Session Date November 14, 2014
Direct Appeal from the Juvenile Court for Shelby County No. S2952 Curtis S. Person, Jr., Judge
Mitchell David Moskovitz, Adam Noah Cohen, Hillary Gail Hill and Laura Kirkland Bible, Memphis, Tennessee, for the appellant.
Sheree L. Hoffman and Russell A. Hayes, Germantown, Tennessee, for the appellee.
Brandon O. Gibson, J., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Kenny Armstrong, J., joined.
BRANDON O. GIBSON, JUDGE
I. Background and Procedural History
Appellant Brandon P. ("Father") and Appellee Krysten S. ("Mother") began dating in 2001. Though they were engaged for a period, they never married. Over the course of their relationship, they had two children together–a son, Tyler P., born in April 2003 and a daughter, Kayleigh P., born in July 2004. Though the children were born in New Jersey, Mother, Father, and the children moved to Mississippi in August 2004 to be closer to Mother's family. The relationship between Mother and Father quickly deteriorated after they moved to Mississippi. In November 2004, Mother and Father separated. Father returned to New Jersey, while Mother and the children remained in Mississippi with Mother's family. In March 2005, a Mississippi Chancery Court entered an agreed order naming Mother the children's primary residential parent and providing a parenting schedule for Father's visitation.
Sometime prior to December 2006, Mother moved to Tennessee with the children. In December 2006, the Juvenile Court of Memphis and Shelby County, Tennessee entered a consent order to assume jurisdiction over the matter and to modify the parenting schedule. The order provided that the parties would continue to share joint custody of the children, with Mother serving as the primary residential parent. It also set out a new parenting schedule that designated certain visitation periods for Father during the children's breaks from school. In the present litigation, both Mother and Father sought to modify the December 2006 order.
Following their breakup and the entry of the December 2006 order, both Mother and Father moved on with their lives. Mother continued to reside in and around Shelby County with the children. Mother has been married three times and divorced three times since 2006. Due in part to her marriages, Mother and the children have moved frequently in and around Shelby County. In December 2006, Mother and the children lived in Shelby County with her first husband and his daughter, who Mother testified was about eight or nine years old at the time. That marriage ended in September 2007, when Mother's husband moved to New Orleans for a job, and she was not able to go with him. Shortly thereafter, Mother and the children moved back to Mississippi, and Mother started a relationship with a man who would later be her second husband. Mother had a child with this man in July 2008. Later in 2008, Mother and the children moved in with him in an apartment in Cordova, Tennessee. Mother married him in February 2009–her second marriage. This marriage also did not last long. According to her testimony at trial, Mother and the children moved out in April 2009, after she discovered that the man was having an extramarital affair. She and the children moved into a house in Cordova, and Mother enrolled the children in Dexter Elementary for the 2009-2010 school year. After that school year, the school district's lines were redrawn, and in May 2010, Mother moved the children to another home nearby so they could continue to attend the school. Mother and the children only stayed in that home for a few months, however, because according to Mother, they were forced to move out in October 2010 when the landlord failed to address serious repair issues. From there, Mother and the children moved in with Mother's then-boyfriend, who would later become her third husband. In November 2010, Mother's second divorce became final. In May 2011, she remarried for a third time. Mother enrolled Tyler P. and Kayleigh P. in private school for the 2011-2012 school year. Mother and the children continued to live with her third husband and his eight year old daughter for about a year before they separated. In October 2012, Mother and the children moved into a three-bedroom house in Lakeland, Tennessee, where they remained at the time of the hearing in this case. Mother took the children out of private school and enrolled them at Lakeland Elementary. She stated at the hearing that she had no plans to move again. Mother testified that she earns approximately $40, 000 per year.
Following his 2004 split with Mother, Father returned to New Jersey and moved in with his parents. Father continued living with his parents until moving into an apartment in 2010. He married in July 2011. Around the same time, a contract to purchase a house fell through, and Father and his wife moved in with her parents for a short period. In January 2012, Father and wife moved into a three-bedroom house in Old Bridge, New Jersey, where they were still living at the time of the hearing. After their marriage, Father adopted his wife's seven year old son from a previous relationship. Father also had another son with her in 2012. In 2012, Father earned approximately $150, 000 working as a senior network engineer for a company in New York City.
