IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 12, 2010 Session

IN RE TYRUS V. 

Appeal from the Juvenile Court for Davidson County

No. 9619-22886 Max D. Fagan, Judge

No. M2009-00493-COA-R3-JV - Filed August 18, 2010

Mother appeals the trial court’s change of custody of the parties’ minor child to Father,

challenging the court’s best interest determination. We affirm.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which PATRICIA J. COTTRELL,

P.J., M.S., and RICHARD H. DINKINS, J., joined.

Elizabeth A. Garrett, Nashville, Tennessee, for the appellant, Katherine S.

Tyrus I.V., Antioch, Tennessee, Pro Se.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Tyrus V., born in 1995, is the minor child of Tyrus I.V. (“Father”) and Katherine S.

(“Mother”). Mother was designated the primary residential parent in a court order soon after

Tyrus V.’s birth. Father received visitation.

Father filed a Petition to Modify Child Support and Enforce Visitation Order on May

8, 2007. In the petition, Father asserted that his child support obligation of $439.00 per

month, which was set on January 12, 2005, should be modified because he lost his job and

was earning significantly less with his new employer. Father noted that he was enrolled in

school full time and had seventy-two hours left to obtain his bachelor’s degree. Additionally,
Father’s petition stated that Mother had willfully withheld visitation from Father, “effectively

alienating the minor child from the Father,” and prayed that visitation be enforced.

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On June 18, 2007, the court entered an order finding that there was not a significant

variance between the amount of support Father was ordered to pay and the amount of support

he would be ordered to pay under the Child Support Guidelines. The court also found that

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Father’s child support payments were in arrears in the amount of $30,540.57 as of May 31,

2007. The court ordered Father to begin paying an additional $50.00 per month toward that

debt starting on June 15, 2007.

On September 21, 2007, Mother filed a Petition for Contempt against Father for

failure to comply with an order for child support.

On October 18, 2007, Father filed a Petition for Change of Custody, alleging that a

material change of circumstances existed which warranted a change of custody. Father

asserted the following with regard to a material change in circumstances: “poor attendance

and educational neglect issues concerning the minor child”; “lack of medical attention of the

minor child by the Mother”; “minor child lives in an overcrowded house with the Mother,

with whom he shares a room, and several other people, seven in all”; and “Mother does not

maintain consistent employment and does not have the ability to properly care for the minor

child and tend to all of his needs.” Father prayed that he be awarded primary custody of

Tyrus V. or, in the alternative, that there be a modification of the current visitation schedule

that would allow for increased visitation.

On November 13, 2007, Mother filed an Amended Petition for Contempt against

Father for “willfully refusing to pay his child support obligation as ordered and for failing

to provide health insurance coverage” for Tyrus V. Mother asserted that Father was in

criminal and civil contempt of court.

In an order dated December 21, 2007, Father was found guilty of eighteen counts of

criminal contempt for failure to pay child support. The issue of whether Father was in willful

According to Father’s petition, the court had previously awarded Father visitation with Tyrus V. 1

every other weekend from Friday at 5:00 a.m. through Monday at 7:00 a.m., Mondays from 5:30 p.m. to 8:30

p.m. on weeks that Father does not have weekend visitation, Thursdays from 5:30 p.m. until Friday morning

drop-off at school on weeks that Father does not have weekend visitation, one month summer visitation,

alternating holidays, and one week at Christmas.

The Child Support Worksheet reflects a presumptive child support order of $578.00 for Father, for 2

an actual variance of $49.24. The amount required for a significant variance to exist was $65.85. 

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criminal contempt for failure to acquire and maintain health insurance for Tyrus V. was

reserved.

On January 8, 2008, Father filed a petition to hold Mother in criminal contempt

alleging that she had failed to allow him court-ordered visitation with Tyrus V.

A hearing on Father’s petitions was held on March 26, 2008. In its April 16, 2008

order, the court ruled that legal custody of Tyrus V. would remain with Mother and that the

current visitation schedule would remain in effect. Father requested a rehearing regarding

the matters of child support, visitation, and custody, as well as a hearing on his petition for

contempt.

