from the Circuit Court for Davidson County No. 09D-3512
Philip E. Smith, Judge No. M2018-01634-COA-R3-CV
appeal results from Father's petition in opposition to
relocation. Trial on the petition was held over a period of
more than a year. Ultimately, the trial court granted
Father's petition in opposition and modified the
parties' child support obligation to take into account
their changed incomes. We vacate the trial court's
determination of Father's income for child support
purposes, but affirm the trial court's rulings in all
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part; Vacated in Part; and Remanded
Jeffrey L. Levy, Smyrna, Tennessee, for the appellant, Jill
Crowell Fichtel (Zirwas).
L. Jackson and Elizabeth A. Garrett, Nashville, Tennessee,
for the appellee, Christopher Conrad Fichtel.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Kenny Armstrong and Carma D. McGee, JJ.,
STEVEN STAFFORD, JUDGE
parties, Petitioner/Appellant Jill Crowell Fichtel (Zirwas)
("Mother") and Respondent/Appellee Christopher
Conrad Fichtel ("Father") divorced in 2010. The
parties' permanent parenting plan named Mother primary
residential parent of their two children, Thomas, born in
2005, and Audrey, born in 2007. Father was awarded 134
parenting days with the children, and Mother, who earned a
significant income as a physician, was ordered to pay child
support. Following the divorce, the parties
appeared to cooperate well in parenting the children, often
exchanging days based on scheduling. The parenting plan also
provided that the children were to attend parochial school at
Mother's sole expense.
married Liege Fichtel ("Step-Mother") in February
2013. The children attended the wedding. Step-Mother admitted
that she is an alcoholic who has been maintaining her
sobriety for several years. Step-Mother has two minor sons,
one of which has an Autism Spectrum Disorder.
subsequently became engaged to another physician, Matt Zirwas
("StepFather") who lives and practices in Ohio.
Although Step-Father sought employment in Nashville, he was
not able to find comparable employment as a medical school
professor. Step-Father has two minor children who reside with
him half of the time. As such, Mother made the decision to
relocate to Ohio. On or about April 20, 2013, Mother and
Step-Mother had lunch wherein Mother informed Step-Mother of
the proposed move. Without Father's participation, Mother
informed the children of the move. They were understandably
sent formal notification of her planned relocation on April
24, 2013. According to Mother, Father initially agreed to the
move, citing an email in which Father stated he would look
over and sign a modified parenting plan. Father, however,
asserts that he never formally agreed to the move, again
citing text messages in which his reluctance to agree was
demonstrated. On May 22, 2013, Father filed a petition in
opposition to the relocation in the Davidson County Circuit
Court ("the trial court"). In addition to
requesting that the relocation be denied, Father asked that
if Mother nevertheless chooses to relocate, he be named
primary residential parent, the parties' parenting plan
be modified to provide equal time, and child support be
modified pursuant to the Tennessee Child Support Guidelines.
7, 2013, Mother responded in opposition to Father's
petition. Mother also filed a counter-petition seeking to
modify the parties' permanent parenting plan and child
support obligations and to hold Father in criminal contempt.
Therein, Mother asserted that she was blind-sided by
Father's opposition to the relocation, as she believed
the matter had been amicably resolved with Father's
consent to the relocation. Mother noted that based on this
alleged consent, she had given notice to her employer that
her employment was to terminate on June 9, 2013, and she
could not get her job back. Mother also noted that a
non-compete clause prevents her from working in the Nashville
area for a period of one-year and her home has been placed on
the market. Mother generally argued that she should be
allowed to relocate because she spent substantially more time
with the children and she was the children's primary
caregiver. Mother also noted Father's nonchalance and
even willful failure in responding to Thomas's
developmental issues, including testing and treatment for his
Attention Deficit Hyperactivity Disorder ("ADHD").
