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Whitten v. Whitten

Court of Appeals of Tennessee, Nashville

June 18, 2015


Session April 8, 2015

Direct Appeal from the Circuit Court for Maury County No. 11879 Stella L. Hargrove, Judge

Casey Adam Long and William Thomas Mullican, III, Franklin, Tennessee, for the appellant, Dana Nicole Willis Whitten.

S. Jason Whatley and George Clark Shifflett, III, Columbia, Tennessee, for the appellee, Mark Thomas Whitten.

Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin, J., and Kenny Armstrong, J., joined.



I. Background and Procedural History

In September 2007, the Circuit Court of Maury County entered a decree of divorce ending the marriage of Dana Whitten ("Mother") and Mark Whitten ("Father"). The parties had two children during the marriage–a son, born in April 2005 and a daughter, born in January 2007. At the time of the divorce, Mother was not working, and Father was employed as a middle school teacher and football and soccer coach. The divorce decree included a Permanent Parenting Plan that designated Mother primary residential parent of the children. The plan provided that the children would spend time with Father on alternating weekends and for two hours on Tuesday and Thursday afternoons.[1]Additionally, the plan provided that, at Father's discretion, Father's midweek visitation could take place in Mother's residence and, in such instances, Mother would be required to leave the residence.

Following the divorce, Mother and the children continued living in what was formerly the marital home–a three-bedroom house in Columbia. In 2009, the children's maternal grandmother moved into the house as well. That same year, Mother was able to find full-time employment teaching kindergarten and cleaning classrooms at a school in Spring Hill. In 2012, Mother enrolled both children in private school at the Columbia Academy. Father opposed Mother's decision to enroll the children in the school for doctrinal and educational reasons. Father wrote letters to administrators at the school to voice his objection and make it clear that he would not be held financially responsible for tuition. Nevertheless, the children have performed exceedingly well academically. In addition to school, the children are involved in numerous extracurricular activities. The parties' son plays baseball, basketball, football, and soccer, and their daughter participates in cheerleading and gymnastics.

Father lived with his parents for a period of time following the divorce. He continued teaching and, in his spare time, pursued training to become an Evangelical Episcopal priest. In June 2010, Father married his current wife, Julie Whitten ("Stepmother"). Like Father, Stepmother had two children from a previous marriage– sons, who were ages fifteen and twelve at the time of trial. Following his remarriage, Father's parents bought him a three-bedroom house on eighteen acres in nearby Lynnville, and Stepmother moved into the house along with her two sons. In May 2011, Father and Stepmother had a son together. Stepmother has not worked outside of the home since that time.

In February 2012, Father completed his religious training and was ordained as an Evangelical Episcopal priest. Later that year, Father took a leave of absence from teaching to pursue starting a church. Unfortunately, the financial strain of Father's decision to pursue ministry full-time quickly proved to be too burdensome. By 2013, Father had fallen behind on his child support obligations and was forced to seek other employment. In January 2014, he returned to education as a social studies teacher and soccer coach at the local middle school.

The relationship between Mother and Father following their divorce has been far from amicable. The parties have clashed on issues related to the children almost continuously since the time of their divorce. In September 2012, their constant bickering finally made its way into the courts when Mother filed a petition to modify the parenting plan, in which she raised concerns regarding Stepmother's involvement in exchanges of the children. In November 2012, Mother filed an amended petition asserting additional concerns about Father's financial support of the children.

In February 2013, Father filed his own petition to modify the parenting plan in which he sought to dismiss Mother's petitions for lack of service and essentially reverse the parties' roles under the original parenting plan. Father alleged that Mother interfered with his visitation time and attempted to alienate him and his family from the children by making disparaging remarks about them to the children. Father argued that awarding him primary custody of the children would serve their best interests. Additionally, Father sought to hold Mother in criminal contempt for numerous alleged violations of the original parenting plan. Along with his petition, Father submitted a list detailing fifty-eight alleged violations of the parenting plan Mother had committed since 2007.

Mother filed an answer to Father's petition in July 2013. Mother conceded that notice of her earlier motions had not been properly executed and asserted her claims through a counter-complaint. In the counter-complaint, Mother sought to modify the parenting plan to remove the provision allowing Father to exercise visitation at her home. Mother alleged that the provision was no longer necessary and that Father had routinely abused it by invading her privacy during the visits. Mother also alleged that Father failed to pay his share of the children's expenses and asked that he be required to do so. Perhaps not surprisingly, Mother also sought to hold Father in criminal contempt for violating the parenting plan, and her counter-complaint included a lengthy list of his alleged violations.

Following a period of discovery, the trial court conducted a hearing over the course of three days in March and April 2014. On the first day of trial, the parties mutually agreed to dismiss their respective claims for criminal contempt leaving only issues related to the modification of the parenting plan before the court. The court heard testimony from both parties and from various family members and coworkers of each party.

It is clear from the record that the animosity between the parties extended to their respective families following the divorce. The events recounted by the parties at trial demonstrate how those relationships had further devolved to a point where the families were almost incapable of civilized discourse. For instance, Mother allowed the children to attend Father's and Stepmother's wedding with the expectation that they would be returned home at a specific time. When Father's sister brought the children home two hours later than the specified time, there was a verbal altercation between Mother, Mother's mother, and Father's sister. According to the testimony at trial, Mother told Father's sister that she wished someone had respected her enough to let her know the children would be late, to which Father's sister responded that Mother did not deserve respect. Mother's mother then told Father's sister that "You're all (Father's family) disgusting." Though Mother and Father's sister reconciled in a phone conversation later that night, the incident sparked a great deal of drama between the families. Shortly thereafter, Father's father sent a "nasty" letter to Mother's mother recounting all of the ways that he had helped her and Mother financially prior to the parties' divorce. This led Stepmother, in an attempt to calm tensions between the families, to send a letter to Mother expressing her hope for harmony between the two families. The attempt failed, however, and Mother sent a text message to Stepmother stating that her letter was "crap." Mother testified that Stepmother started calling and texting her repeatedly around this time to the point that Mother blocked her number. In messages introduced at trial, Stepmother told Mother she was "silly and dramatic" and a "bitter difficult woman." About a year later, the parties' daughter broke her collarbone, and Father's parents mailed her a get well card wishing her a speedy recovery and enclosed five dollars for ice cream. Rather than give the card to the child, Mother returned it to Father's parents along with a strongly worded letter indicating that she did not want to receive anything from them and demanding that they leave her and the children alone. The letter referenced the night of Father's wedding to Stepmother, stating in part:

Also, there should NEVER be any reason, at all, for my children to EVER be left in the care of you, your husband, or any other family member for that matter!! You proved to me, once again, that I cannot trust anything you people say or do! If I had been thinking straight I would have reported you for kidnapping! I had NO idea where my children were for over 2 hours and that WAS NOT the arrangement that their father and I made!! But you decided to take it upon yourself to have control of MY children and change what their parents had arranged! That WILL NEVER HAPPEN AGAIN!

Despite Mother's demand, the children continued to visit Father's parents during their weekend visitation with Father. Mother, in time, apparently came to appreciate their efforts to entertain the children. In December 2013, Mother wrote a note to Father's ...

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