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Vermilyea v. Vermilyea

Court of Appeals of Tennessee, Nashville

April 30, 2018


          Session Date: January 9, 2018

          Appeal from the Chancery Court for Dickson County No. 2015-CV-184 Suzanne M. Lockert-Mash, Judge Sitting By Interchange

         Geoffrey Cale Vermilyea ("Husband") sued Jessica Lynn Vermilyea ("Wife") for divorce. After trial, the Chancery Court for Dickson County ("Trial Court") entered its Final Decree of Divorce on June 13, 2017 ("Final Decree") declaring the parties divorced, distributing the marital assets, denying Wife's request to relocate to Canada with the parties' minor child ("Cale"), denying Wife alimony, and entering a Permanent Parenting Plan with regard to Cale. Wife appeals the Final Decree raising issues regarding the Trial Court's order denying Wife's request to relocate to Canada with Cale and denying her an award of alimony. We find and hold that the Trial Court did not err in finding that it was not in Cale's best interest to relocate to Canada and, therefore, denying Wife's request to relocate. We further find and hold that the Trial Court did not abuse its discretion in denying Wife alimony. We, therefore, affirm the Final Decree.

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

          Irene R. Haude, Nashville, Tennessee, for the appellant, Jessica Lynn Vermilyea.

          Martin Sir and Peggy Smith Pulley, Nashville, Tennessee, for the appellee, Geoffrey Cale Vermilyea.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which RICHARD H. DINKINS and W. NEAL MCBRAYER, JJ., joined.




         Husband met Wife in the summer of 2002 in Ontario, Canada, where Wife was born and raised. They dated "on-again-off-again" long-distance for several years. During the summer of 2007, Wife lived with her aunt and uncle in Dickson, Tennessee while the parties dated.

         Husband and Wife were married in December of 2007, and Wife moved to Tennessee. During the first several months of the marriage, Wife was completing school. In 2008, after completing school, Wife began working at Dickson Pediatric Dentistry. Wife worked there until the birth of Cale in 2013.

         In 2008, several months after the parties were married, Husband gained custody of his child from a previous relationship ("Grant"). At the time of trial, Grant was nine years old. Cale was born in 2013. Cale was two years old at the time of trial. Husband admitted that Wife helped him care for Grant during the marriage. Husband and Wife agreed that after Cale's birth Wife would stay at home with Grant and Cale while Husband worked outside of the home. At trial, Husband agreed that Wife has had primary responsibility for both children. He also admitted that both children were doing well and have flourished under Wife's care.

         Husband asked to be named Cale's primary residential parent and requested 50/50 time with Cale. Husband also asked to be awarded the marital residence, which is right down the road from his parents' house.

         Husband has been living with his parents since he filed for divorce. Husband was asked where Grant stays, and Husband stated: "He sleeps in a bed with me. It's tight right now with my brother and sister-in-law and their child living in the basement. Of course, my parents and Grant and I and Cale on the weekends when I have him, we stay on the main floor." Husband testified that Grant and Cale are "[v]ery close. [Grant] looks forward for him to come over every afternoon and play and ride bikes and swim. They have a good time together." Husband testified that Cale would be three "next month." Husband testified that he, not his mother or his father, takes care of Cale unless he needs assistance. Husband purchases food and diapers for Cale.

         Husband was asked to describe his relationship with Cale, and he stated: "It's super fun. Cale is growing more and more every day and I get to see him every day after work. It's fun spending time with him, going swimming, and playing in the dirt, riding bikes." Husband sees Cale "four nights after work and then my weekend. So it's like I have him 11 days straight and then it's [Wife's] weekend to have him." Husband agreed that since he and Wife separated, Wife has had Cale 75 percent of the time and Husband has had him 25 percent.

         Husband described his relationship with Cale prior to Husband's filing for divorce stating:

When I would get home I would spend time with him while [Wife] made dinner or if she needed to work on her eBay things. And then usually we'd eat dinner together. And while she cleaned up the kitchen, I would give him a bath, get him ready for bed, and put him down for the night.

