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Hart v. Hart

Court of Appeals of Tennessee, Jackson

February 23, 2017

DAVINA RUTH HART
v.
GABRIEL CARSE HART

         Session: February 15, 2017

         Appeal from the Chancery Court for Madison County No. 65581 James F. Butler, Chancellor

         In this post-divorce proceeding, father appeals the trial court's reduction of his parenting time. We reverse the trial court's reduction of father's parenting time because the evidence does not support the trial court's modification of the parenting plan and reinstate the previous parenting plan.

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

          Christie Hopper, Jackson, Tennessee, for the appellant, Gabriel Carse Hart.

          W. Taylor Hughes, Jackson, Tennessee, for the appellee, Davina Ruth Hart.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Arnold B. Goldin, J., joined.

          MEMORANDUM OPINION[1]

          J. STEVEN STAFFORD, JUDGE.

         Background

         Because the only issue appealed before this Court is the trial court's reduction of Defendant/Appellant Gabriel Carse Hart's ("Father") parenting time, we will confine our recitation of the facts to those relevant to the issue presented. Plaintiff/Appellee Davina Ruth Hart ("Mother") and Father were married on May 27, 2000, with one minor child ("the child") born of the marriage in 2007.[2] Mother filed a complaint for absolute divorce on July 29, 2008. On November 4, 2008, the trial court entered the final decree of divorce, incorporating the marital dissolution agreement ("MDA") and the agreed permanent parenting plan. Under the November 2008 parenting plan, Mother was designated as the primary residential parent and received 317 days per year of parenting time, and Father received 48 days of parenting time with the child in Jackson, Tennessee. The November 2008 parenting plan also provided for joint decision-making with respect to educational decisions; however, Mother was allowed to make decisions regarding non-emergency health care, religious upbringing, and extracurricular activities. Prior to the entry of the final decree and the parenting plan, Mother and the child moved to Plano, Texas.[3]

         Mother filed a petition to modify the permanent parenting plan in the trial court on or about October 22, 2012. The parties participated in and completed mediation on or about January 17, 2013. An agreed parenting plan modifying the November 2008 parenting plan was entered after mediation on May 3, 2013, providing Mother with 280 days of parenting time and Father with 85 days. Specifically, the May 2013 parenting plan provides the following: (1) Mother would care for the child day-to-day except for specific weekends where "Father [would] have parenting time . . . in Texas each year"; (2) Father was allowed "one extra weekend per month [in Texas]" if Father provided Mother with appropriate notice; (3) the parties divided parental time during major holidays;[4] (4) Father was allowed telephone conversations with the child at least twice per week and a webcam chat with the child at least once per week; and (5) major decisions in the child's life were to be made jointly by the parties. On May 10, 2013, a consent order was entered modifying the permanent parenting plan and incorporating by reference the above plan.

         The parties again engaged in mediation on October 21, 2015, in anticipation of Father's petition to modify the May 2013 order; however, this mediation attempt was unsuccessful. Thereafter, on November 4, 2015, Father filed a motion for contempt and petition to modify the parenting plan by increasing his time with the child and allowing the child to use a cellphone provided by Father to facilitate phone calls with Father. Therein, Father asserted that Mother violated the May 2013 order by: (1) unreasonably withholding visitation; (2) impeding telephone and webcam conversations; (3) failing to consult Father on educational decisions, extracurricular activities, and non-emergency healthcare decisions; and (4) failing to send proof of income. Mother filed an answer to the petition on January 3, 2016, denying all material allegations. Father subsequently filed a response on February 16, 2016, and a proposed parenting plan on February 17, 2016. Father's proposed parenting plan sought to increase his parenting time to 113 days, allocating 252 days to Mother. Father also requested that he be allowed to provide the child with a cell phone to facilitate the telephone calls allowed under the May 2013 plan. Mother, however, never filed a proposed parenting plan nor sought any changes to the residential parenting schedule prior to the scheduled hearing.

         A hearing was held on February 19, 2016. According to the amended statement of the evidence filed on October 28, 2016 and approved by the trial court on October 31, 2016, only Father and Mother testified. At the time of the hearing, Father was a schoolteacher in Tennessee, while Mother was a school nurse in Texas.

         Both parties testified at length with respect to the difficulties they have encountered with the May 2013 parenting plan, such as the parents' inability to cooperate in the scheduling of phone calls and web cam conferences, the decision-making for the ...


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