IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 25, 2016 Session

C.W.H. V. L.A.S.1

Appeal from the Juvenile Court for Hamilton County

No. 28546, 28547 Robert D. Philyaw, Judge

No. E2015-01498-COA-R3-JV – Filed October 31, 2016

 _________________________________

This is a custody case involving two children.2 C.W.H. (Father) and L.A.S. (Mother) 

modified, by an agreed order, an existing parenting plan for their children, P.H. and V.H. 

The modification continued Mother as the children‟s primary residential parent. Soon 

thereafter, Father learned that Mother worked in Nevada as a prostitute. He filed a 

motion seeking an emergency temporary custody order and a temporary restraining order. 

The juvenile court magistrate found that a material change in circumstances had

occurred. It changed the identity of the children‟s primary residential parent from Mother 

to Father. Mother appealed to the trial court. After a hearing, the trial court (1) 

confirmed the magistrate‟s decision and (2) designated Father as the primary residential 

parent. Mother appealed to this Court. In the first appeal, we held that the trial court‟s 

order lacked a “best interest” analysis. As a result, we vacated that order and directed the 

trial court to (1) make a best interest analysis and thereafter (2) enter a new permanent 

parenting plan. On remand, the trial court (1) incorporated its past findings, (2)

conducted a best interest analysis, and (3) held in Father‟s favor. Mother again appeals. 

We reverse because we hold that the evidence preponderates, in part but significantly,

against the trial court‟s factual findings supporting its judgment. 

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

Vacated in Part and Reversed in Part; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

 

1

In order to preserve the anonymity of the minor children and related individuals in this 

case, involving, as it does, sensitive matters, we have abbreviated their names. See In re Alysia 

M.S., No. M2011-02008-COA-R3-JV, 2013 WL 1501710, at *1, n.1 (Tenn. Ct. App., filed Apr. 

11, 2013).

2

This is the second time this case has been before us.
2

Alan R. Beard, Chattanooga, Tennessee, for the appellant, L.A.S. 

Randall D. Larramore, Chattanooga, Tennessee, for the appellee, C.W.H. 

OPINION

I. 

Mother and Father were never married to each other. They once lived together in 

Chattanooga. After the births of their two children, the parties‟ relationship ended in 

November 2010. Mother planned to move to Ohio for graduate school. In the spring of 

2011, in anticipation of Mother‟s relocation, the parties entered into an agreed parenting 

plan with a long-distance parenting schedule. The plan designated Mother as the primary 

residential parent and split parenting time between the parties. It placed the children with 

Mother 221 days a year. The balance was allocated to Father. Mother moved to Ohio in 

June 2011. The children stayed in Chattanooga with Father until the end of the summer

in order to give Mother an opportunity to get settled. 

In February 2012, unsatisfied with his parenting time, Father filed a petition for 

modification of the 2011 parenting plan. He also sought an order finding Mother in 

contempt. The parties resolved the issues raised by Father at a February 2013 

conference. They agreed on a plan that adjusted the day-to-day schedule, but still gave 

Mother primary custody and the same amount of yearly parenting time. The parties also 

agreed to set Father‟s child support arrearage at $2,527. He was also assessed a medical

expenses arrearage of $7,500. Despite their agreement, Mother testified that the 

arrearage should have been more:

. . . that‟s what we agreed on and negotiated during the 

mediation, but I have over $33,000 in medical bills that he 

has not paid for, nor has he paid for any insurance or 

premiums of medical bills [sic] before.

The new plan was incorporated into an order that was entered March 1, 2013. 

Soon after the order was entered, Father learned that Mother worked as a licensed 

prostitute in Nevada. On March 12, 2013, he filed a motion for an emergency temporary 

custody order and temporary restraining order. A magistrate heard the matter in August 

2013. The magistrate treated Father‟s motion as a petition to modify the March 1, 2013 

parenting plan. The magistrate ruled in Father‟s favor, finding that a material change in 

circumstances had occurred and that it was in the children‟s best interest to designate 
3

Father as the primary residential parent. Mother appealed to the trial court. The trial

court held a hearing at which it heard testimony and considered documentary evidence. 

The evidence before the trial court was summarized by us in our first opinion in this case: 

Father testified. While the parties never married, they had 

dated exclusively for some period. Soon after their breakup, 

Father learned that Mother was pregnant. Their son was born 

in January 2009. At that time, Mother lived in Ohio and 

Father in Pennsylvania. In August 2009, Mother and Father 

resumed a relationship and moved to Chattanooga, 

Tennessee. In Chattanooga, Mother and Father lived at the 

maternal grandmother‟s home. The parties‟ second child, a 

daughter, was born in June 2010. The parties broke up in 

November 2010.

In March or April 2011, Father met [Stepmother] through his 

job and they began a relationship. Father married 

[Stepmother] in September 2011, despite Mother‟s 

misgivings. . . . Mother and Father entered into a parenting 

plan in Tennessee providing for Mother to move to Ohio with 

the [c]hildren. However, problems developed. Father 

testified that in August 2011, he visited Ohio to see the 

[c]hildren but could only see them at their daycare. Father 

was refused his parenting time during the 2011 Thanksgiving 

holiday. In January 2012, Father could not see the [c]hildren 

during a visit to Ohio because the Ohio Child Services agency 

was investigating Mother for abuse.3

In February 2012, Father filed a petition for contempt and 

modification based on the ongoing difficulties under the then 

existing parenting plan. In May 2012, [Stepmother] . . . gave 

birth to a daughter. According to Father, Mother was not 

receptive to the new child and even stated that Father‟s and 

[Stepmother‟s] daughter was not really the [c]hildren‟s 

sibling. After more squabbling over parenting time, the 

[c]hildren returned to Chattanooga and Father. The 

 

3

Father testified that the investigation stemmed from a preschool teacher having reported 

that Mother “pushed them maybe or something.” However, nothing appears to have come from 

the investigation. 
4

[c]hildren‟s luggage indicated that they had been in the 

western United States. Father did not understand what this 

was about. Father believed the [c]hildren had been with 

Mother in Ohio. 

In February 2013, Mother and Father entered into a 

conference to resolve the petition filed earlier by Father. 

During the conference, Mother represented that she was 

working as an “independent contractor.” A permanent 

parenting plan was agreed to and entered. In March 2013, a 

revelation broke. Father learned that Mother actually was 

working as a licensed prostitute in Nevada. Father did some 

research and discovered that Mother had been working as a 

licensed prostitute in Nevada since June 2012. Father 

additionally discovered that Mother had been working under 

the name [V.L.], a name very similar to the name of the 

parties‟ daughter. The [c]hildren returned to Chattanooga in 

mid-2013.

Mother testified. Mother presented her side of the 

controversy. According to Mother, she got deeper into debt 

while attending school in Ohio. Mother stated that Father did 

not consistently provide support for the [c]hildren. Father, as 

reflected in the 2013 Parenting Plan, was thousands of dollars 

in arrears for medical bills for the [c]hildren and child 

support. Mother aspired to work as a social worker but could 

not find any openings at first. In order to relieve her financial 

burden, Mother began work as a licensed prostitute at the 

Moonlight Bunny Ranch [(the Ranch)] in Nevada. According 

to Mother, the [c]hildren were not exposed to her occupation. 

