OPINION

J. STEVEN STAFFORD, Judge.

This is a modification of child visitation case, involving grandparent visitation. The Appellant grandparents appeal the trial court's order, denying their request for more visitation with the minor child, as well as the failure of the trial court to find the Appellee Mother guilty of all alleged incidents of civil contempt. In the posture of Appellees, the mother and her husband (the child's adoptive father) argue that the Appellants are not entitled to any visitation. We conclude that in modification of grandparent visitation cases, if the parent is the movant, his or her burden is to show, by a preponderance of the evidence, that there has been a material change in circumstance affecting the child's best interest. However, where the movant is the non-parent, we hold that the grandparent visitation statute provides that the burden is on the non-parent to show, by a preponderance of the evidence, that there has been a material change in circumstance that would present a substantial risk of harm to the child if modification is denied. Because the trial court incorrectly applied the best interest standard, we vacate its order modifying the visitation arrangement. We also conclude that the trial court did not abuse its discretion in finding the mother in civil contempt on five counts; however, we conclude that the award of attorney's fees for that contempt is not clear as to what portion, if any, of those fees was expended for prosecution of the contempts, and what portion, if any, was expended in pursuit of the Appellees' attempt to modify the visitation order. Therefore, we also vacate the award of attorney's fees and remand for an award of those fees associated only with the prosecution of the contempts. Vacated in part, affirmed in part, and remanded.

The minor child at issue in this case was born on September 4, 2002. She is the biological daughter of Beth Copley and Jerry David Rochelle. According to the Appellees' brief, Mrs. Lovlace and her former husband, Larry Rochelle, adopted Jerry David Rochelle while they were married. Mrs. Lovlace and Larry Rochelle subsequently divorced and she then married Neal Lovlace (together with Mrs. Lovlace, the "Lovlaces," "Grandparents," or "Appellants"); at the time of the hearing, the Lovlaces had been married for fifteen years.

Beth Copley and Jerry Rochelle were married at the time of the child's birth; however, they were divorced by decree of the Chancery Court for Hickman County on April 20, 2004. The final decree of divorce granted primary residential custody to Mrs. Copley, but granted Mr. Rochelle standard visitation. It is undisputed that Mr. Rochelle struggled with drug addiction during the marriage. Consequently, Mr. Rochelle's visitation with the child was to be supervised by the grandparents (i.e., the Lovlaces or Larry Rochelle and his wife), or by Mrs. Copley.

On January 15, 2005, Beth Copley married Timothy Kevin Copley (together with Mrs. Copley, the "Copleys," or "Appellees"). At this time, Mr. Rochelle was incarcerated in the Hickman County Jail. While incarcerated, Mr. Rochelle consented to the minor child being adopted by Mr. Copley. However, this petition was dismissed when Mr. Rochelle withdrew his consent in January 2006. The Lovlaces allege that, because Mrs. Copley believed that Mr. Rochelle's withdrawal of consent was encouraged by the Lovlaces, Mrs. Copley terminated any contact between the Lovlaces and the minor child in February 2006.

On April 24, 2006, the Lovlaces filed a petition for grandparent visitation under Tennessee Code Annotated Section 36-6-306 (the "Grandparent Visitation Statute"). In support of their petition, the Lovlaces averred that, from the time of the child's birth, until just before they filed the petition, they had been an integral part of the child's life. Specifically, the Lovlaces stated that they: (1) kept the child no less than two days per week at the request of Mrs. Copley; (2) provided financial support for the child; (3) had been involved in the child's activities, and (4) had developed a close bond with the child.

A hearing on the Lovlaces' petition was held on April 25, 2006. On May 15, 2006, the trial court entered an "Agreed Order," granting the Lovlaces visitation under the Grandparent Visitation Statute.1 Specifically, the Lovlaces were granted one Saturday per month from 9:00 a.m. until 5:00 p.m., and an additional two hours of visitation per week during the summer recess. The Lovlaces' visitation was subject to the following, relevant stipulations, which are set out in the Agreed Order: (1) Beth Copley will select the Saturday for visitation and will notify the Lovlaces at least five days in advance; (2) Beth Copley will select the two hour weekly period for summer visitation and will notify the Lovlaces at least thirty-six hours in advance; (3) as the child becomes involved in normal childhood activities, the Lovlaces must yield the portion of their visitation that conflicts with the child's activities, and Mrs. Copley will try to avoid such conflicts in choosing the date and time of visitation; (4) the Lovlaces' visitation time must come from Mr. Rochelle's time . . .; and (5) all parties shall cooperate and endeavor in good faith to effect this agreement in the best interest of the child. No appeal was taken from this Agreed Order.

On March 24, 2009, a Final Order of Adoption (the "Adoption Order") was entered, whereby Mr. Copley adopted the minor child. The Adoption Order specifically acknowledges that Mr. Rochelle consented to the adoption. As is relevant to the instant appeal, the Adoption Order contains the following language:

There is no evidence in the record that any appeal was taken from the Adoption Order.

Even before Mr. Copley adopted the minor child, the relationship between the Copleys and the Lovlaces was strained. This is evidenced by the Lovlaces filing a petition for contempt against Mrs. Copley on March 15, 2007. This petition alleges that Beth Copley had violated the Agreed Order on visitation by, among other things, failing to provide the required notice to the Lovlaces. The Copleys answered the first petition for contempt with a motion to dismiss based upon the Lovlaces' alleged failure to provide proper notice in satisfaction of due process. Before a hearing on the petition for contempt and the corresponding motion to dismiss, on February 25, 2008, the Lovlaces were allowed to file an amended petition for contempt. Then, again, on March 9, 2009, the Lovlaces were granted leave to file a second amended petition for contempt and to modify the May 15, 2006 Agreed Order. By their petition, the Lovlaces aver numerous counts of civil contempt against Mrs. Copley. The alleged violations of the May 15, 2006 Agreed Order took place from June 2006 through January 2009. We will discuss the specific allegations below. However, suffice to say, the Lovlaces state that Mrs. Copley repeatedly failed to give them proper notice of visitation as required under the Agreed Order, failed to allow the court ordered visitation on numerous occasions, and generally failed to cooperate and endeavor in good faith to effect the visitation agreement in the best interest of the child. In addition to the allegations of contempt, the Lovlaces' petition also asks the court to modify the Agreed Order on visitation to allow the Lovlaces additional time with the child.

On May 29, 2009, the Copleys filed an answer to the Lovlaces' second amended petition for contempt and to modify, wherein they denied the material allegations of contempt and further moved the court to terminate the Lovlaces' visitation with the minor child. As grounds for terminating the Lovlaces' visitation, the Copleys averred that Mrs. Lovlace had exacerbated the friction between the parties, that the Lovlaces had short tempers, and that visitation was not in the child's best interest. On July 24, 2009, the Lovlaces answered the counter-petition to terminate visitation, denying the material allegations contained therein.

On July 24, 2009, the Lovlaces filed a motion asking the court, inter alia, for make-up visitation with the child. Specifically, the Lovlaces argued that their Saturday visitation was denied from December 2008 until March of 2009, and was again denied in July 2009. On August 24, 2009, the Copleys moved the court to suspend the Lovlaces' visitation, pending final hearing. On November 5, 2009, the Copleys filed a motion, asking the court to declare void and of no affect whatsoever the specific provision in the Final Order of Adoption (supra), which reserved the Lovlaces' visitation with the minor child after her adoption by Mr. Copley.

On November 17, 2009, the trial court heard some of the pending motions, including the Lovlaces' motion for make-up visitation, the Copleys' motion to suspend visitation pending final hearing and their motion to declare the paragraph of the Adoption Order void. By Order of December 9, 2009, the trial court: (1) denied the Copleys' motion to declare the paragraph of the Adoption Order void; (2) granted the Lovlaces specific Saturday visitation; (3) deferred the Lovlaces' request for make-up visitation to the final hearing; and (4) denied the Copleys' motion to suspend the Lovlaces' visitation pending the final hearing. The Copleys' filed a motion for interlocutory appeal from this order, which motion was denied by the trial court's March 29, 2010 Order. The Copleys' application for extraordinary appeal to this Court, under Tennessee Rule of Appellate Procedure 10, was denied by this Court's Order of April 5, 2010.