Mother noted that she had located an appropriate school for
Thomas in Ohio. Thomas's diagnosis and treatment would
become a central issue in this case.
criminal contempt claim stemmed, inter alia, from
her allegation that Father was viewing pornography despite a
provision in the parties' parenting plan prohibiting such
conduct. Mother requested that the parties'
residential parenting schedule be amended to accommodate her
anticipated move to Columbus, Ohio and that the plan "be
further modified to name Mother as the sole decision maker,
or at least the tie breaker with regard to educational
decisions, non-emergency healthcare decisions, and
extra-curricular activities for the minor children."
on the petition in opposition to the relocation was held over
twenty-two non-consecutive days from November 19, 2013 and
November 14, 2014. By the time of trial, Mother had married
Step-Father; the children did not attend the wedding. Mother
had also obtained employment in Ohio working only a few days
per week making approximately $240, 000.00 per year. Prior to
the termination of her employment in Nashville, she earned in
her most recent year approximately $850, 000.00. There was
considerable dispute as to whether Mother was on call for her
Nashville employment; in any event, she testified that she
looked for other similar jobs and was unable to find a
comparable one and that she wanted to decrease her hours in
order to spend more time with the children. During trial, the
parties provided extensive evidence concerning the parenting
schedule. Prior to the requested relocation, the parties were
able to make adjustments to accommodate each parent's
schedule, resulting in Father having more time than the
parenting plan provided. Following the filing of the
opposition petition, however, Mother insisted that the
parties abide by the parenting plan. Following trial, on
March 23, 2015, the parties entered into a stipulation
setting forth which parent was entitled to claim all but a
few of the parenting days both prior to the petition being
filed and prior to the first hearing date.
parties presented substantial evidence concerning the best
interest factors, including expert proof about the effect of
the relocation/change in custody on the
children. Mother testified that Father was initially
unwilling to seek treatment for Thomas's issues,
including boundary and attention deficiencies. Eventually,
Mother took Thomas to have diagnostic testing at Currey
Ingram Diagnostic Center. Father did not submit required
forms prior to the testing and Mother characterized his
involvement with the testing as uncooperative. Based on the
testing, Thomas was eventually diagnosed with ADHD;
medication was recommended. Again, Father was initially
unwilling to medicate Thomas; Father eventually relented,
however, and both parties agree that the medication has been
very helpful to Thomas. Father testified that his reluctance
to medicate Thomas was based on his knowledge as a pharmacist
and his desire to try other treatments prior to medication.
Although Thomas's school was able to make accommodations
for Thomas's needs, Mother testified that she had located
a school in Ohio, Marburn Academy that is a top school to
meet Thomas's needs. Mother testified that Thomas has
made friends in Ohio. Mother also testified that if Thomas
stayed in Nashville, he should be moved to Currey Ingram
Academy, a similar school. The principal of Currey Ingram
Academy testified that both it and Marburn Academy were
excellent schools to meet Thomas's needs; she could not
opine as to whether Thomas's current school was
comparable, but was concerned about the large class size.
testified that Father works long hours and therefore spends
little quality time with the children; for example, Mother
testified that on a number of occasions, Father brought the
children with him to work during his time or allowed other
members of his or Mother's family to care for the
children. Moreover, Mother testified that a large
portion of Father's time with Thomas includes playing
violent video games; in contrast, Mother's time with the
children involves board games and other age-appropriate
activities. According to Mother and her witnesses, Father
allowed Audrey to go to school in a dirty disheveled state on
more than one occasion.
also testified that Father is generally not involved in the
children's doctors' visits, school activities,
church, or extracurricular activities. Father testified,
however, that the parties agreed to change the children's
doctor to one whose office is in the same building as
Mother's office, making it more convenient for Mother to
attend doctor's visits. Moreover, the children attend
church at their parochial school; Father, however, not
Catholic, and the children's principal testified that it
is not unusual for non-Catholic parents not to attend
Catholic Church services. With regard to medical care Mother
stated that Father forgot to give Audrey required allergy
medication on several occasions. Father conceded that he may
have forgotten from time to time, but asserted that he is
cognizant of the children's medical needs. Father
countered that Mother chooses to keep a cat in her home
despite Audrey's allergies, a choice that necessitates
Audrey taking regular allergy shots. Mother asserted that the
choice to keep the cat was Audrey's.
testified that he enjoys substantial quality time with the
children, including playing video games, traveling, and
fishing, which Audrey particularly enjoys. Father denied that
he did not attend the children's activities and events;
rather he asserted that Mother prevented him from scheduling
some events, including tennis practices. Father listed
various events he attended with the children, including some
parent-teacher conferences, school trips, the school
carnival, and a Halloween party. There was some testimony
that Thomas was being bullied by Step-Mother's sons;
Father and Step-Mother testified that all alleged bullying
against Thomas had now been remedied. Father testified,
however, that Thomas had bullied another child at school and
shown no remorse. Father indicated that he approved of
corporal punishment against Thomas in this instance, unlike
also testified to other alleged actions taken by Mother after
the filing of the opposition petition, such as sneaking into
Father's home to take pictures of his secured gun and
prompting Thomas to send a video to Father asking that he
spend more time with the children. Mother and Thomas both
denied that Mother was involved with the filming of the
video; Mother later admitted that she was holding the phone
during the recording.
parties presented expert testimony concerning the effect of
the relocation on the children. Father's expert, Dr.
