Sarah Nichole Neveau v. Adam Paul Neveau ( 2017 )

06/07/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 13, 2016 Session
SARAH NICHOLE NEVEAU v. ADAM PAUL NEVEAU
Appeal from the General Sessions Court for Loudon County
No. 2013-DV-145 Rex Alan Dale, Judge
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No. E2015-02221-COA-R3-CV
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This is an appeal from a divorce. The trial court granted the parties an absolute divorce
and named the mother the primary residential parent of the parties’ minor child. The
father filed this appeal challenging the designation of the mother as the primary
residential parent and questioning the number of days of parenting time he received in the
parenting plan. We find that the evidence does not preponderate against the trial court’s
designation of the mother as the primary residential parent; however, the evidence does
preponderate against the parenting plan that greatly limits the parenting time awarded to
the father. Because we have concluded that the evidence preponderates against the
parenting plan, we remand this issue to the trial court to adopt a plan that affords the
father additional parenting time and to modify the child support award to comport with
the new parenting plan. We also conclude that the tax exemption should be awarded to
the father until such time as the mother becomes employed, at which time the issue can
be revisited.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
Affirmed in Part and Reversed in Part; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.
Sarah Richter Perky, Nashville, Tennessee, for the appellant, Adam Paul Neveau.
Carolyn Levy Gilliam, Knoxville, Tennessee, for the appellee, Sarah Nichole (Neveau)
Comeaux.
OPINION
I. BACKGROUND
Adam Paul Neveau (“Father”) moved to Loudon County, Tennessee from
Palatine, Illinois in February 2010. He met Sarah Nichole Neveau (“Mother”), and the
parties dated. Mother became pregnant in October 2010. Father denied that he was the
father of the child throughout the pregnancy. However, despite Father’s doubts, the
parties were married on February 12, 2011, approximately five months before the birth of
Anna (“the Child”) on July 9, 2011. After Anna was born, Father acknowledged that she
was his daughter.
Prior to and during the marriage, Father resided with Mother at the home of Barry
and Penny Comeaux (“Maternal Grandparents”) in Loudon County. Maternal
Grandparents have a history of caring for foster children and have adopted three children.
Mother was adopted by the Comeaux family when she was seven months old.
The record reveals that when the Child was born, Mother served as the primary
caretaker. Mother fed Anna, bathed her, and took the Child to all of her medical
appointments. During that period of time, Mother cared for the Child by herself because
Father was at work or school and Maternal Grandparents were at work. Mother tried to
attend a local community college a couple of days a week with Father caring for Anna,
but Father showed little interest in interacting with the Child. Three days after Father
started keeping the Child, Anna developed a horrible skin condition. At that point, it
appears the parties agreed that Mother would be the stay-at-home parent. According to
witnesses: “[Father] told us on more than one occasion that five minutes is all that the
child needed from him a day.” During his time in Tennessee, Father had little
involvement with the Child.
Father had roughly seven different jobs in the first two years of Anna’s life.
Despite being employed, however, Father did not pay any rent to the Comeaux family.
The trial court determined that Father “was not very successful in his employment
efforts” and “[w]ent through many part-time jobs.”
After the Child was first born, Mother was diagnosed with postpartum depression
and was initially overwhelmed with caring for Anna. Mother testified that the situation
was exacerbated by Father being verbally abusive:
A. We did not get along. There was a lot of fighting. He
would – he was emotionally and mentally abusive towards
me.
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Q. When you say that, what do you mean by emotionally
abusive?
A. Call me names, tear me down, say I’m worthless. He
would call me stupid, tell me I was not able to take care of my
daughter. He – one of his favorite words that I can remember
would be calling me a B.
Maternal Grandfather’s testimony supported that of Mother: “I would hear the way that
[Father] would talk to [Mother], and I – I would never even dream of talking to a woman
that way, or anybody. He – he – he’s an abusive person. . . . I can’t even repeat a lot of
the stuff that he would say, but, I mean, he would cuss at her, he would – he would,
basically, belittle her any way that he could.”
Allison Claudy, a babysitter, testified regarding Father’s treatment of Mother:
A. The first day went well, and then there was a lot of arguing
between [Father] and [Mother]. He yelled at her . . .
incessantly. When I brought her to my house, his phone calls,
you could hear him yelling at her over the phone, and I was –
I was quite concerned. In fact, I called a friend at the
Sheriff’s Department and someone that volunteers with a
child advocacy program and – and asked what steps would
need to be taken if I felt that they were in danger and needed
to have them in protective custody.
Q. What else caused you to want to seek authorities?
A. He just was constantly berating her. Also –
Q. When you say berating her, can you explain what that is?
A. It was as if nothing she could say or do was right in his
eyes. Even if she was trying her best, you know, he was
putting her down.
Q. Did [Mother] appear to be scared of him?
A. She said she wasn’t, but I felt like she was.
Q. Were you scared of him?
A. A little.
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The court found Ms. Claudy’s testimony to be highly credible.
