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Sansom v. Sansom

Court of Appeals of Tennessee, Nashville

May 10, 2017

MICHAEL TODD SANSOM
v.
AMANDA JANE SANSOM

          Session Date: February 22, 2017

         Direct Appeal from the Chancery Court for Williamson County No. 40794 Michael Binkley, Judge

         This is a post-divorce child custody and parental relocation case. Father petitioned the trial court to modify the parties' parenting plan to designate him as the minor child's primary residential parent and to allow him to relocate the child from Tennessee to Virginia. Mother opposed Father's petition and filed a counter-petition requesting the court modify the residential parenting schedule to reflect Father's move to Virginia. The trial court found that a material change in circumstances existed to permit an examination of whether changing the child's primary residential parent from Mother to Father was in the child's best interest. After an analysis of the best interest factors set forth in Tennessee Code Annotated section 36-6-106(a), the court concluded that it would be in the child's best interest to remain in Tennessee with Mother as her primary residential parent. The court also adopted Mother's proposed residential parenting schedule. The trial court then calculated Father's retroactive and prospective child support obligations and awarded Mother the attorney's fees she incurred in defending Father's petitions and successfully pursuing her own. Father subsequently filed a Rule 59 motion to alter or amend the trial court's judgment and to reopen the proof in the matter. The trial court denied Father's request and awarded Mother additional attorney's fees she incurred in defending the motion to alter or amend. Father has appealed the trial court's determination that Mother should remain the child's primary residential parent, the new residential parenting schedule, the court's application of Tennessee's parental relocation statute, the calculation of the income of the parties, the calculation of child support, and the award of attorney's fees. We conclude that the trial court erred in calculating the amount of Father's monthly gross income. The award of child support is therefore vacated and remanded for reconsideration. We affirm the judgment of the trial court in all other respects. We decline both parties' requests for attorney's fees incurred on appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in part, Affirmed in Part, and Remanded.

          Demeka Kay Church, Franklin, Tennessee, for the appellant, Todd Michael Sansom.

          Joanie Lucie Abernathy, Franklin, Tennessee, for the appellee, Amanda Jane Sansom.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         Appellant, Todd Michael Sansom ("Father"), and Appellee, Amanda Jane Sansom ("Mother"), were divorced in the Chancery Court for Williamson County, Tennessee on September 18, 2012. The parties are parents of one child, a daughter, born in December 2010(the "Child"). The final decree of divorce incorporated a parenting plan agreed to by the parties, which designated Mother as the primary residential parent of the Child. Pursuant to this initial parenting plan, Mother was given 285 days of residential parenting time per year with the Child, and Father was given 140 days of parenting time per year.[1]

         At the forefront of this case at trial and on appeal is Mother's struggle with alcohol abuse. The trial court found that "[a]t the time of the divorce in September 2012, Mother was struggling emotionally with Father's adultery and the break-up of the parties' marriage. Mother continued to struggle emotionally and clearly 'self-medicated' with alcohol until September 8, 2014." Mother has admitted she is an alcoholic, and she has apparently battled with the disease for quite some time. During the parties' marriage, Mother was arrested twice for driving under the influence, once in 2008 and once in 2009. Mother testified that upon discovering that she was pregnant with the parties' Child in 2010, she engaged in a period of abstinence during her pregnancy and while she was breastfeeding the Child. The trial court made a specific finding that "Mother's [alcohol] abuse was under control for a period of time until approximately December 2011or the following month, January 2012."

         Unfortunately, Mother's sobriety hit another stumbling block beginning the week after the parties' divorce in September 2012. Testimony throughout this litigation included stories told by the Child's babysitters, Father, Father's current wife, and others, of several incidents where Mother was clearly intoxicated on multiple occasions between September 2012 and September 2014. Mother's regression into alcohol abuse culminated with her being arrested for her third offense for driving under the influence on September 8, 2014.

