In re Khrystchan D. ( 2020 )

06/26/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 10, 2019 Session
IN RE KHRYSTCHAN D. 1
Appeal from the Juvenile Court for Davidson County
No. 2014-3129, 1873164, PT-192005, PT-193867, PT-200716
Sheila Calloway, Judge
___________________________________
No. M2018-01107-COA-R3-JV
___________________________________
In this appeal from Juvenile Court, the Mother of the parties’ child appeals the order
holding her in criminal contempt for failing to present the child for Father to exercise
parenting time and the order changing the child’s surname to that of the Father; the
Father appeals the designation of Mother as primary residential parent. Upon a thorough
review of the record, we affirm the judgment holding Mother in contempt and
designating Mother as primary residential parent; we vacate the judgment changing the
child’s surname and remand the case for the court to make specific findings as to whether
the name change is in the child’s best interest.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part, Vacated in Part and Case Remanded
RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Edmund S. Sauer and Kimberly M. Ingram, Nashville, Tennessee, for the appellant,
Crystal D-W.
Tiffany D. Hagar, Lebanon Tennessee, for the appellee, Kenneth A.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
Kenneth A. (“Father”) and Crystal D.-W. (“Mother”) are the parents of
Khrystchan (“Child”), who was born in December of 2012. On June 9, 2014, Child
1
This Court has a policy of protecting the identity of children by initializing the last names of the parties.
1
Support Services of Tennessee, on behalf of Mother, filed a petition to establish
parentage in the Juvenile Court for Davidson County; by order entered July 24, Father
was adjudicated to be Khrystchan’s father and his temporary support obligation set. Also
on that date Father filed a petition to establish a permanent parenting plan and for
custody, which Mother answered on August 22. A hearing was held by the magistrate on
September 9, resulting in an order establishing Father’s support obligation, and ordering
the parties to attend mediation to resolve the other pending issues in the case. Mediation
was held on October 28 but did not result in an agreement.
On December 18, 2014, Mother notified Father of her intent to relocate to
Cleveland, Ohio, which she did at the end of the month. On December 22, Father moved
the court to adopt the parenting plan that he had originally proposed as a temporary plan;
in due course, Mother answered. On January 20, 2015, Father filed a petition opposing
mother’s relocation, which Mother answered on May 26.
The magistrate heard the remainder of the State’s original petition, which sought,
inter alia, to recover an arrearage of support, as well as Father’s petitions, on December
7, 2015, March 7 and 14, July 1, and September 19, 2016, and entered an order on
September 28, 2016, inter alia, allowing Mother to relocate, naming Mother the primary
residential parent, adopting a parenting plan, and setting child support (the “September 28
Order.”). Pertinent to this appeal, the parenting plan granted Father parenting time every
Thanksgiving holiday beginning at 12:00 p.m. on the Wednesday before Thanksgiving
and ending at 12:00 p.m. on the Sunday after Thanksgiving; the parties were to exchange
the Child at an agreeable location in Cincinnati, Ohio; either parent was allowed to send a
designee to transport Khrystchan to the exchange location; and the parent sending the
designee was required to communicate that fact to the other by text or email. On October
3, Father filed a request pursuant to Tennessee Code Annotated section 37-1-107 that the
Juvenile Court Judge rehear certain of the matters which had been addressed in the
September 28 Order; the motion was granted on October 25, and the hearing set for
March 27, 2017.
On November 23, 2016, the day before Thanksgiving, Mother gave birth in
Cleveland to her second child. That same day, Father appeared in Cincinnati at the
agreed exchange location and stayed for several hours; Mother did not appear with
Khrystchan nor did Mother send her with a designee. On December 5 Father filed a
petition for criminal contempt, contending that Mother should be held in contempt for
failing to produce Khrystchan for the Thanksgiving visitation. He filed a second petition
for criminal contempt on February 21, 2017, contending that Mother should be held in
contempt for failing to “complete any paperwork necessary to add Father to the minor
child’s birth certificate and submit such paperwork to the proper authority,” as required
by a previous order entered by the magistrate.
