Session Date: February 24, 2015
Appeal from the Juvenile Court for Davidson County No. PT120820 Sophia Brown Crawford, Judge
Jeffrey Spark, Nashville, Tennessee, for the appellant, Julian G.
D. Scott Parsley, Nashville, Tennessee, for the appellee, Rachel C. N.
Andy D. Bennett, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.
ANDY D. BENNETT, JUDGE
Factual and Procedural Background
Rachel N. ("Mother") and Julian G. ("Father") met online while Father was living and working in France. He returned to Nashville in January 2009 to live near Mother; they lived together for a short time, but Father moved out within a month. Although they reconciled, Father did not move back into Mother's home. On June 4, 2009, Mother informed Father that she was pregnant. The child, Grace N., was born in January 2010.
On January 13, 2010, Father filed a petition to establish parentage; Mother filed a counter-petition to set child support and parenting time. In August 2010, the juvenile court entered an order stating that DNA testing had established Father to be the biological father of Grace N. The court noted that the child had been born approximately one month premature, weighing four pounds, four ounces. At her age at the time of the hearing of four and one-half months old, she weighed ten pounds, three ounces. Because of her low birth weight, the child had increased susceptibility to infection. In addition, Mother was breast-feeding. The court awarded Father temporary parenting time each week on Monday and Friday from 7:00 a.m. to 8:30 a.m. and each Saturday from 11:00 a.m. to 12:30 a.m. in the nursery at Mother's house. Father was to pay $1, 331 per month in child support.
In November 2010, the parties entered into an agreed order modifying the temporary parenting time and setting holiday parenting time. Under this agreed order, Father was permitted to exercise parenting time outside of Mother's home provided that he purchase a new child car seat. In October 2012, the court heard Father's motion to incorporate overnight parenting time into the temporary parenting schedule pending the final hearing. The court awarded Father parenting time every other weekend from Saturday at 10:00 a.m. until Sunday at 6:00 p.m. Father was required to keep a journal of Grace's fluid intake and urination and bowel movements.
The magistrate held a final hearing on Father's petition to establish parentage and Mother's counter-petition over two days in January 2013. The court found that Father's request for equal parenting time was "not feasible" and "not in the child's best interests." The court adopted Mother's parenting plan with some changes. In an order entered on March 27, 2013, the court held that Father owed retroactive child support in the amount of $925.00 per month for 4.5 months for a total of $4, 162.50; $2, 709.70 for medical expenses; and $2, 454.00 for prenatal expenses.
Father immediately requested a de novo hearing before the juvenile court judge. The matter was heard over seven days in July, August, September, and October 2013 and February 2014. The following witnesses testified: Jennifer McCullough, preschool teacher; Father; Angela Martin, mortgage banker; Eric Rajotte, co-owner of property with Father; Father's wife; Grace's maternal grandmother; and Mother. Due to the voluminous transcript, we will discuss the testimony as relevant to the issues below.
The trial court found that Father did not dispute the magistrate's designation of Mother as the primary residential parent, and the court found that Mother was "the evident and obvious choice" to be the primary residential parent. As to the parenting schedule, the trial court found that it was in the child's best interest to adopt Mother's proposed parenting schedule, which gave Father 85 days of parenting time. The court also gave Mother sole decision making authority on the basis that the parties did not "communicate effectively." In calculating the amount of retroactive child support due, the court found that Father "lacks credibility as to his income and that he failed to provide reliable evidence of his 'total' income." The court presumed that Father's ownership interest in the Fatherland Street property was fifty percent (50%). The court added $20, 327.50 to Father's income in 2013 for the value of bartered services. The court explained its computation of additional income attributed to Father.
Father's current child support was set at $1, 218.00 per month. Retroactive child support was set for each year, beginning in 2010; the amount paid by Father was then subtracted from the amount calculated to be owed. This resulted in a total amount of retroactive child support of $13, 272.97. Father owed $1, 647.47 in prenatal medical expenses, and $4, 498.14 in postnatal medical expenses. Father received credit in the amount of $5, 302.80 for garnishment payments, leaving a total judgment of $12, 468.31.
Issues on Appeal
Father raises a number of issues in this appeal: (1) Whether the trial court erred in granting Father only 68 days of parenting time; (2) whether the trial court erred in setting current child support and child support arrears; (3) whether the trial court erred in enjoining/restraining Father from making audio or video recordings during the exchange of the child; (4) whether the trial court erred in ordering Mother to provide health insurance rather than allowing Father to provide health insurance for the child; (5) whether the trial court erred in ordering the parties to attend mediation in the event of disagreement about the parenting plan; (6) whether the trial court erred in allocating sole decision-making authority to Mother; and (7) whether Father is entitled to his attorney fees on appeal. Mother argues that the trial court erred in declining to award her her attorney fees below; she also asserts that she is entitled to her attorney fees on appeal.
