Session August 29, 2017
from the Circuit Court for Sumner County No. 2009-CV-628 Dee
David Gay, Judge
appeal arises from the modification of a parenting plan in a
post-divorce action. The original 2010 parenting plan awarded
the parties equal parenting time. When the parties' only
child started school in 2012, the parents informally modified
the parenting schedule so that Father had parenting time
every other weekend and the parents split the holidays
equally. In 2015, Mother commenced this action seeking court
approval of the informal parenting schedule. The trial court
granted Mother's petition to modify and adopted
Mother's proposed parenting plan. Father appeals,
claiming the trial court erred by, inter alia,
failing to make findings of fact as required by Tenn. R. Civ.
P. 52.01, miscalculating Father's parenting time,
awarding Mother sole education and non-emergency healthcare
decision-making authority, ordering the child to attend a
certain elementary school, awarding Mother a judgment for her
attorney's fees, and assessing post-judgment interest at
5.5%. Finding no error, we affirm the trial court in all
respects. We also find that Mother is entitled to recover
reasonable and necessary attorney's fees incurred on
appeal pursuant to Tenn. Code Ann. § 36-5-103(c).
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Lee Widrig, Megan Ross Bain, and Tarsila Reybitz Crawford,
Nashville, Tennessee, for the appellant, Daniel Steakin.
Georgina Kay Hughes, Mt. Juliet, Tennessee, for the appellee,
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which Richard R. Dinkins and W. Neal McBrayer, JJ.,
G. CLEMENT JR., P.J., M.S.
Steakin ("Mother") and Daniel Steakin
("Father") are parents to one minor child. The
parties divorced in 2010, and the Final Decree of Divorce
adopted a Permanent Parenting Plan, which afforded the
parents with equal parenting time. Under the plan, Father had
the child three days one week and four days the next. The
parties followed this schedule until the child started school
in August 2012. Because the parents were living in different
counties at the time and Father's work schedule had
changed, Father requested that they modify the parenting
schedule to allow Father parenting time every other weekend
during the school year, alternate weeks in the summer, and
share holidays equally. Mother agreed to the schedule Father
proposed, and they followed this schedule without issue, and
without court approval, over the next three years.
April 2, 2015, Mother filed a Petition to Modify Permanent
Parenting Plan and Child Support to obtain court approval of
the plan they had been following since the child started
school in 2012. She alleged that Father's relocation from
Gallatin to Portland, Tennessee, changes to Father's work
schedule, and the fact that Mother and the minor child lived
in Wilson County where the child attended school, constituted
material changes in circumstances that warranted the
modification. Mother also relied on the fact that the parties
had not been following the parenting plan since the
parties' minor child started school in August 2012.
Mother's proposed parenting plan, Mother would have 277
days of parenting time per year, and Father would have 88
days. Specifically, Father would continue to have parenting
time every other weekend from 6:00 p.m. on Friday until 6:00
p.m. on Sunday, the parents would alternate holidays, equally
divide fall and spring breaks, and divide the Christmas break
so that the child would spend the first period of the break
with one parent, defined from the day and time school
dismissed through December 24 at 6:00 p.m., and then spend
the remainder of the break with the other parent. In
addition, the parents would alternate weeks during the
summer. The proposed plan essentially memorialized the
parenting schedule the parties had been following for the
past three years without issue. Mother also requested she be
granted sole decision-making authority on the child's
education and non-emergency healthcare decisions.
petition to modify was heard September 29, 2016, and the
court heard extensive testimony from both parents. Mother
testified that other than summer break, her proposed schedule
is what the parties had already been following. And in fact,
Mother's proposed summer schedule actually gave Father
more time than he had been receiving.
requested that the trial court order their child to continue
attending W.A. Wright Elementary in Mount Juliet, Tennessee,
where the child had attended for the past two years. Even
though the child was not zoned for this school, Mother
testified that this was in the child's best interest
because the child is able to ride the bus home from school to
his grandmother's, whose house is located in that school
zone. The child's grandmother provides after-school care
for the minor child. At trial, Father made no objection to
the child being ordered to attend the school.
also requested sole decision-making authority for the
child's education and nonemergency healthcare decisions.
She testified in great detail about her involvement in the
minor child's education and healthcare stating, in
I'm there every day. I go to the school functions, to
meetings. I take him to school. I'm there after school. I
do the homework. I enroll him in school and take him shopping
for school supplies. I'm the consistent one that's
discussed the progress the child has made in school, and the
ongoing IEP meetings she attends to support the child's
special education needs. Mother also testified extensively
about doctor's appointments she has attended over a long
period of time to address her child's ADHD diagnosis, and
Mother emphasized the child's anxieties brought on from
not having a normal, consistent schedule. Mother reasoned
that she is in a better position to make decisions on the
child's behalf regarding his education and nonemergency
healthcare needs because she is the parent most often present
in the ongoing care needs of their child. Mother conceded
that all other decision making would remain joint, as
specified in both the original 2010 and proposed parenting
did not propose an alternate parenting plan, nor did he
object to Mother's calculation of days in the proposed
parenting plan, or Mother's proposed Holiday schedule.
Nevertheless, Father maintained that it was in the
child's best interest for the parents to have equal
parenting time, as specified in the original 2010 parenting
plan, despite the fact that Father was the one who initially
requested a modification to the every-other-weekend schedule
the parents have followed for three years. Father objected to
granting Mother sole authority for the child's education
and nonemergency healthcare decisions, contending that all
decision making should remain joint as specified in the
parties' 2010 parenting plan.
ruling from the bench and as directed in the Final Order
entered December 7, 2016, the trial court adopted
Mother's proposed parenting plan, which essentially
memorialized the schedule the parents had followed for the
past three years. The modified parenting plan awarded Mother
277 days per year, and 88 days per year to Father. The plan
specified that the parents would evenly divide the fall,
spring, Christmas, and summer breaks. The trial court also
ordered a modification of child support, granted Mother sole
decision-making authority on education and non-emergency
healthcare decisions, and awarded Mother attorney's fees.
Father timely appealed.
raises a plethora of issues on appeal. We believe the
issues should be considered in the following fashion to
afford a more appropriate analysis of each:
1. Whether the trial court failed to make sufficient specific
findings of fact and conclusions of law as required by Tenn.
R. Civ. P. 52.01.
2. Whether a material change in circumstances was
3. Whether the trial court conducted an appropriate best
4. Whether the trial court abused its discretion in crafting
the Permanent Parenting Plan that awarded Mother sole
authority for education and nonemergency healthcare
5. Whether the trial court erred in its calculation of the
days Father is responsible for the care of the minor child in
setting child support.
6. Whether the trial court erred in awarding Mother her
attorney's fees and assessing interest at 5.5%.
Mother, she seeks to recover her attorney's fees and
costs incurred in this appeal.
Findings of Fact and Conclusions of Law
asserts that the trial court erred by not making sufficient
specific findings of fact and conclusions of law as required
by Tenn. R. Civ. P. 52.01.
well settled that in bench trials, courts must make findings
of fact and conclusions of law to support their rulings. Rule
52.01 of the Tennessee Rules ...