CODY S. THOMAS
JENNA R. THOMAS MILLER
Session November 21, 2014
Appeal from the Chancery Court for Moore County No. 2314 J. B. Cox, Judge
Jenna R. Miller, Manchester, Tennessee, Pro Se.
Michael E. Giffin and Karen S. Price, Tullahoma, Tennessee, for the appellee, Cody S. Thomas.
Andy D. Bennett, J., delivered the opinion of the court, in which Richard H. Dinkins, and W. Neal McBrayer, JJ., joined.
ANDY D. BENNETT, JUDGE
Facts and Procedural History
Cody S. Thomas ("Father") and Jenna R. Miller ("Mother") were divorced by final decree entered on February 9, 2009, in Moore County Chancery Court. The decree incorporated a marital dissolution agreement and a permanent parenting plan concerning their only daughter ("the Child"), born in January 2008. By an agreed order entered June 20, 2011, the parties modified the original permanent parenting plan. Under the terms of this agreed order, Mother was designated the primary residential parent, having 235 days with the Child; Father had 130 days of parenting time. The plan also provided, inter alia, that major decisions involving the Child, including educational decisions, were to be made jointly between the parties. On February 27, 2012 the trial court entered an agreed order modifying Father's child support obligation to reflect an increase in his income. The parties' respective parenting time remained the same.
On August 1, 2012, Father filed a petition for contempt and for modification alleging that he had been providing care for the Child in excess of the parenting times prescribed in the agreed order and that Mother "has engaged in an unstable lifestyle which has place[d] the parties' minor child in physical and emotional threat of harm . . . ." Specifically, Father averred that Mother sought an order of protection against her then-husband, Mr. Miller, in which she alleged:
I now fear for the safety of myself and my child due to multiple incidents involving physical attacks as well as stalking, (following me), breaking into the home [and] my vehicle and threatening to burn down my house or kill me . . . I have witnessed [Mr. Miller] driving while intoxicated with the minor child in the vehicle.
Father alleged that Mother subsequently entered into an agreed order dismissing the order of protection and resumed living with Mr. Miller, thereby threatening the health, safety, and welfare of the Child. Father also alleged that Mother enrolled the Child in the Franklin County School System pre-kindergarten program without including him in the decision-making process and that she did so by "misrepresenting" that she and the Child were residents of Franklin County, Tennessee. Father asserted that Mother's actions constituted "willful contempt, " for which Mother should be punished "as the Court deems appropriate." Finally, Father requested that the court 1) enter a temporary restraining order restraining Mother from having Mr. Miller around the Child; 2) restrain Mother from enrolling the Child in the Franklin County School System; 3) find that a substantial and material change in circumstances had occurred; and 4) modify Father's parenting time and name him primary residential parent of the Child.
On August 24, 2012, a hearing was held on Father's request for a temporary restraining order. By order entered September 22, 2012, the court restrained Mother from having the Child around Mr. Miller and ordered that the Child attend school in the Moore County School System, where Father resided. On May 6, 2013, a hearing was held on Father's petition for contempt and modification. In its order, entered May 28, 2013, the trial court concluded that a substantial and material change of circumstances had occurred since the entry of the February 27, 2012, agreed order such that it was in the best interest of the Child for Father to be designated as the primary residential parent. The court incorporated a permanent parenting plan with the order and granted each parent 182.5 days of residential parenting time with the Child. The court also held that Mother was in willful contempt for her violation of the agreed order and awarded Father $675.00 in attorney's fees as a sanction.
On June 24, 2013, Mother filed a Tenn. R. Civ. P. 52 motion for findings of fact, requesting the court to "find the facts specially and state separately its conclusions." Mother also filed a Tenn. R. Civ. P. 59 motion to alter or amend in which she requested the court to amend its judgment to find that no substantial and material change of circumstances existed and to allow the Child to attend school in Tullahoma instead of Moore County. On July 15, 2013, a hearing was held on Mother's motions. On September 27, 2013, the trial court entered a memorandum opinion and order granting Mother's request for findings of fact. The court found the following:
A. The Court . . . affirmatively finds that the credibility of the parties is in favor of [Father] over [Mother] in that the [Mother] has been a party to and witness of deceptive acts and behavior which have a profound bearing on the findings of this Court in regard to the issues of contempt and custody modification. The Court further finds that the [Mother] is the victim of domestic violence . . . despite [Mother's] efforts to minimize said abuse.
B. [Mother] is in willful contempt of the lawful orders of this Court for her violation of the provisions of the Agreed Order and Permanent Parenting Plan previously entered in this cause on February 27, 2012. Specifically, the Court finds that the [Mother] willfully violated the provision of the Permanent Parenting Plan which provides that the parties would make joint educational decisions for [the Child], by her deceptive actions in procuring a Tennessee driver's license containing a false address for the [Mother] in Franklin County, Tennessee; submitting said driver's license to Franklin County school officials as proof of her residency in Franklin County; making false representations on the "Application to Determine Income Eligibility for the Voluntary Pre-K Program" . . .; wrongfully certifying that the information provided on said application was true and correct; and willfully failing to advise the [Father] of her actions in this matter and obtaining his consent in regard to said actions.
. . .
With respect to its determination that a substantial and material change of circumstances occurred such that it was in the best interest of the child for Father to be designated the primary residential ...