The case proceeded to final hearing on June 21 and 22, 2010. Following the hearing, the trial court ruled, from the bench, that Mrs. Copley "did engage in contemptuous behavior and did not operate at all times in good faith." The court went on to state that "[t]he primary punishment that the mother's going to face [for the finding of contempt] is the award of attorneys' fees to the Lovlaces.2 That award will be reduced to judgment . . . in the amount of $75,000." Before a final order could be entered, on July 19, 2010, the Copleys filed an objection to the award of attorney's fees, alleging that there was no legal basis for the trial court's award of these fees. On September 28, 2010, the trial court heard arguments on the Copleys' objection to the award of attorney's fees. By Order of October 21, 2010, the trial court reduced the award of attorney's fees and costs to $32,000.00.

A final order was entered on January 5, 2011. Therein, the trial court specifically found, in relevant part, as follows:

Based upon the foregoing findings, the court modified the existing visitation schedule to allow the Lovlaces specific visitation on the third Saturday of each month, and also specified that the summer visitation would commence at 6:00 p.m. on Friday and would end at 6:00 p.m. on Saturday. The court also set a specific place for exchange of the child.

Concerning the Lovlaces' petition for contempt, the January 5, 2011 order states:

The Lovlaces appeal and raise two issues for review as stated in their brief:

In the posture of Appellees, the Copleys raise the following, additional issues for review, which we restate as follows:

Although the parties make cogent arguments on these issues, we perceive that there are actually three dispositive issues, namely:

Validity of the May 15, 2006 Agreed Order

The Copleys argue that the Grandparent Visitation Statute's definition of "grandparent" (at Tennessee Code Annotated Section 36-6-306(e)) does not include the Lovlaces. Although not specifically argued by the Copleys, this question rests upon whether the trial court had subject-matter jurisdiction to treat the Lovlaces as grandparents under the statutory definition. It is well settled that this Court is required to consider the subject matter jurisdiction of both this Court and the trial court regardless of whether the existence thereof is presented as an issue. Tenn. R. App. P. 13(b); Wunderlich v. Fortas, 776 S.W.2d 953, 957 (Tenn. Ct. App.1989).

The concept of subject matter jurisdiction involves a court's power to adjudicate a particular type of controversy. See Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996); Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988). Courts derive their subject matter jurisdiction from the Constitution of Tennessee or from legislative act, see Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977); Brown v. Brown, 198 Tenn. 600, 618-19, 281 S.W.2d 492, 501 (1955), and cannot exercise jurisdictional powers that have not been conferred directly on them expressly or by necessary implication. See Hicks v. Hicks, No. 01A01-9309-CH-00417, 1994 WL 108896, at *2 (Tenn. Ct. App. Mar. 30, 1994) (No Tenn. R. App. P. 11 application filed).

A court's subject matter jurisdiction in a particular circumstance depends on the nature of the cause of action and the relief sought. See Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994). It does not depend on the conduct or agreement of the parties, see Shelby County v. City of Memphis, 211 Tenn. 410, 413, 365 S.W.2d 291, 292 (Tenn. 1963); James v. Kennedy, 174 Tenn. 591, 595, 129 S.W.2d 215, 216 (Tenn. 1939), and thus the parties cannot confer subject matter jurisdiction on a trial or an appellate court by appearance, plea, consent, silence, or waiver. See Caton v. Pic-Walsh Freight Co., 211 Tenn. 334, 338, 364 S.W.2d 931, 933 (Tenn. 1963); Brown v. Brown, 198 Tenn. at 618-19, 281 S.W.2d at 501.

Judgments or orders entered by courts without subject matter jurisdiction are void, see Brown v. Brown, 198 Tenn. at 610, 281 S.W.2d at 497; Riden v. Snider, 832 S.W.2d 341, 343 (Tenn. Ct. App. 1991); Scales v. Winston, 760 S.W.2d 952, 953 (Tenn. Ct. App. 1988). The lack of subject matter jurisdiction is so fundamental that it requires dismissal whenever it is raised and demonstrated. See Tenn. R. Civ. P. 12.08. Thus, when an appellate court determines that a trial court lacked subject matter jurisdiction, it must vacate the judgment and dismiss the case without reaching the merits of the appeal. See J.W. Kelly & Co. v. Conner, 122 Tenn. 339, 397, 123 S.W. 622, 637 (1909).

Based upon the foregoing law, the fact that the parties originally agreed that the Lovlaces should enjoy visitation with the child under the Grandparent Visitation Statute does not, necessarily, confer jurisdiction on the trial court to treat the Lovlaces as grandparents under the statute if they do not meet the statutory definition. We must, therefore, determine, as a threshold inquiry, whether the Lovlaces can, in fact, be considered grandparents under the statute. Tennessee Code Annotated Section 36-6-306(e) defines "grandparent" as follows:

The determination of whether the Lovlaces qualify as grandparents under the statute requires us to interpret the Grandparent Visitation Statute. Interpretation of a statute is a question of law, which we review de novo, without a presumption of correctness. Tenn. R. App. P. 13(d); In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). Our role in statutory interpretation is to determine and implement the legislature's intent. State v. Wilson, 132 S.W.3d 340, 341 (Tenn. 2004).

The most basic rule of statutory construction is to ascertain and give effect to the intention and purpose of the legislature. In re Angela E., 303 S.W.3d at 246; State v. Wilson, 132 S.W.3d at 341; Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000); Gleaves v. Checker Cab Transit Corp., Inc., 15 S.W.3d 799, 802 (Tenn. 2000). The court must ascertain the legislativeintent without unduly restricting or expanding the statute's coverage beyond its intended scope. State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993); see Gleaves, 15 S.W.3d at 802; Worley v. Weigels, Inc., 919 S.W.2d 589, 593 (Tenn. 1996); Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). The legislative intent and purpose are to be ascertained primarily from the natural and ordinary meaning of the statutory language, without a forced or subtle interpretation that would limit or extend the statute's application. State v. Blackstock, 19 S.W.3d 200, 210 (Tenn. 2000) (citing State v. Pettus, 986 S.W.2d 540, 544 (Tenn. 1999)).

As set out in the Copleys' brief, "Ms. Lovlace and her former husband, Larry Rochelle, adopted Jerry David Rochelle when they were married." Although Mrs. Lovlace is not biologically related to the child, it is well-settled that adoptive parents enjoy the same constitutionally protected rights as biological parents. Simmons v. Simmons, 900 S.W.2d 682, 685 (Tenn.1995). Following her adoption of Jerry David Rochelle, Mrs. Lovlace gained the same rights as if she were Mr. Rochelle's biological mother. Consequently, under the law, she is treated the same as if she were the child's biological grandmother. Because an adoptive parent enjoys the same legal standing as a biological parent, we see no reason to distinguish between the two for purposes of grandparent visitation. Therefore, Mrs. Lovlace would come within the statutory definition of "grandparent." Following this logic, Mr. Lovlace, by virtue of his marriage to Mrs. Lovlace, would have the same standing under Tennessee Code Annotated Section 36-6-306(e)(2) to petition the court for grandparent visitation as the spouse of a biological grandparent.

Although we conclude that the Lovlaces are grandparents under the express language of the statute, we note that the Lovlaces arguably need not meet any of the express definitions of grandparent to have standing under the Grandparent Visitation Statute. The statute specifically states that the definition of grandparent "includes, but is not limited to" the three enumerated definitions. Tenn. Code Ann. §36-6-306(e)(2). The word "includes" can be used as a term of enlargement or limitation. See, e.g., Thorn v. Mercy Mem. Hosp. Corp., 761 N.W.2d 414 (Mich. Ct. App. 2008). Consequently, the question of whether our Legislature intended the term, as used in the Grandparent Visitation Statute, as one of enlargement or limitation rests upon the context in which it is used. Where the word "includes," or "including" is coupled with the phrase "but not limited to," courts, including our own, have generally interpreted the term as one of enlargement. See, e.g., Haynes v. Knoxville Utilities Bd., 1993 WL 104639 (Tenn. Ct. App. April 8, 1993) (interpreting the words "including but not limited to" to confer broad powers on the Board with respect to employee grievances); Owings v. Owings, No. W2005-01233-COA-R3-CV, 2006 WL 3410702 (Tenn. Ct. App. Nov. 22, 2006) (interpreting the Child Support Guidelines use of "includes but is not limited to" to give a broad definition of gross income, which is not limited to the enumerated categories of "wages, salaries, commissions, bonuses").

