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Bolin v. Bolin

Court of Appeals of Tennessee, Nashville

April 26, 2018

KRISTINA MARIE BOLIN
v.
JEFFREY MICHAEL BOLIN

          Session March 15, 2018

          Appeal from the Chancery Court for Sumner County No. 2015-DM-373 Louis W. Oliver, Chancellor

         In this divorce action, the mother argues that, in making the father the primary residential parent, the trial court did not give adequate weight to the father's relocation with the children against her wishes at the time of the parties' separation. We affirm the decision of the trial court.

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

          Amanda Lynn Conklin, Murfreesboro, Tennessee, for the appellant, Kristina Marie Bolin.

          Stephan Francis King, Nashville, Tennessee, for the appellee, Jeffrey Michael Bolin.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         FACTUAL AND PROCEDURAL BACKGROUND

         Kristina Marie Bolin ("Mother") and Jeffrey Michael Bolin ("Father") married in 2007 and had two children, William, born in 2010, and Lauren, born in 2013. For most of the parties' marriage, Mother was the primary breadwinner, and the parties moved a number of times to further her career.

         In July 2012, Mother began working for Humana in Louisville, Kentucky, but she worked from the parties' home in Lexington. The parties agreed that Husband would stay home and care for the children while Mother was working. Mother went into the office in Louisville approximately once a week. In August 2014, Mother began working on her master's degree in business administration ("MBA") in a program requiring her to attend classes on Fridays and Saturdays every other weekend. The maternal grandmother lived with the parties from July to October 2014 and assisted with the care of the children.

         By 2014, the parties were experiencing difficulties in their marriage. On October 25, 2014, Mother returned home from an accounting class and found a letter from Father stating that he had taken the children and gone to stay with his parents in Hendersonville, Tennessee. Mother twice petitioned the Family Court of Fayette County, Kentucky for an emergency order of protection in October 2014, but the court denied both petitions on the grounds that they failed to "state an act or threat of violence." Mother filed a petition for divorce in Kentucky on October 27, 2014. On January 16, 2015, the Kentucky court held a hearing and, in an order entered on February 10, 2015, ordered a custody evaluation and awarded Mother temporary parenting time every other weekend. The Kentucky divorce action was nonsuited by the parties on December 1, 2015.

         Mother filed a petition for divorce in Tennessee on December 2, 2015, on the grounds of irreconcilable differences and inappropriate marital conduct. Father filed an answer and counter-complaint alleging the same grounds. On December 21, 2015, Father also filed a motion to establish a temporary parenting schedule and for an injunction pendente lite to enjoin Mother from allowing the parties' children "to be in contact with or in the presence of any extramarital dating partners or paramours." Father filed a statement of income and expenses showing no income and monthly expenses of approximately $3, 346.17 per month.

         After a hearing on January 11, 2016, the trial court entered an order on January 21, 2016, in which it provided that the children would continue to reside with Father and to have weekend parenting time with Mother; Father would receive child support in the amount of $1, 332.00 per month based upon Mother's income of $9, 583.00 per month and Father's imputed income of $3, 132.00 per month. The trial court denied Father's requests for temporary alimony and an injunction pendente lite.

         On April 8, 2016, Mother filed a motion to modify the January 11, 2016 temporary parenting plan, arguing that there had been a material change of circumstances in that she was no longer residing with a member of the opposite sex and was entitled to credit for health insurance premiums she paid on behalf of the children. She requested a week on, week off parenting schedule. On August 26, 2016, the court entered an agreed order giving Mother additional temporary parenting time on long weekends and school breaks.

         On September 13, 2016, Mother filed another motion to modify the January 11, 2016 temporary parenting plan based upon a substantial and material change in circumstances. She asserted that the older child was having disciplinary problems at school and faced out-of-school suspension, that Father had misinformed the school about Mother's role in the child's education, and that the parties disagreed concerning whether the child should be on medication. Mother requested that the temporary parenting plan be modified to make her the primary residential parent. Father opposed the motion. The record does not contain an order addressing Mother's motion.

         On February 3, 2017, Father filed his proposed parenting plan in which he provided that he would be the primary residential parent and Mother would have all three-day weekends during the school year, every fall and spring break, Mother's Day, alternating Easter and Thanksgiving breaks, half of winter vacation, and five weeks during summer vacation, for a total of 84.5 days a year. Under Mother's proposed parenting plan, filed on February 22, 2017, she would be the primary residential parent, and Father would have parenting time during all three-day weekends during the school year, every fall and spring break, all but ten days of summer vacation, half of Thanksgiving break, half of winter vacation, every Father's Day, July 4th, and Easter weekend, for a total of 111 days a year.

         The case was heard on March 1 and 2, 2017. The witnesses included Janie Berryman, Ph.D., a psychologist who performed a custody evaluation. The trial court entered its final decree of divorce, incorporating a memorandum opinion and order, on April 25, 2017. Based upon the letter that Father wrote to Mother in October 2014, the court concluded that Father did not "abscond" with the children as Mother claimed, but that he was attempting to save the marriage. The trial court granted the divorce to Father based upon inappropriate marital conduct. The court went through all of the statutory factors regarding custody set out at Tenn. Code Ann. § 36-6-106(a) and concluded that Father should be the primary residential parent. Wife would have the children all three-day holiday weekends during the school year and every fall and spring break. She also had the option to visit the children in Tennessee an additional time every month with two weeks' notice to Father; these visits would be from 10:00 a.m. Saturday to 4:00 p.m. Sunday. Moreover, Mother would have parenting time for the first eight weeks of summer vacation. The parenting plan divides the remaining holidays.

         On May 31, 2017, the trial court denied Father's motion to amend. Mother appeals.

         We consolidate Mother's appellate arguments as follows: whether the trial court abused its discretion in failing to give adequate weight to Father's relocation with the children over Mother's objection in its determination of the primary residential parent and the parenting schedule.

         STANDARD OF REVIEW

         Our review of the trial court's findings of fact is de novo with a presumption that the findings are correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). Evidence preponderates against the trial court's findings of fact when it "support[s] another finding of fact with greater convincing effect." Hopwood v. Hopwood, No. M2015-01010-COA-R3-CV, 2016 WL 3537467, *4 (Tenn. Ct. App. June 23, 2016) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000)). We review a trial court's conclusions of ...


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