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Kincade v. Kincade

Court of Appeals of Tennessee, Nashville

April 4, 2018

CHARLES MICHAEL KINCADE
v.
AMANDA WOOLDRIDGE KINCADE

         Session January 10, 2018

          Appeal from the Chancery Court for Williamson County No. 44756 Joseph A. Woodruff, Chancellor

         This appeal arises from a divorce; the primary issues on appeal pertain to the permanent parenting plan. During the pendency of the divorce and following a successful mediation, the parties entered into a Marital Dissolution Agreement and a Permanent Parenting Plan. Six weeks later, Father filed a notice of withdrawal of his consent to the mediated parenting plan. Subsequently, an order was entered approving the Marital Dissolution Agreement and declaring the parties divorced, reserving the issue of a permanent parenting plan for trial. Following the trial, the court established a permanent parenting plan similar to the mediated plan with four modifications. When Mother's counsel submitted the final order for the court's approval, it contained three alternatives for the "right-of-first-refusal" provision, which was one of the four modifications. The trial court approved one of the "right-of-first-refusal" alternatives and entered the final order. Father appeals, arguing the trial court abused its discretion in its formulation of the parenting plan and in awarding Mother her attorney's fees. Finding no abuse of discretion, we affirm. We also award Mother the reasonable and necessary attorney's fees she incurred on appeal.

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

          Robbie T. Beal and Erin W. Nations, Franklin, Tennessee, for the appellant, Charles Michael Kincade.

          James H. Drescher, Brentwood, Tennessee, for the appellee, Amanda Wooldridge Kincade.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Richard R. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Charles Michael Kincade ("Father") and Amanda Wooldridge Kincade ("Mother") married on September 17, 2008. Elijah, the parties' only son, was born in November 2010. Husband filed for divorce on December 10, 2015. Following successful mediation on July 19, 2016, the parties agreed to a Martial Dissolution Agreement ("MDA") and a Permanent Parenting Plan ("Agreed PPP") pursuant to which Mother was designated as the primary residential parent with her receiving 225 days with Elijah and Father receiving 140 days.

         The following day, Father began taking steps to repudiate the Agreed PPP, which we address in more detail below. On September 1, 2016, Father filed a Notice to withdraw his consent to enter the Agreed PPP because he no longer believed the plan was in the child's best interests nor workable due to "Mother's actions and omissions." The parties then agreed to a temporary parenting plan, which provided equal parenting time, and on December 19, 2016, the trial court entered a Final Decree of Divorce.

         On March 10, 2017, the trial court conducted an evidentiary hearing to adjudicate the issue of the permanent parenting plan. On March 17, 2017, the trial court entered an Order and Memorandum adopting the Agreed PPP with the following four modifications:

1. Item B shall be amended to provide the time by which Father shall return Elijah to Mother on Monday is changed from 9:00 p.m. to 8:00 p.m.
2. A right-of-first-refusal provision, consistent with item J of Trial Exhibit 1, shall be included providing each parent with the right to have parenting time with Elijah on those dates otherwise scheduled for the opposite parent. This right of first refusal shall not be construed to give Father the right to undertake the regularly scheduled pick up from school currently being handled by Mother with her retained babysitter.
3. Item C shall be amended to provide July 4th shall be shared by the parties on an even/odd schedule with Mother having the even numbered years and Father having the odd numbered years.
4. Item C shall be further amended to provide Father with parenting time on every annual observance of Father's Day and each parent exercising residential parenting time on their respective birthdays.

         The court also awarded Mother her attorney's fees and expenses. Furthermore, the order instructed counsel for Mother to "prepare, file, and serve proposed Permanent Parenting Plan, using the approved form, containing the terms and conditions of Trial Exhibit 4 as modified by this Memorandum and Order."

         On April 3, 2017, Mother filed a Notice of Filing which proposed three different parenting plans that were identical in all respects but one, the "right-of-first-refusal" provision. One version had no right-of-first-refusal, another was an alternate version Mother recommended, and the third, which was identical to the Agreed PPP, read:

1. Should either parent have to be away from the child for a period of more than six hours during his allotted parenting time, he shall offer the first right of refusal to the other parent to care for the child during that time.

