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Kennedy v. Kennedy

Court of Appeals of Tennessee, Nashville

June 23, 2017

PHILLIP NEAL KENNEDY
v.
JANE KENNEDY

          Assigned on Briefs February 2, 2017

         Appeal from the Chancery Court for Williamson County No. 39530 Michael W. Binkley, Chancellor

         This 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.

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

          Radford H. Dimmick, Nashville, Tennessee, for the appellant, Jane Kennedy.

          Nick Shelton, Franklin, Tennessee, for the appellee, Phillip Neal Kennedy.

          John W. McClarty, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J. and Brandon O. Gibson, J., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE

         I. BACKGROUND

         Jane 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 co-parenting time.

          On 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.

         On September 30, 2013, Father filed another petition to modify, requesting the court to reduce Mother's co-parenting time with the Child[1] 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.

         Mother 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.[2] 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.

         A 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.

         Mother 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.

         Mother 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.

         Relative 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 ...


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