(1) Parenting time
Father argues that the trial court erred in awarding him only 68 days of parenting time. He asserts that he should receive the 173 days of parenting time requested in his proposed parenting plan, or at least a greater number of days than awarded by the trial court.
A trial court's decision regarding parenting time is reviewed under the deferential abuse of discretion standard:
Trial courts have broad discretion to fashion parenting plans that best serve the interests of the children. Tenn. Code Ann. § 3-6-101(a)(2)(A) (Supp. 2004). They must, however, base their decisions on the evidence presented to them and upon the proper application of the relevant principles of law. D v. K, 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995). While we are reluctant to second-guess a trial court's decisions regarding a parenting plan, see Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997), we will not hesitate to do so if we conclude that the trial court's decision is not supported by the evidence, that the trial court's decision rests on an error of law, or that the child's interests will be best served by another parenting arrangement. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); Steen v. Steen, 61 S.W.3d at 328; Placencia v. Placencia, 3 S.W.3d 497, 499 (Tenn. Ct. App. 1999).
Shofner v. Shofner, 181 S.W.3d 703, 716 (Tenn. Ct. App. 2004).
In this case, the trial court made the following decision regarding the parenting schedule:
The purpose of parenting time is to enable each parent to maintain a loving, stable, and nurturing relationship with the child. Based on the evidence presented, the Court finds that it is in the child's best interest that Mother's Proposed Parenting Schedule (Exhibit 66) be adopted by the Court and made an Order of the Court considering the factors set forth at Tenn. Code Ann. § 36-6-106(a)(1)-(10),  which weigh heavily in favor of Mother. While both Mother and Father appear to have stable, healthy relationships with the child, and share love, affection and emotional ties with the child, Mother has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child and shows a better disposition to provide the child with food, clothing, medical care, education and other necessary care. Mother has been the primary caregiver and taken the greater responsibility for performing parental responsibilities since the child's birth. By all accounts, the child has thrived under Mother's care. Mother has shown a willingness and ability to facilitate and encourage a close and loving relationship between Father and child by offering Father parenting time with the child prior to the establishment of parentage and the Court's initial award of parenting time to Father and additional time to that awarded to Father by the Magistrate. Mother's employment schedule has proven to be far more flexible to the needs of the child than Father's employment schedule, which requires Father to travel frequently, with little notice, for extended periods and occasionally out of the country. Mother has been stable with her employment. Father has had several employers as well as different types of self employment. His current employment appears stable. Further Father has moved several times during this prolonged litigation.
In light of all of these factors, the trial court reached the following conclusions:
The adoption of Mother's Proposed Parenting Schedule will provide continuity, consistency and stability for the child. The Court further finds that it would not be in the child's best interest to adopt Father's Proposed Parenting Schedule. The parties have shown that they are not able to effectively communicate. The Court finds that to place the child in the parenting arrangement, as proposed by Father, would more likely than not be harmful to the child and disturb her current stability. This has been demonstrated through the e-mail exchanges between the parties which were often taken out of context by Father and used by him as a platform to throw unnecessary and uncalled for barbs at Mother.
In arguing that the trial court erred in adopting Mother's parenting plan, Father relies on new language in Tenn. Code Ann. § 36-6-106(a), which provides: "In taking into account the child's best interest, the court shall order a custody arrangement that permits both parents the maximum participation possible in the life of the child consistent with the factors set out in this subsection (a), the location of the residences of the parents, the child's need for stability and all other relevant factors." (Emphasis added).
The parenting schedule adopted by the trial court for Father is as follows: Friday at 6:00 p.m. to Sunday at 6:00 p.m. every other week; Thursday at 4:00 p.m. to Thursday at 6:30 p.m. every week. Where the following days do not fall during Father's parenting time: Father's Day, 9:00 a.m. to 6:00 p.m.; child's birthday, 4:00 p.m. to 7:00 p.m. on the day preceding the child's birthday; Father's birthday, 9:00 a.m. to 7:00 p.m., or 4:00 p.m. to 7:00 p.m. if a school day; Halloween, in odd years, 5:00 p.m. to 8:30 p.m. (10:00 a.m. the following morning if Halloween falls on a weekend); Thanksgiving, in odd years 8:00 a.m. to 2:00 p.m. on Thanksgiving Day and 10:00 a.m. to 7:00 p.m. the following day; in even years, 3:00 p.m. on Thanksgiving Day to 10:00 a.m. the following day; New Year's, in odd years, December 31 at 3:00 p.m. to January 1 at 6:00 p.m. Fall vacation: Day-to-day schedule shall apply. Winter vacation: in odd years, 8 a.m. to 1:00 p.m. on Christmas Eve and 10:00 a.m. to 4:00 p.m. on Christmas Day; in even years, 4:00 p.m. on Christmas Eve until 9:00 a.m. on Christmas Day. Otherwise, the remainder of the child's Christmas vacation from school through December 30, the day-to-day schedule shall apply. Spring vacation: The day-to-day schedule shall generally apply except as follows: Father shall have parenting time in odd years at 6:00 p.m. the ...