The Juvenile Judge heard Father’s appeal of the portions of the September 28
2
Order, as well as Father’s original petition to implement his proposed parenting plan and
the two contempt petitions, beginning on March 27, and continuing on March 28 and 29,
June 23, July 10, and September 21, 2017. The court entered a Final Order on November
7, adopting a parenting plan which designated Mother as primary residential parent and
granted her 265 days of residential parenting time and Father 80 days, as well as
disposing of all other matters; pursuant to Mother’s motion, the court amended the
parenting plan in various respects. Mother appeals the holding that she was in contempt
of court and the change of Khrystchan’s surname; Father appeals the designation of
Mother as primary residential parent.2
II. ANALYSIS
A. Criminal Contempt
Tennessee Code Annotated section 16-1-103 provides: “For the effectual exercise
of its powers, every court is vested with the power to punish for contempt, as provided
for in this code.” Courts are specifically empowered to “inflict punishments for
contempts of court” for the “willful disobedience or resistance of any . . . party . . . to any
lawful writ, process, order, rule, decree, or command of such courts[.]” Tenn. Code Ann.
§ 29-9-102(3). A court may punish a party for contempt by a fine of $50, imprisonment
up to ten days, or both. Tenn. Code Ann. § 29-9-103. The use of a court’s contempt
power is within the court’s sound discretion and will be reviewed by an appellate court
under the abuse of discretion standard. McClain v. McClain, 539 S.W.3d 170, 187 (Tenn.
Ct. App. 2017) (citing McLean v. McLean, No. E2008-02796-COA-R3-CV, 2010 WL
2160752, at *3 (Tenn. Ct. App. May 28, 2010)). Further, on appeal “[i]ndividuals
convicted of criminal contempt lose their presumption of innocence and bear the burden
of overcoming their presumption of guilt.” Thigpen v. Thigpen, 874 S.W.2d 51, 53
(Tenn. Ct. App. 1993). Accordingly, “[a]ppellate courts do not review the evidence in a
light favorable to the accused and will reverse criminal contempt convictions only when
the evidence is insufficient to support the trier-of-fact’s finding of contempt beyond a
reasonable doubt.” Thigpen, 874 S.W.2d at 53 (citing Tenn. R. App. P. 13(e)).
In the order holding Mother in contempt, the trial court stated:
…the Court finds beyond a reasonable doubt that Mother had the ability to
comply with the Permanent Parenting Plan of September 28, 2016. It is
clear that Mother failed to bring child to the exchange. Although the
2
Father articulates his challenge to the designation of Mother thusly: “Whether the Juvenile Court erred
in awarding the primary residential status designation to Mother and entering the parties’ Permanent
Parenting Plan when Mother intentionally relocated to Ohio to defeat Father’s claim for equal parenting
time?”
3
Mother had her second baby on the same day, she knew she should have
called father to inform him of her inability to travel. Furthermore, Mother
could have sent a designee on her behalf.
***
…Mother is sentenced to ten (10) days in jail. Said sentence shall be
suspended at this time, conditioned upon no future violations for the next
six (6) months. If Mother does not provide Father all of his parenting time
as afforded according to this order, the suspended sentence shall be
revoked, and Mother shall serve ten (10) days in the Davidson County Jail.
There are three essential elements of criminal contempt: (1) a court order, (2) the
defendant’s violation of that order, and (3) proof that the defendant willfully violated that
order. Pruitt v. Pruitt, 293 S.W.3d 537, 545 (Tenn. Ct. App. 2008) (citing Foster v.
Foster, No. M2006-01277-COA-R3-CV, 2007 WL 4530813, at *5 (Tenn. Ct. App. Dec.
20, 2007)).
Mother does not dispute that she violated the September 2016 order, thereby
satisfying the first two elements of Pruitt. She argues that her actions were not
contemptuous because her failure to appear was not willful. Consequently, as we
consider the element of willfulness, we look to the record for evidence of Mother’s intent
and culpable state of mind. As this court noted in In re Carolina M.:
Willfulness, in the context of criminal contempt, requires both (1)
intentional conduct, and (2) a culpable state of mind. Duke v. Duke, No.
M2013–00624–COA–R3–CV, 2014 WL 4966902, at *31 (Tenn. Ct. App.
