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In re Conner F.

Court of Appeals of Tennessee, Knoxville

July 26, 2017

IN RE CONNER F.

          Session April 20, 2017

         Appeal from the Juvenile Court for Hamilton County No. 258891 Robert D. Philyaw, Judge

         This appeal concerns issues of custody and support of a minor child born in Colorado, but now residing in Tennessee. After determining that jurisdiction was proper in Tennessee, the trial court designated the mother, a resident of Tennessee, the primary residential parent and adopted her proposed parenting plan. Child support for the father, a resident of Colorado, was set at $1, 017 per month. An arrearage balance of $23, 428.38 was ordered paid at the rate of $200 per month until paid in full. The father appeals. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; Case Remanded

          Philip M. Jacobs, Cleveland, Tennessee, for the appellant

          Justin F. Jennifer K. Peck, Chattanooga, Tennessee, for the appellee, Amanda Christine K.

          John W. McClarty, J., delivered the opinion of the court, in which Charles D. Susano, Jr., J., and D. Michael Swiney, C.J., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE

         I. BACKGROUND

         The parties met while Amanda Christine K. ("Mother") was residing in Hamilton County, Tennessee and making trips to work at the Ocoee River on the weekends, where Justin F. ("Father") was living and working. The parties moved to Colorado in 2011. They were unmarried at the time of the birth of their child, Conner ("the Child") in November of 2012, and have remained unmarried. According to Father, he was the Child's initial primary caregiver for approximately four months while they lived in Colorado. In March 2013, Mother and Father moved in with the maternal grandmother in Tennessee. Two months later, Father moved to Costa Rica. Mother and the Child resided exclusively in Hamilton County with maternal grandmother until June 2013, at which time they joined Father in Costa Rica.

         Prior to moving to Costa Rica, Father registered his vehicle and a trailer in Tennessee, and after only three months out of the country, Mother and Father returned to Tennessee with the Child. On December 7, 2013, however, Mother and Father mutually agreed to terminate their relationship. Mother and the Child continued living with maternal grandmother until Mother purchased a Hamilton County home in October 2014.

         After the breakup, Mother claims that Father became aggressive and ordered maternal grandmother to unwrap the Christmas presents Father had purchased for the Child so that he could take them with him. According to Mother, Father insisted that if the presents were not unwrapped and returned to him, he would have Mother arrested for theft, take the Child, and be back in Colorado with the Child before Mother could get out of jail. After ultimately leaving for Colorado without the Child, Father did not return to see his son until July 2, 2014. During this period of time, Father made trips to Florida from Colorado, but stated that a side trip to see the Child during a trip to Florida "would be 10 or more hours out of my way."

         Once he returned to Colorado, Father filed a Petition for Allocation of Parental Rights in the District Court of La Plata County, Colorado, which was verified on December 12, 2013. Mother thereafter filed a petition for child custody in Tennessee on January 3, 2014. At the time of her petition, Mother and the Child had been residing in Hamilton County for six of the previous thirteen months, and the majority of the Child's life. Mother was employed in Tennessee and had no plans to leave the state. Father moved to dismiss Mother's petition, but he acknowledged that the Child "had no other state of residence and has lived in no state for 6 or more consecutive months." On March 12, 2014, the Hamilton County Juvenile Court Magistrate ("the Tennessee Magistrate") issued an order stating the necessity for the court to hear proof to determine which court should take jurisdiction over the case.

         On April 11, 2014, the Colorado court issued an order on Mother's Motion to Dismiss Due to Inconvenient Forum, determining that it was appropriate for Tennessee to exercise jurisdiction. The Colorado court relied on its discussion with the Tennessee Magistrate pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA").[1] The Colorado court concluded that "there was no home state" for the Child, that "the [C]hild ha[d] resided in Tennessee for nearly seven months, since returning from Costa Rica, " and that "the [C]hild resided in Colorado for only four months." In addition, the court determined that "[t]he distance between Tennessee and Colorado [was] large and [Father was] more able to bear the cost of traveling between jurisdictions." Further, the court found that "[t]he nature and location of evidence required to resolve the pending litigation weigh[ed] in favor of Tennessee exercising jurisdiction, " that Mother was receiving state assistance from the State of Tennessee, and that Tennessee had the jurisdiction to decide both custody and support issues. The Colorado court applied the factors listed in Colorado Revised Statutes section 14-13-207 to rule that Colorado was an inconvenient forum and that Tennessee could better resolve all matters at issue.[2]

         On April 21, 2014, the Tennessee Magistrate found that there was no home state of the Child and that the concept of "extended home state jurisdiction" did not apply to the facts of this case. The court announced:

After having considered the length of time the [C]hild has resided outside the state of Colorado; the relative financial circumstances of the parties; the distance between the two states; and the fact that this Court is no less familiar with the facts and issues to be considered, this Court is willing to assert jurisdiction in the matter. Further this state has provided financial benefits on behalf of the [C]hild, giving it vested interest in the financial responsibilities of the respective parents.
Having conferred with [the Colorado judge], it is apparent Tennessee is a more convenient forum and the matter will be set for hearing in this Court.

         On July 23, 2014, the Tennessee Magistrate issued an order sustaining Mother's petition for custody and designating Mother the primary residential parent. The court adopted Mother's proposed parenting plan, which provided for Father to visit with the Child in Tennessee. The court noted in its findings and recommendation:

The court has concerns regarding the Father's continued financial stability in that he is unable to obtain a credit card and has had to use the mother's credit cards for his business expenses. However, the Father is in a better position at present to handle the costs of transportation for parenting time. Fairness seems to suggest that the cost of transportation to and from Colorado should form the basis for downward deviation in the Father's child support obligations.

(Emphasis added.)

         Father filed a timely request for rehearing. In text messages to Mother, Father stated, "I will continue taking you to Court over everything until Conner is eighteen." In addition, Father advised Mother that he would request that she be responsible for 50 percent of his travel and lodging and the travel expenses of his witnesses. He further told her that the child support she would receive would be reduced and that "travel and lodging has already added up to you being responsible for at least a couple thousand dollars."

         The juvenile court trial was held March 11, May 22, and August 31, 2015. Regarding the issue of travel expenses, Mother testified to her inability to make trips to Colorado based on her work limitations and her limited financial circumstances. In contrast, Father, when asked what he did for a living, responded: "Very little, fortunately." Father continued: "But for the most part, to be honest with you, I play in my garden and field phone calls." Concerning the travel expenses, Father testified:

A: My perspective was that I -- you know, I have been spending so much money traveling back and forth to see my son that I thought that, you, know, the Court would take what I was spending in travel expenses toward the child support.
Q: How do your travel expenses provide her housing, food, things like ...

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