IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

 APRIL 23, 2009 Session

JOEY CONNER v. CARMEN CONNER

Direct Appeal from the Chancery Court for Haywood County

No. 11718 George R. Ellis, Chancellor

No. W2008-02254-COA-R3-CV - Filed November 9, 2009

After Mother and Father divorced, a parenting plan was entered designating Father as the primary

custodian of the parties’ minor child. Mother filed a petition to modify, alleging several grounds,

including excessive corporal punishment. The trial court initially found no material change in

circumstances, but named Mother primary custodian, based on the minor child’s preference. Father

appealed, and this Court remanded, finding that the court’s ruling was premature. On remand, the

trial court, again, awarded custody to Mother, finding the following material changes in

circumstance: 1) Mother’s remarriage and having had two other children; 2) Mother’s completion

of her undergraduate degree, her work towards a Master’s degree, and having a stable job; 3)

Mother’s having left the national guard; and 4) the minor child’s preference to live with Mother. We

affirm the trial court’s modification of custody.

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

ALAN E. HIGHERS, P.J.,W.S., delivered the opinion of the court, in which DAVID R.FARMER,J., and

HOLLY M. KIRBY, J., joined.

Jennifer Twyman King, Jackson, TN, for Appellant

Felicia Corbin Johnson, Memphis, TN, for Appellee

OPINION
The trial court ordered Mother to pay $2,130.00 to purge herself of contempt. It further ordered Mother to

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pay $50.00 per week in child support, plus a clerk’s fee of 5% for a total of $52.50 per week.

 The parties agree that the January 8, 2002 Permanent Parenting Plan designated Father as primary residential 2

parent; however, our review of the plan reveals no express indication of such. 

 This allegation was later dismissed. 

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 The parties agreed to submit to a custodial evaluation. When Mother’s counsel failed to appear at a hearing

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concerning the evaluation, the trial court selected Father’s preferred psychologist, Dr. Kennon. 

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I. FACTS & PROCEDURAL HISTORY

On September 10, 1998, Joey Conner (“Father”) and Carmen Conner (“Mother”) were

divorced in the Chancery Court of Haywood County, Tennessee. The parties were granted joint

custody of their minor child, Sharron (d.o.b. 7/2/95), with Father being the primary custodian.

Sharron was to reside with Father during the week and attend school in Haywood County, and spend

weekends with Mother in Shelby County. Mother was ordered to pay thirty dollars per week in child

support to Father. 

Mother filed a Petition to Modify Custody on March 9, 2000, alleging that the parties had

privately agreed that when Sharron “reached the age of first grade, that custody primary, would be

given to the mother, who would then place the child i[n] Shelby County Schools.” Father answered

by denying the existence of any agreement to transfer custody to Mother. Along with his Answer,

Father simultaneously filed a Petition to Cite Defendant for Contempt, alleging that Mother was in

arrears on her child support payments, and had contributed nothing towards Sharron’s medical

expenses. On May 25, 2000, the chancery court entered an Order denying Mother’s request to

modify custody, and finding that Mother had failed to pay child support as ordered. On January 8, 1

2002, the chancery court entered a Permanent Parenting Plan, which provided that Father would be

the primary residential parent, with Mother having Thursday and alternate weekend visitation. 

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Father, on November 29, 2004, filed a Petition for Contempt, to Increase Child Support and

for Modification of Previous Order of the Court. Father alleged, among other things, that Mother’s

income had increased since entry of the child support Order, and that Mother’s paramours were

spending the night while Sharron was present.3

On October 27, 2005, the chancery court ordered the parties to submit to a

custodial/psychological evaluation by Dr. Robert Kennon. 

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Again, on January 12, 2006, Mother filed a Petition to modify custody. Mother alleged that

both Father and his current wife, Kim Conner, had imposed excessive corporal punishment in

disciplining Sharron, and Mother cited two specific incidents: January 20, 2005, and October 17,

2005. As additional grounds for modification, Mother claimed that because of his work schedule,
 Father did not seek a stay of the trial court’s order. The child has resided with Mother since July of 2007. 5

 In our opinion, we explained that a child’s custodial preference, alone, is insufficient to warrant a change in 6

custody. We instructed that, on remand, the chancery court should apply the legal standard on material change of

circumstances set forth in Boyer v. Heimermann, 238 S.W.3d 249 (Tenn. Ct. App. 2007). 