         On September 12, 2014, Father filed a petition to modify the parties' parenting plan along with a motion for an ex parte restraining order and emergency temporary custody of the Child after learning that Mother had been again charged with driving under the influence. Father's petition to modify the parenting plan alleged that Mother's third offense of driving under the influence constituted a material change in circumstances pursuant to Tennessee Code Annotated section 36-6-101(a)(c), and it was in the Child's best interest to modify that parenting plan to designate Father as the primary residential parent for the Child. Father's motion for an ex parte restraining order and for emergency temporary custody of the Child set forth the same allegations made in his petition to modify the parenting plan as a basis for the court to grant Father temporary emergency custody of the Child and to restrain Mother from removing the Child from Father's control. Father further alleged that he was concerned Mother may take the Child outside the jurisdiction of the Court upon being served with Father's petition. That same day, the trial court granted Father's emergency motions, finding that there was reason to believe Mother might remove the Child from Father and/or out of the Court's jurisdiction and refuse to let Father see the Child.

         On September 16, 2014, Mother filed a response to Father's motion for an ex parte restraining order and for emergency custody of the Child. Mother admitted to her arrest but generally denied the remainder of Father's allegations and alleged that Father's true motive for filing his petition was that he was no longer employed in Tennessee and desired to relocate to Virginia. Mother also filed numerous affidavits and letters from people supporting her effort to regain custody of the Child. The same day, the trial court heard proof from Mother and Father regarding the continuation of the temporary restraining order issued on September 12, 2014. At the conclusion of the proof, the court determined that the restraining order should not be vacated but should be modified so that Mother could resume her regular visitation with the Child when and so long as she complied with certain conditions, including the following: (1) completely abstaining from alcohol and any controlled substances except as prescribed; (2) attending two alcoholics anonymous meetings per week and providing her attorney with documentation proving her attendance; (3) obtaining and wearing a secure continuous remote alcohol monitor (SCRAM) device that would monitor her compliance with the court's order; and (4) not driving the Child in a vehicle that is not equipped with appropriate child restraints and an interlock device that will disable the ignition of the automobile unless Mother successfully completes a breath test confirming she has not consumed alcohol. After the full hearing, the trial court denied Father's request for temporary emergency custody of the Child.

         On October 29, 2014, Mother filed an answer to Father's petition to modify the parenting plan and a counter-petition of her own to modify the parenting plan and to enforce the parties' current parenting plan. In her answer and counter-petition, Mother alleged that she was having problems with Father paying child support on time and that he had not been exercising all of his parenting time until after he filed the instant lawsuit. Mother requested that the court modify the parties' parenting plan to eliminate portions of Father's parenting time, to require Father's child support be paid by direct deposit, and to award her attorney's fees and costs. On September 16, 2015, Father amended his original petition to reflect his relocation to the state of Virginia. In his amended petition, Father stated that he had given notice of his relocation to Mother as required by Tennessee Code Annotated section 36-6-108 on or about January 27, 2015, and Mother had not filed a Petition in opposition to his relocation. Father again requested that the parenting plan be changed to designate him as the Child's primary residential parent, that the court modify the parties' parenting plan accordingly, and that the court award him attorney's fees and costs.

         The case on Father's petition and amended petition to modify the parenting plan and on Mother's counter-petition to modify the parenting plan was set for trial on October 14, 2015, at which time the court heard testimony of the parties and witnesses and admitted numerous items into evidence. The court then reconvened on November 20, 2015, to hear testimony of a subpoenaed witness who failed to appear on October 14, 2015. The court took the matter under advisement at the close of proof on November 20, 2015. On February 8, 2016, the court issued written findings of fact and conclusions of law.

         The trial court's findings of fact and conclusions of law issued on February 8, 2016 are a detailed and thorough analysis of the litany of issues raised by the parties in this case. The court found that Mother had remained alcohol free since September 8, 2014. Mother entered the Williamson County General Sessions DUI Program on February 10, 2015, and the trial court determined that Mother had been successful in that program. The court also noted the testimony of witnesses who said that Mother and the Child had a "loving relationship." After the parties' divorce, Mother purchased a home in Franklin, Tennessee, where she and the Child still resided at the time of trial. The testimony at trial was that the Child has friends in her neighborhood in Franklin, and she also takes piano lessons and attends school and church there. The court noted that, in March 2015, Father moved to Virginia with his new wife, which is approximately eight and one half (8 ½) hours away from the Child, without having a temporary parenting schedule in place. Even when the Child was with Father, Father delegated many of his parenting responsibilities to his new wife. Father testified that he would be unwilling to spend time with the Child in Tennessee after she begins Kindergarten in August 2016, even though he had a brother who lived in Brentwood, Tennessee.