         Husband testified that Wife has taken Cale to Canada to visit five times during the past year and a half. The last time they went for two weeks. Husband stated that he "was to be made up the two weeks when she got back. And I got three extra days with him and she said that I had made up my time." Husband also testified that he did not get extended parenting time during the summer. Husband insisted that he wants Wife to be able to visit her family, but admitted that Wife had to go to court to get permission to visit the last time because he opposed it. Husband admitted that he told Wife "It's not fair for you to have a big block of time because I can't take off a big block of time with him."

         Husband testified that he goes to work at 5 a.m. and is off "in the range from 3:00 to 5:00." Husband testified that his mother is home with Grant some days during the week and that Grant also attends daycare. He explained that his mother or father would take Cale to daycare since Husband has to be at work at 5 a.m.

         Husband is a self-employed contractor for Comcast. He makes $22.50 an hour. He listed his income on his income and expense statement as $3, 060 per month. Husband also works "side jobs, " and he testified that he made $580 last year from these jobs. Husband testified that he made $44, 281 the year prior to trial. He was asked about his claim that he makes $3, 060 per month, which would be $36, 720 per year, when his tax returns showed that he made $8, 000 more than that during the last year. Husband admitted that he claimed that he made $3, 060 monthly on his income and expense statement because that was what he made during the month before he filed for divorce. Husband stated that he may have used numbers from 2014 when making the calculation. When questioned further, Husband admitted that his income and expense statement is not a true reflection of what he is earning. He admitted that he also works side jobs and does not report this income on his tax return.

         When questioned, Husband insisted that he never has had a side business of buying and selling motorcycle parts. He admitted, however, that he took multiple loans from the Bank of Dickson in 2012 and 2013, which he told the bank were for the purpose of purchasing motorcycle parts for resale. Husband insisted that he did not lie to the bank, and he did not lie in court. He stated: "It's not - - it's not a business. It's for a hobby. And I've always done that. It's not - - I'm not making money on it. If I buy something, I'll buy it to where I can keep some of the parts to help out my hobby and resell it to get my money back." Husband was asked why if he was struggling to make ends meet and couldn't afford medicine for his child, he borrowed $5, 800 in 2013 to buy and sell motorcycle parts, and he stated: "Grant was not on medication in 2013."

         Husband admitted that he told Wife in April of 2015 that he didn't have enough income to pay his taxes because he had not paid his estimated quarterly payments. He stated that he owed $7, 000. Around this same time, Husband took a loan for $10, 000 at 14.206 percent interest. He admitted that he stated in the "Truth in Lending Disclosure" for this loan that the purpose of the loan was personal, to purchase motorcycle parts. Husband stated: "The 7, 000 was for taxes. The 3, 000 I was going to purchase third-bike parts in order to recoup some of my money. [Wife], after finding out about the loan, that was the final straw, she wanted a divorce. The 3, 000 went towards attorney's fees."

         Husband was asked why he was borrowing $3, 000 for motorcycle parts, and he stated: "To try to sell and make some money to recoup to pay off taxes." He then was asked why he asserted that was not a business if he was earning money, and he stated: "If that would have happened, yes, that would have been a business." Husband insisted it wasn't a business because "I never made money off of it." When pressed, Husband admitted that he had "made money off of parts selling to recoup my money." He then was asked why he had stated earlier that he never made money off it, and he stated: "You're - - I'm having a hard time following which scenario you're talking about. You're talking about the loan with the Bank of Dickson and I'm trying to follow where you're going. You said you're trying to wrap your head around it. I'm doing the same thing." Husband was asked if he purchased something for one dollar and sold it for $2 would he have made money, and he admitted that he would have. Husband then was asked if he had done that with motorcycle parts, and he admitted that he had "[a] few times, yes, ma'am." Husband admitted that this income was not reflected on his income and expense statement.