 The Order relied upon the previous testimony of August 22, 2006, and May 8-9, 2007. The transcript from

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the August 20, 2008 proceedings was attached to the Order and incorporated therein by reference. 

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Father spent very little time with Sharron during the week, and she also claimed that Father

prevented Sharron from participating in extra-curricular activities. 

A bench trial was conducted over August 22, 2006, November 27, 2006, and May 8-9, 2007.

The chancery court entered an Order on July 23, 2007, finding that although Mother had not

demonstrated a material change in circumstances to modify the existing parenting plan, because

Sharron’s preference was to live with Mother, Mother should be named the primary residential

parent. The chancery court further ordered Father to pay Mother $547.00 per month in child support.

 An Amended Permanent Parenting Plan Order was entered on July 23, 2007, reflecting the courtordered change in custody. 

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Both Father and Mother appealed to this Court on July 30, 2007 and August 22, 2007,

respectively. Oral argument was heard before this Court on April 22, 2008. An opinion was issued

on May 29, 2008, in which we vacated the decision of the chancery court and remanded for further

proceedings, finding that the chancery court had prematurely ruled on the modification petition,

without allowing Father to cross-examine Mother or to testify, himself. On remand, further

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proceedings were held on August 20, 2008. Thereafter, on September 25, 2008, an Order was

entered designating Mother as the primary residential parent. The Order stated, in part:

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1. The Court finds that there has been a material change in circumstance to warrant

a modification of custody and designates [Mother] as the custodial parent of the

minor child with [Father] having parenting time with the child every other weekend

and the holidays as set out by the shared parenting arrangement.

2. The Court finds that the Court had concern about [Mother] on April 28, 2000, due

to the Mother having a history of changing residences since the parties’ divorce,

changing jobs, work and school schedules, demands of military service in the

National Guard, and that she had not established a stable lifestyle at that time.

3. The Court finds that a change in circumstances are [sic] that [Mother] has

remarried, has two other children, has completed her undergraduate degree, is

working on her Master’s degree, and has a stable job at Vanderbilt Hospital. The

Court further finds that [Mother] has left the National Guard and will no longer have

the demands of military service upon her.
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4. The Court further finds that the child stated that she wanted to live with [Mother].

On October 3, 2008, Father, again, filed a Notice of Appeal to this Court. 

II. ISSUES PRESENTED

Father has timely filed his notice of appeal and presents the following issues for review,

summarized as follows:

1. Whether the trial court erred in finding a material change in circumstance warranting a

custody modification;

2. Whether the trial court erred in allowing testimony about statements made by the minor

child; and

3. Whether a modification of the Permanent Parenting Plan was in the minor child’s best

interest.

For the following reasons, we affirm the chancery court’s custody modification. 

III. STANDARD OF REVIEW

Although appellate courts are reluctant to second-guess custody decisions

when so much depends on the trial court’s assessment of the witnesses’ credibility,

Nelson v. Nelson, 66 S.W.3d 396, 901 (Tenn. Ct. App. 2001); Gaskill v. Gaskill, 936

S.W.2d 626, 631 (Tenn. Ct. App. 1996), we will reverse or modify a trial court’s

custody decision if we conclude the decision rests on an error of law, or if the

evidence preponderates against the finding that there has or has not been a material

change in the child’s circumstances or that the child’s best interests will be served by

changing an existing custody arrangement. Steen v. Steen, 61 S.W.3d 324, 328

(Tenn. Ct. App. 2001); Placencia v. Placencia, 3 S.W.3d 497, 499 (Tenn. Ct. App.

1999); Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). 

Scofield v. Scofield, No. M2006-00350-COA-R3-CV, 2007 WL 624351, at *2 (Tenn. Ct. App. Feb.

28, 2007). 

On appeal, a trial court’s factual findings are presumed to be correct, and we will not overturn

those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d)

(2008); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate

against a trial court’s finding of fact, it must support another finding of fact with greater convincing

effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney

Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. RR

Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). When the trial court makes
 Mother filed motions to exclude and to strike the testimony and reports of Dr. Pickering for various reasons;

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none of which was hearsay. Mother’s motions were overruled. Dr. Pickering’s report was entered into evidence, and

he also testified at trial. We need not determine the admissibility of Dr. Pickering’s trial testimony concerning

statements made by Sharron, as his trial testimony revealed nothing outside of his written report. 

