Session Date November 19, 2014
Appeal from the Chancery Court for Williamson County No. 33441 James G. Martin, III, Judge
Donald Capparella and Tyler Yarbro, Nashville, Tennessee, for the appellant, Frederick Zahn.
Robert J. Turner and J. Ryan Johnson, Nashville, Tennessee, for the appellee, Margaret Zahn Logan.
Andy D. Bennett, J., delivered the opinion of the court, in which Frank G. Clement, P.J., M.S., and W. Neal McBrayer, J., joined.
ANDY D. BENNETT, JUDGE
Factual and Procedural Background
Frederick Zahn ("Father") and Margaret Zahn ("Mother") were divorced pursuant to a final decree entered on July 24, 2007, in Williamson County Chancery Court. The decree incorporated a marital dissolution agreement ("MDA"), and a permanent parenting plan ("PPP") concerning their only child, Quinn Logan Zahn. Under the terms of this agreed PPP, Mother was designated the primary residential parent, with 265 days of parenting time; Father had 100 days of parenting time. Father had parenting time every other weekend and every Tuesday evening as well as summer and holiday time. Father's child support obligation was $1, 284.00 per month. In December 2008, the parties entered into an agreed order modifying Father's child support obligation to $1, 659.00 per month and addressing some communication issues.
On November 14, 2012, Father filed a petition to modify the PPP and for civil contempt alleging that there had been a material change in circumstances since the entry of the PPP for the following reasons:
(1) The child began attending first grade on August 1, 2012, and Mother allowed the child to "miss an unreasonable amount of school." Father stated that, according to school records, the child had missed ten days of school from September through November 2012. Father alleged that one of these absences was a result of Mother oversleeping and then refusing to take the child to school. At a parent-teacher conference, Father was told that, due to the number of days missed by the child, he would be required to have a doctor's excuse for any further absences. Mother told the teacher/principal that the child was sick on the days of the absences, but Father was not aware of the child being sick.
When Father questioned the child about one absence, "the child became upset and said his mother was sick." Although the school records showed that the child was absent on Halloween, Father remembered asking the child how school had been that day and the child answering that it was "good." Father asked the child why he had given this response when he had not attended school that day, and the child started to cry. The child told Father that "he lied because his mother told him to lie about missing school."
(2) Mother "has had irrational and unreasonable behavior." Father listed numerous examples of Mother's alleged irrational and unreasonable behavior-"inappropriate angry outbursts" (screaming at Father after he informed her that his flight would be delayed); physically assaulting Father on August 1, 2012, after taekwondo class (Father was helping the child with his seat belt, and Mother repeatedly slammed the car door on Father's leg); calling Father at 4:00 a.m. and ranting about the divorce; failing to require the child to wear his glasses; texting Father that she told the child that Father did not pay child support and that the child could read the PPP for himself; leaving a message threatening to slash Father's tires; referring to Father's second wife as a "slut" at a cub scout meeting at which the child was present; arriving with child five minutes after start of child's soccer game without child having socks or cleats on, becoming angry and blaming the child for their lateness, and accusing Father of failing to pay child support in front of the child; calling during a trip to Washington, D.C. to ask Father for more money and threatening that the child would be stranded on the side of the road if Father did not deposit the money; when the child asked why both parents weren't going on a cub scout camping trip, saying, "because your dad is a bastard"; and making derogatory and inappropriate comments while the parents took the child trick-or-treating together, in addition to kicking Father in the back of the leg several times.
(3) Mother "is not able to meet the basic needs of the child, " and "he is frequently dirty and has a foul smell." As examples, Father asserts that, when he met Mother and the child at the veterinarian's office on August 8, 2012, the child's shirt "had a strong smell of cat urine." He immediately bought a new shirt for the child. When Father dropped the child at Mother's house on August 21, 2012, Mother "opened the door and garbage spilled out of the house because of the level of filth." He noticed that "the house smelled of cat urine and feces from outside the door." On August 31, 2012, the child told Father that he did not have matching socks to wear to school because Mother was not washing them. Father bought the child some socks. On October 14, 2012, when he dropped the child at Mother's house, Father again noticed a strong smell of animal urine and feces. When he picked the child up from school on October 27, 2012, Father noticed that the child's clothes were dirty and that the child was not wearing underwear. The child said that there were no underwear in his drawer. The parents got into a loud disagreement on Halloween when Father discovered that the child was not wearing underwear under his costume.