In May 2013, Father suggested a move to Illinois to live with his mother
(“Paternal Grandmother”). Father contends that the parties mutually agreed to
permanently relocate to Illinois. According to Mother, however, she agreed to try out
living in Illinois. Mother discussed the reason she agreed to make the attempt: “Because
I was trying to be supportive of, at the time . . . I was trying to be supportive as to him
because he wanted to go up there, and I was trying to be considerate of what he wanted to
do.” In support of his claim that the move was to be permanent, Father asserts that he
had secured a landscaping job in Illinois prior to the relocation. He notes that he had also
scheduled interviews in Illinois for Information Technology positions, as he had received
his associate’s degree in December 2012. Once in Illinois, Mother and Father visited a
preschool, Kindercare Learning Center, to discuss enrollment of Anna.
Upon reflection, Mother now argues that Father clearly planned to move her to
Illinois in order that Illinois would become the home state of the Child for divorce
purposes. She claims that Father first attempted to have her allow him and the Child to
move to Illinois for a couple of months while she remained in Tennessee to pack:
Q. Did the father suggest that he go up to Illinois for two
months without you prior to agreeing that you would go up
there?
A. Yes.
Q. And what happened to that idea?
A. I told him that was not going to happen because at the
time, from what I can remember, he wanted to take Anna up
there, too. I said, no, you’re not going up there without me.
Q. Did it, at one point, get moved to three months that he was
going to be up there for you to pack?
A. Yes.
Q. And you were not comfortable with that?
A. No, I was not.
Q. Why were you not comfortable with that idea?
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A. Because I wanted to be with my daughter. I didn’t find it
right that he wanted to take her up there when, you know, I
was down here by myself. I wanted to be able to interact with
her, take care of her, and I felt like being away from her that
long was just too much.
After a few days in Illinois, Mother became unhappy with how Paternal
Grandmother treated her. Mother claims that the situation deteriorated after Paternal
Grandmother slapped her. Paternal Grandmother denies Mother’s account and contends
that Mother grabbed her arm while she was holding Anna. Regardless of which version
one believes, the result of the incident was that Mother decided to return to Tennessee
with the Child. Maternal Grandparents drove to Illinois, but Father obtained police
assistance to deny Mother custody of Anna. Subsequently, Father sought a temporary
restraining order in an Illinois state court to retain custody of the Child. In his petition,
Father alleged, inter alia, that Mother had Asperger’s Syndrome and a third grade level
education. On May 24, 2013, Father obtained an emergency order of protection vesting
sole custody of the Child with him.
Five days later, on May 29, 2013, Mother filed for divorce in Loudon County.
The trial court determined that it had jurisdiction over the matter and ordered Anna
returned to Tennessee with Mother as primary residential parent pending a hearing. By
the time the Child was returned to Tennessee, Mother had not seen her for six weeks, and
Anna had become extremely upset and angry:
Q. [W]hat was Anna’s state after being up in Illinois for six
weeks with her dad?
A. She was pulling out her hair. She came back scared to
death of a vacuum she had played with for the longest time.
She was scared. She would scream every time we turned it
on like it was going to hurt her or something. She was always
pulling at her hair when she would get upset. It seemed like
she was just – didn’t know how to handle anything anymore.
She was emotionally – you could tell she was an emotionally
messed up child when she had come back. She was very
angry. She had a lot of anger.
Q. Had she ever pulled out her hair before staying in Illinois?
A. No, she did not.
Q. Had she ever been an angry child before then?
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A. No, she was always a very happy child.
On July 17, 2013, the trial court awarded the parties equal parenting time. Father
received two weeks of visitation every month.
After the parties separated, Father remained in Illinois and continued to live with
Paternal Grandmother. According to Mother, Father had previously described his
relationship with his mother as follows: “He said that – he would call her . . . the devil. I
– he would tell me all the time that he hated her, wanted nothing to do with her, and that
he -- he just despised her, pretty much. He wanted nothing to do with her whatsoever.”
Maternal Grandmother discussed an incident when Paternal Grandmother kicked the
parties and Anna out of her home during a visit:
A. . . . [T]hey were left at the airport. They were thrown out
of his – of his mother’s house.
Q. They were left at an airport?
A. They were left – they were left at the airport. They were
there for, if I recall, about eleven hours with no food to eat.
His – his mom had told him for – this is – was his own words,
to get the F out of my house, and they were . . . I believe his
friend, Steve, had to bring them back to the airport, and they
sat there and had to call me to get a credit card number
because they had no money, no food, no food for Anna, was
sitting there at the airport . . . .
Paternal Grandmother painted a different picture of her relationship with the
couple and testified that Mother complained to her about living with Maternal
Grandparents:
Q. Did Nichole describe to you . . . what her relationship was
like with her parents?
