Session Date: April 18, 2017
Appeal
from the Circuit Court for Washington County No. 33126 Jean
A. Stanley, Judge
This
is a post-divorce child custody action involving two
children, who were sixteen and seventeen years of age at the
time of the most recent trial. The parties were divorced by
order of the Sullivan County Law Court ("divorce
court") in July 2001. Concomitant with the divorce
decree, the divorce court entered a permanent parenting plan
designating the father as the primary residential parent.
Although the permanent parenting plan was modified in 2003
and 2007, the divorce court had most recently modified the
permanent parenting plan in February 2009 ("2009
PPP") upon the parties' stipulation that a material
change in circumstance had occurred. The divorce court
maintained the father's designation as the primary
residential parent and awarded to the father 268 days of
annual residential co-parenting time as compared to
Mother's 97 days. At some point following entry of the
2009 PPP, the mother relocated to Texas, and the father and
the children relocated to Washington County, Tennessee. Upon
the mother's request, the case was transferred to the
Washington County Circuit Court ("trial court") in
April 2014. On March 20, 2015, the mother filed a motion in
the trial court to modify custody and child support, as well
as a motion for civil and criminal contempt against the
father, alleging various violations of the 2009 PPP.
Following a hearing regarding the contempt allegations, the
trial court entered an order on June 30, 2015, finding the
father in "technical contempt" and directing him to
pay an expert witness fee as a sanction. Following
participation in mediation, the parties announced an
agreement, which the trial court ratified in a permanent
parenting plan order entered on June 30, 2015 ("2015
PPP"). The 2015 PPP maintained the father's
designation as the primary residential parent and provided
the mother with 85 days of residential co-parenting time, a
great part of which was to be exercised at her residence in
Texas. On October 2, 2015, the mother filed an
"emergency motion" for modification of the 2015
PPP, as well as for criminal and civil contempt against the
father, averring violations of the 2015 PPP. The parties
subsequently filed competing "emergency" motions
concerning physical custody of the younger child, who under
one temporary order entered by the trial court in October
2015, was to reside primarily with the mother. Following a
two-day bench trial in October 2015, the trial court
maintained the prior designation of Father as the primary
residential parent for both children pending further order,
but the court took the custody matter under advisement
pending receipt of a court-ordered assessment of the parties
and the children by a forensic psychologist. Upon receipt of
the psychologist's report, the trial court conducted a
second two-day bench trial in June 2016, ultimately finding
that this was a case of severe parental alienation in which
the father had actively supported the children's
alienation from the mother without reasonable cause. The
court awarded exclusive custody of the children to the mother
and directed that the children participate with the mother in
a workshop in California that had been recommended by the
forensic psychologist as a therapeutic methodology for
parental alienation at an estimated cost of approximately
$28, 000.00. The court directed that the workshop costs,
including a mandatory post-workshop vacation for the mother
and the children, would be substantially paid by the father.
The court further found, inter alia, that the father
was in contempt of court for failing to follow certain
provisions of the 2015 PPP and sentenced the father to eight
days in jail, with the sentence suspended provided no further
violations occurred. Also finding that the mother was
entitled to attorney's fees, the court reduced the $38,
594.99 fee amount requested by the mother to an award of $20,
000.00 to offset the amount paid by the father toward the
workshop. The father has appealed. Having determined that the
father was not provided with sufficient notice of criminal
contempt charges pursuant to Tennessee Rule of Criminal
Procedure 42(b), we vacate the trial court's order
finding the father in contempt. We remand for a determination
of whether the amount of attorney's fees awarded to the
mother was appropriate given our vacation of the contempt
finding against the father. We affirm the trial court's
judgment in all other respects. The mother's request for
attorney's fees on appeal is denied.
Tenn.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated in Part, Affirmed in Part; Case Remanded
Lois
B. Shults-Davis, Erwin, Tennessee, for the appellant, Richard
Perry McClain.
Ronald
D. Tuech, Mountain Home, Tennessee, for the appellee, Ferryl
Theresita McClain.
Thomas
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and J. Steven Stafford, P.J.,
W.S., joined.
OPINION
THOMAS
R. FRIERSON, II, JUDGE
I.
Factual and Procedural Background
The
plaintiff, Ferryl Theresita McClain ("Mother"), and
the defendant, Richard Perry McClain ("Father"),
had two sons born of their marriage: B.M. in August 1998 and
C.M. in June 2000 (collectively, "the Children").
Following entry of the initial permanent parenting plan order
in December 2001, Mother appealed the divorce court's
designation of Father as the primary residential parent to
this Court, which affirmed the divorce court's judgment.
See McClain v. McClain, No. E2002-00913-COA-R3-CV,
2003 WL 1452958 (Tenn. Ct. App. Mar. 21, 2003)
("McClain I"). In McClain I, this
Court set forth the factual history leading to the initial
designation of Father as the primary residential parent as
follows:[1]
Mother was a licensed pharmacist, but she apparently did not
work as such after the birth of the parties' first child.
Mother and Father co-owned a computer information systems
company. The company solicited contracts from large
corporations to integrate their computer systems. Father did
all of the hands-on work for the company, traveling to the
various client sites. Mother assisted with the bookkeeping.
In April, 1999, following an argument between the parties as
to whether Mother should travel to Ohio to see her
brother's newborn baby, Mother withdrew $5, 000 from the
parties' joint bank account, and took eight-month-old
[B.M.] and drove to Ohio, without informing Father. Mother
contends that she and Father were having problems and that
she "needed some time away from him to think."
Mother left on a Friday and returned to Kingsport the
following Monday.
Later that same month, Mother voluntarily admitted herself to
Indian Path Pavilion Hospital, suffering from depression. As
a part of her hospitalization, she sought help in coping with
emotional issues associated with her marriage. She was
evaluated by a psychiatric social worker who later testified
at trial that Mother was not suicidal and that she posed no
risk of harm to herself or to others.
On June 1, 1999, Mother filed for divorce on the ground of
inappropriate marital conduct. A few months later, Mother
learned that she was pregnant with the parties' second
child. In November, 1999, at the parties' request, the
trial court entered an order of reconciliation, which
expressly suspended the divorce proceedings for six months.
The parties' second child, [C.M.], was born the following
June.
