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In re Autumn B.

Court of Appeals of Tennessee, Knoxville

December 19, 2017

IN RE: AUTUMN B.

          Assigned on Briefs November 15, 2017

         Direct Appeal from the Juvenile Court for Hamilton County No. 269-765 Robert D. Philyaw, Judge.

         This is a child custody case. Mother appeals the trial court's determination that Father should be designated as the child's primary residential parent. Father requests attorney's fees for defending this appeal. Discerning no error, we affirm the decision of the trial court. This Court deems the appeal frivolous and remands this matter to the juvenile court to determine attorney's fees and costs to be awarded to Father.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed and Remanded

          Alan R. Beard, Chattanooga, Tennessee, for the appellant, Cintia L. C.

          Mary Sullivan Moore, Chattanooga, Tennessee, for the appellee, Jacob K. B.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and John W. McClarty, J.J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE.

         I. Facts & Procedural History

         Appellant Cintia L. C. ("Mother") and Appellee Jacob K. B. ("Father") have one child together (the "Child"), who was born on September 17, 2015. The parties were never married but cohabitated between February and December 2015. Mother has another son from a marriage that pre-existed the parties' relationship. Father has a daughter and a son from an earlier relationship.

         Shortly after the birth of the Child, Mother and Father's romantic relationship began to unravel, and they ultimately separated in late December 2015. On January 4, 2016, Mother secured an ex parte temporary restraining order against Father that was subsequently dismissed by the court. In the following weeks, Mother withheld the Child from Father and refused to allow visitation. In light of this, Father filed a petition for custody of the Child on January 13, 2016, in the Juvenile Court for Hamilton County, Tennessee. Father simultaneously filed a motion to prevent Mother from leaving the jurisdiction of the court with the Child in light of statements Mother made about moving to Texas with the Child. The parties entered into a mediated agreement on January 18, 2016, which provided that Father could begin seeing the Child for one or two hours at a time during supervised visits pending the outcome of his petition for custody. According to Father, he agreed to supervised visitation at the time because supervised visitation was better than not being allowed to see his Child at all.

         Father's petition was initially heard by a Magistrate for the juvenile court. On April 12, 2016, the Magistrate rendered his findings and recommendations, which essentially granted Father's petition, designated him as primary residential parent, and adopted Father's proposed parenting plan. The juvenile court subsequently entered an order adopting the recommendations of the Magistrate with only minor changes. According to this parenting plan, parenting time of the Child was shared equally between Mother and Father, and Father was designated as the Child's primary residential parent.

         Mother thereafter requested that the juvenile court conduct rehearing of the proof presented to the Magistrate on Father's petition for custody of the Child. The juvenile court granted Mother's request and held a thorough de novo rehearing of the Magistrate's findings and recommendations, which took place over the course of three days - August 11, September 1, and October 20, 2016. The court heard the testimony of Mother, Father, and more than ten other witnesses, and several exhibits were entered into evidence for the court's review. At the conclusion of the proof, the court took the matter under advisement. The court then entered its findings of fact and conclusions of law on December 8, 2016. The juvenile court's order is a detailed eleven-page analysis of the issues raised by the parties in this case in which the court made a "determination of the child's best interest by applying the factors in TCA § 36-6-106, in order to determine custody and a parenting schedule." Further, the juvenile court stated its goal of crafting "a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child." The court then went through each best interest factor, setting forth its findings on each factor and the reasons therefor. The court essentially found that all applicable factors weighed evenly for both parties with the exception of Tennessee Code Annotated section 36-6-106(a)(2) and (9), which favored Father. The court went on to hold as follows:

This matter is between two parties who have separated and appear to be adjusting to the shift in their relationship. Furthermore, according to testimony during trial, the only current discrepancy that the parties have is related to changes in schedules which may require future accommodation. Otherwise, it is the finding of the court that the parties have the disposition to co-parent equally in the best interest of their daughter.
As such, the court finds the following regarding the parenting plan ...

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