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Purvis v. Purvis

Court of Appeals of Tennessee, Knoxville

May 22, 2018

JANA LEA PURVIS
v.
DENNIS PATRICK PURVIS, II

          Session November 14, 2017

          Appeal from the Circuit Court for Bradley County No. V-15-514 Lawrence H. Puckett, Judge

         In this divorce case, Dennis Patrick Purvis, II (Father) appeals the trial court's judgment allowing Jana Lea Purvis (Mother), the primary custodial parent, to relocate to California with the parties' two children. The trial court found that Father had physically abused Mother and emotionally abused her and the children. Mother appeals, challenging, among other things, the trial court's order expanding Father's parenting time. She argues that he should be limited to the co-parenting time set forth in her proposed parenting plan. She states that his time should be so limited as mandated by Tenn. Code Ann. § 36-6-406(a)(2) (2017). We find that the evidence does not preponderate against the trial court's findings of abuse. Accordingly, we affirm the trial court's decision allowing Mother to move to California. We modify the parenting plan to vacate the trial court's decision allowing Father visitation in California for one weekend a month in seven months. We affirm the trial court's judgment in all other respects.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in Part and Affirmed in Part; Case Remanded

          Jerry Hoffer, Cleveland, Tennessee, for the appellant, Dennis Patrick Purvis, II.

          Philip M. Jacobs, Cleveland, Tennessee, for the appellee, Jana Lea Purvis.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson, II, J., joined.

          CHARLES D. SUSANO, JR., JUDGE

         I.

         The parties were married on August 3, 2002. Two daughters, ages nine and five at time of trial, were born to the marriage. Mother filed for divorce on July 13, 2015. She alleged that it was in the best interest of the children for her to be named primary residential parent. She requested the court to allow her to move to Chico, California, where she grew up and has family support. Mother sought approval of her proposed parenting plan and an award of spousal support. A five-day trial took place in late 2015. Twenty-seven witnesses testified. At the end, the trial court orally delivered a memorandum opinion that was incorporated into its final judgment.

         The trial court considered each of the fifteen factors set forth in Tenn. Code Ann. § 36-6-106(a) (2017), making extensive and specific findings of fact pertinent to each applicable factor, in determining the best interest of the children. The court found that most factors weighed in favor of Mother, and some weighed equally in both parents' favor. Mother, and some of her other witnesses, testified that Father had emotionally and verbally abused her and the children. She further alleged that Father threw a TV remote control at her in a rage, hitting her in the face, which caused bruising and a black eye. The trial court credited her testimony and discredited Father's testimony. Mother was designated primary residential parent and given permission to move to California, a move the trial court found to be in the best interest of the children.

         At the end of the trial, the court stated it was adopting Mother's proposed parenting plan. Father filed a post-trial motion requesting the trial court to increase his parenting time. On March 8, 2016, a hearing apparently took place on that motion. No transcript of the hearing is in the record. In its final judgment, the trial court adopted Mother's proposed parenting plan but modified it to give Father additional parenting time, including the entire summer vacation instead of roughly half, and every spring break instead of alternating spring breaks between the parties. The trial court declined to award Mother spousal support. Father timely filed a notice of appeal.

         II.

         Father raises the issue of whether the trial court erred in allowing Mother to relocate to California with the children. Mother raises these issues:

Whether the trial court erred in expanding Father's parenting time from her proposed parenting plan, rather than limiting it after a finding of abuse as required by Tenn. Code Ann. § 36-6-406(a)(2).
Whether the trial court erred in declining to order Father to pay spousal support.
Whether Father's appeal is frivolous.[1]

         III.

         A.

         A trial court's decision regarding a parenting schedule is subject to review under the deferential abuse of discretion standard. C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017). As the Supreme Court observed in C.W.H.,

This Court has previously emphasized the limited scope of review to be employed by an appellate court in reviewing a trial court's factual determinations in matters involving child custody and parenting plan developments. Armbrister [v. Armbrister], 414 S.W.3d [685], 692-93 [(Tenn. 2013]. . . . Indeed, trial courts are in a better position to observe the witnesses and assess their credibility; therefore, trial courts enjoy broad discretion in formulating parenting plans. Id. at 693 (citing Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007)). "Thus, determining the details of parenting plans is 'peculiarly within the broad discretion of the trial judge.' " Id. (quoting Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)). Appellate courts should not overturn a trial court's decision merely because reasonable minds could reach a different conclusion. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

Id. (emphasis in original).

         The parties agree that because the trial court made an initial custody determination in this divorce action, the parental relocation statute does not apply in this case. Tenn. Code Ann. § 36-6-108 (stating that the statute applies "[a]fter custody or co-parenting has been established by the entry of a permanent parenting plan or final order" (emphasis added)); see Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *3 n.3 (Tenn. Ct. App., filed Feb. 22, 2013) (parental relocation statute "has been held inapplicable in cases where the trial court is making an initial custody decision or parenting arrangement"), and cases cited therein. "Instead, a best interest analysis applies, and the court should consider the proposed relocation of the parent when making its best interest analysis." Id.

         The governing statute, Tenn. Code Ann. § 36-6-106, provides as follows, in pertinent part:

(a) In a suit for annulment, divorce, separate maintenance, or in any other proceeding requiring the court to make a custody determination regarding a minor child, the determination shall be made on the basis of the best interest of the child. In taking into account the child's best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in this subsection (a), the location of the residences of the parents, the child's need for stability and all other relevant factors. The court shall consider all relevant factors, including the following, where applicable:
(1) The strength, nature, and stability of the child's relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
(2) Each parent's or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child. . . .;
(3) Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;
(6) The love, affection, and emotional ties existing between each parent and the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it relates to their ability to ...

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