Based upon the foregoing, we conclude that, in using the term "including, but not limited to" in the Grandparent Visitation Statute, our Legislature intended "grandparent" to be defined expansively, and, at any rate, did not intend to limit that definition solely to the three enumerated examples of grandparent. Taking an expansive view of the definition of grandparent in the statute, both Mrs. and Mr. Lovlace should be considered grandparents for purposes of grandparent visitation. First, because an adoptive parent has the same rights as a biological parent, an adoptive grandparent like Mrs. Lovlace, should have the same standing as a biological grandparent. Likewise, if the spouse of a biological grandparent is considered a grandparent for purposes of the Grandparent Visitation Statute, then, the spouse of an adoptive grandparent, like Mr. Lovlace, should also have standing. In addition, the record shows that the Lovlaces have enjoyed a close and supportive relationship with the child since her birth. The child knows the Lovlaces as her grandparents, and they have acted as grandparents in their care, support, and love for this child. Given the consistent relationship that has existed between the child and the Lovlaces, we conclude that the trial court's defining the Lovlaces as grandparents under the statute was not outside the scope of the statute, and was not otherwise a contravention of the legislative intent. Consequently, we conclude that the trial court properly exercised its jurisdiction in treating the Lovlaces as grandparents under the Grandparent Visitation Statute.

Having determined that the May 15, 2006 Agreed Order was not void, ab initio, based upon a lack of subject-matter jurisdiction, we now address the Copleys' issue concerning whether the reservation of the Lovlaces' visitation in the Adoption Order was proper. As is relevant to the instant appeal, we are specifically concerned with whether the Adoption Order trumps the Agreed Order.

As noted above, the final order of adoption specifically reserves the Lovlaces' visitation. The Copleys now contend that the adoption statute, specifically Tennessee Code Annotated Section 36-1-121(f), renders the reservation of the Lovlaces' visitation void ab initio.3 This question also requires us to interpret a statute and to read it in context of all other relevant statutory provisions. As discussed in detail above, in interpreting statutes, courts must "ascertain and give effect to the legislative intent without restricting or expanding a statute's coverage beyond its intended scope." Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995). Issues involving construction of a statute and its application to facts involve questions of law. Memphis Publ'g Co. v. Cherokee Children & Family Servs., Inc., 87 S.W.3d 67, 74 (Tenn. 2002). Therefore, the trial court's resolution of these issues is not entitled to the Tennessee Rule of Appellate Procedure 13(d) presumption of correctness on appeal. Rather, this Court will review issues of statutory interpretation de novo and will reach our own independent conclusions. King v. Pope, 91 S.W.3d 314, 318 (Tenn. 2002).

Tennessee Code Annotated Section 36-1-121(f) provides:

While this section of the adoption statute is clear insofar as it prohibits an adoptive parent from being bound by an order of the adoption court concerning visitation by any other person, we cannot go so far as to say that this section negates any visitation granted under orders of a court other than the adoption court. So, even if we assume, arguendo, that the reservation of the Lovlaces' visitation in the Adoption Order is void, ab initio, under the provisions of Section 36-1-121(f), this interpretation would not, ipso facto, void the grant of visitation under the Agreed Order, which was not entered by the adoption court. In fact, the Grandparent Visitation Statute (under which the Lovlaces were granted visitation in the Agreed Order), and particularly Section 36-6-306(d) thereof, specifically indicates that the Grandparent Visitation Statute, and not the adoption statute (i.e., 36-1-121), applies under the particular facts of this case. This section provides:

Black's Law Dictionary 1091 (7th ed. 1999) defines "notwithstanding" as "despite," or "in spite of." Based upon this definition, we interpret this prepositional phrase to mean that, in spite of the adoption statute (i.e., § 36-1-121), if a relative or stepparent adopts the child, then the Grandparent Visitation Statute, as opposed to the adoption statute, is the controlling statute. Consequently, because Mr. Copley is the child's step-parent, under the plain language of Section 36-6-306(d)(1), the provisions of the Grandparent Visitation Statute, and not the provisions of the adoption statute, apply in this case. Accordingly, the order granting the Lovlaces grandparent visitation remained in effect despite the child's adoption by Mr. Copley.

It is well settled that "[a] judgment becomes final in the trial court thirty days after its entry if no post-trial motions are filed." State v. Mixon, 983 S.W.2d 661, 670 (Tenn.1999); see Waters v. Ray, No. M2006-01453-COA-R3-CV, 2008 WL 2557360, at *1 (Tenn. Ct. App. June 25, 2008)). Prior to an order becoming final, a party may object to the contents of theorder by filing a motion to alter or amend, or for new trial, under Tennessee Rule of Civil Procedure 59. Once an order has become final, a party may request relief from that judgment under Tennessee Rule of Civil Procedure 60, or a party may appeal a final judgment to this Court for its review. Tenn. R. App. P. 3. None of these options were exercised concerning theAgreed Order. Consequently, that order became a final order. Therefore, as discussed below, the Agreed Order may only be modified if certain requirements are met. We begin our discussion with a review of the relevant law concerning custody and visitation disputes between parents and non-parents.

Review of Applicable Law on Modification of Child Custody and Visitation Arrangements

It is well settled that "[a] custody decision, once final, is res judicata upon the facts in existence or reasonably foreseeable when the decision was made." Scofield v. Scofield, No. M2006-00350-COA-R3-CV, 2007 WL 624351, at *3 (Tenn. Ct. App. Feb. 28, 2007) (citing Young v. Smith, 193 Tenn. 480, 246 S.W.2d 93, 95 (Tenn. 1952)); Steen v. Steen, 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001); Solima v. Solima, 7 S.W.3d 30, 32 (Tenn. Ct. App. 1998); Long v. Long, 488 S.W.2d 729, 731-32 (Tenn. Ct. App. 1972). Although "[a] custody decision, once final, is res judicata upon the facts in existence or reasonably foreseeable when the decision was made," Scofield, 2007 WL 624351, at *3, because children's and parents' circumstances change, our courts are "empowered to alter custody arrangements when intervening circumstances require modifications." Scofield, 2007 WL 624351, at *2 (citing Tenn. Code Ann. § 36-6-101(a)(1)); see also Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995)).

Here, the trial court applied the modification standard that is applicable in cases involving a petition to modify filed by one parent, seeking to modify the visitation schedule vis-a-vis the other parent. In that scenario, it is well settled that modification of an existing custody or visitation arrangement involves a two-step analysis. Tenn. Code Ann. §36-6-101(a)(2)(B)-(C); see also Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007). First, the parent attempting to modify the existing custody or visitation arrangement must prove that a material change in circumstance has occurred. Tenn. Code Ann. §36-6-101(a)(2)(B)-(C); see also Taylor v. McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *3 (Tenn. Ct. App. Aug. 5, 2008) (citing Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002)). To determine whether a material change in circumstances has occurred, thecourt should consider whether: "(1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way." Cosner, 2008 WL 3892024 at *4 (citing Kendrick, 90 S.W.3d at 570); see also Cranston, 106 S.W.3d at 644; Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002).

If the petitioner makes a prima facie case for a material change in circumstance, then the court must determine whether a change in custody or visitation is in the best interest of thechild. In re J.C.S., No. M2007-02049-COA-R3-PT, 2008 WL 2924982, at *6 (Tenn. Ct. App. July 28, 2008). This determination requires consideration of a number of factors, including those set forth at Tennessee Code Annotated Section 36-6-306(a) to make an initial custody determination, those set forth at Tennessee Code Annotated Section 36-6-404(b) to fashion a residential schedule, and those set forth in Tennessee Code Annotated Section 36-6-307 to be considered in grandparent visitation cases. Id.

