CHARLES W. HENDRICKS
LORI A. SMITH
Session Date: November 25, 2014
Appeal from the Juvenile Court for Hamilton County No. 248546, 248547 Robert Philyaw, Judge
Alan R. Beard, Chattanooga, Tennessee, for the appellant, Lori A. Smith.
Randall D. Larramore, Chattanooga, Tennessee, for the appellee, Charles W. Hendricks.
D. Michael Swiney, J., delivered the opinion of the Court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.
D. MICHAEL SWINEY, JUDGE
Mother and Father, parents of the Children, never were married. In 2011, Mother and Father entered into an agreed parenting plan which established Father's parentage and set a long-distance parenting schedule due to Mother's and the Children's move to Ohio.
Following conflicts over parenting time, Father filed a petition for contempt and to modify parenting plan in February 2012. Mother and Father entered into a conference to resolve their outstanding issues. In February 2013, Mother and Father executed a permanent parenting plan by agreement which, among other things, designated Mother as primary residential parent and set Father's support arrears. The Magistrate entered this agreed permanent parenting plan on March 1, 2013.
Less than two weeks later, on March 12, 2013, Father filed his motion for emergency temporary order of custody and for temporary restraining order. Among other things, Father alleged that the previous parenting plan had been procured by Mother through fraud. Specifically, Mother had not disclosed at the conference that she was working as a licensed prostitute in Nevada. Father belatedly had learned about this. After an August 2013 hearing, the Magistrate held that a material change of circumstances had occurred and that it was in the Children's best interest that they be placed with Father.
Mother appealed the Magistrate's ruling to the Juvenile Court. The Juvenile Court, as did the Magistrate, treated Father's petition as though it were a petition to modify the March 1, 2013 agreed parenting plan. Trial occurred in the Juvenile Court over the course of two days in October and December 2013. We will summarize the trial testimony as relevant to the issues on appeal.
Father testified. While the parties never married, they had dated exclusively for some period. Soon after their breakup, Father learned that Mother was pregnant. Their son was born in January 2009. At that time, Mother lived in Ohio and Father in Pennsylvania. In August 2009, Mother and Father resumed a relationship and moved to Chattanooga, Tennessee. In Chattanooga, Mother and Father lived at the maternal grandmother's home. The parties' second child, a daughter, was born in June 2010. The parties broke up in November 2010.
In March or April 2011, Father met Haley Fillers ("Fillers") through his job and they began a relationship. Father married Fillers in September 2011, despite Mother's misgivings. Meanwhile, Mother wished to return to Ohio to finish her Master's Degree. Mother and Father entered into a parenting plan in Tennessee providing for Mother to move to Ohio with the Children. However, problems developed. Father testified that in August 2011, he visited Ohio to see the Children but could only see them at their daycare. Father was refused his parenting time during the 2011 Thanksgiving holiday. In January 2012, Father could not see the Children during a visit to Ohio because the Ohio Child Services agency was investigating Mother for abuse.
In February 2012, Father filed a petition for contempt and modification based on the ongoing difficulties under the then existing parenting plan. In May 2012, Fillers, now Mrs. Hendricks, gave birth to a daughter. According to Father, Mother was not receptive to the new child and even stated that Father's and Mrs. Hendricks' daughter was not really the Children's sibling. After more squabbling over parenting time, the Children returned to Chattanooga and Father. The Children's luggage indicated that they had been ...