DOMINICK J. LEONARDO
Session April 7, 2015
Appeal from the Circuit Court for Davidson County No. 11D3328 Amanda Jane McClendon, Judge
Christopher B. Jaeger, and Gregory D. Smith, Nashville, Tennessee, for the appellant, Ashli Leonardo.
James L. Collier, and Martin A. Kooperman, Nashville, Tennessee, for the appellee, Dominick J. Leonardo.
Kenny Armstrong, J., delivered the opinion of the court, in which Arnold B. Goldin, J., joined. J. steven Stafford, P.J., W.S., concurring in part and dissenting in part.
KENNY ARMSTRONG, JUDGE
Appellee Dominick Leonardo ("Father") and Appellant Ashli Leonardo ("Mother") are the parents of one child, who was born on March 22, 2011. The parties were divorced by Final Decree of Divorce entered on March 30, 2012. In conjunction with the divorce, the trial court entered a Permanent Parenting Plan (the "March 30, 2012 Parenting Plan"). Under the March 30, 2012 Parenting Plan, Mother was named the primary residential parent, with 256 days per year with the child. Father was awarded 109 days per year with the child. Concerning transportation arrangements, the March 30, 2012 Parenting Plan provides:
The Father will be responsible for all transportation for the minor child unless the mother moves out of Davidson County, or out of the county . . . further than 30 miles from Father's current residence.
The March 30, 2012 Parenting Plan included a child support worksheet, wherein Father's gross income was set at $7, 000 per month and Mother's monthly gross income was set at $6, 570.00. Based upon their respective incomes and parenting time, Father was ordered to pay mother child support in the amount of $543.70 per month.
On November 16, 2012, the trial court entered an order modifying the March 30, 2012 Parenting Plan as follows:
3. The parties' Permanent Parenting Plan shall be modified such that Father's Tuesday visitation shall cease and shall no longer be a part of the Permanent Parenting Plan. Father's every-other-weekend ending on Sunday evening shall be extended to Monday. As long as the child is in daycare, [Father] shall return the minor child no later than 4:00 p.m. to the daycare. Once the minor child begins Kindergarten, the [Father] shall return the child to school and his parenting time will end for that day.
The November 16, 2012 order specifically provides that "[a]ll other provisions of the parties' Permanent Parenting Plan shall remain in full force and effect."
On August 30, 2013, Father filed a petition for modification of parenting time. Therein, he alleged that, since the entry of the November 16, 2012 order, there had been a material change in circumstances such that modification of the child's residential parenting schedule was warranted. Father averred, inter alia, that: (1) Mother had denied Father the right to pick the child up from daycare while Mother was working; (2) without notifying Father, Mother had kept the child out of daycare on days where the child was participating in plays or other events that Father wished to attend. Father alleged that he had left work to attend the play, only to find that the child was absent when he arrived at the daycare; (3) Mother refused to allow the child to spend a day with Father's family, who were visiting from out of state; (4) Mother had moved to a residence that was "approximately ten (10) miles from the nearest interstate, in a highly congested area, " thus "forc[ing] Father to make an hour and fifteen minute round trip. On some occasions, Father alleged that he made this trip three times in one week. In addition, Father asserted that Mother has refused to share in the transportation with Father "unless meeting in a neutral location benefit[ed] Mother;" (5) Mother failed to notify Father until three weeks before her planned move that the parties would need to choose another daycare in Williamson County for the child, resulting in the child being enrolled in a daycare that is approximately 25 miles from Father's residence, i.e., twice the distance of the child's previous daycare from Father's residence; (6) Mother was cohabitating with her fiancé. In light of the foregoing averments, which Father argued constituted a material change in the child's circumstances, Father proposed a joint parenting plan, under which both parties would have the child for 182.5 days per year.
Father's August 30, 2013 petition to modify parenting time did not initially comply with Tennessee Code Annotated Section 36-6-405. As discussed further below, this statute requires that the moving party must file and serve a proposed parenting plan in a proceeding for modification of a permanent parenting plan. On October 11, 2013, Father filed a memorandum in support of his petition to modify visitation time. Father attached a proposed parenting plan form to this memorandum and served Mother with both the memorandum and the proposed parenting plan.
On October 30, 2013, the trial court granted Mother's request for extension and ordered the parties to attend and complete mediation within four weeks. Tennessee Code Annotated Section 36-6-404(c)(3) provides that, "[i]f the parties have not reached agreement on a permanent parenting plan on or before forty-five (45) days before the date set for trial, each party shall file and serve a proposed permanent parenting plan, even though the parties may continue to mediate . . . ." The court set Father's petition to modify the child's residential parenting schedule for hearing on December 13, 2013. On November 1, 2013, Mother filed her answer to Father's petition, wherein she denied that there had been a material change in circumstances to warrant modification of the child's parenting schedule. Mother also filed a counter-petition for an award of attorney's fees. Despite the fact that Mother had been served with Father's proposed parenting plan on or about October 11, 2013, Mother did not file her own proposed parenting plan as contemplated under Tennessee Code Annotated Section 36-6-404(c)(3), nor did she specifically object to Father's proposed parenting plan (other than to assert that there was no material change in circumstances to warrant modification of the child's visitation schedule). On November 12, 2013, the mediator filed a report with the trial court, indicating that, although the parties had attended and participated in mediation, the case had not settled.
