Session February 18, 2016
from the Circuit Court for Marion County No. 15829 J. Curtis
case concerns modification of a parenting plan. Following her
divorce in Tennessee, Mother moved with her child to
Maryland. Father initially opposed the move, but an agreed
order entered after the move adopted an amended permanent
parenting plan, which named Mother the primary residential
parent. The amended permanent parenting plan granted Father
parenting time over the summer, during certain holidays, and
when either Father traveled to Maryland or Mother traveled to
Tennessee. After experiencing difficulties exercising
parenting time and growing concern over Mother's care of
the child, Father filed a petition requesting to be named
primary residential parent. The trial court denied the
request. Although it found a material change in circumstances
based on the child's serious mental health issues, the
court determined that it was in the best interest of the
child to remain with Mother. Father appeals arguing that the
trial court erred in: (1) finding it was in the child's
best interest for Mother to remain the primary residential
parent; (2) not finding Mother in contempt; and (3) awarding
attorney's fees to Mother. We affirm the decision of the
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Martin Colley, Whitwell, Tennessee, pro se appellant.
Bloodworth, Nashville, Tennessee, for the appellee, Alisha
Neal McBrayer, J., delivered the opinion of the court, in
which Andy D. Bennett and Richard H. Dinkins, JJ., joined.
NEAL McBRAYER, JUDGE
Factual History and Procedural Background
Dale McBee ("Mother") and Joseph M. Colley
("Father") are the parents of a child
("Child") born in 2003. They divorced on February
17, 2006, when Child was two. Mother was designated the
primary residential parent.
2008, Mother moved with Child to Maryland. In response,
Father filed a petition opposing parental relocation, to find
Mother in contempt, and to modify custody in the Circuit
Court for Marion County, Tennessee. The parties successfully
mediated their dispute, and on April 17, 2008, the court
entered an agreed order, which modified the previous
permanent parenting plan.
the amended permanent parenting plan, Mother remained the
primary residential parent. But the plan did not specify a
number of days for Father to exercise his parenting time. The
plan granted Father parenting time on every spring break and
for thirty-five consecutive days in the summer. Otherwise,
Father's parenting time was contingent on the
parents' travel schedule.
plan allowed Father parenting time if he traveled to
Maryland, and the plan also required Mother to notify Father
if she traveled to Tennessee. If Mother came to Tennessee for
Thanksgiving, Child went to Father on Thanksgiving Day at
2:00 p.m. If Mother did not come to Tennessee for
Thanksgiving, the parties were to alternate the Thanksgiving
holidays. For Christmas, if Mother came to Tennessee, Child
went to Father from noon on Christmas day until the day
before school or the date of Mother's departure. If
Mother did not come to Tennessee, Child went to Father on
December 23 until the day before school.
April 16, 2012, Father filed a petition to modify the
parenting plan. Father alleged a material change in
circumstances because of Mother's failure to notify
Father of Child's multiple hospitalizations due to mental
health issues and withholding of medical information
regarding Child. Father also alleged that Mother stated she
was "unable to 'handle' the child."
According to Father, Mother's lifestyle was unstable and
negatively affected Child's mental and physical health.
Father attached a proposed parenting schedule to his
petition, which essentially swapped the provisions from the
amended permanent parenting plan in terms of primary
residential parent and parenting time.
Proof at Hearing
April 11 and 29, 2014, the trial court held a hearing on
Father's petition. Both parents testified, offering
contradictory views of Child's mental health. According
to Mother, Child started counseling and therapy in 2007 at
the age of four. That year, Child ate the pet fish; was
harming himself; had problems with other children at
preschool; and was lashing out, hitting, spitting, and
biting. Specifically at home, Child's behavior included
banging his head against the wall; spinning; holding his
half-sister down and pulling her hair; running into walls
trying to harm himself; trying to harm the family dog; and
pulling the tails off of two gerbils.
started in a "regular" school and continued
therapy, but an incident late in 2010 changed that. According
to Mother, during bath time, Child ripped a towel bar off of
the bathroom wall and attempted to hit Mother on the head.
