TN Dad Wins Custody After Divorce But Court of Appeals Denies Change
Tennessee law case summary on child custody modification in Tennessee divorce and family law from the Tennessee Court of Appeals.
Julie Leamon Tomlin v Nathan Leamon – Tennessee Child Custody Modification Law
In the case of Julie Tomlin, mother and Nathan Leamon, father, an appeal was sought to determine who should be the primary residential parent of two minor children. The parents divorced several years prior to the case and both remarried. The mother, who the children spent most of their time with, petitioned the father for correct child support and to modify the existing permanent parenting plan. The father requested that he be made the primary residential parent or have equal parenting time. The trial court found a material change of circumstances occurred and that the children would be better off if the father was primary residential parent. The mother claims no such change occurred.
The parents divorced in 2004. In 2008, the mother filed a petition to establish support and for modification of the parenting plan. The father filed a counterclaim in 2009, requesting primary residential parent be changed from the mother to him. the trial was held in May of 2010. At the time, the mother was 32 years old and was enrolled in Miller Motte Technical Institute for massage therapy. The mother had not held a job since 2007 because she was medically unable to do so.
The mother stated that the children were enrolled in a private Christian school, that the mother’s parents paid for and that the children received good grades and had perfect attendance. In 2008, the mother was arrested for public intoxication. The mother claimed she was taking a number of medications when she took the children to a baseball game where the police escorted her out after she was “getting on the umpire.”
The children testified. The oldest son stated that if the father worked an earlier shift, he would like to see his father more than the mother. The second son stated he did not want things to change. The father, who was 33 at the time of the case, worked at Mayfield Dairy for ten years on the second shift. His income was $42,000 and he paid $46 per week in child support. He noted he would begin working third shift soon and that would reduce his pay.
The trial court determined that the father’s new shift and the mother potentially moving out of the parents’ home could constitute a material change of circumstances. In January 2011, a second hearing was held. The oldest son testified that he wanted to spend the week with the father and every other weekend with the mother. The younger son wanted to spend nights with his father. The mother testified that she and her new husband moved into a house together, though the mother was still unemployed. The father testified that he was working midnight to 8:30 am. The father stated he was arrested for felony evading arresting and pled guilty to misdemeanor evading arrest. The trial court determined that the father should be the primary residential parent because the boys wanted to spend more time with him.
The appeals court ruled on whether the trial court erred in changing the primary residential parent. The mother argued that by allowing the trial to hold over for several months that this worked in favor of the father. The appeals court ruled that it did not agree in that manner in that the extension of time was not inherently prejudicial to the mother.
The appeals court did not believe a material change of circumstances was evident by the father’s work schedule changing or the mother’s move. It stated that there is no evidence to back up the decision to change the primary residential parent. It then reversed the judgment of the trial court. It remanded the case to the lower court to adjust the parenting plan to provide more time for the father.
No E2011-01398-COA-R3-CV, February 23, 2012.
See original opinion for exact language. Legal citations omitted.
Memphis divorce lawyer, Miles Mason, Sr., JD, CPA practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC, which handles Tennessee family law matters including divorce, child support, alimony, prenuptial agreements, child custody, parental relocation, child support modification, alimony modification, and divorces including business valuation and forensic accounting issues.
