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Hartmann v. Hartmann

Court of Appeals of Tennessee, Nashville

September 4, 2019

JESSICA HARTMANN
v.
BRIAN HARTMANN

          Session January 9, 2019

          Appeal from the Circuit Court for Montgomery County No. 11756C Ted A. Crozier, Judge

         This is an appeal in a proceeding to modify an agreed parenting plan, which was incorporated into a decree when Mother and Father finalized their divorce in Arizona in 2016. Prior to the entry of the decree, the Mother and their three minor children moved to Montgomery County, Tennessee, with Father's consent when he obtained temporary employment in Kuwait. The agreed parenting plan provided that by July 15, 2017, Mother, Father, and the children would relocate to a mutually agreed upon location or, in the event a location could not be agreed upon, to either Raleigh, North Carolina, Norfolk, Virginia, or Augusta, Georgia. Upon his return from Kuwait in June 2017, Father moved to Augusta, Georgia. Mother petitioned the Circuit Court of Montgomery County to modify custody in October 2017; Father counter-petitioned for contempt and enforcement of the Arizona decree. After a hearing, the court enrolled the Arizona decree, found that there was a material change of circumstance requiring modification of the decree, adopted a parenting plan submitted by Mother, and modified Father's child support. Father appeals; upon our review we have determined that the evidence does not support the court's a finding of a material change of circumstance. Accordingly, we reverse the judgment and remand the case for entry of an order that the children be relocated in accordance with the final decree.

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

          Donald Capparella, Nashville, Tennessee, for the appellant, Brian Hartmann.

          Steven C. Girsky, Clarksville, Tennessee, for the appellee, Jessica Hartmann.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural History

         In May of 2010, Brian Hartmann ("Father") and Jessica Hartmann ("Mother") were married in Arizona, where they resided. At the time of the marriage, Mother had one child from a previous relationship, and Father and Mother had one child together; after they were married, they had another child together, and Father adopted Mother's first child.

         In February of 2015, Father accepted a job in Kuwait for a two to three year stint; Mother and Father agreed that Mother and the children would move to Clarksville, Tennessee, while Father was overseas, which she did in July of 2015. At the time of the move to Clarksville, the children were ten years, seven years, and eleventh months old. Shortly after moving, Mother informed Father that she wanted a divorce, and Father initiated divorce proceedings in Maricopa County, Arizona, Superior Court in January 2016.

         Mother and Father were divorced in Maricopa County by decree entered October 13, 2016 ("Final Decree"). The decree incorporated an agreed "Legal Decision-Making and Parenting Time Agreement" ("Parenting Time Agreement"), which included the following provision, which is referred to by the parties as the "co-location provision":

The minor children shall be relocated to a location that is mutually agreed upon by the parties no later than July 15, 2017. The parties agree that if they cannot reach an agreement as to the location, the children shall be relocated to either Raleigh, North Carolina, Richmond/Norfolk, Virginia, or Augusta, Georgia. Until July 15, 2017, or earlier if the minor children are relocated earlier, Father shall have liberal parenting time with the minor children in addition to having parenting time for the entire 2016 Fall Break, one-half of the 2016 Winter Break, and the entire 2017 Spring Break, and holiday parenting times set forth below. Commencing July 15, 2017, or earlier, if the minor children are relocated earlier, the parties shall commence regular schedule as set forth below.

         Father returned to the United States in June of 2017 and established residence in Augusta, Georgia, where he signed a one-year residential lease to begin on July 1, 2017. The parties had agreed that Mother and the children would relocate to Augusta over the children's fall break, and on October 9, the children went to visit Father in Augusta; at the conclusion of their break, Father did not return the children to Clarksville.

         On October 16, Mother filed a Petition in Montgomery County Circuit Court, seeking to register the Arizona decree, for an ex parte order requiring Father to return the children to Mother, and to modify custody. The ex parte order was not entered; rather counsel for both parties signed an order providing that Father would return the children to Mother by October 22. On October 27, Father answered the petition and filed a counter-petition for civil contempt and enforcement of the Final Decree.

         The trial court heard the petitions on January 10, 2018, and entered an order and parenting plan on January 24, ruling:

1. The Order entered in the Superior Court of the State of Arizona in and for the County of Maricopa which can be found under case number FC2016-000288 is hereby enrolled ...

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