# Dylan Whitmore v. Melyssa Atkinson

> Court of Appeals of Tennessee · February 5, 2026

URL: https://www.frixlaw.com/law-library/cases/11251584

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** February 5, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion of the court by Judge Valerie L. Smith
- **Judges:** Judge Valerie L. Smith
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- Noting that a prevailing party for purposes of an award of attorney’s fees is one who has succeeded on any significant issue in litigation which achieves some of the benefit sought in bringing suit

## Opinion text

02/05/2026
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 6, 2025 Session

DYLAN WHITMORE v. MELYSSA ATKINSON

Appeal from the Juvenile Court for Tipton County
No. 20-JV-103 William A. Peeler, Judge
___________________________________

No. W2024-01265-COA-R3-JV
___________________________________

This is an action to modify a permanent parenting plan. Mother appeals the trial court’s
order finding her in civil contempt, modifying the parties’ parenting plan, and awarding
attorney’s fees to Father. She also argues that the trial court lacked subject matter
jurisdiction over Father’s initial petition to establish a parenting plan. We have determined
that the trial court properly exercised subject matter jurisdiction over this matter. We
affirm the trial court’s finding that Mother’s failure to abide by the parenting plan
constituted a material change of circumstance. However, Father failed to carry his burden
of proof to demonstrate that modification of the 2021 parenting plan to designate Father as
primary residential parent is in the child’s best interest. We therefore reverse the trial
court’s judgment granting Father’s petition to modify. We affirm the trial court’s award
of attorney’s fees to Father and remand for recalculation of the parties’ child support
obligations. Father’s request for attorney’s fees on appeal is denied.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part, Reversed in Part, and Remanded

VALERIE L. SMITH, J., delivered the opinion of the court, in which JOHN W. MCCLARTY,
P.J., E.S., and KENNY ARMSTRONG, J., joined.

Darrell D. Blanton, Memphis, Tennessee, for the appellant, Melyssa Atkinson.

Adam N. Cohen, Memphis, Tennessee, for the appellee, Dylan Whitmore.

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MEMORANDUM OPINION1

I. BACKGROUND AND PROCEDURAL HISTORY

Melyssa Atkinson (“Mother”) and Dylan W. (“Father,”) are the unmarried parents
of R.G.W. (“the child”), who was born in August 2019.2 On June 2, 2020, the State of
Tennessee filed a petition on Mother’s behalf to set Father’s child support obligation and
for retroactive child support. The petition stated that Mother was receiving Title IV-D
services and that Mother and the child resided in Tipton County, Tennessee.

On April 6, 2021, Father filed a petition in the Juvenile Court of Tipton County
(“the trial court”) to establish a parenting plan. In his petition, Father alleged that
Respondent, Melyssa A. (“Mother”) was a resident of Tipton County and that the child had
resided with Mother since the child’s birth in 2019. Father proposed that Mother be
designated primary residential parent and sought equal parenting time on an alternate week
schedule, joint decision-making, and an order setting his child support obligation consistent
with the Child Support Guidelines. On May 18, 2021, Father moved for a default judgment
on the ground that Mother had failed to file an answer. Following a June 2 hearing, the
trial court granted Father’s motion for default judgment, adopted Father’s proposed
parenting plan, and ordered Father to pay child support in the amount of $128.00 per month.
In its order, the trial court found that Mother was served on April 13 in Millington via
private process server, had failed to respond, and had failed to appear. On August 4, the
trial court dismissed the State’s petition to set child support.

On October 21, 2021, the State of Tennessee filed a petition for civil contempt on
Mother’s behalf. The petition asserted that Father had failed to pay child support as
required by the June 2021 parenting plan and stated that Mother was receiving Title IV-D
services because she “participates in or has participated in” Tennessee public assistance
program[s]. Following a hearing on December 16, the trial court granted the State’s oral
motion to dismiss the contempt petition.

On August 17, 2022, Father filed a petition for scire facias, civil or criminal

1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION”, shall not be published, and shall not be
cited or relied on for any reason in any unrelated case.
2
It is the policy of this Court to abbreviate the names of children to protect their privacy and
identities. Father’s paternity is not disputed.

-2-
contempt, and attorney’s fees. In his petition, he stated:
On or about May 13, 2022, Father provided the parties’ child with minor
medical care after she was hit in the forehead with a baseball bat when her
sister swung the bat and accidentally hit the minor child on the backswing.
Father took child to Methodist North and the child was given three stitches.
Father informed Mother of the incident and of the treatment provided to the
child.

Father asserted that Mother “began withholding” the child on June 5, 2022, allegedly for
“safety reasons” and because the child “‘needed to complete her medication.’” Father also
stated that he believed that Mother had “made false allegations of child abuse resulting in
Father being interviewed by the Tennessee Department of Children’s Services” (“DCS”)
on June 15. He also stated that DCS had not contacted him further. Father also filed a
petition to modify the parenting plan to name him primary residential parent and award
Mother reasonable visitation. He submitted that Mother’s actions withholding the child
and “alienat[ing] the child from Father[]” constituted an unforeseen material change of
circumstances and asserted that modification was in the child’s best interests.