Oct. 3, 2014). Regarding these requirements, this Court has explained:
The statutory definition of intentional conduct is found in
Tennessee Code Annotated section 39–11–302(a) (2010):
“‘Intentional’ refers to a person who acts intentionally with
respect to the nature of the conduct or to a result of the
conduct when it is the person’s conscious objective or desire
to engage in the conduct or cause the result.” Tenn. Code
Ann. § 39–11–302(a). To satisfy the culpable state of mind
requirement, the act must be “undertaken for a bad purpose.”
Konvalinka [v. Chattanooga–Hamilton Cty. Hosp. Auth.],
249 S.W.3d [346,] 357 [(Tenn. 2008)]. In other words, willful
disobedience in the criminal contempt context is conduct
“done voluntarily and intentionally and with the specific
intent to do something the law forbids.” Id. (quoting State v.
Braden, 867 S.W.2d 750, 761 (Tenn. Crim. App. 1993)
4
(upholding this definition of willful misconduct for criminal
contempt)). Id.
In re Carolina M., No. M2014-02133-COA-R3-JV, 2016 WL 6427853, at *5–6 (Tenn.
Ct. App. Oct. 28, 2016) (quoting Duke v. Duke, No. M2013-00624-COA-R3CV, 2014
WL 4966902, at *31 (Tenn. Ct. App. Oct. 3, 2014)).
Evidence pertinent to the question of Mother’s intent and state of mind prior to the
Thanksgiving 2016 visitation appears in her testimony, the testimony of Father and
Grandmother, and in text messages between Mother and Father throughout October and
November, wherein Mother and Father texted regarding transporting Khrystchan to
Cincinnati for Father to exercise parenting time and travel restrictions caused by
Mother’s pregnancy.3
On October 10 Mother sent Father a message relative to his picking Khrystchan up
for parenting time which was set to begin October 27, advising him that she was on travel
restrictions until her baby was born and could not drive to Cincinnati, and that there was
no one available to make the exchange for her; shew asked of Father could come to
Cleveland to pick her up. On October 11, Father responded in two messages, the first
stating that the trip to Cleveland would create a “major strain on the time I can spend
with Khrystchan as well as my work schedule, and the second advising that “if for any
reason I am force[d] to travel to Cleveland to pick up Khrystchan then I need something
in writing and notarized that there is an agreement . . . allowing an extended period of
visitation. I would like to pick her up and keep her for the six weeks you are unable to
travel”; the parties texted back and forth numerous times on the without resolving the
matter. On October 12, Father texted Mother stating that he would meet in Cincinnati on
the 27th for the exchange, as provided in the order; Mother responded that “based on the
recommendations of the doctor we won’t be in Cincinnati on or before Oct 27th for an
exchange”. . . and that “[t]he order says that the exchange is to take place at 6p on Oct.
27th. Considering you would have to come all the way here, if you would like you can
plan to pick her up early (i.e. 1p) . . . That is the best that I can offer under the
circumstances.” Father responds promptly, asking “Can you help figure this out” and
“[w]hat about your mom. . . uncle. . . Jeremiah or another relative driving you.”
Although Mother sent a text message to Father on October 26, stating “I will not be in
Cincinnati tomorrow and I don’t have anyone to force in my place, . . . I want you to also
be aware today that she won’t make it to Cincinnati as she has no transportation,” Father
testified that he went to Cincinnati and that “mom showed up in October four hours - -
two hours late for the visit in October I got a phone call a couple hours prior said she was
3
The September 28 Order provided that Father would have parenting time for fall vacation in 2016 from
6:00 p.m. on Thursday, October 27, to Sunday, October 30, at 12:00 p.m., and for each Thanksgiving
beginning at 12:00 on the Wednesday before Thanksgiving and ending at 12:00 p.m. on the Sunday after
Thanksgiving.
