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Burchfield v. Burchfield

Court of Appeals of Tennessee, Nashville

May 21, 2019

APRIL R. BURCHFIELD
v.
D. RYAN BURCHFIELD

          Session January 8, 2019

          Appeal from the Circuit Court for Overton County No. 2014-DV-9 Amy V. Hollars, Judge

         Mother 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.

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

          Thomas F. Bloom, Nashville, Tennessee, for the appellant, D. Ryan Burchfield.

          Melanie Stepp Lane, Jamestown, Tennessee, for the appellee, April R. Burchfield.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         April R. Burchfield Neff[1] ("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.

         Following 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.

         Mother 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.

         After 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."[2] Finally, the court concluded that Father "sought a criminal summons against [Mother] vindictively." Father did not appeal the general sessions court's decision.

         On 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 County.

         Father 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."

         After 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 children unsupervised.

         Father 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

         The 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 Landon's counselor.

         The 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 information.

         Ms. 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.[3] 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."

         Diane 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 anonymous caller.

         Michael 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 baseball games:

A. Somebody had a puppy there and [Paisley] was walking it around and stuff.
Q. Okay.
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."
Q. Okay.
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."

         Mr. 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.

         According 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.

         Debbie 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 kill her."

         Mother 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?
A. Yeah.
Q. What did he do next?
A. At one point he laid down in the snow and made snow ang[els] in the snow.

         According to Mother, she then drove to where Father was parked, and she saw him make a celebratory hand gesture.

         Mother 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.

         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 this incident.

         Mother 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."

         Regarding 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.

         Mother 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.

         Mother 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."

         Mother 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.

         Mother 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."

         Mother 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] house."

         Mother 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.

         Captain 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 ...

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