On October 5, 2022, Mother filed a motion to set aside the 2021 parenting plan for
insufficient/ineffective service of process and lack of personal and subject matter
jurisdiction. In her petition, Mother asserted that she was a resident of Mississippi. She
further asserted that when Father filed his petition in April 2021, Father “had personal
knowledge of Movant/Respondent’s exact place of residence, and specifically, that she had
been an adult resident citizen of the State of Mississippi for many years even prior to the
minor child being born.” Mother contended that she was visiting her father in Millington
before he passed away in January 2021 and asserted that “[t]his was her only connection
to the State of Tennessee[.]” She also asserted that Father was “well aware of the reason
for her visits” and that Father filed his petition “upon learning that [Mother] would be back
in Tennessee moving some of [her father’s] belongings.” She also asserted that the child
was a resident of Mississippi and “had been such for her entire life.” She submitted that
the trial court accordingly lacked personal and/or subject matter jurisdiction over the matter
under Tennessee Code Annotated section 36-6-216. Mother also alleged insufficiency of
process. She contended:

. . . the said paperwork served on [Mother] contained no court date in which
to appear and defend the action, and gave no notice of when the matter was
to be heard. A letter that contained the time and date of the hearing was then
intentionally mailed to [Mother’s] deceased father’s address, after [Mother]
had already advised both the attorney, and [Father] that she did not live there.
As a result, [Mother] was not aware of the court date. Said letter was sent by
[Father’s] attorney while she was in active communication with [Mother] via
email. After representing to [Mother] that the parties were negotiating in the
matter, said [Father] and attorney appeared in court and obtained a default
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judgment against [Mother].

On October 27, Father answered and moved to dismiss Mother’s motion. Father
asserted that Mother and the child were Tennessee residents when he filed his April 2021
petition and for at least six months prior to the petition. He asserted that the child had
attended preschool in Atoka, Tennessee, for at least six months prior to the June 2, 2021,
hearing and that the child was enrolled in the preschool “from August/September 2020
until Mother moved [the child] from the preschool on or about August 2021.” Father also
submitted that Mother had availed herself of the Tennessee court system and had filed a
petition through the State of Tennessee to set child support in July 2021. He alleged that
the July petition stated that the “child now resides with [Mother] in Tipton County,
Tennessee.”

On March 6, 2023, Father filed a motion styled: MOTION FOR EX PARTE
ORDER FOR TEMPORARY MODIFICATION OF THE EXISTING RESIDENTIAL
SCHEDULE VIA TEMPORARY EMERGENCY ORDER AND PETITION FOR
ENFORCEMENT OF THE PARTIES’ PERMANENT PARENTING PLAN. In his
motion, Father asserted that Mother had withheld the child from him since June 5, 2022,
in violation of the parenting plan. He also asserted that “Mother ha[d] engaged in flagrant
parental alienation by withholding the minor child from Father and/or refusing all of
Father’s requests for parenting time.” Father alleged that Mother “fled the state with the
minor child and moved to . . . Mississippi.” Father prayed for an ex parte order granting
him “temporary emergency custody . . . with Mother having supervised visitation with
minor child in the State of Tennessee[]” and for attorney’s fees.

Following a hearing on August 3, 2023, the trial court found Mother to be guilty of
civil contempt for withholding the child for over a year and for failure to abide by the
Tennessee Relocation Statute. The court took Father’s request that Mother be found guilty
of 215 counts of contempt under advisement. The court granted Father parenting time
beginning on August 3 and ordered the parties to operate under the June 2021 parenting
plan, with alternate weeks to begin and end on Thursday evenings. The court entered its
order on September 13, 2023, nunc pro tunc to August 3, 2023.

An additional hearing was held on September 13, 2023, and the trial court entered
its findings of fact and conclusions of law on December 19, nunc pro tunc to September
13. The trial court found that the officer’s return filed with the court demonstrated that, on
April 12, 2021, Mother was personally served at her address in Tennessee. The court also
found that Father’s motion for default judgment and notice of hearing were served on
Mother at the same Tennessee address. The trial court further found:

On May 28, 2021, Mother wrote to Father’s counsel acknowledging receipt
of the Notice of Hearing setting the Motion for Default Judgment for hearing
on June 2, 2023. Despite Mother having knowledge of the hearing date,
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Mother failed to appear before the Court on June 2, 2021.

