APRIL R. BURCHFIELD
D. RYAN BURCHFIELD
Session January 8, 2019
from the Circuit Court for Overton County No. 2014-DV-9 Amy
V. Hollars, Judge
filed a petition for modification of the residential
parenting schedule in a permanent parenting plan. Father
filed a counter-petition for modification of the permanent
parenting plan seeking designation as the primary residential
parent of the parties' two children. After a hearing, the
trial court granted Mother's petition and reduced
Father's parenting time by thirty-seven days based on
conduct by Father that necessitated limiting his residential
parenting time. Father appealed. We affirm the trial
court's judgment in all respects.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
F. Bloom, Nashville, Tennessee, for the appellant, D. Ryan
Melanie Stepp Lane, Jamestown, Tennessee, for the appellee,
April R. Burchfield.
D. Bennett, J., delivered the opinion of the Court, in which
Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J.,
D. BENNETT, JUDGE
and Procedural Background
R. Burchfield Neff ("Mother") and D. Ryan
Burchfield ("Father") are the parents of two
children, Landon (born in December 2006) and Paisley (born in
September 2011). In the final decree of divorce entered on
December 17, 2014, the trial court granted the parties a
divorce on the ground of irreconcilable differences and
approved their permanent parenting plan and marital
dissolution agreement ("MDA"). The permanent
parenting plan designated Mother as the primary residential
parent and provided Father with 141 days of parenting time
per year. Father had parenting time with the children every
other week from Wednesday at 4:30 p.m. until Sunday at 4:30
p.m. and every other Wednesday from 3:00 p.m. until Thursday
at 5:30 p.m. Father also had parenting time during: (1)
alternating holidays, (2) fall and spring vacation every
odd-numbered year, (3) part of winter vacation, and (4) one
week every summer "upon giving 30 days notice." The
parenting plan provided for joint decision-making.
entry of the final decree, conflict between the parties
significantly increased, especially during custody exchanges.
For instance, on March 20, 2015, the parties met in the
parking lot of the Overton County Justice Center to exchange
custody. After transferring the children into Mother's
vehicle, the parties began arguing with one another. Mother
got into her vehicle to leave, and Father remained standing
next to the passenger side of the vehicle. As Mother started
to drive away, Father punched the back passenger door of the
vehicle, which dented the vehicle's door.
filed a petition for an order of protection against Father
based on this incident. After being served with the petition,
Father went to the Overton County Sheriff's Department
and requested that the department charge Mother with
vehicular assault because, as she was driving away on March
20, 2015, she attempted to run over him. The sheriff's
department declined to press charges against Mother due to a
lack of evidence. Father then swore out a criminal summons
against Mother on April 2, 2015, claiming that he struck
Mother's vehicle because she was driving aggressively and
almost hit him.
viewing a surveillance video of the March 20, 2015 incident,
the Overton County General Sessions Court found that
Father's account of events was inconsistent with the
video and granted Mother's request for an order of
protection. The court further found that Father engaged in
conduct meant to inflict emotional harm on Mother and that
his conduct "constitute[d] abuse as defined in Tenn.
Code Ann. 36-3-601; specifically, he struck [Mother's]
vehicle in a malicious manner, attempting to, and actually
causing damage to the vehicle." Finally, the court concluded
that Father "sought a criminal summons against [Mother]
vindictively." Father did not appeal the general
sessions court's decision.
March 26, 2015, Mother filed a petition to modify the
parenting plan in the Circuit Court for Overton County,
alleging that a material change in circumstances had occurred
justifying a modification of the residential parenting
schedule. Specifically, she alleged that Father engaged in
conduct that constituted a pattern of emotional and
psychological abuse, failed to substantially perform his
parenting responsibilities, and used conflict abusively.
Mother requested that the court reduce Father's parenting
time to 52 days per year because his conduct was adversely
affecting the children. Mother also requested that she be
allowed to enroll the children in Pickett County schools
because she had accepted a teaching position in Pickett
filed an answer and amended answer denying all allegations of
misconduct. On July 28, 2015, he filed a motion to prevent
Mother from removing the children from Overton County schools
because she had not submitted the issue to mediation as
required by the MDA. The trial court entered an order on
August 12, 2015, allowing Mother to enroll the children in
Pickett County schools pending a final hearing on
Mother's petition to modify. Consistent with this order,
Mother enrolled Landon in school in Pickett County and
enrolled Paisley in Pickett County's Head Start program.
