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Paschedag v. Paschedag

Court of Appeals of Tennessee, Nashville

May 31, 2017

DANIEL PASCHEDAG
v.
PATRICIA L. PASCHEDAG

          Session March 21, 2017

         Direct Appeal from the Circuit Court for Montgomery County No. CC-15-CV-682 Ross H. Hicks, Judge

         This is an appeal from the trial court's designation of a child's primary residential parent. 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 designate Mother as the child's primary residential parent. Father appealed. Mother has requested attorney's fees incurred in defending this appeal. We affirm the judgment of the trial court, grant Mother's attorney's fees incurred on appeal, and remand to the trial court to determine the proper amount of Mother's award of attorney's fees.

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

          Gregory D. Smith, Clarksville, Tennessee, for the appellant, Daniel Paschedag.

          Steven C. Girsky, Clarksville, Tennessee, for the appellee, Patricia L. Paschedag.

          Brandon O. Gibson, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE.

         I. Facts & Procedural History

         Appellant, Daniel Paschedag ("Father"), and Appellee, Patricia L. Paschedag ("Mother"), met in Germany and married on May 9, 2005. Father is a German citizen who is a permanent resident of the United States. When the parties separated, they were living in Clarksville, Tennessee. By the time of trial, Father had moved to San Antonio, Texas. A son was born of the marriage on November 11, 2011 (the "Child"). The Child is speech delayed but otherwise healthy.

         Father filed for divorce on April 6, 2015. In his complaint, Father asked the court to designate him as the Child's primary residential parent and to allow him to move with the Child to Texas. He alleged that he had taken a job in San Antonio making more money than he was able to make in Clarksville. On April 14, 2015, Wife filed an answer to Father's complaint for divorce, alleging that she had been with the Child the majority of the time since Father moved to Texas and that she had always been the Child's primary caregiver. Mother subsequently filed a counter-complaint for divorce from Father and requested that she be named the Child's primary residential parent. The parties resolved some of the issues related to their divorce through mediation, but all issues pertaining to the Child were reserved for trial.

         The trial of this matter took place on October 6, 2015.[1] Father testified that he was living in San Antonio and coaching soccer there. Father testified that he had enrolled the Child in speech therapy in San Antonio. Father also speaks German with the Child, which has been approved by his speech therapists. According to Father, he loves his son, and the Child is a joyful little boy who enjoys swimming, karate, and soccer. Father stated that he had some difficulty speaking with the child on the phone every night because Mother does not always answer when he calls. Mother testified that she has always been the Child's primary caregiver. According to Mother, she was generally responsible for feeding, waking up with the Child during the night, changing his diapers and clothes, bathing him, cooking, cleaning, grocery shopping, and taking the Child to the doctor. Mother testified that, although both parties were soccer coaches, she was the one responsible for securing child care when she and Father were both working. After they separated, the parties attempted to share parenting time with the Child equally, but Mother alleged that she still spent more than half of the time with the Child because she took care of him on most weekends.

         Each party also called witnesses to testify in their favor with regard to parenting issues. Father offered testimony at trial to insinuate that Mother frequently left the Child unattended in her car at soccer practices and in hotel rooms during overnight trips with the soccer team. Mother offered testimony to refute that characterization of her behavior and to bolster her assertions that she was the Child's primary caregiver.

         After the conclusion of both parties' proof, the trial court announced that it was declaring the parties divorced pursuant to Tennessee Code Annotated section 36-4-129. The court then made an oral ruling with respect to custody of the Child, ultimately designating Mother as the Child's primary residential parent. In explaining its decision, including its analysis of the best interest factors set forth in Tennessee Code Annotated section 36-6-106, the court stated the following:

[T]he reality now is that [Mother's] here and [Father] is there. And the distance being what it is, it's going to make exercising parenting time difficult. The distance alone will cause problems.
. . . . [T]he Court has considered as it is required to consider certain factors that go into the Court's decision-making process regarding children and parenting. I have considered the love, affection and emotional ties that exist between each of these parents and their son. I have considered the disposition of these parents, based on the testimony given, the disposition that they each have to provide the child with food, clothing, medical care, education and any other necessary care that he might need. I have also considered the degree to which each of the parents in the past have been the primary caregiver of [the Child]. I have considered the importance of continuity in the life of this child. Since he is of tender years, he needs a more structured home life than, say, a teenager. And so it's very important that he have continuity in his life.
. . . . [L]iving out of a suitcase is no fun for anyone. It is especially no fun for a child. They need . . . structure. They need routine. . . . Especially when you're going between Clarksville and San Antonio. . . . And I have considered that in my ...

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