Mother denied that the [c]hildren suffered any abuse or 

neglect as a result of her work as a Nevada licensed 

prostitute, which she maintains she undertook for justifiable 

financial reasons. Regarding why she did not disclose her 

occupation in the lead-up to the 2013 agreed parenting plan, 

Mother stated that she was not asked about it. By the time of 

trial, Mother was out of the prostitution business and doing 

social work in Nevada after having received her master‟s 

degree in social work and her provisional license from the 

state of Nevada for social work.
5

Other relevant testimony was heard by the Juvenile Court. 

Numerous witnesses testified to the health and well-being of 

the [c]hildren under Father‟s care. The [c]hildren have access 

to an extended family in Chattanooga and excellent education 

facilities in that area. Trial testimony was elicited about 

Father‟s snorting cocaine in his house with a woman other 

than his wife while the [c]hildren and his and [Stepmother‟s] 

daughter were asleep in the house. When asked where 

[Stepmother] was while he and his female friend snorted 

cocaine in his house while his children were sleeping, Father 

testified: “She got herself into a – she got picked up and she 

was in the drunk tank.” Father also had cheated on [her] with 

another woman before the marriage was even a year old. 

Over the course of this matter, Father had been promoted to a 

management position in the restaurant business.

C.W.H. v. L.A.S., No. E2014-00893-COA-R3-JV, 2015 WL 128537, *1-4 (Tenn. Ct. 

App., filed January 8, 2015) (our footnote three was a footnote in our summary in the 

first opinion). 

In the first hearing before the trial court, it designated Father as the primary 

residential parent, provided a long-distance visitation schedule for Mother, and reduced 

her parenting time from 221 days annually to 90 days. On appeal, we vacated the trial 

court‟s judgment and directed the trial court “to enter a permanent parenting plan after 

considering all relevant factors and making a best interest analysis.” Id. at *5. We

specifically declined to determine whether the lower court “erred in finding a material 

change in circumstances.” Id. 

On remand, the parties were given an opportunity to offer new evidence. Neither 

did. Both parties put forth a proposed best interest analysis. On July 10, 2015, the trial 

court entered a new order, which incorporated its prior order and included a best interest 

analysis, holding in Father‟s favor. Mother again appeals to this Court. 

II.

On appeal, Mother raises the issue of whether the trial court erred in awarding 

custody of the children to Father. Father also raises the issue of whether the trial court 

erred in denying his request for attorney‟s fees. 
6

III.

We review the trial court‟s findings of fact de novo with a presumption of 

correctness, unless the evidence preponderates against these findings. Tenn. R. App. P. 

13(d). “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 685, 692-93 (Tenn. 2013) 

(citing In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007)). For this reason, 

“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. at 693 (citing Tenn. R. App. P. 13(d)). 

We review the trial court‟s conclusions of law de novo with no presumption of 

correctness. Id. at 692. However, in this matter, our de novo review is subject to “the 

well-established principle that a trial court has wide discretion in matters of custody and 

visitation.” Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996) (citing Suttles v. 

Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)) (italics omitted). “[T]he trial court‟s 

decision will not ordinarily be reversed absent some abuse of that discretion[.]” Id. at 

942 (citation omitted). “A trial court abuses its discretion when it applies an incorrect 

legal standard, reaches an illogical conclusion, bases its decision on a clearly erroneous 

assessment of the evidence, or employs reasoning that causes an injustice to the 

complaining party.” In re Izzabella B., No. M2015-00963-COA-R3-JV, 2016 WL 

1650687, at *4 (Tenn. Ct. App., filed Apr. 22, 2016) (citing State v. Banks, 271 S.W.3d 

90, 116 (Tenn. 2008)). “Nevertheless, discretionary decisions must be based on the 

applicable law and the relevant facts; accordingly, they are not immune from meaningful 

appellate review.” Gooding v. Gooding, 477 S.W.3d 774, 776 (Tenn. Ct. App. 2015). 

IV.

A.

To modify an existing parenting plan, the petitioner must prove that there has been 

a material change in circumstance that affects the well-being of the children and that

modification is in the children‟s best interest. Murray v. Murray, No. M2009-01576-

COA-R3-CV, 2010 WL 3852218, at *6 (Tenn. Ct. App., filed Sept. 28, 2010) (citing 

Cranston v. Crumbs, 106 S.W.3d 833, 839 (Tenn. Ct. App. 2003)). Tenn. Code Ann. § 

36-6-101(a)(2)(B) (2012) provides the standard for establishing a “material change in 

circumstance:” 
7

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). To determine whether a material change in 

circumstances has occurred, this Court has previously considered: “(1) whether a change 

has occurred after the entry of the order sought to be modified; (2) whether a change was 

known or reasonably anticipated when the order was entered; and (3) whether a change is 

one that affects the child’s well-being in a meaningful way.” Kesterson v. Varner, 172 

S.W.3d 556, 567 (Tenn. Ct. App. 2005) (citing Kendrick v. Shoemake, 90 S.W.3d 566, 

570 (Tenn. 2002)) (emphasis added). In the present matter, the trial court, in its April 16, 

20144and July 10, 2015 orders, found there had been a material change in circumstances 

of the children for three specific reasons: “because of Mother‟s deceit, Mother‟s 

occupation as a prostitute, and Mother‟s hostility toward Father and his wife.” We will 

consider each reason separately. 

Father filed a motion for emergency temporary custody on March 12, 2013, in 

which he asserted that the parenting plan, entered on March 1, 2013, “was secured by 

fraud and/or material misrepresentation or omissions.” In the first appeal, we held that 

Father‟s March 12 petition “filed some two odd weeks after entry of the 2013 parenting 

plan, represented a motion to alter or amend the March 2013 modification of the 2011 

parenting plan.” C.W.H., 2015 WL 128537, at *4. As a result, “the Juvenile Court 

properly considered evidence dating back to the entry of the 2011 permanent parenting 

plan.” Id. 

Mother does not dispute that in June 2012 she acquired a Nevada license to work 

as a prostitute. She stated that she lived in Ohio and traveled to Nevada to work at the 

“Moonlight Bunny Ranch.” Mother disputes that, at the 2013 settlement conference, she 

deceived Father regarding her work as a prostitute, though she admits she did not disclose 

her then occupation. Instead, she testified that at the conference she stated that she 

worked as an “independent contractor.” She maintains she was not asked about the 

nature or location of her work. Father‟s counsel emphasized the length of the settlement 

conference to cast doubt on Mother‟s claim. At trial, Father recalled the conference 

lasted “[a] few hours, two or three[.]” Mother at first recalled it lasted “[m]aybe an hour, 

I don‟t know.” In his closing statement, Father‟s counsel said, “That‟s just stunning to 

 

4

This order incorporated a memorandum opinion entered December 5, 2013.
8

me that you could have a three-hour conference settlement, come out with a 

comprehensive parenting plan and assert that somehow you weren‟t hiding the fact that 

you‟re a prostitute.” He added, “It just doesn‟t stand the straight face test.” Father 

testified that, based on Mother‟s assertions at the conference, he understood she worked 

“as an independent contractor doing p.r.n. work, social work in Cleveland, Ohio.” On the 

second day of trial, Father testified Mother had told him 

she was an independent contractor doing social work. And I 

believed, because she was living in Ohio . . . that it would be 

in Ohio.