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The hearing on Father’s petitions was held on September 15, 2008, November 12,

2008, and January 23, 2009. The court issued its final order on February 10, 2009. The court

found that Father met the burden of proving that a material change of circumstances existed,

including “proof that the minor child’s progress in school continues to digress, the Mother

continues to neglect the educational and counseling needs of the minor child and the Mother

has failed to adhere to the prior orders of this Court concerning truancy and visitation matters

concerning the minor child.” The court discussed each of the ten factors listed under Tenn.

Code Ann. § 36-6-106 in determining that a change of custody was in the best interest of

Tyrus V. Father was named the primary custodial parent of Tyrus V., and Mother was

granted visitation. Mother was ordered to pay Father child support in the amount of $81.70

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per week, beginning January 30, 2009. Additionally, the court found Mother guilty of four

acts of willful, criminal contempt with respect to withholding holiday parenting time of

Father in 2007.

STANDARD OF REVIEW

Our review of the trial court’s findings of fact is de novo with a presumption of

correctness unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d);

Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Marlow v. Parkinson, 236 S.W.3d

744, 748 (Tenn. Ct. App. 2007). “A determination of child custody and visitation often

hinges on subtle factors such as the parents’ demeanor and credibility during the trial

The April 16, 2008 orderstated the following: “Pursuant to T.C.A. § 37-1-107, this order becomes 3

the final order of the Juvenile Court if an appeal is not filed within five days . . . . This order may be

appealed to the Juvenile Court Judge by filing a request for rehearing with the Juvenile Court Clerk.” 

Mother was granted parenting time every other weekend from Friday at 6:00 p.m. to Sunday at 6:00

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p.m., as well as holiday and summer time.

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proceedings.” Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007) (citing Gaskill

v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)). We “give great weight to the trial

court’s assessment of the evidence because the trial court is in a much better position to

evaluate the credibility of the witnesses.” Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn.

Ct. App. 2007).

ANALYSIS

It is well-established that in order to modify a parenting plan to change the primary

residential parent, the trial court must apply a two-part analysis: the court must find that

“both a material change of circumstances has occurred and a change of custody is in the

child’s best interests.” Kendrick, 90 S.W.3d at 575. Tenn. Code Ann. § 36-6-101(a)(2)(B)

is the relevant statutory provision as to what constitutes a material change of circumstance

in the context of a custody change:

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 a 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.

In making its best interest determination, the court is to consider all relevant factors,

including the following set forth in Tenn. Code Ann. § 36-6-106(a): (1) the love, affection,

and emotional ties between the parents and the child; (2) the disposition of the parents to

provide the child with food, clothing, medical care, education, and other necessary care, as

well as the degree to which a parent has been the primary caregiver; (3) the importance of

continuity in the child’s life and the length of time the child has lived in a stable, satisfactory

environment; (4) the stability of the family unit of the parents; (5) the mental and physical

health of the parents; (6) the home, school, and community record of the child; (7) the

reasonable preference of the child; (8) evidence of physical or emotional abuse to the child,

to the other parent, or to any other person; (9) the character and behavior of any other person

who resides in or frequents the home of a parent and the person’s interactions with the child;

and (10) each parent’s past and potential for future performance of parenting responsibilities,

including the willingness and ability of each parent to facilitate and encourage a close and

continuing parent-child relationship between the child and both parents, consistent with the

best interest of the child.

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On appeal, Mother asserts that the trial court erred in determining that a modification

of custody was in the best interest of Tyrus V. Specifically, Mother claims that the court

erred in considering the sexual orientation of a resident in the home of Mother in its best

interest analysis. Mother does not challenge the court’s finding that there was a material

change in circumstance.

In making its best interest determination, the trial court considered each of the

statutory factors as follows:

(1) As it relates to the love, affection and emotional ties existing between the

parents of the child, the Court finds that when this case started, the Mother had

the advantage in this area. However, the Court finds that since the Father has

been afforded with the opportunity to establish a bond with the child during the

course of this case, the parties are now equal with respect to the amount of

love, affection and emotional ties with the minor child in this cause.

