Assigned on Briefs November 12, 2019
from the Juvenile Court for Shelby County No. BB9959 David S.
Walker, Special Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Breakstone and Adrian Vivar-Alcalde, Memphis, Tennessee, for
Schaeffer. James W. Harris, Blytheville, Arkansas, for the
appellee, Amanda Patterson.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and Kenny Armstrong,
STEVEN STAFFORD, JUDGE
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. 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. 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
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,  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. 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.
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. Father filed a notice of a request for a
hearing before the juvenile judge on July 18, 2018.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
raises two issues in this appeal, which we restate as
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.
posture of appellee, Mother also seeks an award of
attorney's fees incurred on appeal.
Standard of Review
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
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)).
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.
July 1, 2018, however, section 36-6-108 was amended to delete
the allocation of time analysis. Instead, the amended ...