In the instant case, the applicability of the usual standard for modification of child custody and visitation arrangements is brought into question as we are not dealing with a dispute between two parents, but rather with a modification involving a parent and a non-parent (i.e., the grandparents).

Hawk v. Hawk, 855 S.W.2d 573, 582 (Tenn.1993). Because the Tennessee Constitution protects a natural parent's fundamental right to control the care and custody of his or her children, Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002)(citing Nale v. Robertson, 871 S.W.2d 674, 680 (Tenn.1994)), "parental rights are superior to the rights of others and continue without interruption unless a biological parent consents to relinquish them, abandons his or her child, or forfeits his or her parental rights by some conduct that substantially harms the child." Blair, 77 S.W.3d at 141 (citing O'Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn. Ct. App.1995)).

The plain language of the Tennessee Grandparent Visitation Statute is in keeping with the foregoing principles and, as such, reflects the superior rights of parents. In order to protect the superior rights of parents, the statute places limitations on the visitation rights of grandparents. First, as previously discussed, the movant grandparent must show that he or she is a grandparent and thus has standing under the statute. Tenn. Code Ann. § 36-6-306(e). Next, the statute provides that "[i]n considering a petition for grandparent visitation, the court shall . . . determine the presence of a danger of substantial harm to the child."4 Tenn. Code Ann. § 36-6-306(b)(1). In keeping with the Hawk line of cases, this mandate protects a parent's superior parental rights to have the care and custody of his or her child by requiring a heightened "substantial harm" finding before the grandparent may be granted visitation against the parent's wishes. Only upon a finding of substantial harm may the court then consider whether the visitation is in the best interests of the child. Tenn. Code Ann. 36-6-306(c) ("Upon an initial finding of danger of substantial harm to the child, the court shall then determine whether grandparent visitation would be in the best interests of the child based upon the factors in §36-6-307. Upon such determination, reasonable visitation may be ordered.").

Because Tennessee has a statute that specifically allows for grandparent visitation and provides us the standard to be used in making that determination, we conclude that the statute does not limit that standard only to the initial visitation determination; we concede that there is no statutory standard for a subsequent request to modify grandparent visitation. However, in keeping with Hawk, in order to protect the parent's superior parental rights, we conclude that the heightened standard of substantial harm used in the initial visitation determination should apply to any subsequent modification of the visitation, as the statute provides no other standard. It is well settled that, "where the mind of the legislature has been turned to the details of a subject and they have acted upon it, a statute treating the subject in a general manner should not be considered as intended to affect the more particular provision." Arnwine v. Union County Bd. of Educ., 120 S.W.3d 804, 809 (Tenn .2003) (quoting Woodroof v. City of Nashville, 192 S.W.2d 1013, 1015 (Tenn.1946)). Thus, the provisions of a specific statute will control over conflicting provisions in a general statute. Id. Because the Grandparent Visitation Statute specifically addresses grandparent visitation, and because there is nothing in the statute from which we can infer that the Legislature did not intend this statute to apply in subsequent proceedings involving grandparent visitation, we conclude that the statute's substantial harm standard will apply in modification proceedings, such as the one at bar.5

Therefore, based upon the foregoing discussion, we conclude that the trial court utilized an incorrect standard when hearing the modification petition filed by the Lovlaces. Under the Grandparent Visitation Statute, the trial court should have addressed the question of whether the material change in circumstances, asserted by the Lovlaces, gives rise to a substantial risk of harm to the child. Because the trial court applied the wrong standard (i.e., thebest interest standard), we vacate the January 5, 2011 Order on all rulings concerning the modification of the child's visitation schedule. We remand to the trial court for further proceedings, including application of the substantial harm standard.

We note, however, that this case involves competing petitions for modification of grandparent visitation. In the interest of proper adjudication upon remand, we think it is imperative that we determine the proper standard of review, and upon whom the burden of proof falls as between a parent and non-parent in a modification proceeding.

The burden of proof and accompanying standard of review is well settled in modification cases involving two parents. In those scenarios, it is the petitioner who must prove, by a preponderance of the evidence, a material change of circumstance affecting the child's best interest. See Tenn. Code Ann. §36-6-101(a)(2)(B)-(C). Nothing in the record or in the Grandparent Visitation Statute persuades us that this standard should be any different when a parent seeks to modify visitation under the Grandparent Visitation Statute. Accordingly, in order to gain their requested modification of the existing visitation scheme, theCopleys will be required to show, by a preponderance of the evidence, a material change of circumstance affecting the child's best interest. See Tenn. Code Ann. §36-6-101(a)(2)(B)-(C).

As previously discussed, the Grandparent Visitation Statute requires a showing of substantial harm to the child. Because the statute contains no separate standard for modification, we hold that the standard contained in the statute applies to both the initial visitation award and any later modification.6 Accordingly, on remand, the Lovlaces must show, by a preponderance of the evidence,7 that there has a been a material change in circumstance that would create a risk of substantial harm to the child if modification is not granted.8

Findings of Contempt and Award of Attorney's Fees

As an initial matter, we reiterate that the May 15, 2006 Agreed Order is a valid order and, as such, Mrs. Copley may be found in contempt for violation of that order, if the requirements for a finding of contempt are met. In Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507 (Tenn. 2005), our Supreme Court stated:

Overnite, 172 S.W.3d at 510-511.

The courts of this State have inherent authority to order punishment for acts of contempt. Reed v. Hamilton, 39 S.W.3d 115, 117-118 (Tenn. Ct. App. 2000). This authority, however, is limited in that the court may only punish as contemptuous the type of acts described in Tennessee Code Annotated Section 29-9-102. Id. at 118. Tennessee Code Annotated Section § 29-9-102 provides, in relevant part, as follows:

Id.

Because "[a]n act of contempt is a willful or intentional act that offends the court and its administration of justice," Ahern v. Ahern, 15 S.W.3d 73, 78 (Tenn. 2000) (citations omitted), in order to find contempt, the trial court must find the misbehavior, disobedience, resistance, or interference of the party to be willful. Id. at 79. "Willfulness" consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. State ex rel. Flowers v. Tenn. Trucking Ass'n Self Ins. Group Trust, 209 S.W.3d 602, 612 (Tenn. Ct. App. 2006). "A finding of willful conduct must precede a judgment of contempt, and a finding by a court that an act or omission was not willful must preclude a judgment of contempt." Moore v. Moore, No. M2004-00394-COA-R3-CV, 2007 WL 2456694, at *3 (Tenn. Ct. App. Aug. 29, 2007). A trial court may only find one in contempt "when the individual has the ability to comply with the order at the time of the contempt hearing." Ahern, 15 S.W.3d at 79.

Contempts may either be civil or criminal in nature. Ahern, 15 S.W.3d at 78. In proceeding on a petition for contempt, the trial court shall first determine whether it is proceeding to determine criminal or civil contempt. Cooner v. Cooner, No. 01-A01-9701-CV-00021, 1997 WL 625277, at *6-7 (Tenn. Ct. App. Nov. 14, 1997). This distinctionis important as the trial court cannot proceed on both simultaneously and because of the differences that exist in the rights and protections afforded to defendants, and the differences in the burdens of proof. Id.

The purpose of criminal contempt is to vindicate the dignity and authority of the court. Sullivan v. Sullivan, 23 Tenn. App. 644, 137 S.W.2d 306, 307 (Tenn. 1939); see also Lawrence A. Pivnick, Tennessee Circuit Court Practice § 3:19 (2010 ed.). "Punishment for criminal contempt is both punitive and unconditional in nature and serves to adjudicate `an issue between the public and the accused.'" Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996) (citations omitted). In a criminal contempt proceeding, the defendant is entitled to the same constitutional protections afforded to a defendant in a criminal trial. Storey v. Storey, 835 S.W.2d 593, 599 (Tenn. Ct. App. 1992). Included within these protections is the presumption of innocence and the requirement that guilt be proven beyond a reasonable doubt. Brooks v. Brooks, No. M2007-00351-COA-R3-CV, 2009 WL 928283, at * 8 (Tenn. Ct. App. April 6, 2009) (citations omitted). Further, when a proceeding is for criminal contempt, the trial court must ensure that Rule 42 of the Tennessee Rules of Criminal Procedure is followed.