In July, 2000, the parties and their children went to
Louisiana. The purpose of the trip was to attempt to
reconcile Mother with her estranged father at a family
reunion. While in Louisiana, the parties had several
disagreements, which resulted in Mother leaving Louisiana
with [C.M.] and flying to Houston to stay with her sister and
brother-in-law. Father returned to Kingsport with [B.M.]. A
week and a half later, Father flew to Houston with [B.M.].
When the parties met in Houston, Mother told Father that she
was taking the children and driving to her sister's house
to spend the night. Mother assured Father that she and the
children would return the next day at 1:00 p.m. Despite this
understanding, Mother changed her mind, after deciding that
she needed some time away from Father. Acting on the advice
of her then-attorney, she withdrew $50, 000 from the
parties' joint bank account, took the children, and drove
to Austin to stay with a friend. Mother did not contact
Father to tell him she was taking this action. While
Mother's sister and brother-in-law knew where Mother was,
they were instructed by Mother not to tell Father.
Three weeks later, Mother returned to Houston with the
children. During the entire three-week time period, Father
had no idea where Mother and the children were. While she was
away, Mother filed a motion to set aside the order of
reconciliation. Father answered the divorce complaint and
filed a counterclaim for divorce, which was also premised
upon the ground of inappropriate marital conduct.
In September, 2000, the trial court held hearings for the
sole purpose of determining a temporary parenting plan. At
the conclusion of the hearings, the court entered an order on
September 18, 2000, in which it named Father the temporary
primary residential parent. The court based its decision on
numerous factors, including Mother's health care
philosophy, the court's concern about Mother's mental
well-being, and its concern about Mother secreting the
children at locations unknown to Father. Mother was granted
visitation with the children every other weekend from 6:00
p.m. on Friday until 7:00 p.m. on Sunday, and on weekdays
from 3:00 p.m. until 7:00 p.m.
A further hearing was conducted by the trial court in July,
2001. On July 31, 2001, the court entered a judgment of
divorce, which granted the parties a divorce on a stipulated
ground and divided the parties' marital property. The
judgment also modified the visitation arrangement to reflect
the fact that the older child was then in daycare. The court
noted that Father remained the primary residential parent of
the children.
In September, 2001, following another hearing, the court
designated Father as the primary residential parent of the
children, granted Mother certain visitation rights, and
adopted Father's proposed parenting plan. The court's
ruling was memorialized by a final order in December, 2001.
Id. at *1-2 (footnote omitted).
In
April 2014, when Wife's former counsel, Judith Fain,
requested that the case file in this matter be transferred
from the divorce court to the trial court, the parties'
co-parenting arrangement was governed by the 2009 PPP, which
had been entered by the divorce court upon the parties'
stipulation that a material change in circumstance had
occurred since entry of a prior modified permanent parenting
plan order in 2007. In the 2009 PPP, the divorce court
designated Father as the primary residential parent of the
Children, providing him with 268 days of residential
co-parenting time as compared to Mother's 97 days and
granting all major decision-making authority to Father. The
residential co-parenting schedule, which did not reference
Mother's subsequent relocation to Texas, provided her
with co-parenting time during the academic year on alternate
weekends and during the summer on alternate weeks. As part of
the 2009 PPP, Mother was ordered to pay $1, 113.00 in monthly
child support, and Father was ordered to maintain health and
dental insurance for the Children, with uncovered expenses to
be split pro rata according to the parties'
respective incomes. The parties agreed through the 2009 PPP
to each maintain $200, 000 in life insurance with the other
party to be named as primary beneficiary in trust for the
benefit of the Children.
On
March 20, 2015, Mother filed in the trial court a
"Motion for Civil Contempt, to Modify Custody, to Modify
Child Support, for Alternative Relief and for Additional
Relief." Mother alleged various violations of court
orders, including that Father had (1) begun denying Mother
her in-person and telephonic co-parenting time in 2011,
culminating in his refusal to allow her co-parenting time in
the summer of 2014 and winter holiday break in 2014-2015; (2)
violated the prohibition in the 2009 PPP against scheduling
appointments for the Children during the other parent's
co-parenting time without the other parent's permission;
(3) violated a December 16, 2013 agreed order to bring the
Children and himself to counseling sessions with Brian Scott,
LPC, on at least two occasions; and (4) alienated the
Children against Mother in violation of the provision in the
2009 PPP that "[t]he mother and father . . . will
encourage each child to continue to love the other parent and
be comfortable in both families." Mother thereby averred
that a material change in circumstance had occurred since
entry of the 2009 PPP and requested that she be designated
the primary residential parent of the Children and that
Father be required to undergo a psychological assessment.
Father
filed an answer and counter-motion on May 11, 2015, also
averring a material change in circumstance since entry of the
2009 PPP. In his answer, Father admitted the existence of the
December 16, 2013 agreed order, apparently entered by the
divorce court, directing the parties to counseling with Mr.
Scott. We note, however, that this agreed order is not in the
record on appeal. In his counter-motion, Father asserted that
the Mother's relocation to Texas, coupled with the
Children's lack of desire to visit with Mother and
allegedly erratic and frightening behavior exhibited by
Mother during the spring of 2014 constituted a material
change in circumstance. Father requested a modification
reducing Mother's annual co-parenting time to 27 days
annually. As to Mother's allegations of contempt, Father
acknowledged that Mother had missed some co-parenting time
with the Children but asserted that Father's actions were
not the cause because the Children had refused to go with
Mother. Father acknowledged that the last time he had met
with Mr. Scott was on March 18, 2014. He stated that he no
longer believed it was in the best interest of the Children
to be under the care of Mr. Scott because during the last
session Mr. Scott refused to address "any of the issues
and trauma that the children had experienced during their
visit with the Mother in Texas during the spring of 2014,
" Father requested that the trial court appoint a
different counselor to provide therapy to the Children.
Following
a hearing conducted on May 21, 2015, regarding Mother's
contempt allegations, the trial court entered an order on
June 30, 2015, finding Father in "technical
contempt" of the 2009 PPP for, inter alia,
influencing the Children to prevent visitation with Mother
during the summer and Christmas vacations in 2014. As
sanctions, the court ordered Father to pay a $600 fee for Mr.