The trial court additionally found that the parties had abided by the parenting plan
from June 2, 2021, until June 5, 2022. The court noted that “the Child was hit in the head
with a baseball bat while playing with her half-sister during Father’s parenting time” and,
on June 3, 2022, Mother made allegations to DCS “that Father was physically abusing the
child and exposing the child to drugs.” The trial court found that, at the August 2023
hearing, Mother admitted that she had withheld the child for more than a year and asserted
that withholding the child was warranted until DCS concluded its investigation regarding
her allegations. The court also found that DCS records reflected that Mother’s “allegations
against Father were unsubstantiated and the case was closed on June 29, 2022.” The trial
court noted that Mother testified that she was unaware of the outcome of the investigation
and that she “never heard from DCS after being interviewed.” The court additionally noted
that the DCS case worker testified that she investigated the referral; the case was closed on
June 29, 2022; she spoke to Mother on the telephone at the end of June 2022; and she
notified Mother that the allegations were unsubstantiated and the case was closed. The
trial court stated that the caseworker “also testified that she specifically recalled during her
telephone call with Mother, that Mother was upset about the investigation being closed and
about her allegations against Father being unsubstantiated.” The court determined: “As
Mother’s testimony consistently conflicted with evidence in the record and the testimony
of both Father and the DCS caseworker, La’Kia Harvey, the Court finds that Mother’s
testimony was not credible.”

The trial court found that Mother admitted that she had willfully withheld the child
on the 214 instances as alleged by Father and therefore willfully and knowingly violated
the terms of the parenting plan. Accordingly, the court found Mother to be guilty of 214
counts of civil contempt for violation of the parenting plan. The trial court also found
Mother’s testimony that she relocated to Mississippi before Father filed his April 2021
petition to be contrary to the evidence and not credible. Thus, the court held Mother in
contempt for an additional count for willfully and knowingly violating the relocation
statute set forth in Tennessee Code Annotated section 36-6-108 (“the relocation statute”),
bringing Mother’s total to 215 findings of contempt.

The trial court further determined that Mother’s actions withholding the child
constituted a material change of circumstances. After discussing the factors enumerated at
Tennessee Code Annotated section 36-6-106(a) and concluding that the child was harmed
by Mother’s conduct, the trial court determined that modification of the parenting plan was
in the child’s best interests. The court designated Father to be primary residential parent;
awarded Father final decision-making authority; granted Mother parenting time every other
weekend during the school year and alternate weeks in the summer; and modified the
holiday parenting schedule. The court reserved the issue of child support. The trial court
awarded Father attorney’s fees pursuant to Tennessee Code Annotated sections 36-6-236
and 36-5-103 and, by order entered December 20, ordered Mother to pay Father attorney’s
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fees of $39,129.27. After a hearing on June 5, 2024, by order entered July 25, 2024, the
trial court set Mother’s child support obligation at $400 per month, retroactive to
September 2023. The court found that Mother had paid no child support and ordered her
to pay retroactive child support in the amount of $3,600.00 at the rate of $25.00 per month
beginning June 1, 2024. The trial court also ordered Mother to pay Father’s attorney’s fees
in installments of $50 per month beginning June 1, 2024. (The court ordered Mother to
pay combined child support, arrearages, and attorney’s fees in two equal installments of
$237.50 on the first and second pay period of each month.) The trial court entered final
judgment on July 25, 2024, and Mother filed a timely notice of appeal.

II. ISSUES PRESENTED

Mother raises the following issues for our review:

I. Whether the trial court lacked subject matter jurisdiction in this case.
II. Whether the trial court erred by finding Mother in Civil Contempt.
III. Whether the trial court erred by modifying the Permanent Parenting Plan.
IV. Whether the trial court erred by ordering Mother to pay Father’s attorney fees.

Father raises no additional issues for review but requests attorney’s fees on appeal.

III. STANDARD OF REVIEW

This is a non-jury case. Accordingly, our review of the trial court’s findings of fact
is de novo upon the record with a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); Allstate Ins. Co. v. Tarrant, 363 S.W.3d
508, 512 (Tenn. 2012). The evidence preponderates against the trial court’s findings of
fact when it supports another finding “with greater convincing effect.” Hardeman Cnty. v.
McIntyre, 420 S.W.3d 742, 749 (Tenn. Ct. App. 2013) (citation omitted). Therefore, the
trial court’s factual findings must contain sufficient underlying facts that clearly disclose
the basis of the court’s determinations. Lovelace v. Coley, 418 S.W.3d 1, 34 (Tenn. 2013)
(citations omitted). Appellate review of a trial court’s conclusions of law is de novo with
no presumption of correctness. Rogers v. Louisville Land Co., 367 S.W.3d 196, 204 (Tenn.
2012). Additionally, the appellate courts recognize that trial courts are in the best position
to assess witness credibility. Brown v. Brown, 571 S.W.3d 711, 720 (Tenn. Ct. App. 2018)
(citation omitted). Therefore, when the trial court has seen and heard witnesses, we afford
great deference to findings based on the court’s credibility determinations. In re M.L.P.,
228 S.W.3d 139, 143 (Tenn. Ct. App. 2007). Findings based on witness credibility will
not be reversed unless the record contains clear and convincing evidence to contradict
them. Id.

