IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 1, 2021

JAMIE GRAVATT v. MICHAEL BARCZYKOWSKI

Appeal from the Circuit Court for Montgomery County

No. CC2016-CV-0933 Ross H. Hicks, Judge

___________________________________

No. M2019-01481-COA-R3-CV

___________________________________

This appeal arises from the modification of a parenting plan in a post-divorce action, upon 

a petition filed by the minor child’s mother. We have determined that the evidence does 

not preponderate against the trial court’s findings that there was a material change of 

circumstances under Tennessee Code Annotated sections 36-6-101(a)(2)(B) and 36-6-

101(a)(2)(C) and that modification of the parenting schedule and of primary residential 

parent was in the best interest of the child. Therefore, we affirm the trial court’s order. 

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which ANDY D. BENNETT,

J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Jacob P. Mathis, Clarksville, Tennessee, for the appellant, Michael Barczykowski.

1

Christopher J. Pittman and Catherine W. Cheney, Clarksville, Tennessee, for the appellee, 

Jamie Gravatt.

OPINION

I. BACKGROUND

R.B. (“the child”) was born in July of 2012 during the marriage of Jamie Gravatt

 

1 Appellant notified the Office of the Attorney General of his intent to raise a constitutional challenge to 

the Tennessee Child Support Guidelines on appeal. The State was not a party to the trial court proceedings. 

On March 15, 2021, the Office of the Attorney General filed notice that the State would not file an appellate

brief or otherwise participate in this appeal. See Tenn. R. App. P. 32. 

05/25/2021
- 2 -

(“Mother”) and Michael Barczykowski (“Father”). Mother and Father were divorced by 

final decree entered in August of 2016, when the child was four-years-old. The final decree 

incorporated an agreed permanent parenting plan that named Father the primary residential 

parent and provided for joint decision-making and equal parenting time between the 

parties, to follow a week on/week off schedule. 

At the time of the divorce, both parties lived in Clarksville, Tennessee. Father was 

medically discharged from the United States Army. In October of 2016, pursuant to the 

parental relocation statute,

2 Father notified Mother of his intent to relocate out of state. 

Mother filed a petition opposing Father’s relocation. In response, Father stated that he 

sought relocation after failing to find suitable employment in Tennessee. Father indicated

that he was offered a job with significantly better pay in Maryland, nearby the child’s 

maternal and paternal grandparents and extended family.3 The child was not yet schoolaged, so pending the final hearing on the relocation matter, the parties agreed to meet 

halfway in Bristol, Virginia to alternate parenting time on a month on/month off schedule. 

Mother gave birth to another child over the summer of 2017. 

By memorandum opinion entered August 15, 2017, the trial court ordered the parties 

to exercise parenting time on a year on/year off basis and further ordered that each parent 

was to enjoy “maximum visitation” with the child during the other parent’s year on. 4 The 

trial court found that the child’s best interest was served by designating Father as the 

primary residential parent for the 2017–2018 school year. Father was ordered to pay 

Mother $208.00 monthly child support, based on the entry of 182.5 days per parent on the 

child support worksheet. Accordingly, the child enrolled in Kindergarten in Delaware and 

spent the 2017–2018 school year with Father. During that year, Mother was employed as 

a part-time substitute teacher and took advantage of her flexible work schedule to visit the 

child in Delaware on several occasions. 

On October 26, 2018, when the child had just begun first grade and was living with 

Mother in Tennessee, Mother petitioned the court to modify the existing parenting plan. In 

her petition, Mother alleged material changes in circumstances since entry of the previous 

parenting plan including: Father’s unrealistic expectations of Mother’s obligations; 

Father’s demands to speak to the child at any time; Father’s daily demands about the child’s 

school; Father’s interference with and micromanaging of Mother’s parenting; Father’s 

questioning of the child about Mother’s care of her; Father’s prohibiting the child to visit

Mother’s family while the child was living in Delaware; Father’s inability to communicate 

 

2 Tenn. Code Ann. § 36-6-108. 

3

It appears that the reference to Maryland was made in error because Father’s job was in Delaware. 

4 Both Mother and Father were reluctant to agree to a year on/year off parenting schedule. Thereafter, this 

case was transferred to a different trial court judge. 
- 3 -

with Mother; the parties’ disagreements concerning times and locations at which to 

exchange the child; and Father’s use of the child as the intermediary between the parties. 

