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Neveau v. Neveau

Court of Appeals of Tennessee, Knoxville

June 7, 2017


          Session December 13, 2016

         Appeal from the General Sessions Court for Loudon County No. 2013-DV-145 Rex Alan Dale, Judge

         This is an appeal from a divorce. The trial court granted the parties an absolute divorce and named the mother the primary residential parent of the parties' minor child. The father filed this appeal challenging the designation of the mother as the primary residential parent and questioning the number of days of parenting time he received in the parenting plan. We find that the evidence does not preponderate against the trial court's designation of the mother as the primary residential parent; however, the evidence does preponderate against the parenting plan that greatly limits the parenting time awarded to the father. Because we have concluded that the evidence preponderates against the parenting plan, we remand this issue to the trial court to adopt a plan that affords the father additional parenting time and to modify the child support award to comport with the new parenting plan. We also conclude that the tax exemption should be awarded to the father until such time as the mother becomes employed, at which time the issue can be revisited.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Affirmed in Part and Reversed in Part; Case Remanded

          John W. McClarty, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson, II, J., joined.

          Sarah Richter Perky, Nashville, Tennessee, for the appellant, Adam Paul Neveau.

          Carolyn Levy Gilliam, Knoxville, Tennessee, for the appellee, Sarah Nichole (Neveau) Comeaux.



         I. BACKGROUND

         Adam Paul Neveau ("Father") moved to Loudon County, Tennessee from Palatine, Illinois in February 2010. He met Sarah Nichole Neveau ("Mother"), and the parties dated. Mother became pregnant in October 2010. Father denied that he was the father of the child throughout the pregnancy. However, despite Father's doubts, the parties were married on February 12, 2011, approximately five months before the birth of Anna ("the Child") on July 9, 2011. After Anna was born, Father acknowledged that she was his daughter.

         Prior to and during the marriage, Father resided with Mother at the home of Barry and Penny Comeaux ("Maternal Grandparents") in Loudon County. Maternal

         Grandparents have a history of caring for foster children and have adopted three children. Mother was adopted by the Comeaux family when she was seven months old.

         The record reveals that when the Child was born, Mother served as the primary caretaker. Mother fed Anna, bathed her, and took the Child to all of her medical appointments. During that period of time, Mother cared for the Child by herself because Father was at work or school and Maternal Grandparents were at work. Mother tried to attend a local community college a couple of days a week with Father caring for Anna, but Father showed little interest in interacting with the Child. Three days after Father started keeping the Child, Anna developed a horrible skin condition. At that point, it appears the parties agreed that Mother would be the stay-at-home parent. According to witnesses: "[Father] told us on more than one occasion that five minutes is all that the child needed from him a day." During his time in Tennessee, Father had little involvement with the Child.

         Father had roughly seven different jobs in the first two years of Anna's life. Despite being employed, however, Father did not pay any rent to the Comeaux family. The trial court determined that Father "was not very successful in his employment efforts" and "[w]ent through many part-time jobs."

         After the Child was first born, Mother was diagnosed with postpartum depression and was initially overwhelmed with caring for Anna. Mother testified that the situation was exacerbated by Father being verbally abusive:

A. We did not get along. There was a lot of fighting. He would - he was emotionally and mentally abusive towards me.
Q. When you say that, what do you mean by emotionally abusive?
A. Call me names, tear me down, say I'm worthless. He would call me stupid, tell me I was not able to take care of my daughter. He - one of his favorite words that I can remember would be calling me a B.

         Maternal Grandfather's testimony supported that of Mother: "I would hear the way that [Father] would talk to [Mother], and I - I would never even dream of talking to a woman that way, or anybody. He - he - he's an abusive person. . . . I can't even repeat a lot of the stuff that he would say, but, I mean, he would cuss at her, he would - he would, basically, belittle her any way that he could."

