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Hensley v. Hensley

Court of Appeals of Tennessee, Knoxville

November 15, 2017


          Session October 19, 2017

         Appeal from the General Sessions Court for Campbell County No. 15138 Amanda H. Sammons, Judge

         In this post-divorce parenting dispute, the mother appeals the trial court's judgment modifying the residential co-parenting schedule and reducing the number of co-parenting days allotted to the mother from that provided in the prior permanent parenting plan. Having determined that the order appealed fails to resolve the issue of a corresponding modification in child support, we conclude that it is not a final order. Accordingly, we dismiss the appeal for lack of subject matter jurisdiction.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

          Terry M. Basista, Jacksboro, Tennessee, for the appellant, Shellie Nicole Bouma Hensley.

          Robert R. Asbury, Jacksboro, Tennessee, for the appellee, Michael Joseph Crews Hensley.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.



         I. Factual and Procedural Background

         The original plaintiff, Michael Joseph Crews Hensley ("Father"), and the original defendant, Shellie Nicole Bouma Hensley ("Mother"), were divorced by order of the Campbell County General Sessions Court ("trial court") on September 16, 2009. The court approved the parties' partial settlement as to property distribution but conducted a bench trial to address co-parenting issues concerning the parties' twin children, a boy and a girl ("collectively, the Children"), who were three years old at the time of the divorce judgment. In a subsequent permanent parenting plan order entered June 2, 2010 ("June 2010 PPP"), the court designated Mother as the primary residential parent with all major decision-making ability, granting her 215 days of annual co-parenting time as compared to 150 days of annual co-parenting time to be enjoyed by Father.

         At the time of the June 2010 PPP's entry, Father resided in Campbell County, Tennessee, and Mother had relocated to Albuquerque, New Mexico. Pursuant to the June 2010 PPP, the Children relocated to New Mexico to reside the majority of the time with Mother, but Father was allowed to exercise his co-parenting time with the Children in Tennessee. Mother was at that time and is currently employed as a licensed pharmacist. The 2010 PPP provided that Mother would pay $358.00 per month to Father in child support despite her designation as the primary residential parent. The June 2010 PPP indicated that Mother's gross monthly income was $9, 833.33 while Father's gross monthly income was $2, 080.00.

         Upon Father's subsequent petition to modify the permanent parenting plan, an affidavit indicating Mother's consent, and an announced agreement of the parties, the trial court entered an agreed permanent parenting plan order on December 15, 2010 ("December 2010 PPP"). The court found that a material change in circumstance had occurred and that it was in the best interest of the Children to designate Father as the primary residential parent. Pursuant to the parties' agreement, the court inverted the number of annual co-parenting days originally enjoyed by each parent, with Father then having 215 days per year as compared to Mother's 150 days, and granted to Father all major decision-making authority.

         Although the December 2010 PPP provided some specific co-parenting time to Mother to be exercised in New Mexico, it did not account for the full 150 days in this way. The plan included a special provision stating that Mother could visit the Children in Tennessee upon "reasonable notice" to Father, provided that her visits did not interfere with the Children's school schedule. As to child support, the December 2010 PPP indicated that Mother's gross monthly income was $6, 686.00 while Father's gross monthly income was $1, 368.00. Mother's child support obligation was set at $882.00 per month.

         On November 25, 2013, Mother filed a petition for emergency custody, alleging, inter alia, that the Children were dependent and neglected due to purported environmental hazards in Father's home. The trial court entered an ex parte order granting Mother temporary custody on November 27, 2013. Following a hearing, the trial court approved a subsequent agreement of the parties in an order entered December 20, 2013. Pursuant to this order, the Children were returned to Father's primary custody under the December 2010 PPP, and an order of reference was made for Father's home environment to be inspected. The court further directed that if no new allegations were brought as to Mother's emergency petition by March 25, 2014, the petition would be dismissed. Although the court's subsequent order dismissing the emergency petition is not included in the record on appeal, Mother does not dispute Father's explanation that such an order was entered on April 3, 2014.

         Upon subsequent motions filed by Mother in 2014, the trial court entered orders clarifying provisions of the December 2010 PPP as to payment of the Children's travel expenses, the ability of the Children to travel via airplane unaccompanied, and winter break co-parenting time. Although Mother's November 2013 petition had been dismissed, in November 2014, Mother filed, inter alia, a motion to amend her November 2013 petition, again alleging a material change in circumstance. As noted by the trial court in an order entered January 16, 2015, Mother subsequently voluntarily withdrew her motion to amend the November 2013 petition.

         On February 13, 2015, Mother commenced the instant action by filing a petition to modify the December 2010 PPP. She asserted that a substantial and material change in circumstance had occurred since entry of the 2010 PPP, averring, inter alia, that the Children's living conditions with Father were unsatisfactory and that Father had failed to "supervise" the Children sufficiently to prevent the parties' daughter from breaking her arm when she fell from a bunk bed. Mother also alleged that Father had failed to cooperate with the trial court's clarifying order that the Children could travel by air unsupervised and with a provision of the December 2010 PPP that Father was to pay for the Children's travel to New Mexico during the scheduled co-parenting time with Mother. Mother requested that she be designated the primary residential parent. Father filed an answer to Mother's petition, denying all substantive allegations.

         Mother filed an amended petition on September 4, 2015. In her amended petition, Mother stated, inter alia, that she was willing to continue paying the $882.00 per month in child support she was currently paying so that Father could more easily afford to visit the Children in New Mexico if she were the primary residential parent. In his response to the amended petition, Father averred that Mother was improperly attempting to exchange child support payments for parenting time with the Children. Mother subsequently filed a motion on November 13, 2015, to establish Thanksgiving visitation.

         The trial court conducted a bench trial over the course of three days on November 20, 2015; June 3, 2016; and August 5, 2016. Following the second day of hearings, the court entered an order on June 6, 2016, appointing attorney Amanda McCulloch as a guardian ad litem. The court also directed that the Children were to be present for the next hearing date. The Children subsequently testified in chambers on the final hearing date. Although no record of the Children's testimony was made, Mother acknowledges that the Children expressed their desire that Father remain their primary residential parent.

         In an order entered January 24, 2017, the trial court found that a material change in circumstance had occurred since entry of the December 2010 PPP, thereby necessitating a change in the residential co-parenting schedule. As to the material change, the court specifically found that Mother and Father had each respectively remarried and relocated.[1] The court concomitantly entered a permanent parenting plan order ("2017 PPP"), modifying the residential co-parenting schedule to reduce the number of ...

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