Father further alleged that Mother willfully violated the provision of the PPP entitling both parents to the right to be "free of unwarranted derogatory remarks made about the other parent or his or her family by the other parent to the child or in the presence of the child." Father asserted that Mother had violated this provision by (a) telling the child that Father did not pay child support and mentioning to the child that he could read the PPP for himself; (b) referring to Father's second wife as a slut in the child's presence; (c) accusing Father of not paying child support in front of the child; and (d) telling the child that he could not be around Father's co-workers because they were "sluts, homewreckers and a bad influence, " and saying, in front of the child, that Father had abandoned the child and that Father "f---ed another girl in high school."
Father requested that he be named the primary residential parent, that his child support obligation be modified, and that Mother be found in willful civil contempt. In the proposed parenting plan submitted by Father, he requested that Mother have 80 days of parenting time and that he have 285 days of parenting time.
Mother answered the petition, denying most of Father's allegations. She stated that the child had been sick with recurrent abdominal pain, which caused him to miss school. She further alleged that Father made insulting remarks to her.
On March 13, 2013, the court entered an agreed restraining order providing that the parties were "enjoined and restrained from using any corporal punishment" on the child; that the parents agreed to administer medications and follow all physician recommendations regarding any medical issues of the minor child; that they would make sure the child attended school every day "unless a medical emergency exists" and that a "parent should notify the other parent before allowing Quinn to miss school"; and that the parents "shall not ask Quinn to lie or keep important information from the other parent or discuss the pending litigation with Quinn."
The trial court permitted Father to file an amended petition to modify the PPP and for civil contempt on May 20, 2013, and a second amended petition on November 14, 2013. This second amended petition contains many of the same allegations set forth in the initial petition. We will summarize only the new allegations:
(1) Absences. Father listed five additional absences from school since November 2012-four in February and one in March 2013. He also listed seven days when the child was allegedly tardy to school. Father asserted that, on February 28, 2013, he e-mailed the child's teacher with a doctor's note for two legitimate absences resulting from a medical procedure. He was informed by the teacher that the child had missed school the previous week as well. The child told Father that "he did not go to school because [Mother] was confused and thought it was Saturday [so] she slept too late to take him to school. [Mother] ended up taking the child to work with her."
(2) Irrational behavior. Father described additional incidents. On March 9, 2013, prior to a soccer game, Father noticed that the child's face was red and asked him about it. The child was upset but did not want to talk about it. Father asked Mother about it. Although she initially denied hitting the child, she then admitted it. She said that she hit him because the child was misbehaving, walking on the furniture; she told him to stop, but he said he did not know how. She "hit him in the face for talking back." According to Father, Mother then pulled the child out of the soccer game to reprimand him for telling Father what had happened. She said that Father was going to call the police and they would not be able to go to the movies now.
(3) Meeting basic needs. Father cited additional examples. On February 28, 2013, the child had a minor surgical procedure performed by a urologist. Father alleged that Mother failed to perform the post-operative care and told the child that "he was old enough to take care of it himself."
Father also alleged that, on October 9, 2013, the child told Father that he had hurt his finger on October 7, 2013, while at his after-school program and that his finger still hurt when he tried to bend it. When he examined the finger, Father saw that it was discolored and swollen. Father took the child to the doctor. An x-ray revealed that the finger was fractured, and it was recommended that the child see an orthopedic surgeon. When Father contacted Mother, she stated that she knew about the injury but that she did not provide any type of treatment.
As to Father's contempt petition, he made no new factual allegations. In his proposed PPP, Father asked that he be made the primary residential parent with 285 days of parenting time, while Mother would have 80 days of parenting time. Mother would have parenting time every other weekend as well as holiday time. Father further proposed conditions upon Mother's parenting time: that she be required to clean her house and maintain "a reasonable level of cleanliness, " that she complete a program of anger management, that she attend weekly counseling, that both parties provide clean clothing for the child, and that Mother provide healthy food for the child. Father proposed that he have authority to make all major decisions regarding the child. Father requested that Mother pay $744.00 per month in child support.
Mother answered Father's second amended complaint, and the parties engaged in discovery. On January 28, 2014, the court entered an agreed order stating that the parties agreed that there would be no other witnesses to testify at the hearing with the exception of the parties themselves.
The matter was heard on January 29, 2014, at which time the child was seven years old. Father introduced school records and testified that, during his first grade year, the child was absent fourteen days and tardy seven days. Father was aware that child had a medical procedure on two of those days; as to the other days, he was not notified that the child was sick or that he was going to miss school.
Father testified that, on August 1, 2012, after the child's taekwondo class, while he was helping child with his seat belt in Mother's car, Mother became enraged, started yelling, and slammed the car door into Father's leg. Father introduced a photograph showing injuries to his leg.