Bradley Freeman, a psychiatrist, generally testified that the
children's best interests were served by allowing them to
remain in Nashville, where their school, friends, and most of
their family reside. In particular, Dr. Freeman testified
that relocating to Ohio "would be unduly difficult for
Thomas." Dr. Freeman reached this conclusion based on
Thomas's ADHD diagnosis, which can make changes in
environments difficult for children. Dr. Freeman also noted
that the relocation would result in a significant decrease in
Father's involvement with Thomas, a troubling change
given their close relationship. As evidence of this close
relationship, Dr. Freeman noted Thomas's statement that
he would miss Father more than Mother. Dr. Freeman testified
that the child's attachment to Father was appropriate and
healthy. In Dr. Freeman's opinion, ambivalent attachment
is rare and occurs in abusive situations not present in this
Freeman also noted that it is only recently that Thomas has
been able to make friends in his school and that a change
could disrupt his progress. Although Dr. Freeman noted that
Thomas does have some friends in Ohio, he also testified that
they were not as close. Dr. Freeman explained that any issues
of bullying with Thomas's step-brothers had ceased.
Another factor in Dr. Freeman's opinion was his belief
that a move would take Thomas away from David Thomas, the
therapist with whom Thomas has made substantial progress.
to Dr. Freeman, Audrey strongly identifies with Mother.
However, he still opined that the move was not in
Audrey's best interest. Dr. Freeman conceded that the
relocation would be less difficult for Audrey but testified
that she would still encounter difficulties, as adapting to
change and seeing less of Father would not be ideal. In
support, Dr. Freeman noted Audrey's strong and repeated
preference that both she and Mother stay in Nashville.
Freeman also expressed concern that Mother testified she
would move to Ohio regardless of the trial court's
ruling. To Dr. Freeman, this decision illustrated that
Mother's priority was her marriage, rather than her
children. Dr. Freeman explained that this opinion was
bolstered by Mother's decision to call Thomas to testify,
well as Mother's decision to call Thomas's ongoing
therapist, David Thomas, to testify, which Dr. Freeman
testified could harm the therapeutic
relationship. Dr. Freeman also testified that he was
highly suspicious that Thomas's video was made
independently and unsolicited by Mother. Finally, Dr. Freeman
opined that children would suffer more harm from a move than
a change in custody.
expert, Dr. David McMillan, a licensed community
psychologist, disagreed with Dr. Freeman's conclusions.
According to Dr. McMillan, Dr. Freeman focused too heavily on
the children's preferences, rather than the question of
whether a move to Ohio was better for the children than a
change in custody. As an initial matter, Dr. McMillan did not
find that Thomas's ADHD was a relevant factor in the
relocation analysis, as there would "be trouble"
with Thomas regardless of where he moved. Moreover, Dr.
McMillan testified that while Thomas's attachment to
Father is "strong," it is not secure; rather, the
attachment is ambivalent and essentially desperate due to
Father's only sporadic involvement in Thomas's life.
In contrast, both Thomas and Audrey have a strong and secure
attachment to Mother, who is their confidant.
McMillan also evaluated whether each parent was exhibiting
healthy parenting. According to the criteria used by Dr.
McMillan, Mother was clearly the healthier parent, taking
into account Thomas's special needs. Dr. McMillan
particularly took issue with two of Father's choices: (1)
to use physical punishments against Thomas, an already
sensitive and anxious child; and (2) to allow Thomas to play
video games, which are known to be inappropriate for children
with ADHD or those that lack empathy. Dr. McMillan also
testified that Mother's organizational skills are
integral to Thomas's success and that during interviews
Father and Step-Mother criticized Mother, suggesting that
they are not facilitating the children's relationship
McMillan also took issue with Dr. Freeman's finding that
Thomas has closer friends in Nashville. For example, although
Thomas did state that he had a best friend in Nashville, this
friend has repeatedly declined to go on play dates with
Thomas. Further, Dr. McMillan noted that Thomas stated that
he "mostly" wants to go with Mother to Ohio.