Child's half-sister and Mother locked Child in the
bathroom, but Child continued to beat on the door and broke
all of the glass in the bathroom. Mother called the police,
and they transported him to the Rockford Center, a mental
health facility. This episode led to a series of
hospitalizations for Child in 2010 and 2011.
this time period, Child also began taking medications for his
behavior. According to Mother, Child took medications for
attention-deficit/hyperactivity disorder ("ADHD")
and mood and anxiety disorders.
of 2012, following a visit with Father, Mother took Child to
the doctor because, upon his return, he was very agitated,
fidgety, and vomiting. The doctor's visit led to
Child's admission at Sheppard Pratt, another mental
health facility. July 1, 2012, would be the last time Father
returned to Sheppard Pratt in December of 2012. Thereafter,
Child had multiple admissions, primarily at Sheppard Pratt,
through August of 2013. The admissions generally lasted
August 2013, Child went from Sheppard Pratt to St.
Vincent's Villa, a residential treatment facility for
children with behavioral and emotional challenges. At the
time of the hearing on Father's petition, Child had been
at St. Vincent's Villa continuously except for the weekly
twenty-four hour periods that Mother was allowed to bring
Child home for visits.
assessment of Child's mental health and behavior was
markedly different than Mother's. In most respects,
Father believed Child to be like any other child. At one
point, Father compared child to his step-son:
He - [Step-son], he - they have the same traits when it comes
to, you know, they - [Child], he gets up in the morning. He
is a good kid. He's got a smile on his face first thing
in the morning. He goes to bed at night. You don't have
to chase him off to bed. He is good about that. Overall, he
is -he is a good kid. He just - he is always - he is full of
energy. He - he loves his LEGOs and all that stuff like that,
you know. He's got his shows that he likes and stuff like
that, but he is no different than [Step-son] is when it comes
to - I mean, they are both, you know, good kids. In my
opinion, they are - they act like any other kid.
did not dispute the diagnoses for Child, but he did question
Child's treatment. Father described an incident in 2009
after giving Child the medication Mother had provided:
I'd bought [Child] a bunch of these Star Wars action
figures and he was in there playing and he got quiet and the
next thing I know, he is walking around the house and he is
mumbling. And I said, "what are you saying, buddy?"
And he finally got close enough I could hear what he was
saying and he was looking for his action figures. Well, the
whole time he had every one of his action figures in his
hand, but it's just like he went from being normal to
like a zombie just wandering the house and it just scared me
to death, you know.
felt that Child could be treated on an outpatient basis and
needed to be home. He also felt that the repeated
hospitalizations were harmful. Father testified that he had
researched and lined up psychiatric care and special
education services for Child should he become the primary
also testified regarding problems he experienced with Mother.
When Child did visit, Father claimed that Mother would only
send enough medication for the duration of the visit,
providing no extra for unforeseen circumstances. Father
stated, and Mother acknowledged, in one instance she did not
send enough medication for Child's visit with Father and,
in another instance, provided medication in bottles with
complained about Mother's failure to inform him of
Child's hospitalizations. Once, Father only discovered
Child had been hospitalized through family members who
presumably heard from Mother's family living in Marion
County. In her testimony, Mother seemed to blame the failure
to communicate on hospital rules that prevented her from
using her mobile phone, but she denied intentionally keeping
information from Father. However, she admitted on
cross-examination that she had not kept Father informed of
changes in school, which was a requirement of the amended
permanent parenting plan.
July 1, 2012, Father has had limited contact with Child. He
telephoned Child at St. Vincent's, but he was not always
allowed to speak with him. When he attempted to arrange a
visit, St. Vincent informed Father that the visit would have
to be approved by Mother and arranged through her.
addition to testimony at the hearing, the trial court
admitted the depositions of individuals involved in
Child's treatment at St. Vincent's Villa: Paula
Sherman, Dr. Mohammad Miasami, and Mindy Leifer. Ms. Sherman
worked as an intern at St. Vincent's Villa; at the time,
she was studying for her Masters Degree in Social ...