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Vinson v. Ball

Court of Appeals of Tennessee, Knoxville

November 9, 2016


          Session August 9, 2016

         Appeal from the Juvenile Court for Cumberland County No. 09-JV-1092 Larry M. Warner, Judge

          Kelsy A. Miller, Cookeville, Tennessee, for the appellant, Nathan Z. Vinson.

          G. Earl Patton, Crossville, Tennessee, for the appellees, Kristin Denise Ball and Richard Smith.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Charles D. Susano, Jr., J., joined.



         I. Factual and Procedural Background

         Petitioner, Nathan Z. Vinson ("Father"), is the biological father of two minor children, A.S. and K.S. ("the Children"), who were eight and nine years of age, respectively, at the time of trial. Kristen Denise Ball, formerly known as Kristen Smith ("Mother"), is the biological mother of the Children. Father and Mother cohabitated for a short period of time in Tennessee following the Children's births but separated when Father returned to his family home in Louisiana. In 2009, the Cumberland County Juvenile Court awarded Father temporary custody of the Children for a period of seven or eight months while Mother was incarcerated. Subsequently, on March 24, 2010, the Cumberland County Juvenile Court entered an "Order Establishing Parentage, " which confirmed Father's paternity of the Children. In that order, Mother was named primary residential parent, and Father was granted visitation with the Children for the entire month of June every year, one weekend per month, and alternating holidays. The order provided that the issue of child support would be reserved "pending action by the Department of Human Services." The order also provided that Father would be responsible for changing the Children's surnames from "Smith" to "Vinson" and that Mother would cooperate with this endeavor.

         It is undisputed that spanning the next three years, the Children moved "back and forth" between Mother's home in Tennessee and the home of her father, Richard Smith ("Grandfather"), in North Carolina and later South Carolina. Mother admitted that she was financially unable to care for the Children on her own. Father continued to visit with the Children whether the Children were living with Mother or Grandfather, and Father moved to South Carolina for a period to be closer to the Children. Eventually, however, Father returned to his family home in Louisiana. Father paid no support to Mother or Grandfather during this time period, although he did provide for the Children's needs when they were visiting with him.

         Father asserted that at some point, Grandfather began denying his requests for visitation. Consequently, Father filed a "Petition to Modify Current Parenting Order and to Establish a Permanent Parenting Plan" on July 16, 2014. Father alleged that he had been unable to maintain contact with Mother and had only recently discovered that Mother had again sent the Children to live with Grandfather without Father's knowledge. Father averred that he had been exercising visitation but did not wish to return the Children to Grandfather's care because Grandfather was not their legal custodian. Father thus contended that there had been a material change in circumstance justifying a change in the designation of primary residential parent from Mother to Father.

         Mother and Grandfather jointly filed an answer and counter-petition, seeking to hold Father in contempt for failing to return the Children from a visit, to establish a permanent parenting plan, and to set child support. Grandfather, who had concomitantly filed a motion to intervene, was listed as an "intervening counter-petitioner" on the joint counter-petition.[1] Mother and Grandfather also filed a joint motion seeking immediate return of the Children to Grandfather. In these pleadings, Mother and Grandfather asserted that although Father was supposed to have returned the children to Grandfather on July 15, 2014, Father refused to do so. They also contended that it was in the Children's best interest to remain in the custody of Grandfather. Mother and Grandfather requested that the trial court formalize Grandfather's custody of the Children because he had been their primary caregiver for many years.

         The trial court entered an Order on August 8, 2014, reciting that Father had asked for ex parte relief to restrain Mother and Grandfather from removing the Children from Father's custody pending a hearing. The court also noted that Grandfather, whom the court referred to as "the Intervening Counter-Petitioner, " and Mother had filed an answer and counter-petition as well as a motion seeking the immediate return of the Children to Grandfather. The court stated, inter alia, in its order: "The Court denied the ex parte relief requested by the Petitioner and Ordered, sua sponte, that the children be immediately returned to the custody of the Respondent [Mother] and Intervening Counter-Petitioner [Grandfather], pending further hearing to take place on August 15, 2014, at 9:00 a.m." Father subsequently filed pleadings opposing Grandfather's intervention in the case.

         The trial court conducted a hearing on August 15, 2014, regarding the countervailing custody petitions. Mother, Father, and Grandfather were the only witnesses. Mother admitted that she was financially unable to care for the Children, which she explained was the reason she sent them to live with Grandfather. Mother acknowledged that she had paid no support to Grandfather during the time of his care for the Children. Mother opined that Grandfather and his wife had done well in caring for the Children, such that she felt it was in the Children's best interest to remain in their custody.

         Father testified that despite his repeatedly asking for custody of the Children since 2010, Mother had refused. Father stated that he had to arrange his visitation through Grandfather a majority of the time. Father characterized Grandfather as initially cooperative but related that Grandfather became less so with time. According to Father, Grandfather had, of late, thwarted his attempts to visit the Children, calling Father a "sperm donor." According to Father, he moved to South Carolina at some point to reside closer to the Children. He eventually returned to Louisiana because he had not been allowed to visit the Children freely and could not obtain lucrative employment in South Carolina.

