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Sturdivant v. Sturdivant

Court of Appeals of Tennessee, Nashville

June 15, 2017

AMY AUSENBAUGH STURDIVANT
v.
WILLIAM EUGENE STURDIVANT

          Session May 16, 2017

         Appeal from the Circuit Court for Montgomery County No. 2015-CV-1166 Laurence M. McMillan, Jr., Chancellor

         Father appeals the trial court's denial of his request for equal parenting time with the parties' children and failure to grant father a fault-based divorce based on mother's infidelity. Discerning no error, we affirm.

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

          Mark R. Olson and Taylor R. Dahl, Clarksville, Tennessee, for the appellant, William Eugene Sturdivant.

          Mark Rassas and Julia P. North, Clarksville, Tennessee, for the appellee, Amy Ausenbaugh Sturdivant.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Arnold B. Goldin, and Brandon O. Gibson, JJ., joined.

          MEMORANDUM OPINION[1]

          J. STEVEN STAFFORD, JUDGE.

         Background

         This divorce action was filed on June 3, 2015, by Plaintiff/Appellee Amy Ausenbaugh Sturdivant ("Mother") on grounds of inappropriate marital conduct and irreconcilable differences. Defendant/Appellant William Eugene Sturdivant ("Father") answered, admitting that irreconcilable differences existed between the parties, but denying that he committed inappropriate marital conduct. Instead, Father alleged that Mother was guilty of inappropriate conduct. Father submitted a proposed parenting plan giving him equal time with the parties' three daughters, ages four, nine and fifteen. Mother's proposed parenting plan provided Mother with significantly more time with the children. The parties participated in mediation and successfully divided their marital property. A trial on the outstanding issues took place on March 8, 2016.

         Mother generally testified that the cause of the parties' various separations and their ultimate divorce was Father's alcohol and marijuana abuse and his obsession with video games, which often caused him to isolate himself from the family. According to Mother, shortly before she vacated the marital home, Father was smoking marijuana daily in the parties' home with the children present.

         Mother testified that she primarily provided for the family during the marriage, while Father earned his degree. Mother's job often required extensive travel. Although Father was therefore tasked with caring for the children while Mother worked, Mother testified that the parties decided to hire a nanny to help Father with childcare. The nanny only worked during the periods of time that Father was responsible for the children. With respect to Father's parenting, Mother was concerned that Father would isolate himself from the family to play video games. During this time, Mother testified that she was still the parent that scheduled and attended the majority of the appointments and meetings for the children. After Mother's job was eliminated, however, Mother testified that she primarily looked after the children, as her new job allows her to work from home. Mother admitted that her new job is commission only and that, as a result of not having received a paycheck yet, she has had to rely on public assistance and family support to pay her expenses.

         Mother testified that her oldest daughter's relationship with Father is strained. As a result, Mother testified that she has allowed the child to decide whether she wants to visit with Father; however, the oldest child has exercised no significant visitation with Father since May 2015. Mother testified that she has encouraged her daughter to mend her relationship with Father, even putting the child in counseling.

         Mother testified, however, that the parties' two younger children have an excellent relationship with Father. According to Mother, the parties had agreed to a temporary parenting schedule concerning the younger two children wherein Mother had primary responsibility for the children and Father was allowed two consecutive overnight visits per week and every other Friday evening. Mother testified that she believed this schedule was in the children's best interests. Mother testified, however, that she was not opposed to allowing Father to have more consistent time with the children on weekends.

         Father blamed the demise of the parties' marriage on Mother's extramarital affair. Indeed, Mother admitted that she began a physical relationship with another man in June 2015, after the parties' separation. Mother testified, however, that she only met her paramour during Father's regularly scheduled visitation and that her paramour was never around the children. At the time of trial, Father was living in the marital home and working in a factory as a quality engineer. Father testified, however, that he intended to return to teaching high school chemistry, which would allow him more time with the children. Father asserted that, compared to Mother, he is better able to financially provide for the children. Father noted that he was the primary caregiver of the children when Mother's prior job required her to travel. Father also asserted that he, rather than the nanny, would feed, bathe, and otherwise care for the children when he was home during this time; Father testified that once he came home from work, the nanny left the home. According to Father, the parties should be allowed equal time with the children; Father testified that he especially wants to repair his relationship with the eldest child, which would be accomplished by increased time with her. Although Mother did not appear to be discouraging the eldest child from interacting with Father and his family, Father asserted that Mother had likewise done nothing to discourage the child's decision to refuse to see Father.[2]

         The trial court issued an oral ruling at the conclusion of trial. Therein, the trial court ruled that Mother would be named the primary residential parent and that Father would be awarded visitation consistent with the parties' temporary schedule. On the following day, however, the trial court sent a letter to the parties having reconsidered its ruling. Therein, the trial court ruled that Father would have every other weekend visitation, as well as one night per week. The trial court also ruled that the parties would have visitation in the summer on alternating weeks. Finally, the trial court's letter gave specific instructions for resuming visitation between Father and the parties' eldest child.

         The trial court entered a final decree of divorce and permanent parenting plan on April 4, 2016. The trial court first declared the parties divorced pursuant to Tennessee Code Annotated section 36-4-129. The order contained detailed findings of fact with regard to the statutory best interest factors consistent with the trial court's oral ruling and ordered visitation consistent with the trial court's letter ruling. Father and the oldest child were also ordered to attend counseling and follow the recommendations of the counselor. Finally, the trial court set the parties' incomes for purposes of child support and ordered the parties' property and debts to be divided and the marital home to be sold. Neither party was awarded attorney's fees. The permanent parenting plan attached to the trial court's ruling awarded Father visitation beginning with the 2016 school year to be exercised every Friday evening, every other weekend, alternating holidays, and alternating weeks in the summer.

         Issues Presented

         Father raises two issues on appeal:

1. Whether the trial court erred in not awarding Father equal time with the children.
2. Whether the trial court erred in not granting Father a fault-based divorce based upon ...

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