### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 4, 2002

Session
SUSAN FORD (PUR

VIS) TU RNER v. JEFF REY TH OMAS P URVIS Appeal from the Chancery Court for Montgomery C ounty No. 95-09-0046 Michael R. Jones, Chancellor

No. M2002-00023-COA-R3-CV - Filed April 9, 2003

Mother appeals from a trial court modification of the custody

and visitation arrangement which had been in place since the divorce in 1997. The previous arrangement gave Mother primary

residential
cu st od y, and Fat

her was to have li beral vi sitation a s agre ed upon by the part ies. After declining

to adopt the parenting plan submitted by either Mother or Father, t he trial court devised a plan establishing a specific residential schedule. Mother argues that there was not a mater ial change of circumstances that war

ranted t he trial c ourt’s decision. B ecause we determine that

a mate rial c hange in circumstances occurred and because the modifi cation of

the custo dy a

rrang ement wa s in the be st interests of the children, we affirm the decision of the tria l court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

P AT RICIA J. C OTT RELL , J., deliver ed the opinion of the

court, in which B EN H. C ANT RELL , P.J., M.S., and A LLE N W. W ALLACE , S P

. J., joined. Roger A. Maness, Clarksville, Tennessee, for the appellant, Susan Ford (Purvis) Turner.
Mark R. Ol son, Clark sville, Te nnessee , for the

appelle e, Jeffre

y Thomas Purvi s.
OPINION

I.
Susan Ford Turner (“Mother”) a nd Jeffrey Thomas Purvis (“Father”) were divorced by Final De cree on Jun e 13, 1997. Two minor children, T.P. and C.P., both boys, wer e born during the marriage, in 1988 and 1990, respe ctively. The par ties filed a Marital Dissolution Agreement (“MDA”) that was incorporated into the final decree of divorce. According to the MDA, the parties
were to have joint custody of the two minor children. Mother would act as the primary residential parent and would undertake primary responsibility for decisions reg arding the education, religious train ing, non-emergency

health care, and discipline of the children. Fa ther was to have re asonable-2-

and liberal visitation with the children, and he agreed to provide some advan ce notice when he desired to exercise that visitation.
Mother has lived at the same residence with the minor chil dren for

thirteen ye ars. Mother and Father live approximately five (5) minutes away

from ea ch other by c ar. Mothe

r remar ried in early 2000 to Jeff Turner. Father is engaged to Margo Turner (Jeff Turner’s e x-wife). Margo and Jeff Turner’ s three c

hildren a re at Fa ther’s h ouseon a regular basis. Father is a race car driver and travels extensively as a result o f his job, f requent ly being out of town from Wednesday or Thursday through Saturday

or Sunday and tra

veling approximately 32 weeks out of the yea r.
On May 23, 2001, Father f

iled a pe titi on for a modific ation of th e custody arrang ement. Father argued that since the entry of the divorce decree, difficulties had a risen wit h rega rds to visitation, namely

that the parties were unable to agr ee about the requirement of advance notice prior to visitation. Father

asserte d that his caree

r as a ra ce car driver p rohibited him from c omply

ing with the extensive pre-planning required by Mother as a prerequisite

to visitation with the children and that as a result of: (1) Mother’s actions; (2) the increasing a ge of the children; (3) the children’ s need fo r the influence of their Father; and (4) Mother’s use of the children as a medium of communication, a materi al chang e of cir cumstanc es had oc curred

so as to ju st if

y a modification of the visitation arrangements.
On Dece

mber 3, 20 01, both

Mother and Father filed

Proposed Parenting Plans. The trial court hear d the matter on that date and declined to adopt either party ’s parenting plan. The court issued an oral ruling from the bench, and entered a slightly modified

written order the next day. O n December

20, 2001, the trial court entered a final order inc orporat i ng its previous orders and detailing the new visitation s chedule , as follo ws:
The Court doe s not adopt the pare nting pla n submitted

by e ither pa rty . The Court finds it appropriate that the Court fashion a specific visitation schedule for the children, which is set forth as follows: . . .
EachMonday at 3:00 p.m., or the close of school, which ever is soon er, the Father shallpick the children [up] at school and keep them with him until Thursday morning at 9:00 a.m., or whenever school begins. The f ather shall return the children to the school. During the summer vacation, the same schedule is to be observed, however, the children are to be returned to the Mother at the en d of the Father’s visitation schedule and shall be delive red by the Mothe

r to the Father at the beginning of the scheduled visitation. During each month of