On the other hand, civil contempt is used "where a person refuses or fails to comply with an order of court in a civil case; and punishment is meted at the instance and for the benefit of a party litigant." Sullivan, 137 S.W.2d at 307; see also Lawrence A. Pivnick, Tennessee Circuit Court Practice § 3:19 (2010 ed.). As stated by our Supreme Court, [i]f imprisonment is ordered in a civil contempt case, it is remedial and coercive in character, designed to compel the contemnor to comply with the court's order." Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996). In a civil contempt case, the contemnor "carries the keys to theprison in his [or her] own pocket . . . ." Id. (citations omitted). Persons found to be in civil contempt, may purge themselves of contempt by complying with the court's order. Ahern, 15 S.W.3d at 78. Civil contempt, contrary to criminal contempt, only requires that the defendant be given notice of the allegation and an opportunity to respond. Flowers, 209 S.W.3d at 611. To find civil contempt in a case such as this, the petitioner must establish that thedefendant has failed to comply with a court order. Chappell v. Chappell, 37 Tenn.App. 242, 261 S.W.2d 824, 831 (Tenn. Ct. App. 1952). The determination of whether the respondent violated the order of the court and whether the violation was willful are findings offact. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 357 (Tenn. 2008).

It is well settled that a trial court speaks through its orders. Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977). Here, the trial court's order specifically states that its findings of contempt are civil in nature. Findings of civil contempt are reviewed under an abuse of discretion standard. Konvalinka, 249 S.W.3d at 357-58. As stated by our Supreme Court:

Konvalinka, 249 S.W.3d at 358. In reviewing the trial court's finding of civil contempt, we review its factual findings with a presumption of correctness unless the evidence preponderates otherwise pursuant to the standard contained in Tennessee Rule of Appellate Procedure 13(d). Id. at 357.

In this case, the Lovlaces' made the following allegations of contempt against Mrs. Copley:

As set out in full context above, the trial court specifically found that Mrs. Copley was in willful civil contempt on five of these allegations, specifically:

The first question is whether there is adequate proof in the record to support the trial court's findings of contempt and, as the Lovlaces argue on appeal, whether the court erred in failing to find Mrs. Copley in contempt on all twenty-six of the counts alleged by the Lovlaces. In reviewing this question, and for the reasons discussed above, we will apply the abuse of discretion standard.

As briefly discussed above, the facts in the record support a finding that Mrs. Copley did, on occasion, willfully deny or hinder the Lovlaces' visitation with the child. From our review of the entire record, there is sufficient evidence to support the court's findings of contempt for Mrs. Copleys' failure to provide adequate notice of the visitation date that she chose in January, 2007. Moreover, there is no dispute in the record that Mrs. Copley knew about the conflicts that would prevent visitation when she scheduled the Lovlaces' time on June 8 and July 10, 2007. These actions were in direct contradiction to the Agreed Order, which requires Mrs. Copley to avoid such conflicts in choosing the date and time of visitation. Furthermore, there is no dispute that Mrs. Copley knew that the child did not, in fact, have gymnastic practice, but that she used the practice as an excuse to deny the Lovlaces their full, scheduled visitation. Moreover, there can be no doubt that Mrs. Copleys' returning the gifts that the Lovlaces gave to the child was a willful act, which was in direct contradiction to the Agreed Order's mandate that "all parties shall cooperate and endeavor in good faith to effect this agreement in the best interest of the child." From the record as a whole, we conclude that there is sufficient evidence to support the trial court's findings of the five acts of civil contempt on the part of Mrs. Copley.

The question, then, is whether the evidence also supports a finding of additional acts of contempt by Mrs. Copley. Again, we apply the abuse of discretion standard. From our review, the trial court did, in fact, address the ten Saturday visits that Mrs. Copley allegedly denied (Contempt allegations 1 through 5). Mrs. Copley contends that she interpreted the Agreed Order as requiring the Lovlaces to obtain their visitation time from Mr. Rochelle, regardless of whether Mr. Rochelle exercised his visitation. It is undisputed that Mr. Rochelle was not incarcerated during any of the Saturday visits that Mrs. Copley allegedly denied the Lovlaces. Although Mrs. Copley has demonstrated a certain level of bad faith, which has resulted in the loss of some of the Lovlaces' visitation, we concede that the question of whether the Lovlaces' visitation was to be cleared through Mr. Rochelle or Mrs. Copley is somewhat unclear in the Agreed Order. As noted above, that order states that the Lovlaces' visitation time "must come from Mr. Rochell's time . . . ." From this language, it is conceivable that Mrs. Copley could reasonably think that the Lovlaces were required to procure their time from Mr. Rochelle. However, at the time of the alleged willful denial of the Saturday visits, the record does support a finding that Mrs. Copley's actions were not willful, but were the result of a misreading of the Agreed Order. Therefore, it was not an abuse of discretion for the trial court to conclude that Mrs. Copley was not guilty of civil contempt on these allegations.

Concerning the other allegations of contempt, the trial court did address the two instances where Mrs. Copley allegedly failed to provide adequate notice, but ultimately found that her non-compliance with the Agreed Order was not willful. Our review of the record does not clearly indicate that Mrs. Copley's actions concerning notice were, in fact, willfully perpetrated in contradiction to the Agreed Order, nor does the evidence preponderate against the trial court's implied denial of all remaining allegations of contempt on the part of Mrs. Copley.

Having determined that the actual findings of contempt are supported by the evidence in the record, we now turn to the question of whether the trial court's award of attorney's fees was an adequate and appropriate remedy for the contempts. In Robinson v. Gaines, 725 S.W.2d 692 (Tenn. Crim. App. 1986), the Court of Criminal Appeals described the difference between the punishments for civil and criminal contempt:

Id. at 694.

As discussed in Robinson v. Gaines, 725 S.W.2d at 694, supra, "the punishment in a civil contempt is remedial, compelling the doing of something by the contemnor." Id. To this end, punishments for civil contempt should be designed to "coerce the contemnor into complying with an order of the court." Id. (relying on Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542 (Tenn. 1966)).

Almost without exception it is within the discretion of the trial court to include, as an element of damages assessed against the defendant found guilty of civil contempt, the attorneys' fees incurred in the investigation and prosecution of the contempt proceedings, both under common law and general statutory provisions and under express statutory provisions dealing with the allowance of attorneys' fees in court proceedings. A.S. Klein, Annotation, Allowance of Attorneys' Fees in Civil Contempt Proceedings, 43 A.L.R.3d 793 (1972); see also In re French, 401 B.R. 295, 314 (Bkrtcy. E.D.Tenn. 2009) ("Appropriate fines for civil contempt generally include the parties' actual damages incurred and reasonable attorney's fees."); Battleson v. Battleson, 223 S.W.3d 278, 287 (Tenn. Ct. App. 2006) ("Regarding attorney's fees, the general rule is that a court may award attorney's fees as a sanction for a properly made finding of contempt."); City of Chattanooga v. Davis, 54 S.W.3d 248, 271 (Tenn. 2001) (finding that "civil contempt fines [] are generally regarded as being remedial in nature when (1) the fine is prospectively coercive, or (2) the fine serves to compensate the party injured by the violation of the order").

In the instant case, the trial court initially awarded the Lovlaces' their full request for attorney's fees in the amount of $75,000. The Copleys objected and, after further consideration, the trial court amended the award to $32,000. Although the award of attorney's fees for civil contempt is not improper, the problem in this case is that it is impossible to determine from the trial court's order what portion of the award of attorney's fees is for the prosecution of the contempts, and what portion, if any, was expended in pursuit of the Lovlaces' petition to modify the visitation. Any portion of these fees that was expended for purposes of the petition to modify would be an inappropriate award for civil contempt; however, any portion of the attorney's fees that was expended for purposes of the contempt proceedings would be reasonable, so long as the fees are supported by the evidence. Because we cannot determine the nature of these fees, we vacate the award of attorney's fees, and remand to the trial court for a determination and award of those fees associated only with the contempt proceedings.

