IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 5, 2018 Session

MARY ALICE AKINS v. GRIFF ELLIOTT AKINS

Appeal from the Chancery Court for Wilson County

No. 2014-CV-223 Charles K. Smith, Chancellor

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No. M2017-00594-COA-R3-CV

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In this appeal, the father sought to revise the permanent parenting plan in order to permit 

him greater participation in the life of his daughter. The trial court denied the requested 

revision, finding that the father had failed to prove by a preponderance of the evidence 

that there had been a material change in circumstances that affected the child’s best 

interest. The father appeals. We affirm the trial court’s ruling regarding the permanent 

parenting plan, but we vacate the award of attorney’s fees and costs. 

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

Affirmed in part and Vacated in part; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which FRANK G.

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

James L. Collier, Nashville, Tennessee, for the appellant, Griff Elliott Akins.

John L. Meadows, Lebanon, Tennessee, for the appellee, Mary Alice Akins.

OPINION

I. BACKGROUND

The Defendant/Petitioner, Griff Elliott Akins (“Father”), and the 

Plaintiff/Respondent, Mary Alice (Eckel) Akins (“Mother”) were divorced in April 2013. 

They have one child (“the Child”) who was born in 2008, and was, at the time of trial, 

eight years of age. A permanent parenting plan (“the parenting plan”) was incorporated 

with the final divorce decree. It listed Mother as the Primary Residential Parent with 265 

days of residential parenting time. Father was awarded supervised parenting time of 100 

days, including every other weekend and alternating weeks during the summers. At the 

time of the divorce, Father suffered from various illnesses, including a bipolar condition 

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and migraine headaches. His health and medication needs affected his parenting ability, 

which is the reason the parenting plan required Father to have supervised visitation. His 

time with the Child was to be supervised by Father’s mother. Mother was given sole 

decision making authority regarding the Child’s education. 

In the initial request for modification, Father alleged that his health had 

significantly improved. He noted that his bipolar condition and migraines were under 

control and that he had discontinued the use of narcotic drugs.

1

 Father also asserted 

increased flexibility in his work schedule, claiming that he “could kind of get off work”

when he wanted to attend to any matters for the Child. Additionally, he contended that

Mother and the Child had moved closer to his residence. 

On May 6, 2014, the parties entered into an agreement modifying the parenting 

plan in order to gradually remove Father’s supervised visitation.2 Upon each visit, so 

many days of supervised visitation were to be removed until none remained. The agreed 

order provided that “Father’s parenting time shall be supervised by his current fiancé, 

Valerie Wemli, for one hundred twenty days to gradual unsupervised parenting time at 

the end of one hundred twenty day time period.” The order further stated “[t]hat Father’s 

parenting time shall be fully supervised for at least sixty days and then shall gradually 

become unsupervised with short to longer increments of unsupervised parenting time. 

That other approved supervisors shall supervise Father’s overnight parenting time until 

Father and his fiancé marry . . . .”3 Additionally, Father’s weekend parenting time was 

extended from Sunday to Monday, with Father taking the Child to school on Mondays 

(instead of returning her to Mother on Sundays).

On March 4, 2015, Father filed a Petition to Terminate/Suspend Alimony and a 

Petition for Contempt. He also filed another Petition to Modify, seeking to increase his 

time with his daughter because his medical condition had resolved, stepmother and the 

Child had developed a meaningful relationship, and his working conditions gave him 

more flexibility in his work schedule and required him to work less hours. By the time of 

trial, however, Father dropped all of his claims except for his request for co-equal 

visitation.

A hearing was held on January 12 and 13, 2017. During Father’s testimony, it 

became apparent that little had truly changed since the June 2014 agreement. The trial 

court found that Father did not prove by a preponderance of the evidence that there had 

been a material change of circumstances affecting the Child’s best interest since June 5, 

 

1

Evidence presented at trial revealed that Father had received surgery that helped 

alleviate his pain.

