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Dalrymple v. Dalrymple

Court of Appeals of Tennessee, Nashville

November 14, 2017

SHERRY LYNN DALRYMPLE
v.
SHAWN PATRICK DALRYMPLE

          Session June 7, 2017

         Appeal from the Circuit Court for Montgomery County No. MCCCCVDV14-1644 Ross H. Hicks, Judge

         In this post-divorce litigation, Father, who had been designated primary residential parent of the parties' two children, filed a petition to modify the parenting plan, citing his military reassignment from Fort Campbell, Tennessee, to Huntsville, Alabama. Mother filed a counter petition, seeking to be named the primary residential parent. The parties reached agreement as to the parenting schedule but could not agree on which of them would be the primary residential parent. The trial court held a hearing and determined that it was in the children's best interest for Mother to be named the primary residential parent. Father appeals. Discerning no reversible error, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellant, Shawn Patrick Dalrymple.

          Sharon T. Massey, Clarksville, Tennessee, for the appellee, Sherry Lynn Dalrymple.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P. J., M. S., and Andy D. Bennett, J., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural History

         Sherry Dalrymple ("Mother") and Shawn Dalrymple ("Father") are the parents of two minor children, James and Ethan, who were ages 10 and 8, respectively, at the time this proceeding was initiated. Mother and Father were divorced in Montgomery County Circuit Court on February 5, 2015. The divorce decree incorporated an agreed parenting plan, naming Father primary residential parent and giving the parties equal parenting time, with each parent having the children for a week at a time.

         Father filed a Petition to Modify Parenting Plan on March 31, 2016, asserting that he was being reassigned from Fort Campbell to Huntsville, Alabama, and that his reassignment constituted a material change of circumstances justifying modification of the parenting plan; with his petition, he filed a proposed parenting plan that continued his designation as primary residential parent and gave him 265 days of parenting time and Mother 100 days, to be exercised every other weekend. Mother answered, denying the salient allegations of the petition; she included a counter-petition in which she sought to hold Father in contempt, to have the court determine that certain of Father's conduct constituted a material change of circumstance, and to modify the plan to designate her as primary residential parent.[1]

         In mediation, the parties were able to agree on the residential parenting schedule for the parent who was not the primary residential parent; they were not able to resolve the question of which parent would be designated the primary residential parent. A hearing on this issue was held on July 11 and 26, 2016. At the hearing, in addition to himself, Father called the following witnesses: Billy Gene Bowie, Ph.D., a licensed psychologist who conducted family therapy prior to the divorce and also individual therapy for one of the children; Daryl Dalrymple, paternal grandfather; Matthew Tucker, Father's brother in law; Betty Berryhill, paternal grandmother; and Holly Mills, maternal grandmother. In addition to herself, Mother called the following witnesses to testify: Christen Edwards, a friend of Mother's; Andrea Nance, Mother's sister; and Daniel Otero, characterized by Mother's attorney as Mother's "significant other." Twenty-one exhibits were entered into evidence. At the conclusion of the hearing, the parties were directed to file proposed findings of fact and conclusions of law, which both did.

         On August 26, 2016, the court entered a Memorandum Opinion and Order, making findings as to the factors at Tennessee Code Annotated section 36-1-106(a); the court designated Mother as primary residential parent, determined that the children should remain in Tennessee with Mother, and awarded Mother 265 days of residential parenting time. Pursuant to the agreement reached in mediation, the court awarded Father 100 days of residential parenting time to be exercised every other weekend, and ordered him to pay child support. At the court's instruction, Mother submitted a revised modified parenting plan with child support worksheets, and on September 30, 2016, the court entered an order setting Father's support obligation at $1, 572 per month; the court also dismissed the contempt petition.[2]

         Father appeals, contending that the findings in the August 26 Order are not supported by the record and asking that we reverse the trial court's decision, name him primary residential parent, and permit him to relocate with the children.