A. She said that her parents control her and tell her what to
do all the time and she can’t wait to get out of there and that
her mom’s trying to take Anna away from her, that her mom
wants to be her mother, and her mom does everything and she
doesn’t get to do anything, and . . . her mom and dad don’t
love her, they only love Anna and they only take care of
Anna.
Q. And that’s what Nichole told you?
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A. That’s what Nichole told me.
According to Father and Paternal Grandmother, since the separation, when the Child was
in Illinois, she was involved in nurturing activities. She attending scout meetings with
Paternal Grandmother, who also enjoys teaching the Child to bake. Father further noted
that he enrolled Anna in ballet classes.
After the parties began to share custody of Anna, Mother claims that Father was
stubborn about working together with her on parenting issues. For example, just before
the trial, Mother, in an attempt to improve the Child’s car trip comfort, suggested that the
parties meet each other halfway. In order to not cooperate, Father lied that he worked
weekends. Father further demanded a police escort at every transfer of the Child until the
summer before the hearing. Another incident occurred when Father failed to notify
Mother that Anna’s Illinois daycare had 15 children with measles despite the fact that
Mother had a newborn baby at home. As to the last matter, Father contends that when he
tried to call Mother, she hung up on him and then turned off her phone when he
attempted to call back. Father claims that he acknowledged the Child needed Mother and
her little brother in her life; Mother, however, consistently refused to communicate with
him, while Maternal Grandparents monitored calls and interfered with his court-ordered
telephone contact with the Child.
During the pendency of the divorce proceedings, Mother became impregnated by
another man. Additionally, Maternal Grandfather was arrested for soliciting prostitution
within 100 feet of a school or church.1 Father further testified regarding an occasion in
October 2014 when Mother went out dancing and drinking at a club while Maternal
Grandparents cared for the Child. On the day of the incident, Anna had been ill with a
fever; she eventually was taken to a hospital. Father contends that when he learned of the
Child’s trip to the hospital, Mother would not take his calls. To get information, he drove
to Knoxville from Illinois to check on the status of his daughter. Mother argues that she
did not call him because her cell phone battery had died.
The trial took place on May 12, 2014, and March 2, 2015. On October 21, 2015,
the court granted the parties an absolute divorce. At the time the divorce was awarded,
Father was 27 and Mother was 22. After reviewing the factors in Tennessee Code
Annotated section 36-6-106, the court found that Mother should be the primary
residential parent, as ten factors favored Mother compared to four for Father.
“Considering the distance between the parties,” visitation was “based upon Lenoir City
School’s Calendar.” On September 1, 2016, Mother was awarded 299 days of co-
1
Father asserts that Mother told him that she recalled Maternal Grandfather getting in bed with
her when she was a child and raping her. At trial, she testified that she could not remember if it
was reality or a dream.
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parenting time with Anna in Tennessee; Father was given 66 days2 and ordered to pay
$458 of child support per month. Father agreed to pay an additional $75 per month to
address his total arrearage of $2,498. Father filed a timely appeal.
II. ISSUES
We restate the issues raised by Father in this appeal as follows:
1. Whether the trial court failed to properly weigh the factors
set forth in Tennessee Code Annotated section 36-6-106(a)?
2. Whether the trial court erred in awarding Mother sole
major decision-making authority for the Child in the areas of
education and extracurricular activities?
3. Whether the trial court erred in awarding Mother the
dependent exemption for the Child in alternating years since
it provided no financial benefit to her?
III. STANDARD OF REVIEW
We review the trial court’s findings of fact de novo on the record, presuming those
findings to be correct unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002). When the trial court’s
factual determinations are based on its assessment of witness credibility, we will not
reevaluate that assessment absent clear and convincing evidence to the contrary. See
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). A trial court’s conclusions of law
are reviewed de novo with no presumption of correctness. Whaley v. Perkins, 197
S.W.3d 665, 670 (Tenn. 2006); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91
(Tenn. 1993).
In custody, visitation, and residential placement determinations, the welfare and
best interest of a child are the paramount concern. The goal is to place the child in an
environment that will best serve the child’s needs. Tenn. Code Ann. §§ 36-6-106(a) and
36-6-404; Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); Parker v. Parker, 986
S.W.2d 557, 562 (Tenn. 1999). The General Assembly has determined that “[t]he best
interests of the child are served by a parenting arrangement that best maintains a child’s
emotional growth, health and stability, and physical care.” Tenn. Code Ann. § 36-6-
401(a).
2
Father’s parenting time was reduced down from 182.5 days per year.
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Trial courts have broad discretion in devising permanent parenting plans and
designating the primary residential parent, but those determinations must be made based
on proof and applicable principles of law. Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn.
Ct. App. 2006); Parker, 986 S.W.2d at 563. Such decisions must turn on the particular
facts of each case. Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001). “It is
not the function of appellate courts to tweak a [residential parenting plan] in the hopes of
achieving a more reasonable result than the trial court.” Eldridge, 42 S.W.3d at 88.
