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Bell v. Bell

Court of Appeals of Tennessee, Knoxville

May 18, 2017

CLAIRE NICOLA BELL
v.
TIMOTHY JOHN BELL

          Session Date: March 24, 2017

         Appeal from the Circuit Court for Hamilton County No. 10D2000 W. Jeffrey Hollingsworth, Judge

         This appeal concerns visitation in a post-divorce setting. Claire Nicola Bell ("Mother") and Timothy John Bell ("Father") are parents of the two minor children at issue, ages eleven and seven at trial ("the Children"). Mother and Father divorced in 2012. Both parents were named "co-primary residential parents" and each parent received equal visitation time with the Children. Later, as the arrangement grew contentious, Mother filed a petition for modification seeking to be named exclusive primary residential parent. Father, in turn, filed a counter-petition seeking the same designation. A hearing was conducted before the Circuit Court for Hamilton County ("the Trial Court"). Afterward, the Trial Court named Father primary residential parent and awarded him increased visitation time with the Children. We affirm the judgment of the Trial Court.

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

          Janie Parks Varnell and Bryan H. Hoss, Chattanooga, Tennessee, for the appellant, Claire Nicola Bell.

          Russell Anne Swafford, Dunlap, Tennessee, for the appellee, Timothy John Bell.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Charles D. Susano, Jr. and Thomas R. Frierson, II, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         Mother and Father divorced in 2012. The permanent parenting plan designated Mother and Father "co-primary residential parents" of their two minor children. However, the plan further provided: "[I]n the event the Parental Kidnapping Act or similar State or Federal Statu[t]e is invoked, the Father shall be designated as the Primary Residential Parent for these purposes." The parents received equal visitation time at 182.5 days per year each, with alternating weekends and alternating two days per week.

         At the time of the divorce, both parents lived in North Chattanooga. Father remarried and, with his new wife, had a daughter. Mother went to reside with a close friend and the Children's pediatrician, Dr. Jane Jones ("Dr. Jones"). Father later bought a home in Signal Mountain, Tennessee. Both children were enrolled at Normal Park Elementary School. Father, previously a schoolteacher, took a job in real estate development. Mother, originally from England, is a rock climbing enthusiast who coaches rock climbing from time to time. Dr. Jones and Mother moved to another home in Chattanooga. Dr. Jones pays the mortgage, and, indeed, pays for most of Mother's expenses. Father's home is zoned for Signal Mountain schools. Due to ongoing problems complying with the parenting plan, the parties attended mediation in September 2014. Later, Father made plans to relocate to the Knoxville area and so notified Mother.

         In October 2015, Mother filed her Petition for Modification and Opposition to Parental Relocation in the Trial Court. Mother sought to be designated the exclusive primary residential parent. In December 2015, Father filed a response and counter-petition seeking to be named the primary exclusive residential parent himself. Soon after, Father announced that he would not relocate, after all. More mediation ensued to no avail. The parties submitted amended proposed parenting plans. This matter was tried over the course of two days in April and May 2016. Perhaps the most disputed issue at trial was that of whether Mother neglected the Children's educational needs in favor of their rock climbing. Also at issue was Mother's apparent financial dependency on Dr. Jones. We recount only the pertinent testimony.

         Mother testified that she and Dr. Jones have a deep platonic friendship. Mother stated that she felt rock climbing was a key part of the Children's lives. Mother testified at length concerning her views on whether she and the Children were overly consumed with rock climbing as well as whether the Children's schoolwork suffered because of it:

Q. Ms. Bell, don't you think it's important for the children to have more than one activity?
A. I think it's important for the children to be happy and thriving and loving what they are doing, yes. And more than one activity, sure. Climbing, cross country, fantastic. Climbing, Daisy Scouts. There's nothing wrong with - - [the Children], I definitely don't think something every day after school, the children cannot handle. But yeah, no, I don't have a problem with that.
Q. As long as climbing's included, correct?
A. Climbing, yes, to stop climbing is foolish. The children love climbing.
They thrive from it. They are natural climbers. Their body type is perfect. They don't struggle one bit with climbing. All they do is excel, get better and better and better. Happier and happier and happier about it. You know, they win a competition on their second or you know - - they go to the climbing gym and they climb their project that they've been working on for three days. I mean, they're just glowing. Climbing is such a positive part of their lives and it has been a part of all of our family's life for a number of years. Before they were born climbing was there.
Q. And Ms. Bell, climbing is your preference. That was your choice, correct?
A. Tim -- when I met Tim, we were going to be climbing until we were old.
That was it. We were going to have children, and we were going to move to England. We were going to go to Australia, we were going to be a climbing family. That's all we ever did when we were married, every single weekend. Climbing was our passion.
Q. But it's fair to say, you're the one that wanted the parenting to focus them on climbing, correct?
A. Not originally. They were born into a climbing family.
Q. Well, let me ask you this: You talked about they can thrive and their body type is perfect, you don't know that those children might thrive at soccer, do you? Or basketball? Or any other sport, do you?
A. Soccer is a little bit iffy for [W.] because he does not like to get muddy. Basketball, I think that what I would like to see happen is that his dad takes him to basketball, one on one, you know, go down to the YMCA. You know, let's do this for a few months, [W.]. Let's see if you really like this.
Let's see if you're good at it. Let's have some [W.]/dad time. You know, and then we'll see where basketball goes. But we don't have any idea because he signs him up for basketball out of just - - out of anywhere.
[W.]'s not even held a basketball for a year. And [W.]'s confidence is low.
And you just don't know if [W.]'s going to thrive with basketball. What
[W.] needs is to go with Dad to the Y and see where it goes.
Q. But you wouldn't know because all their time is focused on climbing, correct?
A. Not all of their time, no.
Q. The majority of their time, correct?
A. No. Not enough of their time to be honest with you.
Q. So you would like to see them climb more?
A. They would like to climb more.
Q. You would like to see them climb more.
A. If it makes them happy, which I believe it does.
***
Q. Do you think [Father]'s not an appropriate parent?
A. I - - okay. I think on my schedule that the kids and Tim will all thrive. I think that if you keep the schedule the way it is or go to his schedule, you're just hurting everyone and you're - - he is the most controlling person ever. He has anger that I - - I just see that trying to coparent him and I do not see this getting any better. It is getting worse and worse and worse. And there was some - - it is affecting [W.] in a very negative way. It's affecting both children in ...

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