Decemb er comme

ncing w ith Dece

mber 2002 , and ea

ch month of December thereafter, the

children shall reside with the Father for the e ntire mont

h of Decemb er except for the f irst and th ird week end of the month of December, and Christmas Eve and Christmas Day. T he Mother sh all rece

ive the children o n the firs t1 The requi rement of a permanent

parenti ng plan does not a pply to “ part ies who wer e div orced pr ior to Jul y 1, 1997, and th ereafte r return to co urt to enter an agreed order

modif yi ng t erms of

the previ ous cou rt or der. ” Tenn. Code Ann. § 36 -6-40 4(a) . The parties herein did not r eturn to court to ent er an agreed order, and, therefore, t he new parenting plan le gislation is a pplic able in the case herein

. -3- and third Friday at 5:00 p.m ., and sha

ll return the child ren to the Father on the fir st and third Sunday at 5:00 p.m

. During the NASCAR race season, the children shall be with the Father for two race weekends per season. The Father shall select those weekends by giving theMother 10 days notice of the

weekends selected. During the summer, each parent shall have the children for two uninterr

upted we eks.

No provision is made for other holiday s, the parties shall simply have the c hildren with them during that time period which is set forth herein.
Should either party

desire to take the children morethan 100 miles from t heir home during the time that they are going to bewith that parent, that parent shall provide 48 hours notice to the other parent of the intent to take the children more than 100 miles from home, and shall provide an itinerary a s to where the children shall be residing and a telephone number at which the children ca n be reached. . . .

Es se nt ia ll y, the trial court replaced the loosely -defined “liberaland reasona ble visita tion to be agreed upon by

the parti es” upon unspecified advance notice pre viously gra

nted father with a specific visitation or residential schedule. The Father soug ht modification in this case shortly after the effective date of the new par enting plan legislation, see Tenn. Code Ann. § 36-6-401 et seq., and there is no dispute that the p lan appli es here in. Each party submitted p

roposed p arentin g plans t o the trial court. Any decr

ee of modification “shall incorporate a perma nent parenting plan.” Tenn. Code Ann. § 36-4-404(a). 1 Tenn. Code Ann. § 36-6-404(b) requires that a parenting plan include
a residential schedule, which designates in which parent’s home the child will reside on given da ys during t he y ear. A r

esidentia l schedul e is defin

ed as:

. . . the sch

edule of when the

child is in e ach par

ent’s phy si cal care, and i t shall designa te the primary re sidential parent [the parent with whom the child resides more than 50% of the time]; in add ition, the r

esidentia l schedul e shall de signate in which parent’s home each minor child shall reside on given day s of the yea

r, including provisions for holidays, birthday s of fa mily me mbers, vacations, and other special occasio ns, consistent with the criteria of this part; provided, that nothing contained herein shall be construed to modify any provision of § 36-6-108; . . . . Tenn. Code Ann. § 36-6-402(5).-4-

