January 10, 2018
from the Chancery Court for Williamson County No. 44756
Joseph A. Woodruff, Chancellor
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
T. Beal and Erin W. Nations, Franklin, Tennessee, for the
appellant, Charles Michael Kincade.
H. Drescher, Brentwood, Tennessee, for the appellee, Amanda
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.
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
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.
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
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
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
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.
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."
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.
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.
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.
April 10, 2017, the trial court adopted Mother's proposed
Permanent Parenting Plan with the following hand-written
modification immediately below the
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
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
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.
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
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).
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.
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.