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Schaeffer v. Patterson

Court of Appeals of Tennessee, Jackson

December 13, 2019


          Assigned on Briefs November 12, 2019

          Appeal from the Juvenile Court for Shelby County No. BB9959 David S. Walker, Special Judge

         Father appeals the trial court's decision allowing Mother to relocate with the parties' daughter from the Memphis area to Blytheville, Arkansas. Father also appeals the trial court's award of attorney's fees to Mother. Applying the amended version of Tennessee Code Annotated section 36-6-108 based on the parties' stipulation, we conclude that the trial court did not abuse its discretion in finding that relocation was in the child's best interest. We also affirm the trial court's award of attorney's fees but decline to award attorney's fees on appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

          Stuart Breakstone and Adrian Vivar-Alcalde, Memphis, Tennessee, for the appellant,

          Chris Schaeffer. James W. Harris, Blytheville, Arkansas, for the appellee, Amanda Patterson.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Kenny Armstrong, J., joined.



         I. Background

         The parties, Petitioner/Appellant Chris Schaeffer ("Father") and Respondent/Appellee Amanda Patterson ("Mother") were never married but share a daughter together, born in 2015. In 2016, Father filed a petition for joint custody of the parties' child, as well as a child adopted by Mother during the parties' relationship.[1] The Shelby County Juvenile Court ("the trial court") entered a temporary order allowing Father parenting time with the child on October 28, 2016. A more detailed temporary parenting time order was entered on May 8, 2017, giving Father specified visitation. The parties were directed to exchange the child at the Shelby County Sheriff's office in Arlington, Tennessee. Following a hearing on the permanent parenting plan, the trial court issued an oral ruling providing Father with visitation; the parties' parenting time was split 60% to Mother and 40% to Father.[2] A written permanent parenting plan reflecting this arrangement was not filed until June 22, 2017. The plan provided that the parties would have joint decision-making over major decisions, that exchanges would take place at the Arlington Police Station or school or daycare. No child support worksheet was attached to the parenting plan.

         In the meantime, on May 15, 2017, Mother provided Father with notice of her proposed relocation to the Blytheville, Arkansas area. This was to the be the start of contentious proceedings, in which the parties argued over not only Mother's move but also schooling for the child, child support and expenses, various hearing dates, [3] and injunctions. Initially, Father filed a petition in the trial court to oppose the relocation on May 16, 2017. Mother responded to Father's petition on May 25, 2017, seeking approval of the relocation. On December 1, 2017, Father filed a motion to declare Mother in violation of the temporary injunction prohibiting relocation without permission.[4] The motion alleged that while Father's petition in opposition to relocation was pending, Mother nevertheless relocated to Blytheville. Although the later trial testimony indicates that the trial court allowed Mother's move on a temporary basis, no written order was ever entered granting or denying Father's motion.

         A trial on the petition was to be held before a judicial magistrate on July 16, 2018. Mother and her counsel were present. Father and his counsel did not appear. As such, the magistrate dismissed Father's petition for failure to prosecute.[5] Father filed a notice of a request for a hearing before the juvenile judge on July 18, 2018.

         Mother thereafter filed a petition to be awarded back child support, as well as unpaid birthing, medical, and childcare expenses. The petition alleged that Father had not paid any child support since the child's birth in 2015, other than a single check mailed on July 7, 2018. Father responded in opposition to Mother's petition.

         Trial on the relocation issue was eventually held on September 24, 2018. At the start of trial, the parties agreed to proceed under the amended version of the relocation statute, Tennessee Code Annotated section 36-6-108. The bulk of the proof consisted of the testimony of the parties and the testimony of Father's "subject matter expert" Dr. John Ciocca.

         Prior to Mother's relocation, Mother lived in Cordova, Tennessee, and worked as a hair stylist. In March 2017, Mother married Step-Father, who lived and works near Blytheville, Arkansas, a distance of approximately ninety-four miles from Father's home. Step-Father has maintained his employment with the Nucor factory in Blytheville for approximately twenty years and earns over $100, 000.00 per year. When the lease on Mother's hair salon was up for renewal, Mother and Step-Father determined that Mother would move to Blytheville to unify their family, including the child at issue, Mother's elder child, and eventually, Mother and Step-Father's new child. Mother testified that the move allowed her to unite her family, become a stay-at-home mother, and to be close to her large extended family. Indeed, the evidence showed that other than the child's maternal grandmother, the child's entire extended family on the maternal side resides in Blytheville. Even maternal grandmother planned to move there if Mother was allowed to relocate and could sell her home in Cordova.