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no specific findings of fact, we review the record to determine where the preponderance of the

evidence lies. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997) (citing Kemp v. Thurmond,

521 S.W.2d 806, 808 (Tenn. 1975)). We review a trial court’s conclusions of law under a de novo

standard upon the record with no presumption of correctness. Union Carbide Corp. v. Huddleston,

854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d

815, 817 (Tenn. Ct. App. 1989)).

IV. DISCUSSION

A. Testimony of the Minor Child

 

On appeal, Father alleges that the trial court erred in allowing witnesses to testify about

statements allegedly made by Sharron regarding her custodial preference, as this testimony was

hearsay because Sharron did not testify. We find admissible all references to statements made by

Sharron contained within the reports of Drs. Keenon and Pickering, as neither party raised hearsay

as an objection to the reports’ admission into evidence. See Ray v. Ray, No. M2003-01158-COA- 8

R3-CV, 2004 WL 1114578, at *20 n.4 (Tenn. Ct. App. May 18, 2004) (finding hearsay objection

waived where party failed to timely object to admission of psychological report containing hearsay).

We need not consider the admissibility of the testimony of other witnesses regarding

Sharron’s statements. Even if we were to find such testimony inadmissible, the trial court had ample

evidence in the expert reports from which it could consider Sharron’s custodial preference. 

B. Material Change in Circumstance

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

foreseeable when the decision was made[.]” Scofield, 2007 WL 624351, at *3 (citing Young v.

Smith, 246 S.W.2d 93, 95 (Tenn. 1952); Steen, 61 S.W.3d at 327; Solima v. Solima, 7 S.W.3d 30,

32 (Tenn. Ct. App. 1998); Long v. Long, 488 S.W.2d 729, 731-32 (Tenn. Ct. App. 1972)). However,

because children’s and parents’ circumstances change, our courts are “empowered to alter custody

arrangements when intervening circumstances require modifications.” Id. (citing Tenn. Code Ann.

§ 36-6-101(a)(1); see Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995)). 

Modification of an existing custody or visitation arrangement involves a two-step analysis.

See Boyer, 238 S.W.3d at 255. First, the parent attempting to modify the existing custody or

visitation arrangement must prove that a material change in circumstances has occurred. See Taylor

v. McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *3 (Tenn. Ct. App. Aug. 5,

2008) (citing Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002)). “[N]ot all changes in the

circumstances of the parties and the child warrant a change in custody.” Cosner, 2008 WL 3892024,
Over the years, the Tennessee Supreme Court ha[d] consistently declined to review

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this court’s decisions holding that the changed circumstances that will trigger a

consideration of a change in custody must involve changes in the child’s

circumstances rather than in either or both of the parents’ circumstances. Steen v.

Steen, 61 S.W.3d at 327; Hoalcraft v. Smithson, 19 S.W.3d at 829. The Court has

now decided that a change in either parent’s circumstances can also trigger a

change of custody if the change “affects the child’s well-being.” Kendrick v.

Shoemake, 90 S.W.3d at 570. While a change in the custodial parent’s

circumstances necessarily affects the child, a change in the noncustodial parent’s

circumstances may not. Because the court did not explicitly limit Kendrick v.

Shoemake to changes in the custodial parent’s circumstances, we must presume that

the court now envisions that changes in a noncustodial parent’s circumstances can

justify a change of custody if the non-custodial parent can demonstrate that the

change in his or her circumstances somehow affects the child.

Oliver, 2004 WL 892536, at *3 n.3.

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at *4. “There are no hard and fast rules for when there has been a change of circumstances sufficient

to justify a change in custody.” Id. (citing Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003)).

The decision turns on the facts of each case. Scofield, 2007 WL 624351, at *4. However, to

determine whether a material change in circumstance has occurred, the court should consider

whether: “(1) the change occurred after the entry of the order sought to be modified; (2) the changed

circumstances were not reasonably anticipated when the underlying decree was entered, and (3) the

change is one that affects the child’s well-being in a meaningful way.” Cosner, 2008 WL 3892024,

at *4 (citing Kendrick, 90 S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002);

Cranston, 106 S.W.3d at 644). “The presence of the word ‘material’ indicates that the change must

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be significant.” Patterson v. Patterson, No. W1999-01544-COA-R3-CV, 2000 WL 33774558, at

*3 (citing Black's Law Dictionary 991 (7th ed. 1999)). “If the person seeking the change of custody

cannot demonstrate that the child’s circumstances have changed in some material way, the trial court

should not re-examine the comparative fitness of the parents, Caudill v. Foley, 21 S.W.3d 203, 213

(Tenn. Ct. App. 1999), or engage in a ‘best interests of the child’ analysis. Rather, in the absence

of proof of a material change in the child’s circumstances, the trial court should simply decline to

change custody.” Oliver v. Oliver, No. M2002-02880-COA-R3-CV, 2004 WL 892536, at *3 (citing

Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999)). 

