TN Dad Can’t Prove Change of Circumstances for Custody | Sup. Ct. to Decide

Tennessee law case summary on changing custody in family law from the Court of Appeals.  Note: This is the second case summary on this blog.

Andrew K. Armbrister vs. Melissa H. Armbrister – DISSENT – Tennessee changing custody law – Supreme Court of Tennessee will decide.

Andrew K. Armbrister and Melissa H. Armbrister litigated custody since the time of their divorce in 2009.  As of February 2013, the litigation is still pending on appeal to the Supreme Court of Tennessee, the State’s highest court.

The 2009 divorce decree granted status as primary residential parent status to the mother with specific parenting time to the father.

In February 2011, the father filed an application to modify custody, pleading a change of circumstances that included his remarriage, residence, and work schedule.  In October 2011, the father testified, the father’s new wife testified, and the mother testified.  The trial court continued primary residence of the children with the mother, but increased the father’s visitation from 85 days to 143 days.  This change in visitation also resulted in a decrease of child support payments from the father to the mother from $2,014 per month down to $1,639 per month.

The Court of Appeals, however, in July 2012, reversed the decision of the trial court in a 2-1 decision with two judges agreeing to reverse the decision of the trial court and one judge dissenting from the reversal.  In October 2012, the Supreme Court of Tennessee, accepted the case for a second level of appellate review.  The decision has not yet issued from the Supreme Court.

The Armbrister case is an unusual one, which may be why it is receiving so much judicial attention.  In spite of the years of litigation in which these parents have involved themselves and their children, every judicial decision points to the positive relationship between the parents and even the father’s new wife, as well as the stability and development of all aspects of the children’s lives.

The father filed his request for modification of the designation of primary residential parent; it was not a request for a modification of visitation.  The Court of Appeals took pains in its decision to distinguish between the two.  The appellate review suggested that had the father filed for an increase in his visitation time with the children the trial court ruling would have been acceptable and the increase in visitation from 85 to 143 days would have been affirmed.

Instead, because the father filed his application as a request for modification of designation of the primary residential parent from the mother to himself, the Court of Appeals applied the well-established test for custody modification, and the father’s win at trial was reversed into a loss on appeal.

To make its determination, the Court of Appeals applied Tennessee’s two-part test for a modification of custody:  (1) whether there was a material change in circumstances after the initial custody determination; and, (2) whether that material change makes a modification of custody in the children’s best interests.

An appellate review is different from an original, trial decision.  The appellate courts must review the written record of the trial below with the mindset that the trial judge was presumptively correct in his factual determinations. The only way around that is for the appellate court to find that the trial court’s conclusions are an abuse of discretion, meaning that it was against logic or reasoning or outside the range of rulings one might reasonably expect based upon the record and the law.

In this case, the father argued three changes of circumstances: his remarriage, his relocation, and his change of work schedule.  The father was already dating his wife at the time of the parents’ divorce.  The father testified at the time of the divorce that he might move.  And the father’s work change afforded him some additional Fridays off from work.  Basis these three points, the trial court found a material change of circumstances, warranting inquiry into the children’s best interests.  But, based on these same three points, the appellate court found that there was not a material change of circumstances, resulting in a dismissal of the case.

The Supreme Court will make the final determination in this case.

No. E2012-00018-COA-R3-CV (Tenn. Ct. App. 2012); cert. granted October 17, 2012, case pending appeal to the Supreme Court of Tennessee.

See original opinion for exact language.  Legal citations omitted.

For more information about changing custody, see How to Change Custody in Tennessee.

The Miles Mason Family Law Group handles Tennessee divorce, child support, alimony, child custody, and parent relocation.  Download our free e-Book, Your First Steps: 7 Steps Planning Your Tennessee Divorce.  A Memphis divorce lawyer from the Miles Mason Family Law Group can help.  To schedule your confidential consultation, call us today at (901) 683-1850.