Because of the trial court’s broad discretion, appellate courts are reluctant to second-
guess a trial court’s determination regarding parenting plans. Nelson, 66 S.W.3d at 901.
Decisions regarding such plans often hinge on subtle factors, such as the parents’
demeanor and credibility during the proceedings. Adelsperger v. Adelsperger, 970
S.W.2d 482, 485 (Tenn. Ct. App. 1997). An abuse of discretion occurs when the trial
court . . . appl[ies] an incorrect legal standard, reaches an illogical result, resolves the
case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes
an injustice. Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A court also is
said to abuse its discretion “when the trial court’s ruling 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.” Armbrister v. Armbrister, 414 S.W.3d 685, 692-93
(Tenn. 2013) (quoting Eldridge, 42 S.W.3d at 88). See Webb v. Webb, No M2012-
02438-COA-R3-CV, 2013 WL 6706855, at *2 (Tenn. Ct. App. Dec. 17, 2013).
IV. DISCUSSION
A.
Father argues that the court improperly weighed the Tennessee Code Annotated
section 36-6-106(a) factors in designating Mother as primary residential parent. The
following statutory factors are considered in making custody and visitation
determinations on the basis of the best interest of a child:
(1) The strength, nature, and stability of the child’s
relationship with each parent, including whether one (1)
parent has performed the majority of parenting
responsibilities relating to the daily needs of the child;
(2) Each parent’s or caregiver’s past and potential for future
performance of parenting responsibilities, including the
willingness and ability of each of the parents and caregivers
to facilitate and encourage a close and continuing parent-child
relationship between the child and both of the child’s parents,
consistent with the best interest of the child. In determining
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the willingness of each of the parents and caregivers to
facilitate and encourage a close and continuing parent-child
relationship between the child and both of the child’s parents,
the court shall consider the likelihood of each parent and
caregiver to honor and facilitate court ordered parenting
arrangements and rights, and the court shall further consider
any history of either parent or any caregiver denying
parenting time to either parent in violation of a court order;
***
(4) The disposition of each parent to provide the child with
food, clothing, medical care, education and other necessary
care;
(5) The degree to which a parent has been the primary
caregiver, defined as the parent who has taken the greater
responsibility for performing parental responsibilities;
(6) The love, affection, and emotional ties existing between
each parent and the child;
(7) The emotional needs and developmental level of the
child;
(8) The moral, physical, mental and emotional fitness of each
parent as it relates to their ability to parent the child. . . .
(9) The child’s interaction and interrelationships with
siblings, other relatives and step-relatives, and mentors, as
well as the child’s involvement with the child’s physical
surroundings, school, or other significant activities;
(10) The importance of continuity in the child’s life and the
length of time the child has lived in a stable, satisfactory
environment;
(11) Evidence of physical or emotional abuse to the child, to
the other parent or to any other person. . . .
(12) The character and behavior of any other person who
resides in or frequents the home of a parent and such person’s
interactions with the child;
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***
(14) Each parent’s employment schedule, and the court may
make accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-106(a). As we noted in Port v. Hatton, No. M2011-01580-
COA-R3-CV, 2013 WL 865549 (Tenn. Ct. App. Mar. 6, 2013), “[w]hile the trial court is
directed to consider the appropriate factors in reaching its decision, it is not required to
list each factor with the court’s conclusion about how that factor impacted the custody
decision.” Id. at *6 (internal citations omitted).
The General Assembly has directed that every divorce judgment “involving a
minor child shall incorporate a permanent parenting plan.” Tenn. Code Ann. § 36-6-
404(a). In Rountree v. Rountree, 369 S.W.3d 122, 129 (Tenn. Ct. App. 2012), this court
stated:
In fashioning parenting plans, Tennessee Code Annotated
section 36-6-401 advises courts that:
The [G]eneral [A]ssembly recognizes the fundamental
importance of the parent-child relationship to the welfare of
the child, and the relationship between the child and each
parent should be fostered unless inconsistent with the child’s
best interests. The best interests of the child are served by a
parenting arrangement that best maintains a child’s emotional
growth, health and stability, and physical care.
***
Most children do best when they receive the emotional and
financial support of both parents.
Tennessee Code Annotated section 36-6-106(a) provides in pertinent part:
In taking into account the child’s best interest, the court shall
order a custody arrangement that permits both parents to
enjoy the maximum participation possible in the life of the
child consistent with the factors set out in subdivisions (a)(1)
– (10), the location of the residences of the parents, the
child’s need for stability and all other relevant factors.