         II. Standard of Review

         This case was tried by the trial court sitting without a jury, so we review the factual findings de novo with a presumption of correctness unless the preponderance of the evidence is otherwise. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Tenn. R. App. P. 13(d)). To preponderate against a trial court's finding of fact, the evidence has to support another finding of fact with greater convincing effect. Watson, 196 S.W.3d at 701 (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). We review the court's legal conclusions de novo with no presumption of correctness. Watson, 196 S.W.3d at 701 (citing Campbell, 919 S.W.2d at 35).

         III. Discussion

         Even though the current litigation was precipitated by Father's relocation to Huntsville, Alabama, he initiated the proceeding by filing a petition governed by Tennessee Code Annotated section 36-6-101(a)(2)(C) seeking to modify the residential parenting schedule; this statute requires that he prove by a preponderance of the evidence that a material change of circumstance affecting the children's best interests has occurred. When a change in designation of the primary residential parent is sought pursuant to section 36-6-101(a)(2)(B), as pursued by Mother, this court has interpreted the statute to additionally require that the petitioner prove that the change in circumstance be "significant" before it will be considered material. In re T.C.D., 261 S.W.3d 734, 744 (Tenn. Ct. App. 2007). Under either procedure, once the petitioner has proven a material change of circumstance, the court is to make a determination as to whether a modification is warranted based on the best interest of the children, applying the factors at section 36-6-106(a). The parties do not dispute that a material change of circumstance has occurred warranting a modification of the parenting plan; the issues before us concern the trial court's findings as to the children's best interest.[3]

         We first address Father's complaint, based on being required to file his proposed findings of fact and conclusions of law first, that the court "designat[ed] . . . Father as the party bearing the burden of proof"; he contends that this indicated that the ultimate decision was "tainted" and that the court erred as a matter of law. This argument is without merit. Father initiated the proceeding by filing a petition to modify the parenting plan and, consequently, bore the burden of proof with respect to the matters inherent therein, including the best interest of the children, which was the only issue remaining at trial. Trial courts have the inherent authority to control their dockets and the proceedings before them, and reviewing courts will not second-guess a trial court's exercise of that authority unless it has acted unreasonably, arbitrarily, or unconscionably. Hessmer v. Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App. 2003); Hodges v. Attorney General, 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000). The requirement that Father submit his findings and conclusions first was a discretionary matter, and we find no abuse of discretion in that regard.

         Father argues that the evidence preponderates against the court's findings of fact relative to the factors at Tennessee Code Annotated section 36-6-106(a).[4] Father contends generally that the court "arbitrarily adopted the findings and conclusions submitted by the Mother" and states in his brief at multiple points that the court adopted Mother's proposed findings "verbatim."

         With respect to party-prepared findings of fact, the Tennessee Supreme Court has held:

[M]ost courts have approved, but not recommended, the practice of trial courts receiving and using party-prepared findings of fact, conclusions of law, and orders as long as two conditions are satisfied. First, the findings and conclusions must accurately reflect the decision of the trial court. Second, the record must not create doubt that the decision represents the trial court's own deliberations and decision. Accordingly, reviewing courts have declined to accept findings, conclusions, or orders when the record provides no insight into the trial court's decision-making process or when the record "casts doubt" on whether the trial court "conducted its own independent review, or that the opinion is the product of its own judgment[.]"
There are, to be sure, acceptable reasons for permitting trial courts to request the preparation of proposed findings of fact, conclusions of law, and orders. They can promote the expeditious disposition of cases, and they may, when used properly, assist the trial court in placing the litigants' factual and legal disputes in sharper focus. In the final analysis, the ultimate concern is the fairness and independence of the trial court's judgment.

Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 315-16 (Tenn. 2014) (internal citations and footnote omitted).

         The court did not rule from the bench, but took the matter under advisement and required to the parties to submit proposed findings and conclusions. While the court adopted the format of Mother's findings, the court made many edits to them and incorporated some of Father's proposed findings in the court's findings. As more fully explained hereinafter, the findings were supported by the evidence. We have reviewed each party's proposed findings and the court's order and do not find any evidence that leads us to doubt that the findings are the result of the court's own independent review and the product of the court's own judgment.

         In the portion of the Memorandum Opinion and Order entitled "Findings of Facts" the court made three general findings, labeled "A, " "B, " and "C, " and a fourth finding, "D, " which contained the court's determination relative to each factor at Tennessee ...


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