Mother appeals. Although she acknowledg es that both parents came before the court seeking
a specific visitation schedule, she argues that the modification made by the court totally

changed the circumstances of the children and deprived her of her role as primary

custodial parent although she had performed that role well. II.
Once a valid

order of custody

has beenissued, a court may modify that custody arra

ngement when both a mate rial c hange in circumstances has occurred and a change of

custody is in the child’s best interests. Kendrick v. Showmake , 90 S.W.3d 56 6, 570 (Te nn. 2002) ; Blai r v. Badenhope , 77 S.W.3d 137, 148 (Tenn. 2002). “While there are no hard and f ast rules for determining when a child’s circumstances have changed sufficiently to warrant a change of his or he r custody,” Blair , 77 S.W.3d at 150, a material change of circumstance does not require a

showing of a subst antial ri sk of harm to the child. Kendrick , 90 S.W.3d at 570 n.5 (citing Tenn. Code Ann. § 36-6-101(a)(2)). To justify modification, the change must have occurr ed after entry

of the order sought to be

modified, and must be one that was not known or reasonably anticipated when the original order wa s entered, and must affect the child’s well-being in a meaningful way

. Kendrick , 90 S.W.3d a t 570; Blair , 77 S.W. at 150.
Alth ough Kendrick speaks in terms of an ac tual cha

nge in custody , its princ iples app ly to changes in a

custodia l and visita

tion arra ngemen t, including arra

ngemen ts that are now established in a perma

nent par enting p lan desig

nating d ecision ma

king au thority and a specific r esidential schedule. Under the plan adopted by the court herein, Mother remains the primary residen tial pare nt. When faced with a req

uest to establish

a specific visitation schedule, the court properly applied the require ments of the parenting plan legislation. We will apply the material cha nge of circumstances and best interests standard.
While the trial court’s conclusions of law are reviewed under a pure de novo standar

d, with
no deference accorded, we revie w the find

ings of f act by a trial c ourt de novo witha presumption of correctness for the trial

court’s decision, unless the preponderance of the evidenc e is otherwise. Tenn. R. App. P. 13 (d); Kendrick , 90 S.W.3d at 569-70; Brooks v. Brooks , 992 S.W.2d 403, 404 (Tenn. 1999). Where the trial court makes no specific findings of fact, we must review the record to determine where the prepondera nce of evidence lies. Kendrick , 90 S.W.3d at 57 0; Ganzevo ort v. Russe ll , 949 S.W.2d 293, 296 (Tenn. 1997).
The determinations of

whether a material change or circumstances has occurred a nd where the best interests of the children lie are f actual questions, absent a failure to use proper leg al standar ds. Trial courts must exercise broad discretionin child custody matters. Parker v. Parker , 98 6 S.W.2d 557, 563 (Tenn. 1999). Because of the discretion given trial courts in this area an d because of the fact specific nature of such dec isions, ap

pellate c ourts are reluctant to second- guess a trial court’s determination regarding custody and visitation. Nelson v. Nelson , 66 S.W.3d 896, 901 (Tenn. Ct. App. 20 01); Rutherfor d v. Ruthe rford , 971 S.W.2d 955, 956 (Tenn . Ct. Ap p. 1997) (quoting Gaskill v . Gaskill , 936 S.W.2d 6 26, 631(Tenn. Ct. Ap p. 1996)) . Accor

dingly , this co urt will decline

to disturb the parenting plan fashioned by the trial court he

rein unle ss that de cision is2 Those problems appear t o have emerged as a result o f, or be en exa cerb ated b y, the unus ual exte nde d fam ily

relation ships a nd the variou s animo sities inhere nt therein

.

3 The trial court also noted th at t he parti es had submit ted proposed vi sit ation schedule s to t he judge who had grante d the d ivorc e, but tha t judge had d ied b efore he ruled on tho se pro pos als.
-5- basedon a material error of law or the evi dence preponderates ag ainst it. Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). Similarly, a tr ial court’s determination
on issues of

visitation

should b e set aside only whe

n it “falls outside the spectrum of rulings that might reasonably

result from an applicationof the correct legal standar ds to the evidence found in the record.” Eldridge v. Eldridge , 42 S.W.3d 82, 88 (Tenn. 2001).