Father acknowledged that, prior to entering into the agreed parenting plan, at the 2013 

conference, Mother disclosed she had applied for jobs in Nevada and might move there. 

The trial court did not elaborate as to exactly how Mother had deceived5Father. 

Still, appellate courts must give “great weight” to “the credibility accorded by the trial 

court,” because “the weight, faith, and credit to be given to any witness‟s testimony lies 

in the first instance with the trial court, which has the opportunity to observe the 

witnesses‟ manner and demeanor while testifying[.]” B.M.M. v. P.R.M., No. M2002-

 

5 With regard to “deceit,” this court has previously stated that 

The elements of misrepresentation and deceit are set out in 

Edwards v. Travelers Insurance of Hartford Connecticut, 563 

F.2d 105 (6th Cir. 1977), as follows: (1) There must be a 

representation of an existing or past fact and not an opinion or 

conjecture about future events; (2) the representation must be false; 

(3) the representation must be in regard to a material fact; (4) there 

must be proof of fraud and fraud is proven when it is shown that a 

false representation is made (a) knowingly, or (b) without belief in 

its truth, or (c) recklessly, carelessly, whether it be true or false; (5) 

the plaintiff must rely reasonably on the misrepresented material 

fact; and (6) the plaintiff must suffer damages.

Each and every element must be proven in order for the 

[petitioners] to prevail. Fraud is never presumed. The burden is 

on the [petitioners] to prove a false representation of an existing or 

past material fact. 

Woosley v. Bailey, No. 01-A-019112CH00470, 1992 WL 187639, at *5 (Tenn. Ct. App., filed 

Aug. 7, 1992). 
9

02242-COA-R3-CV, 2004 WL 1853418, at *17 (Tenn. Ct. App., filed Aug. 18, 2004) 

(citing In re Estate of Walton v. Young (In re Estate of Walton), 950 S.W.2d 956, 959 

(Tenn. 1997)). The trial judge found that Mother deceived Father about her work as a 

prostitute. 

On appeal, Father argues that “[t]he discovery of this deceit and misrepresentation 

clearly represents an unexpected change in circumstances,” which he says warrants 

modification of the parenting plan. However, it is clearly recited in the cases that “[a]s a 

general rule, „changed circumstances‟ include any material change of circumstances 

affecting the welfare of the child including new facts or changed conditions which could 

not be anticipated by the former decree.” In re T.C.D., 261 S.W.3d at 743-44 (citation 

omitted). The trial court did not make an express finding as to how Mother‟s deceit 

affected the children‟s well-being. Father offers none in his brief. It is clear beyond any 

doubt that our case law requires a court to make findings as to the “affecting the welfare 

of the child” issue in order to establish that a material change in circumstances has 

occurred. “[T]o qualify as „material,‟ the change in circumstances must be „one that 

affects the child’s well-being in a meaningful way.‟ ” Williams v. Singler, No. W2012-

01253-COA-R3-JV, 2013 WL 3927934, at *13 (Tenn. Ct. App., filed July 31, 2013) 

(emphasis added; internal citation omitted). Without describing how Mother‟s deceit 

affected the welfare of the children, the evidence is insufficient to support a finding that a 

material change in circumstances occurred. There is no evidence in this record showing 

that Mother‟s occupation as a licensed prostitute in Nevada has affected the children. 

Therefore, assuming solely for the purpose of argument, that Mother was deceitful, this, 

standing alone, does not constitute a material change in circumstances without an “effect” 

finding. 

We next consider the trial court‟s finding that “Mother‟s occupation as a 

prostitute” amounts to a material change in circumstances. Mother argues that “[t]here 

was never even an allegation of specific harm to the children, or any basis to conclude, 

after the proof presented, that the children, ages 3 and 4, had been adversely affected by 

the [M]other‟s temporary work” as a prostitute. Therefore, she argues, Father did not 

meet his burden of proof under Kesterson to establish that a material change in 

circumstances had occurred. 

Father asserts that Tennessee has a clear, long-standing public policy against 

prostitution, citing Tenn. Code Ann. § 39-13-513, Childress v. City of Nashville, 35 

Tenn. 347 (1885), and State v. Friedman, No. M2004-01266-CCA-R3-CD, 2005 WL 

1353313 (Tenn. Crim. App., filed June 8, 2005). Father argues that, in light of 

Tennessee‟s public policy against prostitution, “the behavior at issue in this case[ ] has 

been found to be per se deleterious . . .” such that we “should presume the danger to the 
10

children from being exposed to the practice.” (Emphasis added.) Nowhere in Father‟s 

brief does he establish how the children have been “exposed to the practice” of 

prostitution. 

In the hearing before the juvenile court magistrate, Mother admitted that she had 

worked as a prostitute. When the case was before the juvenile court, she denied that she

was still engaged in prostitution. Mother asserted that, on September 10, 2013, she began 

working in Nevada as a social worker, the professional field in which she earned a 

master‟s degree. Mother entered into evidence copies of her provisional license from the 

Nevada State Board of Examiners for Social Work, her earnings statements from her 

work as a social worker,6an employee benefits summary from that employment, her 

resume, diplomas memorializing her bachelor‟s and master‟s degrees, and academic 

awards. The earnings statements in evidence indicate that from September 2013 until 

trial, Mother worked about ninety hours every two weeks. Still, the trial court found: 

. . . Mother testified that she is now working full-time as a 

social worker in Nevada, although the Court does not find this 

testimony to be credible. Although Mother testified that she 

has no plans to work as a prostitute any more, there 

apparently was no other reasonable tie for her in Nevada, and 

all of Mother‟s family is in Chattanooga. Father‟s wife‟s 

extended family is also in Chattanooga. The Court finds that 

Mother lacked integrity on several issues, including her 

current employment. 

Mother argues in her brief that the “trial court . . . seems to presume unequivocally that 

Mother is still engaged in prostitution[.]” We agree with Mother on this point. As we 

will address in more detail later in this opinion, the trial court‟s best interest analysis 

generally relies on a finding that Mother was still engaged in prostitution. This can be 

seen from the trial court‟s statements, e.g., “Mother‟s employment may require her to be 

 

6 Mother did not state the name of her current employer at trial. However, the “earnings 

statements” in evidence lists her employer as the “The MENTOR Network” with a mailing 

address in Edina, Minnesota. The Mentor Network‟s website, which displays the same corporate 

logo as the one that appears on Mother‟s earnings statement, indicates it is “a national network of 

local health and human service providers in 35 states offering an array of quality, communitybased services to adults and children with intellectual and developmental disabilities[.]” See 

http://thementornetwork.com/ (last visited Oct. 4, 2015). The same website indicates the 

company has a location in Carson City, Nevada. Id. Mother‟s earnings statement lists her 

address as Dayton, Nevada, a city located fewer than fifteen miles from Carson City. See 

https://www.google.com/maps (last visited Oct. 5, 2016). 
11

out at all hours of the night” and “[s]he has no plans of how to shield the children from 

sexually inappropriate material which would be readily available at any time through her 

line of work.” 