Scott's expert witness testimony and Mother's
attorney's fees related to the contempt petition.
In the
meantime, the parties had successfully participated in
mediation on May 22, 2015, and the trial court ratified the
parties' mediated agreement as the 2015 PPP on June 30,
2015. In the 2015 PPP, the trial court continued Father's
designation as the primary residential parent and provided
Mother with 85 days per year of residential co-parenting
time, including much of the Children's summer vacations
and some holidays. The 2015 PPP also provided that the
Children would continue counseling with Mr. Scott, who was
based in Tennessee, via a video-conferencing software
application, either FaceTime or Skype, during the summer
months and in person when the Children returned to Tennessee.
The parties agreed to abide by Mr. Scott's
recommendations. The court also in the 2015 PPP (1)
designated Father as the major decision-maker, (2) set up a
system whereby Mother could initiate holiday weekend visits
with the Children either in Texas or Tennessee with fourteen
days' notice provided she paid applicable transportation
costs, (3) set forth the parents' agreement that the
Children were old enough to travel by air without
supervision, (4) directed that Father was to maintain health
and dental insurance for the Children with uncovered expenses
to be split equally between the parents, and (5) directed
that the parents maintain respective life insurance policies
on themselves in the minimum amount of $75, 000 each.
On
October 2, 2015, Mother filed an "Emergency Motion for
Custody, to Modify the Parenting Plan, for Criminal and Civil
Contempt, for Alternative Relief and for Additional Relief,
" along with a proposed permanent parenting plan. Mother
attached several exhibits to the emergency motion, including
a report from Mr. Scott, filed under seal, describing
B.M.'s admission to Kingwood Pines
("Kingwood"), a psychiatric hospital in Texas,
during Mother's summer 2015 co-parenting time with the
Children, as well as photocopies of text messages sent
between B.M. and Father and B.M. and his paternal grandmother
during Mother's co-parenting time. Mother had discovered
the text messages on B.M.'s cellular telephone when B.M.
was admitted to Kingwood. A written order entered by the
trial court on October 9, 2015, indicates that the court
conducted a hearing on Mother's emergency motion on
October 5, 2015, with counsel for both parties appearing and
Mr. Scott appearing via telephonic conference.
Following
the hearing, the trial court set a trial date for November
2015 and ruled that in the interim, Mother would be afforded
telephonic co-parenting time twice weekly with the Children
and would exercise her "Fall break" co-parenting
time with C.M. by picking him up on October 5, 2015, and
returning to Texas with him for the duration of the break
from school. The trial court ruled that C.M. could continue
to see Faith Mahoney, LPC, a counselor with Frontier Health
in Johnson City, whom Father had retained. Finally, the court
appointed forensic psychologist, Thomas Schacht, Ph.D., to
conduct "full psychological testing" of the parents
and B.M. and file a report with the court. The court approved
as requested by Dr. Schacht a list of items to which he
needed access to facilitate his evaluation. The court entered
an order memorializing its October 5, 2015 ruling on October
9, 2015.
Also on
October 9, 2015, Mother filed an "Emergency Ex Parte
Motion for Temporary Restraining Order, for the Youngest
Child to Remain in Texas and for Additional Relief, "
alleging that since the trial court's ruling on October
5, 2015, "a substantial and material change of
circumstances [had] occurred warranting the immediate
involvement" of the court to protect C.M. from
"substantial irreparable harm." Mother averred in
the motion that on the day her fall break co-parenting time
was to begin, Father had brought C.M. to the exchange
location, a McDonald's restaurant in Johnson City,
Tennessee, but that C.M. had been unwilling to transfer to
Mother's vehicle because he had been told by Father that
Father could be arrested for allowing his child to cross the
state line if the child did not want to go. According to
Mother, she was not able to leave with C.M. until after she
had made a telephone call to Child Protective Services in
Texas, assuring C.M. that Father would not be arrested, and a
call to the Johnson City Police Department "to
effectuate the child's transition to [Mother's]
vehicle."
Mother
further alleged that less than twenty-four hours after
leaving the McDonald's parking lot with C.M., she
received the following text message from B.M.:
Oh I forgot to block you at least satan still hasn't
blocked you from hell I guess one day I will see both of you
burning below me I hope you enjoy your last vacation with
your favorite child.
Averring
that B.M.'s text message appeared to threaten her safety
and C.M.'s safety, Mother requested, inter alia,
that the trial court enter an ex parte temporary
restraining order prohibiting C.M. from returning to
Father's residence and enjoining Father from coming about
Mother's residence. During trial later in October 2015,
B.M. admitted sending this text message but insisted that by
"both of you, " he had meant Mother and his
maternal grandfather, who had passed away in the year
preceding trial. B.M. acknowledged that the message could
have been interpreted in a way he did not intend.
The
trial court conducted a hearing on October 9, 2015, during
which the court heard testimony presented by Father and
arguments of counsel for both parties with Mother listening
via telephone. Following the hearing, the court ruled that
pending further order, C.M. would remain in Texas with
Mother, who would have primary decision-making authority for
him. The court adjusted child support according to the order
and directed that each parent would be afforded telephonic
contact with the child not residing with him or her. The
court entered an order memorializing this ruling on October
16, 2015.
Meanwhile,
C.M. was admitted to Kingwood while in Mother's care on
October 14, 2015. Upon Father's subsequent emergency
motion to vacate or set aside the October 16, 2015 order, the
trial court, with Chancellor John C. Rambo presiding in the
trial court judge's absence, entered an order on October
23, 2015, directing that if Kingwood were ready to discharge
C.M. before 7:00 a.m. on October 26, 2015, C.M. would be
released to Mother but if after that time, he would be
released to Father. The court further directed that the
parties and the Children would be present for a hearing set
for October 27, 2015, before the trial court judge. Father
had attached to his motion, among other documents, a
statement from Ms. Mahoney, explaining that she had performed
a counseling intake at Father's request on C.M. on
October 1, 2015, at Frontier Health in Johnson City,
Tennessee, and had remained in contact with C.M. while he was
in Texas prior to his hospitalization. Ms. Mahoney's
attached notes indicated that she had called the local
sheriff's department in Texas on October 14, 2015, after
receiving a disturbing telephone call from C.M.