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In determining which parenting arrangement was in the best interest of Anna, the
trial court engaged in a “comparative fitness analysis.” Gaskill v. Gaskill, 936 S.W.2d
626, 630 (Tenn. Ct. App. 1996). The court made the following findings of fact pursuant
to Tennessee Code Annotated section 36-6-106(a):
Mother is positive on the past performance of the parenting
responsibilities; Mother, in the past, has been the primary
caregiver, defined as the parent who has taken the greater
responsibility for performing parental responsibilities; the
love affection, and emotional ties existing between each
parent and the Child is in favor of Mother; the Child’s
interaction and interrelationships with siblings, other relatives
and step-relatives, and mentors is in favor of Mother; the
importance of continuity on the Child’s life and the length of
time the Child has lived in a stable, satisfactory environment
is in favor of Mother; evidence of physical or emotional
abuse to the other parent is in favor of Mother, because of the
verbal berating that Father has done; the parents’ employment
schedule is in favor of Mother; Father’s decision to relocate
to Illinois weighs in favor of Mother.
The court found the following factors in favor of Father:
The parental moral fitness is in favor of Father due to Mother
having a child by another man who is still married at the
current time, which is not a good example for the Child to
see; the mental fitness is in favor of Father due to Mother
having a slight learning disability; the Child’s involvement
with her physical surroundings, school, or other significant
activities is in favor of Father; the character and behavior of
any other person who resides in or frequents the home of a
parent and such person’s interactions with the Child is in
favor of Father due to the pending charges against Maternal
Grandfather and the other issues that have been addressed
with Maternal Grandfather.
The court also made the following findings regarding the credibility of each
testifying witness:
a. Maternal Grandmother was consistent in her parenting
testimony and was credible and fair to both Mother and
Father in it. Maternal Grandfather’s testimony did line up to
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some extent with Maternal Grandmother’s testimony, but the
court found Maternal Grandmother to be more credible.
b. Maternal Grandfather’s testimony was reasonably biased
in favor of his daughter. He’s protective and prone to some
exaggeration, and the court does not find his testimony as
credible as that of Maternal Grandmother.
c. Child’s babysitter in Tennessee. Allison Claudy’s
testimony was highly credible although she had limited
contact with the Child. Her testimony was consistent with
Maternal Grandparents’ testimony as far as the problems that
had evolved between Mother and Father.
d. Maternal Great-Aunt, Patti Peltier’s testimony was very
credible on what she did observe during her limited contact
on family gatherings and major holidays. Her testimony was
also consistent with Maternal Grandmother about the
parenting and lack of parenting between Father and Mother.
e. Mother’s testimony was credible.
f. Paternal Grandmother, Lisa Gullo. Her testimony was
reasonably biased in favor of Father and prone to
exaggeration. There’s a lot of her testimony where she
testified that she’s never seen Father be inappropriate to
Mother and that Father never smoked around the Child, that
she never saw Father yell, never heard him yell, that he has
always been one that has never gotten overly excitable.
Blanket testimony such as that, using all-inclusive words like
never or always raises a red flag to the court.
g. Father’s testimony was credible but not as credible as
Mother’s testimony.
h. Daycare Provider in Illinois, Susan Brown. Her testimony
by deposition was found to be credible but limited as to scope
because of her limited access. She only saw Mother one time
while the Child was in KinderCare in Illinois.
With regard to the strength, nature, and stability of the child’s relationship with
each parent, the trial court found that Mother performed the lion’s share of the past
primary child care and parenting responsibilities of Anna. As described by the trial court:
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“I think even the father recognized that and agreed that for the past performance of the
parenting responsibilities, the mother did the lion’s share while he was going to school
and employed and staying at the maternal grandparents’ home.” Father contends that
Mother only served as the primary caregiver for the first year and ten months of Anna’s
life, whereas the parties have equally served in that capacity since. Although Father did
begin receiving half of the visitation with the Child, the court properly concluded that his
lack of interaction with the Child during the first two years of her life impacted their
relationship. It was appropriate for the court to find in favor of Mother on this factor.
Father asserts that the court should have found the factor of willingness to
facilitate and encourage a close and continuing parent-child relationship between the
Child and both parents weighed more heavily in his favor. The court concluded that
Mother and Father equally failed at facilitating and encouraging a close and continuing
parent-child relationship between the Child and both of the parents, consistent with the
best interest of the Child. The court specifically stated: “I still think the father and the
mother have a long way to go on that. So I’ve got a negative on each one of the parents
as to that issue.” We find no abuse of discretion by the trial court in this determination.
Father contends that he is better able to financially provide for the Child, promote
her involvement in enrichment activities, and insure her education and care without the
day-to-day assistance of family. He notes that Mother is completely dependent on
Maternal Grandparents for the Child’s basic necessities outside of government assistance.
Father observes that Mother does not have a driver’s license and is unable to drive the
Child to the doctor or parenting exchanges. He claims that Mother is unable to provide
for the Child because she does not work outside the home. Father contends Mother’s
learning disability affects her ability to properly care for the Child.