As we have stated earlier in this opinion, appellate courts must give “great weight” 

to a trial court‟s assessment of witnesses‟ credibility. B.M.M., 2004 WL 1853418, at 

*17. “However, the trial court‟s impressions are no substitute for actual findings of fact 

and conclusions of law in the record.” Williams, 2013 WL 3927934, at *13. Here, other 

evidence – a significant amount of which is documentary in nature – also supports a 

finding that Mother no longer works at the Ranch. Kasandra Shepard, director of the 

Carson Lanes Day Care and Learning Center, the children‟s daycare in Carson City, 

Nevada, testified on Mother‟s behalf. Shepard developed a friendship with Mother. She 

expressed in her testimony that Mother had quit working at the Ranch, that she had no 

reason to believe Mother would be untruthful about quitting the Ranch, and that she has 

visited Mother‟s current place of “social work” employment where she observed Mother 

working as a social worker. At most, the other testimony at trial only speculated on the 

possibility Mother might someday resume work as a prostitute to help resolve a 

hypothetical future financial crisis. This is speculation based on speculation based on 

speculation. On the subject under discussion, Father testified as follows: 

Q Would you feel confident that she might not revert back to 

that profession as soon as these proceedings are over?

A I don‟t think she would – I think she would go back to it if 

money was – it‟s all about money. 

According to Mother, her reasons for working at the Ranch were financial. She 

testified that before she started working there, she owed approximately $33,000 in 

medical bills associated with treatment for her children, which she struggled to pay while 

completing her master‟s program in social work and searching for full-time employment 

in her field. She also pointed to Father‟s lack of financial support for the children. At the 

February 2013 settlement conference, Father agreed he owed about $10,000 in medical 

and child support payments for the children. When questioned about returning to or 

continuing work at the Ranch, Mother testified as follows. 

Q Are we to infer from that that it shows a lack of values, a 

fundamental lack of moral character to behave as a prostitute?

A I, unfortunately, in my opinion, sacrificed myself in order 

to provide for my family, and that‟s what I did. I never said I 
12

was happy about it. I never said I was proud of it, but I did 

what I needed to do to take care of my children with little 

help from [Father].

Q So when the fiscal need presents itself, you‟re willing to 

throw those values in the bag, throw them in the trunk, and go 

about your lucrative financial business?

A That‟s not what I said. 

Q Right?

A That‟s not what I said.

Q Well, you indicated that it evidences a lack of values; 

correct?

A That‟s what I have to do is sacrifice myself. As parents 

you sacrifice certain things, and that‟s what I had to choose to 

sacrifice. Moving forward, never, not again. I never even –

like I said, I‟m not going to sacrifice not having my children 

with me, it‟s not worth it. My children are my world.

On cross-examination, Mother gave two reasons why she would not work in 

prostitution again – learning that it could jeopardize whether she would have custody of 

her children and the Nevada social worker‟s code of ethics, which, she says, prohibits 

prostitution. 

The trial court found that “[a]t the time of the trial, websites were still actively 

seeking prostitution business using her [Mother‟s] image.” The evidence includes a 

print-out of an undated marketing website that states, next to an image of Mother, 

appointments are available on nights and weekends. Mother identified the provocative 

material admitted in evidence as part of the Ranch‟s marketing scheme. Mother testified 

that she removed from the internet any marketing pages related to her involvement in 

prostitution. She said, “[I]f it‟s still up there, then it‟s up there without my knowledge.” 

Mother testified at trial that she no longer worked at the Ranch and, instead, was 

employed as a social worker. As previously noted by us in this opinion, her friend,

Shepard, testified to observing Mother working as a social worker at her current 

employment. Furthermore, and as also stated by us in this opinion, Mother submitted 
13

copies of her earnings statements from her new job, as well as evidence of her 

qualifications for such a job, including copies of her diplomas and provisional Nevada 

license to work in social work. There was no testimony indicating that, at the time of 

trial, Mother was still working as a prostitute. Still, the trial court concluded “that 

Mother lacked integrity on several issues, including her current employment.” We hold

that the related testimony and the documentary evidence in the record substantiate 

Mother‟s claims about her current employment. Accordingly, we hold that the evidence 

preponderates against a finding that Mother was still working as a prostitute.

Father asks that we find Mother‟s work as a prostitute to be “per se deleterious” 

for the children. We recognize that, in order to make out a material change in 

circumstance, one does not have to show a “substantial risk of harm to the child.” Tenn. 

Code Ann. § 36-6-101(a)(2)(B). Rather, one must show “whether a change is one that 

affects the child‟s well-being in a meaningful way.” Kesterson, 172 S.W.3d at 567. 

Accordingly, in a previous case, when a father sought custody due to the mother‟s 

infidelity, we held that 

her adulterous relationship cannot be the only basis for the 

Trial Court‟s decision regarding custody of the [c]hildren. A 

„parent‟s sexual infidelity or indiscretion does not, ipso facto

disqualify that parent from receiving custody of his/her 

child.” Varley v. Varley, 934 S.W.2d 659, 666-67 (Tenn. Ct. 

App. 1996). “When the activities of the parent involve 

neglect of the children, however, such neglect is a 

consideration in determining the child‟s best interests.” Id. 

Nelson v. Nelson, 66 S.W.3d 896, 902 (Tenn. Ct. App. 2001). Additionally, in Berry v. 

Berry, we considered a post-divorce child custody matter in which the father sought a 

change in custody because the mother began engaging in same-sex romantic 

relationships. He argued that it represented a material change in circumstance. We found 

the evidence insufficient to establish “the mother‟s homosexuality has had or will have an 

effect on the child‟s well-being in a meaningful way.” Berry v. Berry, No. E2004-01832-

COA-R3-CV, 2005 WL 1277847, at *2 (Tenn. Ct. App., filed May 31, 2005). As a 

result, we found a change in custody was not warranted, stating: 

A parent‟s sexual orientation can be a factor that the trial 

court should consider in making a custody decision, but it 

does not control the outcome of the case absent evidence of 

its adverse effect on the child. Homosexuality is not a per se
14

bar to custody. The key consideration is whether a parent‟s 

sexuality has a negative effect on a child‟s welfare. 

Id. at *3 (citations omitted); see also Murray v. Murray, No. M2009-01576-COA-R3-

CV, 2010 WL 3852218, at *7 (Tenn. Ct. App., filed Sept. 28, 2010) (finding that, unlike 

Berry, the evidence there supported that a material change in circumstances had occurred 

because there is “at least some evidence that [m]other‟s dalliance with drugs and with 

some of her sexual partners did have an adverse effect on the child”). In both Nelson and 

Berry, a petitioner parent asked us to find the other parent‟s actions to be an “ipso facto 

disqualif[ication]” from receiving custody or a “per se bar to custody.” Nelson, 66 

S.W.3d at 902; Berry, 2005 WL 1277847, at *2. In both instances, we declined to do so 

without evidence as to how the conduct at issue adversely affected the child. Id. In the 

case now before us, Father – similar to the petitioners in Berry and Nelson – asks us to 

find Mother‟s actions “per se deleterious” while presenting no evidence on how those 

actions affected or will affect the children. This we decline to do. 

