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Hasenbein v. Hasenbein

Court of Appeals of Tennessee, Nashville

December 12, 2019

JOHN J. HASENBEIN
v.
KATHERINE J. HASENBEIN

          Session October 8, 2019

          Appeal from the Circuit Court for Montgomery County No. 16-CV-1890 Ross H. Hicks, Judge

         This is 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 judgment.

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

          Sharon 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.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Facts and Procedural History

         Katherine 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 $857.00).

         Trial 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.[1] 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.

         Mother 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 9.[2]

         On 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.

         On 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.

         Father 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 Mother".
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".

         II. Standard of Review

         "Trial 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. v. Beecher:

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 omitted).

         We 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 485.

         III. Analysis

         A. Finality of the June 1, 2017 Oral Ruling

         Mother 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 but ...


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