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In re Audrey T.

Court of Appeals of Tennessee, Nashville

June 18, 2018

IN RE AUDREY T.

          Session November 9, 2017

          Appeal from the Chancery Court for Putnam County No. 2009-395 Ronald Thurman, Chancellor.

         In this post-divorce proceeding, Father appeals the reduction of his parenting time. Because he has failed to include a transcript or statement of the evidence in accordance with Rule 24 of the Tennessee Rules of Appellate Procedure, we presume that the evidentiary record supports the trial Court's decision. Accordingly, we affirm the judgment.

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

          Bo C. Murphy, Cookeville, Tennessee, for the appellant, Troy Taubert.

          Michael Savage, Livingston, Tennessee, for the appellee, Mary Durham.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

          MEMORANDUM OPINION[1]

          RICHARD H. DINKINS, JUDGE.

         I. Factual and Procedural History

         Mary Durham ("Mother") and Troy Taubert ("Father") are the parents of Audrey, born in December 2007. Mother and Father were declared divorced on May 6, 2011; the parenting plan incorporated in the decree named Mother as primary residential parent; ordered her to pay $97 per month in child support; granted Father 137 days of parenting time per year, to be exercised from Friday at 5 p.m. to Sunday at 5 p.m. every other week and from Monday at 5 p.m. to Wednesday at 5 p.m. on the alternate weeks; and ordered Father to pay for daycare.

         Over the next several years, the parties litigated issues relating to child support and parenting time. At some point, the Child Support Enforcement Unit of the Tennessee Department of Human Services became involved and filed on Mother's behalf a petition for modification of Father's child support obligation due to "a significant variance" in his income and sought a judgment for any retroactive child support arrearages resulting from the modification. A temporary agreed order was entered on December 8, 2014, requiring Father to pay $295 per month in support for Audrey. A hearing on the child support matter was continued numerous times, and in the interim Mother filed the petition to modify and for contempt at issue in this case.

         Mother's petition to modify alleged that various of Father's actions while exercising his parenting time constituted a substantial and material change of circumstances warranting a reduction in his parenting time; Mother attached a proposed parenting plan that reduced Father's parenting time to 66 days per year, to be exercised every other weekend. With respect to Father's contempt, the petition alleged that Father had not paid his share of Audrey's medical and dental bills, refused to facilitate phone calls between Audrey and Mother, and unilaterally changed the place of exchange. Father responded, denying the allegations of Mother's petition and seeking an increase in his parenting time and to have Mother held in civil contempt.

         Mediation was not successful, and a hearing was held on March 21 and April 11, 2016. The court entered an order on October 28 in which it: found Father guilty of three counts of contempt; awarded Mother judgments in the amounts of $184.70 for Father's portion of medical and dental expenses and $11, 003 for daycare expenses; modified Father's child support obligation and awarded Mother a judgment against Father in the amount of $9, 599 for arrearages; and ordered Father to pay all childcare/daycare expenses. Finding a substantial and material change in circumstances had occurred, the court reduced Father's parenting time to 68 days per year.

         Father appealed. While the appeal was pending, the parties (Father, Mother, and the Department of Human Services) filed a joint motion requesting a remand for the purpose of considering a settlement vacating and dismissing the finding of contempt and vacating the child support judgments for a new trial but leaving the appeal of the modification of the parenting plan pending in this Court. The motion was granted on June 27, 2017, staying all proceedings on appeal. On remand, the trial court dismissed the finding of contempt and vacated the child support judgments upon a finding that the record contained insufficient evidence to support them. The parties subsequently filed a Joint Motion for Partial Dismissal in this Court, and by order entered August 1, 2017, we granted the motion and dismissed the appeal "as to the finding of contempt and the child support judgments" ...


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