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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
APRIL 22, 2008 Session JOEY CONNER v. CARMEN CONNER
Appeal from the Chancery Court for Haywood County No. 11718 George R. Ellis, Chancellor

No. W2007-01711-COA-R3-CV - Filed May 29, 2008

This appeal arises from a post-divorce proceeding wherein the minor child's mother, contending that there had been a material change in circumstances, sought a change of custody. After several days of hearings, the trial court transferred custody from the father to the mother. We find that the trial court applied an incorrect legal standard and also find that the final hearing below was prematurely terminated. We therefore vacate and remand for further proceedings. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded. WALTER C. KURTZ, SR. J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S., and HOLLY M. KIRBY , J., joined. Jennifer Twyman King, Jackson, Tennessee, for the appellant, Joey Conner. Felicia Corbin Johnson, Memphis, Tennessee, for the appellee, Carmen Conner.

OPINION This appeal involves the custody of a minor child. The parties were granted a divorce in 1998, and custody of the child was awarded to the father. In July 2007, the mother sought to transfer custody from the father to herself. The trial court granted the mother's request. The father appeals arguing that the trial court committed both procedural and substantive errors that require reversal. More specifically, he contends that the trial court impermissibly changed custody without finding that there had been a material change in circumstances and additionally that the trial court ruled prematurely without allowing him an opportunity to present all of his proof. For the reasons stated herein, we vacate the decision of the trial court and remand for further proceedings.

I. Background The parties were divorced on September 10, 1998. They had one minor child, who was eleven years old at the time of the hearings that are at issue in this appeal. The final decree of divorce granted primary residential custody of the child to the father and allowed the mother weekend visitation. The relationship between the parties was not smooth following their divorce as they continued to spar in court over custody, visitation, and enforcement of child support obligations. Meanwhile, the father remarried. The present round of litigation was initiated by the father in late 2004 when he sought to increase the mother's child support obligations but decrease her visitation. The mother countered by alleging a change in circumstances and seeking to transfer custody. The mother argued, among other things, that the father and his new wife had used excessive corporal punishment in disciplining the child. Proof on the petitions filed by the parties was heard by the trial court on four separate days: August 22, 2006; November 27, 2006; May 8, 2007; and May 9, 2007. The court ruled orally on May 9, 2007. For reasons not apparent in the record, the decision of the court was not memorialized in an order until July 20, 2007. In pertinent part, that order states: 1. The Court is of the opinion that Respondent/Counter-Petitioner has not demonstrated a material change in circumstances to modify [] the existing Permanent Parenting Plan dated January 8, 2002; but the Court must consider the fact that the minor child . . . will turn twelve years old on July 2, 2007[,] and the Court must consider the child's preference to live with Respondent/Counter-Petitioner.1 2. When the Court considers that child's preference to primarily reside with her mother, the Court is of the opinion that custody should be modified and Respondent/Counter-Petitioner shall be the primary residential parent and Petitioner/Counter-Respondent shall be the alternative residential parent, and shall have the first and third weekends of each month, and residential time with the child during Christmas vacation, spring break, summer vacation[,] and holidays as specifically set forth in the Amended Permanent Parenting Plan Order filed simultaneously with this Order. 3. The Amended Permanent Parenting Plan shall begin when school ends for the 2006-2007 school year. During the four days of testimony heard by the court below there was conflicting evidence adduced regarding the allegedly excessive disciplining of the child by the father. Likewise, there was conflicting proof from expert witnesses as to the parenting skills of the respective parties and

At the hearing, the trial court commented that the child would turn twelve in July and in Tennessee "when a child gets that age, the courts generally follow what the child desires."

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the effect the actions of the parents were having on the welfare and well-being of the child. The mother testified as to her change in circumstances: a move to Murfreesboro, Tennessee and an improved employment situation. After the court changed custody of the child, the father did not seek a stay of the trial court's order. The child now lives with her mother in Murfreesboro and visits with her father, who continues to live in Brownsville, Tennessee just as he had prior to the order changing custody. This is an admittedly brief overview of the proof presented, but it suffices for our purposes since, for the reasons set out below, this case must be returned to the trial court for additional proceedings. II. Standard of Review "When the trial court has set forth its factual findings in the record, we will presume the correctness of these findings so long as the evidence does not preponderate against them." Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We, however, do not accord the trial court's legal conclusions that same presumption. See, e.g., Curtis v. Hill, 215 S.W.3d 836, 839 (Tenn. Ct. App. 2006). The appellate court's review of these legal conclusions is conducted "under a pure de novo standard of review." Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). III. Applicable Standard for Changing Custody Decisions regarding child custody and visitation are among the most important matters addressed by our courts. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001). Tennessee courts are statutorily authorized to modify custody arrangements as necessitated by intervening changes in circumstances. Tenn. Code Ann.

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