Mother further alleged that Father’s “unrealistic and uncooperative behavior” since entry 

of the parenting plan “made the year-on/year-off schedule untenable and not in the best 

interest of the minor child.” Mother requested that the trial court enter a new parenting 

plan naming her primary residential parent and awarding Father “reasonable parenting time 

during school vacations.” Father denied the allegations of the petition. 

After mediation failed, the case proceeded to trial on May 6, 2019. By then, Mother 

had transitioned to working full-time in the local school district while studying, primarily 

online, to earn a Master’s Degree in special education. The child was then nearly seven 

years old and Mother had remarried. Four months earlier, Father had also remarried, but 

did not inform Mother of this fact until the day of trial. 

Mother, Father, Mother’s husband, and the child’s paternal grandmother testified at 

trial. Mother’s husband related that he is a member of the United States Army subject to 

last-minute deployments, but that he was campaigning to avoid relocation to another state. 

He further testified that the child enjoys a “really good” relationship with her same-aged 

stepsister and a “great” relationship with her then-20-month-old half-sister. The testimony 

indicated that Mother and her husband provide a home suitable for children and that he 

helps care for the child as much as he is able. The child’s paternal grandmother related 

that she lives in Delaware, approximately twenty minutes driving distance from Father, as 

do most of Father’s and Mother’s extended family members, several of whom are involved 

in the child’s life. Both parents testified about the positive impact of the child’s 

extracurricular activities. During the child’s year in Delaware, Father invited Mother’s 

extended family members to observe the child’s karate practices and dance recitals. 

Mother and Father each provided extensive testimony and exhibits detailing the 

communication issues and acrimony between them. Mother instructed Father to prohibit 

his then-fiancée from purchasing school clothing for, posing in photos with, or “being 

motherly” toward the child. Both parents described their irritation that the child was 

frequently distracted when calling one parent from the other parent’s home. 

 

Two significant themes emerged from the testimony. The first was Father’s 

resentment toward paying child support to Mother. Mother recounted that Father told her 

that “having to pay child support [was] going to make it very hard for him to be able to coparent.” While the child was living in Delaware with Father during the Kindergarten year,

he texted Mother, “I actually tried to maintain a civil relationship between us, and you 

basically destroyed that with seeking child support that you don’t need and don’t deserve. 

I provided [the child] everything she needs financially, yet you try to earn a quick buck off 

my hard work.” 

The second theme was that neither parent believed the year on/year off residential 

parenting schedule in effect was workable or in the child’s best interest. In February of the 
- 4 -

child’s Kindergarten year, Father texted Mother that he did not think it “healthy” for the 

child to “bounce around” and “try[] to fit in every year.” Mother agreed, “I don’t think it 

is either, but it’s what is [in] the parenting plan and the only way to change it is going back 

to court because I know you and I will not agree on where [the child] will go to school 

every year.” At trial, Father opined as follows:

Q. Mr. Barczykowski, if the Court sees fit to simply dismiss this petition and 

continue following the schedule, do you think the child’s going to be able to 

thrive under that?

A. I don’t, simply because she has such a close bond with not just [my] 

family in Delaware, but with [Mother’s] family in Delaware. She has thrived 

academically in Delaware. I just see her having a better upbringing if she 

remained in Delaware for the school year.

Q. So if the Court does see fit to change the [parenting] plan, do you feel 

like it would be in her best interest to stay there?

A. Absolutely. 

Mother recounted that, although the child was performing “pretty well in school,” she 

“struggle[d] in the first grade because she didn’t learn everything that the current first 

graders did down here [in Tennessee].” Mother expressed concern that, in the long run, 

the child would struggle to change schools yearly because “different schools, different 

states have different standards of what they teach” and because “as the grades get higher, 

the material gets harder, and it’s going to be harder for her to bounce back.” 

By memorandum opinion entered July 15, 2019, the trial court found “the parties 

agree and the court finds that the year on/off schedule is not working.” The court also 

found and noted the parties’ agreement that the residential parenting schedule in place was 

not in the child’s best interest. Additionally, the trial court noted Mother’s “unrefuted 

testimony” that Father’s original designation as primary residential parent “was done by 

agreement because [he] misinformed the Mother that [he] was required to be designated as 

Primary Residential Parent in order to keep the child’s Tricare coverage.”5 After 

considering the best interest factors set forth in Tennessee Code Annotated section 36-6-

106, the trial court determined that it was in the child’s best interest for Mother to be 

designated primary residential parent and for Mother’s proposed parenting plan to be 

adopted. 

