Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gensmer v. Gensmer

Court of Appeals of Tennessee, Jackson

November 30, 2017

CITRINALOUISE GENSMER
v.
LUKE AUGUST GENSMER

          Session September 20, 2017

         Appeal from the Chancery Court for Henry County No. 21044 Carma Dennis McGee, Chancellor.

         The divorced mother and father of a nine year-old child were sharing residential time equally when the mother notified the father of her intent to relocate to Gulfport, Mississippi, eight to nine hours away. The father opposed the relocation and asked the court to designate him as the primary residential parent. After determining that the parties spent substantially equal intervals of time with the child during the twelve months immediately preceding the trial, the court conducted a best interest analysis to determine whether it was in the child's best interest to relocate with the mother. Concluding that it was not in the child's best interest to relocate, the court designated the father as the primary residential parent and entered a new parenting plan in which the mother was awarded sixty-four days per year of residential time with the child. The mother appealed several aspects of the trial court's decision, and we affirm the judgment in all respects.

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

          Shon DeBrock Johnson, Jasmine Monique McMackins, and Ethan Daniel Lavelle, Paris, Tennessee, for the appellant, Citrina Louise Gensmer.

          Teresa McCaig Marshall, Paris, Tennessee, for the appellee, Luke August Gensmer.

          Andy D. Bennett, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         I. Factual and Procedural Background

         This is a post-divorce case in which Citrina Louise Gensmer ("Mother") sought to relocate to Gulfport, Mississippi with the parties' child ("the Child") a little over four years following the parties' divorce. Luke August Gensmer ("Father") opposed the relocation and filed a petition to modify the permanent parenting plan in place since the parties' divorce in 2009. Father sought to change the primary residential parent from Mother to himself, asserting that a change of material circumstances warranted such a change.

         The trial court held a two-day hearing on June 10 and 11, 2015, during which Mother, Father, and several other witnesses testified. Recognizing that the relocation statute applies differently to situations in which parents spend substantially equal time with their child(ren) as provided in Tenn. Code Ann. § 36-6-108(c), than to situations in which the parents do not spend substantially equal time with their child(ren) as provided in Tenn. Code Ann. § 36-6-108(d), the court bifurcated the hearing to determine, first, which section of the relocation statute should be applied to this case.

         Mother, Father, and Father's former girlfriend testified regarding the parties' time spent with the Child. In addition, Father introduced a calendar for the months August 2014 through May 2015 on which he marked the days the Child spent with each parent. Mother stated that she also had a calendar on which she had marked the days the Child spent with each parent, but she did not present the calendar as evidence at the trial. Mother disputed Father's calendar to the extent that it showed the Child was with Father on May 22[1] and regarding a few other days when Mother testified that Father did not pick the Child up from Mother's house until 5:00 or 6:00 in the evening. Other than those discrepancies, Mother testified that Father's calendar was correct. Mother testified that she spent 57% of the twelve-month period preceding the trial with the Child and that Father spent 43% of that time with the Child.

         The trial court concluded that the parties spent substantially equal intervals of time with the Child and that Tenn. Code Ann. § 36-6-108(c) would apply to determine whether Mother would be permitted to relocate with the Child. The court announced its decision in open court following the first part of the trial. It stated, in relevant part:

In January 2014, the mother sent notice of her intended relocation or notified father of her intended relocation. From January 13 to March 13, 2014, the father was in Fort Bragg, North Carolina, for training and was deployed for approximately two months during the summer of 2014. In 2015, the father has been to a five-day training in January. During this time, the mother testified that she did not keep exact records of the father's schedule with the child, but that the parties cooperated for the father to have the child as much as possible. Upon return from deployment in August '14, the father has kept a calendar since that time of the days that the child has spent with each parent. That has been admitted into evidence as Exhibit 1.
The dates reflected on that are undisputed by the mother with the exception of May 22, 2015, and two other dates which she alleges were split by the parties. The mother does not have a record that she has kept of those dates. She stated that she had a calendar, but she did not have that with her today. However, she estimated the time that she had spent with the child since August 2014 to be 57 percent of the total time. Additionally, the father's former longtime girlfriend, Magen Washburn, testified that she was familiar with the schedule that the child had spent with the parties and she testified that she agreed that there had been basically an equal split since the day of move to Paris in 2012 with the exception of this period of deployment or training after that time.
. . . .
The Court finds that the relevant time period in this matter that the Court examined in looking at whether the parties had spent substantially equal intervals of time with the child should be that of one year prior to today's hearing. The Court notes specifically that this matter regarding relocation commenced in January of 2014. We are approximately 18 months after that date for today's hearing. The Court is unaware of the reasons for the delay in the time period, but the Court must consider the situation that the child is in now and the situation that the child has been accustomed to for the past 12 months. The Court is not stating that anyone bears the fault for this matter having not been heard more quickly. As I said, the Court is unaware why this matter has not come up for a final hearing any earlier than it has. The Court is making the relevance in the last 12 months or the relevant time period.
The Court finds, based upon the evidence presented, that the parents have spent substantially equal intervals of time with the child during the past year. Again, as stated earlier, the statute is not looking for exactly equal. It is substantially equal intervals of time that is stated in the statute. Therefore, this case would fall under TCA § 36-6-108(c), which states: "If the parents are actually spending substantially equal intervals of time with the child and the relocating parent seeks to move with the child" -- and skipping down to the pertinent parts - "the Court shall determine whether or not to permit relocation of the child based upon the best interest of the child. The Court shall consider all relevant factors, including those factors found in TCA § 36-6-106(a), 1-15."