At the
beginning of trial on October 27, 2015, Mother filed an
"Emergency Motion to Modify Defendant's Parenting
Time, for the Youngest Child to Return to Texas, and for
Additional Relief." At the close of two days of
testimony from the parties, B.M., C.M., Mr. Scott, Ms.
Mahoney, and A.Q. (a friend of Mother's), the trial court
took the matter under advisement pending receipt of Dr.
Schacht's report. The court did, however, issue a
memorandum opinion, indicating, inter alia, that
B.M., who would turn eighteen in August 2016, would not be
required to return to Mother's care. The court also
ordered that C.M. would reside with Father but emphasized
that this decision was temporary pending receipt of Dr.
Schacht's report, which was now to include evaluation of
the parties and both Children. The court entered an order
memorializing its memorandum opinion on June 27, 2016. Mother
had subsequently filed a "Motion for Civil
Contempt" on June 17, 2016, alleging, inter
alia, that Father had allowed the Children to block
Mother's attempted communication to their cellular
telephones and had failed to timely inform Mother of
C.M.'s hospitalization for a medical procedure in
February 2016, the Children's academic grades and
attendance records, and B.M.'s academic awards and
corresponding school ceremony.
The
trial court entered an order on March 10, 2016, notifying the
parties that it had received and placed under seal a report
from Dr. Schacht, copies of which were disseminated to the
parties' respective counsel. In his report, Dr. Schacht
concluded that the Children were "alienated from their
mother, not justifiably estranged, and the alienation appears
to be supported by the actions and statements of others,
including at least their father and paternal
grandmother." He noted that his report was based on
review of all materials provided to him, including
"clinical, school, and litigation records, as well as
family documents/photos and various communications (text
messages) as provided by counsel for both parties, " in
addition to interviews with Mother, Father, B.M., C.M., the
Children's teachers, and the principal of the
Children's high school.
Dr. Schacht generally defined parental alienation in his
report as follows:
Divorce inevitably presents a child with the challenge of
navigating a shared relationship between parents who
sometimes continue their conflict even after the divorce.
Children respond differently to this situation depending on
their pre-existing personalities and on the unique and
evolving characteristics and vicissitudes of their particular
families. At various times following a divorce, children may
accept both parents, may align with one parent, may pursue
neutrality and avoid aligning with either parent, may reject
both parents, or may inhabit an unstable interpersonal realm
of shifting parental allegiances.
Alienation and estrangement, as psychological terms of art
that may describe some of these family dynamics, are not
interchangeable or synonymous concepts.
The difference between estrangement and alienation resides in
the presence vs absence of a reasonable objective basis for a
child's severe and persistent rejection and denigration
of a parent. Rejection and denigration of a parent with a
reasonable objective basis is estrangement; rejection and
denigration without such a basis is parental alienation.
Despite incorporation of the word "parental, "
parental alienation is primarily a description of the
psychological condition of [a] child. The term does not
describe the condition or actions of a parent. As set forth
in Bernet et al (2010):
"[T]he essential feature of parental alienation is that
a child . . . allies himself or herself strongly with one
parent (the preferred parent) and rejects a relationship with
the other parent (the alienated parent) without legitimate
justification. The primary behavioral symptom is that the
child refuses or resists contact with a parent, or has
contact with a parent that is characterized either by extreme
withdrawal or gross contempt. The primary mental symptom is
the child's irrational anxiety and/or hostility toward
the rejected parent. This anxiety and/or hostility may have
been brought about by the preferred parent or by other
circumstances . . ."[FN]
The phenomena of parental alienation are well recognized
internationally and, sadly, are frequently alleged or
encountered in custody and visitation litigation. Parental
alienation may occur in the absence of any other mental
condition. The specific term "parental alienation"
does not yet appear as a psychiatric diagnosis in the
official classification of the American Psychiatric
Association, although its features commonly may be subsumed
under one or more other diagnostic categories, such as
Parent-Child Relational Problem, Separation Anxiety Disorder,
and Shared Delusional Disorder (a/k/a folie a deux).
[FN] Bernet, W. et al. (January 15, 2010) Parental
alienation, DSM-V, and ICD-11. Draft report for submission to
the DSM5 Task Force Disorders of Child and Adolescence Work
Group, p. 12.
Following
receipt of Dr. Schacht's report, the trial court
conducted a second bench trial over the course of two days on
June 28 and 29, 2016, hearing testimony from the parties,
B.M., Dr. Schacht, Ms. Mahoney, and a private investigator
who could potentially assist with transporting the Children.
At the close of trial, the court credited Dr. Schacht's
opinion to find that "severe" parental alienation
had occurred. In a memorandum opinion, subsequently
incorporated into a permanent parenting plan order entered on
July 18, 2016 ("2016 PPP"), the trial court
described four options presented by Dr. Schacht: (1) grant
Father exclusive custody of the Children and require no
visitation with Mother (referred to as leaving the status quo
in place); (2) continue Father's designation as primary
residential parent and renew efforts to remedy alienation
against Mother through education, counseling, and parenting
coordination; (3) place the Children in a neutral setting
apart from both parents; or (4) place the Children with
Mother as the primary residential parent and suspend all
contact with Father pending the Children's demonstrated
progress in their relationship with Mother.[2]
In
reviewing the fourth option, the trial court described the
workshop recommended by Dr. Schacht, known as the Family
Bridges Workshop ("Family Bridges"), which could be
made available to Mother and the Children in California. The
court determined that the fourth option, with direction that
Mother and the Children would participate in Family Bridges
or in a treatment plan with a comparable methodology, would
be in the best interest of the Children. In its memorandum
opinion, the court expressly considered the statutory best
interest factors provided in Tennessee Code Annotated §
36-6-106(a) but did find that some factors, such as each
child's relationship with each parent and each
child's expressed preference, were "skewed" by
parental alienation. The court credited Dr. Schacht's
opinion in finding that suicidal ideation expressed by B.M.
and C.M. during their respective 2015 psychiatric
hospitalizations had been "driven mostly to control
outcomes, as opposed to true expressions of the desire to
hurt themselves."