         Allison Claudy, a babysitter, testified regarding Father's treatment of Mother:

A. The first day went well, and then there was a lot of arguing between [Father] and [Mother]. He yelled at her . . . incessantly. When I brought her to my house, his phone calls, you could hear him yelling at her over the phone, and I was - I was quite concerned. In fact, I called a friend at the Sheriff's Department and someone that volunteers with a child advocacy program and - and asked what steps would need to be taken if I felt that they were in danger and needed to have them in protective custody.
Q. What else caused you to want to seek authorities?
A. He just was constantly berating her. Also -
Q. When you say berating her, can you explain what that is?
A. It was as if nothing she could say or do was right in his eyes. Even if she was trying her best, you know, he was putting her down.
Q. Did [Mother] appear to be scared of him?
A. She said she wasn't, but I felt like she was.
Q. Were you scared of him?
A. A little.

         The court found Ms. Claudy's testimony to be highly credible.

         In May 2013, Father suggested a move to Illinois to live with his mother ("Paternal Grandmother"). Father contends that the parties mutually agreed to permanently relocate to Illinois. According to Mother, however, she agreed to try out living in Illinois. Mother discussed the reason she agreed to make the attempt: "Because I was trying to be supportive of, at the time . . . I was trying to be supportive as to him because he wanted to go up there, and I was trying to be considerate of what he wanted to do." In support of his claim that the move was to be permanent, Father asserts that he had secured a landscaping job in Illinois prior to the relocation. He notes that he had also scheduled interviews in Illinois for Information Technology positions, as he had received his associate's degree in December 2012. Once in Illinois, Mother and Father visited a preschool, Kindercare Learning Center, to discuss enrollment of Anna.

         Upon reflection, Mother now argues that Father clearly planned to move her to Illinois in order that Illinois would become the home state of the Child for divorce purposes. She claims that Father first attempted to have her allow him and the Child to move to Illinois for a couple of months while she remained in Tennessee to pack:

Q. Did the father suggest that he go up to Illinois for two months without you prior to agreeing that you would go up there?
A. Yes.
Q. And what happened to that idea?
A. I told him that was not going to happen because at the time, from what I can remember, he wanted to take Anna up there, too. I said, no, you're not going up there without me.
Q. Did it, at one point, get moved to three months that he was going to be up there for you to pack?
A. Yes.
Q. And you were not comfortable with that?
A. No, I was not.
Q. Why were you not comfortable with that idea?
A. Because I wanted to be with my daughter. I didn't find it right that he wanted to take her up there when, you know, I was down here by myself. I wanted to be able to interact with her, take care of her, and I felt like being away from her that long was just too much.

         After a few days in Illinois, Mother became unhappy with how Paternal Grandmother treated her. Mother claims that the situation deteriorated after Paternal Grandmother slapped her. Paternal Grandmother denies Mother's account and contends that Mother grabbed her arm while she was holding Anna. Regardless of which version one believes, the result of the incident was that Mother decided to return to Tennessee with the Child. Maternal Grandparents drove to Illinois, but Father obtained police assistance to deny Mother custody of Anna. Subsequently, Father sought a temporary restraining order in an Illinois state court to retain custody of the Child. In his petition, Father alleged, inter alia, that Mother had Asperger's Syndrome and a third grade level education. On May 24, 2013, Father obtained an emergency order of protection vesting sole custody of the Child with him.

         Five days later, on May 29, 2013, Mother filed for divorce in Loudon County. The trial court determined that it had jurisdiction over the matter and ordered Anna returned to Tennessee with Mother as primary residential parent pending a hearing. By the time the Child was returned to Tennessee, Mother had not seen her for six weeks, and Anna had become extremely upset and angry:

Q. [W]hat was Anna's state after being up in Illinois for six weeks with her dad?
A. She was pulling out her hair. She came back scared to death of a vacuum she had played with for the longest time. She was scared. She would scream every time we turned it on like it was going to hurt her or something. She was always pulling at her hair when she would get upset. It seemed like she was just - didn't know how to handle anything anymore. She was emotionally - you could tell she was an emotionally messed up child when she had come back. She was very angry. She had a lot of anger.
Q. Had she ever pulled out her hair before staying in Illinois?
A. No, she did not.
Q. Had she ever been an angry child ...

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