McMillan further testified that Mother's relocation
should be permitted because the move will make Mother happy,
and by extension, the children. Dr. McMillan opined that it
is healthy for Mother to desire an intact family unit and
that it is healthy for children to be a part of such a
family. Because Mother is the primary residential parent, Dr.
McMillan testified that her decision to move to Ohio should
be respected as Mother has the right to weigh the cost and
benefit of the move "her way." Finally, Dr.
McMillan testified that any change in custody to Father would
cause more harm to the children than if the children were
allowed to relocate to Ohio with Mother.
current income was also at issue due to Father's
self-employment. Following the divorce, Father opened his own
pharmacy. His 2013 tax return showed wages of $442, 068.00.
As detailed infra, Father's certified public
accountant, Ronald Williams, testified by deposition that
Father's actual useable income was much lower, as certain
profits were invested back into the business. Mother did not
offer her own expert to rebut Mr. Williams's testimony.
trial court issued a detailed and thorough memorandum order
on May 17, 2016. In its order, the trial court detailed the
testimony of every witness, as well as the weight and
credibility to be assigned to their testimony. The trial
court found that of the eleven disputed days in the year
prior to the first hearing date, six would be assigned to
Mother and five to Father; as such, the trial court found
that Mother exercised 55% of the time with the children,
which the trial court found was substantially equal. The
trial court also rejected Mother's argument that Father
should not be allowed to contest the relocation under
theories of equitable estoppel and unclean hands. In support,
the trial court noted that Tennessee Code Annotated section
36-6-108(a) gave Father thirty days in which to contest the
relocation and he never formally nor finally agreed to allow
Mother to relocate prior to the expiration of that time
trial court therefore went on to consider the children's
best interests, making detailed findings as to each factor.
The trial court also explicitly found that Mother lacked
credibility, as he determined that she had been untruthful
regarding her involvement in the June 2013 video sent to
Father. The trial court also credited the testimony of Dr.
Freeman over Dr. McMillan, as the trial court disagreed with
Dr. McMillan's focus on Mother's happiness, rather
than the children's best interests. After considering all
the factors and the weight that they would be assigned, the
trial court ruled that the children's best interests did
not favor relocation. The trial court therefore denied
Mother's request to relocate and ordered her to make a
decision as to whether she would nevertheless relocate in ten
days. If Mother made the decision to move, the proof could be
reopened to allow Father to present additional proof as to
the children's best interest. Mother ultimately chose not
January 13, 2017, the trial court entered a second order
resolving remaining issues of child support and
attorney's fees and costs. Therein, the trial court
credited the testimony of Father's expert that his true
income was not reflected on his tax documents and set his
income at $223, 441.00. The trial court also declined to find
that Mother was willfully and voluntarily underemployed,
finding instead that her decision to leave her employment in
Nashville was reasonable under the circumstances. As such,
the trial court found that Mother's income for child
support purposes would be set at $240, 000.00 per year. The
trial court did, however, award Father the totality of his
claimed attorney's fees and the majority of his costs.
The attorney's fees alone exceeded $195, 000.00. The
trial court set the new child support obligation to begin on
February 1, 2017.
filed a motion for additional findings of fact, which was
resolved in March 2017. Mother thereafter appealed; the
appeal was dismissed as several outstanding issues remained
pending. See Fichtel v. Fichtel, No.
M2017-00409-COA-R3-CV, 2018 WL 1778606, at *2-*4 (Tenn. Ct.
App. Apr. 13, 2018). The trial court thereafter entered an
agreed order resolving all outstanding issues. Mother again
appealed. The record in the prior appeal was consolidated
with this appeal by order of November 20, 2018.
raises the following issues, which are restated:
1. Whether the trial court erred in finding that the parties
spend substantially equal time with the children pursuant to
Tennessee Code Annotated section 36-6-108(d).
2. Assuming that Mother spends substantially more time with
the children, whether Father failed to show that Mother's
proposed relocation did not have a reasonable purpose, that
it was vindictive in that it was intended to defeat or deter
Father's parenting time or that it posed a threat of
specific or serious harm.
3. Whether the trial court erred in finding that relocation
was not in the children's best interest under
4. Whether the trial court erred in both setting the amount
of child support and in failing to make it retroactive?
5. Whether the trial court erred in its award of
attorney's fees and costs.
posture of appellee, Father raises two issues:
1. Whether the trial court erred in its determination of
Mother's income for child support purposes.
