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Ash v. Ash

Court of Appeals of Tennessee, Nashville

September 6, 2019


          Session June 4, 2019

          Appeal from the Circuit Court for Davidson County No. 15D-206 Phillip R. Robinson, Judge

         This appeal arises from a post-divorce dispute over child custody wherein the father filed a petition to modify the permanent parenting plan. Following a hearing in October 2017, the Trial Court found that a material change in circumstance existed and implemented a temporary parenting plan, determining that plan to be in the child's best interest. Thereafter in April 2018, the Trial Court converted that temporary parenting plan into a permanent parenting plan upon its determination that the temporary plan appeared to be working satisfactorily. Mother appeals to this Court. Because the Trial Court did not conduct a best interest analysis or make the required statutory finding of best interest, we vacate the April 2018 judgment of the Trial Court and remand for further proceedings as necessary. We affirm the Trial Court in all other respects.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Vacated in Part; Case Remanded

          Nathan C. Sanders, Nashville, Tennessee, for the appellant, Jaclyn Ash.

          Connie Allison, Nashville, Tennessee, for the appellee, Jeremy Ash.

          D. Michael Swiney, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.




         Jaclyn Ash ("Mother") and Jeremy Ash ("Father") were divorced in May of 2015, and a permanent parenting plan was entered with regard to their minor child ("the Child"). The permanent parenting plan designated Mother the primary residential parent and called for Mother and Father each to have 182.5 days of parenting time, for joint decision making with regard to all major decisions, and for Father to pay child support to Mother.

         In August of 2015, Father filed a petition seeking to modify parenting time alleging, in part, that the Child had spent more time with Father due to Mother's stress levels and emotional fragility and that Mother had a history of suicidal threats and hospital visits for breakdowns. Father alleged that Mother had been taken to a mental health facility by the police due to suicidal threats. Father also filed a motion for sole custody of the Child and a motion for a psychiatric evaluation of Mother. The Davidson County Circuit Court ("Trial Court") entered a temporary restraining order on August 7, 2015, prohibiting Mother from having "possession and unsupervised visitation" with the Child, who would be in the sole custody of Father at that time. In response, Mother filed a motion seeking to dissolve the restraining order.

         Upon consideration of Father's and Mother's filings, the Trial Court entered an order on August 31, 2015, stating that it had reviewed Mother's medical report, which stated that Mother had a history of anxiety and depression, had complained of a panic attack, and had mentioned wanting to die but not really meaning it. According to the Trial Court, these issues were troubling and required the Trial Court "to delve into them a little further." The August 31, 2015 order modified the temporary restraining order and stated, as pertinent, that Mother's visits would continue to be supervised and that the matter would be reset for further hearing to assess Mother's circumstances. In its September 2, 2015 order, the Trial Court denied both Father's motion for sole custody of the Child as being moot having already been addressed by the Trial Court and his motion requesting a psychiatric evaluation for Mother because Mother already was seeing a psychiatrist. The Trial Court, however, granted Father's motion to allow him to obtain Mother's medical and psychiatric records.

         Mother, thereafter, filed an answer to Father's petition and a countercomplaint requesting that the Trial Court dissolve the temporary restraining order, award Mother primary custody of the Child, and enter a restraining order prohibiting Father from commuting with the Child to and from Illinois and restricting Father from communicating with Mother for any reason other than parenting reasons. On September 16, 2015, the Trial Court entered an order finding that Mother appeared to be "doing well" and again modifying the temporary restraining order to allow Mother unsupervised overnight parenting time. The Trial Court also directed Mother that if she suffered any panic attacks or suicidal ideations or needed to be institutionalized, she needed to contact Father to take possession of the Child and was not allowed to leave the Child with her family or friends.

         In November 2015, Mother filed a petition for criminal contempt against Father, alleging that Father had violated the temporary restraining order by sending Mother annoying, spiteful, and condescending emails and that Father had violated the final divorce decree by continuing to charge items on the parties' joint credit account at Rooms to Go. Father subsequently filed a motion to set child support and to modify visitation, to which Mother filed a response. In December 2015, the Trial Court entered an order dissolving the temporary restraining order after determining that no emergency currently existed to justify a restraining order. ...

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