On two occasions following entry of the court's order,
however, Father took Paisley to daycare in Overton County
rather than to Head Start. Mother filed a motion to compel
Father to take Paisley to Head Start and, on October 26,
2015, the court entered an order permitting Father to take
Paisley to daycare in Overton County "when necessary due
to his work schedule."
an initial round of discovery, Father filed a
counter-petition to modify the parenting plan, requesting
that he be designated the primary residential parent and that
the parties have equal parenting time with the children. He
alleged the following material changes in circumstances that
warranted a modification: (1) Mother misled the court in her
pleadings to enroll the children in Pickett County schools by
alleging that Landon struggled emotionally and academically;
(2) Mother attempted to prevent Father from obtaining
information pertaining to the children's educational
programs; (3) Mother enrolled Landon in counseling without
either conferring with or advising Father and then
discontinued the counseling against the advice of the
counselor; and (4) Mother exercised poor judgment in allowing
Joseph King, a man with a criminal history, to care for the
also requested that the court find Mother in contempt for
registering Paisley in Head Start without Father's
authorization or a court order and for violating the
parenting plan by failing to include Father's information
when she registered Landon at Picket County Elementary.
Finally, Father asked the court to find that Mother
"fraudulently and maliciously" provided erroneous
information on the Pickett County Head Start application and
"intentionally and maliciously" interfered with
Father's relationships with the children.
trial of this matter occurred over the course of eight months
on the following ten days: June 24, 2016; July 29, 2016;
August 1, 23-24, 2016; September 13 and 19, 2016; and October
10, 2016. The court heard testimony from several witnesses
including Mother, Father, the children's teachers, and
first witness to testify on behalf of Mother was Sharon York.
Prior to retiring in February 2016, Ms. York worked as the
center supervisor at Head Start in Pickett County. Regarding
Paisley's Head Start application, Ms. York testified that
she and Mother had busy schedules in 2015, which prevented
them from meeting to complete the application before the
center closed for the summer. Ms. York informed Mother that,
if she brought copies of "her taxes, her birth
certificate, her address, and the three emergency contact
numbers," Ms. York would complete the application for
Mother and then bring it back for Mother to sign. After
obtaining the requisite information from Mother, Ms. York
completed the application, but she intentionally entered
Mother's income as a lower amount than what was reported
on Mother's 2014 tax return because Mother's income
was too high for Paisley to be eligible for Head Start. Ms.
York testified that she falsified Mother's income out of
concern for Paisley: "nine times out of ten . . . the
children out of divorce cases . . . they need some extra
help. They need extra. You know and I did it." Ms. York
further testified that she took the completed application to
Mother, and Mother signed the application without reading it.
Ms. York acknowledged that she neither encouraged Mother to
read the application nor informed her of the falsified income
York also testified about Paisley's attendance record at
Head Start. During the 2015-16 school year, Paisley was
absent thirty-nine days. According to Ms. York, most of
Paisley's absences occurred on days when Father exercised
parenting time. Ms. York testified that, "at first
[Father] would bring her, and then it got to where he
didn't bring her on the days that he had her. Whenever
Mother had her, . . . she only missed one day on a Monday and
she was sick."
Elder also testified on behalf of Mother. Ms. Elder was the
director of schools in Pickett County, where Mother worked.
She testified that she received an anonymous phone call from
a man claiming that Mother had committed fraud. At the time
she received the call, Ms. Elder did not recognize the voice.
When she met with Mother about the phone call, Mother played
her a voice mail message left by Father. After hearing
Father's voice, Ms. Elder identified Father as the
Neff, Mother's current husband, testified next on behalf
of Mother. At the time of trial, Mr. Neff and Mother had
dated for seven months. During the spring of 2016, Mr. Neff
attended some of Landon's baseball games. He described
the following encounter he had with Father at one of the
A. Somebody had a puppy there and [Paisley] was walking it
around and stuff.
A. She was wrapping [the puppy's leash] around my finger.
[Father] had come down off of the bleachers and jerked her up
from out in front of me and says, "You don't need to
be around my kids until you know them as well as I do."
A. I said, "That's the third time." [Father]
said, "This is number four." I said, "This
ain't the time or place for this." And he said,
"Name your time and place."
