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Felicitashayes v. Scoggin

Court of Appeals of Tennessee, Jackson

July 25, 2019

FELICITASHAYES
v.
CHRISTOPHER DANIEL SCOGGIN

          Assigned on Brief July 1, 2019

          Appeal from the Chancery Court for Shelby County No. CH-17-0849-2 Jim Kyle, Chancellor

         Mother and father were divorced in 2013. They have four children together. Disputes regarding child custody have spanned four states and nearly six years. In this iteration, on June 9, 2017, mother filed a "Petition to Enroll Foreign Decree, For Immediate Injunctive Relief, for Sciare Facias, and Citation for Criminal and Civil Contempt, for Modification of Custody Order, and for Entry of Temporary Parenting Plan." In his answer, father requested that, pursuant to Tenn. Code Ann. § 36-5-103(c), [1]he be reimbursed for the attorney's fees incurred as a result of defending against mother's petition. After nine months of litigation, mother voluntarily dismissed her petition without prejudice. As a result of mother's voluntary dismissal prior to trial, father's claim for attorney's fees was not resolved. Following mother's dismissal, another dispute arose regarding summer custody. On April 20, 2018, father filed a petition to resolve the summer custody issue; it was resolved by a consent order. Following the consent order, father filed a petition to recover the attorney's fees and costs incurred in defending against mother's voluntarily dismissed petition. Mother moved to dismiss father's petition alleging that res judicata precluded father from seeking to recover his attorney's fees in that matter, because he did not raise the issue in his summer custody petition. The trial court disagreed. Mother applied for an interlocutory appeal; this Court denied her application. The trial court subsequently awarded father $11, 963.08 in attorney's fees and costs. Mother appeals. We affirm.

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

          Brice M. Timmons, Memphis, Tennessee, for the appellant, Felicitas Hayes.

          No appearance by or on behalf of appellee, Christopher Daniel Scoggin.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which Andy D. Bennett and Carma Dennis McGee, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE.

         I.

         The parties were divorced, in San Diego, California. They have four minor children. On June 19, 2013, husband and wife entered into an agreed joint custody order regarding the children; they agreed to alternate physical custody on a weekly basis. A subsequent consent order permitted father to move to North Carolina with the children.

         On September 8, 2015, a trial court in North Carolina entered an order holding that there had been a substantial and material change in circumstance affecting the welfare of the minor children that warranted a modification of the California custody order. The material change in circumstance included: father now lived in North Carolina and mother lived in Indiana, which rendered the previous agreement to alternate physical custody on a weekly basis impossible; mother remarried and decided to live in Indiana with her new husband and two additional young children; and father's impending retirement from the United States Marine Corps and plan to relocate with the minor children to Tennessee. In addition, the court stated the following notable events occurred that further supported modification: in 2013, father was deployed and when he came back mother refused to return the children, in contravention to the terms of the custody agreement; in 2013, father refused to return the children to the mother following the Christmas holiday; mother filed a motion to register the California judgment in Indiana, but that action was dismissed due to the Indiana court finding that the minor children were residents of North Carolina; and assorted other events indicating miscommunication and an overall lack of cooperation between the parties.

         Following a hearing, the North Carolina trial court announced from the bench that it would award primary custody to mother. However, "after further deliberation and consideration," the court held in its order that it was in the best interests of the minor children that primary custody be awarded to father, "subject to liberal visitation privileges" to the mother. The court held in its order that it was in the best interest of the children to award primary custody to father, because:

[father] has been a single parent for the past eighteen months and despite his status as an active Marine has been able to provide for all of the children's physical, emotional and spiritual needs. That the children have thrived in the plaintiff's care and appear to be healthy, happy and well adjusted (sic) children.

         Father had secured a suitable home for himself and the children in Tennessee. The children were projected to attend school, and reside near father's parents and extended family that would support father in raising the children. The children had a history of spending extended periods of time with their Tennessee grandparents. In addition, father had a suitable means of earning a future income. The court found that mother has remarried and now has two additional small children in her home; her new husband also has two children who visit the home every other weekend. The court expressed concern regarding mother's four-bedroom home and its ability to accommodate the four additional children on top of the four already residing in the home. The court noted that the minor children at issue had not previously lived with the other four children. The court had additional concern regarding mother's claim that she planned to attend law school. It expressed concerned about mother's ability to handle work, law school, and eight children in her home. Mother was ultimately granted secondary custody and "liberal visitation rights."

         Mother appealed the September 8, 2015 order; in October 2016, the judgment was affirmed by the North Carolina Court of Appeals.

         On November 12, 2015, mother filed a motion for emergency custody and a collateral claim for a change of custody based upon changed circumstances. On June 9, 2016, mother filed a motion to expedite the temporary custody hearing. While these motions were still pending, on May 3, 2017, the North Carolina trial court deferred jurisdiction over the issue of modification and enforcement of custody to the children's home state of Tennessee. On June 9, 2017, mother filed a "Petition to Enroll Foreign Decree, For Immediate Injunctive Relief, for Sciare Facias, and Citation for Criminal and Civil Contempt, for Modification of Custody Order, and for Entry of Temporary Parenting Plan" in Shelby County.

         On July 12, 2017, the parties entered a consent order modifying a previous order on mother's request for a continuance. Therein, mother agreed to return all four children to father on July 23, 2017. Without admitting civil contempt, father's compliance

[w]ith this paragraph shall purge [f]ather of the alleged civil contempt set forth in [m]other's "Petition to Enroll Foreign Decree, For Immediate Injunctive Relief, for Sciare Facias, and Citation for Criminal and Civil Contempt, for Modification of Custody Order, and for Entry of Temporary Parenting Plan," and shall render that issue moot, and the only remaining ultimate issue for trial shall be ...

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