Mother engaged in legal prostitution.7 She testified the children generally stayed 

with Father or other family when she traveled from Ohio to Nevada to work at the Ranch. 

There was a period of time – from February to June 2013 – that the children did travel 

with her from Ohio to Nevada. She testified that, on those occasions, the children stayed 

in licensed daycare while she worked at the Ranch. She asserts that the children never 

went to the Ranch and she did not tell them about her work there. Contrary to Mother‟s 

testimony, Father testified that P.H. once accompanied Mother to the Ranch to pick up a 

paycheck. He stated that the child waited in the car while Mother went inside to pick up 

her check. Father added that P.H. thought the Ranch was an animal shelter. Mother 

denied Father‟s assertion that she took the child to the Ranch. The trial court did not 

make a finding that Mother ever took the children to or near the Ranch. Father did not 

repeat the claim in his brief on appeal. 

The case now before us differs from Burris v. Burris, No. M2009-00498-COAR3-CV, 2010 WL 1404385, at *4-5 (Tenn. Ct. App., filed April 7, 2010), another child 

custody dispute in which the mother engaged in prostitution. In that case, Mother was 

arrested for illegal prostitution in Nashville while she was still married to the children‟s 

father. Id. at *1. There, we found the children had “been confronted with publicity 

relating to their mother‟s arrest,” the mother “allowed another woman, also engaged in 

prostitution, to come to the family home” to share a meal with the children, and the 

mother had taken nude photographs of herself “in various places throughout the parties‟ 

home” to advertise her services. Id. at *4-5. We also found the evidence supported the 

 

7

See Nev. Rev. Stat. Ann. §§ 201.354; 201.295. 
15

trial court‟s finding that the mother “engaged in phone sex while in bed with the child . . . 

[and] failed to supervise the children[.]” Id. at *5. In the present case, there was no 

finding that the children were exposed to Mother‟s work at the Ranch or neglected by her 

while she was working there. 

Father also raises the issue of the online materials that feature Mother‟s image to 

advertise prostitution. Previously, we have declined to find the existence of provocative 

online photographs of a parent to be per se harmful to a child‟s morals in a case involving 

a heightened standard of clear and convincing evidence. In the case of In re Alysia M.S., 

2013 WL 1501710, at *7, this court considered, inter alia, whether a child was dependent 

and neglected for reasons of Mother‟s “immorality.” In that opinion, we stated: 

The Mitchells [the parties seeking to adopt] zealously 

gathered and presented past postings from [m]other‟s social 

networking pages such as photos of her in various states of 

undress next to references to “private parties” and bringing 

other “hot chicks.” The postings, argue the Mitchells, “seem 

to indicate that [mother] may be involved in some form of 

prostitution.” This bare allegation is unconvincing, and 

[m]other testified that she had never worked topless, or in the 

sex industry, or in any form of prostitution, that she no longer 

organized parties, and that she had never organized parties 

involving sex. Mother attempted to delete her social 

networking pages that contained the photos, though they were 

discoverable on the internet at the time of the circuit court 

hearing. More importantly, the record contains no evidence 

that young Alysia [the child] had seen or knew about 

[m]other’s past internet postings. In this case, we cannot 

simply assume that she will be exposed to them in the future, 

nor can we predict the effect, if any, such exposure would 

have on her morals. The Mitchells’ assertion that “the 

photos speak for themselves” does not amount to clear and 

convincing evidence of [m]other’s unfitness to properly care 

for her child or of any injury or danger to Alysia’s morals.

Id. (emphasis added). To meet the burden of “clear and convincing,” the petitioner must 

establish “there is no serious or substantial doubt about the correctness or conclusions to 

be drawn from the evidence.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) 

(citation and internal quotation marks omitted). However, the standard now before us is 

less stringent. Here, the petitioner, Father, must only establish a material change in 
16

circumstances by a preponderance of the evidence. Further, distinct from In re Alysia 

M.S., in the current case, Mother does not dispute that she worked as a licensed prostitute 

and that the provocative images are in fact related marketing materials. 

Father asks us to presume harm to the children based on Mother‟s previous work 

and any provocative images of her available on the internet. As the petitioner, he bears 

the burden of proof. To establish that a change in circumstances is material, the evidence 

must establish the effect a parent‟s conduct has on a child‟s well-being. Williams, 2013 

WL 3927934, at *13. Father did not establish how Mother‟s behavior “affect[ed] the 

child‟s well-being in a meaningful way.” Galaway v. Galaway, No. M2015-00670-

COA-R3-CV, 2016 WL 1291966, at *4 (Tenn. Ct. App., filed Mar. 31, 2016) (citation 

and internal quotation marks omitted). Because Father failed to establish the children 

were affected, we must hold that the evidence preponderates against the finding that 

Father established that Mother‟s work as a licensed prostitute met the legal standard for 

“a material change in circumstances.” 

Finally, the trial court found that a change in circumstances occurred because of 

“Mother‟s hostility toward Father and his wife.” 

Mother and Stepmother first met in the spring or winter of 2011, prior to the 

original custody order. Mother claims she was a patron at a restaurant where Stepmother 

worked when she learned of Stepmother‟s relationship with Father. Mother suspected 

Father and Stepmother‟s romantic relationship overlapped hers and Father‟s. Stepmother 

stated that a verbal altercation occurred in or about the restaurant. 

Since the entry of the June 2011 order, Father and Stepmother have married. They 

have a child of their own. Incidents of hostility have continued involving Mother, Father, 

and Stepmother. For example, when Father visited Ohio for his birthday in August 2011, 

Mother did not allow him to take the children from their daycare after learning that

Stepmother was with him. Immediately prior to Father and Stepmother‟s wedding, an

incident occurred over emails. In that instance, Mother received an email message that 

was sent from Father‟s email account. Mother suspected that, while it was on Father‟s 

email account, it was actually sent by Stepmother. Mother, in an attempt to provoke 

Stepmother, responded to the email by sending a picture of her own naked breast. 

Shortly thereafter, Mother, at the last minute, would not allow the children to participate 

in Father and Stepmother‟s wedding. At trial, the court admitted into evidence a 

voicemail message from Father that he left on Mother‟s phone in which he instructed her 

to “Answer your God-d__n f___g phone.” Mother described Father as “very aggressive” 

in the message and said it “concerned” her. She explained that she had not answered 

because she was at a museum with the children. Mother has “blocked” the receipt of 
17

email and cell phone text messages from Father and Stepmother due to what she 

described as harassment. For similar reasons, she blocked the receipt of phone calls from 

Stepmother, but she has allowed calls from Father to communicate with and about the 

children. 

The children‟s maternal grandmother testified that she received inappropriate 

emails from Stepmother in 2012 and now prefers not to communicate with her. Finally, 

Mother stated that, on several occasions, she had been denied phone visits with the 

children when they were in Father‟s care in 2013. 

