MICHAEL DAVID B.
Session: May 13, 2015
Direct Appeal from the Circuit Court for Shelby County No. CT-001822-08 Karen R. Williams, Judge.
Mitzi C. Johnson, Collierville, Tennessee, for the appellant, Kathryne B.F.
David F. Kustoff, Memphis, Tennessee, for the appellee, Michael David B.
Brandon O. Gibson, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.
BRANDON O. GIBSON, JUDGE
I. Facts & Procedural History
Michael David B. ("Father") and Kathryne B.F. ("Mother") were divorced by decree of the Shelby County Circuit Court in July 2008. The parties had one child, Caleb, who was born in October 2006. The trial court entered a permanent parenting plan designating Mother the primary residential parent of one-year-old Caleb. Father was to have parenting time with Caleb three days per week but at varying times due to his atypical work schedule. Father is employed as an assistant manager at Walgreen's, and in any given week, he works a combination of different shifts between the hours of 7:30 a.m. and 10:30 p.m.
In January 2011, Father filed a petition opposing Mother's removal of the child from the jurisdiction of the court. According to the petition, Mother was engaged to an Australian and planning to relocate with Caleb to Australia. Father sought an order denying Mother's request to relocate in accordance with Tennessee's parental relocation statute, Tenn. Code Ann. § 36-6-108. Mother filed a response and a counter-petition seeking the entry of a revised parenting plan that would enable her to relocate to Australia with four-year-old Caleb. Mother married her fiancé on March 6, 2011.
The trial court held a hearing on March 24, 2011, and considered the testimony of Father, Mother, Mother's new husband, and Caleb's paternal grandmother. The court issued a letter ruling on May 5, 2011. The court found that since Caleb was born, the parties had enjoyed "a nearly ideal co-parenting relationship that included both sets of grandparents and nearly seamless transition from one home to the other." In fact, the court found that "the child has been raised by his Mother, his Father, his maternal grandparents and his paternal grandparents." The court noted the parties' agreement that Caleb was spending substantially more time with Mother than with Father, within the meaning of the parental relocation statute, but the court observed that "if you segregate out the time spent with grandparents, then the parents are more nearly equal." In any event, the court concluded that moving Caleb to Australia posed a threat of specific and serious harm to the child that outweighed the threat of harm from a change of custody. See Tenn. Code Ann. § 36-6-108(d)(1)(B). The court noted that Mother was proposing to move Caleb not just to another part of this state or country but rather to "the other side of the globe, " with a significant time zone differential and even opposite seasons. The court found that Mother's proposed move would separate Caleb "from all he has known, from all of his family and extended family except his Mother by almost half the planet." Having found a threat of specific and serious harm to the child, the trial court was required to determine whether to permit relocation based on the best interest of the child. Tenn. Code Ann. § 36-6-108(e). The court found that many of the best interest factors weighed equally in favor of Mother and Father, while others were inapplicable due to Caleb's young age. However, the court found that the factor regarding the importance of continuity in the child's life and the length of time he had lived in a stable, satisfactory environment weighed heavily in Father's favor. The court concluded that placing Caleb with Father was advantageous because it "would permit him to continue to be involved with his Father and both sets of grandparents as he is accustomed to being." "That is to say, " the court explained, "[Caleb] will now be supported by [a] three-legged stool, whereas in the past he had a four-legged stool. Were he to move to Australia, his stool would have but one leg." The court also considered the stability of each parent's family unit and concluded that this factor also weighed in Father's favor because Mother had only recently married her current husband, whom she met on the Internet and dated "face to face" only a few weeks prior to their marriage. The court noted the testimony of Mother's husband that he had little experience with children and was not a "child guy." Considering all of these factors, the trial court concluded that relocating to Australia was not in Caleb's best interest. Accordingly, the court denied Mother's request to relocate Caleb to Australia and designated Father as primary residential parent. The court entered a written order granting Father's petition in opposition to removal on June 8, 2011, nunc pro tunc to the date of the letter ruling, May 5, 2011. The trial court directed the parties to either tender a modified parenting plan reached by consent or submit proposed plans for the court to consider. However, due to disputes regarding various issues, the parties did not reach an agreement regarding a permanent parenting plan for several months.