On July 31, 2019, Father moved to impute income to Mother, alleging that she was 

 

5 Mother was not represented by counsel during the divorce proceedings. 
- 5 -

voluntarily underemployed. The trial court denied the motion, reasoning that the proof at 

trial supported Mother’s income as previously found by the court, and that Mother’s work 

within the school system would allow her to complete her graduate degree and earn a 

teaching job that would “increase her income in the long run.” The modified parenting 

plan was entered as the court’s order on August 13, 2019. Pursuant to the plan, Father was 

awarded 100 days of parenting time to include every fall break, spring break, half of winter 

break, and every summer break. Mother was awarded 265 days of yearly parenting time. 

Pursuant to the child support worksheet, Father’s child support obligation was modified to 

$955.00 monthly by agreed order entered August 29, 2019. Father appealed. 

II. ISSUES

Father raises three issues on appeal, which we quote verbatim from his brief:

1. Did the trial court err in finding a material change of circumstance 

necessitating modification of the parenting plan?

2. Should a cost of living adjustment be factored into child support 

obligations?

3. Should a post-marital child be included in child support calculations?

In the posture of Appellee, Mother raises the issue of whether the appeal lacks 

justiciable issues such that she is entitled to relief under the frivolous appeal statute.

III. STANDARD OF REVIEW

 “A trial court’s determinations of whether a material change in circumstances has 

occurred and whether modification of a parenting plan serves a child’s best interests are 

factual questions.” Armbrister v. Armbrister, 414 S.W.3d 684, 692 (Tenn. 2013) (citing In 

re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007)). Therefore, “appellate courts must 

presume that a trial court’s factual findings on these matters are correct and not overturn 

them, unless the evidence preponderates against the trial court’s findings.” Id.; see also

Tenn. R. App. P. 13(d). Likewise, trial courts have “broad discretion in formulating 

parenting plans” because they “are in a better position to observe the witnesses and assess 

their credibility.” C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017) (citing Armbrister, 

414 S.W.3d at 693). On appeal, we review a trial court’s decision regarding parenting 

schedules for an abuse of discretion. Armbrister, 414 S.W.3d at 693 (citing Eldridge v. 

Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001)). “An abuse of discretion occurs when the trial 

court . . . appl[ies] an incorrect legal standard, reaches an illogical result, resolves the case 

on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an 
- 6 -

injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court 

abuses its discretion in establishing a residential parenting schedule “only when the trial 

court’s ruling falls outside the spectrum of rulings that might reasonably result from an 

application of the correct legal standard to the evidence found in the record.” Eldridge, 42 

S.W.3d at 88. 

We review a trial court’s child support determination under the abuse of discretion 

standard. Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005).

 We review questions of law de novo, affording the trial court’s decision no 

presumption of correctness. Armbrister, 414 S.W.3d at 692 (citing Mills v. Fulmarque, 

360 S.W.3d 362, 366 (Tenn. 2012)).

IV. DISCUSSION

1.

To modify an existing parenting plan, the trial court must first determine whether a 

material change in circumstances has occurred. Armbrister, 414 S.W.3d at 697–98 (citing 

Tenn. Code Ann. § 36-6-101(a)(2)(C)). “The petitioner . . . must prove by a preponderance 

of the evidence a material change of circumstance affecting the child’s best interests, and 

the change must have occurred after entry of the order sought to be modified.” Gentile v. 

Gentile, No. M2014-01356-COA-R3-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)). “[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). If a material change 

in circumstances is found, the court must then determine whether a modification of the 

parenting plan is in the child’s best interest in consideration of the factors set forth in 

Tennessee Code Annotated section 36-6-106(a). Armbrister, 414 S.W.3d at 697–98. 

“Facts or changed conditions which reasonably could have been anticipated when the 

initial residential parenting schedule was adopted may support a finding of a material 

change in circumstances, so long as the party seeking modification has proven by a 

preponderance of the evidence ‘a material change of circumstance affecting the child’s best 

interest.’” Id. at 704 (quoting Tenn. Code Ann. § 36-6-101(a)(2)(C)). 