The trial court, sitting without a jury, heard Father's petition for modification of the child's residential parenting schedule and Mother's counter-petition for attorney's fees on December 13th and 20th, 2013, and on January 6, 2014. During the hearing, the trial court heard evidence concerning Mother's income as it related to Mother's alleged failure to comply with the existing parenting plan. By order of February 4, 2014, the trial court granted Father's petition to modify the parenting plan based upon the following findings:
The Father has proven, and it was basically unrefuted, that [Mother] had moved from the Rivergate/Goodlettsville areas which was in close proximity to the home of [Father] . . . and the location of the minor child's daycare . . . where Father was able to drive by and visit with the minor child during the day. It is unrefuted that the Mother has purchased a home and lives with [her fiancé], with whom she is unmarried. That the Mother's new home is less than thirty (30) miles away is undisputed, but due to traffic, it appears to be considerably more, as much as forty-five (45) minutes one way to drive to her home, depending on the time of day and the traffic. What was hotly contested during the hearing by [Mother] was whether the [Father] had waived any objection to the current circumstances through his voluntary modification of the final divorce [decree] with [Mother] previously, twice previously. The Court finds that he had not.
The [Father] urged that the Court should maximize participation with each parent with the child pursuant to Tennessee Code Annotated §36-6-106(a) and asserts that the standard for modification does not require that the change of circumstances be unanticipated. [Mother] responds that the fact that she lives with someone else is of no consequence unless harm could be shown to the minor child. The Court views that the state of law in Tennessee is such that either party should be able to pick up the minor child while the other party is working and the child is in the possession of a third party child care provider. The Court finds that the move to the new daycare was made in a rushed fashion with three (3) weeks' notice and its location interferes with [Father's] ability to visit the child at daycare as was done previously. The Court finds [Father] has proven by a preponderance of the evidence that the [Mother's] actions in choice of daycare . . . plus the change in [Wife's] living circumstances and location of her move constitutes a material change of circumstances such that it materially affects the life of the minor child, and it is in the minor child's best interests to alter the residential parenting time. This change of circumstances has been since the parties were last before the Court in November, 2012. The Father has consistently been involved in the child's life and has shared many activities with her. The child is close to the Father. The emotional and developmental needs of the child shall be served by the increased involvement of the Father. The Court does not find that the Mother has attempted to alienate the affections of the child for the Father, however, the Court does find that the Mother holds the affections of the child for the Father to be less significant than her own conveniences.
Based upon the foregoing findings, the trial court modified the March 20, 2012 Parenting Plan. The new Permanent Parenting Plan, entered on February 4, 2014, awards the parties equal time with the child, i.e., 182.5 days per year. In addition, the parenting plan states that, "[i]f either parent is out of town for more than 48 hours, the other parent has the right of first refusal to exercise that parenting time with the minor child." Concerning child support, the trial court set Father's gross monthly income at $7, 515.00 and Mother's gross monthly income at $14, 352.64. Pursuant to the child support worksheet, which was attached to the court's order, and in light of the trial court's modification of the parties' respective parenting time, the trial court ordered Mother to pay Father $319.00 per month in child support.
Mother appeals. She raises four issues for review as stated in her brief:
1. Whether the trial court erred by modifying the parties' parenting plan- agreed upon less than a year earlier-without a showing of the sort of changed circumstances that would justify changing the earlier plan to a week-to-week parenting schedule.
2. Whether the trial court erred in finding that it was in the child's best interest to change from a parenting plan in which she was doing well and enjoying a good relationship with both parents to a week-to-week parenting schedule.
3. Whether the trial court erred in modifying [Father's] child support (in fact ordering [Mother] to pay child support to [Father]) in the absence of any pleading requesting child support or discovery related to child support and in the fact of [Father's] own claim in his petition that he was not seeking to modify the child support in modifying the parenting schedule.
4. Whether the trial court erred in holding that either parent could pick up and remove the parties' minor child from day care during the other's parenting time applying the novel concept of "neutral time."
III. Standard of Review
In this non-jury case, our review of the trial court's factual findings is de novo upon the record, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). To preponderate against the trial court's findings of fact, the evidence "must support another finding of fact with greater convincing effect." Austin v. Gray, No. M2013-00708-COA-R3-CV, 2013 WL 6729799, at *6 (Tenn. Ct. App. Dec. 18, 2013). We review the trial court's resolution of questions of law de novo, with no presumption of correctness. Id.
Regarding the standard a petitioning parent must meet to prove a material change in circumstances sufficient for consideration of whether modification of the residential co-parenting schedule is in the best interest of the child, as Father sought to prove in this case, Tennessee Code Annotated Section 36-6-101(a)(2)(C) provides:
(C) If the issue before the court is a modification of the court's prior decree pertaining to a residential parenting schedule, then the petitioner must prove by a preponderance of the evidence a material change of circumstance affecting the child's best interest. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance for purposes of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent's living or working condition that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child.
A trial court's determination of whether a material change in circumstances has occurred and whether modification of a parenting plan serves a child's best interest are factual questions. See In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). Thus, appellate courts must presume that a trial court's factual findings on these matters are correct and not overturn them unless the evidence preponderates ...