In the meantime, Mother moved to Australia on June 3, 2011. Caleb spent approximately six weeks with Mother in Australia during June and July 2011. Thereafter, Mother returned to the United States with Caleb and stayed for about eight weeks to aid in his transition. She returned to Australia in September 2011. After Mother's return to Australia, Caleb's paternal grandmother emailed to Mother a summary of "the schedule we follow for Caleb's care." The email stated, in pertinent part:
Carol [maternal grandmother] picks Caleb up from Michelle [paternal grandmother] Tuesdays at 9:30 am. - Caleb is there overnight Tues., Wed.
Michelle picks Caleb up from Carol Thursdays at 9:30 am. - Caleb is there overnight Thurs., Fri.
Carol picks Caleb up from Michelle Saturdays at 6:00 p.m. - Caleb is there overnight Sat.
Michelle picks Caleb up from Carol Sundays at 1:30 p.m. - Caleb is there overnight Sun., Mon.
[Father] gets Caleb from whichever grandmother has him when he is off; and delivers him back to whichever grandmother is scheduled to keep him when he has to go back to work. For instance, I didn't keep Caleb yesterday (Thursday) because [Father] was off. He brought him to me today (Friday) at noon before he left for a 1:30-11:00 p.m. work shift at Walgreens.
Mother thanked the paternal grandmother for the information about Caleb's schedule without objection. Caleb had another extended visit in Australia for approximately six weeks during December 2011 and January 2012.
A modified permanent parenting plan was finally entered on March 1, 2012. The parenting plan provided that Mother would have "several long-term periods of parenting time with the child each calendar year in Australia" and "additional parenting time with the child here in Shelby County, Tennessee, with the dates to be determined by the parties by agreement[.]" Caleb would primarily reside with Mother during the periods when she returned to the United States, but not to exceed six weeks annually. During such periods, "the Father and his family" would have weekly parenting time. Mother was not required to pay child support to Father, but she was fully responsible for Caleb's transportation costs for his visits to Australia. The parenting plan stated that Father agreed to provide extra time to Mother in the upcoming year since Caleb was not yet enrolled in "formal" school. It also provided that Caleb's maternal grandparents were entitled to visitation with him during the first and third weekends of each month from Saturday at 6 p.m. until Sunday at 1:30 p.m., pursuant to Tennessee's grandparent visitation statute, Tenn. Code Ann. § 36-6-306. Father was required to "provide for the child's care with either set of grandparents as the primary option." He was also required to notify Mother if he planned to be "absent from the child" for more than three consecutive days.
Caleb spent two months in Australia during the summer of 2012. Upon returning to Memphis, he began kindergarten in August 2012. The week before school began, Father emailed Mother regarding his plans for Caleb during the upcoming school year. Father informed Mother that he planned for Caleb to spend every school night at the paternal grandparents' house in order to "keep him stable and grounded in a routine as much as possible" and avoid "bounc[ing] him between three beds during his schoolweek." Father informed Mother that the maternal grandparents would have time with Caleb "most weekends" from Saturday at 5 p.m. to Sunday at 1:30 p.m. He would also allow Caleb to spend Wednesday afternoons with the maternal grandparents from the time he was released from school until they finished attending church service on Wednesday evenings so that Caleb could participate in the church choir. Mother responded by thanking Father for the information and stating, "I think it's a good idea for him to have the consistency of one bed during the school week while also keeping his connection with my family and the continuation of his longstanding church activities."
Mother returned to the United States for two weeks in October 2012 around Caleb's sixth birthday. During such visits, Mother and Caleb would typically stay at the maternal grandparents' house, and Caleb would visit with Father and the paternal grandparents from Friday night until Sunday afternoon.
On January 31, 2013, Mother initiated the instant proceeding by filing a petition to modify the March 1, 2012 parenting plan. By that time, Caleb was mid-way through kindergarten. Mother alleged that even though Father was designated as Caleb's primary residential parent, Caleb was primarily residing with his paternal grandparents, and they were actually raising him rather than Father. Mother acknowledged that "it was contemplated that the child would enjoy time with both sets of grandparents, " but she claimed that "it certainly was not contemplated by Mother or the Court that the Father would defer his parenting responsibilities to the paternal grandmother and that she would be the primary caregiver of the minor child." Mother therefore claimed that a material change in circumstance existed and that it was in Caleb's best interest to reside with her in Australia. Mother submitted a proposed permanent parenting plan that designated her as primary residential parent and provided Father with "several long-term periods of parenting time" each year in the United States and in Australia. Pursuant to Mother's proposed parenting plan, Caleb would travel to the United States four times per year during breaks from his school in Australia. The plan provided that Caleb would get to spend the night with his grandparents at least one night per week when he was visiting the United States. Father filed a response denying that Caleb was residing with the paternal grandparents and denying that Mother was entitled to relief.