Where the issue before the court is a modification of the residential parenting 

schedule, the threshold for determining whether there has been a material change of 

circumstances is “much lower” as compared to the threshold for modification of the 
- 7 -

primary residential parent. Burnett v. Burnett, No. M2014-00833-COA-R3-CV, 2015 WL 

5157489, at *6 (Tenn. Ct. App. Aug. 31, 2015). Where the issue before the court is 

modification of the primary residential parent (“custody”), then: 

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.

Tenn. Code Ann. § 36-6-101(a)(2)(B). See Armbrister, 414 S.W.3d at 703 (comparing the 

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

residential parenting schedule).

To modify a residential parenting schedule, “merely showing that the existing 

arrangement [is] unworkable for the parties is sufficient.” Rose v. Lashlee, No. M2005-

00361-COA-R3-CV, 2006 WL 2390980 at *2 n.3 (Tenn. Ct. App. Aug. 18, 2006). As 

found by the trial court, both Mother and Father agreed that the year on/year off schedule 

was entered into reluctantly, was not working well, would become unworkable as the child 

progressed in school, and did not serve the child’s best interest. The parties’ testimony and

exhibits amply support the trial court’s finding and modification of the previous year 

on/year off residential parenting schedule. Accordingly, we affirm. 

We turn now to material change in circumstance sufficient to consider whether a 

modification of custody was in the child’s best interest. Father argues that “it was error for 

the trial court to find [] a material change in circumstances” because “nothing between the 

parties had changed, other than the parties exercising the parenting plan established by the 

court.” We respectfully disagree. Again, in the context of a modification of custody, a 

material change in 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.” Tenn. Code Ann. § 36-6-

101(a)(2)(B). Furthermore, “trial courts have broad discretion in determining which parent 

should be the primary residential parent and appellate courts are reluctant to second guess 

a trial court’s decision on this issue when so much depends on the trial court’s assessment 

of the witnesses’ credibility.” In re Shayla H., No. M2013-00567-COA-R3-JV, 2014 WL 

2601564 at *5 (Tenn. Ct. App. June 9, 2014) (citations omitted). 

Here, for instance, the year on/year off parenting plan provided specific instructions 

about transportation arrangements and costs related to the exchange of the child. In her 

petition, Mother alleged constant argument between the parties regarding this provision of 

the plan. At trial, there was evidence that Father unilaterally booked a flight for the child 

to return to Delaware before Mother’s parenting time was complete, despite the parenting 
- 8 -

plan provision that the parties were to meet halfway unless they jointly made other 

arrangements. Under the parenting plan, payment of long-distance travel costs was to be 

shared equally. Yet, more than once, Father asked Mother to waive child support to help

offset his transportation expense. These failures to adhere to the parenting plan established 

the threshold material change in circumstance for modification of primary residential 

parent. Based on the foregoing, as well as our review of the entire record, we conclude 

that the evidence does not preponderate against the finding of a material change in 

circumstance sufficient to modify the primary residential parent. 

Best Interest

Once the trial court determines that there has been a material change in circumstance

sufficient to modify the residential parenting schedule or primary residential parent, the 

second step in the modification analysis requires the court to determine whether 

modification is in the child’s best interest under the factors in Tennessee Code Annotated 

section 36-6-106(a). Boyer v. Heimermann, 238 S.W.3d 249, 259–60 (Tenn. Ct. App. 

2007). The best interest determination “is a fact-sensitive inquiry.” Steakin v. Steakin, No. 

M2017-00115-COA-R3-CV, 2018 WL 334445 at *5 (Tenn. Ct. App. Jan. 9, 2018). The 

determination “‘does not call for a rote examination of each of [the relevant] factors and 

then a determination of whether the sum of the factors tips in favor of or against the 

parent.’” Id. (quoting In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)). Rather, 

“‘[t]he relevancy and weight to be given each factor depends on the unique facts of each 

case.’” Id. The trial court is directed to consider the following factors when conducting 

the best interest analysis:

(1) The strength, nature, and stability of the child’s relationship with each 

parent, including whether one (1) parent has performed the majority of 

parenting responsibilities relating to the daily needs of the child;