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IV. ANALYSIS

A. Subject Matter Jurisdiction

We turn first to whether the trial court had subject matter jurisdiction to adjudicate
this case. A court’s subject matter jurisdiction involves its authority to adjudicate a case
brought before it. Roberts v. Tennessee Dep’t of Env’t & Conservation, 716 S.W.3d 68, 76
(Tenn. Ct. App. 2025) (citations omitted). “A court derives its subject matter jurisdiction,
either explicitly or by necessary implication, from the Constitution of Tennessee or from
legislative acts.” Id. (quoting In re S.L.M., 207 S.W.3d 288, 295 (Tenn. Ct. App. 2006))
(additional citations omitted). Subject matter jurisdiction cannot be waived, and it cannot
be conferred by agreement of the parties. Id. Any order or judgment entered by a court
lacking subject matter jurisdiction is void. Id. (citation omitted). Whether a court has
subject matter jurisdiction is a question of law that we review de novo, with no presumption
of correctness afforded to the trial court. Id. at 72.

Tennessee Code Annotated section 36-6-216 provides, in relevant part:
(a) Except as otherwise provided in § 36-6-219, a court of this state has
jurisdiction to make an initial child custody determination only if:

(1) This state is the home state of the child on the date of the commencement
of the proceeding, or was the home state of the child within six (6) months
before the commencement of the proceeding and the child is absent from this
state but a parent or person acting as a parent continues to live in this state[.]

Tenn. Code Ann. § 36-6-216(a)(1).

Mother and Father dispute whether Mother and the child were Tennessee residents
for the six months preceding April 2021, when Father filed his original petition to establish
a parenting plan. In her brief, Mother submits that she and the child relocated to Mississippi
in Fall 2020 and argues that the trial court lacked subject matter jurisdiction when Father
filed his April petition. She maintains that, in his petition, Father erroneously stated that
the child resided with Mother in Millington, Tennessee, and Father neither alleged nor
proved that Mother had been a Tennessee resident for the six months preceding his petition.
She contends that the trial court accordingly erred in finding that it had subject matter
jurisdiction to adjudicate Father’s initial petition.

Father, on the other hand, argues that Mother and the child lived in Tennessee at
least until April 2021. He asserts that the child attended daycare in Tennessee until “at
least May of 2021,” and that TennCare records establish that Tennessee paid for the child’s
daycare until August 2021. Father further argues that, even assuming Mother’s account of
the facts is true, the trial court had “at least” extended home state jurisdiction as described
in Doss v. Doss, 2005 WL 946744 (Tenn. Ct. App. Apr. 25, 2005). Father submits that the
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trial court specifically found Mother’s testimony regarding her relocation to Mississippi to
not be credible. As noted above, a trial court’s credibility determinations will not be
reversed absent clear and convincing evidence to the contrary. In re M.L.P., 228 S.W.3d
at 143.

The trial court’s jurisdiction in this case depends on when Mother and the child
relocated to Mississippi. As Father asserts, the trial court found that Mother’s testimony
that she relocated to Mississippi in Fall 2020 was not credible. In its December 2023 order,
the trial court found:

The payment records from Little Angels Daycare marked as Exhibit 15
reflects the State of Tennessee paying vouchers to Little Angels for child’s
full time attendance, for our child, the child we’re dealing, full time
attendance at daycare through August 15, 2021.

The trial court further stated:

Based on the totality of the documentary evidence and the testimony of
Father and the daycare worker and the court file, the Court finds Mother’s
testimony about when she relocated to with the child to Mississippi is not
credible.

Upon review of the record, we find no clear and convincing evidence that would
contradict the trial court’s credibility determination. Additionally, it is undisputed that the
child was born in Tennessee, and the exhibits in the record demonstrate that the child was
approved for TennCare benefits in 2019. Coverage was renewed in May 2020. In
September 2020, TennCare advised Mother in writing that a change regarding the child
had been reported and requested proof of eligibility. In July 2021, TennCare advised
Mother that its records established that she was a Tennessee resident but, “for a short time,”
was living outside of Tennessee and that benefits would change in August 2021. The
TennCare records indicate claims paid in May 2021. Additionally, Tennessee Department
of Human Services’ records demonstrate that the Department provided daycare benefits
for the child from November 2020 through August 15, 2021. The evidence does not
preponderate against the trial court’s finding that Mother and the child were residents of
Tennessee for the six-month period before Father filed his April 2021 petition. We are
satisfied that the trial court properly exercised jurisdiction over this case.

B. Civil Contempt

We turn next to whether the trial court erred in holding Mother in civil contempt.
A claim of civil contempt for alleged willful disobedience of a court’s order has four
essential elements:

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(1) the order alleged to have been violated must be “lawful”; (2) the order
alleged to have been violated must be clear, specific, and unambiguous; (3)
the person alleged to have violated the order must have actually disobeyed
or otherwise resisted the order; and (4) the violation of the order must have
been “willful.”

