April 14, 2015 Session
Appeal from the Chancery Court for Hamilton County No. 13-0273 Hon. W. Frank Brown, III, Chancellor
John P. Konvalinka and Jillyn M. O'Shaughnessy, Chattanooga, Tennessee, for the appellant, Katherine Sanko.
Jennifer H. Lawrence, Chattanooga, Tennessee, for the appellee, Clinton Sanko.
John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney and Thomas R. Frierson, II, JJ., joined.
JOHN W. McCLARTY, JUDGE
Katherine Sanko ("Mother") and Clinton Sanko ("Father") were married on May 18, 2001, in Butler, Pennsylvania. Four children were born of the marriage, namely Connor (D.O.B. 6/12/2003), Alyssa (D.O.B. 4/12/2005), Makayla (D.O.B. 2/13/2007), and Brenden (D.O.B. 7/29/2008) (collectively "the Children"). Mother and Father (collectively "Parents") relocated to Chattanooga, Tennessee following the birth of Connor. Throughout the majority of the marriage, Mother remained home to care for the Children, while Father pursued a successful legal career.
Mother filed a complaint for legal separation on April 18, 2013, alleging inappropriate marital conduct and irreconcilable differences as statutory grounds. Father responded by filing a counter-complaint for divorce, also alleging inappropriate marital conduct and irreconcilable differences as statutory grounds. Parents were divorced by final decree in February 2014. Mother was awarded rehabilitative alimony in the amount of $4, 000 per month for 36 months, followed by $3, 500 per month for an additional 24 months. The divorce decree incorporated a parenting plan in which Mother was designated as the primary residential parent of the Children, while Father was awarded 125 days of co-parenting time. Shortly thereafter, Mother filed a motion to alter or amend, requesting that alimony be increased and extended for an additional five years to allow her to pursue advanced education to establish a career. The trial court granted the motion, in part, by awarding rehabilitative alimony in the amount of $4, 000 per month for 48 months, as opposed to 36 months, followed by $3, 500 per month for an additional 12 months, as opposed to 24 months. The order was entered on March 28, 2014.
On May 1, 2014, Mother provided Father with a notice of intent to relocate to Butler, Pennsylvania, citing an educational opportunity and proximity to relatives as reasons for the relocation. Father responded by filing a petition in opposition to the requested relocation, asserting that Mother's relocation was proposed in a vindictive manner, was neither reasonable nor in the best interest of the Children, and would cause irreparable harm to the Children. He noted that Mother intentionally left her family in Pennsylvania to move to Tennessee and that her relatives rarely visited and were not involved with the Children to any significant degree. He asserted that Mother could easily pursue suitable educational opportunities in Tennessee. Mother denied Father's allegations and filed a proposed parenting plan that provided him with 108 days of co-parenting time and provided for the Children's enrollment at a private school.
A hearing was held at which several witnesses testified. James K. Matta, Sr., Ed.D., testified that he served as the coordinator of the clinical mental health track in the Master of Arts counseling program at Geneva College in Beaver Falls, Pennsylvania.He stated that Geneva College was a faith-based college founded on Reformed Presbyterian principles and that the counseling program was accredited by the Council for Accreditation of Counseling and Related Education Programs ("the CACREP"), which was a very highly regarded accreditation in the mental health field. He provided that the Veteran's Administration required their counselors to attend programs accredited by the CACREP.
Dr. Matta asserted that Mother likely applied to the counseling program in March 2014, because she was notified of her acceptance in May 2014. He said that the counseling program offered three tracks, a clinical mental health track, a marriage and family counseling track, and a school counseling track. He related that students could obtain a degree in any track by attending classes during the day until approximately 4:30 p.m. He stated that students in the school counseling track must complete 51 credit hours, while those who sought licensing as a professional counselor needed 60 credit hours to obtain a license. He encouraged students in the school counseling track to continue their schooling until they obtained the requisite hours to obtain a professional license. He claimed that students could obtain 60 credit hours in two years by taking 12 credit hours each semester and attending summer courses. He claimed that each credit hour cost approximately $620. He estimated that students who attained licensing as a professional counselor could anticipate an income from $30, 000 to $40, 000 per year, while students who completed the school counseling program and then achieved certification could anticipate a higher income.