The
trial court in its memorandum opinion found that both parents
were capable of providing for the physical and financial
needs of the Children. Upon finding that Father had the
greater income, the court directed that Father would be
responsible for two-thirds of the cost of Family Bridges and
Mother responsible for the remaining third. Noting that
Mother had been previously diagnosed with bipolar disorder,
the court found that Mother "has recognized the problem,
has been to the doctor, is on medication, is a pharmacist,
has her own home, a full-time job, and her own company."
In contrast, the court noted that text messages presented
during trial indicated that Father had expressed to B.M. a
view that mental illness was a "spiritual problem"
that could only be remedied spiritually. The court further
credited Dr. Schacht's opinion that Father's
influence in this regard posed a potential risk that if the
Children's lives were affected by mental illness in the
future, they would believe the illness to be an indication of
spiritual frailty. We note that during trial, Father
expressed his desire that the Children would receive mental
health treatment in the future if they were in need of such
treatment.
In the
2016 PPP, the trial court designated Mother as the primary
residential parent and sole major decision-maker for the
Children. As to Father's co-parenting time, the court
included in the 2016 PPP the following special provision:
This Court's ruling on June 29, 2016 is hereby fully
incorporated herein. Father shall have no contact with the
minor child/ren for at least 90 days beginning with the
commencement of the Family Bridges Workshop or blended
version of same - as Mother chooses. Father's future
parenting time with the child/ren shall be based upon the
children's compliance with the Family Bridges Workshop
guidelines, and Father['s] compliance with the Court
ordered Family Bridges Workshop guidelines and/or those of
Dr. Joann Murphey if/as applicable, and the rules and
recommendations of Father's aftercare professional - Dr.
Martha Rubenstein (Kingsport, TN). Mother is awarded
immediate custody of both boys with Mother to choose either
a) she and the boys attend a full Family Bridges Workshop
and/or b) a blended version of same via the assistance of Dr.
Joann Murphey in Texas, who will implement Family Bridges
Workshop methodology and develop a treatment plan. For at
least 90 days following the Family Bridges Workshop or the
blended version of same - as Mother chooses, Mother shall
remain at home with the boys and shall not be required to
work.
Mother and Father may exchange email correspondence for
emergency purposes.
Section VI, below, entitled Rights of Parents, is hereby
suspended pending further Order of this Court.
Prior to entry of the 2016 PPP, Mother filed a motion for
reimbursement of attorney's fees, costs, expenses, and
discretionary costs on July 12, 2016.
On
July 20, 2016, Father filed a motion for stay of execution
and a separate motion for interlocutory appeal with the trial
court, as well as a Tennessee Rule of Appellate Procedure 7
motion with this Court for stay of execution pending appeal.
Also on July 20, 2016, the trial court entered separate
orders denying Father's respective motions for stay of
execution and interlocutory appeal, and this Court entered an
order denying the Rule 7 motion.
On July
22, 2016, the trial court entered an "Order on Payment
of Funds for Family Bridges Workshop and Mandatory Post
Family Bridges Workshop Vacation, and Airline Flight to
Houston, Texas for Children, " directing Father to
purchase airline tickets for the Children and to pay into
Mother's counsel's escrow account a total of $29,
000.00 to $31, 000.00 to be utilized by Mother for the Family
Bridges expenses. This total included an estimated $3, 000.00
to $5, 000.00 in expenses for a post-workshop
"vacation" required by Family Bridges as a
component of the program. The trial court's memorandum
opinion indicates that during the close of trial on June 29,
2016, the court had granted Mother's request that her
third of the costs for Family Bridges be deducted from her
pending award of attorney's fees.
Upon a
subsequent motion for stay of enforcement filed by Father,
the trial court entered an order on August 2, 2016, finding
that as of 12:01 a.m. on B.M.'s eighteenth birthday in
August 2016, the trial court's subject matter
jurisdiction over B.M. would end. The court stated that all
orders concerning B.M., except those affecting support,
"especially those concerning physical custody, parenting
time, association with other persons and concerning medical
and other such treatment and compulsory participation in any
educational process, are void and shall have no effect"
as of B.M.'s eighteenth birthday. In separate motions
filed respectively by the parties on August 9, 2016, it was
undisputed that Mother had notified her counsel and Father
that B.M. had been discharged from Family Bridges on August
5, 2016, by the workshop therapists, and Father had arranged
for B.M. to return to Tennessee via airline flight the next
day.
The
parties agreed in their motions that with the return of B.M.
to Father in Tennessee, Father should be named B.M.'s
primary residential parent from that time forward. In her
motion, Mother stated that she and C.M. had successfully
completed the Family Bridges Workshop. She requested that the
order directing Father to have no contact with C.M. apply to
the paternal grandmother and to B.M. now that B.M. was an
adult. The trial court subsequently entered an order on
August 10, 2016, approving the parties' agreement that
Father would once again become the primary residential parent
of B.M. as of B.M.'s eighteenth birthday.
The
trial court entered a supplemental order on August 10, 2016,
directing that a report of the Children's 2015
psychiatric hospitalizations be made to the National Instant
Criminal Background Check system ("NICBC") and that
the Children were to have no access to firearms or other
weapons. In a memorandum opinion entered on August 25, 2016,
the court addressed Mother's motion to alter or amend,
finding that the court did not have jurisdiction to enjoin
the paternal grandmother or B.M. from contact with C.M. The
court further found that although its prior order directing a
report to NICBC was valid and "should have already been
complied with, " B.M. as an emancipated adult, could now
act "on his own accord to access firearms and/or
weapons."
In the
meantime, the trial court entered a separate "Order on
Motions for Civil and Criminal Contempt and Order Granting
Attorney Fees" on August 5, 2016, referencing evidence
presented during the hearing conducted on June 28 and 29,
2016. The court found Father to be in "willful
contempt" for violating the court's orders on four
counts: (1) failing to notify Mother within twenty-four hours
of C.M.'s February 2016 medical hospitalization and
treatment, (2) failing to provide Mother with information
regarding B.M's academic awards and both Children's
academic grades and attendance records, (3) sending
"disparaging and damaging statements" against
Mother to [B.M.] during Mother's co-parenting time in the
summer of 2015, and (4) failing to take the Children to
court-ordered counseling with Mr. Scott. The court sentenced
Father to eight days in jail but suspended the sentence on
the condition that Father commit no additional acts of
contempt.
