Father Joshua Cordell Payne appeals the trial court's decision to grant Mother Kyndra Loran Payne's petition to become the primary residential parent of their child. Initially, Father was designated as the primary residential parent following their divorce in October 2005, while Mother received liberal parenting time. Over the next three years, Father filed three petitions to modify and limit Mother's parenting time, based on allegations he failed to substantiate, resulting in the denial of each petition.
In November 2008, in response to Father’s third petition, Mother filed a counter petition seeking primary residential status. The trial court found that Father’s unsuccessful petitions and lack of investigation intentionally disrupted the child’s relationship with Mother, constituting a material change in circumstances. Father argued that the trial court's findings regarding his previous petitions were barred by res judicata and collateral estoppel, claiming the court erred in using these findings to alter custody.
The Court of Appeals affirmed the trial court's judgment, supporting the decision to grant Mother's petition and ordering that she be awarded attorney’s fees for both the trial and the appeal, with a remand for the trial court to determine the amount of those fees. The background reveals that the divorce included a temporary parenting plan with equal time, but subsequent hearings led to Father being named the primary residential parent, which he later sought to modify unsuccessfully.
On March 20, 2006, the trial court conducted an ex parte hearing, resulting in a restraining order against Mother while a full hearing on Father's allegations was pending. Mother denied the allegations in her Answer. By March 30, the court dismissed the restraining order, finding no wrongdoing by Mother or her male friend, and reinstated the parenting plan from the Order of Divorce. On September 21, 2006, Father filed a second petition alleging Mother was using illegal drugs and claiming improper touching by her male friend. Following an ex parte hearing on October 5, the court issued another restraining order limiting Mother's parenting time to supervised visits. At a hearing on October 24, the court found Father did not prove his allegations and reinstated the parenting plan, requiring supervision of Mother's visits pending drug test results.
Father filed a third petition on September 12, 2008, expressing concern that Mother would transfer the child to a different school. Mother denied these allegations and countered, citing material changes in circumstances, including Father's noncompliance with the parenting plan and interference with her relationship with the child. After a hearing on August 13, 2009, the court identified multiple concerns: the child’s tardiness while in Mother's care, poor communication between the parents, and found Father’s previous petitions unfounded and frivolous. The court also noted that Father assaulted Mother’s mother and determined these actions interfered with the mother-child relationship, representing an unanticipated material change in circumstances.
Ultimately, the court deemed the current parenting plan not in the child's best interest, ordering that Mother become the Primary Residential Parent, ensure the child’s timely school attendance, and submit monthly attendance records to her attorney for review and submission to the court.
Father and Mother are required to notify each other via email or U.S. Mail regarding any concerns about their child, including school, medical, emotional, and behavioral issues. They will provide their contact information to their respective counsel, who will exchange this information. Father is obligated to pay child support according to Tennessee Child Support Guidelines. The Permanent Parenting Plan from the September 4, 2009 order is incorporated, granting Mother 249 days and Father 116 days with the child, a change from the previous plan which allocated 168 days to Mother and 197 days to Father.
In the appeals section, Father raises multiple issues, including objections to the court's findings that his petitions from March and September 2006 lacked necessary investigation, arguing these findings are barred by res judicata and collateral estoppel and are unsupported by facts or law. He also contests the court's finding regarding an alleged assault on Mother’s mother in February 2006 on similar legal grounds. Mother contends she is entitled to attorney’s fees under Tennessee law.
The court's findings of fact are reviewed de novo, maintaining a presumption of correctness unless evidence strongly indicates otherwise. The primary focus in custody cases is the child's welfare, favoring a nurturing environment with both parents. Trial courts have broad discretion in custody matters, and their decisions are upheld unless they fall outside reasonable legal standards. To modify a parenting plan, Tennessee law requires proof of a material change in circumstances that affects the child's best interests, with such changes not needing to demonstrate a substantial risk of harm.
A parenting plan can only be modified if a material change in circumstances is demonstrated, after which the court assesses whether the modification serves the child's best interest. Appellate courts are hesitant to overturn trial court decisions regarding child custody and visitation due to the trial courts' broad discretion and the specific nature of such cases. A modification in the designation of the primary residential parent is equated with a custody award. In the case at hand, the father acknowledged a material change in circumstances but challenged the trial court's findings regarding his prior petitions for modification, claiming that they were not frivolous and contesting a finding of assault against the mother’s mother. The court rejected the father's arguments, clarifying the standards for res judicata and collateral estoppel. Res judicata prevents relitigation of the same cause of action if a final judgment exists, while collateral estoppel bars the relitigation of specific issues that were previously litigated and decided. For collateral estoppel to apply, the issue must be identical, litigated on the merits, have a final judgment, and the parties must have had a fair opportunity to contest the issue in the earlier case.