Strickland v. Strickland, 644 S.W.3d 620, 633 (Tenn. Ct. App. 2021) (quoting Lovlace v.
Copley, 418 S.W.3d 1, 34 (Tenn. 2013)). In the context of civil contempt, willful conduct
“consists of acts or failures to act that are intentional or voluntary rather than accidental or
inadvertent. Conduct is ‘willful’ if it is the product of free will rather than coercion. Thus,
a person acts ‘willfully’ if he or she is a free agent, knows what he or she is doing, and
intends to do what he or she is doing.”

Id. (quoting Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 357
(Tenn. 2008) (quoting State ex rel. Flowers v. Tenn. Trucking. Ass’n Self Ins. Grp. Trust,
209 S.W.3d 602, 612 (Tenn. Ct. App. 2006))). The petitioner bears the burden to establish
that the respondent has failed to comply with a court order. State ex rel. Bass v. Gonzalez-
Perez, No. W2016-00655-COA-R3-JV, 2017 WL 2210758, at *6 (Tenn. Ct. App. May 19,
2017) (citing Chappell v. Chappell, 261 S.W.2d 824, 831 (Tenn. 1952)). “Whether an
order has been violated and whether the violation was willful present factual issues that we
review de novo, affording a presumption of correctness to the trial court’s findings.”
Strickland, 644 S.W.3d at 633 (citation omitted)

Appellate review of a trial court’s contempt decision is the deferential abuse of
discretion standard. Id. (citations omitted). Our Supreme Court has explained:
An abuse of discretion occurs when a court strays beyond the framework of
the applicable legal standards or when it fails to properly consider the factors
customarily used to guide that discretionary decision. Discretionary
decisions must take the applicable law and relevant facts into account. Thus,
reviewing courts will set aside a discretionary decision only when the court
that made the decision applied incorrect legal standards, reached an illogical
conclusion, based its decision on a clearly erroneous assessment of the
evidence, or employs [sic] reasoning that causes an injustice to the
complaining party.

Konvalinka v. Chattanooga–Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn.
2008) (internal citations omitted).

In her brief, Mother asserts that Father failed to attach a proposed permanent
parenting plan to his August 2022 “Petition for Scire Facias, Citation for Civil and/or
Criminal Contempt and Attorney’s Fees, Petition to Modify Permanent Parenting Plan and
for Immediate Injunction Relief” as required by Tennessee Code Annotated section 36-6-
405. Mother also asserts that the trial court held her in contempt for violating the relocation
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statute and contends that Father did not allege a violation of the statute in his August 2022
petition. She acknowledges, however, that Father argued that Mother had “fled the State”
in his March 2023 motion. Father, on the other hand, asserts that Mother did not object to
questions about the relocation statute at trial and the issue was tried by consent.

As noted above, Mother responded to Father’s August 2022 contempt petition with
a motion to dismiss for lack of jurisdiction. In her brief, Mother points us to nothing in the
record to demonstrate that she raised the issues of 1) Father’s failure to assert violation of
the relocation statute as a ground in his August 2022 petition or 2) Father’s failure to attach
the parenting plan to his petition in the trial court. It is well-settled that “a party who fails
to raise an issue in the trial court waives its right to raise that issue on appeal.” Waters v.
Farr, 291 S.W.3d 873, 918 (Tenn. 2009). Additionally, “[w]hen issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.” Tenn. R. Civ. P. 15.02. Upon review
of the record, we note that, upon questioning by Father’s counsel, Mother testified
regarding whether she sought the court’s permission to relocate to Tennessee without
objection. This argument is without merit.

Mother also asserts that the parenting plan was ambiguous where it provides: “The
parent starting their visitation will pick up the minor child from the other parent unless
agreed upon by both parties.” She argues: “While the phrase ‘unless agreed upon by both
parties’ may create an ambiguity, if Father was concerned the agreement was ambiguous,
he only had to appear at Mother’s house to pick up the child. Father never testified he
appeared at Mother’s house pursuant to the PPP.” Mother does not argue, however, that
she found the plan to be ambiguous, and she acknowledged at trial that she intentionally
withheld the child from Father because she believed it to be in the child’s best interest
pending outcome of the DCS investigation. As noted above, the trial court determined that
Mother’s testimony that she was not aware that the investigation had been closed was not
credible. This argument likewise is without merit.

Mother additionally contends that she did not actually violate the parenting plan.
She argues:

Mother could only deny Father’s parenting on Sunday at 7:00 pm. every
other week. Therefore, according to the PPP, from June 5, 2022, through
August 3, 2023, Father should have driven to Mother’s house thirty-one
times to pick up the child. He did none. Since Mother did not refuse to
deliver/transfer the child to Father when he showed up at her door to pick up
the child, it cannot be alleged that Mother violated the terms of the PPP.

