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Irvin v. Irvin

Court of Appeals of Tennessee, Nashville

January 8, 2018

UNA P. IRVIN
v.
ERNEST J. IRVIN, II

          October 3, 2017 Session

         Appeal from the Circuit Court for Montgomery County No. MCCCCVDV09-0084 Jill Bartee Ayers, Judge

         Father 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.

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

          Donald N. Capparella and Elizabeth Noel Sitgreaves, Nashville, Tennessee, for the appellant, Ernest J. Irvin, II.

          Sharon T. Massey, Clarksville, Tennessee, for the appellee, Una P. Irvin.

          Andy D. Bennett, J., delivered the opinion of the Court, in which W. Neal McBrayer and Kenny W. Armstrong, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         Factual and Procedural Background

         Una P. 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).

         Following 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. 30, 2013).

         During 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.

         Despite 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 children." Id.

         Our 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.

         Father 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.

         On 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 and poor.

         Mother 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.

         On July 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.

         Erin 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 ...


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