According to Mother, Father is the one who initially wanted her to stay home. She
notes that Father is “still undergoing some problems with keeping a job.” Indeed, at the
time of the final hearing, Father was working part-time at a restaurant and no longer
providing insurance for the Child as required by court order. Based upon Father’s
inability to continue to keep a full-time job, as well as the mutually made decision by the
parties that Mother stay at home with Anna, we find no error in the trial court’s
conclusion that the parties are equally able to provide for food, medical care, clothing,
education and other necessary care for the Child.
Father further contends that the court should have found that the love, affection,
and emotional ties existing between each parent and the Child weighed equally between
the parties. Father asserts that Mother’s family has limited knowledge of the bond he has
developed with the Child since he left Tennessee and the current affection he shares with
Anna.
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At the trial, Maternal Grandmother described Father’s pickups of the Child as
follows:
A. He comes to the door, he picks her up, he walks down the
sidewalk, he puts her in the car, and they drive off.
Q. How does the child react?
A. She’s not crying, but she’s not excited. I mean, she’ll go
to him.
In contrast, Maternal Grandmother described Mother’s pickups of the Child:
Q. What is the interaction like when the mother picks the
child up in Illinois?
A. When they open the door, Anna is jumping up and down.
Before they open the door, she’s in the window waving at us,
jumping up and down, screaming Mommy, Mommy, Peppy,
Pop-Pop and is very excited. We hug her and we kiss her,
and – and we – we spend a few minutes in the car getting her
settled down, getting her – her favorite stuffed animal. She
always asks where her little Mo-Mo is, which is a monkey.
Mother additionally related the Child’s demeanor on phone calls:
Q. How do phone calls go between the parent that doesn’t
have custody and the child?
A. Anna will not talk to him. She refuses. She gets upset.
She screams. She says, no, I don’t want to talk to him. She
starts getting aggressive towards me and my mom because
she just does not want anything to do with him.
Q. So what does she do? Does she ever hang up on the
phone?
A. Yes, there’s been multiple times where she’s hung up on
him.
Q. Does she talk to her dad a good bit when he’s here?
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A. Occasionally, but very rarely. No, she wants nothing to
do with him.
Q. And what about the phone calls from you to her when
she’s in Illinois?
A. She seems very happy. I mean, she doesn’t talk long, but,
you know, the age she’s at she’s not going to hold a long
conversation, but she—she does interact with me quite a bit.
She wants to talk to her brother constantly. She—she’ll ask
me can I talk to brother or I’ll ask her. You know, she’ll want
to talk to me, she’ll want to talk to Peppy and Pop-Pop and
she seems to just want to talk to me and tell me about
everything that’s going on up there.
Q. Does she ask when you’re coming to get her?
A. Yes, she does every single time we talk to her.
This testimony supports the court’s finding: “As far as the affection between the child
and the parent, I find that in favor of the mother, as well as the emotional ties, I find that
in favor of the mother. I find that the father has made a marked improvement, and he is a
lot better in those areas. But the mother and the child affection has been displayed way
more heavily in her favor.” The record supports the trial court’s decision finding in favor
of Mother on this factor.
In addressing the Child’s interaction with family members and surroundings, the
court found that it was more important for Anna to spend greater time with her brother as
well as Maternal Grandparents than in Father’s home where he has experienced a past
rocky relationship with Paternal Grandmother. The court considered all of the relatives
in each home and determined that Mother’s home was favorable, particularly due to the
importance for siblings to grow up together. Courts in this state have regularly
recognized that a parenting plan that separates siblings is discouraged. See Rice v. Rice,
983 S.W.2d 680, 684 (Tenn. Ct. App. 1998). Maternal Grandmother discussed Anna’s
bond to her brother:
Oh, my goodness, they’re – they love each other. It’s been –
we talk to Anna on the phone, and she’ll talk to Jacob. He’ll
just smile and – and . . . talk to her. You know, he’ll – he’ll
coo when he hears her voice, and she loves to help change the
diaper and – and hold him, and she’ll hold the bottle when
we’re feeding . . . him. She adores him.
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Mother further described Anna’s love for her brother: “She – they love each other. They
have a very close bond. They interact. He is all smiles and giggles when she’s around,
and she is constantly on top of him making sure he’s okay.”
Father argues that Maternal Grandfather’s bathing with Anna was inappropriate,
although he never complained about the activity when he lived in the home. Further,
despite now arguing that Paternal Grandmother is a positive influence on the Child, the
record reveals that Father previously referred to her as “the devil.” Mother testified that
Father “would tell me all the time that he hated his mother, wanted nothing to do with
her, and that he – he just despised her, pretty much. He wanted nothing to do with her
whatsoever.” Father’s contentions do not give rise to an abuse of the trial court’s
discretion.