2 Agreed order was entered on June 5, 2014.

3

The couple married on May 13, 2014.
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2014. The court entered its final order granting Mother’s oral motion to dismiss on 

February 27, 2017. This timely appeal followed.

II. ISSUES

Father raises the following issues on appeal: 

1. Whether the trial court erred in finding that Father had not 

met his burden of proof in regard to whether there had been a 

substantial and material change in circumstances such that 

Father would receive additional parenting time. 

2. Whether the trial court erred in granting Mother her 

attorney’s fees.

III. STANDARD OF REVIEW

The factual findings of the trial court are given a presumption of correctness, and 

we will not overturn those findings unless the preponderance of evidence is otherwise. 

Tenn. R. App. P. 13(d); Bogan v. Bogan, S.W.3d 721, 727 (Tenn. 2001). We review 

questions of law “under a pure de novo standard of review, according no deference to the 

conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon 

Cnty Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). 

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. See In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). Thus,

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. See Tenn. R. App. P. 13(d).

A trial court’s decision regarding the details of a residential parenting schedule 

should not be reversed absent an abuse of discretion. 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 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 standards to the evidence found in the record.” Eldridge, 

42 S.W.3d at 88.
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IV. DISCUSSION

Permanent parenting plans are incorporated into final divorce decrees involving 

minor children, and parties are required to adhere to such plans until modified by law.

See Tenn. Code Ann. §36-6-404; Armbrister v. Armbrister, 414 S.W.3d 685, 697 (Tenn. 

2013). “A custody decision, once final, is res judicata upon the facts in existence or 

reasonably foreseeable when the decision was made.” Scofield v. Scofield, No. M2006-

00350-COA-R3-CV, 2007 WL 624351, at *3 (Tenn. Ct. App. Feb. 28, 2007) (citing 

Young v. Smith, 246 S.W.2d 93, 95 (Tenn. 1952)). However, the law recognizes that 

circumstances change; therefore, the court is “empowered to alter custody arrangements 

when intervening circumstances require modifications.” Scofield, 2007 WL 624351, at 

*2 (citing Tenn. Code Ann. §36-6-101(a)(1)). 

A change in circumstances with regard to a residential parenting schedule is “a 

distinct concept” from a change in circumstance with regard to custody. Massey-Holt v. 

Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007); see also Tenn. Code Ann. §§ 36-6-

101(a)(2)(B), -101(a)(2)(C). If a parent requests a change of the primary residential 

parent, then the parent must “prove by a preponderance of the evidence a material change 

in circumstance.” Massey-Holt, 255 S.W.3d at 607. The threshold for establishing a 

material change in circumstance where the issue before the court is a modification of the 

residential parenting schedule is much lower. See, e.g., Boyer v. Heimermann, 238 

S.W.3d 249, 259 (Tenn. Ct. App. 2007); see also Tenn. Code Ann. §§ 36-6-101(a)(2)(B), 

-101(a)(2)(C). The petitioner still must “prove by a preponderance of the evidence a 

material change of circumstance affecting the child’s best interest” and that the change 

occurred after the entry of the order sought to be modified. Caldwell v. Hill, 250 S.W.3d 

865, 870 (Tenn. Ct. App. 2007). However, unlike the standard for a change of primary 

residential parent, whether the change was reasonably anticipated when the prior 

residential parenting schedule order was entered is irrelevant. Armbrister, 414 S.W.3d at 

703. “[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). 

Modification of a residential parenting plan is a two-part process: the court must first 

determine whether there has been a material change in circumstances, and then second, 

the court applies the “best interest” factors set forth in Tennessee Code Annotated section 

36-6-106. Armbrister, 414 S.W.3d 697-98). The two analyses will likely substantially 

overlap. Id. at 698. As a threshold issue, the trial court must determine whether there has 

been a material change in circumstances that affects the child’s best interest since the 

implementation of the plan. In re M.J.H, 196 S.W.3d 731, 744 (Tenn. Ct. App. 2005).
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Material Change in Circumstances

Considering Father’s alleged changes in circumstances under the factors set forth 

in Tennessee Code Annotated section 36-6-101(a)(2)(C), we find that the evidence 

supports the findings of the trial court as stated below:

1. Changes in need of the child over time: The Court finds

there is no evidence put on whatsoever that there was any

change in the needs of the child.

