The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 20, 2013 Session
MARTHA ELAINE WEAVER CARTER v. DAVID RAY CARTER
Appeal from the Circuit Court for Davidson County
No. 05D849 Amanda Jane McClendon, Judge
No. M2013-00193-COA-R3-CV - Filed October 7, 2013
Mother appeals the trial court’s decision on her petition to modify parenting time. While we
find no error in the trial court’s ruling on parenting time, we have concluded that the trial
court erred in disqualifying mother’s attorney from representing her in future proceedings
and in ordering mother to produce bank records.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part, Reversed in Part
A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
M.S., P.J., and R ICHARD H. D INKINS, J., joined.
Tyree B. Harris, IV and Katherine A. Brown, Nashville, Tennessee, for the appellant, Martha
Elaine Weaver Carter.
James H. Drescher, Brentwood, Tennessee, for the appellee, David Ray Carter.
OPINION
Martha Elaine Weaver Carter (“Mother”) and David Ray Carter (“Father”) were
divorced in October 2006. One child was born of the marriage. Mother was named the
primary residential parent, and Father was awarded 85 days1 of parenting time per year.
Father had regular parenting time every other weekend and every Tuesday evening.
Mother filed a petition to modify child support in July 2009. Mother filed a notice of
appeal from the trial court’s rulings regarding the modification of child support on February
1
Pursuant to an agreed order entered in February 2012, Father’s parenting time was modified to 82
days.
9, 2012.2 Just prior to the notice of appeal being filed, on February 1, 2012, Mother filed a
motion to modify parenting time. Mother alleged that there had been a material change in
circumstances and that the present parenting schedule “inappropriately interferes with the
school, extracurricular and social activities in which the minor child of the parties engages
and/or wishes to engage at the present time.”
On February 10, 2012, Father filed a motion to disqualify counsel asking the court to
disqualify Tyree Harris, Mother’s attorney and husband, from representing Mother “in any
matter related to the modification of the parties’ permanent parenting plan.” On March 19,
2012, the trial court entered an order on Father’s motion to disqualify counsel, ruling that
“Mr. Harris shall be disqualified from representing [Mother] in any pending or new matters
in this case.”
Mother’s petition to modify parenting time was heard on August 2, 2012, and the
court heard testimony from Mother, Father, and their daughter, Elaina, who was almost
sixteen years old at the time of the hearing. On September 12, 2012, the trial court entered
an order finding that there had been a material change in circumstances and that modification
of the parenting plan was “necessitated by the child growing older, being involved in many
more activities and her desire to be involved in more social and school related activities.”
The court eliminated Father’s Tuesday night parenting time and changed the summer
parenting time to two weeks (instead of four weeks). The court also addressed specific
problems identified by the parties. For example, the court ordered that Elaina be allowed to
do laundry when at Father’s house. Father was ordered to “be more flexible with the child’s
schedule.”
Mother filed a motion to alter or amend the decree, and the trial court denied the
motion. This appeal followed.
On appeal, Mother argues that: the trial court erred in denying the 16-year-old child
the right to determine when and under what circumstances she would have parenting time
with Father; the trial court erred in disqualifying Mr. Harris in the proceedings below and as
to any prospective filing; the trial court erred in failing to award Mother her attorney fees;
and the trial court’s order concerning the production of banking records has been rendered
moot by the decision in the first appeal.
2
Issues regarding the trial court’s rulings on the modification of child support were decided by this
court in a previous appeal. Carter v. Carter, No. M2012-00342-COA-R3-CV, 2012 WL 6743816 (Tenn. Ct.
App. Dec. 28, 2012).
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A NALYSIS
1.
We find no merit in Mother’s argument regarding the trial court’s decision on the
modification of parenting time.
Determinations regarding custody and visitation “often hinge on subtle factors,
including the parents’ demeanor and credibility during the divorce proceedings themselves.”
Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). We “give great weight to the
trial court’s assessment of the evidence because the trial court is in a much better position to
evaluate the credibility of the witnesses.” Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn.
Ct. App. 2007). Moreover, trial courts necessarily have broad discretion to make decisions
regarding parenting arrangements to suit the unique circumstances of each case. See Eldridge
v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct.