III.
Evidence that an existing custody and visita

tion arra ngemen t is not wor

king is sufficien

t to support a finding of material change of circumstances. Vaccare lla v. Vac carella , 49 S.W.3d 307, 315-16 (Tenn. Ct . App. 200 1); Dalton v. Dalt on , 858 S.W.2d 324, 326 (Tenn. Ct. App. 1998). While the parties herein agree d to joint cus to dy and to the original custody and visitation arrang ement, it is not surprising tha t t he ill-defined liberal visitation provision, dependent upon agree ment of the

parties a nd non-sp ecific a

dvance notice r equirem ents, led to proble ms. 2

The parentshad diff

iculty communic ating w ith each oth er; Father asserts he was denied visitation because thetiming of his requests did not suit Mother’s rigid approach to scheduling; he asserts that his ca

reer a s a race

car dri ver proh

ibited him f

rom c omp lying with the extensive preplanning required by

Mother as a prerequisite to visitation with the childre n. Mother

asserts that she tried unsuccessfully to wor k out a visitation schedule with Father and that Father would ofte

n call only minutes before the children left for school to let Mother know that he wanted to have visitation withthem that afternoon. Father was not allowed some requested visits, including a request to take the children to watch him in a particular race. Spec ific incidents were testified about, and F ather believes Mother wants to limit his interaction with the childre n and hasfailed to

provide h

im with information about

their activities. Mother

admitted withholding some important information about one son for a month.
The trial cou rt found that “the joint custody ar rangement entered by

the Court in 1997 withouta specific visitation schedule was destined to fail” and that it was appropriate that the custody arrangement be set forth in spec ific fashion. 3 At the trial herein, bothparties testified they wanteda set

visitation schedule; both testified that the current situation was not working. Thus, we find the ev idenc e does not p repon derate agains t the t rial c ourt’ s imp lici t find ing of a mater ial ch ange of circumstance s.
Alth ough Mother argues that the exigencies of the situation did not require or justify th e modification made by

the cour t, or, sta ted anoth er w ay, that there

was no showing of a change of circumstances materially

affecting the children, her r eal argument is that the modification ordered by the court went be yond

that necessary

to remedy the pr

oblem of undefined visitation. Mother-6-

asserts the plan developed by the court places the children with Father approximately 175 nig hts per year. She particularly objects to the Father havingresidential custody 3 out of 5 school nights. She testified about her concerns that they have structure on school nights, get their homew ork done, and arrive at school on time and her reservations about Father’ s abi li ty o r willingness to pr

ovide this structure. Thus, Mother’s real argument is that the parenting plan and residential schedule de signed by t he court is not in the

childre n’s best in

terests.
Moth er of fered a proposed parenting pla n that would have given Father custody or residential placement

every othe

r weekend, with alternating weeks in the summer. Father proposed every othe

r week placement

throughout the year. Father’s occupation as a NASCAR driver require s him to be absent from his home Thursday throug h Saturday or Sunday

to participate in testing and racing. He
races in 32 to 41 r

aces pe r y ear. Mot

her ack nowledg ed that F ather’ s c aree r does not make it ea sy for traditionally sche duled visitation to take place.
When fashioning the residential schedule, the court is instructed to ta ke into account the factor s listed in Tenn. Code Ann. § 36- 6-404(b) , which sta tes:

. . . the court shall make residential provisions for each child, cons ist ent with the child ’s deve lopmenta

l level and the fam

ily’ s social a

nd econo mic circumstance s, which encoura

ge ea ch pare nt to mainta

in a loving , stable, and nurtu ring re lationship withthe child . The chi ld’s resi dentia l schedu le shall be consistent with this part. . . . [T]he cou

rt shall c onsider t

he following factors: (1) The p arent’ s ability

to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society which the

child faces as an adult; (2) The relative strength, nature, and stability of the child’ s relationship with each parent, including whethe r a p arent has taken greater responsibility for perfor

ming parenting responsibilities relating to the daily needs of the child; (3) The will ingn ess and ability of ea ch of the parents to facilitate and encoura ge a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child; (4) Willful ref

usal to att

end a court-ord

ered pa rent edu cation se

mina r may be considered

by the court as e

vidence of that pare nt’s la ck of g ood faith in these procee dings; (5) The disposition of

