JOHN J. HASENBEIN
KATHERINE J. HASENBEIN
Session October 8, 2019
from the Circuit Court for Montgomery County No. 16-CV-1890
Ross H. Hicks, Judge
an appeal in a divorce proceeding, wherein the mother
contends that the trial court erred in awarding the father
the divorce on the ground of inappropriate marital conduct
and in its holdings as to the factors at Tennessee Code
Annotated section 36-6-106 in naming the father the primary
residential parent. Father appeals the court's ruling on
a motion he filed seeking to further specify the parents'
responsibilities relative to the transportation of the
children. Upon consideration of the record, we vacate that
portion of the judgment that holds that factors (11) and (12)
at section 36-6-106(a) are not applicable and remand the case
for further consideration in that regard and, if necessary,
to reconsider the designation of the primary residential
parent; in all other respects we affirm the trial court's
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated in Part and Affirmed in Part; Case
T. Massey, Clarksville, Tennessee, for the appellant,
Katherine J. Hasenbein.
Kimberly G. Turner, Clarksville, Tennessee, for the appellee,
John J. Hasenbein.
Richard H. Dinkins, J., delivered the opinion of the court,
in which Frank G. Clement, Jr., P.J., M.S., and W. Neal
McBrayer, J., joined.
RICHARD H. DINKINS, JUDGE
J. Hasenbein ("Mother") and John J. Hasenbein
("Father") were married on December 20, 2000. Two
children were born of this marriage: Cody, born in 2004, and
Jacob, born in 2007. At all times material, Father was on
active duty in the Army, stationed at Fort Campbell,
Kentucky, with the family residing in Clarksville, Tennessee.
On September 7, 2016, Father filed a Complaint for Divorce,
asserting the grounds of inappropriate marital conduct and
irreconcilable differences. Mother filed an Answer and
Counter Complaint, asserting inappropriate marital conduct as
the ground and requesting that she be named primary
residential parent and awarded spousal and child support, and
a portion of Father's military retirement as marital
property. An order was entered on October 21, staying the
proceedings until Father returned from his deployment. He
returned in February 2017, and a temporary parenting plan was
entered on March 8, naming Mother primary residential parent,
giving Father residential parenting time on alternate
weekends and from 3:00 - 8:00 p.m. on Wednesdays, and setting
support at $957.00 per month (later decreased by agreement to
was held on May 3 and June 1, 2017, at the end of which the
court orally declared the parties divorced, established
temporary support of $1, 000 per month to be paid by Father,
granted Father two consecutive weeks of parenting time for
the summer of 2017, ordered the parties to submit proposed
findings of fact and conclusions of law, and reserved all
other issues pending the entry of a Final
Order. The court issued a Memorandum Opinion on
July 25, and entered a Final Decree on August 16, awarding
Father the divorce on the ground of inappropriate marital
conduct and naming him primary residential parent;
contemporaneously with the Final Decree, the court entered a
permanent parenting plan which, inter alia, granted
the parties equal parenting time.
moved to alter or amend the judgment on September 14,
asserting that the court erred in finding that she was not
credible and that Father should be named the primary
residential parent. Father also moved to alter or amend the
judgment on September 14, asking the court to name him the
sole decision maker regarding educational and extracurricular
activities, and to order Mother to provide her residential
address or prove she had appropriate accommodations for the
children at her residence. The motions were heard on January
3, 2018, and the court entered an order on January 10 denying
both motions. Mother filed a notice of appeal on January
February 5, Father filed a "Motion To Allow Step-Parent
To Transport", in which he asked that his wife be
allowed to "pick up the children for parenting time
exchanges when the Father is unavailable to do so." The
court entered an order on March 5, granting Stepmother the
authority to pick up the children from school if it was
Father's residential parenting time and he was home to
exercise his time; the order also required Father to notify
Mother of his schedule. Father filed a timely notice of
appeal, and the appeals were consolidated on June 21, 2018.
appeal Mother contends that:
1. The court abused its discretion when it declared the
parties divorced and then later awarded the Father a divorce
on the ground of inappropriate marital conduct; and
2. The court abused its discretion in naming the Father the
primary residential parent when the evidence preponderates
against such a ruling in the application of the factors as
set out in Tenn. Code Ann. section 36-6-106.
raises the following issues for our review:
1. The trial court erred in ruling on a motion regarding the
Stepmother exercising visitation with the minor children when
no such motion was before the court.
2. The trial court erred by imputing a right of first refusal
where no such right existed.
3. The trial court erred by modifying the parenting plan when
no petition to modify was pending before the trial court.
4. The trial court erred by modifying the permanent parenting
plan when there had been no testimony and no showing of a
material change of circumstance.
5. The trial court erred in modifying the permanent parenting
plan to require that "if Mr. Hasenbein is not in the
home for the night, the children shall be returned to the
6. The trial court erred in modifying the permanent parenting
plan to require "the Father shall notify the Mother of
his schedule and the children shall be returned to the Mother
if the Father is gone from the home".
Standard of Review
courts have broad discretion in devising permanent parenting
plans and designating the primary residential parent."
Burton v. Burton, No. E2007-02904-COA-R3-CV, 2009 WL
302301, at *2 (Tenn. Ct. App. Feb. 9, 2009). Because
decisions regarding parental responsibility often hinge on
subtle factors, such as the parent's demeanor and
credibility during the proceedings, appellate courts are
reluctant to second-guess a trial court's parenting
schedule determinations. Parker v. Parker, 986
S.W.2d 557, 563 (Tenn. 1999); Adelsperger v.
Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997).
Consequently, a trial court's decision regarding a
permanent parenting plan will be set aside only when it
"falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal
standards to the evidence found in the record."
Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).
The standard of review for an asserted abuse of the
court's discretion was set forth in Lee Medical, Inc.
An abuse of discretion occurs when a court strays beyond the
applicable legal standards or when it fails to properly
consider the factors customarily used to guide the particular
discretionary decision. A court abuses its discretion when it
causes an injustice to the party challenging the decision by
(1) applying an incorrect legal standard, (2) reaching an
illogical or unreasonable decision, or (3) basing its
decision on a clearly erroneous assessment of the evidence.
312 S.W.3d 515, 524 (Tenn. 2010) (internal citations
review the trial court's factual findings de
novo upon the record, accompanied by a presumption of
correctness, unless the evidence preponderates otherwise.
Tenn. R. App. P. 13(d). When the trial court makes no
specific findings of fact, we review the record to determine
where the preponderance of the evidence lies. Ganzevoort
v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997). Review of
the trial court's conclusions of law is de novo
with no presumption of correctness afforded to the trial
court's decision. Kaplan v. Bugalla, 188 S.W.3d
632, 635 (Tenn. 2006). Accordingly, we will not disturb the
parenting plan fashioned by the trial court unless that
decision is based on a material error of law or the evidence
preponderates against it. Adelsperger, 970 S.W.2d at
Finality of the June 1, 2017 Oral Ruling
first argues that, after Father filed his proposed findings
of fact, the court changed its initial oral ruling, in which
it declared the parties divorced, to award Father the divorce
on the ground of Mother's inappropriate conduct; she
contends that "the written ruling does not accurately
reflect the trial court's decision at the time of the
taking of the proof and the only conclusion is that the oral
ruling was the ruling of the court's independent judgment