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Scot v. Scot

Court of Appeals of Tennessee, Nashville

May 31, 2019


          Session March 5, 2019

          Appeal from the Chancery Court for Williamson County No. 41786 Robert E. Lee Davies, Senior Judge

         This case involves competing petitions to modify a parenting plan and child support. The trial court denied the father's request to be designated as the primary residential parent, granted the mother sole decision-making authority, and enjoined the father from certain activities. The trial court also refused to decrease the father's child support obligation and awarded the mother $55, 000 in attorney's fees. With regard to the trial court's modification of primary residential parent designation and the residential parenting schedule, we conclude that the trial court failed to make sufficient findings of fact and failed to conduct an appropriate best interest analysis. We also conclude that the trial court miscalculated the father's child support obligation by allotting to him an incorrect number of parenting days and by relying on his anticipated income rather than his actual income in the child support worksheet. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Vacated In Part, Modified in Part and Remanded

          P. Marlene Boshears, Franklin, Tennessee, for the appellant, Todd Scot.

          Neil Campbell and Marissa L. Walters, Franklin, Tennessee, for the appellee, Erin Dawn Scot.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.



         I. Background and Procedural History

         Erin Scot ("Mother") and Todd Scot ("Father") divorced in June 2013. The parties have two minor children, a nine-year-old son and a six-year-old daughter. The original parenting plan named Mother the primary residential parent with 265 days of parenting time. Following the divorce in 2013, Mother and the two minor children lived in Franklin, Tennessee for approximately one year. When Mother attempted to move to Fairview, Tennessee in August 2014, Father impeded the process.[1] Eventually, Mother moved to Fairview and met Jamie Ferrell, a former police officer with the Fairview Police Department. The two began dating, and in November 2015, Mother and the two children moved in with Mr. Ferrell.

         After Mother and the two children moved in with Mr. Ferrell, Father began harassing them. For example, Father sent mail to their home, later asking the mail person whether Mother or Mr. Ferrell signed for the mail; Father ran background checks on Mr. Ferrell and requested his personnel file from the Fairview Police Department; Father frequently made derogatory posts on social media about Mr. Ferrell as well as the ongoing custody battle between him and Mother; and Father shared Mother's private medical information with Mr. Ferrell's former wife.

         At the time of the divorce, Father was employed at Ernst and Young. His job required him to travel a great deal, and, as a result, he did not exercise the 100 days of parenting time allotted to him in the parenting plan. However, once Father was terminated from Ernst and Young, he exercised his parenting time on a much more regular basis and, since the spring of 2017, has not missed a day of parenting time.[2]

         On May 2, 2017, Father filed the current petition to modify the parenting plan so as to designate him as the primary residential parent and to increase his number of parenting days from 100 to 250 and to decrease Mother's number of parenting days from 265 to 115. In his petition, Father alleged, among other things, that Mother had kept him from exercising his parenting time with the children, that Mother had discouraged the children from having a relationship with him, and that Mother had prohibited the children from communicating with him via video chat. On May 24, 2017, Mother filed her answer and counter-petition to modify the parenting plan, requesting, among other things, a decrease in Father's parenting time from 100 days to 80 days and to grant her sole decision-making authority. Mother also denied Father's allegations, noting his failure to exercise parenting time and stating that his conduct had made it impossible for the parties to make joint decisions.

         On March 5, 2018, the trial court entered a memorandum order, modifying certain aspects of the permanent parenting plan. Among other things, the trial court granted Mother sole decision-making authority, limited Father's weekly communications with the children, [3] and enjoined Father from discussing child support payments with the children, recording or video-chatting with the children, signing the children up for any extracurricular activities, posting any information about the case on social media, and getting out of his vehicle when picking the children up from Mother's residence. Additionally, the trial court denied Father's request to be designated the primary residential parent as well as Mother's request to decrease Father's parenting time to 80 days. The trial court did not modify Father's child support obligation and, finding many of Father's pleadings frivolous, awarded Mother $55, 000 in attorney's fees. Father timely appealed.

         II. Issues Presented

         As we perceive it, Father raises six issues on appeal, which we rephrase as follows:

1. Whether the trial court erred by refusing to modify the parenting plan so as to designate Father as the primary residential parent.
2. Whether the trial court erred in its modification of the parenting plan with regard to the residential parenting schedule, including the limitations it placed on Father's parenting rights.
3. Whether the trial court erred in its ruling on child support.
4. Whether the trial court erred in considering confidential information protected by statute.
5. Whether the trial court erred in awarding Mother attorney's fees.
6. Whether Father should be granted attorney's fees and costs on appeal.

         III. Standard of Review

         In Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013), the Tennessee Supreme Court set out the standards that apply to appellate review of a trial court's resolution of a petition to modify an existing permanent parenting plan:

In this non-jury case, our review of the trial court's factual findings is de novo upon the record, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). We review the trial court's resolution of questions of law de novo, with no presumption of correctness. Kendrick, 90 S.W.3d at 569. Statutory interpretation is a question of law, which we review de novo. Mills v. Fulmarque, 360 S.W.3d 362, 366 (Tenn. 2012).
A trial court's determinations of whether a material change in circumstances has occurred and whether modification of a parenting plan serves a child's best interests are factual questions. See In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). Thus, appellate courts must presume that a trial court's factual findings on these matters are correct and not overturn them, unless the evidence preponderates against the trial court's findings. See Tenn. R. App. P. 13(d); In re C.K.G., 173 S.W.3d at 732; Kendrick, 90 S.W.3d at 570; Hass, 676 S.W.2d at 555.

Armbrister, 414 S.W.3d at 692.

         IV. Discussion

         A. Modification of the Parenting Plan

         Tennessee courts apply a two-step analysis to requests for a modification of the primary residential parent and a modification of the residential parenting schedule. See Id. at 697-98; see also Gentile v. Gentile, No. M2014-01356-COA-R3-CV, 2015 WL 8482047, at *4 (Tenn. Ct. App. Dec. 9, 2015). In both requests for modification, the threshold issue is whether a material change in circumstance has occurred. Armbrister, 414 S.W.3d at 697-98. However, a material change in circumstance with regard to a primary residential parent is "a distinct concept" from a material change in circumstance with regard to a residential parenting schedule. Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007); see also Tenn. Code Ann. §§ 36-6-101(a)(2)(B) and 36-6-101(a)(2)(C).

         If the parent requests a modification of the primary residential parent designation, that parent must "prove by a preponderance of the evidence a material change in circumstance." Massey-Holt, 255 S.W.3d at 607. A material change in circumstance in this context may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation, or other circumstances that make the parenting plan no longer in the best interest of the child. See Tenn. Code Ann. ยง 36-6-101(a)(2)(B). The change must have occurred after entry of the order sought to be modified, and the ...

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