In considering the factor of continuity, the court reasonably found in favor of
Mother, as the Child’s current home is where Anna spent her first two years of life, as
well as where Mother has lived for the last seventeen years. Father, on the other hand,
has lived with different people for many years without paying rent. During the relevant
time frame, Father has lived at his biological father’s house, Mother’s sister’s apartment,
Maternal Grandparents’ home, and Paternal Grandmother’s home, where he is currently
residing. Father is dependent on Paternal Grandmother for housing, a concerning fact
considering his past contentious relationship with his mother. Due to Mother’s stable and
constant housing before and after Anna’s birth versus Father’s continued moves, as well
as his unstable housing with Paternal Grandmother, it was appropriate that the trial court
found as follows: “The mother has had a stable place. The mother has created a stable
environment. [Anna]’s been with her grandparents there. The father has not. He has
moved in and out of places. He’s had multiple jobs. He’s just unable to create that
stability.” The court’s finding in favor of Mother was appropriate.
Out of an abundance of caution due to the questions raised concerning Maternal
Grandfather bathing with the Child, Anna was sent to the Child Advocacy Center and she
underwent an examination by Dr. Mona Hayes. No proof was found that the Child has
been abused, but the court issued restrictions on Maternal Grandfather’s visitation as a
precaution. Accordingly, the court properly concluded that the factor of abuse towards
the Child did not come into play in the visitation determination
Father admitted that both parties raised their voices during arguments. He claims,
however, that he did not call Mother a “B” or “stupid”; instead, he accused her of “being
stupid” when she would exhibit poor judgment. Father notes that there is no proof that
these arguments took place in the presence of the Child. He further stresses that the
behavior occurred two years before the final hearing. However, based upon the
babysitter’s testimony alone, the trial court properly found that Father had been verbally
abusive toward Mother. Additionally, Mother’s family all testified that Father yelled at
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Mother during the marriage. The court’s finding does not rise to the level of an abuse of
discretion.
Father argues that the trial court credited Mother for acting as a stay-at-home
parent when the proof revealed that Mother was home because she was unwilling to
maintain gainful employment. He contends that Mother’s alleged occupation as a stay-
at-home mother is only a guise for her voluntary unemployment. The record before us
reveals that Mother testified Father “wanted me to stay at home with Anna and raise her.”
Additionally, Maternal Grandmother testified: “When Adam was there, he didn’t want
her to [work]. They agreed that she would stay at home and take care of the - the child.”
In contrast, the evidence is uncontested Father could not hold down a job while in
Tennessee. Although he did keep a job for approximately a year in Illinois, at the
conclusion of the trial he was no longer employed by that company and was only
working part time at a restaurant. Additionally, Father was in contempt of court for not
notifying Mother that he was no longer insuring the Child after leaving his last employer.
Based upon the evidence, the court did not abuse its discretion in determining that
Mother has a more stable employment history then Father. The court appropriately found
that the parties’ joint decision for Mother to stay at home with the Child was a consistent
full time job versus Father who has a continued path of not maintaining positions.
The court found another relevant factor weighing against Father was his choosing
to move to Illinois, which is ten to twelve hours away from Mother and the Child.
According to Mother, the initial plan of the parties was to go to Illinois and assess the
opportunities. According to Mother, “We were under the understanding that I’d give it a
few days, and then if it didn’t work out we would move back down here.” To the
contrary, Father claims that Mother had agreed to permanently relocate. Based upon the
record, the court concluded that it was Father’s decision to move out of the state of
Tennessee. We find no abuse of discretion.
In summary, the trial court conducted a proper best interest analysis in this case.
We find that the evidence does not preponderate against the trial court’s weighing of the
relevant factors and the designation of Mother as the primary residential parent of the
parties’ child. We affirm the trial court’s decision in this regard.
B.
Father next challenges the parenting plan adopted by the trial court. Tennessee
Code Annotated section 36-6-106(a) provides that, taking into account a child’s best
interest, the trial court shall adopt a parenting plan that permits each parent to enjoy the
maximum participation possible in the child’s life that is consistent with the factors set
forth in the statute. See Strickland v. Strickland, No. M2012-00603-COA-R3-CV, 2012
WL 6697296, at *10 (Tenn. Ct. App. Dec. 21, 2012); see Rountree, 369 S.W.3d at 129.
The relationship between the child and each parent should be fostered because of the
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fundamental importance of the parent-child relationship to the welfare of the child. Tenn.
Code Ann. § 36-6-106(a). The location of the parents’ residences, the child’s need for
stability, and all other relevant factors must be considered. Id.; Tenn. Code Ann. §36-6-
401(a).
Father asserts that affording him only 66 days of co-parenting time failed to
maximize his participation in Anna’s life. He argues that he should be allowed co-
parenting time during every spring break and fall break, every long holiday weekend such
as Presidents’ Day, Martin Luther King Day, and in-service days. He also seeks every
Easter and Thanksgiving break, the entirety of Christmas break, and the whole summer
break. This requested schedule would increase Father’s parenting time to approximately
137 days.
Mother contends that the schedule proposed by Father would allow her little
downtime with the Child. She further asserts that Anna would have little time for
extracurricular activities in Tennessee. She relies upon our discussion in Goddard v.