Father further stated that, on August 15, 2012, at around 4:00 a.m., Mother called multiple times and sent him multiple text messages "just kind of ranting and saying crazy things centered around our divorce." Father read one of the text messages into evidence. In it, Mother threatened that she might have to move out of state in order to find a job.
Father described an incident on August 31, 2012, when he was about to pick the child up for his parenting time and Mother told the child that Father would not bring him home to allow him to go to a birthday party with her. According to Father, this was a birthday party to which the child had been invited by one of his friends, but Mother insisted that she was to go with the child, not Father, and she refused to tell Father where and when the party was taking place. Father testified that Mother also stated she had allowed the child to read the PPP and the child saw that Father had signed agreeing to the amount of parenting time he had. Mother eventually relented and told the child when the party was because he was upset about missing it. Father stated that, as he and the child were leaving Mother's condominium, she called after them, "Well, I guess we'll just have to see about this in court, and enjoy your flat tires in the morning."
On September 5, 2012, Father testified, both parents were with the child at a cub scout meeting. During the meeting, Mother repeatedly referred to the child's stepmother as "the slut" and to his stepsister as "the little dike, " while speaking to the child and Father.
Father further testified that, on September 8, 2012, Mother and the child arrived late to the child's soccer game, and Mother was angry, saying it was the child's fault that they were late. After the game, as Father was helping the child get into Mother's car, Mother started reprimanding Father, telling the child that Father was not taking all of his parenting time and was not paying all of the child support he owed.
Father testified that, on October 5, 2012, Mother took the child on a vacation to Washington, D.C. Early in the morning on October 10, 2012, Father received a call from Mother saying that she was in Washington, had run out of money, and could not get home. She asked Father to make a deposit into her bank account right away. Father asked if she could just use a credit card, but she said she was out of money. Mother allegedly threatened that, if Father did not give her the money right away, the child "is gonna be standing at the side of the highway stranded." Father deposited the money Mother requested.
On October 14, 2012, when Father was about to return the child to Mother, he received a text message from Mother stating that she did not have any food so Father should feed the child dinner. Father took the child to dinner and then went to Mother's home. When he dropped the child at Mother's home, Mother was angry because they arrived late and accused him of being in violation of the parenting plan. Child asked about the upcoming cub scout camping trip and wanted to know which parent was going to take him. Father testified that Mother said to the child, "I wish we could both go, but we can't both go because your dad is a bastard."
Next, Father testified about the events of Halloween 2012. Although it was Father's year to have the child on Halloween, he agreed to Mother's request that they both go trick-or- treating with the child. They had done this the previous year at the child's request. They met at McDonald's to have dinner. In the bathroom at McDonald's with the child, Father discovered that the child was not wearing any underwear underneath his costume. When Father told Mother this, she became angry with the child and started screaming at him in the restaurant. They went back home, and the child put clothes on underneath his costume.
While they were trick-or-treating, Father pointed out that one of his friends lived in the neighborhood and that they could go there; Mother told the child, "You can't be around your father's coworkers because they're homewreckers, sluts, and bad influences." Father cautioned Mother about making such comments in front of the child, but she continued to do so. Father pointed out that Mother's actions were in violation of the parenting plan, and she said that she did not care. Father asked if she would care if she knew he was taping the conversation. According to Father, Mother "lost it" and started screaming and accusing Father of entrapping her. Mother pulled the child aside, sat down on the curb, and told the child that they could not trick-or-treat if Father was there. She threatened to call the police if Father was there. Father further testified that Mother told the child that Father had "f---ed another girl in high school." Father was able to take the child away from Mother and continue trick-or-treating. Mother kept running up behind them and kicking Father in the back of the legs; she continued to yell at Father. Father continued:
And eventually we went back to her car. And she put Quinn in the car and told me, "Look, destroy the tape and you can have a ride back to your car. If not, you're gonna have to walk, " which it was only three miles, or something, so that was not that much of a threat in my mind. So they left and I walked back to the car.
On March 9, 2013, Father got a call from Mother to meet them in the parking lot at the soccer field to help get the child to the soccer game on time. When he saw the child, Father noticed that the left side of his face "was just completely, you know, dark red, mottled." He confronted Mother and asked if she had hit the child. She denied it at first, but then admitted that she had hit him in the face because he was misbehaving. Mother told Father that the child was "walking on furniture and that she told him to stop walking on the furniture and that he had talked back to her by saying he didn't know how to stop." She then felt that she had no choice but to hit him and that it was not Father's business. Mother went and pulled the child off of the soccer field (where they were warming ...