         After being shown sign-out sheets from the daycare for Grant, Husband admitted that he really wasn't getting off work until close to 4:30 or 5 p.m. and that he did not anticipate that situation changing. He admitted that he would not be picking Cale up at 3 p.m. to do homework and things. Husband admitted that he depends upon his family to help him with Cale.

          Wife testified that she was 29 years old at the time of trial. Wife has an aunt, uncle, and three cousins who live in Tennessee about 30 minutes from Wife's home. Wife's aunt helps Wife with Cale.

         Wife testified that Husband has spent time with Cale almost every day during the pendency of the divorce, whether it was an hour or several hours. She stated that after they separated Husband "did start playing an active role [in Cale's care]." Wife admitted that Husband takes good care of Cale.

         Wife testified that she wants to relocate to Canada with Cale to be close to her family so they can assist her with childcare. Wife proposed a parenting plan giving Husband 99 days a year with Cale until Cale starts school and then 79 days per year. When asked, Wife admitted that she would be unwilling to take 99 days per year. She stated:

I believe I should be the primary residential parent. I have been Cale's caregiver from birth. For the past three years I've been a stay-at-home parent taking care of his everyday needs. We have a very strong bond. It is my hope that I will be the primary residential parent and continue to have that same relationship with Cale. . . . I think having the opportunity to relocate back to where my family is and where I come from would give Cale the best opportunity to succeed. Because I would be able to become more financially secure. I would have the support of my family. And it would just be able to give Cale the best of both worlds. He would still have his visitation with his father and I would be able to provide a good life for Cale.

         Wife did not prepare a proposed plan for staying in Tennessee, but stated that she would still like to be awarded primary custody of Cale if her request to relocate to Canada were denied.

         Wife admitted that she agreed to give Husband two weeks to make up his missed parenting time when she and Cale went to visit Canada. She insisted that she had done so. Wife stated that Husband "chose to make up the time as he could on weekends." She stated:

Because what I originally suggested was that we swap two weeks for two weeks. So I would go to Canada for two weeks and then he would have two weeks here. Keeping in mind that during that two-week period, you know, typically overnight visits and through the day I would be having him and then in the evenings [Husband] would take him. So if you just do an exchange, if you will, it would all kind of even out.
But since he decided to make it up on weekends, I just looked at the time that he missed - - the visitation time that he missed with Cale while I was away and made it up that way.

         When pressed, Wife admitted that Husband did not get two weeks, but got some sort of made-up time. When pressed further about this not being what she agreed to, Wife stated: "He elected not to take two weeks." Wife testified that she offered to allow Husband to make up the missed parenting time on the weekends. When asked if that would be 14 days of weekend time, Wife stated: "If I had given him 14 days of my weekend time, it would have ended up being a lot more visitation that he would have had with Cale as opposed to exchanging a two-week period with a two-week period." Wife was asked why 14 days was not 14 days, and she stated: "I don't know if I'm making myself clear on that. But during that two-week period there are certain weekends that would be his, certain that are mine. During the day would be - - . . . ." Wife was asked if Husband got two weeks, and she stated: "He made up the visitation time that he missed." Wife finally admitted that Husband had not been allowed to make up his 14 days of missed parenting time.

         Wife testified that she began working in a dental office as a receptionist in 2008 making $18 an hour and working approximately 32 to 36 hours per week. When questioned, Wife admitted that "[a]t one point" she was the office manager and that she is "able to do managerial positions as well."

         Since Cale's birth, Wife has been a stay-at-home mother. Wife admitted that during the parties' separation, she has continued to be a stay-at-home mother. Husband continued to pay all of the marital bills since filing for divorce. Wife admitted that she is physically able to work. Wife was asked if she had made any attempt to find a job during the parties' separation, and she stated that she had done some babysitting for a friend. Wife stated that she babysat for three or ...

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