Session June 7, 2017
from the Circuit Court for Montgomery County No.
MCCCCVDV14-1644 Ross H. Hicks, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
A. Rassas and Julia P. North, Clarksville, Tennessee, for the
appellant, Shawn Patrick Dalrymple.
T. Massey, Clarksville, Tennessee, for the appellee, Sherry
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.
RICHARD H. DINKINS, JUDGE
Factual and Procedural History
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.
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.
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.
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.
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.
Standard of Review
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).
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.
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.
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). 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."
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
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
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 ...