2. Father should be awarded his reasonable attorney's
fees on appeal.
trial court heard this case sitting without a jury.
Accordingly, we review the trial court's findings of fact
de novo with a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d). No
presumption of correctness, however, attaches to the trial
court's conclusions of law, and our review is de novo.
Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006)
(citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000)). However, "we are mindful that trial courts are
vested with wide discretion in matters of child custody and
that the appellate courts will not interfere except upon a
showing of erroneous exercise of that discretion."
Johnson v. Johnson, 165 S.W.3d 640, 645 (Tenn. Ct.
App. 2004) (quoting Koch v. Koch, 874 S.W.3d 571,
575 (Tenn. Ct. App. 1993)). We recognize that "custody
and visitation determinations often hinge on subtle factors,
including the parents' demeanor and credibility"
during the proceedings, and further note that "appellate
courts are reluctant to second-guess a trial court's
decisions." Id. (Gaskill v. Gaskill,
936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)). This Court's
"paramount concern" is the well-being and best
interests of the child at issue, and such determinations
necessarily hinge on "the particular facts of each
case." Id. (citing Koch, 874 S.W.2d at
the trial court's findings on credibility are entitled to
great deference on appeal. See Taylor v. McKinnie,
No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct.
App. Aug. 5, 2008). Where the trial court's factual
determinations are based on its assessment of witness
credibility, this Court will not reevaluate that assessment
absent clear and convincing evidence to the contrary.
Franklin Cty. Bd. of Educ. v. Crabtree, 337 S.W.3d
808, 811 (Tenn. Ct. App. 2010) (citing Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002)).
impetus of the present case is Mother's desire to
relocate from Nashville, Tennessee, to Ohio with the
parties' minor children. We therefore begin our analysis
with the statutory requirements found in Tennessee's
parental relocation statute, Tennessee Code Annotated section
36-6-108. The statute applicable to this case outlines
different approaches to a petition for relocation depending
on which parent spends more time with the child.
If the parents are actually spending substantially equal
intervals of time with the child and the relocating parent
seeks to move with the child, the other parent may, within
thirty (30) days of receipt of notice, file a petition in
opposition to removal of the child. No presumption in favor
of or against the request to relocate with the child shall
arise. The court shall determine whether or not to permit
relocation of the child based upon the best interests of the
child. The court shall consider all relevant factors
including those factors found in § 36-6-106(a)(1)-(15).
Code Ann. § 36-6-108(c) (2017). Thus, under this version
of the statute,  the threshold question is whether the
parties spend "substantially equal" time with the
child. Id. Where a trial court finds that the
parents are in fact spending substantially equal time with
the child, a best interest analysis is utilized to determine
whether or not relocation would best serve the child.
Tennessee Supreme Court has explained that the parental
relocation statute does not provide a brightline rule as to
what constitutes "substantially equal time."
Kawatra v. Kawatra, 182 S.W.3d 800, 803 (Tenn. 2005)
("Tennessee Code Annotated section 36-6-108 does not
define what constitutes 'actually spending substantially
equal intervals of time.'"). The Kawatra
court did, however, provide guidance as to how parenting days
should be allocated to each parent, noting that parenting
time should reflect "time actually spent" with the
child. Id. at 803 (further noting that the court
should consider whether either parent has interfered with the
other parent's time with the child). Moreover, the
Tennessee Supreme Court has previously explained that the
following factors should be considered in determining whether
parties spend substantially equal time with their child:
1) the hours each parent actually spent with the child on
that day; 2) the activities in which each parent engaged with
the child; 3) the resources the parent expended on the
child's behalf during that time period, including the
costs of a meal or any other costs directly related to that
parent's care and supervision of the child; and 4) any
other factor that the trial court deems relevant.
Kawatra v. Kawatra, 182 S.W.3d 800, 804 (Tenn. 2005)
whether parents are spending substantially equal amounts of
time with their children is, in the first instance, the trial
court's prerogative." Collins v. Coode, No.
M2002-02557-COA-R3-CV, 2004 WL 904097, at *3 (Tenn. Ct. App.
Apr. 27, 2004). As such, we review the trial court's
finding as to this issue for an abuse of discretion.
Harmon v. Harmon, No. W2017-02452-COA-R3-CV, 2018 WL
6192233, at *8-*9 (Tenn. Ct. App. Nov. 27, 2018); Gensmer
v. Gensmer, No. W2017-00443-COA-R3-CV, 2017 WL 5952918,
at *7 (Tenn. Ct. App. Nov. 30, 2017), perm. app.
denied (Tenn. Mar. 19, 2018) (quoting Monroe v.