Incorporated into its Order Granting Modification of Custody is the transcript of the trial

court’s ruling from the bench, where the judge stated that 

After hearing this petition of August the 22 of 2006, May the 8 of 2007, May the nd th

9 of 2007, and today [August 20, 2008], the Court is convinced that there has been

th

a material change in circumstances based on - - The first hearing, the Court had a

great deal of concern about [Mother]. The unrefuted proof was that she had a history

of changing residence since the divorce, changing jobs, work and school schedules

and that she had not established a stable lifestyle at that time. This was 4/27/00.

Also during the many hearings, the Court became aware that [Mother] . . . had joined

the National Guard and that the demands ofmilitary service would provide a difficult
Although the minor child’s custodial preference was listed separately from the material changes in 10

circumstance, it seems the trial court intended to include such preference among the material changes in circumstance.

 On appeal, Mother points only to Father’s alleged abuse and his refusal to allow Sharron to participate in 11

ballet classes as material changes in circumstance. 

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job for being the custodial parent, however, the change of circumstances are that

[Mother] . . . is married and has two other children, has completed her undergraduate

degree and is working on her Master’s degree and has a stable job at Vanderbilt

Hospital and that she has left the National Guard, and so the demands of military

service will no longer be upon her. One of the concerns is, going on the record, that

[Mother] had to leave the United States to serve in Iraq for a period of time, which

would absolutely preclude her from taking care of this minor child.

In its Order, the trial court also noted Sharron’s expressed desire to live with Mother. We note that 10

Mother raised the alleged abuse by Father as a material change in circumstance in her petition to

modify custody; however, the trial court did not explicitly find the alleged abuse to be a material

change.11

Initially, a trial was conducted over three days in this matter. On remand, a fourth day of

testimony was held. Thus, the trial court record contains lengthy testimony concerning the

modification of custody. After a thorough review of the evidence before the trial court, we find that

the evidence does not preponderate against the trial court’s finding that Mother has proved a material

change in circumstance.

On remand, the trial court listed Mother’s remarriage and her having had two other children

as one of several material changes in circumstance warranting a modification of custody. This Court

has stated that “[r]emarriage, by itself, is not the sort of change in circumstances that triggers a reexamination of an existing custody arrangement because remarriage is such a common occurrence

in contemporary society that it can reasonably be anticipated when parties divorce.” McEvoy v.

Brewer, No. M2001-02054-COA-R3-CV, 2003 WL 22794521, at *4 (Tenn. Ct. App. Nov. 25, 2003)

(citing Buckles v. Riggs, 106 S.W.3d 668, 674 (Tenn. Ct. App. 2003); Smithson v. Eatherly, No.

01A01-9806-CV-00314, 1999 WL 548586, at *5 (Tenn. Ct. App. July 29, 1999)). In fact, statistics

show that seventy-five percent of divorced persons remarry. Smithson, 1999 WL 548586, at *5

(citing Thomas Espenshade, Marriage Trends in America: Estimates, Implication, and Underlying

Causes, 11 Population &Dev. R. 193 (1985)). “However, changes in the home environment brought

about by a later marriage may amount to a material change in circumstances if they materially affect

the child or the child’s parents.” McEvoy, 2003 WL 22794521, at *4 (citing Elder v. Elder, No.

M1998-00935-COA-R3-CV, 2001 WL 1077961, at *3 (Tenn. Ct. App. Sept. 14, 2001); McCain v.

Grim, No. 01A01-9711-CH-00634, 1999 WL 820216, at *3 (Tenn. Ct. App. Oct. 15, 1999);

Tortorich v. Erickson, 675 S.W.2d 190, 192 (Tenn. Ct. App. 1984)). “[D]ivorced parents should not
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be permitted to upset an existing custody arrangement simply because one or both of them have

married again or because the custodial parent and his or her new spouse have started a new family.”

