UNA P. IRVIN
ERNEST J. IRVIN, II
October 3, 2017 Session
from the Circuit Court for Montgomery County No.
MCCCCVDV09-0084 Jill Bartee Ayers, Judge
filed a petition for modification of a permanent parenting
plan seeking designation as the primary residential parent of
the parties' two children. Mother filed a
counter-petition for modification of the residential
parenting schedule in the permanent parenting plan. After a
hearing, the trial court denied Father's petition and
granted Mother's petition, reducing Father's
parenting time by twenty-four days. Father appealed. Because
the trial court did not conduct an appropriate best interest
analysis, we vacate the trial court's judgment and remand
for further proceedings as necessary.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated and Remanded
N. Capparella and Elizabeth Noel Sitgreaves, Nashville,
Tennessee, for the appellant, Ernest J. Irvin, II.
T. Massey, Clarksville, Tennessee, for the appellee, Una P.
D. Bennett, J., delivered the opinion of the Court, in which
W. Neal McBrayer and Kenny W. Armstrong, JJ., joined.
D. BENNETT, JUDGE.
and Procedural Background
Irvin ("Mother") and Ernest J. Irvin, II,
("Father") are the parents of two children, Heidi
Irvin (born September 2001) and Andrew Irvin (born November
2003). The parties were divorced by order of the court on May
27, 2010. In the final decree, the trial court awarded Mother
a divorce on the ground of inappropriate marital conduct,
designated her as the primary residential parent, and
incorporated her proposed parenting plan. Father appealed
asserting that the trial court committed a number of errors
including designation of Mother as the primary residential
parent. After finding there was not a final judgment in the
matter, we dismissed the appeal and remanded the case for
resolution of several issues. See Irvin v. Irvin,
No. M2010-01962-COA-R3-CV, 2011 WL 2436507, at *8-13 (Tenn.
Ct. App. June 15, 2011).
a post-remand hearing, the trial court entered a final decree
on October 31, 2011. In the final decree, the trial court
declared the parties divorced rather than awarding a divorce
to either party and corrected the ambiguities identified
during the first appeal. The trial court designated Mother as
the primary residential parent and incorporated the parenting
plan from the original final decree. Thereafter, Father
initiated a second appeal. See Irvin v. Irvin, No.
M2011-02424-COA-R3-CV, 2012 WL 5993756 (Tenn. Ct. App. Nov.
the second appeal, Father argued that the trial court erred
in designating Mother as the primary residential parent
because the evidence preponderated "against the trial
court's finding that [Mother] would be more likely to
foster a close relationship between the children and
him." Id. at *14. Specifically, Father argued
that the evidence showed that Mother attempted to hinder his
relationship with the two children. Id. at *15. We
agreed, finding that Mother's actions constituted
"egregious, unwarranted interference with the
children's relationship with their father."
Id. at *16. We based this finding on two incidents.
First, following the trial court's denial of Mother's
request for exclusive possession of the marital residence,
Mother's father filed a Congressional Inquiry against
Father based on Mother's alleged concerns that Father was
abusive towards her and/or the children. Id. at *15.
The filing of the Congressional Inquiry resulted in
Father's removal from the marital residence for
seventy-two hours. Id. Second, in 2010 after the
trial court awarded Father alternate residential parenting
time during the summer, Mother went to the general sessions
court and obtained an ex parte protective order against
Father based on her allegations that he "had choked the
parties' son and had sexually abused their
daughter." Id. The record, however, contained
no evidence to support Mother's allegations. Id.
finding that Mother interfered with Father's relationship
with the two minor children, we affirmed the trial
court's designation of Mother as the primary residential
parent after finding other factors in favor of Mother,
including that "the children were in a stable,
satisfactory environment with [Mother]." Id. at
*17. We noted that Mother's interference had abated, and
she testified that "she was making an effort to improve
her relationship with [Father] for the benefit of the
ruling in Father's second appeal left the parenting plan
in effect. In addition to designating Mother as the primary
residential parent, the parenting plan provided Father with
114 days of parenting time per year. When the trial court
adopted the parenting plan, Mother resided in Clarksville,
Tennessee and Father resided in Ft. Rucker, Alabama. As a
result, the parenting plan provided the majority of
Father's parenting time during the children's summer
vacation, except for one week after school ended and one week
before school began. The parenting plan also provided Father
with parenting time during: (1) all three-day holiday
weekends during the school year, (2) fall and spring vacation
every odd-numbered year, (3) one period of winter vacation,
(4) Father's Day and his birthday, and (5) either weekend
before or after the children's birthdays. The parenting
plan further provided Father the right to exercise parenting
time one weekend per month in Clarksville. As for
transportation, except for the one weekend per month that
Father exercised parenting time in Clarksville, the parenting
plan required that the parties meet halfway at an agreed-upon
location to exchange the children.
is in the military and has relocated multiple times during
the years following the trial court's initial adoption of
the parenting plan. He currently resides in Tampa, Florida.
Despite Father's relocations, the parties continued
operating under the above parenting schedule.
August 5, 2015, Father filed a petition to modify the
parenting plan, requesting a change in the designation of the
primary residential parent. He asserted that a material
change of circumstance had occurred and that it was in the
children's best interest that the trial court designate
him as the primary residential parent. Most of the
allegations in Father's petition related to Mother's
parental interference and alienation, which Father noted were
consistent with her past behavior. Father's allegations
against Mother included the following: frequently attempting
to bring the children back to Clarksville during Father's
parenting time, denying Father multiple visits with the
children, interfering with Father's phone calls and other
communications with the children, and encouraging the
children to call their stepfather "Dad." Father
also alleged that Heidi missed school twenty-six times during
the 2014-15 school year and that her grades were inconsistent
filed an answer and counter-petition for modification of the
parenting plan on August 25, 2015. Mother denied that she
interfered with Father's parenting time and that she
refused Father visitation, claiming that she adjusted the
schedule to comply with the children's extracurricular
activities. Mother further denied that Heidi had missed
significant amounts of school or that she had poor grades.
Mother sought to modify the parenting schedule, alleging that
Father's relocation to Florida and the children's
increased involvement in extracurricular activities
constituted a material change in circumstance. Additionally,
Mother requested that Father be responsible for all
transportation costs when exchanging the children.
12, 2016, while the children were visiting Father in Florida,
Father filed a motion for a temporary restraining order and
ex parte order seeking exclusive custody of the children. He
alleged that Heidi told him that she feared her stepfather,
Joe Smith ("Stepfather"). Father further alleged
that Heidi could not relax in Mother's home because she
felt constantly watched and monitored by Stepfather.
According to Father, Heidi had suicidal thoughts and had been
sleeping with a hammer and knife under her bed because she
did not feel safe in Mother's home.
Poland, the guardian ad litem ("GAL") from the
parties' divorce proceedings, also filed a motion for a
temporary restraining order and ex parte order on July 15,
2016. In her motion, the GAL stated that Heidi mentioned a
desire to seek counseling prior to Father's summer
visitation. She further stated that Heidi had seen
psychologist Dr. Janie Berryman twice and continued
communication with Dr. Berryman while visiting Father in
Florida. According to the GAL, Heidi reported feeling
"not safe, not happy, and not comfortable" while
living with Mother. The GAL explained that Heidi felt that
Stepfather "constantly watches her making her feel
monitored even during private times." The GAL
recommended that the court extend Father's summer
visitation until the scheduled hearing ...