Goddard, No. E2011-00777-COA-R3-CV, 2012 WL 601183 (Tenn. Ct. App. Feb. 24,
2012): “[T]he best interests of the child are fundamentally interrelated with the best
interests of the custodial parent. Similarly, we think that the best interests of the child are
also fundamentally interrelated with the best interests of the parent with whom the child
spends the majority of his or her time.” Id. at *9 (internal citations omitted).
We find that the evidence preponderates against a parenting plan that limits
Father’s parenting time to only 66 days a year. The prior period of equal parenting time
allowed Anna to develop a closer relationship with her Father and Paternal Grandmother.
During that period, the Child also engaged in extracurricular activities in Illinois, such as
sports, Girl Scouts, and dance, which Father and Paternal Grandmother described as an
important part of the Child’s life. We conclude that the evidence preponderates in favor
of a parenting plan that does not so greatly minimize the parenting time of Father.
Accordingly, we reverse the determination concerning the parenting plan and remand that
issue for the trial court to adopt a plan that increases Father’s time with the Child. Once
the trial court has approved a revised parenting plan, the court shall also modify the child
support.
II.
Father argues that the trial court erred in awarding Mother sole major decision-
making authority for the Child in the areas of education and extracurricular activities.
The testimony at trial revealed an acrimonious relationship between Mother and
Father. The record as a whole showed that the parties rarely could agree on anything,
especially in the areas of education. While each parent engaged in educational and
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extracurricular decision-making for the Child during their respective parenting periods,
the evidence reveals their inability to make decisions together. As stated by the trial
court, “I’ve seen improvement vastly from both sides on – I think the biggest problem
that the parents have together right now that remains is not on parenting but it’s on co-
parenting. . . . The co-parenting issue is involving the other parent in the co-parenting
decisions that you make and the co-parenting issues that are raised by the child.”
In allocating decision-making authority, the trial court is statutorily required to
consider:
(1) The existence of a limitation under § 36-6-406;
(2) The history of participation of each parent in decision
making in each of the following areas: physical care,
emotional stability, intellectual and moral development,
health, education, extracurricular activities, and religion; and
whether each parent attended a court ordered parent education
seminar;
(3) Whether the parents have demonstrated the ability and
desire to cooperate with one another in decision making
regarding the child in each of the following areas: physical
care, emotional stability, intellectual and moral development,
health, education extracurricular activities, and religion; and
(4) The parents’ geographic proximity to one another, to the
extent that it affects their ability to make timely mutual
decisions.
Tenn. Code Ann. §36-6-407(c)(1)-(4) (emphasis added). According to Tennessee courts:
“The child’s best interests will be served if these decisions can be made without undue
delay and stress.” See Coley v. Coley, No. M2007-00655-COA-R3-CV, 2008 WL
5206297, at *7 (Tenn. Ct. App. Dec. 12, 2008). The parties in this matter have shown
that they are unable to make decisions jointly without undue delay and stress, and as such
one parent should be responsible for making these important decisions. Each motion
filed causes undue delay and stress for the Child, which is not in Anna’s best interest. See
Webb, 2013 WL 6706855 at *2. In such situations “where the parents are unable to agree
on matters of great importance to the welfare of their minor children, the primary
decision-making authority must be placed in one parent or the other.” Id. Here, Mother
is “the primary residential parent, so she appropriately holds the authority to make major
decisions for the child.” Id.
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The evidence before us shows the inability of the parties to make joint decisions.
This fact, along with the extensive distance between the parties and Mother’s designation
as the primary residential parent, supports our affirmance of the trial court’s
determination naming Mother the sole decision-maker for the areas of education and
extracurricular activities at this time. The evidence does not preponderate against the
trial court’s decision to make Mother the primary decision-maker regarding the Child.
III.
Father states that it is undisputed that Mother is not gainfully employed and has no
taxable income. He contends that the financial benefit to him in claiming the Child as a
dependent is significantly greater than the financial benefit to Mother.
The Tennessee Child Support Guidelines, Tenn. Comp. R. & Regs. 1240-2-4-
.03(6)(b)(2)(ii), provide an assumption that the primary residential parent should claim
the tax exemption for the child. However, this decision is discretionary. Such decision
rests on the facts of the particular case. Farmer v. Stark, No. M2007-01482-COA-R3-
CV, 2008 WL 836092, at *9 (Tenn. Ct. App. Mar. 27, 2008). In light of Mother’s
negligible income, the exemption is of no use to Mother at this time. Under the facts of
this case, where Father stands to gain greater benefit from the exemption, we find that the
exemption should be awarded to Father until such time as Mother, the primary residential
parent, gains employment.
V. CONCLUSION
The decision of the trial court is affirmed in part, reversed in part, and remanded
for further proceedings consistent with this opinion. Costs of the appeal are assessed
against the parties equally.
_________________________________
JOHN W. MCCLARTY, JUDGE
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