Father, on the other hand, argues that his contempt petition specifically alleged that Mother
was withholding the child and asserts, “[b]ased upon the totality of the circumstances
described herein, continuing to drive two hours every other week would have been futile.”
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Father relies on Baggett v. Baggett, 422 S.W.3d 537, 545 (Tenn. Ct. App. 2013), for the
proposition that “the law does not require futile acts.”

Mother acknowledges that she “informed Father that she would not allow the child
to return to Father[]” after the child was injured while in Father’s care. Mother contends,
“[f]rom that point forward, Father made two (2) attempts (his testimony) to meet to pick
up the child. Mother’s testimony was that Father only communicated with her once and
that Mother actually went to Walmart, but Father was not there.”3 She also argues,

Pursuant to the terms of the PPP, if the parties did not agree otherwise,
Father’s obligation was to pick up the child from Mother's house. However,
from May 2022 until the Court hearing Father never showed up at Mother’s
house to pick up the child, and Father never showed up in Hernando to pick
up the child Further, Father never testified that he appeared at Mother’s house
to pick up the child and Mother refused to transfer or allow the child to go
with Father.

However, from our review of the record, we note that when asked whether she denied
violating the court’s order, Mother replied that she did not. Mother’s statement also
contradicts the argument in her brief that the trial court’s finding that she willfully violated
the court’s order “has no basis in the proof.” Additionally, although Mother testified that
she was attempting to protect the child, Mother took no steps to modify the parenting plan
but responded to Father’s contempt petition with a motion to dismiss for lack of
jurisdiction. The parties were aware of the requisites of the parenting plan and operated
under it for a year. We cannot say the trial court abused its discretion by holding Mother
in civil contempt.

C. Modification of the Parenting Plan

We begin our discussion of the trial court’s decision to modify the 2021 parenting
plan by noting we must employ a “limited scope of review . . . in reviewing a trial court’s
factual determinations in matters involving child custody and parenting plan
developments.” C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017) (citation omitted).
Our Supreme Court has emphasized:

[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. Thus, 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.

3
All citations to the record are herein omitted.
- 11 -
Id. (quoting Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013)). The C.W.H.
court continued:

Indeed, trial courts are in a better position to observe the witnesses and assess
their credibility; therefore, trial courts enjoy broad discretion in formulating
parenting plans. Id. at 693 (citing Massey-Holt v. Holt, 255 S.W.3d 603, 607
(Tenn. Ct. App. 2007)). “Thus, determining the details of parenting plans is
‘peculiarly within the broad discretion of the trial judge.’” Id. (quoting Suttles
v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)). Appellate courts should not
overturn a trial court’s decision merely because reasonable minds could
reach a different conclusion. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001).

Id. Therefore, appellate courts review a trial court’s decision regarding parenting schedules
under the deferential abuse of discretion standard. Id. (citation omitted). We may not
reverse the trial court’s decision unless it “‘falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal standards to the evidence.’” Id.
(quoting Kelly v. Kelly, 445 S.W.3d 685, 696 (Tenn. 2014) (quoting Armbrister, 414
S.W.3d at 693)); (additional citation omitted). Id.

When considering a petition to modify a permanent parenting plan, the trial court
must employ a two-part test. Id. First, it must determine whether a material change of
circumstances has occurred.” Id. If it finds a material change of circumstance, the court
must then apply the factors set forth in Tennessee Code Annotated section 36-6-106(a) to
determine whether modifying the plan is in the child’s best interests. Id.

In her brief, Mother asserts that neither party presented proof relating to
modification of the parenting plan. She argues that the trial court determined that the issue
of contempt was the best issue to begin with and that the court stated at trial:

What I am inclined to do today just as a temporary measure was order —
allow Dad visitation and do the week on, week off just temporary until the
Court can decide how I am going to handle this going forward. I am not sure
— I am not sure that we really got fully into the issue of just a complete
change of custody. I think what you were asking, Ms. Putnam, is that the
Court really put that in place as a sanction. That Mom, because she’s
disobeyed the court order that the Court just reverse things, make Father the
primary residential parent, let him make up his time in some fashion

She submits:

It is evident, even from the Court’s own statement, that the proof never
ventured into the modification issues. However, when the parties returned to
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Court for the ruling on the Contempt issue, the Trial Court modified the PPP
and did so as a sanction for Mother’s alleged contempt.

Father, on the other hand, argues that the proceedings were neither bifurcated nor limited
to the issue of contempt and that the court heard proof regarding his petition to modify the
parenting plan. He further submits that counsel for the parties addressed the modification
issue.