As to
Mother's request for reimbursement of fees and costs, the
trial court in its August 5, 2016 order awarded to Mother
"[a]ll reasonable and necessary court reporter expenses
for depositions and trials and all expert witness fees of
Thomas Schacht for the entire duration of his presence for
the trial of this matter." The court further found that
Mother was the prevailing party and acted in good faith in
pursuing the motions for contempt and the motion for
modification in custody. Noting that Father previously had
been ordered to pay a substantial amount toward the cost of
Family Bridges, the court found that Father should be
responsible for a portion of Mother's attorney's fees
rather than the full amount requested of $38, 594.99. The
court awarded to Mother $20, 000.00 as a portion of her
attorney's fees.
Father
filed a notice of appeal on September 2, 2016, specifying
that he was appealing "the order of the Trial Court
entered July [18], 2016, [3] which disposed of fewer than all issues
in the cause, the order entered August 5, 2016, and the
multiple orders and Supplemental Order entered August 10,
2016, disposing of further issues which are final orders for
purposes of appeal." We determine that Father's
appeal was timely as to the final judgment entered August 10,
2016, and was inclusive of the prior orders specified in his
notice of appeal.
Following
a hearing upon the parties' competing motions for
designation of the record, the trial court entered an order
on December 16, 2016. The court, inter alia, denied
Mother's motion to exclude any documents filed prior to
the 2015 PPP but directed the parties to mark those documents
as "filing only" because the parties could not know
whether particular filings were considered by the trial
court. The court also directed that certain filings be placed
under seal. Upon motions filed by Mother during the pendency
of this appeal, this Court entered orders directing that the
recording of the parties' oral argument would be excluded
from the Internet and that the complete version of
Mother's responsive brief would be placed under seal.
Upon this Court's direction, Mother subsequently filed a
redacted version of the responsive brief for the public
portion of the case file.
II.
Issues Presented
Father
presents nine issues on appeal, [4] which we have restated as
follows:
1. Whether the trial court erred by modifying the 2015 PPP
without making a threshold finding of a material change in
circumstance.
2. Whether the trial court erred by failing to meaningfully
consider the statutory best interest factors provided in
Tennessee Code Annotated § 36-6-106(a).
3. Whether the trial court erred by omitting an assessment of
the statutory limiting factors on residential co-parenting
time provided in Tennessee Code Annotated § 36-6-406.
4. Whether the trial court erred by prohibiting all contact
between Father and the Children for at least ninety days
pending completion of Family Bridges and Father's
cooperation with an after-care professional.
5. Whether the trial court erred by adopting the option of
transferring custody to Mother over other options outlined by
Dr. Schacht.
6. Whether the trial court erred by ordering the Children and
Mother to participate in Family Bridges at a cost of
approximately $28, 000.00 upon the recommendation of Dr.
Schacht despite Dr. Schacht's acknowledgment that he had
not previously utilized Family Bridges.
7. Whether the trial court erred by ordering Father to pay
the majority of the cost of a post-workshop vacation for the
Children and Mother required by Family Bridges.
8. Whether the trial court erred by (A) finding that Father
was in civil contempt of court and awarding court fees to
Mother as the prevailing party and (B) finding that Father
was in criminal contempt of court despite Mother's
alleged failure to satisfy notice requirements for criminal
contempt.
9. Whether the trial court erred by ordering the
Children's psychiatric hospitalizations reported to the
NICBC.
Mother
presents an additional issue, which we have similarly
restated as follows:
10. Whether Mother should be reimbursed for her reasonable
attorney's fees, costs, and expenses incurred on appeal.
III.
Standard of Review
We
review a non-jury case de novo upon the record, with
a presumption of correctness as to the findings of fact
unless the preponderance of the evidence is otherwise.
See Tenn. R. App. P. 13(d); Bowden v. Ward,
27 S.W.3d 913, 916 (Tenn. 2000). We review questions of law
de novo with no presumption of correctness.
Bowden, 27 S.W.3d at 916 (citing Myint v.
Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)).
The trial court's determinations regarding witness
credibility are entitled to great weight on appeal and shall
not be disturbed absent clear and convincing evidence to the
contrary. See Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).
An
issue regarding the sufficiency of notice provided regarding
criminal contempt allegations presents a question of law,
which we review de novo. See State ex rel.
Farris v. Bryant, No. E2008-02597-COA-R3-CV, 2011 WL
676162, at *5 (Tenn. Ct. App. Feb. 24, 2011). However,
"[a] trial court's use of its contempt power is
within its sound discretion and will be reviewed by an
appellate court under an abuse of discretion standard."
See McLean v. McLean, No. E2008-02796-COA-R3-CV,
2010 WL 2160752, at *3 (Tenn. Ct. App. May 28, 2010) (citing
Outdoor Mgmt., LLC v. Thomas, 249 S.W.3d 368, 377
(Tenn. Ct. App. 2007)).
Likewise,
this Court reviews a trial court's award of
attorney's fees according to an abuse of discretion
standard. See Wright ex rel. Wright v. Wright, 337
S.W.3d 166, 176 (Tenn. 2011); In re Estate of
Greenamyre, 219 S.W.3d 877, 886 (Tenn. Ct. App. 2005)
("[A] trial court will be found to have 'abused its
discretion' only when it applies an incorrect legal
standard, reaches a decision that is illogical, bases its
decision on a clearly erroneous assessment of the evidence,
or employs reasoning that causes an injustice to the
complaining party.") (internal citations omitted).
IV.
Modification of 2015 PPP
In his
first five issues presented on appeal, Father contends that
the trial court erred by modifying the designation of primary
residential parent in the 2015 PPP (1) without making a
specific finding that a material change in circumstance
affecting the Children had occurred, (2) without properly
weighing the statutory best interest factors contained in
Tennessee Code Annotated § 36-6-106(a), (3) without
assessing the statutory limiting factors on residential
co-parenting time provided in Tennessee Code Annotated §
36-6-406, (4) by adopting the most drastic option of
intervention proffered by Dr. Schacht, and (5) by prohibiting
Father to contact the Children for at least ninety days
pending completion of Family Bridges and Father's
cooperation with an after-care professional. We will address
each of Father's issues in turn.