(2) With respect to the disposition of the parents to provide the child with

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

to which each parent has been the primary caregiver, the Court finds that there

are problems and concerns as it relates to the Mother in meeting the education

and continuing counseling needs of the minor child. Specifically, the child is

failing in school and his grades have continued to decline. The Mother has

repeatedly caused the child to miss school, be late to school and/or to be

dismissed from school early, without any plausible explanation. Further, the

Mother provided [the] minor child with a tutor, who testified in court;

however, the Court finds that such tutoring has been ineffective and that the

tutor’s insight as to the needs of the child was not as in depth as it should have

been. The Court further finds that while the Mother did initiate counseling

sessions for the minor child, she failed to continue the sessions, after the initial

intake process. The Father[,] however, has maintained a consistent counseling

schedule with the counselor since the last Order of this Court, designating him

to do so and has made consistent efforts to work with school personnel to both

determine and meet the education needs of the minor child.

(3) With respect to the third factor, the importance of continuity in the child’s

life and the length of time the child has lived in a stable, satisfactory

environment, the Court has no concerns with either party in this area, with the

exception that the Court is concerned with testimony from the Father that a

male foster child in the Mother’s home is of a homosexual nature. The Court;

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however, is not concerned with the number of people residing in the Mother’s

home.

(4) The Court finds that both parents are equal as it relates to the stability of

the family unit of the parents.

(5) There was no testimony with respect to the mental and physical health of

the parents.

(6) The Court finds that with respect to the home, school and community

record of the child, the school record is substandard.

(7) The Court did hear testimony from the minor child.

(8) The Court finds that there was no testimony with the respect to any

evidence of physical or emotional abuse to the child, other parent or any other

person.

(9) As stated above under factor number three (3), the Court is concerned with

testimony from the Father that a male child in the Mother’s home is of a

homosexual nature.

(10) Lastly, the Court finds that the Mother has consistently interfered with the

parenting time of the minor child and the Father and that the Mother has

neglected her parenting responsibilities as it relates to tending to the

educational and counseling needs of the minor child and the Court reasonably

believes that the Mother will continue to do the same. Therefore, the Court

finds that the Mother’s potential for future performance of parenting

responsibilities as it relates to the educational and counseling needs of the

minor child is limited and that the Mother will not facilitate and encourage a

close and continuing parent-child relationship between the Father and [the]

minor child, consistent with the best interest of the minor child. Of all the

factors, the Court has weighed this factor the most in making its determination

herein.

Based upon its analysis of the statutory factors, the court concluded that “in the best interest

of the minor child, the Father’s Petition to Change Custody is well taken and the same is

hereby granted.”

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On appeal, Father agrees that factors 1, 4, 5, 7, and 8 either did not apply or were not

persuasive in the court’s determination. Thus, the relevant factors, and those challenged by

Mother on appeal, are factors 2, 3, 6, 9, and 10.

Mother first asserts that the trial court erred in considering the sexual orientation of

a resident in the home of Mother under factors 3 and 9. Mother insists that “there was no

proof that [Tyrus V.’s] environment was not stable or satisfactory other than one comment

made by Father regarding his concern that a foster child living in the home having

homosexual tendencies.” Mother asserts that the trial court is “using the homosexuality of

an individual as a per se basis for concern for the minor child” and “punishing Mother for

the sexual orientation of a foster child under the care of Mother’s parents.” Mother cites

Berry v. Berry, No. E2004-01832-COA-R3-CV, 2005 WL 1277847, at *4 (Tenn. Ct. App.

May 31, 2005), for the proposition that “[h]omosexuality and its effects on children as they

mature is not of such a nature where judicial notice is appropriate.”

Mother is correct that no evidence was presented of any negative effect on the minor

child due to the foster child residing in the same home as Tyrus V. However, Mother

overstates the court’s consideration of the foster child’s alleged homosexuality. In its

discussion of factor 3, the court first noted that it generally had “no concerns with either party

in this area.” In its discussion of factors 3 and 9, the court stated only that it was “concerned

with testimony from the Father” that a foster child residing with Tyrus V. is of a homosexual

nature. Additionally, the trial court’s findings with regard to the other statutory factors,

particularly factor 10, are sufficient to uphold its best interest determination.

