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Colley v. McBee

Court of Appeals of Tennessee, Nashville

February 2, 2017


          Session February 18, 2016

         Appeal from the Circuit Court for Marion County No. 15829 J. Curtis Smith, Judge.

         This 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 trial court.

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

          Joseph Martin Colley, Whitwell, Tennessee, pro se appellant.

          Trudy Bloodworth, Nashville, Tennessee, for the appellee, Alisha Dale McBee.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.



         I. Factual History and Procedural Background

         Alisha 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.

         In 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.

         Under 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.

         The new 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.

         On 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.

         A. Proof at Hearing

         On 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.

         Child 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[1] and 2011.

         During 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.

         In July 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 saw Child.

         Child 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 weeks.

         In 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.

         Father's 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.

         Father 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.

         Father 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 residential parent.

         Father 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 hand-written labels.

         Father 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.

         Since 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.

         In 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 ...

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