(2) Each parent’s or caregiver’s past and potential for future performance of 

parenting responsibilities, including the willingness and ability of each of the 

parents and caregivers to facilitate and encourage a close and continuing 

parent-child relationship between the child and both of the child’s parents, 

consistent with the best interest of the child. In determining the willingness 

of each of the parents and caregivers to facilitate and encourage a close and 

continuing parent-child relationship between the child and both of the child’s 

parents, the court shall consider the likelihood of each parent and caregiver 

to honor and facilitate court ordered parenting arrangements and rights, and 

the court shall further consider any history of either parent or any caregiver 

denying parenting time to either parent in violation of a court order;

(3) Refusal to attend a court ordered parent education seminar may be 

considered by the court as a lack of good faith effort in these proceedings;
- 9 -

(4) The disposition of each parent to provide the child with food, clothing, 

medical care, education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, defined as 

the parent who has taken the greater responsibility for performing parental 

responsibilities;

(6) The love, affection, and emotional ties existing between each parent and 

the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it 

relates to their ability to parent the child. The court may order an 

examination of a party under Rule 35 of the Tennessee Rules of Civil 

Procedure and, if necessary for the conduct of the proceedings, order the 

disclosure of confidential mental health information of a party under § 33-3-

105(3). . . .;

(9) The child’s interaction and interrelationships with siblings, other relatives 

and step-relatives, and mentors, as well as the child’s involvement with the 

child’s physical surroundings, school, or other significant activities;

(10) The importance of continuity in the child’s life and the length of time 

the child has lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the other parent 

or to any other person. The court shall, where appropriate, refer any issues 

of abuse to juvenile court for further proceedings;

(12) 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;

(13) The reasonable preference of the child if twelve (12) years of age or 

older. The court may hear the preference of a younger child upon request. 

The preference of older children should normally be given greater weight 

than those of younger children;

(14) Each parent’s employment schedule, and the court may make 

accommodations consistent with those schedules; and

(15) Any other factors deemed relevant by the court.
- 10 -

Tenn. Code Ann. § 36-6-106(a). 

The trial court found factor one to be equal because both parents “have essentially 

exercised equal parenting time since their divorce.” The court placed considerable weight 

on factor two, finding that “Mother is more likely to foster a good relationship with Father 

than the Father is with the Mother.” The trial court acknowledged Father’s difficulties in 

communicating with the child due to distractions and disruptions while she is in Mother’s 

home, but found that “this can be easily remedied.” Father’s “disparaging and distressing 

comments to Mother,” including referring to her as “ya leech,” and to himself as “just a 

pay day” were viewed unfavorably by the trial court. So, too, were Father’s objections to 

paying child support and his admonition that paying child support would “be the biggest 

strain on” the co-parenting relationship, despite earning nearly ten times as much income 

as Mother. Finally, as to factor two, the trial court considered Father’s emailed complaint 

that Mother’s visiting the child 19 out of 127 days was “excessive” during his year of 

custody. The court found this to be “evidence that Father would be less likely to support a 

positive relationship with the child’s Mother should the Father be designated as the Primary 

Residential Parent.”

As to the fourth factor, the trial court found:

[W]hile both parties are certainly capable of providing the child with food, 

clothing, medical care, education, and other necessary care, the Mother has 

a greater disposition to provide these necessities than does Father. The Court 

again refers to Father’s resentment toward paying child support [and] his 

statement that he was financially devastated by paying only $200.00 a month 

in child support when [h]is income is over $100,000.00 per year. This factor 

favors Mother. 

As to factor nine, the trial court considered the undisputed proof of the child’s 

engagement in extracurricular activities in Tennessee and Delaware. The court found that 

this factor favored Father because although “the child has bonded with her baby sister over 

the last year and has a strong relationship with her step-sister . . . most of the child’s 

extended family relationships are in Delaware.” As to the tenth factor, in consideration of 

the child’s “issues with changing schools,” the trial court reasoned that the child was “now 

settled” and enjoying a “stable environment in Tennessee,” and that it “concern[ed] the 

Court to require the child to change schools for what would be the third time in three years.” 

The court found that the fourteenth factor favored Mother because “Mother works for the 

school system and is therefore off work when the child is not in school,” whereas “Father’s 

work schedule is longer and does not follow the Delaware school schedule.”