As noted above, the purpose of punishments for civil contempt should be designed to "coerce the contemnor into complying with an order of the court." Robinson v. Gaines, 725 S.W.2d at 694. To this end, it would have been reasonable for the trial court to award make-up visitation in favor of the Lovlaces for any visitation they may have missed as a direct result of Mrs. Copley's contempts. There is no explanation in the court's order as to why it denied this request. Based upon the particular findings of contempt, the amount of visitation missed by the Lovlaces would be easily attainable. The question of whether the Lovlaces should be granted make-up visitation would, of course, depend upon the trial court's determination, upon remand, of whether the Lovlaces are entitled to prospective visitation. If the trial court determines that the Lovlaces have met their burden to show, by a preponderance of the evidence, a material change in circumstance such that substantial harm would come to the child if the Lovlaces are not granted visitation, it would be appropriate for the court to consider the award of make-up visitation. However, if the court determines that the Lovlaces have not met their burden, then make-up visitation would not be an appropriate award. We mention make-up visitation only to note that our holding herein does not, ipso facto, preclude the trial court's consideration of the make-up visitation issue on remand. We note that, whether the trial court determines (upon remand) that the award of make-up visitation is warranted or not, it should explain the grounds for its decision in its order.

For the foregoing reasons, we vacate the trial court's order concerning all matters related to visitation, and also vacate its award of attorney's fees against the Copleys. We remand the case for further proceedings consistent with this Opinion. The order of the trial court is affirmed in all other respects. Costs of this appeal are assessed one-half to the Appellants, Neal Lovlace and Jean Lovlace, and their surety, and one-half to the Appellees, Timothy Kevin Copley and Beth Copley, for which execution may issue if necessary.

SEPARATE CONCURRENCE AND PARTIAL DISSENT

ALAN E. HIGHERS, P.J., concurring in part and dissenting in part.

I concur with the result reached in this case, but I disagree with some of the reasoning and therefore write separately.

Because the procedure in this case is difficult to follow, I offer a brief time-line of the events of particular significance.

There are numerous other proceedings and events in the record, but these are the primary facts leading to this controversy.

Although there are issues pertaining to contempt and attorney fees, the underlying issue is whether grandparent visitation should be permitted and the standard to be applied in a petition to modify by the grandparents. I agree with Judge Stafford's disposition of the issues pertaining to contempt and attorney fees.

Judge Stafford finds the Lovlaces are grandparents for purposes of the Grandparent Visitation Statute. I agree.

Judge Stafford finds that the "Agreed Order" is valid notwithstanding the subsequent adoption of the minor child. I agree.

Judge Stafford vacates and remands the matter for further consideration. I agree.

Judge Stafford holds that the same standard applies to the grandparents' petition to modify that would apply in an initial proceeding to grant visitation to the grandparents, namely, they must again show substantial harm to the child for failure to grant visitation. I disagree. They have crossed that threshold and they are not required to cross it over and over each time they seek to modify visitation.

Judge Stafford states: "Because Tennessee has a statute that specifically allows for grandparent visitation and provides us the standard to be used in making that determination, we conclude that the statute does not limit that standard only to the initial visitation determination; we concede that there is no statutory standard for a subsequent request to modify grandparent visitation." (Emphasis supplied). This statement, of course, is inconsistent. If there is "no statutory standard" for a petition to modify, then it is fruitless to argue that the statute "does not limit that standard only to the initial visitation determination." If the statute does not speak to it, the statute does not speak to it. The case of Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002), is instructive here. Although it dealt with custody involving a parent and non-parent, and our case involves visitation involving a parent and non-parent, the Supreme Court clearly makes a distinction between the standard applied in an initial determination and a modification. The same common-sense determination should apply here.

To hold that grandparents who have already crossed the "substantial harm" threshold (whether by consent or otherwise) must cross it again each time they seek to modify their visitation would impose a chilling effect on their effort to maintain a relationship with the minor child.

The court should require a showing of material change of circumstances in order to modify, along with a consideration of the best interest of the child.

SEPARATE CONCURRENCE AND PARTIAL DISSENT

HOLLY M. KIRBY, J., concurring in part and dissenting in part.

I agree with much of the majority's well reasoned analysis in this case. However, in some respects, I would use different reasoning to reach the same result, and so must file this separate concurrence. In some other respects, I disagree with the result reached by the majority and so must partially dissent. These are discussed below.

I agree with the majority's conclusion that the Lovlaces are "grandparents" of the child at issue within the meaning of the grandparent visitation statutes. However, as detailed below, I disagree with some of the majority's discussion of the definition of "grandparent" under the statutes.

I also agree with the majority's conclusion that, given the specific language in Tennessee's grandparent visitation statute, the original consent order in this case was not vitiated by Mr. Copley's adoption of the child. In addition, I agree with the majority's holding that the trial court erred in applying the standard applicable to a visitation dispute between parents when it considered the Lovlaces' petition to modify visitation and the Copleys' petition to terminate visitation, and I concur in the majority's holding vacating the trial court's order. As detailed below, however, I diverge somewhat from the majority in its approach to the standard to be applied on remand.

As to whether the Lovlaces are "grandparents" under Tennessee's grandparent visitation statutes, I agree with the majority's holding that Mrs. Lovlace, as the adoptive parent of the child's biological parent, fits within the statutory definition of "grandparent" in Section 36-6-306(e)(1), in recognition of Tennessee caselaw stating that adoptive parents enjoy the same rights as biological parents. I also agree that Mr. Lovlace, as the spouse of such a grandparent, is considered a grandparent under Section 36-6-306(e)(2).1

However, the majority opinion goes on to include obiter dictum to the effect that the grandparent visitation statute should be construed "expansively" and stating that the fact that the Lovlaces "have enjoyed a close and supportive relationship with the child" factors into the analysis of whether they fit the statutory definition of "grandparent." These assertions do not square with constitutional principles or the language and structure of the grandparent visitation statute.

As noted by the majority, the statutory definition of "grandparent" is prefaced by the phrase "includes, but is not limited to." Clearly this signals that our legislature intended to permit the courts to go beyond the strict confines of the statutory definition. This permits us, for example, to hold that Ms. Lovlace is the equivalent of a "biological grandparent" under Section 36-6-306(e)(1), based on well-settled Tennessee caselaw holding that the relationship between an adoptive parent and child is entitled to the same legal protection as the relationship between a biological parent and child. See Simmons v. Simmons, 900 S.W.2d 682, 684 (Tenn. 1995).

Nevertheless, the majority's assertion that the "including, but not limited to" language is a license to interpret the statute expansively is at odds with constitutional principles. Grandparent visitation statutes must be narrowly construed in order to comport with the state and federal constitutions, because they are in derogation of the parents' fundamental constitutional rights. See, e.g., In Matter of Rupa, 13 A.3d 307, 317 (N.H. 2010). Thus, while the language in Tennessee's statute permits the court to verge slightly beyond the three enumerated subsections defining "grandparent," the Constitution requires us to do so with great prudence.

In the discussion of whether the Lovlaces are "grandparents under the statute, the majority also includes the following:

The majority cites no authority for considering the quality of the Lovlaces' relationship with the child as part of the analysis of whether they meet the statutory definition, and none exists. It appears to be rooted primarily in sentiment, and is at odds with the language and structure of the grandparent visitation statute. Under the structure of the statute, once the court determines that a party fits the definition of a "grandparent," then he or she must present proof that:

Tenn. Code Ann. § 36-6-306(b)(1). Thus, the quality of the grandparents' relationship with the child features prominently in the analysis of whether visitation is necessary to avert the danger of substantial harm to the child. See also Tenn. Code Ann. § 36-6-306(b)(2) and (3). In contrast, the statutory definition of "grandparent" says only:

Thus, nowhere in the statutory definition of grandparent is there any language indicating that the quality of the relationship is considered in determining whether the petitioners meet the statutory definition. Rather, the structure and language of the statute as a whole show clearly that the court is to first determine whether the petitioners are "grandparents" within the statutory definition. If the court finds that the petitioners do not fit within the statutory definition of "grandparent," the inquiry goes no further. Only if the court finds that the petitioners are "grandparents" does the court go on to determine "the presence of a danger of substantial harm to the child," explicitly considering whether the child had a "significant existing relationship" with the petitioning grandparents.