Dr. Matta testified that he was uncertain as to whether Mother could obtain a professional license in Tennessee based upon her completion of the program at Geneva College. He explained that each state has a licensure board with differing requirements.
Father testified that he did not have any knowledge of Mother's intent to relocate prior to his receipt of the relocation letter in May 2014. He opined that Mother's request to relocate was unreasonable and intended to inflict pain upon him. He acknowledged that his parents, Mother's parents, and Mother's brother and sister-in-law lived in Pennsylvania and that neither he nor Mother had any extended family in Tennessee. He asserted that Mother did not have much contact with her brother but agreed that the maternal grandparents usually visited once per year and provided gifts for the Children at Christmas and on birthdays. He noted that he and Mother traveled to Pennsylvania to visit their respective families twice per year.
Father acknowledged that maternal grandparents are loving grandparents but opined that they are also largely uninvolved. He stated that he and Mother moved away from their respective families to Chattanooga at Mother's insistence. He explained that Mother attended Covenant College in Lookout Mountain, Georgia, prior to their marriage and wanted to return to the area to reconnect with college friends and the church she attended while in college.
Father stated that he consistently exercised his co-parenting time every Thursday afternoon until Friday morning and every other weekend from Thursday afternoon until Sunday afternoon pursuant to the parenting plan. He claimed that his co-parenting time was "going very well" and that he had prepared a place in his new residence for the Children with furniture, toys, and games. He also enrolled the Children in a number of extracurricular activities. He opined that the Children are doing well at their new school and had also made friends in the neighborhood.
Father testified that he was currently a partner at a law firm in Chattanooga, Tennessee. He was doubtful as to whether he could find comparable employment in Pennsylvania. He explained that his law firm had an office in Atlanta, Georgia, but not Pennsylvania. He admitted that he could fly directly from Atlanta to Pennsylvania but asserted that he had no desire to relocate to Atlanta. He opined that maintaining comparable visitation with the Children on a long-distance basis would require him to reduce his title and significantly modify his compensation. He noted that traveling to Pennsylvania would require a 660-mile drive or a drive to Atlanta, a flight to Pennsylvania, and then a drive to Butler. He related that if Mother relocated, he would be unable to attend school events or exercise co-parenting time during the week. He believed that weekly communication was necessary to maintain a relationship with the Children. He said that the proposed parenting plan was complex with arduous notice provisions and only provided him with 108 days of co-parenting time, which was a 17-day reduction in his co-parenting time.
Father testified that Mother refused to communicate with him except by e-mail or text message and provided him with very little information concerning the Children. He claimed that he was dependent upon the Children and their respective schools for information. He noted that she failed to keep him apprised of Brenden's occupational therapy appointments and had procured glasses for Connor without his knowledge. He stated that he attended the Children's events and activities when he was able and admitted that Mother also provided him with a "couple of short videos" from events that he was unable to attend. He agreed that she had been willing to work with him to accommodate his schedule on the few occasions he was unable to exercise his co-parenting time. He claimed that he had also assisted her with the Children once when she was sick during her co-parenting time.
Father testified that he was unfamiliar with the private school designated by Mother. He provided that the Children had spent most of their lives in Chattanooga. He claimed that he was more than willing to care for the Children while Mother pursued an advanced education in Tennessee. He asserted that he was supportive of her desire to attend school and that he could schedule his employment around her schedule. He provided that she could choose from a number of institutions in the Chattanooga area.
Mother testified that she received a Bachelor's degree in sociology with a concentration in marriage and family counseling from Covenant College. She attended Covenant College because of its affiliation with the Presbyterian Church and its integration of the Christian faith into the classroom. She advised the court during the divorce hearing that she sought an advanced degree and had researched a number of schools, including Geneva College and the University of Tennessee at Chattanooga ("UTC"). She also researched Southern Adventist University ("SAU"). She claimed that employment without an advanced degree in her field would only yield a salary of approximately $25, 000 to $30, 000.
