Session December 13, 2016
from the General Sessions Court for Loudon County No.
2013-DV-145 Rex Alan Dale, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the General
Sessions Court Affirmed in Part and Reversed in Part; Case
W. McClarty, J., delivered the opinion of the court, in which
D. Michael Swiney, C.J., and Thomas R. Frierson, II, J.,
Richter Perky, Nashville, Tennessee, for the appellant, Adam
Carolyn Levy Gilliam, Knoxville, Tennessee, for the appellee,
Sarah Nichole (Neveau) Comeaux.
W. MCCLARTY, JUDGE
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
to and during the marriage, Father resided with Mother at the
home of Barry and Penny Comeaux ("Maternal
Grandparents") in Loudon County. Maternal
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.
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.
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
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
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.
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."
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.
court found Ms. Claudy's testimony to be highly credible.
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.
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
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
Q. Did it, at one point, get moved to three months that he
was going to be up there for you to pack?
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.
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.
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
A. No, she did not.
Q. Had she ever been an angry child ...