Moreover, this kind of bootstrapping jeopardizes the parents' fundamental right to make parenting decisions for their child. Under this dicta in the majority opinion, any third party who "acted as grandparents" would have the right to petition for visitation pursuant to the grandparent visitation statute. This is clearly contrary to the Court's obligation to respect the parents' constitutional right to raise their child as they see fit.

As to the applicable standard, as noted by the majority, Tennessee's grandparent visitation statute does not address the standard to be used in actions to modify or terminate an existing visitation order. Neither party has cited a Tennessee case establishing such a standard, and we have found none. Consequently, it becomes the job of this Court to fashion the appropriate standard.

The majority begins its analysis of this issue with an extended review of the existing standard for modifying a court-ordered custody and visitation arrangement between the child's parents.2 While the discussion of parent vs. parent actions is not inaccurate, I am concerned that it leaves the reader with the impression that we start with the standard for an action between a child's parents as the baseline and "tweak" it to devise a standard for modifying grandparent visitation. However, the two situations are fundamentally different, as emphasized by our Supreme Court in Smallwood v. Mann, 205 S.W.3d 358 (Tenn. 2006). A grandparent visitation action "is not a contest between equals." Stacy v. Ross, 798 So.2d 1275, 1280 (Miss. 2001); Smallwood, 205 S.W.3d at 361-63. As stated by the Maryland appellate court:

McDermott v. Dougherty, 869 A.2d 751, 770 (Md. 2005), abrogated on grounds not affecting quoted excerpt by In re Ta'Niya C., 8 A.3d 745, 755-57 (Md. 2010), and In re Rashawn, 937 A.2d 177, 194 (Md. 2007). This principle should be the baseline starting point for any discussion of the standard in a grandparent visitation case. It should remain paramount in every part of the analysis of modification of the grandparents' visitation, termination of visitation, and even contempt issues.

In addition, while the majority includes a lengthy footnote listing cases from other jurisdictions addressing modification of an existing grandparent visitation order, it surprisingly considers none of them in the analysis in the body of the majority opinion. This despite the fact that the majority acknowledges that the standard enunciated by the Tennessee Supreme Court in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), requiring proof of substantial harm in order to grant grandparents visitation with their grandchild over the parents' objection, has been explicitly adopted by numerous other states, either in caselaw, by statute, or both. See, e.g., E.H.G. v. E.R.G., 73 So.3d 614, 626-28 (Ala. Civ. App. 2010); Roth v. Weston, 789 A.2d 431, 447 (Conn. 2002), abrogated as to third party custody but not visitation by Fish v. Fish, 939 A.2d 1040, 1043 (Conn. 2000); Beagle v. Beagle, 678 So.2d 1271, 1274-76 (Fla. 1996); Brooks v. Parkerson, 454 S.E.2d 769, 772-74 (Ga. 1995); Neal v. Lee, 14 P.3d 547, 550 (Okla. 2000); In re Custody of Smith, 969 P.2d 21, 30-31 (Wash. 1998). See also Daniel R. Victor and Ken L. Middleditch, Grandparent Visitation: A Survey of History, Jurisprudence, and Legislative Trends Across the United States in the Past Decade, 22 J. Am. Acad. Matrim. Law 391, 404 n.47 (2009) (citing states whose statutes require a finding of harm before visitation can be granted to third party, citing twelve states besides Tennessee). Moreover, even in states where the caselaw on grandparent visitation or the state's statute uses other phraseology such as "extraordinary circumstances" or "detriment to the child," courts have recognized that this is the effective equivalent of a "substantial harm" standard. See McDermott, 869 A.2d at 796. Thus, rather than re-inventing the wheel, I would consider the standards adopted in other jurisdictions in devising Tennessee's standard for modification of an existing grandparent visitation order.

In addition, the experience of our sister states as reflected in cases on modification of grandparent visitation offers much to inform the analysis of this Court, and the trial court on remand, in considering the facts of this particular case. See, e.g., In re A.M., 251 P.3d 1119, 1124 (Colo. App. 2010) (adoption of child by stepparent as material change in circumstances); Lucero v. Hart, 907 P.2d 198, 203-04 (N.M. Ct. App. 1995) (considering animosity between parents and grandparents as a significant factor); Wilson v. McGlinchey, 811 N.E.2d 526, 530-31 (N.Y. 2004) (considering deterioration of relationship between parents and grandparents after original visitation order, effect on best interest analysis); Kareem W. v. Family Focus Adoption Servs., Inc., No. V-10651/08, 2009 WL 2751076, at *11; 901 N.Y.S.2d 900, at *11 (N.Y. Fam. Ct. Aug. 12, 2009) (consideration of effect of grandparent visitation on new adoptive family unit).

In short, in light of the fact that determining the standard for modification of an existing grandparent visitation order presents an issue of first impression in Tennessee, I would consider the analysis of courts in other states on this question.

Moving on to the substantive issue, it is noteworthy that some jurisdictions either do not require a parent to prove a change in material circumstances in order to seek modification of the grandparents' visitation, or find that "the desire of a fit parent to modify visitation with a third party . . . presents a material change in circumstances." See Barrett v. Ayers, 972 A.2d 905, 915-16 (Md. Ct. Spec. App. 2009); In re Kaiser, No. 04C09, 2004 WL 3090224, at *6 (Ohio Ct. App. Dec. 30, 2004). Other courts require the parents "to present some evidence of a material change in circumstances affecting the child's best interests to support their request to terminate grandparent visitation." In re A.M., 251 P.3d at 1123. See also Scott v. Scott, 19 P.3d 273, 275 (Okla. 2001). The majority notes that one state specifies by statute that the change in circumstances must have either occurred after the original order was entered or have been unknown at that time, citing Mich. Comp. Laws § 722.27b(11). I find no state, by statute or caselaw, that requires the parents to show, as the majority in this case does, that the changed circumstances were not reasonably anticipated when the underlying order was entered.

I agree with the majority that the movant seeking modification or termination of court-ordered grandparent visitation should be required to make a threshold showing of a material change in circumstances. As noted in Barrett v. Ayers, "the court does not want feuding parties to have the ability to relitigate the same issues which it has already decided . . . ." Barrett, 972 A.2d at 915. It also "comports with the general notion . . . that the party asserting the affirmative of a proposition (here, the termination of previously granted visitation) has the initial burden of going forward." In re A.M., 251 P.3d at 1123 (parenthetical in original). See also Ingram v. Knippers, 72 P.3d 17, 22 (Okla. 2003).

However, in requiring a proof of a material change in circumstances, I would not hold that it must be shown that the changed circumstances "were not reasonably anticipated" when the original grandparent visitation order was entered. At least where, as here, the grandparents did not play a primary or quasi-parental role in the child's life, continuity and stability for the child is not implicated. See In re A.M., 251 P.3d at 1122 ("In the case of grandparent visitation, the parent retains the primary role and no concerns arise regarding the continuity and stability of custodial arrangements.") Moreover, numerous circumstances that are entirely foreseeable at the time of the original order may compel modification or termination of the grandparent visitation order, such as the marriage of a single parent, adoption of the child by a step-parent, continued or worsening animosity between the parents and the grandparents, relocation of the parents, or the age and maturation of the child.

Once the threshold showing of changed circumstances has been met, we must determine the applicability of the decision of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000), decided after the 1993 decision of our Supreme Court in Hawk v. Hawk, and after the 1997 enactment of Tennessee's grandparent visitation statutes. In a fragmented, plurality opinion interpreting the Fourteenth Amendment of the United States Constitution, five Justices in Troxel held that a fit parent is accorded a presumption that the parent acts in the child's best interests. Troxel, 530 U.S. at 68, 120 S. Ct. at 2061. A four-Justice plurality held that if a fit parent's decision on grandparent visitation "becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination." Troxel, 530 U.S. at 70, 120 S. Ct. at 2062. See Ingram, 72 P.3d at 23-25 (Kauger, J., dissenting) (scholarly analysis of Troxel).