Father filed a petition to modify custody due to alleged inappropriate touching of the child by one of Mother's male friends, resulting in an ex parte restraining order that barred Mother from seeing her child until a court hearing ten days later. Father expressed concerns that the child would suffer immediate and irreparable harm without this restriction. Mother denied any misconduct by her friend and countered with a claim that Father had assaulted her mother while holding their child. The court dismissed the initial restraining order without finding wrongdoing by Mother, but both parties agreed to limit overnight visitation with non-relatives until further court orders. The court reinstated the previous parenting plan but did not make a final ruling on the issues raised in Father's petition, nor did it address Mother's assault allegation against Father.
In a subsequent petition, Father reiterated his claims of inappropriate touching and alleged that Mother was using illegal drugs. He requested another restraining order, which was granted after an ex parte hearing, preventing Mother from having unsupervised contact with the child pending drug test results. Mother denied the drug allegations, and subsequent tests confirmed she had not used illegal drugs. Following the hearing, the court found Father failed to prove his claims regarding drug use and dismissed the restraining order, reinstating the prior parenting plan.
The document also discusses the legal principles of res judicata and collateral estoppel, highlighting their purpose in preventing inconsistent judgments and conserving resources. It clarifies that a judgment disposing of some claims is not final and can be revised before a final judgment is entered. The court noted that prior to the appealed order, there were no claims that Father’s petitions were made without proper investigation. The language in the court’s orders indicated they were not final, allowing the court to find that Father's petitions could be considered frivolous and that he may have assaulted Mother’s mother.
The court appropriately relied on its findings to evaluate the child's best interest in modifying custody from Father to Mother. The evidence indicated that Father's three petitions lacked necessary investigations. In his first petition from March 2006, Father claimed that Mother was cohabiting with a man named Larry and that this man had inappropriately touched their child. Under cross-examination, Father admitted he had no proof of either claim and had not adequately investigated, relying solely on the presence of Larry's truck and hearsay from Mother and her mother.
In his second petition, filed in September 2006, Father alleged similar claims and additionally accused Mother of illegal drug use. He acknowledged that he had not observed any drug use, nor had he investigated the matter with Mother or her acquaintances before making these allegations. Consequently, the court issued a restraining order against Mother, prohibiting her from seeing the child for nearly a month before a hearing occurred.
In September 2008, Father filed a third petition, again claiming material changes in circumstances and reiterating previous allegations without any additional evidence. Overall, the court found that Father’s petitions were based on unverified claims and lacked the necessary investigation to support his allegations.
Father alleged in his petition that he feared Mother would move their child to a school closer to her residence if the court did not reduce her parenting time. During cross-examination, Father admitted he had not investigated any plans Mother might have regarding the child's schooling. He acknowledged that Mother had expressed a desire for their child to attend Cumberland County schools on several occasions but conceded that she had never attempted to enroll the child elsewhere or threatened to change schools. The hearing in August 2009 revealed that the child had attended South Fentress for a full year without any attempt by Mother to change schools. The court found that Father did not conduct necessary investigations before filing his petitions and deemed them frivolous. Consequently, the court was justified in using these findings to determine the child's best interests in naming Mother the primary residential parent. Both parents agreed that daily transportation was not in the child's best interest and recognized the need for a modified parenting plan for stability. The trial court reasonably concluded that Father's actions were not conducive to maintaining the child's relationship with Mother. Additionally, Mother argued the court erred by not awarding her attorney’s fees incurred in defending against Father’s petitions and his appeal regarding her designation as the primary residential parent.
Mother is entitled to her attorney's fees under Tenn. Code Ann. 36-5-103(c), which permits a plaintiff spouse to recover reasonable attorney fees related to alimony, child support, or custody matters. The court emphasizes that it is appropriate for parents who initiate custody or support proceedings without sufficient basis to bear the associated costs. Mother successfully sought a change in visitation due to Father's behavior and was compelled to defend against three petitions filed by him, which lacked factual support and did not demonstrate any material change in circumstances. Father agreed that a modification of the parenting plan was necessary but failed to prove that the child's best interests warranted a different plan. As a result, the court affirms the trial court's decision to modify the parenting plan, reverses the denial of Mother's attorney's fees, and remands the case for the trial court to determine the reasonable amount of fees owed to Mother, including those incurred in the appeal. Costs of the appeal are to be borne by the appellant, Joshua Cordell Payne.