         Father lived in Millington, Tennessee. At the time of trial, Father lived with his fiancé and her child. Fiancé was also pregnant with the couple's first child together.

         Each party took issue with various parenting-decisions made by his or her counterpart. For example, Father claimed that Mother allowed the child to be cared for by family members more than she was cared for by Mother. Father also disagreed with Mother's decision to allow the child, who was three-years old at the time of trial, to wear pull-up diapers at night. In addition, Father quarreled with Mother's refusal to enroll the child in a Pre-K program, so he enrolled the child in a program at Tipton-Rosemark Academy without Mother's consent while the relocation dispute was pending. Father insisted that he would bear the entire expense of the tuition at the academy. Father admitted, however, to having a significant judgment against him for unpaid child support, but claimed that he did not know how to pay the judgment due to not having a payment plan or a mailing address. In addition to questioning Father's promise to pay tuition, Mother objected to enrolling such a young child in a structured environment and to the location of the academy, away from her current home in Cordova. Father also wished to enroll the child in various activities during Mother's parenting time, but Mother objected due to scheduling and location.

         The parties also disputed the educational opportunities and healthcare available in Blytheville. Father submitted that Tipton-Rosemark Academy was a better school than the school where Mother resided in Blytheville. Mother agreed that the school where she currently resided was not appropriate for the child, but detailed a plan for both her older child and the child-at-issue to attend an out-of-district school. Mother also promised that she would move into the better school district if necessary. Mother further testified that her family member owned a preschool for the child and that she engaged in various educational activities with the child as a stay-at-home mother. The parties also disagreed as to whether Blytheville offered the same types of extracurricular activities available to the child in the Memphis area. Father noted that although Blytheville has a local hospital, on one occasion when the child became ill, Mother chose to bring the child to Memphis's LeBonheur Children's Hospital; Father submitted that this was evidence that available healthcare for the child was better in Memphis. Despite Father's stated concern for the child's health, Father objected to the child receiving a flu shot even after he was presented with a written letter from a physician recommending the procedure.

         The parenting time and exchanges were also a source of tension. The parties had previously been ordered to exchange the child at the police station near Father's home. During the pendency of this action, Father informed Mother that exchanges would now take place at his home, as he claimed his prior attorney had informed him that he could simply declare his home a daycare facility and avoid the trial court's previous order regarding the exchange location. Mother claimed that the child was often distressed prior to the exchanges, wanting instead to stay with Mother and her siblings. Father testified that the child exhibited the same behavior when leaving his custody. In addition, Mother testified that Father was often aggressive toward her. Father testified that due to these unfounded allegations, he began filming each exchange.

         Father also took issue with Mother's refusal to modify the parenting plan in minor ways, such as adding an hour to Father's parenting time when requested. According to Father, Mother generally responded to these requests that the parties should follow the parenting plan. Mother testified that she had modified the schedule on at least two occasions, but admitted that she had denied Father's requests to modify parenting time several times, claiming that his requests caused considerable inconvenience, such as cutting into a planned vacation or making Mother wait in Memphis for hours after the scheduled exchange time. The parties agreed that Mother had never limited or disrupted Father's scheduled time, even after she moved to Blytheville. Mother testified that she was happy to maintain the same schedule notwithstanding the relocation, but asked that the place of exchange be moved to a more convenient location. Mother also testified that once the child began school, she would consent to modification of the parenting schedule to maintain Father's 40% time with the child.

         Both parties also questioned the disciplinary tactics used in the other parent's household. Father testified that the child often came to his care with bruises. He further claimed that the child informed him of harsh discipline meted out by Step-Father. Mother testified that the bruises on the child were the result of normal childhood play, that StepFather did not inappropriately discipline the child, and that the child had made troubling comments about how Father's fiancé disciplined her own child.

         Father also questioned whether Step-Father could obtain the same job by moving to Memphis. Father testified that Step-Father's employer had a factory in Memphis; Father therefore called the Memphis factory to inquire about Step-Father's possible employment. According to Father, Step-Father, as a senior employee, would have preference for any open jobs of the same type that came available at the Memphis factory.

