Session November 14, 2017
from the Circuit Court for Bradley County No. V-15-514
Lawrence H. Puckett, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated in Part and Affirmed in Part; Case
Hoffer, Cleveland, Tennessee, for the appellant, Dennis
Patrick Purvis, II.
M. Jacobs, Cleveland, Tennessee, for the appellee, Jana Lea
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
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
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.
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.
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.
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
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 , 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).
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.
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
(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 ...