Session January 14, 2015
Appeal from the Circuit Court for Hamilton County No. 09D158 Jacqueline S. Bolton, Judge
This is a post-divorce parent relocation case. Robert Todd Heilig (Father) notified Heather Dawn Lyons Bevil,  formerly Helig (Mother) of his intent to move with the parties' minor son from Chattanooga to Toccoa, Georgia, about three and a half hours away, in order to assume new employment. Mother opposed the move and filed a petition asking the trial court to disallow it. Mother alleged that the parties were spending substantially equal intervals of time with the child, and that the move was not in the best interest of the child. The trial court, applying the parent relocation statute, Tenn. Code Ann. § 36-6-108 (2014), found that Father was spending substantially more time with the child than Mother, and held that Mother "failed to prove that the relocation does not have a reasonable purpose, that the relocation would pose a threat of specific and serious harm to [the child] or that the Father's motive is vindictive." The trial court allowed Father to relocate with the child. Mother appeals, raising the issue of whether the trial court erred in its calculation of the parties' respective parenting time, and whether it should have found such time "substantially equal." We affirm.
Curtis L. Bowe, III, Chattanooga, Tennessee, for the appellant, Heather Dawn Lyons Bevil.
Steven M. Jacoway and McKinley S. Lundy, Jr., Chattanooga, Tennessee, for the appellee, Robert Todd Heilig.
Charles D. Susano, Jr., C.J., delivered the opinion of the court, in which D. Michael Swiney and John W. McClarty, JJ., joined.
CHARLES D. SUSANO, JR., CHIEF JUDGE
The parties were married on May 30, 1998. They cared for two foster children during the marriage - Father's nephew Timothy (DOB 1/24/00), and Timothy's half-brother Jake (DOB 2/6/02). Before the parties' divorce, Father legally adopted the two boys, but Mother did not. One child, Cameron, was born to the marriage on August 31, 2004. Cameron, Timothy, and Jake have lived together as brothers since Cameron's birth. The parties were divorced on May 6, 2009. The permanent parenting plan (PPP) initially designated Mother as primary residential parent and provided that each party would spend 182.5 days with Cameron. The PPP was later amended several times, once by agreement and once by order of the court, so that at the time of Mother's petition opposing relocation, Father was the primary residential parent with 233 days of parenting time, and Mother had 132 days according to the PPP.
Mother filed her petition on November 7, 2013. Father answered, alleging in pertinent part as follows:
[P]ursuant to the current Permanent Parenting Plan in place, the Mother spends less than thirty-nine (39%) percent of parenting days per year with the parties' minor son, Cameron Heilig. The Father further avers that it is not in their minor son's best interest to remain in Chattanooga instead of relocating with the Father, his stepmother and his two stepbrothers . . . to Toccoa, Georgia.
[T]he Father's relocation does have a reasonable purpose in that the Father has taken a position as a Pastor of Student Ministries at The Pointe Church, a church affiliated with a Church of God located in Eastanollee, Georgia. The Father took this position after being laid off from his prior employment and being unable to obtain any new employment in or about the Chattanooga area. Furthermore, the minor son's relocation with Father, stepmother, and his two stepbrothers would not cause any specific or serious harm. The Father has determined that the local public schools in the Toccoa, Stephens County, Georgia area are excellent. There are numerous youth sports programs available in that area in which the minor son may participate. Finally, the Father is not being vindictive in relocating to Toccoa, Georgia, particularly as he attempted to obtain alternative employment in or about the Chattanooga, Tennessee area and was unable to do so.
A hearing occurred on January 15, 2014. Six persons testified - Mother and Father, both stepparents, a counselor who had seen Cameron, and the stepfather's mother. The trial court also took Cameron's testimony in an in camera hearing. The parties presented proof pertaining to the twelve-month period immediately preceding Mother's petition. Mother presented evidence showing that she had actually spent 147 days of parenting time, 15 more than anticipated by the PPP. Mother, on the other hand, calculated that she had spent a total of 311 hours "parenting" Cameron over the past year, consisting of time spent volunteering at his school, accompanying him to his sports teams' practices and games, and the like. Mother argued that these 311 hours should be divided by 8 to yield a total of 38 additional days for which she should be given credit. Father readily admitted that he had agreed to allow Mother extra parenting days, and he did not controvert Mother's 147-day total for the year, but denied that she should be given credit for the additional scattered 311 total hours Mother was with Cameron over the past year, for the purposes of calculating time under the parent relocation statute.
In its memorandum opinion and order, the trial court ruled in pertinent part as follows:
Though disputed, the Court finds that the Father spends substantially more time with the child than the Mother[;] therefore, the provisions of T.C.A. § 36-6-108(d)(1)(A-C) apply.
First the Court will address the issue which is disputed as to substantial intervals of time which Mother claims she has more than Father opines. Mother claims that in addition to the regular days allowed on the Parenting Plan, she has at least 300 more "hours" of time with the child through her activities at the ballfield [sic] and at the child's school. The Tennessee Department of Human Services Guidelines for calculations of a "day" are delineated in Rule 1240-2-4.02(10) of the guidelines.
"Days" - For purposes of this chapter, a "day" of parenting time occurs when the child spends more than twelve (12) consecutive hours in a twenty-four (24) hour period under the care, control or direct supervision of one parent or caretaker. The twenty-four (24) hour period need not be the same as a twenty-four (24) hour calendar day. Accordingly, a "day" of parenting time may encompass either an overnight period or a daytime period, or a combination thereof
Therefore, it is logical when determining for visitation purposes the definition of a day, the Court needs to look no further than the Rule as hereinabove stated.
[T]hough the Court certainly commends the Mother for her extra efforts for the benefit of the parties['] child, the Court finds that the 300 additional hours do not constitute what would be considered a "day" ...