The trial court heard testimony over the course of four days between April and June 2013. Caleb was six and a half years old. Mother had been residing in Canberra, Australia, for about two years. She and her husband resided in a two-bedroom apartment. Mother worked at a university from around 9 a.m. to 5 p.m., Monday through Friday. Because Mother worked five days per week and arrived home as late as 5:30, she acknowledged the possibility that she would enroll Caleb in an after-school program or summer camp if he moved to Australia. Mother testified that Caleb spent a total of about five months visiting her in Australia over the course of the past two years and that he had made friends there. Mother testified that Caleb had also developed a warm relationship with her current husband, Shannon, who had taught Caleb to swim, snow ski, and boogie board.
Mother testified that when Caleb is in the United States, she communicates with him nearly every day via Skype video chat. She testified that their average Skype sessions last about thirty minutes and occur after Caleb gets home from school in the afternoon, which equates to early morning in Australia before Mother leaves for work. She testified that when Caleb is visiting Australia, he also communicates with Father via Skype several times a week depending on his work schedule. Mother suggested that Father and Caleb's grandparents could maintain active involvement in Caleb's life even if he moved to Australia by using Skype and sending letters and care packages. During cross-examination, however, Mother identified several unopened letters that were addressed to Caleb in Australia and mailed by his paternal grandmother. Mother testified that she gave the letters to Caleb, and he did not choose to open them, so she placed them in his backpack when he returned to the United States.
Mother testified that she filed the petition to modify because she did not believe that Father was fulfilling his obligations as primary residential parent. She testified that, based on her observation, Father was not spending any more time with Caleb than he did when Father was designated the alternate residential parent prior to Mother's move to Australia. She noted that Caleb had been spending every school night at the home of the paternal grandparents and also spending time with her parents most weekends. Mother claimed that when she stated in her email that Father's plan for school nights was "a good idea, " she simply agreed that Caleb needed consistency during the school week, and she was not advocating for him to stay with the grandparents. Mother admitted that Father was a good father but claimed that he failed to make Caleb the priority in his life.
Mother testified that if Caleb was permitted to move to Australia, he would attend a nearby school and have four breaks from school annually – three two-week breaks throughout the year and a six-week break around Christmas. Mother proposed that Caleb spend each of the two-week breaks and half of his Christmas break in the United States. She testified that Father and Caleb's grandparents would be welcome to visit him in Australia as well. Mother conceded that traveling between the United States and Australia is "not easy, " but she insisted that it was realistic to expect the grandparents to make the trip. She acknowledged, though, that her parents had never visited her in Australia. She testified that the cost of flights from Canberra "all the way to Memphis" or vice versa was between $1, 500 and $1, 800. She mentioned the fact that she had spent "thousands of dollars" on plane tickets for herself and for Caleb. If Caleb were permitted to relocate, Mother proposed that Father be responsible for all of Caleb's transportation costs in lieu of paying child support.
Mother claimed that she had been "consistently the most important person" in Caleb's life. She did not foresee any harm to Caleb by moving him to Australia. She described Caleb as resilient and noted that he was an excellent student. However, she acknowledged that some stress indicators were "showing up in his life." For example, he recently had problems with urinary urgency, which a pediatric urologist diagnosed as stress-related.
Mother's husband, Shannon, testified via Skype from Australia. He also worked at a university in Australia. He generally worked weekdays from 8:30 a.m. to 5 p.m., with some flexibility. He described his relationship with Caleb as "excellent." Shannon testified that his previous statement about not being a "child guy" was taken out of context, and that he simply meant that he lacked experience with children. He said he was really enjoying "doing the parenting role" with Caleb. Shannon's mother and father also resided in Australia, but the drive to his mother's house was fourteen hours and the drive to his father's house was seven hours. Caleb had visited them once or twice. Like Mother, Shannon believed that Caleb's relationships with Father and his grandparents were "not as important or essential to Caleb's wellbeing as being with his mother." Shannon suggested that he and Mother would also benefit financially if Caleb were permitted to move to Australia because they were currently "spending so much money" on travel expenses. In other words, he believed that the cost of raising Caleb full-time would be less than the amount he was currently spending on travel expenses.
