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Krupp v. Cunningham-Grogan

August 29, 2006


Appeal from the Circuit Court for Williamson County No. 04146 Russ Heldman, Judge.


This appeal involves the custody and visitation rights of the parents of a fifteen-year-old girl. The parents were already divorced by the time they moved to Tennessee. The mother was the primary residential parent, but the parties had informally agreed that the father would have more overnight visitation than was required by the Florida court's custody and visitation order. After the parents' relationship deteriorated in late 2003, the father filed a petition in the Circuit Court for Williamson County requesting that he be designated the child's primaryresidential parent. The mother responded by requesting that the father's visitation be reduced and that she be given sole decision- making authority over the child's religious upbringing and non-emergency healthcare. The trial court, sitting without a jury, dismissed the father's petition and granted the mother's counter-petition. The father appealed. We have concluded that the trial court properly found that there has been a material change in circumstance since the entry of the Florida custody order but that it is not in the child's best interests to modify the Florida court's custody and visitation arrangement other than to increase the father's summer visitation from three weeks to four and to vest final decision-making authority over the child's non-emergency healthcare and religious upbringing with the mother.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

The opinion of the court was delivered by: William C. Koch, Jr., P.J., M.S.

William C. Koch, Jr., P.J., M.S., delivered the opinion of the court, in which William B. Cain and Frank G. Clement, Jr., JJ., joined.



Stephen Charles Krupp and Maura Katherine Cunningham-Grogan married in Florida in July 1989 following a whirlwind romance. Mr. Krupp was forty-three years old at the time and had recently retired from the shoe business. Ms. Cunningham-Grogan, a native of New York City, had been employed on Wall Street. Their only child, Kaitlin Elizabeth Krupp, was born in October 1990. After the parties moved to Massachusetts in 1991, Ms. Cunningham-Grogan was employed by a mutual fund firm in Boston.

The parties divorced in Boston in 1993. The Massachusetts court decreed that the parties would share joint legal (i.e., decision-making) custody, awarded Ms. Cunningham-Grogan primary residential custody, and granted Mr. Krupp "liberal, unsupervised and reasonable" visitation of no less than one weekend per month and no more than two weekends per month. The decree also provided that the child would split her time equally between Mr. Krupp's and Ms. Cunningham-Grogan's homes during school vacations, including the summers.

Mr. Krupp moved to Florida following the divorce. In accordance with Mr. Krupp's expressed desire to maintain a relationship with his young daughter, Ms. Cunningham-Grogan and the child moved from Boston to another part of Florida shortly thereafter. In 1995, Mr. Krupp moved closer to Ms. Cunningham-Grogan's home to enable him to begin taking his daughter to temple.*fn1 Two years later, in 1997, a Florida court entered an order modifying the Massachusetts child custody arrangement to clarify the visitation schedule. The Florida modification order specified that Mr. Krupp would have visitation with the child every other weekend, overnight every Wednesday, and for three consecutive weeks during the summer.

Following a successful mediation in 2000, the parties agreed to alter the visitation schedule in the 1997 order to enable the child to visit Mr. Krupp overnight every Tuesday and Thursday rather than every Wednesday. Thus, for the next several years, the child spent 182 days each year at Mr. Krupp's home and 183 days each year at Ms. Cunningham- Grogan's home. For reasons that are unclear from the record on appeal, Mr. Krupp and Ms. Cunningham-Grogan chose not to ask the Florida court to approve this new visitation arrangement or to incorporate it into a legally enforceable custody order.

Ms. Cunningham-Grogan married Neil Grogan in 2001. In 2002, Ms. Cunningham-Grogan and her new husband moved to Brentwood, Tennessee, and Ms. Cunningham-Grogan began to work as a tax planner and financial advisor. The parties' daughter lived with Mr. Krupp in Florida for the final two months of the school year and then joined her mother and step- father in Brentwood. Shortly thereafter, Mr. Krupp moved from Florida to Brentwood after purchasing a house less than two miles from the Cunningham-Grogan residence.

Mr. Krupp and Ms. Cunningham-Grogan's post-divorce relationship has always been a difficult one, but it grew increasingly acrimonious following Ms. Cunningham-Grogan's remarriage and relocation to Tennessee. Both parties have made inappropriate, derogatory remarks to the child about the other parent that do not bear repeating here, and thus they share some degree of responsibility for the enmity that currently exists between them.*fn2 However, it is clear that the lion's share of the responsibility for the sharp deterioration in the parties' relationship following their relocation to Tennessee in 2002 rests with Mr. Krupp. Since that time, Mr. Krupp has consistently demonstrated an inability to conduct himself in a civil manner in dealings with Ms. Cunningham-Grogan.*fn3

The tense relationship between Mr. Krupp and Ms. Cunningham-Grogan reached a boiling point in late 2003 when Mr. Krupp announced plans to purchase a house down the street from the Cunningham-Grogan residence. Ms. Cunningham-Grogan called Mr. Krupp and asked him to reconsider moving into a house where he would be within eyeshot and earshot of her home. Given their strained relationship and the fact that Mr. Krupp already lived less than two miles away, Ms. Cunningham-Grogan saw no point in the move other than to antagonize and harass her and her new husband. In response, Mr. Krupp stated simply, "I pretty much do what I want." Over the next few months, Mr. Krupp needled Ms. Cunningham- Grogan constantly with the details of each new development as he progressed closer and closer to moving onto her street.

