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In re Emmett D.

Court of Appeals of Tennessee, Nashville

July 7, 2017


          Assigned on Briefs March 1, 2017

         Appeal from the Juvenile Court for Maury County No. 11-JV-333 George L. Lovell, Judge

         This appeal involves competing petitions to modify a residential parenting schedule in a permanent parenting plan. The child's mother sought changes to the day-to-day schedule, a modification of the existing child support order, and to be named sole decision-maker. The child's father sought additional parenting time. Following a trial, the juvenile court modified the residential schedule, granting the father more parenting time. The court also ordered the father to pay his portion of the child's preschool tuition, but the court denied the mother's requests for sole decision-making authority and for attorney's fees. Upon review of the record and the juvenile court's findings concerning the father, we conclude that the court erred in adopting the modified residential schedule. We, therefore, vacate and remand for further proceedings on this issue. We affirm in all other respects.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part; Vacated in Part, and Remanded

          Neil Campbell and William P. Holloway, Franklin, Tennessee, for the appellant, Lydia D.

          No brief filed on behalf of the appellee, Christopher W.

          W. Neal McBrayer, J., delivered the opinion of the court, in which John W. McClarty and Arnold B. Goldin, JJ., joined.




         In September 2011, after establishing paternity, the Juvenile Court for Maury County, Tennessee, entered a permanent parenting plan for Emmett, the one-year old son of Lydia D. ("Mother") and Christopher W. ("Father"). The plan named Mother the primary residential parent and granted her 235 days of parenting time per year. Father received 130 days per year. Pertinent to this appeal, the plan also provided for joint decision-making on major decisions involving Emmett.

         The permanent parenting plan remained largely unchanged until 2014.[1] In the first month of that year, the court entered an agreed order providing that Emmett "shall begin attending daycare at [a private preschool] as a full-time student beginning January 15, 2014." The agreed order also provided that the cost of the private preschool would be shared by the parties.

         Later, after the child began attending the private preschool, Mother filed a petition to modify the permanent parenting plan and to modify the existing child support order. The petition alleged that Father frequently failed to exercise his allotted parenting time and habitually either dropped the child off late for preschool or picked him up early. The petition also alleged that Father failed to comply with court orders regarding child support and that there was a significant variance between what Father was paying in child support and the Tennessee Child Support Guidelines. The petition requested a modification of the parenting plan and child support.

         Under Mother's proposed modified parenting plan, Father would exercise parenting time every-other weekend. Including the schedule for holidays and other school free days, under Mother's proposal, Father's parenting time would be reduced to a total of 100 days per year.[2]

         In response, Father filed a counter-petition to modify the parenting plan. Father's counter-petition sought additional parenting time. The counter-petition alleged, among other things, that a modification was justified due to Emmett becoming older, his attendance at preschool conflicting with Father's time, and Mother's alleged efforts to alienate father and son. Father's proposed modified parenting plan would grant the parties equal parenting time, with Mother remaining the primary residential parent.


         The court held a trial on the competing petitions on December 15, 2015. Only Father and Mother testified, with Father being called as Mother's first witness. At first, the questions to Father focused on the allegations in Mother's petition. Father admitted that he had missed a significant amount of the parenting time available to him since the entry of the permanent parenting plan. Specifically, he failed to exercise his two weeks of uninterrupted parenting time in the summers for each of the four years the plan had been in place. He further admitted to missing several additional days each year and, on other occasions, requesting that Mother pick the child up early on his days with the child. According to Father, he failed to exercise his allotted parenting time due to his work schedule.

         Concerning his payment of child support, Father claimed that he always paid but admitted that he rarely, if ever, paid on time. He testified, "I pay it when I have it, " or whenever he was ready to do so. This regularly occurred after all of his other bills were paid. Father admitted to staying at least a month behind on his child support payments, despite evidence that he had sufficient funds to pay. Father also stated that, in the past, he had bought his pets-an iguana and a cat-food before meeting his child support obligation. He agreed that he chose to pay late because he knew Mother's family would take care of the child.

         Regarding Emmett's school, Father agreed that he and Mother had decided to enroll Emmett as a full-time preschool student in 2014 due to their understanding that he was behind in reading. Although Father also agreed to share the cost of Emmett's school, he testified that he had never helped Mother pay tuition. Additionally, despite understanding the importance of Emmett's attendance to prepare for kindergarten, Father testified that he frequently either dropped the child off late or picked him up early from school. He admitted to doing so at least 56 times in 2014. He also testified that he had picked the child up as early as 9:19 a.m. on a couple of occasions. Father explained that, after talking to Emmett's teacher, he understood that the child was not missing any important educational opportunities. Father further explained that he often picked Emmett up from school early in order to spend more time with the child.

         Next, Father admitted to allowing Emmett to watch movies rated PG-13 when the child was as young as three years old. Since then, Father had witnessed the child using inappropriate language. The child had also demonstrated aggression and other behavioral issues at school.

         As for his health, Father testified that, prior to Emmett's birth, he had voluntarily completed treatment for alcohol abuse. Even so, Father stated that he continued to drink alcohol, including during his parenting time. He reasoned that alcohol was no longer an issue for him and that he believed he had cured himself of alcoholism. He could not recall if he had consumed alcohol to the point of intoxication since the entry of the parenting plan.

         Father also believed that he had cured himself of depression and anxiety, for which he had previously been diagnosed. He testified that, upon his diagnoses, counseling and medication were recommended to him. Although he attended counseling and took his medications for a time, Father no longer felt that they were necessary due to his new diet and exercise routine.

         Finally, Father addressed Mother's alleged difficulties co-parenting with him. One particular incident involved a request Mother made to swap visitation days because her grandfather had died. Mother sent Father an email requesting to take Emmett with her to the memorial service on a Wednesday in Arkansas. Father responded by stating that Wednesdays were his days with the child and that Emmett would need to stay with him. Father threatened to call the police if Mother was not at the pickup location on that day. According to Father, Mother had been similarly inflexible.

         Additionally, Father admitted that he, at times, made it difficult for Mother to communicate with him. He often failed to reply to communications in a timely manner, and he stated that he did not feel that a response to all of Mother's emails was warranted.

         Mother testified concerning her reasoning for proposing a new residential schedule. Mother's hope was to provide more stability for Emmett in adjusting the day-to-day schedule, not to take parenting time away from Father. She explained that, under the schedule in place at the time of trial, Emmett transferred from one parent's home to the other too frequently. According to Mother, the frequent swaps were disruptive and tiring for Emmett and seemed to affect his behavior.

         Mother also expressed her concerns with Father's parenting, specifically those related to the child's schooling. She testified that she and Father made the decision to enroll Emmett in preschool on a full-time basis due to their concerns that he was not adequately prepared for kindergarten. Despite their previous agreement on this issue, Father continuously dropped the child off late and picked him up early from school, causing Emmett to miss school activities that Mother felt were important for him to attend.

         Mother further testified that, on more than one occasion, Father took Emmett to school in pajamas and without clothes to change into. She claimed that, when she picked him up in the afternoon, the child was very upset and crying because he did not have clothes for the day. Consequently, Mother began packing a spare set of clothes to keep in the child's backpack.

         Mother complained that Father failed to administer Emmett's medication for eczema or to even pick up the child's other medications from the pharmacy. Additionally, Mother claimed she knew Father allowed the child to watch inappropriate movies because, upon Emmett's return from Father's home, Emmett would behave aggressively and have nightmares. Mother testified that the child's nightmares and aggression along with other concerning behaviors, including the use of ...

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