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McClain v. McClain

Court of Appeals of Tennessee, Knoxville

September 21, 2017

FERRYL THERESITA McCLAIN
v.
RICHARD PERRY McCLAIN

          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 ...


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