2. Changes relating to the age of a child: The Court finds

there was no proof one-and-a-half years of age more since the 

last Order caused any [material] changes. . . .

3. Significant changes in the parents’ living condition that 

significantly affected the parenting: This right here is 

where the rubber meets the road. The Court finds there was 

significant change that affected it, but it did not affect it in a 

manner that the case law requires for there to be a change of 

circumstance. The Court further finds that Father testified the 

real problem and the primary reason he filed this Petition was 

the Mother was getting remarried and it hurt Father that the 

Step-Father would be spending more time with the minor 

child than with Father. That is the real basis for this lawsuit. 

Father basically admitted this on the stand during his 

testimony. So that is the real significant change, Mother’s 

remarrying and Step-Father spending more time with [t]he 

child. But that is not a material change that would constitute 

circumstances affecting the child’s best interest. . . .

4

The 

Court finds that the other change is eating and sleeping habits 

of the Father have changed. That Father carried that proof 

that that is a change, but the Court fails to find that this 

 

4 At trial, Father testified about stepfather: “He’s a good guy. He seems like he loves 

Alexia. But the bottom line is, he’s the stepfather. He’s not the father. So it doesn’t make sense 

to me – I need to be the main fatherly figure in my daughter’s life. It doesn’t make sense to me 

why I get 4 days a month basically, and the stepfather would get the other 27. I’m not saying 

anything bad about him at all . . . .” The trial court observed: “All the evidence was that he was 

a good stepfather, that there was, again, no problem with him. So, if [s]he was spending more 

time with the stepfather and the stepfather was abusing h[er] somehow mentally, physically, 

sexually, that would be a difference, or if the stepfather was abusing drugs, but there’s been no 

evidence of that. And all the evidence has been and testified by the father that the stepfather was 

okay, he was okay.”
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change affects the child’s best interest and he failed to prove 

it was a material change. It was just a change. That Father 

proved that he remarried and that his new wife is living in his 

home now and she was there and she and the child developed 

a good relationship. The Court finds that Father failed to 

prove by a preponderance of the evidence that this is a 

material change of circumstances affecting the child’s best 

interest. Father has failed to prove that his eating habits, the 

relationship with the Step-Mother, and his sleeping habits 

have affected the child’s well being in a meaningful way. 

Father has not shown this in any form and fashion. As to 

significant changes in parent’s working conditions, the 

flexibility is not a change. It existed as of June 5, 2014. But

the fewer hours going from 70 to 80 hours to 40 hours a week 

is a change. Merely proving that Father is working less 

hours, however, does not show that this affects the child’s 

well being in a meaningful way.5 Further, Father chose to not 

have his Wife testify about her relationship with the minor 

child.

4. Failure to adhere to the Parenting Plan: The Court finds 

that both parties have been adhering to the Parenting Plan [of 

June 5, 2014].

6

 

5

The court observed: “I’m still of the opinion, even under the guidelines from what I 

recall that was testified to, he testified that he was working 40 hours as opposed to 80 hours. I do 

not recall, and this statute, 36-6-101(a)(2)(c) says, significant change in parent’s working 

condition that significantly affects parenting. I do not feel like he put on any proof showing that 

it significantly affected parenting. You could work less hours and spend the total time watching 

TV or playing cards or playing video games. You still have the burden of proving that because 

of this, at night when me and her work on her school work, we play games, we play this game, 

that game, do that, we have a bible study, we do something. I might have just forgot it when he 

testified to it, but I don’t remember him testifying how it affected his parenting skills, the fact 

he’s working less hours. I think you-all want me to just understand that obviously a person who 

is working 80 hours is less available to be a good parent than one working 40 hours, could be,

could not be. The 80-hour-week father might be a great father, makes time for the child. An 80-

hour-week father might be a horrible parent. A 40-hour parent may be horrible, may be great. 

