Assigned on Briefs February 2, 2017
from the Chancery Court for Williamson County No. 39530
Michael W. Binkley, Chancellor
post-divorce appeal concerns the father's petition to
modify the residential schedule in an agreed parenting plan.
Following a hearing, the trial court found that a material
change in circumstances necessitated a change in the
schedule. The court modified the plan by awarding the father
additional co-parenting time. The court also entered a new
child support order and directed the mother to remit payment
for retroactive child support and the father's attorney
fees. The mother appeals. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Radford H. Dimmick, Nashville, Tennessee, for the appellant,
Shelton, Franklin, Tennessee, for the appellee, Phillip Neal
W. McClarty, J., delivered the opinion of the Court, in which
Frank G. Clement, Jr., P.J. and Brandon O. Gibson, J.,
W. McCLARTY, JUDGE
Kennedy and Phillip Neal Kennedy (individually
"Mother" and "Father" and collectively
"the Parties") were divorced by order of the court
in June 2011. Two children were born of the marriage, Clayton
("the Child") and Casey, who has since attained the
age of majority. The divorce decree incorporated a parenting
plan in which Mother was designated as the primary
residential parent; however, the Parties were given equal
November 2, 2011, Father filed a petition to modify,
requesting designation as the primary residential parent and
additional co-parenting time. The Parties attended mediation
and entered into an agreed order, designating Father as the
primary residential parent and awarding Mother 125 days of
co-parenting time. Father agreed to remit child support in
the amount of $437 per month.
September 30, 2013, Father filed another petition to modify,
requesting the court to reduce Mother's co-parenting time
with the Child to 80 days and enter a new child support
order. He alleged that a material change in circumstances had
occurred as evidenced by Mother's failure to exercise her
co-parenting time. He requested attorney's fees and an
order requiring payment of retroactive child support,
calculated from the filing date of the petition.
responded with a petition for contempt for failure to pay
child support for September, October, November, and December
2013 in accordance with the agreed order. Mother filed an
answer to the petition in which she denied his allegations
and claimed that her failure to visit was a result of his
refusal to permit visitation. She requested 148 days of
co-parenting time and an adjustment to the child support
order in light of her additional co-parenting time.
period of extensive and acrimonious litigation followed in
which the Parties filed competing requests for psychological
evaluations and Mother filed a motion for criminal contempt.
Following the resolution of all pending motions, the case
finally proceeded to a hearing on the petition to modify on
June 20, 2016.
agreed with the majority of Father's suggestions for
co-parenting time during holidays and breaks. She requested
additional co-parenting time Sunday night through Friday
morning every other week with one additional weekend per
month when possible. She explained that her employment
required her to work some weekends and that the Child spent
time with friends on the weekends. She also requested the
first right of refusal when Father travels. She conceded that
she had not exercised the entirety of her co-parenting time
in the past but explained that Father scheduled activities
during her time and did not encourage the Child to comply
with the parenting plan. She also chose not to enforce her
co-parenting time on occasion because the Child refused.
also testified concerning her love for the Child and her
desire to maintain a relationship with him. She also claimed
that his attendance at school was lacking and believed that
allowing her co-parenting time during the weekday would
ensure an increase in his attendance.
to child support, Mother testified that her gross income for
2013, 2014, and 2015 was $58, 000. She agreed that Father
generally paid for the ...