         The court then went on to address Father's request that he be named the Child's primary residential parent. Pursuant to Tennessee Code Annotated section 36-6-101(a)(2)(B), the court first determined that there had been a material change in circumstances that would allow the court to consider modifying the parties' current parenting plan.[2] Second, the court examined whether a change in the Child's primary residential parent was in her best interest by weighing the statutory best interest factors set forth in Tennessee Code Annotated section 36-6-106(a). In doing so, the trial court articulated each factor listed in the statute, determined whether it was applicable to the facts of this case, and, if it was applicable, the court explained the evidence it relied on to decide whether that particular factor weighed in favor of Mother, Father, or evenly for both. The court also found that, for purposes of Tennessee's parental relocation statute, the Child was spending substantially more time with her Mother than her Father. After analyzing what was in the best interest of the Child, the court determined that the child should remain in Tennessee with her Mother as her primary residential parent. In light of this decision and Father's move to Virginia, the court also set forth a new residential parenting schedule for the parties. The court further indicated that it would award Mother some amount of attorney's fees for defending Father's petition. Due to a lack of clarity with respect to the parties' incomes and other child support worksheet entries, the court determined that the parties should reconvene before the court at a later date to determine Father's child support obligation and the amount of attorney's fees Mother should be awarded.

         On March 4, 2016, the parties returned to court to discuss the outstanding issues of child support and attorney's fees pursuant to the court's February 8, 2016 order. On April 14, 2016, the court entered an order disposing of all of the issues between the parties. This order incorporated the court's February 8, 2016 written findings of fact and conclusions of law, formally denied Father's petitions to modify the parenting plan and to relocate with the Child, granted Mother's petition to modify the parenting plan, adopted Mother's proposed plan with slight modifications, set Father's gross monthly income at $8, 477.00 per month and Mother's gross monthly income at $5, 166.00 per month, calculated Father's current child support obligation to be $974.00 per month retroactive to July 1, 2015, awarded Mother a judgment for retroactive child support in the amount of $4, 859.00, and awarded Mother $30, 000.00 in attorney's fees.

         On May 13, 2016, Father filed a pleading styled "Father's Rule 59 Motion to Alter or Amend and Motion to Reopen the Proof, for Temporary Restraining Order and for Stay of Judgment." Father's pleading was premised on allegations that he had proof that Mother had been driving with the Child in a vehicle that was not equipped with an interlock device. Father further contended that the court should alter or amend its order with respect to the weighing of the best interest factors under Tennessee Code Annotated section 36-6-106(a). Finally, Father requested that the court amend its order on Father's child support obligation to account for an additional child that had been born to Father and his new wife in April 2016. The trial court heard proof on Father's motion on June 13, 2016, including testimony from private investigators hired by Father, as well as from the parties themselves. On June 28, 2016, the trial court issued an order holding that the proof presented by Father did not rise to the level necessary to convince the court that it should have reached a different result than it reached in its previous orders. The court specifically found:

Father has failed to show that Mother breached her sobriety date, nor did the evidence show Mother drove a vehicle without an interlock device for the purpose of circumventing alcohol testing. The Court does not want to conclude that Father's actions in filing the present Motion are based in retribution but there is a lack of evidence to support Father's motions.

         In sum, the trial court denied Father's Rule 59 motion to alter or amend, motion to reopen the proof, for temporary restraining order, and for stay of judgment. The court did order that Father would be given credit for the additional in-home child that had been recently born. The court awarded Mother $8, 562.50 in attorney's fees for defending Father's post-trial motions.