With regard to factor 2, Mother states that, for the first thirteen years of Tyrus V.’s

life, she was the primary caretaker, with at least a five-year period where Father lived in

another state and did not visit or pay child support. Mother asserts that “at least she was

there for the minor child and she did make efforts to help with his education.” Mother notes

that she hired a Davidson County teacher to tutor Tyrus V. while Father’s efforts were

“limited to the very recent period of his filing of the petition to change custody and by order

of the Court regarding the counseling.” Indeed, it is clear from the testimony that Father’s

relationship with Tyrus V. improved over time. Tyrus V.’s guardian ad litem commented to

that effect at trial, noting that her “initial impressions of [Father] were of a man who had just

become involved in the child’s life and owed a bunch of child support,” while Mother was

trying to address the guardian ad litem’s concerns. The guardian ad litem stated that “those

tables have completely turned.” She further stated that she initially “thought [Tyrus V.]

would always have a hard time making a relationship with his father,” but that now “he very

much enjoys spending time in his father’s home.”

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Mother does not refute the trial court’s finding that she has problems “in meeting the

education and continuing counseling needs of the minor child.” Both testimony and exhibits

from the record reflect that Tyrus V. struggled to pass his classes in school, was consistently

graded “below proficient” in standardized testing, and was late and tardy dozens of times

each school year. The trial court stated the following from the bench:

There’s been overwhelming testimony about the woeful difficulties that Tyrus

is having in his education. The testimony has been that he has been primarily

dependent upon his mother to get him to school, to get him to school on time,

to make sure that he is able to attend to his education. And it appears that we

have come up considerably short on that factor. On the other hand, the

testimony has been that when Tyrus has been in his father’s care that he has

been diligent about making sure that he gets to school on time, that he helps

him with his homework, has his lessons done and things of that sort.

To her credit, Mother did hire a tutor to help Tyrus V. However, the trial court stated that

“her insight into Tyrus was [not] as indepth as it should have been” and observed that it was

unclear whether “her help in tutoring with Tyrus has been particularly effective, especially

with her not being aware of his academic status, or speaking with his teachers and things of

that sort.” With regard to counseling, the testimony showed that Mother set up the initial

appointment for an intake interview and attended one other appointment, but then failed to

show up thereafter. Father was then tasked with taking Tyrus V. to the appointments, which

he did.

With regard to factor 6, Mother admits that Tyrus V.’s school record was substandard

but claims she tried to the best of her abilities to help her son. Mother outlines the steps she

took to meet Tyrus V.’s educational needs in her brief:

Mother took the child to the library to use a computer, read with him, and

helped him with his homework. Mother asked her niece to help tutor the

minor child in third grade and she always consulted with his teachers for

advice. After a meeting with the minor’s teachers, Mother hired a tutor,

Tiffany McKee, a language arts teacher with Metro Nashville public schools

for the minor child in the fall of 2007.

As discussed with regard to factor 2, Mother presented no evidence or testimony to rebut the

court’s finding with regard to Tyrus V.’s substandard school record. We have already noted

the weight with which the trial court regarded Ms. McKee’s testimony.

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With regard to factor 10, Mother denies that she has consistently interfered with

Father’s parenting time and insists that she wants Tyrus V. and Father to establish a

relationship, noting that she hired a counselor “to help in assisting the transition from a father

who is not involved to a father who is involved in his child’s life.” There is no evidence to

support Mother’s contention that she has not consistently interfered with Father’s parenting

time. Tyrus V.’s guardian ad litem stated at trial that “[Mother] continuously, much to my

regret, ignores this Court’s Orders [regarding visitation].” Father testified that he had no

parenting time during holidays in 2006 and 2007, and the court found Mother guilty of four

counts of contempt for withholding holiday parenting time in 2007. Additionally, as

discussed with regard to factor 2, Mother again fails to rebut the court’s finding that she “has

neglected her parenting responsibilities as it relates to tending to the educational and

counseling needs of the minor child” or the court’s determination that she will continue to

do the same. In this instance, the court properly weighed factor 10 the most heavily in

making its best interest determination, and we conclude that that factor is sufficient to uphold

the court’s decision.

Given the testimony at trial from both parents and other witnesses, we conclude that

the evidence does not preponderate against the trial court’s finding that a change in custody

was in the best interest of Tyrus V.

CONCLUSION

The judgment of the trial court is affirmed. Costs of appeal are assessed against the

appellant, for which execution may issue if necessary.

_________________________________

ANDY D. BENNETT, JUDGE

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