         Father explained that he currently resided with his grandmother at her home in Shreveport, where he had lived most of his life. Father was employed on an oil drilling rig in another state, working and living for fourteen consecutive days away from home and then returning home for fourteen consecutive days off. Father testified that he earned $24 per hour, for a gross income of approximately $60, 000 per year. According to Father, he was able to provide for the Children's needs, clarifying that his mother, who lived nearby, and grandmother would care for the Children when he was away for work. Father acknowledged that he had never paid child support, rationalizing that he had never been ordered to do so.

         Grandfather testified that he had recently moved to Fort Mill, South Carolina, because of the superior reputation of Fort Mill's school system. According to Grandfather, shortly after the parentage order was entered in 2010, Mother asked him to assume physical custody of the Children, providing him with a "letter of guardianship" so that he could enroll the Children in school. Grandfather stated that he was unaware of Father's address and usually exchanged the Children for visitation by meeting Father's mother or grandmother at a half-way point. Grandfather acknowledged that although Mother had paid no support for the Children, he supported the Children for her as he believed family should.

         According to Grandfather, Father had abandoned the Children since their birth. Grandfather asserted that he had attempted to cooperate with Father and give Father as much visitation as he desired, in addition to allowing Father to have telephonic access to the Children. Grandfather acknowledged that he felt "confident" that the Children were well cared for when they were with Father. However, Grandfather related that he had been the one providing the Children with stability throughout most of their lives, describing them as happy and thriving in his care.

         During closing arguments, Father's counsel posited that before custody could be awarded to a non-parent, the court was required to make a finding of substantial harm. Upon ruling from the bench, the trial court awarded custody to Grandfather based on a material change in circumstance. The court awarded Father visitation during the month of June only, with exchange of the Children to occur in Birmingham, Alabama. The court admonished Father to appear on time for the exchange or otherwise face substantial incarceration.

         The trial court subsequently entered an order on September 2, 2014, determining that a material change in circumstance had taken place since the 2010 parentage order. The court found that neither parent had provided for or supported the Children appropriately and that the Children were "blessed" to have Mr. Smith as a grandparent. The court accordingly awarded primary custody of the Children to Grandfather. In finding that neither parent had ever been ordered to pay child support, the court imputed minimum wage income to Mother and determined Father's gross income to be $4, 032 per month based upon his testimony. Pursuant to the Child Support Guidelines, the court set Mother's child support obligation at $286 per month and Father's child support obligation at $984 per month. The court further ruled that the Children's surnames remain as "Smith."

         Mother and Grandfather thereafter filed a joint motion seeking to alter or amend the judgment. In support, they asserted that the trial court had not specifically ruled on the motion to intervene and further had not made specific findings of fact to support the transfer of custody to Grandfather. Mother and Grandfather also complained that the issues of retroactive child support and medical expenses had not been addressed. Meanwhile, Father filed a notice of appeal, which appeal was subsequently dismissed by this Court due to Father's failure to pay the required litigation tax. See Tenn. Code Ann. § 67-4-601 (2013), et seq.

         Upon remand, the trial court conducted a hearing on October 1, 2014, regarding the pending motion to alter or amend. When Grandfather's counsel advised the court that no written order had been entered allowing Grandfather's intervention, the court remarked, "[i]t would appear to me . . . that I cured the motion to intervene when I granted you custody." Grandfather's counsel then proffered that in order to transfer custody to Grandfather as a non-parent, the court was required to make a finding of substantial harm. At the conclusion of the hearing, the court announced:

Now, we've dealt with the issues of custody, we've dealt with the issues of visitation, I believe, and I think we've also dealt with the issue of current support, leaving us with unpaid medical bills and retroactive child support. I will be very concerned with the time period from the date of the order establishing paternity in 2010, I believe, I'll be concerned with the income of the parties in that time frame. So, we can look at that. And, obviously, patterns of visitation by either parent, any of the parents.

         When Father's counsel asked the court to clarify that it was granting Grandfather's motion to alter or amend, the court responded affirmatively. Father's counsel then inquired whether the parties needed to conduct discovery only on the issues of retroactive child support and medical bills, to which the court again responded in the affirmative.

         Grandfather subsequently filed a petition for contempt on November 24, 2014, regarding Father's alleged non-payment of child support, as well as a motion to compel Father's discovery responses. By agreed order dated June 9, 2015, the trial court set the matter for a final hearing on July 28, 2015. On the day of the hearing, Mother and Grandfather filed a joint motion seeking permission to file an amended answer and counter-petition, in which, for the first time, they alleged that the Children would be subjected to substantial harm if custody were granted to Father.

