Session April 26, 2017
Appeal from the Chancery Court for Dyer County No. 10-CV-195
Tony Childress, Chancellor
filed a petition to change primary residential parent and for
civil and criminal contempt. Because there was no material
change of circumstance that affected the well-being of the
child, we affirm the trial court's dismissal of
Father's petition. We also affirm the trial court's
decision not to find Mother in civil contempt.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded
Edward Eldridge, Knoxville, Tennessee, for the appellant,
Raymond Cass Ballard.
Vanedda Prince Webb, Dyersburg, Tennessee, for the appellee,
Brandon O. Gibson, J., delivered the opinion of the court, in
which Arnold B. Goldin and Kenny Armstrong, J.J., joined.
BRANDON O. GIBSON, JUDGE.
appeal arises out of a petition to change the primary
residential parent and a petition for civil and criminal
contempt. In a prior opinion, we determined that the appeal
of the finding of criminal contempt was untimely. We
previously remanded the matter to the trial court "for
the limited purpose of conducting an evidentiary hearing
regarding the timeliness of this appeal. On remand, the trial
court entered "Findings of Fact, Conclusions of Law and
Order" stating that the Father's notice of appeal
was timely received by the trial court clerk. For
inexplicable reasons, the trial court clerk did not stamp the
notice of appeal as filed on the day it was received by his
office. No additional transcripts were provided to this Court
after our remand. Nonetheless, based on the trial court's
factual finding, albeit apparently without the evidentiary
hearing required by our remand, we have determined that the
notice of appeal with respect to civil contempt and the
petition to modify the parenting plan and parenting schedule
is timely. Therefore, we proceed to address the merits of
Cayabas ("Mother") and Raymond Cass Ballard
("Father") are the parents of a son ("the
Child"), who was born in 2008. At the time of the
parties' divorce in October 2011, Mother was named the
Child's primary residential parent in the permanent
parenting plan. In July 2015, Father filed a petition for
civil contempt, criminal contempt, and modification of the
permanent parenting plan, asking to be named primary
residential parent. The trial court conducted a hearing on
Father's petition on July 20 and 21, 2016.
petition raises a series of factual scenarios, which were
largely undisputed at trial, upon which he relies to seek a
contempt finding against Mother; in addition, Father
maintains that these facts warrant a change in the
Child's primary residential parent from Mother to Father.
First, Mother took the Child to New Mexico, during which trip
the Child was baptized without Father's knowledge or
consent. Second, Mother obtained dental insurance for the
child without consulting with Father and, relatedly,
rescheduled a dental appointment for the Child without
consulting with Father. Third, Mother failed to provide an
itinerary for out of state travel with the Child, as required
by the parenting plan, on at least two occasions. Fourth,
Mother has failed to pay her half of the co-pays associated
with the Child's medical visits on a number of occasions.
With respect to the failure to pay the co-pays, Father sought
a civil contempt finding against Mother, which the trial
court denied. Father also alleged that Mother's failure
to follow the permanent parenting plan was a material change
in circumstance warranting a change in the primary
residential parent. The trial court likewise declined to
modify the parenting plan.
raises the following pertinent issues on appeal:
1. Whether it was in the Child's best interest to change
the primary residential custodian from the ...