At the
time of a divorce when at least one minor child is involved,
as occurred in this case, the trial court must "make a
custody determination" "on the basis of the best
interest of the child." See Tenn. Code Ann.
§ 36-6-106(a) (Supp. 2016) (delineating factors the
court shall consider when taking into account the child's
best interest). Because Mother in her petition to modify the
permanent parenting plan requested that she be named the
primary residential parent of the Children rather than
Father, this action is considered one for modification of
"custody." See Armbrister v. Armbrister,
414 S.W.3d 685, 703 (Tenn. 2013) (comparing the standard for
an action to modify custody to the standard for an action to
modify solely a residential parenting schedule). In
considering a petition to modify custody from one parent to
the other parent, "the 'threshold issue' is
whether a material change in circumstances has occurred after
the initial custody determination." See Kendrick v.
Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002) (quoting
Blair v. Badenhope, 77 S.W.3d 137');">77 S.W.3d 137, 150 (Tenn.
2002)). Upon a trial court's finding that a material
change in circumstance affecting the children has occurred,
"it must then be determined whether the modification is
in the child[ren]'s best interests."
Kendrick, 90 S.W.3d at 570 (citing Tenn. Code Ann.
§ 36-6-106); see generally Boyer v. Heimermann,
238 S.W.3d 249, 255 (Tenn. Ct. App. 2007) ("In
approaching questions of custody and visitation, the needs of
the children are paramount; the desires of the parents are
secondary.").
Regarding
the standard a petitioning parent must meet to prove a
material change in circumstance sufficient for consideration
of whether custody modification is in the best interest of
the child, Tennessee Code Annotated § 36-6-101(a)(2)(B)
(Supp. 2016) provides in pertinent part:
(B) If the issue before the court is a modification of the
court's prior decree pertaining to custody, the
petitioner must prove by a preponderance of the evidence a
material change in circumstance. A material change of
circumstance does not require a showing of substantial risk
of harm to the child. A material change of circumstance may
include, but is not limited to, failures to adhere to the
parenting plan or an order of custody and visitation or
circumstances that make the parenting plan no longer in the
best interest of the child.
(i) In each contested case, the court shall make such a
finding as to the reason and the facts that constitute the
basis for the custody determination.
See also Armbrister, 414 S.W.3d at 703.
As this Court has explained:
There are no bright line rules for determining when a change
of circumstances should be deemed material enough to warrant
changing an existing custody arrangement. Kendrick v.
Shoemake, 90 S.W.3d at 570; Taylor v. Taylor,
849 S.W.2d [319, ] 327 [(Tenn. 1993)]; Solima v.
Solima, 7 S.W.3d [30, ] 32 [(Tenn. Ct. App. 1998)].
These decisions turn on the unique facts of each case. As a
general matter, however, the following principles illuminate
the inquiry. First, the change of circumstances must involve
either the child's circumstances or a parent's
circumstances that affect the child's well-being.
Kendrick v. Shoemake, 90 S.W.3d at 570. Second, the
changed circumstances must have arisen after the entry of the
custody order sought to be modified. Turner v.
Turner, 776 S.W.2d 88, 90 (Tenn. Ct. App. 1989). Third,
the changed circumstances must not have been reasonably
anticipated when the underlying decree was entered.
Adelsperger v. Adelsperger, 970 S.W.2d [482, ] 485
[(Tenn. Ct. App. 1997)]. Fourth, the change in circumstances
must affect the child's well-being in some material way.
Kendrick v. Shoemake, 90 S.W.3d at 570; Blair v.
Badenhope, 77 S.W.3d [137, ] 150 [(Tenn. 2002)];
Hoalcraft v. Smithson, 19 S.W.3d [822, ] 829 [(Tenn.
Ct. App. 1999)].
The person seeking to change an existing custody arrangement
has the burden of demonstrating both that the child's
circumstances have changed materially and that the best
interests of the child require a change in the existing
custody arrangement. In re Bridges, 63 S.W.3d 346,
348 (Tenn. Ct. App. 2001); Musselman v. Acuff, 826
S.W.2d 920, 922 (Tenn. Ct. App. 1991). The threshold question
is whether there has been a material change in the
child's circumstances. Kendrick v. Shoemake, 90
S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d at 150;
Placencia v. Placencia, 48 S.W.3d 732, 736 (Tenn.
Ct. App. 2000). If the person seeking the change of custody
cannot demonstrate that the child's circumstances have
changed in some material way, the trial court should not
re-examine the comparative fitness of the parents,
Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App.
1999), or engage in a "best interests of the child"
analysis. Rather, in the absence of proof of a material
change in the child's circumstances, the trial court
should simply decline to change custody. Hoalcraft v.
Smithson, 19 S.W.3d at 828.
Oliver v. Oliver, No. M2002-02880-COA-R3-CV, 2004 WL
892536, at *3 (Tenn. Ct. App. Apr. 26, 2004) (footnote
omitted). When making a custody modification determination, a
trial court is required to state "the reasons and the
facts that constitute the basis for the custody
determination." Tenn. Code Ann. §
36-6-101(a)(2)(B)(i); see Tenn. R. Civ. P. 52.01
("In all actions tried upon the facts without a jury,
the court shall find the facts specifically and shall state
separately its conclusions of law and direct the entry of the
appropriate judgment.").[5]
This
Court has previously recognized parental alienation as a
development that may rise to the level of a material change
in circumstance. See Duke v. Duke, No.
M2013-00624-COA-R3-CV, 2014 WL 4966902, at *18 (Tenn. Ct.
App. Oct. 3, 2014) (concluding that "Father's
interference with Mother's relationship with the children
was a material change of circumstance" since entry of
the prior permanent parenting plan in a case involving
modification of a residential co-parenting schedule under
allegations of and an expert witness's testimony
describing parental alienation); Costley v.
Benjamin, No. M2004-00375-COA-R3-CV, 2005 WL 1950114, at
*18-20 (Tenn. Ct. App. Aug. 12, 2005) (reversing the trial
court's modification of custody from the mother to the
father upon determining that the child's stated
preference for the father stemmed in great part from
"the kind of conduct by Father and his family aimed at,
or likely to result in, alienating [the child] from Mother,
including manipulating [the child's] emotions");
Oliver, 2004 WL 892536, at *4 (determining that in a
review of a petition to modify custody, the mother's
conduct alienating the child from the father,
"occurr[ing] after the entry of the order sought to be
modified, " constituted a material change in
circumstance).