As we included in the first appeal of this matter, the juvenile court judge made the 

following statements at the close of trial: 

[Father] and [Mother] . . . . [b]oth you parents need to grow 

up and put these children first before yourselves. This won‟t 

be part of my order, but frankly, I don‟t like either parent[ ] 

for the absolute best option for these children. I think you 

both need to grow up. Love her or hate her, love him or hate 

him, you-all brought children into this world together and 

that‟s not going to change, and all I heard through testimony, 

through written evidence, through recorded phone calls is 

vile, combative, just contradictory to having your children‟s 

best interest, and I‟m telling you both you got to grow up. 

You got to look out for these children, not just for the next 13 

years for [your son] or 16 years for [your daughter], forever 

you-all are bound together because you brought these 

children into this world together, and so you‟re going to have 

to talk, you‟re going to have to get along. You‟re going to 

have to get along with his wife as much as you hate her. She 

is the stepmom of these children as of today. That might 

change next year, that might not ever change, I don‟t know. 

But if you love your children, you‟re going to have to find a 

way around that, and I could say some similar things to you. 

You-all are going to have to learn to communicate. 

C.W.H., 2015 WL 128537, at *3. 

Based on all of this, we hold that the evidence does not preponderate against the 

trial court‟s factual findings pertaining to Mother‟s hostility toward Father and 

Stepmother. In the trial court‟s best interest analysis, the court cited several examples of 
18

how Mother‟s hostility affected the children. It should be noted, however, that the 

evidence indicates the hostility between the parties was mutual. When all of the evidence 

pertaining to “hostility” is considered, we hold that the evidence does not preponderate 

against the trial court‟s finding that Mother‟s hostility constitutes a material change in 

circumstances. Because we have found such a change, we proceed to a best interest 

analysis. Murray, 2010 WL 3852218, at *7. 

B.

In child custody cases, “the needs of the children are paramount; the desires of the 

parents are secondary.” In re T.C.D., 261 S.W.3d at 742 (citing Shofner, 181 S.W.3d at 

715-16). “[Q]uestions related to custody and visitation should be directed toward[ ]

promoting the child‟s best interest by placing him [or her] in an environment that will 

best serve his [or her] physical and emotional needs.” Id. at 742-43. Tenn. Code Ann. § 

36-6-106(a) (2012)8provides as follows:

. . . In taking into account the child‟s best interest, the court 

shall order a custody arrangement that permits both parents to 

enjoy the maximum participation possible in the life of the 

child consistent with the factors set out in subdivisions (a)(1)-

(10), the location of the residences of the parents, the child‟s 

need for stability and all other relevant factors. The court 

shall consider all relevant factors, including the following, 

where applicable:

(1) The love, affection and emotional ties existing between 

the parents or caregivers and the child; 

 

8

This matter originated on February 28, 2012 when Father filed a petition to modify the 

existing parenting plan. The parties settled that petition and the trial court subsequently entered 

an order. Within two weeks, Father filed a motion seeking emergency custody. Previously, we 

determined that was a Tenn. R. Civ. P. 59 motion to alter or amend. C.W.H., 2015 WL 128537, 

at *4. We also “note[d] that the Tennessee General Assembly has consolidated and modified the 

multiple best interest factors at Tenn. Code Ann. § 36-6-106. These changes were effective July 

1, 2014. The final judgment in this case was entered April 2014.” Id. On remand, the trial court 

conducted a best interest analysis using the updated version of the statute. That version lists 

fifteen – rather than ten – factors to be considered for best interest. The applicable version of the 

statute is the one that was current when the original petition was filed February 28, 2012. The 

more recent version of the statute does not apply. 
19

(2) The disposition of the parents or caregivers to provide the 

child with food, clothing, medical care, education and other 

necessary care and the degree to which a parent or caregiver 

has been the primary caregiver; 

(3) The importance of continuity in the child‟s life and the 

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

environment[;]

(4) The stability of the family unit of the parents or 

caregivers;

(5) The mental and physical health of the parents or 

caregivers;

(6) The home, school and community record of the child;

* * *

(8) Evidence of physical or emotional abuse to the child, to 

the other parent or to any other person; provided, that, where 

there are allegations that one (1) parent has committed child 

abuse, as defined in § 39-15-401 or § 39-15-402, or child 

sexual abuse, as defined in § 37-1-602, against a family 

member, the court shall consider all evidence relevant to the 

physical and emotional safety of the child, and determine, by 

a clear preponderance of the evidence, whether such abuse 

has occurred. The court shall include in its decision a written 

finding of all evidence, and all findings of facts connected to 

the evidence. In addition, the court shall, where appropriate, 

refer any issues of abuse to the juvenile court for further 

proceedings;

(9) The character and behavior of any other person who 

resides in or frequents the home of a parent or caregiver and 

the person‟s interactions with the child; and

(10) 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 
20

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. 

“Determining a child‟s best interest is a „fact-sensitive inquiry‟ that does not call for „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. The relevancy and weight to be given 

each factor depends on the unique facts of each case.‟ ” In re William K., No. M2014-

01872-COA-R3-JV, 2015 WL 6164849, at *3 (Tenn. Ct. App., filed Oct. 20, 2015) 

(citing Solima v. Solima, No. M2014-01452-COA-R3-CV, 2015 WL 4594134, at *4 

(Tenn. Ct. App., filed July 30, 2015)).

The trial court found the best interest factors favored Father. However, as 

previously noted by us, much of the trial court‟s best interest analysis relies on the 

finding that Mother‟s work in prostitution was ongoing. The trial court included the 

following in its analysis: 

She could be working at all hours of the day and night, and 

maintains an internet site promoting herself for the purpose of 

creating opportunities to engage in prostitution. At the time 

of the trial, websites were still actively seeking prostitution 

business using her image. She lives in an area where no 

family would be able to assist her should she be called out for 

an appointment at night. Further, she offered no proof that 

she would shield the children from illicit material or that she 

would provide a suitable babysitter should she be away from 

home at night. Mother states she has no regrets about her 

occupation, but her actions do not match her words, as she 

has further attempted to convince the Court that she is now 

working as a social worker. It seems that the children would 

likely be exposed to sexually explicit material, a fact which 

Mother shows little to no concern for. She has no plan of 

how to shield the children from sexually inappropriate 

material which would be readily available at any time through 

her line of work. She was more concerned about hiding her 

employment in order to secure an agreement from the Father 

to allow her to take the children to live in Nevada with her. 

The children should not be subject to material they would 

have no capacity to fully understand. . . . 
21

[M]oving the children to Nevada where they have no family 

and where the Mother may be engaged in an immoral 

profession, is contrary to the children‟s best interests. . . . [I]t 

is unknown whether people who frequent the home or 

business of the Mother may be of negative character and may 

be exhibiting behavior that is contrary to the best interests of 

the children. . . . 

The Mother‟s employment may require her to be out at all 

hours of the night, and she has offered no evidence of how the 

children would be taken care of during those times. . . . 