We begin our discussion of this issue by noting that the single material change of
circumstance found by the trial court was Mother’s decision to withhold the child from
Father for more than a year following the child’s injury in May 2022. In its findings, the
trial court stated: “the change had a detrimental and meaningful effect on the child’s well—
being.” The trial court then engaged in the statutory best-interest analysis. Upon review,
we observe that the trial court found that many factors were either equal or not applicable.
Although it found that several factors favored Father, those findings were predicated solely
on the undisputed fact that Mother withheld the child for over a year, thereby causing “the
child’s relationship with Father [to] suffer[].” Indeed, with respect to factor ten – “[t]he
importance of continuity in the child’s life and the length of time the child has lived in a
stable, satisfactory environment[] – the court found “[d]ue to Mother’s unilateral conduct
in removing the child from the stable and satisfactory environment of spending equal time
with both her parents, the child’s relationship with Father suffered.” It then determined
that the factor favored Father. However, it is undisputed that Mother was the primary
residential parent throughout the child’s life, and the existing parenting plan provided for
roughly equal parenting time. With respect, while we do not condone Mother’s actions,
the child lived in a stable, satisfactory environment with Mother. The trial court’s
conclusion did not consider the impact that “upsetting the apple cart” would have on the
child.

Additionally, with respect to factor nine – the child’s interaction with siblings – the
court determined that Mother’s actions were detrimental to the child’s relationship with
her half-sister in Father’s household. However, the trial court did not consider the impact
that modification of the parenting plan would have on the child’s relationship with her half-
sister in Mother’s household.

From our review of the record, we note that Mother’s testimony related primarily to
whether she resided in Tennessee in Spring 2021 and when and why – from her point of
view – she withheld the child from Father. In short, Mother testified that she was a resident
of Mississippi and feared for the child’s safety while in Father’s care. Similarly, Father’s
testimony regarding the child’s best interest was limited to his denial of physically harming
the child and the impact not seeing the child had on Father – and, to an even more limited
extent – on Father’s older child. There is nothing in this record to demonstrate that
modification of the parenting plan – as opposed to enforcing it – is in the child’s best
interest. Indeed, at the August 2023 hearing, the trial court stated: “I am not sure that we
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really got fully into the issue of just a complete change of custody.” The court further
stated:

I don’t know that I am going to change custody based on what has happened,
but I do certainly believe that Mom was in contempt of court, didn’t obey the
order, let way too much time pass without any effort to try to reconcile the
situation with Dad. And there are going to be sanctions that are going to be
put down.

As Father asserts in his appellate brief, the trial court also acknowledged that the
matter was docketed as a hearing on Father’s petition to modify, and the court stated that
it believed it could make a decision based on the August 2023 hearing. Additionally, we
observe that the court conducted a hearing with counsel in September 2023 to address the
entire matter. We also note that most of the discussion between the court and counsel
pertained to Mother’s violation of the April 2021 parenting plan. Further, the trial court
appears to have concluded that modification of the plan was in the child’s best interest
because 1) Mother violated the plan and 2) the child had done well under the 2021 plan.
However, the parent seeking modification of a permanent parenting plan carries the burden
of proof to demonstrate by a preponderance of the evidence that “‘(1) that a material change
in circumstances has occurred and (2) that a change in custody or residential schedule is in
the child’s best interest.’” Rushing v. Rushing, 692 S.W.3d 82, 94 (Tenn. Ct. App. 2023)
(quoting Webb v. Webb, No. M2008-02039-COA-R3-CV, 2009 WL 3321038, at *3 (Tenn.
Ct. App. Oct. 14, 2009)); Tenn. Code Ann. § 36-6-101 (a)(2)(C).

A parent’s failure to abide by a parenting plan may constitute a material change in
circumstances. Tenn. Code Ann. § 36-6-101(a)(2)(C). Thus, we affirm the trial court’s
finding regarding a material change of circumstance. However, the evidence does not
support a determination that modifying the parenting plan to designate Father residential
parent and provide Mother limited visitation is in the child’s best interest.

Notwithstanding Father’s argument that the issue of modification of the parenting
plan was addressed by counsel, we remind the parties and counsel that statements and
arguments made by counsel do not constitute evidence. In re Conservatorship of Malone,
No. W2024-00264-COA-R3-CV, 2025 WL 1938985, at *13 (Tenn. Ct. App. July 15,
2025), appeal denied (Dec. 11, 2025) (citing Metro. Gov’t. of Nashville & Davidson Cnty.
v. Shacklett, 554 S.W.2d 601, 605 (Tenn. 1977); Greer v. City of Memphis, 356 S.W.3d
917, 923 (Tenn. Ct. App. 2010)). From our review of the record, we find no evidence that
modification – as opposed to enforcement – of the 2021 parenting plan is in the child’s best
interest. Indeed, there is no proof in the record – neither documentary nor testimonial –
regarding the needs or best interests of, or harm to, the child. Although we are sensitive to
the trial court’s conclusion that Mother’s actions likely harmed the child’s relationship with
Father, Father simply failed to carry his burden of proof to demonstrate that modification
of the parenting plan to designate Father as primary residential parent is in the child’s best
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interests. Accordingly, we reverse the trial court’s judgment modifying the 2021 parenting
plan.