         In her filing, Mother argued the "right-of-first-refusal" provision was unwarranted; however, if the court deemed a right-of-first-refusal appropriate, she urged the court to adopt the following version:

In the event either party, during his or her parenting time, is going to be away from the minor child for twelve (12) or more consecutive hours, he or she shall notify the other parent seven (7) days in advance to offer said parent the opportunity to have parenting time in lieu of hiring or using a third party child care provider. The parent being afforded this opportunity to have additional parenting time shall respond, one way or the other, within twelve (12) hours of receipt of the notice.

         Mother argued that this provision solved two potential problems with the original provision: (1) it did not provide advance notice to the parties and (2) the six hour absence would trigger the provision every day Mother worked.

         On April 10, 2017, the trial court adopted Mother's proposed Permanent Parenting Plan with the following hand-written modification immediately below the "right-of-first-refusal" provision:

The right of first refusal set out in item J.2. shall NOT be construed to apply to circumstances where (1) the residential parent is absent due to routine work, (2) where child is in school or on school-related trips, or where child and residential parent are together traveling out of the local area.

         Father appealed.

         Issues

         The parties present a total of seven issues for our consideration. We have consolidated and rephrased the issues to read as follows:

I. Whether the trial court abused its discretion by failing to maximize Father's participation in the life of his child.
II. Whether the trial court abused its discretion by failing to give Father his requested right-of-first-refusal and by modifying this provision without notice to the parties.
III. Whether the trial court abused its discretion by granting Mother her attorney's fees and expenses.
IV. Whether Father's appeal is frivolous and whether Mother is entitled to recover her legal fees and expenses incurred in this appeal.

         Standard of Review

         "[T]rial courts are in a better position to observe the witnesses and assess their credibility; therefore, trial courts enjoy broad discretion in formulating parenting plans." C.W.H. v. L.A.S., No. E2015-01498-SC-R11-JV, ___ S.W.3d ___, 2017 WL 6462395, at *4 (Tenn. Dec. 19, 2017) (citing Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013)). "[D]etermining the details of parenting plans is 'peculiarly within the broad discretion of the trial judge.'" Id. (citing Armbrister, 414 S.W.3d at 693; quoting Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)). This court is to employ "a limited scope of review . . . in reviewing a trial court's factual determinations in matters involving child custody and parenting plan developments." Id. (citing Armbrister, 414 S.W.3d at 692-93) (stating that the appropriate standard of "review of the trial court's factual findings is de novo upon the record, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise").

         On appeal, we review a trial court's decision regarding parenting schedules for an abuse of discretion. Id. (citing Armbrister, 414 S.W.3d at 693). The abuse of discretion standard does not permit reviewing courts to substitute their discretion for that of the trial court. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Nevertheless, the abuse of discretion standard of review does not immunize a lower court's decision from any meaningful appellate scrutiny. Id.

Discretionary decisions must take the applicable law and the relevant facts into account. An abuse of discretion occurs when a court strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision. A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.
[R]eviewing courts should review a [trial] court's discretionary decision to determine (1) whether the factual basis for the decision is properly supported by evidence in the record, (2) whether the [trial] court properly identified and applied the most appropriate legal principles applicable to the decision, and (3) whether the [trial] court's decision was within the range of acceptable alternative dispositions. When called upon to review a lower court's discretionary decision, the reviewing court should review the underlying factual findings using the preponderance of the evidence standard contained in Tenn. R. App. P. 13(d) and should review the [trial] court's legal determinations de novo without any presumption of correctness.

Id. at 524-25 (internal citations omitted).

         Therefore, we shall review the trial court's decision regarding the parties' parenting plan to determine, where applicable, whether there is a factual basis for the decision, whether the court properly identified and applied the relevant legal principles, and whether the decision is within the range of acceptable alternative dispositions. Id. at 524.

         In non-jury cases, our review is de novo on the record with a presumption that the trial court's factual findings are correct, unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d); Armbrister, 414 S.W.3d at 692. However, a trial court's conclusions of law are reviewed de novo with no presumption of correctness. Armbrister, 414 S.W.3d at 692.

         Analysis

         I. Maximizing ...


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