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Fichtel v. Fichtel

Court of Appeals of Tennessee, Nashville

July 10, 2019


          May 8, 2019 Session

          Appeal from the Circuit Court for Davidson County No. 09D-3512 Philip E. Smith, Judge No. M2018-01634-COA-R3-CV

         This 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 other respects.

         Tenn. 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).

          Robert L. Jackson and Elizabeth A. Garrett, Nashville, Tennessee, for the appellee, Christopher Conrad Fichtel.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Kenny Armstrong and Carma D. McGee, JJ., joined.



         The 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.[1] 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.

         Father 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.

         Mother 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 upset.

         Mother 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.

         On June 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.

         Mother's 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.[2] 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."

         Trial on the petition in opposition to the relocation was held over twenty-two non-consecutive days from November 19, 2013 and November 14, 2014.[3] 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.

         Both parties presented substantial evidence concerning the best interest factors, including expert proof about the effect of the relocation/change in custody on the children.[4] 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.

         Mother 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.[5] 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.

         Mother 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.

         Father 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 Mother.

         Father 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.

         Both 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 case.

         Dr. 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.

         According 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.

         Dr. 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, [6] as well as Mother's decision to call Thomas's ongoing therapist, David Thomas, to testify, which Dr. Freeman testified could harm the therapeutic relationship.[7] 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.

         Mother's 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.

         Dr. 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 with Mother.

         Dr. 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.

         Dr. 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.

         Father's 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.

         The 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 frame.

         The 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 to relocate.

         On 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.

         Father 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.

         Issues Presented

         Mother 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 36-6-108(c).
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.

         In the 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.

         Standard of Review

         The 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 575).

         Finally, 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)).



         The 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. Specifically:

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).

         Tenn. Code Ann. § 36-6-108(c) (2017). Thus, under this version of the statute, [8] 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. Id.

         The 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) (footnote omitted).

         "Determining 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.

         As 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, [9] 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 *4 (same).

         Mother 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%).

         Here, 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.[10] 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 equal time.

         Mother 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).[11]


         Upon a 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.

         Under 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 care;
(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 ...

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