That’s my finding and justification for it. I do not find that there was proof put on to that effect.”

6

Father argued that the school was leaving him out of educational decisions and events, 

but testified that it was not Mother’s fault and that she was a good mother and had been adhering 

to the parenting plan. The court found that Father did not help with educational expenses of the 

Child, so Mother should be allowed to make educational decisions on behalf of the Child.
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5. Other circumstances making [a] change in the

parenting time in the best interest of the child: The Court 

finds that Father put on no proof of any other circumstances 

making a change of parenting time in the best interest of the 

child.

Despite Father now arguing several material changes in circumstances, such as the 

resolution of his medical conditions and the flexibility of his work schedule, it appears 

that these changes were present or occurring at the time of the original petition to modify 

and were considered during the prior agreement between the parties. The evidence 

presented does not preponderate against the trial court’s determination that the changes 

asserted by Father do not amount to a material change in circumstances for purposes of 

modifying the parenting plan.

Best Interest

If the court had found that material changes in circumstances had occurred, the 

second determination the court would have made was whether a modification of the 

existing parenting plan would be in the Child’s best interest using the factors set forth in 

Tennessee Code Annotated section 36-6-106(a). Armbrister, 414 S.W.3d at 705. See 

Tenn. Code Ann. §36-6-101(a)(2)(C). “In any proceeding between parents under this 

chapter, the best interests of the child shall be the standard by which the court determines 

and allocates the parties’ parental responsibilities.” Tenn. Code Ann. 36-6-401(a). The 

statute emphasizes the need for stability and consistency in the child’s life. Id. “[T]he 

best interests of the child are served by a parenting arrangement that best maintains a 

child’s emotional growth, health and stability, and physical care.” Id. 

Because the trial court concluded that Father failed to prove a material change of 

circumstances in this case, it heard no “best interests” testimony. The record reveals that 

the Child is doing well under the current parenting plan. Father admitted that the Child is 

not nervous, does not suffer from anxiety, has no depression or aggression, and gets 

along well with other children. Father acknowledged that the Child was a “very happy, 

healthy little girl.” He testified:

THE WITNESS: Your Honor, if I could just say this. I’m 

not in any way, shape, or form trying to get any more custody 

of my child because of a bad mother. I’m not trying to say 

she’s an unhealthy, unstable child and that something needs 

to be changed that way. She’s a good mom. I just would like 

more time with her.
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On re-direct, Father testified: “My job was always flexible, but the hours I worked 

between 2014 and 2015 have drastically changed.” When asked if he had anything to add 

to his testimony:

Just that I’m here, not for money. I’m not here to say she’s a 

bad mother. I’m not here saying the stepfather is a bad 

person. Like I said earlier, [the Child] is very well loved. I

can’t help that I was sick. I can’t help that. I can’t help that 

I’m bipolar Type 2.

The trial court specifically stated that the Child “is super intelligent, active, and 

healthy, making good grades” and “is thriving.” In granting the motion to dismiss, the 

court found that “where the child is presently living now and under the current Parent 

Plan, . . . the child is doing super.” Because Father failed to prove any material change, 

we do not consider whether modification would be in the Child’s best interest. 

Accordingly, we affirm the decision of the trial court that Father failed to meet his burden 

to prove that a material change in circumstances merited a modification of the parenting 

plan. 