When Mr. Krupp placed a down payment on the new house, Mr. Grogan went to Mr. Krupp's home to speak with him. The conversation did not go well. Mr. Grogan informed Mr. Krupp again that he and Ms. Cunningham- Grogan were quite disturbed by his plans to move down the street from them. According to Mr. Krupp, Mr. Grogan then threatened to "put [him] in the hospital" if he did not stop harassing Ms. Cunningham-Grogan and trying to interfere in their home life.*fn4

That evening at the dinner table, Ms. Cunningham-Grogan broached the topic of Mr. Krupp's planned move with the parties' daughter, who was by then twelve years old. Ms. Cunningham-Grogan and her husband encouraged the child to tell them why Mr. Krupp wanted to move down the street from them, but the child said she did not know Mr. Krupp's reasons and thought it was a bad idea. At some point, the child began defending her father, and Ms. Cunningham-Grogan lost her temper. She yelled at the child, "Why is he doing this? Can't we have a life? He seems to be lobbing bombs into our family life[.] Why does he keep doing this?"

Upset by her mother's outburst, the child ran to her room, closed and locked the door, and called her father, crying. Unable to console his daughter, Mr. Krupp decided that the appropriate course of action was to call the police to Ms. Cunningham-Grogan's home. Once the police arrived, they spoke with Ms. Cunningham-Grogan, Mr. Grogan, and the child. The police did not arrest Ms. Cunningham-Grogan or her husband, and they did not remove the child from the home. The police eventually left the Cunningham-Grogan residence, and no charges were filed as a result of the incident.

Several months later, Mr. Krupp called the police to the Cunningham-Grogan residence again. The parties' daughter had been speaking disrespectfully to Mr. Grogan at the dinner table, culminating in the imperative statement, "Bite me." In response, Mr. Grogan told the child that her language was inappropriate and that he did not have to tolerate that kind of treatment. After Mr. Grogan left the dinner table, the child went to her room and called Mr. Krupp. When she came out of her room a few minutes later, she told Ms. Cunningham-Grogan that Mr. Krupp had again called the police. When Ms. Cunningham-Grogan asked why, the child said that she did not know and that she had asked Mr. Krupp not to call the police. Ms. Cunningham-Grogan thanked her daughter for letting her know and informed Mr. Grogan that Mr. Krupp had again summoned the police and that they would be arriving shortly.

As he had done before, Mr. Krupp drove to Ms. Cunningham-Grogan's house and waited in his car for the police to arrive. The parties' daughter joined him in the car. When Ms. Cunningham-Grogan came over to speak with Mr. Krupp, he put the car in the reverse and sped away up the street. Mr. Krupp did not, however, leave the area. Once the police arrived, they questioned Ms. Cunningham-Grogan, Mr. Grogan, and the child and decided not to make any arrests or remove the child from the home. The police denied Mr. Krupp's request to take the child home with him, noting that it was not one of his visitation days under the Florida court order. The police also used this occasion to inform Mr. Krupp that calling the police was not an appropriate response to arguments between Ms. Cunningham-Grogan and their daughter.*fn5 The following morning, Mr. Krupp, without Ms. Cunningham-Grogan's knowledge or permission, signed the child out of school shortly after Ms. Cunningham- Grogan dropped her off.

After the second incident, Mr. Krupp cancelled his plans to move into the house down the street. Nevertheless, the parties' relationship remained contentious, with the disputes ranging from the proper religious upbringing for the child to the child's healthcare to her future education. The parties' escalating quarrels took their toll on the child's health, both mentally and physically. The child suffered from low self-esteem and showed signs of becoming somewhat socially withdrawn. The child's relationship with her mother became strained in spite of the fact that they had always had a good relationship in the past.

On March 3, 2004, after domesticating the 1993 Massachusetts decree and the 1997 Florida order, Mr. Krupp filed a petition in the Williamson County Circuit Court to modify the existing child custody arrangement. He claimed that there had been a material change in circumstance since the entry of the 1997 Florida order in that: (1) the child was then thirteen years old and thus old enough to have her preference taken into account; (2) Ms. Cunningham-Grogan belittles and berates the child, thereby injuring her self-esteem and preventing a close mother-child relationship; (3) Mr. Krupp is the child's primary care-giver and provides for all of the child's medical care; and (4) the parties have relocated to Tennessee.*fn6 He also requested the court to designate ...

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