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Hawk v. Hawk

Court of Appeals of Tennessee, Knoxville

August 26, 2014

JEREMIAH DAVID HAWK
v.
ERIKA LEIGH HAWK (RICKER)

Session July 9, 2014

Appeal from the Chancery Court for Greene County No. 20080278 Hon. Jon Kerry Blackwood, Senior Judge[1]

David L. Leonard, Greeneville, Tennessee, for the appellant, Jeremiah David Hawk.

K. Kidwell King, Jr. and Jerry W. Laughlin, Greenville, Tennessee, for the appellee, Erika Leigh Hawk (Ricker).

Matthew W. Sexton, Morristown, Tennessee, guardian ad litem for the minor.

John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney and W. Neal McBrayer, JJ., joined.

OPINION

JOHN W. McCLARTY, JUDGE

I. BACKGROUND

The Child at issue was born of the marriage between Erika Leigh Hawk (Ricker) ("Mother") and Jeremiah David Hawk ("Father") in October 2006. Mother and Father (collectively "the Parents") divorced in April 2009. Pursuant to agreement, the Parents equally split parenting time, with each parent receiving 182.5 days. Following the divorce, Father married Becky Hawk ("Stepmother"), while Mother married Gary Ricker ("Stepfather"). The relationship between the Parents was contentious, at best. Yet, they added the following provision to the parenting plan in recognition of the fact that the Child would attend school in the future:

The parties shall work together with the aim of mutually deciding upon the [C]hild's school. If the parties are unable to agree upon the [C]hild's school, the court shall decide said issue upon a proper request to do so.

At that time and at the time of the hearing at issue, Father lived in Knox County, while Mother lived in Greene County.

The agreement remained in place without controversy until Mother filed a petition to modify in February 2010, alleging in pertinent part, that the Child was supervised by Father's parents during his parenting time and that the Child suffered stress from this arrangement. Mother requested designation as the primary residential parent. Father responded by denying any wrongdoing and filing his own petition to modify, alleging that he provided structure that the Child could not receive from Mother, who was incapable of raising the Child and providing a stable existence. Father requested designation as the primary residential parent.

During the pendency of the hearing, Mother filed a motion to enroll the Child into the school of her choice. Following a hearing on the motion and the competing petitions to modify, the trial court denied Mother's request to enroll the Child in her chosen school and held that a material change in circumstance had occurred that necessitated a change in the parenting plan. The court found that a "significantly broken relationship" existed between the Parents, who could not "cooperate in making joint decisions regarding significant issues, including the location of the [C]hild's school enrollment" and that Father maintained a "greater willingness and ability to facilitate and encourage a close and continuing parent/child relationship between the [C]hild and the other parent than does [Mother]." The court likewise found that a modification of the parenting was in the Child's best interest. The court entered a temporary parenting plan in which Father was designated as the primary residential parent "on a temporary basis" and Mother was awarded reasonable visitation.

Mother filed a motion to alter or amend the trial court's decision. Prior to the court's ruling upon the motion, the Honorable Thomas R. Frierson, II, Chancellor found that sufficient grounds existed for his judicial recusal and entered an order providing that he "shall not adjudicate any issues joined in this cause." The Honorable Jon Kerry Blackwood, Senior Judge was eventually appointed to hear the action. The trial court found that the best course of action was to essentially hear the case anew before issuing a decision.

Prior to the hearing, Mother submitted an amendment to her proposed parenting plan in which she acknowledged the initial agreement to submit the decision regarding schooling to the trial court if she and Father could not agree. She asserted that the trial court need only decide which school was more appropriate and then restructure the parenting plan schedule to accommodate the chosen school schedule, thereby allowing her and Father to continue exercising equal parenting time. She acknowledged that one parent would exercise visitation with the Child during the week, while the other would exercise visitation on almost every weekend and holiday.

At the hearing, Mother testified that she had two children, the Child at issue and Austin, who was sixteen years old. She stated that when she and Father divorced, they exercised visitation with the Child every other week. She asserted that she enrolled the Child in Doak Elementary's pre-kindergarten program in Greeneville but that the Child never attended because Father objected to the school. The next year, she proposed enrollment in Doak's kindergarten program. This time, Father agreed but also enrolled the Child in Concord Christian School ("Concord") in Knoxville. The Child attended both schools until the temporary parenting plan was entered. She related that since that time, she hoped that the ...


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