Attorney’s Fees and Costs at Trial and on Appeal

When the trial court entered its final order in the matter, the applicable version of 

Tennessee Code Annotated section 36-5-103(c) provided as follows:

The plaintiff spouse may recover from the defendant spouse, 

and the spouse or other person to whom the custody of the 

child, or children, is awarded may recover from the other 

spouse reasonable attorney fees incurred in enforcing any 

decree for alimony and/or child support, or in regard to any 

suit or action concerning the adjudication of the custody or 

the change of custody of any child, or children, of the parties,

both upon the original divorce hearing and at any subsequent 

hearing, which fees may be fixed and allowed by the court, 

before whom such action or proceeding is pending, in the 

discretion of such court.

Tenn. Code Ann. § 36-5-103(c). An amended statute went into effect on July 1, 2018:

A prevailing party may recover reasonable attorney’s fees, 

which may be fixed and allowed in the court’s discretion, 

from the non-prevailing party in any criminal or civil 

contempt action or other proceeding to enforce, alter, change, 
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or modify any decree of alimony, child support, or provision 

of a permanent parenting plan order, or in any suit or action 

concerning the adjudication of the custody or change of 

custody of any children, both upon the original divorce 

hearing and at any subsequent hearing.

Tenn. Code Ann. § 36-5-103(c) (emphasis added).

7

 The revised version of the statute 

specifically allows attorney’s fees incurred in contempt proceedings and matters 

involving permanent parenting plans, whereas the earlier language did not. See, e.g., 

Watts v. Watts, 519 S.W.3d 572 (Tenn. Ct. App. June 8, 2016) (reversing attorney’s fee 

award for criminal contempt action for lack of statutory authority). The old version

controls the instant case. 

We note that at the trial level, Father not only sought a modification of the 

parenting plan, but sought to hold Mother in contempt and to stop alimony payments. 

The contempt and alimony claims were dropped on the first day of trial, but Mother had 

been required to address them throughout the litigation process in addition to Father’s 

modification challenge. Before the trial court, Father agreed that the awarded attorney’s 

fees, $21,722.36, “are directly related to Father’s Petition to Modify and are reasonable.” 

However, despite previously agreeing that the attorney’s fees requested were reasonable, 

Father now asserts that the trial court “inappropriately relied on Tennessee Code 

Annotated § 36-5-103(c)” and “seemed to treat this case as a custody matter rather than a 

modification to Father’s parenting time.”

In our view, the prior version of 36-5-103(c) did not authorize the award of 

attorney’s fees related to petitions for contempt or modification of the permanent 

parenting plan. Thus, we find that the trial court improperly awarded Mother attorney’s 

fees and costs related to these issues. Accordingly, we must vacate in part the trial 

court’s award and remand for a hearing regarding the attorney’s fees that may be assessed 

involving the alimony issue. 

This court also has the discretion to award attorney’s fees pursuant to Tennessee 

Code Annotated section 36-5-103(c). When deciding attorney’s fees on appeal, the court 

considers the following factors: “the party’s ability to pay such fees, the requesting 

party’s success on appeal, whether the appeal was taken in good faith, and any other 

equitable factors relevant in a given case.” Moran v. Willensky, 399 S.W.3d 651, 666 

(Tenn. Ct. App. 2010). Although Father raised matters resolved in a prior order, no 

substantive evidence was presented, and Father even admitted that Mother was a splendid 

parent and that the Child is thriving, we, exercising our discretion, do not find an award 

of attorney’s fees on appeal to be appropriate. Mother’s request for attorney’s fees on 

appeal is denied.

 

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Public Chapter 905 (H.B. 2526). Signed by then Gov. Bill Haslam on May 3, 2018.
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V. CONCLUSION

For the foregoing reasons, we vacate in part the trial court’s order of attorney’s 

fees. The trial court’s judgment is otherwise affirmed, and the case is remanded for 

further proceedings consistent with this opinion. Costs of the appeal are assessed onehalf to the appellant, Griff Elliott Akins, and one-half to the appellee, Mary Alice Akins.

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JOHN W. MCCLARTY, JUDGE