Robinson, No. M2001-02218-COA-R3-CV, 2003 WL 132463, at
*4 (Tenn. Ct. App. Jan. 16, 2003)). Thus, while the law
provides "a framework for determining substantially
equal time, there is no concrete boundary."
Harmon, 2018 WL 6192233, at *7.
previously discussed, the parties submitted a stipulation
during trial regarding the parenting time spent by each
parent with the children. Under this stipulation, even
awarding Mother all of the disputed days,  she spent 56.44%
of the time with the children, while Father spent 43.56% of
the time in the year immediately preceding the start of the
relocation trial. The law is relatively clear that this split
constitutes a substantially equal division of parenting time.
See, e.g., Harmon, 2018 WL 6192233, at *10
(affirming the trial court's finding that a 57%/43% split
was substantially equal); Monroe, 2003 WL 132463, at
asserts, however, that that trial court abused its discretion
in utilizing the year prior to the relocation trial because
of the unique circumstances in this case, in particular the
lengthy delay between the start of trial and the conclusion
of this matter. Respectfully, we cannot agree. In Kawatra
v. Kawatra, 182 S.W.3d 800 (Tenn. 2005), the Tennessee
Supreme Court held that "when circumstances permit, the
comparison period should be the twelve consecutive months
immediately preceding the relocation hearing."
Id. at 804. Here, Mother asserts that the
circumstances warrant the use of a different period of time
because the trial did not take place over a single day, but
over a period of more than a year. As such, Mother asserts
that the more appropriate period to consider is the time
before the trial court's order on the petition, where the
parties strictly followed the permanent parenting plan. Under
this time frame, Mother contends that she spent over 64% of
the time with the children, a division that is not
substantially equal. Kawatra, 182 S.W.3d at 804
(split of 37.8%-62.2% did not allow the court "to
conclude that the parties spent substantially equal intervals
of time with the child"); Heilig v. Heilig, No.
E2014-00586-COA-R3-CV, 2015 WL 3654948, at *6 (Tenn. Ct. App.
June 15, 2015) ("trial court correctly concluded that a
60%-40% split between the parents does not amount to
'substantially equal' time under the relocation
statute."); Goddard v. Goddard, No.
E2011-00777-COA-R3-CV, 2012 WL 601183, at *6 (Tenn. Ct. App.
Feb. 24, 2012) (noting that a 34.7%-65.3% time split is not
substantially equal time); Redmon v. Redmon, No.
W2013-01017-COA-R3-CV, 2014 WL 1694708, at *4 (Tenn. Ct. App.
Apr. 29, 2014) (noting that it was undisputed that the
parties did not spend substantially equal time with the child
where the time split was 30%-70%).
the trial court specifically found that "the
circumstances in the case at bar readily permit the Court,
within the confines of the parties' Stipulation, to
account for the number of days the parents have exercised
with the children in the twelve (12) months immediately
preceding the relocation hearing" consistent with the
preference expressed in Kawatra. We cannot conclude
that the trial court abused its discretion in choosing to
follow the time period set forth by the Tennessee Supreme
Court. See, e.g., Harmon, 2018 WL 6192233, at *9
(reiterating that a trial court's finding of
substantially equal time is subject to the abuse of
discretion standard). Mother admitted in her pleadings and
testimony that the parties generally freely exchanged the
children prior to the filing of the petition in opposition to
relocation. It was only once the petition was filed that the
parties began to adhere more closely to the parenting
schedule. As such, a time period that takes into account the
schedule utilized by the parties before being significantly
altered by the existence of the opposition petition provides
more guidance to the trial court as to how the parties were
actually parenting without the specter of this dispute.
Indeed, the parties' stipulation shows that this time
frame involved a small reduction from the parenting time that
Father had previously enjoyed with the children, perhaps a
reflection of Mother's efforts to reduce Father's
parenting time for purposes of this relocation
dispute. As such, the time period utilized by the
trial court is not only permitted by the circumstances, but
appropriate. See Kawatra, 182 S.W.3d 800, 804. In
other cases involving a lengthy delay between the filing of
the petition in opposition and the hearing, this court has
still utilized the period of time set forth in
Kawatra. See Gensmer v. Gensmer, No.