As previously noted, Mother testified that she no longer works at the Ranch and had 

attempted to take down all advertising material that used her image. While the trial court 

found Mother not credible on the issue of whether she was still working as a prostitute, 

we hold that the evidence, including the oral testimony and documentary evidence, 

preponderates against the trial court‟s credibility determination. There is significant and 

substantial evidence supporting the conclusion that Mother is no longer working as a 

prostitute. The court admitted into evidence earnings statements from Mother‟s current 

employment as a social worker, as well as copies of her provisional Nevada social 

worker‟s license, and related diplomas and academic awards. As previously noted, there 

was no testimony at trial indicating that she was currently working as a prostitute. The 

fact that the Ranch is still using her likeness as a marketing tool – something over which 

she may not have had any control – does not outweigh the evidence to the contrary.

The trial court found Father to be more likely to provide for the children‟s food, 

clothing, medical care, education and other necessary care. The trial court concluded this 

largely based on Father‟s behavior since the children came into his custody in 2013. 

Since then, he has enrolled the children in school, was promoted from bartender to 

restaurant manager, provided the children with stable housing, and now maintains health 

insurance for the children. The lower court also credited him with identifying a problem 

with V.H.‟s speech. Since then, V.H. has undergone a speech assessment; she receives 

treatment twice a week through her school. Emily Rebecca Nasca, the director of 

preschool at V.H.‟s school, stated at trial that V.H.‟s speech problem is “very typical and 

probably 30 percent of our kids go to speech.” The trial court noted “Mother offered no 

proof related to addressing the child‟s speech issue, or the children‟s educational needs 

and developmental needs.” The children were ages three and four when they left 

Mother‟s care. During the time the children were in Nevada from February to June 2013, 

they attended a licensed day care. Mother testified that she has researched area schools in 
22

Nevada, and taken steps toward applying for a Montessori school there. Nasca testified 

that Mother had contacted her to ask about concerns related to V.H.‟s speech. 

Regarding this factor, we find it significant that, at the February 2013 settlement 

conference, Father agreed that he was approximately $10,000 behind in child support and 

medical payments for the children. The trial court did not include this fact in its best 

interest analysis. Mother cited her financial burden and father‟s inconsistent support as 

the reason she began work at the Ranch. Therefore, despite his efforts to provide for the 

children while in his care, Father‟s arrearages do not support a finding that, as compared 

to Mother, he has done a more adequate job of providing the children with “food, 

clothing, medical care, education and other necessary care[.]” 

There is little evidence as to who will frequent Mother‟s home in Nevada. Mother 

testified at trial that she had been dating a man for more than a year, but he was 

unavailable to testify due to his work schedule. Ms. Shepard, the director of the 

children‟s Nevada daycare and her friend, did testify. Two of Stepmother‟s sisters and a

brother-in-law testified at trial as to their relationships with Father, Stepmother, and the 

children, and the family friendly activities they enjoy together, such as going to parks and 

traveling on family vacations. In addition to this testimony, the court found, “It was also 

stated that [Stepmother] was in jail for an alcohol related crime and during the time she 

was incarcerated Father invited a female friend over and they used cocaine while the 

children were asleep upstairs.” Shortly thereafter, the trial court concluded 

[t]he Court has no way of fully knowing the character of the 

people who would be frequenting the home of the Mother, 

and Mother offered no proof that the people frequenting her 

home were of sound character and would not be committing 

acts contrary to the children‟s best interests. Therefore, [this 

factor] weighs in favor of the Father, who was able to 

provide proof of the nature of the people who frequent the 

home of the children . . . . 

(Emphasis added.) The evidence does not support the trial court‟s finding on this factor. 

Father admitted in his testimony that in January 2013, Stepmother left their home after an 

argument. “[S]he got picked up and she was in the drunk tank,” according to his 

testimony. Father added that “[s]he had gotten picked up for public intoxication and 

disorderly conduct.” Upon learning this, Father – around midnight – called a female 

friend because, he said, her grandmother was an attorney and he sought advice about 

Stepmother‟s incarceration. Later that night, the woman arrived at Father‟s home with 

cocaine. Father and the woman snorted cocaine in the family home while the children 
23

and their half-sibling were asleep there. The next morning, Father picked up Stepmother. 

The evidence does not support a finding that this factor weighs in Father‟s favor. 

The trial court also found “Mother does not have the children‟s best interest[ ] in 

mind when she uses a version of her daughter‟s name as her alias for prostitution 

purposes. Mother worked at [the Ranch] and her professional name is „[V.L.],‟ a name 

adopted from her daughter‟s name[.]” Mother testified that the alias she used at the 

Ranch was intended as a modification of the name of a famous actress and that her 

intention was to be “discrete[.]” 

The trial court found, “The Father is clearly more willing and able to facilitate a 

relationship with the Mother than the Mother is with the Father, mainly due to Mother‟s 

disdain for Father‟s wife.” The trial court cited, for instance, that Mother would not let 

the children participate in Father and Stepmother‟s wedding. The trial court concluded 

that

[i]f the Mother went so far as to disallow the children from 

participating in the Father‟s wedding due to her inability to 

serve the children‟s best interests over her own, this Court is 

very concerned as to what her actions may be if she had the 

ability to make the majority of the decisions for the children. 

The evidence indicates Mother, at times, has interfered with Father‟s visitation due to her 

hostility toward Stepmother and Father. Mother testified at the December 2013 trial that 

since the children returned to Tennessee in June 2013, she has not received her allowed 

number of phone visits. She testified that despite her attempts to call, some weeks she 

got two phone visits with the children, in other weeks only one, and in two weeks she 

received none. “We recognize the importance of the primary residential parent‟s 

willingness to support the other parent‟s relationship with their child; on numerous 

occasions, we have affirmed a change in the designation of primary residential parent 

where the evidence shows that the current primary residential parent has consistently 

interfered with the other parent‟s relationship with the child[.]” Williams, 2013 WL 

3927934, at *14. In this instance, each parent at times has made it more difficult for the 

other to maintain a relationship with the children. 

Multiple witnesses testified that the children appear happy and well-adjusted. The 

“love, affection and emotional ties existing between the parent[s] . . . and the [children]” 

are undisputed. Mother was designated as the children‟s primary residential parent in

June 2011. In June 2013, the children began to primarily reside with Father. After P.H.‟s 

birth in January 2009, Mother and P.H. lived in Ohio while Father lived in Pittsburgh. 
24

Father asserts that when they moved to Chattanooga together in August 2009, he was a 

“stay-at-home dad.” Sometime before V.H.‟s birth in June 2010, Father resumed work 

outside the home. Following this, he and Mother shared parenting responsibilities until 

Mother moved to Ohio in June 2011. At the time of trial, Mother has been the children‟s 

primary residential parent for more of their life. When considering a request to modify a 

child‟s primary residential parent, “courts . . . emphasize the importance of continuity in 

the child‟s life, and so are normally disinclined to change the original designation.” 