App. 2006). Therefore, “‘a trial court’s decision [on visitation] will not ordinarily be reversed
absent some abuse of that discretion.’” Eldridge, 42 S.W.3d at 85 (quoting Suttles v. Suttles,
748 S.W.2d 427, 429 (Tenn.1988)). An abuse of discretion occurs “only when the trial
court’s ruling falls outside the spectrum of rulings that might reasonably result from an
application of the correct legal standards to the evidence found in the record.” Id. at 88.
The relevant statute with respect to a change of parenting time (and not a change in
primary residential parent) is Tenn. Code Ann. § 36-6-101(a)(2)(C), which states:
If the issue before the court is a modification of the court’s prior decree
pertaining to a residential parenting schedule, then the petitioner must prove
by a preponderance of the evidence a material change of circumstance
affecting the child’s best interest. A material change of circumstance does not
require a showing of a substantial risk of harm to the child. A material change
of circumstance for purposes of modification of a residential parenting
schedule may include, but is not limited to, significant changes in the needs of
the child over time, which may include changes relating to age; significant
changes in the parent’s living or working condition that significantly affect
parenting; failure to adhere to the parenting plan; or other circumstances
making a change in the residential parenting time in the best interest of the
child.
This statute “sets a very low threshold for establishing a material change of circumstances.
Indeed, merely showing that the existing arrangement has proven unworkable for the parties
is sufficient to satisfy the material change of circumstance test.” Rose v. Lashlee, No.
-3-
M2005-00361-COA-R3-CV, 2006 WL 2390980, at *2 n.3 (Tenn. Ct. App. Aug. 18, 2006).
In this case, the trial court found a material change of circumstances warranting
modification of the parenting schedule; that finding is not at issue on appeal. The next part
of the analysis is whether a modification of the parenting schedule is in the best interest of
the child. Boyer, 238 S.W.3d at 259. While she agrees with the trial court’s determination
that Elaina’s best interests required modification of the parenting schedule, Mother asserts
that the trial court erred “in failing to give the minor child the right to determine when and
under what circumstances she will spend parenting time with her father.” We cannot agree.
Tennessee Code Annotated section 36-6-404(b)(14) allows a court, in making a
determination regarding a permanent parenting plan, to consider the “reasonable preference”
of a child who is twelve years of age or older. The child’s preference is one of many factors
to be considered by the court. See Tenn. Code Ann. § 36-6-404(b). This Court is aware of
no authority for permitting a child to have the discretion to decide when and whether to
spend time with a parent.
The two cases cited by Mother are not on point. Mother relies on the case of Boyer
v. Heimermann, 238 S.W.3d at 255, as being factually similar. The issue in that case,
however, was whether there was a material change of circumstances. Boyer, 238 S.W.3d at
252. After determining that the changing needs of the children as they grew older constituted
a material change of circumstances, the court remanded for a determination as to whether
modifying father’s parenting time would be in the children’s best interests. Id. at 259. As
previously stated, the issue in the present case is whether the trial court erred by not further
modifying the parenting schedule.
In the second case cited by Mother, Hargrove v. Hargrove, No. W2007-00538-COA-
R3-CV, 2007 WL 4181476, at *2 (Tenn. Ct. App. Nov. 28, 2007), the trial court’s order gave
the sixteen-year-old child discretion regarding seeing the mother. This provision was not,
however, at issue on appeal. On appeal, the mother argued that the trial court erred in
modifying the parenting plan because it did not follow the statutory procedure. Hargrove,
2007 WL 4181476, at *2. The court rejected this argument, finding that the mother had
waived any objection. Id. at *5. In a footnote, the court specifically noted that the mother
had not challenged the trial court’s finding that the change in visitation was in the best
interest of the child. Id. at *5 n.6. We consider Hargrove to be distinguishable because it
did not address the merits of the parenting plan itself.
A minor child cannot determine when he or she will see a parent. Elaina had a right
to be heard by the court, and she was heard by the court. We affirm the trial court’s ruling
with respect to modification of the parenting schedule.
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2.
Mother’s next argument is that the trial court erred in disqualifying Mr. Harris from
representing her in the proceedings below. A trial court’s decision to disqualify an attorney
is reviewed under an abuse of discretion standard. Clinard v. Blackwood, 46 S.W.3d 177,
182 (Tenn. 2001). For the reasons discussed below, we find no abuse of discretion here.