Other relevant factors that impacted the child’s best interest weighed in Mother’s 

favor. Importantly, the trial court noted that Father did not seek to be designated primary 
- 11 -

residential parent in his answer to the petition to modify the parenting plan. The court 

found that Mother was afforded no notice of any allegations against her or of Father’s 

request to be designated primary residential parent until five days before trial. The trial 

court also considered certain exhibits showing that “Father has engaged in a pattern of 

failing to work with the Mother in transportation.”

Upon consideration of all of the above factors, the trial court determined that 

Mother’s designation as primary residential parent and the modification of the residential 

parenting schedule, as proposed by Mother, would be in the child’s best interest. Father 

does not challenge the trial court’s best interest findings, and we conclude that the evidence 

does not preponderate against them. Accordingly, we affirm the trial court’s finding that 

modification of the residential parenting schedule and of primary residential parent was in 

the best interest of the child.

2.

Father “believes that a locality adjustment can and should be made for parents, like 

himself, who live outside the state of Tennessee.” Father contends that, as applicable to 

the calculation of child support generally, “Tennessee should adopt a deviation allowing 

for a locality adjustment based on where the parties reside at the time of modification.” 

After a thorough review of the record, we find that Father failed to properly raise this issue 

in the trial court. Father testified briefly about the “prerequisite context” behind his general 

“frustration” toward Mother regarding child support payments: 

A. I had two mortgages.[6] My ex-wife stuck me with a house in Clarksville 

that I had to take care [of], so I had a mortgage there. I was trying to become 

established in Delaware and purchase a new house. On top of that, the cost 

of living in Delaware is almost triple than it is in Tennessee. So when 

[Mother’s counsel] expresses that I make all this money, I really don’t. 

Q. There’s a difference between gross and netting? 

A. Absolutely. And I learned that quickly when you’re in a higher tax 

bracket. 

Q. You understand the rules, though, don’t take into account cost of living? 

A. And I’ve never been late for a child support payment. 

Father stated “it’s not a matter of me paying the child support,” and affirmed that he 

 

6 Father admitted that he paid two mortgages for two months following the divorce. 
- 12 -

understood the obligation to pay the amount of child support ordered by the court, despite 

his opinion that Mother did not deserve such payments. 

The record is clear that the issue Father now raises on appeal was not raised through 

a pleading or argued at trial. “The law in Tennessee is well settled that issues not raised in 

the trial court may not be raised on appeal.” Blankenship v. Anesthesiology Consultants 

Exch., P.C., 446 S.W.3d 757, 760 (Tenn. Ct. App. 2014); see also Jackson v. Burrell, 602 

S.W.3d 340, 344 (Tenn. 2020). Therefore, this issue has been waived.

3.

Father argues “a parent should not be responsible for a child the other parent 

conceives after the dissolution of the marriage” and that considering “the post-marital 

child(ren) into child support modifications” is inequitable. The current agreed child 

support order entered August 29, 2019 and the incorporated child support worksheet show 

that Mother does not receive a credit for an in-home child. The child’s younger sister born 

to Mother and her husband is not considered in Father’s child support calculation. 

Therefore, we hold that this issue is moot. 

4.

Mother requests her costs and reasonable attorney fees on appeal pursuant to 

Tennessee Code Annotated section 27-1-122, which provides as follows:

When it appears to any reviewing court that the appeal from any court of 

record was frivolous or taken solely for delay, the court may, either upon 

motion of a party or of its own motion, award just damages against the 

appellant, which may include but need not be limited to, costs, interest on the 

judgment, and expenses incurred by the appellee as a result of the appeal.

The decision whether to award damages for a frivolous appeal rests solely in our discretion. 

Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009). Appellate courts exercise 

their discretion to award fees under this statute ‘“sparingly so as not to discourage 

legitimate appeals.”’ Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017) (quoting 

Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006)). ‘“Successful litigants 

should not have to bear the expense and vexation of groundless appeals.”’ Whalum, 224 

S.W.3d at 181 (quoting Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977)). “A 

frivolous appeal is one that is ‘devoid of merit,’ or one in which there is little prospect that 

it can ever succeed.” Indus. Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 

1995). Exercising our discretion, we deny the request for attorney fees and costs pursuant 

to the statute. 
- 13 -

V. CONCLUSION

We affirm the decision of the trial court. The case is remanded for such further 

proceedings as may be necessary and consistent with this Opinion. Costs of the appeal are 

taxed to the appellant, Michael Barczykowski. 

_________________________________ 

JOHN W. McCLARTY, JUDGE