Troxel involved an original petition for grandparent visitation, rather than an action to modify an existing visitation order. Troxel, 530 U.S. at 61, 120 S. Ct. at 2057. State courts since then have divided on whether actions to modify or terminate existing court-ordered grandparent visitation are subject to Troxel's presumption in favor of the parents or its "special weight" requirement. See Ingram, 72 P.3d at 25-26, n.11 (Kauger, J., dissenting) (citing cases). The Supreme Court's actions on appeals following Troxel, either denying or granting certiorari in cases appealed to the Supreme Court, seem to indicate that the Court views the "special weight" requirement, and the presumption that the parent acts in the child's best interests, as applicable in actions to modify or discontinue court-ordered grandparent visitation. Id. at 26 (Kauger, J., dissenting).

The substantial harm requirement in Hawk v. Hawk, and codified in Tennessee's grandparent visitation statutes, appears to be a higher standard than the "special weight" standard adopted by the plurality in Troxel. See Troxel, 530 U.S. at 96, 120 S. Ct. at 2076 (Kennedy, J., dissenting) (citing Hawk v. Hawk, 855 S.W.2d 573, 580 (Tenn. 1993)). I agree with the majority's conclusion that the statutory requirement of "substantial harm" in Tennessee's grandparent visitation statutes should apply in modification proceedings, and in particular, to the Copleys' petition to terminate the Lovlaces' visitation. The grandparents are entitled only to an amount of visitation sufficient to avert the danger of substantial harm to the child, and only for so long as such visitation is necessary to avoid the danger of substantial harm.

However, as codified in Tennessee's statutes, the "substantial harm" standard is limited to the question of whether grandparent visitation should be ordered by the court at all. See Tenn. Code Ann. § 36-6-306(b)(1). If that question is answered in the affirmative, and the court finds that visitation is in the child's best interests, then the statute states only that the court may order "reasonable" visitation. See Tenn. Code Ann. § 36-6-306(c)). On the issues other than substantial harm, is Troxel applicable? Surprisingly, the majority in this case does not even address whether the requirements under the federal constitution as enunciated in Troxel are applicable.

Notably, this Court has cited the Troxel "special weight" standard in connection with the details of the visitation, such as the amount of it. See Redman v. Redman, No. E2001-02730-COA-R3-CV, 2002 WL 1609741, at *5-6 (Tenn. Ct. App. July 22, 2002). As to the best interests of the child and the particulars of any visitation schedule, after reviewing the caselaw in our sister states, I would find that the constitutional imperatives under Troxel remain applicable to these issues, and would find a rebuttable presumption that the parents' preferences and decisions are in the child's best interest and should be accorded "special weight" in the trial court's analysis. See, e.g., In re A.M., 251 P.3d at 1123-24; Barrett, 972 A.2d at 915-16.

In sum, in an action to modify or terminate grandparent visitation, I would hold that the movant has the burden of showing a material change in circumstances that affects the child's best interests. The movant need not show that the change could not be anticipated at the time of the original order. In all aspects of the modification or termination proceedings, regardless of which party is the movant, I would find a rebuttable presumption that the parents' preferences and decisions are in the child's best interests, and accord special weight to them. Explicitly, if visitation is continued, I would accord special weight to the parents' preferences in fashioning a visitation schedule. In all modification proceedings, the grandparents would retain the continuing burden of showing that denial of visitation would present a danger of substantial harm to the child, because the grandparents may only receive the amount of court-ordered visitation that is necessary to prevent the danger of substantial harm to the child.

In light of this holding, I would vacate the trial court's order on the contempt issues as well. Certainly the Copleys were obliged to obey the original consent court order on the Lovlaces' visitation, even if they disagreed with it, until the trial judge modified or rescinded it. However, the trial judge appeared to approach the entire proceedings as comparable to a visitation dispute between divorced parents. As set forth above, the two are wholly different, and I would find that the trial court's perspective on contempt was necessarily skewed by viewing the proceedings through the wrong prism. Moreover, even in the contempt proceedings, under Troxel's interpretation of the requirements of the federal constitution, I would apply a rebuttable presumption that the parents' decisions are in the child's best interests.3 For those reasons, I would vacate the contempt order as well as the order awarding attorney fees, along with the orders on the Lovlaces' modification petition and the Copleys' petition to terminate visitation.

Finally, a discussion of the facts and allegations in this case is in order. Referring to the continuing visitation friction between the Lovlaces and the Copleys, the trial court below found that "the relationship of the parties ha[s] degenerated to the point where they are no longer able to work together." In light of this, the trial court modified the visitation order "to secure the grandparents the regular visitation they are supposed to have under the Agreed Order and to remove the discretion from" the Copleys. The trial court found that it was in the child's best interests "to mandate certain specific times because the grandparent visitation was an agreement fairly bargained on between the parties." This demonstrates clearly that the trial judge assumed a role familiar to many trial courts from handling numerous visitation disputes between a child's battling parents. This may be appropriate between parents, where both parties have a constitutional right to parent their child and an obligation to respect each other's parenting rights. Indeed, Tennessee's statutes provide that custody may be changed from one parent to the other, based on the custodial parent's attempts to alienate the child from the other parent.

However, such an approach is inappropriate in this case. As discussed at length above, grandparent visitation is viewed from a completely different perspective, in that it "is not a contest between equals." Stacy, 798 So. 2d at 1280. The effect on the child of hostility between the parents and grandparents, even if the source of the hostility lies with the parents, is a statutory factor in determining whether visitation should be granted in the first place. See Tenn. Code Ann. § 36-6-307(4). It should also be a factor in any modification proceeding, to determine whether court-ordered visitation should continue. See E.H.G., 73 So. 3d at 630 ("forced grandparent visitation should not be used as a means for ending family disharmony"); Lucero, 907 P.2d at 204 ("The existence of animosity between a child's parents and the grandparents, although not conclusive, is a significant factor . . . ."); Wilson, 811 N.E.2d at 530 ("Although enmity between parents of a child may not affect a parent's visitation rights, grandparent visitation implicates different equitable concerns.") (internal citations omitted). Here, the evidence indicates that the child in this case has been placed in the center of the family conflict between the Lovlaces and the Copleys. Such tension obviously has injurious effects on the child, and also may create stress that adversely impacts the Copleys' ability to parent their child. See Rigler v. Treen, 660 A.2d 111, 115 (Pa. Super. 1995). These considerations necessarily must factor into the trial court's best interest determination. Moreover, the deleterious effect of continued litigation on the child and her parents should be considered. See Troxel, 503 U.S. at 75, 120 S. Ct. at 2065 (". . . the burden of litigating a domestic relations proceeding can itself be `so disruptive of the parent-child relationship that the constitutional right of a custodial parent . . . become implicated.'")

In addition, the Copleys indicated that, after the adoption of the child by Mr. Copley, the Copleys desired to establish a new nuclear family unit, with Mr. Copley as father, free of outside interference. The Copleys believe that the child's continued visitation with the Lovlaces runs counter to this goal. The Copleys' legitimate desire should be considered by the trial court as well. See Rigler, 660 A.2d at 115 (biological parent felt that the court-ordered grandparent visitation frustrated "her efforts to establish a new family unit" after stepfather's adoption of the child, and felt that, with continued court-ordered visitation, their new family unit "will never be able to function normally, without outside interference."). The Copleys' aspiration to form a new family unit free of outside interference is at odds with the Lovlaces' natural desire that the child know the extended family of her biological father, and their wish to continue their loving relationship with the child. However, the State, in the form of the trial judge, must resist the urge to become "super-parent;" as noted in Troxel, because "the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a `better' decision could be made." Troxel, 530 U.S. at 72-73, 120 S. Ct. at 2064. As fit parents, the Copleys' values and vision for their family should be respected in all stages of the litigation below.

For these reasons, I respectfully file this separate concurrence and partial dissent.