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Lower v. Lower

Court of Appeals of Tennessee, Nashville

October 8, 2014

RANDY SCOTT LOWER
v.
MELANIE EWING LOWER

Session September 16, 2014

Appeal from the Chancery Court for Montgomery County No. MCCHCVDI09328 Hon. Ross H. Hicks, Judge[1]

Sharon T. Massey and Gregory D. Smith, Clarksville, Tennessee, for the appellant, Randy Scott Lower.

Stephanie D. Ritchie, Clarksville, Tennessee, for the appellee, Melanie Ewing Lower.

John W. McClarty, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

OPINION

John W. McClarty, Judge

I. BACKGROUND

The Child at issue was born of the marriage between Randy Scott Lower ("Father") and Melanie Ewing (Lower) Seal ("Mother") in December 2007. Mother and Father (collectively "the Parties") divorced in December 2009. Pursuant to agreement, Mother was designated as the primary residential parent. However, the parenting plan provided for equal visitation, allowing each parent to exercise approximately 182.5 days of visitation.

Following the divorce, Father married Allison Marie Lower ("Stepmother"), while Mother married Jason Eugene Seal ("Stepfather"). Father and Stepfather each served in the United States Army. Upon Stepfather's return from deployment, Stepfather requested a position in Alabama that would allow him to avoid any future deployments for the remainder of his career in the Army. After his request was approved, Mother made preparations to move to Alabama and provided Father with a notice of intent to relocate. In response, Father filed a petition to modify the parenting plan in which he opposed Mother's requested relocation and requested designation as the Child's primary residential parent.

A hearing was held at which several witnesses testified. Mother testified that she initially moved to Clarksville, Tennessee when she began dating Father and that she did not have any family in the area. She provided that she and Father divorced when the Child was almost two years old. She recalled that she and Stepfather began dating in March 2012 and that in July 2012, he was transferred from Fort Campbell in Tennessee to Fort Rucker in Alabama, where he currently served as a flight instructor. She and Stepfather married in March 2013. She requested permission to move because they had already endured a long distance marriage for approximately one year.

Mother testified that the Child was approximately five years old and was scheduled to begin school in Fall 2013. She related that the Child had attended three different preschools with different teachers in different locations in the past five years. She stated that the Child was also active in church and in gymnastics and soccer but that the Child did not have any particularly strong attachments to any of the other children involved. She believed that the Child had adjusted well to each new location and activity and easily established new friendships. She conceded that the Child had exhibited some troubling behavior at times but that she and Father sought help and learned how to redirect the behavior. She asserted that the Child had never required counseling or services for anxiety or adjustment issues and that the Child did not suffer from physical or mental health issues that required treatment.

Mother testified that she was currently employed with the Army but that she planned to stay at home with the Child until the Child had adjusted to her new surroundings in Fort Rucker. She stated that the Child had visited Stepfather's home in Fort Rucker and had adapted well to the new surroundings and Stepfather's three children. She provided that Stepfather's children lived with their mother in Washington and visited Stepfather as often as their school schedule allowed. She related that the Child enjoyed spending time with Stepfather and his children and acknowledged that the Child also enjoyed spending time with Stepmother and her two children.

Mother agreed that she and Father amicably shared custody of the Child. She related that Father had served in three different positions since the divorce. She claimed that his first two positions did not require deployment but that he was required to regularly attend training. She asserted that in 2012, he requested a position that required deployment. She claimed that Father missed 44 days of his visitation in 2010 and in 2011 because of training obligations and that he missed 73 days of visitation in 2012 because of training and deployment obligations. She asserted that in the current year 2013, Father had already been absent for approximately 20 days, some of which fell on his scheduled visitation days. She acknowledged that Father regularly exercised his visitation without issue when he was available. She claimed that if granted permission to relocate, she hoped to provide Father with every possible opportunity for visitation. She claimed that her request to relocate was not sought for a vindictive purpose and that she was even willing to meet Father at a halfway point between Fort Rucker and Fort Campbell to facilitate visitation.

Stepfather testified that he enjoyed a good relationship with the Child. He stated that he had three children of his own, two boys and one girl. He claimed that his residence was large enough for the Child and his three children. He related that his sons would share a room, while his daughter and the Child would each have their own room. He acknowledged that during his periods of deployment, his children resided with their mother. He asserted that he requested the transfer to Fort Rucker when he was petitioning for custody of his children. He related that his current position did not require deployment.

Father testified that he had served in the Army for approximately 15 years and that he had been stationed at Fort Campbell for the past 14 years. He disagreed with Mother's estimation of his missed visitation. He explained that Mother calculated the total time he was gone for assignments, not his actual missed visitation days. He asserted that he documented his actual visitation days on a calendar but acknowledged that he did not have any documentation with him at ...


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