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Akins v. Akins

Court of Appeals of Tennessee, Nashville

July 3, 2019

MARY ALICE AKINS
v.
GRIFF ELLIOTT AKINS

          Session June 5, 2018

          Appeal from the Chancery Court for Wilson County No. 2014-CV-223 Charles K. Smith, Chancellor

         In this appeal, the father sought to revise the permanent parenting plan in order to permit him greater participation in the life of his daughter. The trial court denied the requested revision, finding that the father had failed to prove by a preponderance of the evidence that there had been a material change in circumstances that affected the child's best interest. The father appeals. We affirm the trial court's ruling regarding the permanent parenting plan, but we vacate the award of attorney's fees and costs.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part and Vacated in part; Case Remanded

          James L. Collier, Nashville, Tennessee, for the appellant, Griff Elliott Akins.

          John L. Meadows, Lebanon, Tennessee, for the appellee, Mary Alice Akins.

          John W. McClarty, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE

         I. BACKGROUND

         The Defendant/Petitioner, Griff Elliott Akins ("Father"), and the Plaintiff/Respondent, Mary Alice (Eckel) Akins ("Mother") were divorced in April 2013. They have one child ("the Child") who was born in 2008, and was, at the time of trial, eight years of age. A permanent parenting plan ("the parenting plan") was incorporated with the final divorce decree. It listed Mother as the Primary Residential Parent with 265 days of residential parenting time. Father was awarded supervised parenting time of 100 days, including every other weekend and alternating weeks during the summers. At the time of the divorce, Father suffered from various illnesses, including a bipolar condition and migraine headaches. His health and medication needs affected his parenting ability, which is the reason the parenting plan required Father to have supervised visitation. His time with the Child was to be supervised by Father's mother. Mother was given sole decision making authority regarding the Child's education.

         In the initial request for modification, Father alleged that his health had significantly improved. He noted that his bipolar condition and migraines were under control and that he had discontinued the use of narcotic drugs.[1] Father also asserted increased flexibility in his work schedule, claiming that he "could kind of get off work" when he wanted to attend to any matters for the Child. Additionally, he contended that Mother and the Child had moved closer to his residence.

         On May 6, 2014, the parties entered into an agreement modifying the parenting plan in order to gradually remove Father's supervised visitation.[2] Upon each visit, so many days of supervised visitation were to be removed until none remained. The agreed order provided that "Father's parenting time shall be supervised by his current fiancé, Valerie Wemli, for one hundred twenty days to gradual unsupervised parenting time at the end of one hundred twenty day time period." The order further stated "[t]hat Father's parenting time shall be fully supervised for at least sixty days and then shall gradually become unsupervised with short to longer increments of unsupervised parenting time. That other approved supervisors shall supervise Father's overnight parenting time until Father and his fiancé marry . . . ."[3] Additionally, Father's weekend parenting time was extended from Sunday to Monday, with Father taking the Child to school on Mondays (instead of returning her to Mother on Sundays).

         On March 4, 2015, Father filed a Petition to Terminate/Suspend Alimony and a Petition for Contempt. He also filed another Petition to Modify, seeking to increase his time with his daughter because his medical condition had resolved, stepmother and the Child had developed a meaningful relationship, and his working conditions gave him more flexibility in his work schedule and required him to work less hours. By the time of trial, however, Father dropped all of his claims except for his request for co-equal visitation.

         A hearing was held on January 12 and 13, 2017. During Father's testimony, it became apparent that little had truly changed since the June 2014 agreement. The trial court found that Father did not prove by a preponderance of the evidence that there had been a material change of circumstances affecting the Child's best interest since June 5, 2014. The court entered its final order granting Mother's oral motion to dismiss on February 27, 2017. This timely appeal followed.

         II. ISSUES

         Father raises the following issues on appeal:

1. Whether the trial court erred in finding that Father had not met his burden of proof in regard to whether there had been a substantial and material change in circumstances such that ...

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