Mother's parents, Caleb's maternal grandparents, also testified. At the time of trial, Caleb was spending time at their home on Wednesday evenings and "usually" overnight on Saturdays. The maternal grandfather testified that before Caleb started school, he spent about three nights per week at their home, on Tuesdays, Wednesdays, and Saturdays. Prior to that schedule, when Mother still lived in the United States, she and Caleb resided with the maternal grandparents for "a number of months" and then moved into a house "two doors down" from the maternal grandparents. Caleb's grandfather acknowledged that Caleb is well adjusted in Memphis and doing well, but he believed that Caleb was most closely bonded to Mother and that he should reside in Australia with her. He testified that he and his wife had not visited Australia to date because they were not financially able to do so. He explained that even though they could stay with Mother and avoid a lodging expense, the cost of flights was simply too expensive.
Mother's mother testified that all of Caleb's grandparents had always been very involved in his life. When Mother was living near the maternal grandparents and employed, the maternal grandmother served as Caleb's primary babysitter. She testified that when Mother moved to Australia, Mother told her that she intended to build a life and network of support in Australia and then come back to the United States and seek to regain custody of Caleb. The maternal grandmother testified that when Mother moved to Australia, she discussed childcare plans with Father and Caleb's paternal grandmother and, with a "collaborative effort, " they worked out a schedule where each set of grandparents would care for Caleb on certain days of the week. "If it worked out so that [Father] had time off in his schedule where he could have Caleb overnight, " the maternal grandmother would defer to Father. However, the maternal grandmother estimated that she only deferred to Father for overnight stays occasionally, "[m]aybe a couple of times a month." Otherwise, before Caleb started kindergarten, she had him overnight on Tuesdays, when he attended a church Mother's Day Out program, Wednesdays, when he had choir practice, and Saturdays, when he had church the next day. Once Caleb started kindergarten, she began keeping him Wednesday afternoons until Father picked him up from church, in addition to Saturday nights until Sunday after church. The maternal grandmother admitted that Caleb loves both his parents. She said that Caleb "doesn't lack for physical needs" in Memphis and acknowledged that he is enrolled in a very good school. However, she believed that Father did not have the same emotional connection with Caleb that Mother had. The maternal grandmother confirmed that she and her husband had not visited Australia for financial reasons.
Mother's younger sister testified that she traveled with Caleb to Australia in the summer of 2012 and cared for him while Mother and Shannon were at work. She resided in Memphis but also believed that Caleb should reside with Mother in Australia so that Mother could provide consistency for Caleb.
Mother had hired a private investigator to conduct surveillance of Father and the paternal grandmother over the course of eight days. During that time, however, the investigator saw Caleb only three to four times. One of those times, he saw Caleb with Father; the other times he was with the paternal grandmother. The investigator also confirmed the fact that Father was working at Walgreen's.
At the conclusion of Mother's proof, Father moved to dismiss based on the lack of proof of a material change in circumstances. The trial court declined to rule on the motion until it heard Father's proof.
As noted above, Father was employed as an assistant manager at Walgreen's. He testified that he had been employed at Walgreen's for nearly ten years. He testified that he generally works five days a week, and he had already been transferred, by request, to a location with the minimum number of work hours required for his position. He said he basically runs the store location where he is assigned, making personnel decisions and schedules, ordering inventory, and "the whole gamut." He testified that his work schedule varies from week to week and depends on the schedules of other lower managers, warehouse shipments, and other factors. Generally, Father works either an opening shift from roughly 7:30 a.m. to 4 or 5 p.m.; a mid-day shift such as 9 a.m. to 5 p.m.; or a closing shift from about 2 p.m. to 10:30 p.m. His commute to or from work also takes about twenty minutes. He said he typically works the closing shift once a week but sometimes twice a week. Father said he tries to schedule his closing shifts for Saturdays when Caleb is staying with the maternal grandparents. About once every three weeks, Father must arrive at the store around 5:30 a.m. to receive a warehouse shipment.
Father acknowledged the role that both sets of grandparents play in Caleb's life. He noted that Caleb and Mother lived with the maternal grandparents for about a year after the parties' separation, and even after Mother moved out, she still lived two doors down. He described Caleb's maternal grandmother as "one of the bedrocks" in Caleb's life. Father said that his own mother had recently retired from her job as a school teacher and "made it her primary mission to help with the raising and nurturing of Caleb." He said that both ...