Neff then testified about Father's behavior during
another one of Landon's baseball games:
A. [Mother] had asked for Paisley to sit down on the
bleachers just to watch her brother and cheer for her
brother, getting used to being there and part of it. Asked
[Father] not to take [Paisley] to the playground, and he had
proceeded to take her over there any way. Then they'd
come back and them two had gotten talking at the time. I
didn't see nothing out of the way, just talking.
Q. You said, "Them two" who?
A. [Mother] and [Father].
Q. Were talking okay.
A. They were just talking. Paisley went down and sat by
[Father] and then come back to [Mother]. And [Mother] told
him, you know, I'd really appreciate if you'd respect
what I want so we can teach Paisley to support her brother.
And he had committed (sic) to walking across saying, "I
don't have to respect anything you want. I'm here for
the kids." He said that about four or five times.
to Mr. Neff, Father followed him after leaving two of
Landon's baseball games. Finally, when asked if he had
ever used any illegal drugs, Mr. Neff responded that he had
smoked marijuana when he was sixteen years old.
Beaty, the maternal grandmother, also testified on behalf of
Mother. She stated that, when the children resided in Pickett
County but still attended school in Overton County, Landon
would sometimes cry and express a desire not to go to school.
According to Ms. Beaty, Landon explained that he felt that
way because "the work was harder. He had a lot of
homework, and travel." She also testified about
statements Father had made to Landon. Specifically, she
stated that Landon mentioned to her that Father "said
that he wished [Mother] was dead and he wished that he could
also testified at trial. She stated that, shortly after entry
of the final decree, Father began behaving inappropriately
when the parties exchanged custody of the children. On
February 18, 2015, Mother arrived with the children at the
Overton County Justice Center. She stated that she parked in
the lower section of the parking lot that day rather than in
the upper section where she usually parked because there was
snow and ice on the ground. She believed the lower section
would be safer for the custody exchange because there was
gravel in that area. Mother explained that, at that time, she
was concerned about safety precautions because Landon had
recently broken his arm. When Father arrived, he parked in
the upper section where the parties usually exchanged the
children. Mother testified that she sent Father a text
message informing him that she had parked in the lower
section and explaining why she had parked there. Father
refused to drive down to where Mother was parked and insisted
that she drive to where he was. Mother stated that, when she
did not drive to where Father was parked, he exited his
vehicle and acted as follows:
A. He starts jumping up and down in the snow. I guess he was
cold and then he picks up snow and makes snow balls and
starts to throw them. Throw some at my Jeep.
Q. Did he hit your Jeep?
Q. What did he do next?
A. At one point he laid down in the snow and made snow
ang[els] in the snow.
to Mother, she then drove to where Father was parked, and she
saw him make a celebratory hand gesture.
testified that Father also acted inappropriately during a
custody exchange on March 5, 2015. Mother's father,
Junior Beaty, accompanied her to the exchange because the
roads were hazardous due to a recent accumulation of snow. As
Father arrived with the children, he saw Mr. Beaty in
Mother's car. Mother stated that Father then pulled away
and began "shaking his finger at [her] like no, no,
no." When she called and asked him why he did not stop,
Father informed her that he would not exchange the children
if Mr. Beaty was present. He then told Mother that she would
have to get a warrant to make him return with the children.
Upon the request of Mother, a deputy from the Overton County
Sheriff's Department intervened and informed Father that
a warrant could be arranged if he did not return with the
children. Thereafter, Father returned and delivered the
children to Mother.
next testified about the March 20, 2015 incident when Father
punched her vehicle. She stated that, at the beginning of
March she enrolled Landon to play baseball in Pickett County
because he told her that was where he wanted to play.
According to Mother, she then notified Father that she had
enrolled Landon to play baseball in Pickett County. During
the March 20, 2015 custody exchange, Father informed Mother
that he had enrolled Landon to play baseball in Overton
County. Mother testified that she and Father then transferred
the children to her vehicle and began to argue. She informed
Father that she did not want to argue and returned to her
vehicle. As she began to drive away, Father punched her rear
passenger door. Mother stated that "Paisley was
screaming because it scared her so bad." Mother
testified that, as of trial, Paisley continued to mention
testified that Father began acting inappropriately at times
other than during custody exchanges. For instance, he
followed her on several occasions after the parties exchanged
the children. On one occasion, Father went to the school
where Mother worked and called her a "f***ing
b***h" in front of Landon. Mother stated that, during
one of Landon's baseball games, she approached Father
with Paisley in her arms and asked him "to help [her]
and respect what [she] was trying to teach the kids. And he
said, 'I don't have to respect you.'" Father
then grabbed Paisley's arm. According to Mother, Paisley
started crying and said, "Daddy hurt my arm."