For a period of time following the December 2006 order, the parties were able to maintain a somewhat cordial relationship and allowed each other some degree of flexibility regarding their parenting schedule. Father testified that "[i]n the past, [Mother] and I have always come to an agreement on something that accommodated both of us . . . ." However, the parties' relationship soured in 2008 after they entered a private agreement purporting to temporarily set out a parenting schedule different from the one provided for in the court's order. In late 2007, Mother wanted to return to school to finish her degree, and Father agreed to keep the children for a year so that she would be able to do so. As evidence of their agreement, Mother and Father both signed a document stating that, beginning on November 1, 2007, the children would primarily reside in New Jersey with Father for a period of time, at least until January 1, 2009. Though the parties' agreement purported to alter the parenting schedule set forth in the December 2006 order, it was not entered with the court. As it turned out, Mother was unable to re-enroll in school. She asked Father to disregard the private agreement and return the children pursuant to the December 2006 order. Father apparently resisted, and Mother drove to New Jersey and retrieved the children in March 2008. Upset that Mother took the children back to Tennessee in contravention of their agreement, Father filed a petition seeking primary custody of the children in September 2008. After several delays, the case was heard by a Juvenile Magistrate on August 2009. Father failed to appear at the hearing, and his motion was dismissed. Shortly thereafter, Father filed a request for a rehearing but failed to follow up on it.
The matter laid dormant in the trial court for nearly four years until May 2013, when Father filed an amended petition requesting primary custody of the children and a motion to appoint a guardian ad litem. In his amended petition, Father made numerous allegations regarding the effect that Mother's instability and personal relationships had on her fitness to care for the children. Father alleged that the children's performance in school was suffering as a result of the constant change and further alleged that they did not exhibit a strong work ethic. Father also alleged that the change caused Kayleigh P. to suffer from social problems. Father also made additional allegations regarding Mother's fitness as a parent. Finally, Father alleged that the children had both expressed a strong desire to live with him in New Jersey and that it would be in their best interests to do so.
Mother filed an answer to Father's amended petition and also filed a counter-petition seeking to hold Father in civil and criminal contempt, for attorney's fees, and to modify the December 2006 order. Mother stated that the children made satisfactory grades, despite struggling with a transition between schools necessitated in part by Father's refusal to continue paying for private school. Mother alleged that Father inappropriately discussed the litigation with the children and that after returning from his care, the children knew of the court proceedings and court date before she did. In her counter-petition, Mother alleged that Father disregarded the terms of the December 2006 order on multiple occasions by keeping the children for longer than the parenting plan provided. She stated that although the plan provided for the parties to drive and exchange the children in Atkins, Virginia, the parents agreed that flying the children was better. Mother alleged that she wanted the children to continue flying to New Jersey for visitation with Father, but she was not able to continue paying for half of their airfare. She requested that the court modify its order to provide that the children fly to and from New Jersey for visitation with Father and require Father to be responsible for the expense of the children's round trip airfare. Additionally, Mother stated that it was not in the children's best interests to live with Father because he had shown great animosity toward her and would not promote a good relationship between her and the children. Mother stated that Father's disdain for her was clear in negative Facebook posts he wrote about her. She alleged that Father had refused to give Kayleigh P. her prescribed medication. Mother requested that the court grant her attorney's fees, and also requested a hearing to determine whether Father should be held in contempt for violating the December 2006 agreement.
