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Posted by: Tanja Trezise on Aug 1, 2013

Court: TN Court of Appeals

Attorneys 1:

Floyd Don Davis, Norris Arthur Kessler, III, Winchester, Tennessee, for the appellant, Brian Wayne Smart.

Attorneys 2:

Cynthia A. Cheatham, Manchester, Tennessee; for the appellee, Sandy Jane Smart.

Judge(s): COTTRELL

Mother and Father were divorced in 2007 and granted joint custody of their then-six year old child. Mother filed a petition for modification in which she asked to be named the primary residential parent because the joint arrangement was not working for the parties and was not in Child’s best interest. Trial court granted Mother’s petition to be named primary residential parent, but directed that major decisions for Child should be made jointly. Father appealed, arguing that trial court erred in finding material change of circumstances had occurred since the initial parenting plan was entered and that the comparative fitness analysis favored Mother as the primary residential parent. Mother appealed trial court’s judgment regarding major decision making. We affirm trial court’s judgment modifying the parenting plan to name Mother the primary residential parent and amend the plan to have Mother make major decisions for Child rather than both Mother and Father jointly. We affirm the trial court’s denial of Mother’s attorney fees but award her reasonable fees incurred on appeal.