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In re Gabriel V.

Court of Appeals of Tennessee, Nashville

June 24, 2015

IN RE GABRIEL V.

Session April 14, 2015

Appeal from the Juvenile Court for Davidson County No. 20124159 Sophia Brown Crawford, Judge

Luke A. Evans and Heather G. Parker, Murfreesboro, Tennessee, for the appellant, Carvin Curtis V.

Cherie Cash-Rutledge, Murfreesboro, Tennessee, for the appellee, Alina Victoria K.

Andy D. Bennett, J., delivered the opinion of the court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

OPINION

ANDY D. BENNETT, JUDGE

I. Factual and Procedural Background

Carvin Curtis V. ("Father") and Alina Victoria K. ("Mother") were married to other people when Gabriel V. ("Gabriel" or the "Child") was conceived in the fall of 2011. By the time Gabriel was born in July 2012, Mother had separated from her husband. Father moved in with Mother during her pregnancy and led her to believe he was going to leave his wife and make a home with Mother. However, Father left Mother's residence to return to his wife ten days after Gabriel was born.

Father initiated court proceedings in the juvenile court in August 2012, when he filed a petition to enter a parenting plan and to establish himself as the primary residential parent of Gabriel. Mother filed an answer and counterclaim stating that she, rather than Father, should be named the primary residential parent. The parties were able to work out only a limited amount of parenting time by Father without the court's help. When asked for its assistance, the court entered an agreed order awarding Father twelve hours on December 29, 2012, in Georgia, where Mother was then living with Gabriel. Mother then filed a motion in January 2013 seeking permission to relocate to California with the Child. The court granted Mother's request and issued a temporary parenting schedule in February 2013 granting Father ten days of parenting time with Gabriel in the months of February, March, April, and May. The court also entered a temporary child support order directing Father to pay Mother $830 per month for Gabriel's support.

The parties tried their case before the juvenile court magistrate on June 19 and 26, 2013. The magistrate entered an order on July 17, 2013, designating Mother the primary residential parent and awarding both parties equal parenting time. Mother and Father were awarded alternating months with the Child. The magistrate granted the parties the opportunity to visit the Child when he was with the other parent so long as the visiting parent gave the residential parent "sufficient advance notice." The magistrate ordered Father to pay child support in the amount of $237 per month and calculated the amount of retroactive child support Father owed dating back to the Child's birth.

Mother objected to the magistrate's decision to grant Father equal parenting time and requested a new trial before the juvenile court judge. The new trial took place in 2014 on January 13, January 15, and April 15. Testimony was offered by Mother, Father, Father's wife, and Gabriel's caretakers in California and Tennessee.

The evidence presented to the juvenile court judge clearly showed that both Mother and Father feel a close bond with Gabriel and that both parents are able to provide appropriate care and nurturing for the Child. Mother testified that it takes up to nine hours for Gabriel to travel from one home to the other. Father testified that Gabriel is well-adjusted and has no trouble getting into his routine in Tennessee once he arrives from California. Father was in favor of maintaining the monthly parenting schedule that the magistrate put into effect. Mother, however, testified that she does not think it is in Gabriel's best interest to travel between California and Tennessee each month. She explained that when Gabriel returns to her after the long trip, he has difficulty adjusting to the changed environment. According to Mother,

He's very clingy. You can' t even walk into the other room without him getting upset, wondering if you' re going to leave for a long time. Or how he always wants to keep his eyes on me. He doesn' t eat well. He doesn' t sleep well. He always has diarrhea.
His sleep schedule is all messed up because of the time zone change. And he's just not as playful. He just can' t jump right into his routine. It takes at least a week to ten days to get him situated and comfortable again.

II. Trial Court's Order

The juvenile court entered an order following the presentation of all the evidence. Initially, the court noted that both Mother and Father had "unclean hands":

Both parties appear before this Court with unclean hands. The Mother admittedly had an affair with the Father, a married man, while she was also still married although separated from her now ex-husband. The Father admittedly had an affair with the Mother while married as well as admitting that he had a previous affair during his marriage. Further, the Father admitted to lying to the Mother about them having a future together after the birth of Gabriel.

The court noted that there was no proof that either party interfered with the other's parenting time since the magistrate entered the temporary order in February 2013. Evidence was introduced that Mother exercised her right to visit Gabriel when he was in Tennessee with Father for a month at a time, but Father opted not to come out to California to visit Gabriel when he was with Mother. Father testified that he did not have family or friends in California with whom he could stay and that it was too expensive for him to visit the Child during Mother's parenting time. Mother was a captain in the Air Force, however, and she testified that she could arrange for Father to stay on base for a nominal fee. The court wrote:

The Court has concerns about the Father's request to maximize his time while not taking advantage of the ability to maximize his time since the entry of the July 12th, 2013 Order. Specifically, the Father chose not to exercise any parenting time during the months that the minor child was with the Mother although the Order provided for this and the Mother was willing to secure on base housing for the Father to defray any housing cost he would incur during his parenting time in California. The Mother, on the other hand, exercised parenting every month the child was with the Father.

The court then considered the factors set forth in Tenn. Code Ann. § 36-6-106[1] to determine which parent should be named the primary residential parent. The court determined that most factors favored both parties equally or were inapplicable to Gabriel. However, the court found that factors (3) and (4) "slightly favor[ed] the Mother" and that factor (10) "favor[ed] the Mother." The court wrote:

(3) Being the importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment, slightly favors the Mother in that the Mother was the primary caretaker of the minor child during the first year of his life.
(4) Being the stability of the family unit of the parents, slightly favors the Mother as the Court has some concerns about the stress this situation has placed on the Father's marriage.
(10) Being each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child favors the Mother.

Thus, the court wrote, "the Court finds that it is in the best interest of Gabriel [V.] that the Mother be designated the Primary Residential Parent." The court attached a permanent parenting plan to its order, indicating the days Mother and Father would have parenting time with the Child, and it also attached child support worksheets, indicating the child support Father was required to pay Mother starting from the date of Gabriel's birth.

Father appeals from the juvenile court judge's order and asserts that the court erred in the following ways: (1) ruling that Mother should be the primary residential parent and awarding Father only eighty days per year with the Child; (2) calculating the past and current amounts of child support Father is obligated to pay; and (3) failing to make independent ...


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