W2017-00443-COA-R3-CV, 2017 WL 5952918, at *6 (Tenn. Ct. App.
Nov. 30, 2017), perm. app. denied (Tenn. Mar. 19,
2018) (noting that this Court is not free to depart from the
Tennessee Supreme Court's holding in Kawatra
that the comparison period be the year prior to "the
start of trial"). The trial court therefore did not
abuse its discretion in utilizing the year preceding the
first hearing date to analyze the issue of substantially
next appears to assert that the trial court erred in finding
that she spent only 56.44% of the time with the children
during the relevant timeframe because the trial court did not
properly consider the factors set forth by the Tennessee
Supreme Court in Kawatra. 182 S.W.3d at 804. In
particular, Mother notes that the residential parenting
schedule undisputedly provides her with more time with the
children and asserts that the time she spent with the
children was more "intensive" than that spent
with Father. We disagree with Mother on two counts. First,
the trial court's order indicates that it specifically
considered the factors contained in Kawatra and
nevertheless concluded that the parties were spending
substantially equal time with the children. Moreover,
Mother's argument ignores the fact that she voluntarily
entered into a stipulation with Father to determine how the
days of that period should be allocated to each parent. In
that twelve month period, only eleven days were actually
disputed by the parties. The trial court explicitly accepted
the stipulation of the parties and no party has raised an
issue on appeal that the stipulation was in some way invalid.
Cf. Overstreet v. Shoney's, Inc., 4 S.W.3d 694,
701 (Tenn. Ct. App. 1999) ("Although the parties may not
stipulate to questions of law, stipulations within the range
of possibly true facts and valid legal strategies are
allowed.") (internal citation omitted). Thus, the trial
court only needed to consider the Kawatra factors
with regard to the eleven disputed days, as the parties
previously agreed to the proper allocation of the remainder
of the days. Even giving Mother all of the disputed days,
however, the allocation of parenting time was substantially
equal. See Harmon, 2018 WL 6192233, at *10;
Monroe, 2003 WL 132463, at *4. As such, the trial
court did not abuse its discretion in finding that the
parties exercised substantially equal time with the children
under section 36-6-108(c).
finding that parents are spending substantially equal
intervals of time with their child, the trial court must then
consider whether the proposed relocation is in the
child's best interest. Tenn. Code Ann. § 36-6-108(c)
("If the parents are actually spending substantially
equal intervals of time with the child and the relocating
parent seeks to move with the child . . . [t]he court shall
determine whether or not to permit relocation of the child
based upon the best interests of the child."). As
previously discussed the trial court's findings on this
issue, particularly those resting on credibility, are
entitled to deference on appeal. See Crabtree, 337
S.W.3d at 811; Johnson, 165 S.W.3d at 645. The trial
court in this case made very strong credibility findings
against Mother, which we will defer to on appeal absent clear
and convincing evidence to the contrary.
the statute applicable to this case, the court was directed
to consider the following factors:
(1) The strength, nature, and stability of the child's
relationship with each parent, including whether one (1)
parent has performed the majority of parenting
responsibilities relating to the daily needs of the child; .
. . .
(2) Each parent's or caregiver's past and potential
for future performance of parenting responsibilities,
including the willingness and ability of each of the parents
and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and
both of the child's parents, consistent with the best
interest of the child. In determining the willingness of each
of the parents and caregivers to facilitate and encourage a
close and continuing parent-child relationship between the
child and both of the child's parents, the court shall
consider the likelihood of each parent and caregiver to honor
and facilitate court ordered parenting arrangements and
rights, and the court shall further consider any history of
either parent or any caregiver denying parenting time to
either parent in violation of a court order;
(3) Refusal to attend a court ordered parent education
seminar may be considered by the court as a lack of good
faith effort in these proceedings;
(4) The disposition of each parent to provide the child with
food, clothing, medical care, education and other necessary
(5) The degree to which a parent has been the primary
caregiver, defined as the parent who has taken the greater
responsibility for performing parental responsibilities;
(6) The love, affection, and emotional ties existing between
each parent and the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each
parent as it relates to their ability to parent the child.
The court may order an examination of a party under Rule 35
of the Tennessee Rules of Civil Procedure and, if necessary
for the conduct of the proceedings, order the disclosure of
confidential mental health information of a party under
§ 33-3-105(3). The court order required by §
33-3-105(3) must contain a qualified protective order that
limits the dissemination of confidential protected mental
health information to the purpose of the litigation pending