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Mouton v. Mouton

Court of Appeals of Tennessee, Knoxville

November 16, 2016

CHERYL ELLEN MOUTON
v.
MICHAEL J. MOUTON

          Session October 18, 2016

         Appeal from the Circuit Court for Hamilton County No. 13-D-351 W. Neil Thomas, III, Judge

         In this 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

          Bill W. Pemerton, Chattanooga, Tennessee, for the appellant, Cheryl Ellen Mouton. Steven Mark Jacoway, Chattanooga, Tennessee, for the appellee, Michael J. Mouton.

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

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         Michael 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.

         The 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.

         Mother 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.

         Father 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.

         The 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.

         When 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.

         Father 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 in Chattanooga.

         On 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?
A. No.
Q. And you did not do any research on the job market regarding Ms. Mouton's skills, experience, or background; correct?
A. Correct.
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 employment; correct?
A. In Colorado?
Q. In the Chattanooga ...

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