations often hinge on subtle factors, 

including the parents’ demeanor and credibility during [the] proceedings.” In re Connor 

S.L., No. W2012-00587-COA-R3-JV, 2012 WL 5462839, at *4 (Tenn. Ct. App. Nov. 8, 

2012) (quoting Hyde v. Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905, at 

*3 (Tenn. Ct. App. Oct. 12, 2010)). The parties themselves deserve to know the factual 

basis for the trial court’s decision on such important matters. Ward, 2013 WL 3198157 

at *15. Trial courts also need to be as “precise as possible in making child custody 

findings” in order to facilitate appellate review. In re Elaina M., No. M2010-01880-

COA-R3-JV, 2011 WL 5071901, at 88 (Tenn. Ct. App. Oct. 25, 2011).

Under Rule 52.01, the trial court’s order should indicate why and how it reached a 

decision, and which factual findings led the court to rule as it did. Pandey v. Shrivastava, 

No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *4 (Tenn. Ct. App. Feb. 22, 

2013). Although the court need not list every applicable statutory factor and an 

accompanying conclusion for each factor, the trial court is required to “consider all 

applicable factors.” Id. (quoting In re Connor S.L., 2012 WL 5462839, at *4). But we 

have no indication that a trial court has considered all applicable statutory factors apart 

from its written order. Anil Const., Inc. v. McCollum, No. W2013-01447-COA-R3-CV, 

2014 WL 3928726, at *8 (Tenn. Ct. App. Aug. 7, 2014) (“It is well-settled that a trial 

court speaks through its written orders—not through oral statements contained in the 

transcripts—and that the appellate court reviews the trial court’s written orders.”) (citing 

Alexander v. JB Partners, 380 S.W.3d 772, 777 (Tenn. Ct. App. 2011); Palmer v. 

Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977)).

If we cannot determine from the trial court’s written order what legal standard it 

applied or what reasoning it employed, then the trial court has not complied with Rule 

52.01. See Ray v. Ray, No. M2013-01828-COA-R3-CV, 2014 WL 5481122, at *16 

(Tenn. Ct. App. Oct. 28, 2014). The reviewing court must be able to ascertain “the steps 

by which the trial court reached its ultimate conclusion on each factual issue.” Lovlace v. 

Copley, 418 S.W.3d 1, 35 (Tenn. 2013) (quoting 9C CHARLES ALAN WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 2579, at 328 (3d ed. 2005)). 

“Without such findings and conclusions, this court is left to wonder on what basis the 

 

Juvenile Practice and Procedure 101(c)(3)(D). 
9

[trial] court reached its ultimate decision.” Hardin v. Hardin, W2012-00273-COA-R3-

CV, 2012 WL 6727533, at *3 (Tenn. Ct. App. Dec. 27, 2102) (quoting In re K.H., No.

W2008-01144-COA-R3-PT, 2009 WL 1362314, at 88 (Tenn. Ct. App. May 15, 2009)). 

We face precisely that scenario in this case.

Here, we are left to wonder what material change in circumstance prompted the 

court’s decision to modify the parties’ agreed permanent parenting plan. Only a short 

period of time had elapsed between the approval of the plan and Father’s petition to 

modify. Father’s petition alleged various acts by Mother, such as interference with his 

parenting time and harassment. But the court made no factual findings regarding Father’s 

allegations, did not assess witnesses’ credibility, and made no mention of the statutory 

best interest factors that should have directed its decision. Tenn. Code Ann. § 36-6-

106(a) (2017); see also Pandey, 2013 WL 657799, at *4. Although Father presented 

evidence at trial, and the court found, that the children behaved differently when they 

were with Father than when they were with Mother, the court also found that Mother’s 

parenting was appropriate. Because the court did not make sufficient findings of fact or 

conclusions of law to explain its decision, we cannot discern whether the court erred or 

abused its discretion.

Although “the appellate court may choose to conduct its own independent review 

of the record” in the absence of sufficient findings of fact, it is not prudent to do so in this 

case. Williams v. Singler, No. W2012-01253-COA-R3-JV, 2013 WL 3927934, at *10 

(Tenn. Ct. App. July 31, 2013); see also Lovlace, 418 S.W.3d at 36; Brooks v. Brooks, 

992 S.W.2d 403, 404-05 (Tenn. 1999); Coley v. Coley, No. M2007-00655-COA-R3-CV, 

2008 WL 5206297, at *6 (Tenn. Ct. App. Dec. 12, 2008). Unlike other cases in which 

we have conducted an independent review, this record lacks conclusions of law and 

assessments of the witnesses’ credibility. Without these determinations, we are illequipped to conduct an independent review of the record.

Thus we vacate the juvenile court’s order and remand for entry of an order in 

compliance with Rule 52.01. See Pandey, 2013 WL 657799, at *5-6; Hardin, 2012 WL 

6727533, at *6; In re Connor S.L., 2012 WL 5462839, at *4; Simpson v. Fowler, No. 

W2011-02112-COA-R3-CV, 2012 WL 3675321, *4 (Tenn. Ct. App. Aug. 28, 2012). 

Pending entry of the trial court’s order on remand, the provisions of the current parenting 

plan entered on May 4, 2016, will remain in effect as a temporary order.

C.

Mother requests that this Court grant her an award of attorney’s fees on appeal. 

We have discretion under Tennessee Code Annotated § 36-5-103(c) to award a prevailing 

party fees incurred on appeal. Pippin v. Pippin, 277 S.W.3d 398, 407 (Tenn. Ct. App. 

2008); Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App. 2004). We consider the 

following factors in our decision to award fees: (1) the requesting party’s ability to pay 
10

the accrued fees; (2) the requesting party’s success in the appeal; (3) whether the 

requesting party sought the appeal in good faith; and (4) any other relevant equitable 

factors. Hill v. Hill, No. M2006-02753-COA-R3-CV, 2007 WL 4404097, at *6 (Tenn. 

Ct. App. Dec. 17, 2007). In light of these factors and our decision to vacate and remand 

the juvenile court’s judgment, we decline to award Mother her attorney’s fees incurred on 

appeal. 

III.

Based on the foregoing, we vacate the judgment of the juvenile court and remand 

for all further proceedings as may be necessary and consistent with this opinion. The 

current permanent parenting plan will remain in effect pending the entry of an order 

containing the necessary findings of fact and conclusions of law. 

_________________________________

W. NEAL MCBRAYER, JUDGE