Paisley's attendance at Head Start, Mother testified that
she missed thirty-nine days, but only three of those absences
occurred during Mother's parenting time. Paisley also
missed her graduation from Head Start, which occurred during
Father's parenting time. Aware that the ceremony would
occur during Father's parenting time, Mother offered to
take Paisley to the ceremony and then return her to Father
afterwards because Paisley had expressed a desire to attend.
Father replied that "he would have to think about
it." Mother testified that she sent Father a text
message several days later making the same offer, but she
never received a reply. According to Mother, she did not pick
Paisley up from daycare in Overton County and take her to the
graduation ceremony without Father's permission because
she feared that he would call the police.
testified that she informed Father that she wanted to enroll
Landon in counseling, but Father "didn't want to do
it. He didn't think it was a good idea." Although
Mother did not have Father's consent, she enrolled Landon
in counseling with Sheila Masters. Mother stated that she
felt proceeding with the counseling was her only option
because she believed Landon was having trouble coping with
the divorce. He did not eat or sleep well and had become
moody and "very emotional." After enrolling Landon
in counseling, Mother learned that Father had been attending
separate family counseling with both children. She testified
that the separate family counseling did not bother her.
Rather, she was upset that it appeared that Father "was
trying to be secretive" about it.
also testified that Paisley was aware of the conflict between
the parties. She stated that Paisley expressed concern that
Father had a picture of Mother and Mr. Neff on his phone.
According to Mother, Paisley told her she was confused about
the picture "[b]ecause daddy doesn't like you."
stated that there is very little communication between the
parties. She stated that the children "miss out on
things," such as Paisley's Head Start graduation
ceremony, because Father refused to answer phone calls or
respond to text messages. Asked what happened when the
parties did communicate, Mother testified as follows:
I physically dread having to talk to [Father] about anything,
and I don't like that I feel that way. But it is never
easy trying to talk to him. I mean, it's - it's the
littlest things become the most dramatic ordeals.
I mean, I feel like that, no matter what I say, how I say it,
how I present it, there's going to be a problem. I'm
not going to get it right, and there will be an issue with
it, no matter what it is, in some way.
stated that, when she signed Paisley's Head Start
application, she was not attempting to deceive anyone. She
provided the information that Ms. York requested, and Ms.
York completed the application. Mother testified that Ms.
York then presented her with the completed application, and
Mother signed the document without reading it because she
"trusted that it was right."
testified that, according to the children, Father repeatedly
told them that "whatever he buys stays with him,
whatever goes to his house stays at his house, whatever is at
his house stays at his house." For instance, Father
required that Landon's Overton County baseball uniform
remain at Father's home and, when Landon received a
baseball trophy in Overton County, Father "took his
trophy and told him that it would stay at [Father's]
stated that she dated Joseph King for approximately three
months in early 2015. When Mother began dating Mr. King, she
knew he "had a thing for partying and being pretty
wild" in the past, but she believed he had changed
because she spoke to members of his family and was told that
he "had been doing really good." Mr. King sometimes
interacted with the children, but usually when Mother was
present. Mother admitted that, on one occasion, she permitted
Landon to ride in a truck with Mr. King. She testified,
however, that she drove closely behind the truck the whole
time. Mother's relationship with Mr. King ended in June
2015 when he assaulted her. Mother stated that she reported
the assault to the police and that neither she nor the
children have had any contact with Mr. King since that time.
Newell Leroy Routh, IV, testified on behalf of Father. He had
served with Father in the military. Captain Routh stated that
Father had worked as a recruiter under his command and Father
determined his own work schedule as a recruiter. Captain
Routh explained as follows:
All we ask that our recruiters do is that they work eight
hours a day. . . . I've seen some at 3:30 in the
afternoon and I've seen them go to 1:00 at night. . . .
these guys don't really have a set schedule. So we call
it a Swiss cheese schedule. They're in and ...