         II. Issues Presented

         Father presents the following issues for review on appeal:

1. Whether the trial court erred in weighing the factors of Tennessee Code Annotated section 36-6-106 to determine the best interest of the child?[3]
2. Whether the trial court erred in failing to change the primary residential parent from Mother to Father?
3. Whether the trial court erred in adopting Mother's proposed parenting plan?
4. Whether the trial court erred in its application of the relocation statute?
5. Whether the trial court erred in its calculation of gross monthly incomes for each party?
6. Whether the trial court erred in its calculation of retroactive and prospective child support according to the Tennessee Child Support Guidelines?
7. Whether the trial court erred in denying [Father's] Rule 59 motion to alter or amend and motion to reopen the proof, for temporary restraining order, and for stay of judgment?
8. Whether the trial court erred in its award of attorney's fees to [Mother]?
9. Whether the trial court erred in failing to award [Father] his attorney's fees?

         Mother presents the following additional issue for review:

10. Whether Mother should be awarded attorney's fees on appeal?

         III. Standard of Review

         In nonjury cases, this Court's review is de novo upon the record of the proceedings in the trial court, with a presumption of correctness as to the trial court's factual determinations, unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). The trial court's conclusions of law, however, are afforded no such presumption. Campbell v. Florida Steel, 919 S.W.2d 26, 35 (Tenn.1996).

         IV. Discussion

         1. Best Interest Determination

         In the case at bar, the trial court determined that it was in the Child's best interest for her to remain with her Mother in Tennessee. Father challenges this decision in a myriad of different ways on appeal. At the outset of our analysis, we note that, particularly regarding the issue of what is in the Child's best interest, Father appears to be asking this Court to reevaluate each fact heard by the trial court and simply reach a different conclusion than that of the trial judge. The vast majority of Father's arguments do not take into account the deferential standard of review by which we assess a trial court's decisions regarding child custody. See Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993) ("Trial courts are vested with wide discretion in matters of child custody and the appellate courts will not interfere except upon a showing of erroneous exercise of that discretion."). Appellate courts are not inclined to relitigate factual issues on appeal that were reasonably resolved by the trier of fact, which, in this case, was the trial judge. See Tenn. R. App. P. 13(d). To that end, we find Father's arguments to this Court that he simply does not agree with the conclusion reached by the trial court to be unavailing.

         The forgoing notwithstanding, we turn to our evaluation of Husband's contention that the trial court erred in weighing the factors of Tennessee Code Annotated section 36-6-106 to determine the best interest of the Child. Tennessee Code Annotated section 36-6-106 states that when a court is determining what is in a child's best interest, a court shall consider all relevant factors, including fifteen (15) that are expressly written into the statute for a court's consideration. See Tenn. Code Ann. § 36-6-106 (a)(1) through (15). In the case at bar, the trial court took great care to articulate and analyze each one of these factors. Father appeals the trial court's determinations with respect to factors (1), (2), (4), (5), (7), (8), (9), (10), (12), (14), and (15).

         (1) The strength, nature, and stability of the child's relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child.

         The trial court found that both Mother and Father had a "strong, healthy, and stable relationship" with the child. However, the court also found that Mother performs the vast majority of the daily needs of the Child, while Father delegated these responsibilities to his current wife. The trial court therefore found that factor one (1) favored Mother.

         On appeal, Father contends that "the trial court should not have considered the assistance Father receives from his wife to discount his providing for [the Child's] daily needs." In support of this argument, Father cites to three cases[4] for the proposition that Tennessee courts have rejected the theory that a parent's parenting time should be reduced because they have other persons caring for the child during their parenting time. Father's reliance on these cases for purposes of a best interest analysis under Tennessee Code Annotated section 36-6-106 is misplaced. Each of the cases cited by Father reject the notion that a trial court may deduct days from a parent's parenting time for purposes of calculating the amount of time each parent spends with the child at issue. That is an altogether different question than the one in Tennessee Code Annotated section 36-6-106(a)(1) regarding the "strength, nature, and stability of the child's relationship with each parent." We find no error in the trial court's conclusion that this factor favors Mother.

         (2) Each parent's or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered ...


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