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Flynn v. Stephenson

Court of Appeals of Tennessee, Knoxville

August 29, 2019


          Session: July 19, 2019

          Appeal from the Juvenile Court for Cumberland County No. 2017-JV-6616 Larry M. Warner, Judge

         This action involves the trial court's establishment of a permanent parenting plan for a child born to the unmarried parties. Allan Bradley Flynn (father) appeals the trial court's decision ordering a permanent parenting plan giving him less than 80 days per year parenting time. Megan Marie Stephenson (mother) appeals the court's decision to change the child's surname to Flynn. The trial court made no findings of fact supporting its ordered parenting plan, which it referenced as providing "standard visitation." The trial court made no reference to the governing statute, Tenn. Code Ann. § 36-1-106 (2017), nor any of the factors provided in the statute. We vacate the trial court's judgment and remand with instructions to make sufficient findings of fact and conclusions of law as required by Tenn. R. Civ. P. 52.01. We hold that father failed to carry his burden of proving that a name change will further the best interest of the child, and consequently we reverse the trial court's judgment ordering the child's name changed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated in Part and Reversed in Part; Case Remanded

          Jason F. Hicks and Blake J. Fitzpatrick, Cookeville, Tennessee, for the appellant, Allan Bradley Flynn.

          Vanessa Samano, Knoxville, Tennessee, for the appellee, Megan Marie Stephenson.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.




         The child was born on July 23, 2017. Father, on September 8, 2017, filed this action petitioning the trial court to grant him "joint and equal parenting time." He filed a proposed plan giving each parent 182.5 days of parenting time per year. The parties entered a mediated agreement establishing a temporary parenting schedule as follows:

The parties agree that father shall have the child every Friday from 3:00pm to Saturday at 3:00pm, every other Sunday from 8:00am to 3:30pm, Sunday visits will begin Sunday, February 11, 2018 and every Wednesday from 3:00pm to 7:00pm, for the next eight (8) weeks or until the final hearing is set, which ever shall occur first.
Current support is being set at $259.00 per month[.] [T]his is based on minimum wage being imputed for both parents and father having 80 days per year and mother having 285 days per year.

On May 7, 2018, father filed a "motion for increased parenting time pending litigation." He asserted, in pertinent part, as follows:

[Father] would show that he has attend[ed] all the visits and the visits have gone well with the child.
The mediated agreement was entered with the understanding that a final hearing would be held soon thereafter.
The mother and her counsel refuse to cooperate in responding to multiple requests regarding extended parenting time.
That it is in the best interest of the minor child to have increased time with [father] during the formative months to build a strong parent-child bond.

(Numbering in original omitted).

         The trial court entered an order on July 18, 2018, stating that father "shall receive[] the standing standard parenting time of this Court and as further stated in the temporary parenting plan attached to this Order." The temporary parenting plan provides father parenting time from Friday at 6:00 pm until Sunday at 6:00 pm every other week and every Wednesday afternoon from 3:30 pm until 7:00 pm. It further provides for "two non-consecutive weeks in summer" for father.

         Mother filed a response to father's petition for parenting time on December 3, 2018. She attached another proposed parenting plan that states she would have 265 days of parenting time, and father 100 days. A brief trial took place four days later. Only father testified. Although mother was present with her attorney, she was not called to testify. Father testified that he was renting a house with two bedrooms and two bathrooms, suitable for the child's visitation. He is self-employed, working as partners with his father installing fireplaces. Father said that their business was just recently started, so they were trying to get established and he was living primarily off of his savings at the time of the hearing. He testified at one point that he "had no concerns" with mother, but later stated that he was concerned that she had issues with depression and her finances. Father also stated a concern that mother was living with her parents and her autistic brother, whom father described as "violent." There was no other evidence presented concerning mother's living arrangements. Apparently no discovery was conducted, for there are no discovery documents in the record. The transcript of father's testimony is only 37 pages long.

         The trial court's two-page final order states only: "[t]he Court found that it is in the best interests of the child to set a visitation schedule for the Father pursuant to the Court's Standard Visitation Order." There are no other findings of fact. The order incorporates by reference a permanent parenting plan, which recites that mother shall have 305 days per year of parenting time and father 60 days. It gives father time with the child every other weekend from Friday at 5:00 pm until Sunday at 5:00 pm, and every Wednesday from 5:00 to 7:00 pm. Father was granted two non-consecutive weeks of summer vacation, and major holidays were split fairly evenly. Regarding winter vacation, the parenting plan also provides:

The mother shall have the child for the first period from the day and time school is dismissed until December 25th at Noon (12:00 p.m.) in even-numbered years. The [father] will have the child or children for the second period from the day and time indicated above until Noon (12:00 p.m.) on New Year's Day. The parties shall alternate the first and second periods each year.

         Although it is impossible to calculate with complete precision the number of days the more specific provisions of the parenting plan provides each parent, because, among other things, the child is not of school age yet, it appears that father has approximately 77 days per year, notwithstanding the plan's general provision of 60 days to father. No explanation is provided for this discrepancy. There is also no explanation in the record for why the trial court awarded father 40 days less than that provided in mother's own proposed parenting plan filed four days before trial. At father's request and over mother's objection, the trial court ordered the child's surname to be changed to Flynn. Father timely filed a notice of appeal.


         Father raises the ...

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