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Rosebrough v. Caldwell

Court of Appeals of Tennessee, Jackson

December 18, 2019

TIMOTHY ROSEBROUGH
v.
KAREN CALDWELL F/K/A KAREN ROSEBROUGH

          Session: November 13, 2019

          Appeal from the Chancery Court for Madison County No. 66696 William B. Acree, Jr., Senior Judge

         In this post-divorce custody action, the mother filed a motion seeking to modify the permanent parenting plan to designate her the primary residential parent. During trial, the parents requested that the Trial Court modify the residential parenting schedule. Following trial, the Trial Court entered an order denying the mother's request to be designated primary residential parent but granting the parties' request to modify the parenting schedule. Most of the Trial Court's order consisted of its detailed recitation of the testimony presented during trial, without finding which testimony was credible or otherwise making sufficient findings of fact regarding the evidence presented to support its ruling as to changing the primary residential parent. As such, we find and hold that the March 9, 2018 order does not comply with Tennessee Rule of Civil Procedure 52.01 by including sufficient findings of fact concerning the mother's motion to modify the permanent parenting plan to designate her the primary residential parent. We, therefore, vacate that portion of the Trial Court's judgment and remand for the Trial Court to make sufficient findings of fact and conclusions of law in compliance with Tennessee Rule of Civil Procedure 52.01. Because the Trial Court did make sufficient findings of fact as to the parenting schedule and it was not raised as an issue on appeal, the Trial Court's judgment regarding modification of the residential parenting schedule is affirmed.

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

          Karen L. Caldwell, Jackson, Tennessee, Pro Se.

          Lisa A. Houston, Jackson, Tennessee, for the appellee, Timothy S. Rosebrough.

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

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         The parties, Timothy Rosebrough ("Father") and Karen Caldwell ("Mother"), were married in 2007. The parties had one child together during the marriage, A.F.R. ("the Child"). Father filed a complaint for divorce in the Madison County Chancery Court ("Trial Court"), and the parties were divorced in November 2010. Following trial, Father was designated the primary residential parent of the Child, with Father receiving 280 days and Mother receiving 85 days. Per the permanent parenting plan, Mother's parenting time would occur on Tuesdays from 5:30 p.m. to 8:30 p.m. and every other weekend from Thursday at 6:00 p.m. to Sunday at 6:00 p.m. However, the Trial Court ordered that Mother would receive only supervised visitation with the Child until she completed an anger management course of at least eight weeks duration and submitted to a psychological and parenting evaluation by a licensed counselor, both to occur at Pathways in Jackson, Tennessee. Once Mother completed the aforementioned requirements, she would receive unsupervised visitation as provided in the permanent parenting plan. Mother filed a motion for new trial, which was denied by the Trial Court. Mother appealed to this Court in 2011, but her appeal was dismissed for failure to file an appellate brief.[1]

         Following entry of the final divorce decree and the permanent parenting plan, litigation between the parties continued unabated. Mother filed motions to clarify, which were denied due to lack of jurisdiction and the pending appeal. She also filed a motion seeking to terminate the requirement that her visitation be supervised without her having to complete the anger management course. In support of her motion, Mother presented a report from a psychologist stating that she did not need anger management. The Trial Court ultimately denied Mother's motion, finding that it was "simply an attempt to alter the prior judgment by yet another motion (well after the Decree became final), arguing that the trial judge was wrong" and instructed that issues with the divorce decree be determined during the pending appeal. She also filed a motion for contempt. Father filed a response to Mother's motion for contempt and a counter-motion for contempt against Mother. The Court denied Mother's motion for contempt but granted Father's motion for contempt due to Mother's failure to pay her portion of the Child's uncovered medical expenses.

         In September 2011, Father filed a motion to modify the permanent parenting plan and for contempt. Mother subsequently filed a petition to change custody of the Child and for contempt and a motion to modify the final decree, asking the court to waive the anger management requirement. Following a hearing on those petitions, the Trial Court found that a material change in circumstances had occurred warranting modification of Mother's parenting time restrictions. Upon finding that Mother had "undergone some changes in attitude" and had acknowledged that she needed to obey court orders even when she did not agree with them, the Trial Court removed the requirement that Mother complete anger management to assist in the building of a relationship between Mother and the Child and ordered that Mother would have unsupervised visitation with the Child according to the permanent parenting plan. The Trial Court, however, found that it was in the Child's best interest for Father to remain the primary residential parent. On April 12, 2013, the Trial Court entered an order modifying Mother's visitation schedule to include Tuesdays from 4:00 p.m. to 7:00 p.m. after August 1, 2013, and every other weekend from Thursday at 6:00 p.m. through Sunday at 6:00 p.m. The Trial Court dismissed the allegations of contempt.

         In November 2015, Mother filed a motion to modify custody, requesting that she be designated the primary residential parent for the Child. Mother also filed a motion to waive mediation and requested a psychological evaluation for Father. The Trial Court ordered the parties to attend mediation and continued Mother's motion for a psychological evaluation. Father subsequently filed a motion requesting that Mother comply with a psychological and parenting evaluation and an anger management course. In response to the parents' motions, the Trial Court ultimately ordered Father to complete a psychological evaluation and Mother to complete a psychological and parenting evaluation. The Trial Court found that due to the parties' "profound dislike for one another" and the difficulty this presented in co-parenting, good cause existed for the evaluations. The Trial Court further ordered the parties and the Child to undergo a custodial evaluation, which included the psychological evaluations for both parents. The Trial Court reserved the issue of anger management until trial.

         In August 2016, the Trial Court renewed its prior injunction prohibiting the parties from speaking badly of the other parent and instructing the parties to encourage the Child to love the other parent. Thereafter, Mother filed a motion for contempt against Father alleging that he violated the injunction put in place by the Trial Court. The Trial Court denied Mother's motion for contempt, finding that Mother's motion was "not worthy of oral argument." The Trial Court also granted Father an award of reasonable ...


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