When a
trial court finds that a material change in circumstance has
occurred, the court is then required to apply the statutory
"best interest" factors enumerated in Tennessee
Code Annotated § 36-6-106(a) to determine whether a
change in custody is in the best interest of the Children.
See Kendrick, 90 S.W.3d at 570; Cranston v.
Combs, 106 S.W.3d 641, 644 (Tenn. Ct. App. 2003).
Tennessee Code Annotated § 36-6-106(a) provides:
(a) In a suit for annulment, divorce, separate maintenance,
or in any other proceeding requiring the court to make a
custody determination regarding a minor child, the
determination shall be made on the basis of the best interest
of the child. In taking into account the child's best
interest, the court shall order a custody arrangement that
permits both parents to enjoy the maximum participation
possible in the life of the child consistent with the factors
set out in this subsection (a), the location of the
residences of the parents, the child's need for stability
and all other relevant factors. The court shall consider all
relevant factors, including the following, where applicable:
(1) The strength, nature, and stability of the child's
relationship with each parent, including whether one (1)
parent has performed the majority of parenting
responsibilities relating to the daily needs of the child;
(2) Each parent's or caregiver's past and potential
for future performance of parenting responsibilities,
including the willingness and ability of each of the parents
and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and
both of the child's parents, consistent with the best
interest of the child. In determining the willingness of each
of the parents and caregivers to facilitate and encourage a
close and continuing parent-child relationship between the
child and both of the child's parents, the court shall
consider the likelihood of each parent and caregiver to honor
and facilitate court ordered parenting arrangements and
rights, and the court shall further consider any history of
either parent or any caregiver denying parenting time to
either parent in violation of a court order;
(3) Refusal to attend a court ordered parent education
seminar may be considered by the court as a lack of good
faith effort in these proceedings;
(4) The disposition of each parent to provide the child with
food, clothing, medical care, education and other necessary
care;
(5) The degree to which a parent has been the primary
caregiver, defined as the parent who has taken the greater
responsibility for performing parental responsibilities;
(6) The love, affection, and emotional ties existing between
each parent and the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each
parent as it relates to their ability to parent the child.
The court may order an examination of a party under Rule 35
of the Tennessee Rules of Civil Procedure and, if necessary
for the conduct of the proceedings, order the disclosure of
confidential mental health information of a party under
§ 33-3-105(3). The court order required by §
33-3-105(3) must contain a qualified protective order that
limits the dissemination of confidential protected mental
health information to the purpose of the litigation pending
before the court and provides for the return or destruction
of the confidential protected mental health information at
the conclusion of the proceedings;
(9) The child's interaction and interrelationships with
siblings, other relatives and step-relatives, and mentors, as
well as the child's involvement with the child's
physical surroundings, school, or other significant
activities;
(10) The importance of continuity in the child's life and
the length of time the child has lived in a stable,
satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to
the other parent or to any other person. The court shall,
where appropriate, refer any issues of abuse to juvenile
court for further proceedings;
(12) The character and behavior of any other person who
resides in or frequents the home of a parent and such
person's interactions with the child;
(13) The reasonable preference of the child if twelve (12)
years of age or older. The court may hear the preference of a
younger child upon request. The preference of older children
should normally be given greater weight than those of younger
children;
(14) Each parent's employment schedule, and the court may
make accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
Similarly,
for "[a]ny final decree or decree of modification in an
action for absolute divorce, legal separation, annulment, or
separate maintenance involving a minor child, "
Tennessee Code Annotated §36-6-404(a) (2014) provides
that an appropriate permanent parenting plan shall:
(1) Provide for the child's changing needs as the child
grows and matures, in a way that minimizes the need for
further modifications to the permanent parenting plan;
(2) Establish the authority and responsibilities of each
parent with respect to the child, consistent with the
criteria in this part;
(3) Minimize the child's exposure to harmful parental
conflict;
(4) Provide for a process for dispute resolution, before
court action, unless precluded or limited by § 36-6-406;
. . .
(5) Allocate decision-making authority to one (1) or both
parties regarding the child's education, health care,
extracurricular activities, and religious upbringing. The
parties may incorporate an agreement related to the care and
growth of the child in these specified areas, or in other
areas, into their plan, consistent with the criteria in this
part. Regardless of the allocation of decision making in the
parenting plan, the parties may agree that either parent may
make emergency decisions affecting the health or safety of
the child;
(6) Provide that each parent may make the day-to-day
decisions regarding the care of the child while the child is
residing with that parent;
(7) Provide that when mutual decision making is designated
but cannot be achieved, the parties shall make a good-faith
effort to resolve the issue through the appropriate dispute
resolution process, subject to the exception set forth in
subdivision (a)(4)(F);
(8) Require the obligor to report annually on a date certain
to the obligee, and the department of human services or its
contractor in Title IV-D cases, on a form provided by the
court, the obligor's income as defined by the child
support guidelines and related provisions contained in
chapter 5 of this title; and
(9) Specify that if the driver license of a parent is
currently expired, canceled, suspended or revoked or if the
parent does not possess a valid driver license for any other
reason, the parent shall make acceptable transportation
arrangements as may be necessary to protect and ensure the
health, safety and welfare of the child when such child is in
the custody of such parent.
Tennessee Code Annotated § 36-6-404(b) (2014) further
provides:
(b) Any permanent parenting plan shall include a residential
schedule as defined in § 36-6-402. The court shall make
residential provisions for each child, consistent with the
child's developmental level and the family's social
and economic circumstances, which encourage each parent to
maintain a loving, stable, and nurturing relationship with
the child. The child's residential schedule shall be
consistent with this part. If the limitations of §
36-6-406 are not dispositive of the child's residential
schedule, the court shall consider the factors found in
§ 36-6-106(a)(1)-(15).
In
addition, Tennessee Code Annotated § 36-6-406(d),
referenced in subsections -106(a)-(b) above for its potential
...