         Upon commencement of the July 28, 2015 hearing, Grandfather's counsel informed the court that the motion to amend had just been filed. Father's counsel argued that the amendment should be denied due to its filing on the day of the final hearing, which had been set for some time. In support, Father's counsel asserted that Father had not been provided proper notice of this claim and an opportunity to prepare a defense. The court stated, "I think what you [Grandfather's counsel] have done here is, you've just memorialized what your proof here in the Court has been submitted . . . ." The court therefore granted filing of the amendment. The court subsequently inquired of Father's counsel whether she wished to seek a continuance. Counsel responded that Father wished to go forward with the hearing. Counsel, however, asked for a clarification of the issues to be addressed, stating that her understanding was that only issues of retroactive child support and medical expenses remained for determination. Grandfather's counsel declared that Grandfather was seeking a determination of substantial harm from the court. The court permitted Grandfather to proceed with the presentation of proof regarding this claim without further objection by Father's counsel.

         Grandfather testified that he had recently paid a substantial medical bill resulting from an incident wherein K.S. suffered a broken arm. According to Grandfather, although Father had stated that he would contribute to these medical expenses, he had not done so. Grandfather characterized the Children as "theirs, " referring to Grandfather and his wife, by reason of the Children having been in their physical custody for a majority of the Children's lives. Acknowledging that the Children appeared to enjoy spending time with Father and his family, Grandfather added that he knew the Children loved Father and that Father loved them. While Grandfather indicated that he believed the Children were "okay" when they were in Father's care, he expressed displeasure that Father had not paid child support until ordered to do so by the court.

          Grandfather also admitted that there had been occasions when Father had requested to visit with the Children but Grandfather had refused. Moreover, Grandfather conceded that he left a voicemail message for Father stating that he would do everything in his power to make sure Father never saw the Children. Grandfather explained that he was upset because upon their return from visitation, the Children had articulated that Grandfather wanted a "do-over" because he had not done a good job raising his own children. Grandfather was also disturbed when the Children reported Father's use of a racial slur upon referring to the Children's half-sister. Furthermore, according to Grandfather, Father had offered to add the Children to his medical insurance through his employment but never followed through.

         Mother testified that Father demonstrated a bad temper and had physically pushed her while she was pregnant with K.S. She reported that another incident of physical assault had occurred previously. As Mother explained, both incidents happened before she agreed to allow Father to exercise visitation with the Children in the 2010 parentage order.

         Father related that although he wanted to maintain custody of the Children in 2010 when the parentage order was entered, the trial court had informed the parties that it would not remove custody from Mother because Mother had made "one mistake." Father testified that Grandfather and his wife worked six days per week, often into the evening hours, such that the Children were frequently left in the care of a babysitter. Father also explained that he was unable to add the Children to his medical insurance coverage because Grandfather refused to send copies of the Children's birth certificates or social security numbers. Father expressed his distress at only having seen the Children one time during the prior year, indicating that he had been denied visitation at Christmas. According to Father, the Children reported that they would be in trouble if they wished to call Father or send him a letter when they were with Grandfather. Father also reported that the Children were extremely sad upon leaving his home to return to Grandfather. Father asserted that should his work schedule be the basis for his not being granted custody, he would find a new full-time job in Louisiana. Concerning allegations of domestic violence, Father explained that when he was residing with Mother, he had not assaulted her; rather, he insisted it was Mother who assaulted him. Father further indicated that the assault incident was the reason he had left and returned to Louisiana.

         At the conclusion of the hearing, the trial court determined that no retroactive child support would be awarded and that each parent would be responsible for $7, 500 in medical expenses. The court reaffirmed its earlier award of custody to Grandfather, finding that substantial harm to the Children would result if custody were granted to Father. The court noted that if the Children moved to Louisiana with Father, there would be "too many unknowns" because the court did not know who would care for the Children or where they would go to school. The court also observed that a grant of custody to Father, considering his current work schedule and living situation with his grandmother, would basically be "trading" one grandparent for another. By virtue of the time the Children had resided with Grandfather and the totality of the circumstances, the court determined that the Children should remain in Grandfather's custody.

         The trial court subsequently entered an order on September 10, 2015, stating in pertinent part:

The Court finds that the Petitioner Father lives in Shreveport, Louisiana and that he is employed as a motor man on an oil-drilling rig, and that such work takes him out of town, regularly for two weeks at a time, and that he has to remain out of town and stay at a bunk house during these working periods. Father earns approximately $60, 000.00 per year, and when not working, resides in a home owned by his grandmother.
The Respondent Mother resides in Cookeville, Tennessee and is currently unemployed. The proof showed that she has relied upon the Intervening Petitioner, her father, for support. Respondent mother testified that it was in the best interests of the children to continue residing with her father in Fort Mill, South Carolina. . . .
The Court finds that [Grandfather] currently lives in Fort Mill, SC, a town to which he moved specifically because of the reputation of the school system there as would relate to the children. Richard Smith has had physical custody of the parties' children, with the parties' full knowledge and consent for a majority of the children's lives, and has received no financial support from either parent, prior to [the] Court's temporary Order in this cause. Despite this, the proof demonstrated that Richard Smith has made great attempts to maintain and encourage a relationship between the children and both ...

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