D. Attorney’s Fees

Under Tennessee Code Annotated section 36-5-103, a prevailing party may obtain
an award of reasonable attorney’s fees “in any criminal or civil contempt action or other
proceeding to enforce, alter, change, or modify any decree of alimony, child support, or
provision of a permanent parenting plan order.” Generally, “this [C]ourt will afford the
trial judge . . . considerable discretion in determining a reasonable attorney’s fee.” First
Peoples Bank of Tennessee v. Hill, 340 S.W.3d 398, 410 (Tenn. Ct. App. 2010) (citation
omitted). However, when the trial court awards attorney’s fees but does not determine that
the amount of fees requested is reasonable, we will vacate the award and remand the issue
to the trial court for a determination of reasonableness. Id. “‘[U]ltimately the
reasonableness of the fee must depend upon the particular circumstances of the individual
case.’” Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 177 (Tenn. 2011) (quoting White
v. McBride, 937 S.W.2d 796, 800 (Tenn.1996) (citing Hail v. Nashville Trust Co., 31 Tenn
.App. 39, 212 S.W.2d 51 (1948)).

In its December 2023 order granting Father’s request for attorney’s fees, the trial
court ordered Mother to pay Father’s attorney’s fees in the amount of $39,129.37 and
determined that the fees and expenses were “reasonable, necessary and appropriate in light
of the facts and circumstances of this case.” Additionally, in its July 2024 judgment, the
trial court found that “Father was forced to incur unnecessary attorney’s fees and litigation
expenses due to Mother’s egregious conduct throughout this litigation.”

Although Father did not prevail with respect to his petition to modify the parenting
plan, he did prevail on his contempt action, which, as noted above, comprised the majority
of the proceedings. We have noted:

The “prevailing party” determination is a fact-intensive inquiry. Fannon v.
City of LaFollette, 329 S.W.3d 418, 432 (Tenn. 2010). A party “need not
attain complete success on the merits of a lawsuit in order to prevail.”
Buckley v. Carlock, 652 S.W.3d 432, 445 (Tenn. Ct. App. 2022) (citation
omitted). Instead, to achieve “prevailing party” status, a party must be
awarded some judicially sanctioned relief on the merits of his or her claim.
Qualls v. Camp, No. M2005-02822-COA-R3-CV, 2007 WL 2198334, at *6
(Tenn. Ct. App. July 23, 2007) (citations omitted); see also Fannon, 329
S.W.3d at 431 (Noting that a prevailing party for purposes of an award of
attorney’s fees is one who has succeeded on any significant issue in litigation
which achieves some of the benefit sought in bringing suit) (citation
omitted). The relief awarded by the court must “materially alter[ ] the legal
relationship between the parties by modifying the defendant’s behavior in a
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way that directly benefits the plaintiff.” Id. at *7 (citations omitted).

Wilson v. Wilson, No. M2023-01026-COA-R3-CV, 2024 WL 1577423, at *4 (Tenn. Ct.
App. Apr. 11, 2024).

In her brief, Mother argues that she never had “a chance to challenge the proposed
fees[.]” This argument is without merit – Mother had from December 2023 to July 2024
to challenge the trial court’s award and failed to do so. We affirm on this issue.

E. Attorney’s Fees on Appeal

Unless required by statute of agreement, Tennessee litigants are responsible for their
attorney’s fees. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn.
2000)). Tennessee Code Annotated section 36-5-103(c) affords this Court the discretion to
award attorney’s fees “in regard to any suit or action concerning the adjudication of the
custody . . . of any child[.]” Tenn. Code Ann. § 36-5-103(c). Whether to award attorney’s
fees on appeal is solely within the discretion of this Court. Cooper v. Cooper, 704 S.W.3d
784, 807 (Tenn. Ct. App. July 22, 2024). In view of the foregoing, we decline Father’s
request for attorney’s fees on appeal.

V. CONCLUSION

Accordingly, we affirm the trial court’s determination that it had subject matter
jurisdiction to adjudicate this case. We also affirm the trial court’s judgment finding
Mother in civil contempt and its award of attorney’s fees to Father. We reverse the trial
court’s judgment regarding its best-interests determination and granting Father’s petition
to modify the parenting plan. Father’s request for attorney’s fees on appeal is denied. This
matter is remanded for further proceedings consistent with this Opinion.

As a practical matter, we observe that the child has now started school and,
therefore, modification of the parenting plan is or likely will be necessary. See Carter v.
Carter, No. M2013-00193-COA-R3CV, 2013 WL 5568360, at *2 (Tenn. Ct. App. Oct. 7,
2013). We conclude by urging Mother and Father to work together to devise and abide by
a parenting plan that is in the best interests of the child they both love. Costs on appeal are
assessed one-half to the appellee, Dylon Whitmore, and one-half to the appellant, Melyssa
Atkinson, for which execution may issue if necessary.

s/ Valerie L. Smith
VALERIE L. SMITH, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11251584. Public record. Not legal advice.