each pa rent t o prov ide th e chil d wit h food , clot hing, medical care, education, and other nece ssary ca re; (6) The degree to which a

parent has been the primary caregiver, defined a s the parent who has ta

ken the g reater responsi bility for per forming parenta l respons ibilities; (7) The love, affection, and emotional ties existing bet ween each parent and the child; (8) The emotional needs and developmental level of the c hild;4 It is appare nt f rom the re cord that

the ol der chi ld ha s expe rie nced s ome dif fi cult ies , appar entl y re sul ti ng f rom the changes i n the f

amily sit uati ons and in teract

ions. The tria l court

ordered counseling for the chil dren to include the pare nts if reco mm end ed.
-7- (9) The character and phy sical andem otional fi tness of e ach par

ent as it r elates to each parent’s ability

to parent or the welfare of the child; (10) The child’s interaction and interrelationships with siblings and with significant adults, as well as the child’s involvement with the child’s ph ysi c al surroundings , school, or other sig nifican t activitie s; (11) The importance of continuity in the child’s life andthe leng th of time the child has lived in a stable , satisfa

ctory environm

ent; (12) Evidence of phy sical or e motional a buse to the

child, to th

e other p arent or

to any other pe

rson; (13) The character

and behavior

of any other

person who resides in or frequents the home of a parent and such person’s interactions with the child; (14) The reasonable prefer ence of the child if twelve (12) years of age or older. . . . (15) Each parent’s employ ment schedule, and the court may make accommodations consistent with those schedules; and (16) Any other

factors deemed relevant by the court.
These factor s inc orporate those set out in Tenn. Code Ann. § 36-6-106 (the statute which previous ly

guided the trial court in custody determinations) as we ll as factors established by the courts. The primary c on c ern in de terminat ions of a c

hild’s re sidential

placeme nt remain s the best interest s of the ch ild, and c onsidera tion of the

factor s under T enn. Code Ann. § 36- 6-404(b)still necessitates a comparative analy sis.
Thus, by s tatute aswell a s case law, t he welfare and best interests of the childre n are the paramount

concer n in custody, pare

nting and residential placement determinations, and the g oal of
an y such decision is to place the child in an environment that will best serve his or her nee d s
. Parker , 986 S.W.2d a t 562 (Tenn . 1999). This determination is factually driven and requires the court to carefully

weigh many

considerations. Gaskill , 936 S.W.2d at 630.

In the case herein, the trial court heard e xtensive testimony from Mother and Fathe r r ega rding their parent ing styles, their relationships with the children, the existing custody a rrangement, and their preferences as to any

modification of that arrangement. Acc ording to that testimony, we ha ve ascertained

that Mothe

r and Fa ther live approxima

tely five minut

es away from ea ch other . Both children perform relativel y w ell in sc hool and w ill attend the same school whether they

live with Mother or Father. About a y

ear ago, the older child expressed re luctance in visiting with F a ther. According to Father, this reluctance was the result of de rogatory comments made about Father by Mother; accord

ing to Mot

her it was because

that child

was unab le to spend time alon e with his Father since Father’s future wife and he r children wereusually around. 4 The young er child, on the other hand, has a good relationship with his Father. Both pa rents are able to provide finan cia l stability for the children and both parents have adequate homes; in fact, both Mother and Father a re-8-

more than capable of providing the children with many adva ntages. In re

viewing the transcript of the hearin g, it is also apparent that both Mother and Father love these children and a re concerned not only for their stability and safety , but for other important matters such as their health, education, and happines s.
Alth ough the trial court did not make specific findings of fact, from our review of the record,
we cann ot find t hat the evidence preponderates ag ainst the trial court’s determination that the children’s best interests were served by the parenting plan it adopted.

For the foregoing reasons, we affirm the decision of the trialcourt. Co sts of the appeal are taxed to the appellant, Susan Ford (Purvis) Turner.

___________________________________ PATRICIA J. COTTREL L, JUDGE