         The best interest factors enumerated in Tenn. Code Ann. § 36-6-106(a) include the following:

(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. . . .
(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.

         The trial court made findings of fact with respect to each enumerated factor, which we will address in more detail below, and determined that it was not in the Child's best interest to relocate to Gulfport. The trial court then addressed Father's motion to change the primary residential parent from Mother to him. The court first determined that Mother's relocation to Gulfport, which was an eight to nine hour drive from her former residence in Henry County, constituted a material change of circumstances for purposes of Tenn. Code Ann. § 36-6-101(a)(2)(B), the statute addressing the modification of a parenting plan for purposes of changing the primary residential parent. The court then addressed again the fifteen factors discussed above and determined that a change in the primary residential parent was in the Child's best interest in light of the fact that Mother had already relocated to Gulfport with her current husband and younger child of that marriage.

         The trial court then issued its conclusions of law. First, it ruled that the Child would not be permitted to relocate to Gulfport because it was not in the Child's best interest to do so. The court then explained that if Mother changed her mind and decided not to relocate to Gulfport, it would be in the Child's best interest for the 2009 permanent parenting plan to remain in place. However, if Mother's decision to relocate was final, the court concluded it would be in the Child's best interest for the primary residential parent to change from Mother to Father.

         The trial court adopted the permanent parenting plan Father proposed, with some modifications. The relevant aspects of the new parenting plan for purposes of Mother's appeal are that Mother is to have the Child each President's Day weekend, each Labor Day weekend, each fall break, every other Thanksgiving break, each spring break, the first week of winter break through Christmas Day, and for the entire summer vacation except for the week immediately after school ends for the summer and the week immediately before school begins for the next school year.

         Mother filed a motion to alter or amend the trial court's judgment. She argued that the trial court erred in considering only the year immediately preceding the trial to determine whether the parties spent substantially equal time with the Child for purposes of the relocation statute. Further, Mother argued, the court incorrectly based its calculations of time spent with the Child on Father's calendar, which only covered August 2014 through June 10, 2015, which was just a little more than ten months rather than the required twelve. Mother asked the court to order a new trial to allow the introduction of additional testimony and proof on the issues of the calculation and allocation of days each party spent with the Child and for the court to make a new determination of the proper relocation statute to apply to the facts of this case.

         The trial court held a hearing on Mother's motion to alter or amend and then issued an Order in which it amended its findings to include the days it had failed to address in its earlier judgment, June 11 through July 31, 2015. The court noted that although Father's calendar did not include these days, the parties' testimony covered this time period and the court was able to allocate to each party the number of days spent with the Child without reopening the proof for additional evidence. Even after attributing more days to Mother for the twelve-month period immediately preceding the trial, however, the court did not alter its conclusion that the parties spent substantially equal time with the Child and maintained that Tenn. Code Ann. § 36-6-108(c) was the appropriate section of the relocation statute to apply to this case. In its Order dated January 3, 2017, the trial court wrote that in response to its query to Mother at the hearing about whether she intended to pursue her relocation, Mother "affirmed that she had already relocated." As a result, the trial court ordered that the new parenting plan in which Father was designated as the primary residential parent would replace the prior parenting plan dating from 2009.

         Mother appealed the trial court's judgment and raises ten issues on appeal. Several of the issues concern the trial court's calculation and allocation of days each parent spent with the Child during the relevant period, all of which we will address in one section. Mother also contends the trial court erred by (1) refusing to allow the Child to testify; (2) determining that it was in the Child's best interest not to relocate to Gulfport with Mother and to designate Father as the primary residential parent; (3) failing to consider a child support deviation to account for the travel expenses involved in transporting the Child back and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.