Smithson, 1999 WL 548586, at *5. “Parents seeking to alter an existing custody arrangement must

offer some specific evidence concerning how the later marriage or the birth of new children have or

will have an adverse affect on the child before the courts will undertake a new comparative fitness

analysis.” Id. 

Sharron was born in July of 1995 when Mother was eighteen years old. Mother and Father

married in 1997, and were divorced in 1998. Father married Stepmother in January of 2000. The

parties entered into the parenting plan at issue in 2002. Under that plan, Father was named the

primary residential parent, and Mother was allowed visitation each Thursday and on alternating

weekends. The parties also alternated holidays, and every two weeks during the summer. 

At trial, Mother testified that when the parties divorced in 1998, she was living in Memphis

and Father was living in Brownsville. However, in 2000, Mother moved back to Brownsville. In

January of 2006, Mother filed her petition to modify custody. In April of 2006, she remarried, and

in October of 2006, she moved to Murfreesboro, apparently to take a job at Vanderbilt University

Hospital as an administrative assistant. At some point subsequent to the entry of the 2002 parenting

plan, Mother had two more children. Following Mother’s move to Murfreesboro, she continued to

exercise her visitation with Sharron. Grandmother testified that Sharron stayed with her on Thursday

nights, and Mother testified that on her weekends, she drove from her job in Nashville to

Brownsville on Friday afternoon and stayed in Brownsville at her parents’ home with Sharron until

Sunday night. Sharron then spent Sunday night with Mother’s parents, who took her to school on

Monday morning. 

The trial court also found, on remand, as material changes in circumstance, that Mother had

completed her undergraduate degree, had begun working on her Master’s degree, and had a stable

job at Vanderbilt Hospital. In its ruling from the bench, the trial court stated “The unrefuted proof

was that [Mother] had a history of changing residence since the divorce, changing jobs, work and

school schedules and that she had not established a stable lifestyle at that time. This was 4/27/00.”

At trial, Mother stated that she “makes more money than [she] made [when the parenting plan was

entered],” and that at entry of the plan, she “didn’t have the type of finances that [she has] now.”

Although Mother conceded at trial that she had “been in college or some form of school since before

and after th[e] parenting plan was entered in 2002[,]” the record reveals that since entry, she had in

fact completed her undergraduate degree, and begun working on an advanced degree, which allowed

Mother to earn an increased income.

The trial court also found that Mother’s having left the national guard was a material change

in circumstance. Mother joined the army national guard in 2000. She continued to live in

Brownsville until February of 2003, when she was deployed to Iraq. During Mother’s deployment,
 Grandmother was also deployed to Iraq during this time. 

12

 Mother explained the difference between the army national guard and the army reserve as the guard being

13

state and the reserve, federal. 

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Sharron resided with Father, although Mother’s father, at times, visited with Sharron. Mother 12

served on active duty in Iraq until June of 2004, when she returned to Brownsville. Upon returning

to Brownsville, Mother began commuting to Memphis to work. In May of 2006, Mother was

transferred from the army national guard to the army reserve. She explained her responsibilities 13

with the army reserve as attending drill training one weekend per month, and two weeks per summer

in Millington, Tennessee–approximately fifty miles from Brownsville. Mother testified that during

her training, she was not required to stay overnight. Therefore, she stayed at Grandmother’s home

in Brownsville and simply drove to Millington each morning. However, in May of 2008, Mother’s

eight-year contract ended, and she left the military. Mother claims, and the trial court agreed, that

her having left the military constituted a material change in circumstances. 

The middle section of this Court addressed a similar situation in Scofield v. Scofield, No.

M2006-00350-COA-R3-CV, 2007 WL 624351 (Tenn. Ct. App. Feb. 28, 2007). In Scofield, the

father was a career officer with the United States Army. Id. at *1. In 2003, when the parties

divorced, the family resided together in Huntsville, Alabama, where the father was deployed at the

Redstone Arsenal. Id. In the parties’ parenting plan, the mother was designated as the primary

residential parent of the parties’ three minor children, and the father was granted standard visitation.

