Session October 18, 2016
from the Circuit Court for Hamilton County No. 13-D-351 W.
Neil Thomas, III, Judge
parental relocation case, the trial court erred in finding
that the mother did not have a reasonable purpose in
relocating to another state for her employment. Furthermore,
mother's purpose in relocating was not vindictive.
Therefore, the judgment of the trial court is reversed.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
W. Pemerton, Chattanooga, Tennessee, for the appellant,
Cheryl Ellen Mouton. Steven Mark Jacoway, Chattanooga,
Tennessee, for the appellee, Michael J. Mouton.
D. Bennett, J., delivered the opinion of the court, in which
Charles D. Susano, Jr., J., and Thomas R. Frierson, II, J.,
D. BENNETT, JUDGE
and Procedural Background
J. Mouton ("Father") and Cheryl Ellen Mouton
("Mother") were married in Colorado in 2005 and
moved from Littleton, Colorado to Chattanooga, Tennessee in
2011. They had two children, Zoe and Triston, ages fifteen
and seven, respectively, at the time of trial. Zoe was the
child of Father from a prior marriage and Mother adopted her.
About six months after moving to Chattanooga, the parties
separated, and Mother filed for divorce on February 5, 2013.
parties were divorced by final decree entered on May 26,
2015. The permanent parenting plan provided that Father was
the primary residential parent for Zoe with 280 days of
parenting time per year and that Mother was the primary
residential parent for Triston with 280 days of parenting
time per year. Because the parents had "relatively equal
annual incomes" and each was the primary residential
parent of one child, the trial court did not order either to
pay child support.
worked for Healthgrades in Chattanooga as Director of Client
Development at an annual salary of $80, 000. In June 2015,
she lost her job at Healthgrades. In a letter dated August
12, 2015, Mother notified Father of her intention to relocate
to Littleton, Colorado with Triston. Mother stated that she
had been offered a job as Director of Marketing and
Consulting with Ethos in Denver. She anticipated that she
would also be offered a job in Denver with HCA as Vice
President of Quality and Performance Measures and with E2
Optics as a business development strategist. The move would
also allow Mother to be close to her family.
filed a petition in opposition to Mother's removal of the
child, for modification of the primary residential parent,
and for contempt on September 10, 2015. Nevertheless, Mother
moved to Colorado with Triston on or about September 18,
2015. On October 23, 2015, the trial court ordered Mother to
return Triston to the jurisdiction of the court; the court
also ordered that the child would remain in the jurisdiction
under further order of the court. The court entered a second
order providing that, if Mother did not return Triston to the
jurisdiction by 5:00 p.m. on October 30, 2015, Father would
be temporarily designated as the primary residential parent
and would take immediate physical custody of the child.
Mother returned with Triston to Chattanooga as ordered on
October 30, 2015.
case was tried on January 5 and 6, 2015, and there were only
three witnesses: Father, Mother, and Bill Younkes,
Mother's prospective employer in Colorado. Father's
proof consisted of one witness, himself. He testified about
the history of the parties' relationship and their
interactions concerning the children since the divorce.
Father gave details about disagreements between the parties
regarding visitation. He also testified about an order of
protection and a criminal warrant Mother obtained against
him, both of which were ultimately dismissed. Father asserted
that Mother frequently would not allow him to speak to
Triston on the telephone.
asked what effect he thought it would have on his
relationship with Triston if the court allowed Mother to
relocate to Colorado, Father testified as follows:
A. I just honestly see it as just being impossible. I mean,
it is-it's been so hard to communicate with my son here
when they're here or-even with court orders. And it's
just-even when they move-go away, like she left and moved
four times, I think. Four or five times I spoke to him in
seven weeks I think it was. I mean, that's
just-that's ridiculous. And even me not getting him for
Christmas and there's a court order. . . .
Q. What-how will it affect his contact or relationship with
his sister, Zoe? A. In the same way, you know, because the
only time we get to speak with him is when he calls, you
know. That's it. And who knows when that is. We text,
please have Triston call me, please have Triston call me,
please have Triston call me, please have Triston call me, you
know. And nothing. . . . Obviously, I want to see my son and
I'm just not able to or communicate with him. And, I
mean, I'm his father, you know.
opined that the cost of living in Denver, Colorado was
"definitely higher" than the cost of living in
Chattanooga. According to his research, the cost of living
was 31% higher in Denver than in Chattanooga. At the time of
trial, Mother's parents lived in Colorado Springs, and
her brother also lived in Colorado. Father's sister and
her family lived in Atlanta, and Father stated that Triston
enjoyed seeing his cousins in Atlanta (three boys aged nine,
thirteen, and fourteen) once a month. The rest of
Father's family lived in Louisiana and Texas.
Triston's maternal great-grandmother and her family lived
cross-examination, Father was asked about Mother's stated
purpose of relocating for a job:
Q. . . . And when I asked you in deposition regarding the
reasonable purpose for Ms. Mouton's move, you had not
looked at any job opportunities that may be available to Ms.
Mouton; did you?
Q. And you did not do any research on the job market
regarding Ms. Mouton's skills, experience, or background;
Q. In fact, you did no research on the job market with
regards to anything
Ms. Mouton may or may not have been able to do in terms of
A. In Colorado?
Q. In the Chattanooga ...