Daniel Jerome Canzoneri v. Colleen Luella Burns
M2020-01109-COA-R3-CV
| Tenn. Ct. App. | Aug 4, 2021Background
- Parents entered an agreed permanent parenting plan (Sept. 2015): Mother primary residential parent; Father allotted ~120 days/year (one 3-day weekend/month when Roman attended school); Father paid child support based on imputed income of $2,600/month.
- March 2019: Mother reported a domestic-violence incident by the children’s stepfather (children not present); stepfather arrested; Mother temporarily moved and sought protection orders; Father obtained temporary custody via ex parte injunction which was later dissolved after Mother obtained full protection and housing.
- April 2019: Father filed to modify the permanent parenting plan, seeking designation as primary residential parent based on alleged material change (domestic incident, Mother’s residential instability, and alleged refusal to co-parent). Mother counter-petitioned to modify child support.
- Trial (Dec. 2019): Court found no material change of circumstances affecting the children; nonetheless the court (1) altered decision-making provisions (e.g., public school default, Mother sole authority on whether Roman repeats kindergarten), (2) mandated biweekly phone calls, (3) required split transportation exchanges, and (4) found Father voluntarily underemployed, imputing income at $800/week and lowering his monthly support to $555.
- Appeal: Court of Appeals affirmed that no material change occurred, reversed the decision-making and phone-call modifications (but affirmed modification of transportation was reasonably anticipated), vacated the voluntary-underemployment finding and imputed income (remanding for proper analysis), and left trial-court allocation of attorney fees undisturbed (each party bears own fees).
Issues
| Issue | Plaintiff's Argument (Canzoneri) | Defendant's Argument (Burns) | Held |
|---|---|---|---|
| Whether a material change of circumstances occurred to justify changing primary residential parent | Stepfather incident, Mother’s moves, and poor co-parenting materially affected children’s well‑being | Incident was addressed (protection order), Mother provided adequate care, changes did not materially harm children | No material change; trial court correctly declined to transfer primary custody |
| Whether trial court could modify parenting-plan decision-making provisions after finding no material change | Trial court should adjust decision-making to protect children and address co-parenting failures | Modifications were unauthorized absent a material change; original joint decision-making should remain | Reversed: court erred to modify decision-making and mandate biweekly calls (except transportation) |
| Whether Father was voluntarily underemployed and whether income should be imputed at $800/week | Father underreported earning capacity; court may impute higher income based on background and market conditions | Father is self-employed; trial record lacks proof of willful underemployment or of market wages; expenses and business scrutiny required | Vacated: trial court applied incorrect/legal unsupported standard and lacked evidentiary basis; remanded for proper analysis under Guidelines |
| Whether Father is entitled to attorney’s fees on appeal under Tenn. Code Ann. §36-5-103(c) | Trial-court legal errors justify award of fees | Mother prevailed on the primary custody issue; both parties had partial success on appeal | Denied: neither side is the clear prevailing party; trial court’s split-fee allocation not disturbed |
Key Cases Cited
- Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013) (standard for modification and appellate review/deference to trial court on custody)
- C.W.H. v. L.A.S., 538 S.W.3d 488 (Tenn. 2017) (two-step test: material change then best-interest analysis)
- McClain v. McClain, 539 S.W.3d 170 (Tenn. Ct. App. 2017) (no bright-line test; principles for assessing material change)
- Curtis v. Hill, 215 S.W.3d 836 (Tenn. Ct. App. 2006) (past domestic issues that were remedied did not warrant changing primary custody)
- Massey v. Casals, 315 S.W.3d 788 (Tenn. Ct. App. 2009) (imputing income principles)
- Taylor v. Fezell, 158 S.W.3d 352 (Tenn. 2005) (self-employment complicates income determination)
- Eldridge v. Eldridge, 137 S.W.3d 1 (Tenn. Ct. App. 2002) (voluntary underemployment is a factual determination for the trial court)
- Brunetz v. Brunetz, 573 S.W.3d 173 (Tenn. Ct. App. 2018) (decision-making authority modifications are governed by the same standards as custody modifications)