On July 30, 2013, the trial court entered an agreed order appointing Laurie W. Hall as guardian ad litem to represent the best interests of the children. The matter was heard in the juvenile court on October 14 and 15, 2013. The court heard an opening statement from Ms. Hall, as well as testimony from the parties and their witnesses. Ms. Hall stated initially that both parents loved and cared for the children. She stated that while Mother's stability was an issue, she had serious concerns about the amount of information Father provided the children about the litigation. She testified that Mother always made an effort to act in the best interests of the children despite her instability. She further stated her belief that Mother's actions had not significantly impacted the children in any detrimental way. Rather, she submitted that the only real change she saw in the children was the amount of anxiety Tyler P. displayed, which she believed was a direct result of the amount of information Father shared with him about the litigation. Finally, Ms. Hall expressed a concern with Father's willingness to facilitate a loving relationship between the children and Mother, should he be awarded custody. Following Ms. Hall's statement, the court heard testimony from Mother, Father, and several other witnesses. The court declined to hear testimony from the children. Father failed to present evidence to support many of the allegations he made in his amended petition to modify custody. The trial court issued a detailed final order on January 31, 2014. The court concluded that although each party showed a material change of circumstance since the December 2006 order, it was not in the children's best interests to modify the underlying order to grant Father primary custody of the children.
The court weighed the relevant statutory factors provided by Tennessee Code Annotated section 36-1-106(a) to determine the best interests of the children and set forth detailed findings of fact in its order, reflecting a careful review of the testimony and evidence. As is often the case, the court found that many of the factors were either not relevant or weighed equally in favor of each parent. The court found that the mental and physical health of the parents was not at issue, nor was the character and behavior of other persons in the home of either parent. The court also found that both parents could provide good homes for the children and that the children's school records were good, given their circumstances. The court found that the children received adequate food and clothing in Mother's care and that she had shown concern for the children's education and medical care. The court credited both parents for creating a sense of normalcy in the children, despite the lack thereof. In order to make its decision, the court ultimately weighed the instability in Mother's life against Father's character and his negative attitudes towards Mother. Though the court found that both parents loved the children and had close bonds with them, it expressed concern regarding Mother's inability to maintain stable romantic relationships and Father's manipulation of the children regarding his decision to seek custody. The trial court was troubled by the frequency with which Mother had introduced the children into new step-families and observed that Father has only been married once and had adopted his wife's son. Despite those concerns, the court found that Mother's instability was outweighed by Father's personal animosity toward Mother and his attempts to influence the children's preferences. The court found that Father attempted to manipulate the children by discussing the litigation with them and by encouraging Tyler P. to call Mother to ask her if he could live in New Jersey. The court found Father's actions "inexcusable." Regarding Father's animosity toward Mother, the court was particularly concerned with a Facebook post Father wrote in 2009 or 2010 that stated:
I HATE [MOTHER]!!! What a pathetic waste of life. I can't believe God created such a thing that is as poisonous to people's lives as she is! God . . . please correct this mistake you've made.
. . . .
Let's be realistic here . . . IF she pays at all, it'll be after she has screwed up the kids beyond repair. God created her, and she is evil, so God creates evil as well. I want God to fix the mistake he made in giving her life, so that I can give the kids a GOOD life and not make them wish they didn't have a mother everyday.
The court concluded that Father's hostility toward Mother outweighed the instability in her life and further concluded that he would not promote and encourage a close relationship between Mother and the children if awarded custody. The court stated:
This Court finds that primary custody with the father would be detrimental to these children given his proclivity to manipulate their love and affection for their Mother that is evidentially based in his unbridled dislike for her as a person. The proof of her volatile love life pales in the face of his recent and past actions.
Notably, the court also found that Father was not a credible witness. The court stated that, "[i]t is clear to this Court that the father has a serious problem with telling the truth. Considering his demeanor and affect at trial this Court finds him to be incredible [sic]."
In light of its findings, the trial court denied Father's request to be awarded custody of the children. It also ordered that Mother seek counseling to address her personal decision making and parenting skills and that Father and his wife complete an extended parenting training course. The court granted Mother's request to modify the parenting plan to require that the children fly to and from New Jersey for visitation with Father at Father's expense.
The remainder of Mother's petition was denied. Finally, the court ordered Father to pay the guardian ad litem's fees as well as Mother's attorney's ...