5
just leaving.”4
With specific reference to the Thanksgiving visitation, on October 31 Father sent
Mother a message stating “…until we get all these motions worked out I will follow the
court order. I will be in Cincinnati by noon the day before Thanksgivin[g]”. Mother
responded on November 10, advising Father that neither she nor her mother would be
bringing Khrystchan to Cincinnati, and telling him that “if you want to figure out
alternative means then you are welcomed to do so.” Father responds the same day,
stating that “[i]f you want to talk about reschedule my visit that is one thing but I am not
giving it up entirely.” On November 23, Father sent three different text messages
attempting to locate Child between the hours of 11 a.m. to 2 p.m.; the first stating “Or
you at McDonalds or Whole foods,” the second stating “You never clarified location,”
and the third stating “Where are you.”
At trial, after testifying regarding the aforesaid text messages, Father testified
regarding his efforts to pick up Khrystchan in Cincinnati on November 23:
And then in November, I kept asking when the baby was due, the
due date, so I could try to get rescheduled, and no one would tell me the
due date of the child, not the paternal grandmother or the mother, and it was
like you either come up here or you’re not going to get your visit, and then
all communication went away. So I was hoping that that was a bluff, so I
drove up to Cincinnati. texted, I called, I left voice messages. I waited an
extra four hours, and still no show . . . .
Mother likewise testified regarding the text messages, after which she testified as
follows relative to the Thanksgiving visitation:
Q. Okay. And for his visit that was supposed to occur for Thanksgiving,
I guess that would have been the Wednesday before Thanksgiving, I don’t
have that date in front of me –
A. It would have been -- his visit was supposed to happen -- happen on
the 23rd.
Q. Okay. And where were you on the 23rd?
A. In the hospital. I gave birth to my child.
Q. When did you give birth to the baby?
4
Grandmother testified that she and her other daughter drove Khrystchan to Cincinnati and the record
contains a text message Father sent Mother on October 28 stating “and tell your mom and sister thanks
and I appreciate them stepping up and helping in the exchange where you were unable!”
6
A. November 23rd, 2016, 1:17 a.m.
Q. Okay. And when did you go into labor?
A. The night before. It was seven o’clock that night.
Q. Okay. And did you receive any communication from the father --
any specific communication like you testified to from the father prior to the
Thanksgiving pickup asking about the visitation at all?
A. Other than what was going on in that conversation, I would have to
go through the texts to be sure. I do know he had – I’m just trying to read
through them real fast. I do know that he had mentioned something about
he’s supposed to get a visit and this, that, or the other. I said, “I understand
that. I say, “I'm just trying to tell you I can’t travel, there’s nobody
available to bring her to you.” And I reminded him about the order that
Judge Ottman put in place that says that we are supposed to be sensitive to
life events, and she specifically put the birth of a child in there.
In addition to testifying about the October visitation, with respect to the
Thanksgiving visitation, Grandmother testified that she called Father on the evening of
November 22 and left him a message that “[Mother] was in the hospital and Khrystchan
would not be there,” and that Grandmother was present with Mother when the child was
born.
The first of series of messages shows that Mother was aware of her pregnancy-
related travel restrictions on October 10 and of the challenges in finding someone to drive
Khrystchan to Cincinnati for the October exchange; her mother and sister were able to
fulfill her obligation. The second series of messages, as well as the testimony, shows that
Father advised Mother on October 31 that he intended to follow the order regarding the
Thanksgiving visitation and be in Cincinnati on November 23 to pick up Khrystchan; that
Mother responded ten days later stating that neither she nor Grandmother would bring
Khrystchan to Cincinnati on the 23rd; that the next communication specifically related to
the visitation did not occur until Grandmother’s call to Father on November 22, when
Mother was in the hospital to give birth, leaving him a message; that Father followed the
order and went to Cincinnati; and that Mother had not made arrangements to have
Khrystchan available in Cincinnati.5
Viewed in its entirety and in context, the evidence shows that Mother knew
beginning on October 10 that she had restrictions on her ability to travel and would need
to find a designee or reach an agreement with Father regarding his ability to exercise
5
Other messages between the parties after November 10 and predating Thanksgiving related to
difficulties Father had with Skype communications with Khrystchan; the messages do not address the
exchange in Cincinnati.