Williams, 2013 WL 3927934, at *15 (quoting S.A.M.D. v. J.P.D., No. W2011-01256-

COA-R3-CV, 2012 WL 5266194, at * 18 (Tenn. Ct. App., filed Oct. 25, 2012)) (internal 

quotation marks omitted). As a result, “there is a strong presumption in favor of 

continuity of placement of a child.” Id. (quoting Morris v. Morris, No. M2001-02275-

COA-R3-CV, 2002 WL 31059222, at *2 (Tenn. Ct. App., filed Sept. 17, 2002)) (internal 

quotation marks omitted). 

The trial court found, “only one witness testified on behalf of the Mother and her 

ability to parent,” and that witness “had only seen Mother in the context of picking her 

children up from daycare, and had not actually observed the Mother‟s parenting ability.” 

However, the witness, Shepard, testified she is friends with Mother. Their children are 

similar in age. Shepard testified to observing Mother with the children at the daycare, as 

well as on outings to parks. She described Mother as “very attentive to the kids” and 

“always prepared.” Knowing of Mother‟s work at the Ranch, she testified she would 

have no hesitation “at all” for Mother to watch her children. 

The trial court further found “several of the applicable factors control this case 

more than others” – namely that the children‟s life is more stable with Father, Father‟s 

proximity to the children‟s extended family, and the length of time Father has been the 

children‟s primary caretaker. The children, now ages six and seven, primarily have 

resided with Father since mid-2013. Stepmother is a stay-at-home mom. Many of 

Mother and Stepmother‟s extended family live in Chattanooga. The children have begun 

school programs there. Testimony indicated the children have developed relationships 

with classmates, Stepmother‟s extended family, and the children‟s younger half-sister. 

The trial court also listed Father‟s indiscretions, namely that he admitted having an affair 

during his first year of marriage. Stepmother slapped him when she learned of the affair. 

By the time of trial, based on Mother‟s testimony and pictures in evidence, Mother now 

has a home in Nevada with space for the children. She has a steady job as a social 

worker that she enjoys, with an annual gross salary of approximately $40,000. At trial, 

Mother and Father each had health insurance. 

Tenn. Code Ann. § 36-6-106(a) allows us to consider “all other relevant factors” 

in addition to those listed in (a)(1)-(10). We note that the version of the statute applied 
25

by the trial court included as a factor the “[t]he moral . . . fitness of each parent as it 

relates to their ability to parent the child. . . .” (Emphasis added.) As previously noted by 

us, the version of the statute current when Father filed a petition to modify in 2012, did 

not list a parent‟s “moral” fitness as a factor. In evaluating the Mother‟s “moral” fitness, 

the trial court found that “Father is more likely to do everything in his power to 

appropriately shield [the children] from things that are not age-appropriate.” However, 

Father‟s own testimony established that he used cocaine while the children were in the 

home with him. Comparatively, the trial court did not find Mother exposed the children 

to anything that is not age appropriate. Still, the trial court found this factor weighed in 

Father‟s favor, in part, based on a finding that Mother still worked in prostitution. 

Mother‟s work at the Ranch was legal in Nevada, though her actions clearly are at 

odds with the established public policy of Tennessee. Tenn. Code Ann. § 39-13-

513(b)(1) (2012) (“[p]rostitution is a Class B misdemeanor”); Friedman, 2005 WL 

1353313, at *4 (“the State has a control over the morals of its citizens and this extends to 

making prostitution a crime”). However, “[c]ustodial arrangements should not be made 

with the goal of punishing a parent for misconduct.” Williams, 2013 WL 3927934, at 

*16 (citing Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App. 1991)). Father 

admits that Mother disclosed at the 2013 settlement conference that she was applying to 

jobs in Nevada and might move there. The parties‟ agreement permitted Mother to spend

221 days each year with the children, while Father was given the remaining 144 days. 

This was the same division of parenting time as in their 2011 long-distance parenting 

plan. Father sought to modify the plan after learning Mother worked as a prostitute. He 

stated in his brief that Mother “has caused this litigation by her engagement in the 

practice of prostitution[.]” The current plan reduces Mother‟s parenting time to 90 days 

per year. We note that Tenn. Code Ann. § 36-6-106 implores us to craft a custody 

arrangement that allows “both parents to enjoy the maximum participation possible in the 

life of the child,” consistent with the best interest factors. Additionally, the trial court 

increased Mother‟s share of long-distance transportation costs. Under the 2011 plan, 

Mother and Father shared these costs equally. In the March 1, 2013 plan, the parties 

agreed “Father shall pay all transportation costs until his child support arrearage/medical 

expense obligation is resolved. Afterwards, the parents shall split costs equally.” 

However, the trial court now orders Mother to pay 75 percent of transportation costs 

while Father will pay 25 percent. 

It is clear that both parents at times have acted in a manner that failed to put the 

children‟s interest first. However, we find the trial court relied heavily on a finding that 

Mother‟s work in prostitution was ongoing to reach its conclusion that it is in the 

children‟s best interest to designate Father as the primary residential parent. We find the 

evidence does not support this conclusion. The trial court also failed to take into account 
26

Father‟s significant child support and medical arrearages of $10,027. We also find it 

significant that Father admitted to using illegal drugs in the family home when the 

children were present. For all of these reasons, we hold that the evidence preponderates 

against the trial court‟s finding that the best interest of the children mandates that Father 

be the children‟s primary residential parent. For reasons stated above, the trial court 

abused its discretion in designating Father as the primary residential parent. 

V.

Father appeals the trial court‟s decision to deny his request for attorney‟s fees. He 

asserts that he is entitled to such an award pursuant to Tenn. Code Ann. § 36-5-103(c), 

which allows for an award of reasonable attorney‟s fees incurred in a child custody 

matter to “the plaintiff spouse . . . from the defendant spouse, and the spouse . . . to whom 

the custody of the . . . children, is awarded[.]” We note that the decision to grant 

attorney‟s fees is largely within the discretion of the trial court. Galaway v. Galaway, 

No. M2015-00670-COA-R3-CV, 2016 WL 1291966, at *5 (Tenn. Ct. App., filed Mar. 

31, 2016) (citation omitted). Absent an abuse of discretion, we will not interfere. Id. 

We find no such abuse on this issue. Furthermore, after our decision, Father is no longer

the prevailing party. 

VI.

The judgment of the trial court designating Father as the primary residential parent 

is reversed. Mother is hereby designated as the children‟s primary residential parent. 

The permanent parenting plan incorporated in the trial court‟s order of July 10, 2015, is 

hereby vacated and held for naught. We hereby reinstate the permanent parenting plan 

incorporated into the trial court‟s order of March 1, 2013. We further decree that the 

children will be delivered to Mother in Nevada by way of a commercial air flight no later 

than twenty days following the entry of this order. If Father has not paid his arrearages in 

full as of the date of entry of this order, he will be solely responsible for the children‟s 

airfare to Nevada. If, as of the date of entry of this order, Father does not owe any 

arrearages, each of the parties will be responsible for and pay one-half of the airfare. 

Costs on appeal are taxed to Father, C.W.H. This case is remanded to the trial court for 

enforcement of the trial court‟s judgment as changed by this opinion. Since we have 

reversed the trial court‟s judgment, costs at the trial court level are also assessed against 

C.W.H.

 _______________________________

 CHARLES D. SUSANO, JR., JUDGE