Mother testified that SAU's program was not CACREP accredited. She stated that she originally planned to attend UTC, which was CACREP accredited, but that the social work program she desired was unavailable. She asserted that UTC's counseling program provided classes after the Children were finished with school for the day. She noted that attaining degrees in school counseling and professional counseling from UTC would require at least three years of schooling. She provided that she could attain the credits for dual licensures from Geneva College, which was CACREP accredited, in approximately two years during the day while the Children attended school. She opined that a dual licensure made her more marketable and provided her with the flexibility to maintain a private practice and work while the Children attended school. She stated that she also preferred Geneva College for its integration of the Christian faith into the classroom.
Mother testified that if she were allowed to relocate, her parents would assist her with the Children until she returned home from class around 5:00 p.m. She noted that her sister-in-law was also available to help her. She stated that she did not have any family in Tennessee and that she could not depend on her friends in the area for assistance when they had families of their own. She asserted that she spoke with her parents daily and that they visited her and the Children twice per year.
Mother testified that she visited her parents in June 2014 and enrolled the Children at Penn Christian Academy in Pennsylvania to secure their placement in the event that the court allowed her to relocate. She provided that Penn Christian Academy was a small Christian school that was academically challenging. She noted that tuition for the Children without financial assistance would cost approximately $1, 200 per month. She also researched the public schools in the area and found that they were very well-respected. She acknowledged that her relocation would disrupt the Children's current schooling but asserted that the Children had not been challenged academically since their removal from Chattanooga Christian School.
Mother testified that she worked to accommodate Father's schedule on a number of occasions since the separation and that she never declined his request for assistance with the Children during his co-parenting time. She also provided him with videos of school performances when he was unable to attend. She acknowledged that her communication with Father was limited to e-mail and text message. She explained that written correspondence allowed for more clarity because she and Father had a history of miscommunication. She opined that their communication had improved since the separation but agreed that she had not engaged Father in any form of personal conversation when exchanging the Children for co-parenting time. She acknowledged that she had refused his request to enroll the Children in extracurricular activities.
Mother testified that her proposed parenting plan provided Father with visitation in accordance with the Children's school calendar. She claimed that in addition to the dates specified in the parenting plan, Father could also visit the Children upon request if he traveled to Pennsylvania. She asserted that she intended to provide Father with a substantial amount of co-parenting time and that she would consider returning to Tennessee once she attained her degree.
David F. Ross, Ph.D., a professor of psychology at UTC, testified that he had reviewed graduate counseling programs in Tennessee. He related that there were six universities in East Tennessee that offered on-site counseling programs, namely East Tennessee State University in Johnson City, Lee University in Cleveland, Richmont Graduate University in Chattanooga, SAU in Collegedale, UTC, and the University of Tennessee at Knoxville ("UTK"). He provided that there were also four universities that offered online counseling programs, namely Capella University in Minnesota, Liberty University in Virginia, University of Massachusetts, and Walden University in Maryland. UTC, UTK, and Cappella University were the only universities that had achieved CACREP accreditation for their counseling programs. He agreed that Richmont Graduate University did not have a school counseling program. He noted that the completion of a counseling program did not guarantee the receipt of a license and that each state had differing licensing requirements. He acknowledged that UTC and UTK required the completion of a graduate entrance examination.
Dr. Ross testified that UTC offered a Master's of Education in Clinical Mental Health Counseling or School Counseling. He stated that the clinical mental health counseling program required 60 credit hours, while the school counseling program required between 48 and 50 credit hours. He noted that some of the courses required for each program overlapped. He agreed that he was in the psychology department, not the education department and could not speak definitively as to whether one could use one course to fulfill credit hours in both programs. He acknowledged that he was not aware of a student that had obtained the credit hours to receive a dual degree in school counseling and mental health counseling.
Dr. Ross stated that the programs are small with approximately 10 to 13 students in each class and that class offerings are dependent upon the enrollment of a suitable number of students. He explained that the faculty worked very closely with the students in guiding their career and development, evaluating their progress, and in interacting with the institution where the student is placed in the field. He opined that the stated classroom times are flexible as evidenced by the fact that internships and practicums are completed in the field, not in the classroom. He agreed that students might be required to meet in the classroom at the stated time after working in the field. He believed that a student could also work with the department head to adjust the time of a course. He ...