         Dr. John Ciocca, a licensed clinical psychologist, testified on behalf of Father. Dr. Ciocca generally opined that a child's best interests are served by maximizing the participation of both parents in the child's life. According to Dr. Ciocca, allowing the child to live far away from one parent reduces that parent's ability to be present for the child in everyday life, such as school events and extracurricular activities. In most cases, such a reduction in the time a parent spends with a child, Dr. Ciocca explained, can have a harmful effect on the child. According to Dr. Ciocca, contact through electronic means, such as FaceTime, is simply not a substitute for consistent, sustained, in-person contact. Dr. Ciocca admitted, however, that his testimony was of a general nature and was not specific to the parties or the child at issue in this case. Indeed, Dr. Ciocca had not evaluated either parent or the child in preparing his testimony.

         The trial court issued an oral ruling on October 1, 2018, finding that relocation was in the child's best interest under section 36-6-108. The trial court's first written order concerned child support and expenses. The February 22, 2019 order directed Father to pay ongoing child support of $253.00 per month. In addition, Mother was awarded a judgment for $12, 577.96 for Father's share of child care costs, health insurance premiums, and medical bills. Father's child support arrearage was set at $6, 901.00, taking into account the $3, 219.00 that Father had previously paid. Father's payment on these arrearages totaled $247.00 per month. The trial court also awarded Mother attorney's fees in the amount of $2, 000.00.

         The trial court's written order denying Father's opposition to relocation was filed on October 17, 2018. Therein, the trial court permitted Mother to relocate with the child to Blytheville, Arkansas. The trial court made no modifications to the residential schedule, other than to move the exchange location from Arlington, Tennessee to a police precinct located nearer to downtown Memphis. Finally, the trial court awarded Mother, $14, 073.64 in attorney's fees. Father filed a timely notice of appeal.

         II. Issues Presented

         Father raises two issues in this appeal, which we restate as follows:

1. Whether the trial court erred in denying Father's petition in opposition to Mother's relocation?
2. Whether the trial court abused its discretion in awarding Mother her attorney's fees.

         In the posture of appellee, Mother also seeks an award of attorney's fees incurred on appeal.

         III. Standard of Review

         The trial court heard this case sitting without a jury. Accordingly, we review the trial court's findings of fact de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the trial court's conclusions of law, and our review is de novo. Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). However, "we are mindful that trial courts are vested with wide discretion in matters of child custody and that the appellate courts will not interfere except upon a showing of erroneous exercise of that discretion." Johnson v. Johnson, 165 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Koch v. Koch, 874 S.W.3d 571, 575 (Tenn. Ct. App. 1993)). We recognize that "custody and visitation determinations often hinge on subtle factors, including the parents' demeanor and credibility" during the proceedings, and further note that "appellate courts are reluctant to second-guess a trial court's decisions." Id. (Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)). This Court's "paramount concern" is the well-being and best interests of the child at issue, and such determinations necessarily hinge on "the particular facts of each case." Id. (citing Koch, 874 S.W.2d at 575).

         Finally, the trial court's findings on credibility are entitled to great deference on appeal. See Taylor v. McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct. App. Aug. 5, 2008). Where the trial court's factual determinations are based on its assessment of witness credibility, this Court will not reevaluate that assessment absent clear and convincing evidence to the contrary. Franklin Cty. Bd. of Educ. v. Crabtree, 337 S.W.3d 808, 811 (Tenn. Ct. App. 2010) (citing Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002)).

         IV. Discussion

         A. Relocation

         Parental relocation is governed by Tennessee Code Annotated section 36-6-108. Prior to July 1, 2018, the statute provided different standards for determining whether a primary residential parent could relocate by first examining whether the parents were spending substantially equal amounts of time with the children. See Tenn. Code Ann. § 36-6-108(c) (2017). Only if the parties were spending substantially equal amounts of time with the children was the trial court to engage in a best interest analysis. Id. If the allocation of time was not substantially equal, the parent seeking to prevent the relocation had a far higher burden to prevent the relocation. Id.

         Effective July 1, 2018, however, section 36-6-108 was amended to delete the allocation of time analysis. Instead, the amended ...

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