Id. In the spring of 2005, the father decided to retire from the Army “so that he could make

Huntsville his permanent residence.” Id. Alleging several material changes in circumstance,

including his retirement and alleged excessive corporal punishment by the mother, the father filed

a petition to modify custody. Id. The trial court found that although the father’s impending

retirement, which afforded him a permanent residence, constituted a change in the father’s life, it did

not affect the children’s well-being in a meaningful way, such that it constituted a material change

in circumstance. Id. at *4. In affirming the trial court’s dismissal of the father’s petition, the middle

section stated as follows:

Here, Father asserts a change in his residential situation, whereby he can now

permanently reside in Huntsville. Our Supreme Court, however, has found that a

move and improvement in one parent’s residence, without more, does not constitute

a material change of circumstances. Blair, 77 S.W.3d at 150-51. The mere fact a

parent settles down and plans to remain in one location does not necessarily affect

the child’s well-being in a meaningful way. There must be more–meaning proof the

change in the parent’s life will have a substantial effect on the child’s well-being.

Blair, 77 S.W.3d at 150-51; Solima [v. Solima] 77 S.W.3d [30,] 32 [(Tenn. Ct. App.

1998)].

Id. (emphasis added). 
 In his brief, Father claims that Dr. Pickering made no such statement; however, we note that this statement

14

is found in both his trial testimony as well as in his report. 

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Finally, the trial court found that Sharron’s stated preference to live with Mother was a

material change in circumstance. In his report, Dr. Kennon stated that “[o]n three separate

interviews, Sharron expressed her desire to reside with her mother.” Dr. Pickering reported that

Sharron vacillated concerning who she wanted to live with, but “[m]ost of the time” stated that she

preferred to live with Mother. The trial court apparently placed great weight on Sharron’s alleged

expressed preference. In its oral ruling, the trial court stated that “The statement [to Dr. Pickering]

by the little girl, which was so probing, was the fact that she felt like this was the time in her life that

she needed to be with the female parent to help her with female issues that face every female.”14

“This Court has previously held that the stated preference of a child, standing alone, does not

constitute a material change in circumstances.” Conner v. Conner, No. W2007-01711-COA-R3-

CV, 2008 WL 2219255, at *3 (Tenn. Ct. App. May 29, 2008) (citing Mulkey v. Mulkey, No. E2004-

00590-COA-R3-CV, 2004 WL 2412610, at *5 (Tenn. Ct. App. Oct. 28, 2004)). However, such

preference coupled with other circumstances, may amount to a material change in circumstances.

Id.

We find that Mother’s remarriage and having had two other children, Mother’s completion

of her undergraduate degree, work towards a Master’s degree, and having a stable job, Mother’s

having left the national guard, and the minor child’s preference to live with Mother, when considered

in the aggregate, support the trial court’s finding of a material change in circumstance since entry

of the parenting plan. Mother’s newfound ability to financially support Sharron, to provide a stable

home environment without threat of deployment, and Sharron’s expressed desire to reside with her

female parent during her teenage years, constitute changes which affect Sharron in a meaningful way.

Having so found, we need not address Mother’s contention that Father’s alleged abuse of Sharron

as well as his refusal to allow her to participate in extracurricular activities are additional material

changes in circumstance. 

 

C. Best Interest of the Child

If the petitioner makes a prima facie case of a material change in circumstances then the court

must determine whether a change in custody is in the best interest of the child. In re J.C.S., No.

M2008-02049-COA-R3-PT, 2008 WL 2924982, at *6 (Tenn. Ct. App. July 28, 2008). This

determination requires consideration of a number of factors, including those set forth in Tennessee

Code Annotated section 36-6-106 to make an initial custody determination, and Tennessee Code

Annotated section 36-6-404 to fashion a residential schedule. Id.

Neither the trial court’s “Order Granting Modification of Custody,” nor its oral ruling

incorporated into such, demonstrate that the trial court undertook a best interest analysis. However,
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in the interest of judicial economy, and to further prevent further delay in this case, we will address

whether a modification of custody is in the child’s best interest.

On appeal, Father contends that the statutory factors do not support a finding that it is in the

child’s best interest to modify the custody arrangement. We disagree. After reviewing each of the

factors, we find that the evidence supports the trial court’s decision to name Mother primary

residential parent. Although most of the factors do not favor one parent over the other, certain

factors do favor Mother. Specifically, Sharron’s preference to live with Mother, along with

Sharron’s expressed feelings of “intimidation and fear” due to Father’s disciplinary style, weigh in

favor of Mother. Accordingly, we find that a modification of custody is in the best interest of the

child. 

V. CONCLUSION

For the aforementioned reasons, we affirm the trial court’s modification of custody. Costs

of this appeal are taxed to Appellant, Joey Conner, and his surety, for which execution may issue if

necessary.

___________________________________ 

ALAN E. HIGHERS, P.J., W.S.