In its order disqualifying Mr. Harris from representing Mother in the proceedings
below, the trial court cited Rule 3.7 of the Tennessee Rules of Professional Conduct, which
provides that, with certain limited exceptions, “[a] lawyer shall not act as an advocate at a
trial in which the lawyer is likely to be a necessary witness . . . .” Tenn. Sup. Ct. R. 8, RPC
3.7. The trial court noted that opposing counsel had represented to the court that he would
“certainly” be calling Mr. Harris as a fact witness. The court concluded that, “given the
circumstances of this case and the contentious history between the parties this Court believes
Mr. Harris is likely to be a necessary witness,” and that Mr. Harris “has personal knowledge
to which only he likely may know or be able to testify with regard to parenting time.”
On appeal, Mother emphasizes that Mr. Harris was not actually deposed or called as
a witness. This fact, however, does not make the trial court’s disqualification improper
because the inquiry is whether he was likely to be a necessary witness. At oral argument,
when asked how his disqualification disadvantaged his client, Mr. Harris himself stated: “I
was much more familiar with the underlying facts and circumstances . . . of what was going
on at her father’s house and I could have asked [Elaina] about all of those things and, in
particular, I could have tailored that question to the case of Boyer v. Heimermann.”
Under the facts of this case, we find no abuse of discretion in the trial court’s decision
to disqualify Mr. Harris from representing Mother in the proceedings below.
3.
The trial court did not limit its disqualification to the current proceedings, but also
disqualified Mr. Harris from representing Mother in any “new matters in this case.” In this
regard, we find that the trial court erred. The determination regarding disqualification of an
attorney is to be made based upon the specific matters being litigated. Future post-divorce
litigation in this case could concern matters about which Mr. Harris has no personal
knowledge. We find no basis for prospectively disqualifying Mr. Harris in all future
proceedings in this case; such a determination should be made at such time as another post-
judgment dispute arises.
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4.
In its decision regarding Mother’s petition for modification of parenting time, the trial
court ordered that each party be responsible for his or her own attorney fees. Mother argues
that this was error. We disagree.
As Mother emphasizes, Tenn. Code Ann. § 36-5-103(c) authorizes a court to award
attorney fees in certain post-divorce litigation regarding custody or child support. A trial
court’s decision as to whether to award attorney fees rests within the court’s sound discretion,
and we will not overturn the trial court’s decision absent an abuse of discretion. Threadgill
v. Threadgill, 740 S.W.2d 419, 426 (Tenn. Ct. App. 1987).
Mother asserts that she was entitled to attorney fees because she was the prevailing
party. As reflected in this appeal, however, Mother did not get all of the relief she requested.
The trial court acted within its discretion in deciding that each party should bear his or her
own attorney fees.
5.
The final issue has to do with the portion of the trial court’s order requiring Mother
to produce bank records regarding funds held by her on behalf of the minor child. Mother
argues that this requirement has been rendered moot by this Court’s opinion in the prior
appeal that the trial court erred in ordering Mother to set up a trust account. While we do not
consider the issue moot, we have concluded that the trial court erred in including this order
in its decree because the hearing was on Mother’s petition to modify parenting time and
funds held for the benefit of the child had no relevance to that petition.
At the hearing on Mother’s petition to modify parenting time, counsel for Father
questioned Mother about money given to Elaina. Counsel for Mother objected on grounds
of relevance, but the trial court decided to allow the testimony “just so we don’t have another
Petition filed, which we probably will anyway.” After a series of questions regarding these
funds, Mother stated that she was willing to give Father copies of the bank statements. Over
an objection by Mother’s attorney, the court stated that it would order Mother to produce the
bank records:
I’m trying to avoid more litigation. Going to provide that from when I ordered
it forward, and that’s to avoid litigation, as well as on the UBS funds at the
time of the divorce that were being held, from that point forward. And if
someone wants to appeal me because this exceeds the pleadings, then let them
do so.
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Although we are not without sympathy for the trial court’s desire to avoid more
litigation between these parties, we must conclude that the bank records had no relevance to
the matter before the trial court, namely a petition to modify parenting time. Moreover, in
light of Mother’s counsel’s continuing objections, we cannot say that the issue was tried by
consent of the parties. Therefore, the trial court erred in ordering Mother to produce the bank
records.
C ONCLUSION
For the reasons discussed, we affirm in part and reverse in part the trial court’s
decision. Costs of the appeal are taxed equally between the two parties, and execution may
issue if necessary.
_________________________
ANDY D. BENNETT, JUDGE
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