7
parenting time until her restrictions were lifted, and that the parties communicated often
through the months of October and November. In the absence of agreement with Father
or relief from the order, Mother had the responsibility to make arrangements to get
Khrystchan to Cincinnati. Her failure in the time since learning of her travel restrictions
to make arrangements to satisfy her obligations under the order relative to the
Thanksgiving visitation, the difficulties as to which had been made evident with
reference to the October visitation, demonstrates a conscious and deliberate decision to
disregard the order.
As noted earlier, because she has been convicted of criminal contempt, Mother
loses the presumption of innocence and bears the burden of overcoming the presumption
of guilt. See Thigpen, supra. In this instance, Mother has the burden of proving that her
failure to have Khrystchan in Cincinnati was not willful; on the record presented, she has
failed to do so. To the contrary, the evidence fully shows that her failure to act was done
“voluntarily and intentionally and with the specific intent to do something the law
forbids.” See Konvalinka, 249 S.W.3d at 357. Accordingly, we affirm the judgment
holding Mother in criminal contempt.
B. Change in the Child’s Surname
Mother contends that the court erred in changing Khrystchan’s surname; she
argues that the court misapplied the factors to be considered in making a name change
and that the change is not in Khrystchan’s best interest.
As noted by this court in Barbaras v. Rogers:
The courts should not change a child’s surname unless the change
promotes the child’s best interests. Among the criteria for determining
whether changing a child’s surname will be in the child’s best interest are:
(1) the child’s preference, (2) the change’s potential effect on the child’s
relationship with each parent, (3) the length of time the child has had its
present surname, (4) the degree of community respect associated with the
present and proposed surname, and (5) the difficulty, harassment, or
embarrassment that the child may experience from bearing either its present
or proposed surname. The parent seeking to change the child’s surname
has the burden of proving that the change will further the child’s best
interest.
868 S.W.2d 283, 287 (Tenn. Ct. App. 1993) (internal citations omitted). Our review is de
novo on the record, affording a presumption of correctness to the trial court’s factual
findings. Halloran v. Kostka, 778 S.W.2d 454 (Tenn. Ct. App. 1988); see also Tenn. R.
App. P. 13(d). Id.
8
We first address Mother’s argument that the court “misstated … the factors
applicable to a request for a name change.” In the Final Order, the court articulated the
factors to be applied in its consideration of the name change thusly:
According to Tennessee law, it is the burden of the petitioner (or the person
requesting the change) to establish that a name change of the child would
be in the child’s best interest. The court has to look at several factors in
order to determine if the change would be in the best interest of the child,
including but not limited to 1) the child’s preference; 2) the name change’s
potential effect on the child’s relationship; 3) the length of time that the
child has had the current name; 4) the degree of community respect in
regards to the name; and 5) the difficulty, harassment or embarrassment the
child may experience with the new name.
Mother argues that the standard as stated by the court “did not accurately reflect
governing law,” specifically, that the court failed to state that factor two applied to both
parent’s relationships with Khrystchan, and that the court did not consider the fourth and
fifth factors for both the present and proposed surname.
While we agree that the factors articulated in Barbaras are to guide the court in its
consideration of the proposed name change, we do not agree that any deviation in the
articulation of those factors, or for the court to fail to make a finding as to any factor in
the absence of proof as to that factor, is error; the factors, however stated, are merely
“criteria for determining whether changing a child’s surname will be in the child’s best
interest.” Barbaras, 868 S.W.2d at 287. Thus, it is not necessary for the court to make a
finding as to each factor, and we do not consider the factors to be exclusive of others
which may be presented in the record; the ultimate determination is the child’s best
interest.
In granting the name change, the court held:
In this case, this Court does find that Father has met the burden of proof
that a change in the child’s surname would be in her best interest. This
Court holds that it is in the best interest of the minor child for her Father’s
last name of “A[.]” to be her surname, changing the minor child’s name to
“Khrystchan A. N. A[.]” The Father has shown that a change in the name
would not harm the child. The “A[.]” name is a respected name in the
community. Furthermore, this is an appropriate age for the name of the
child to be changed as she has yet to begin Kindergarten.
The court did not make specific findings of fact, other than as contained in the
foregoing quote. The absence of more detailed findings hampers our review, inasmuch
as we are reviewing the court’s holding that changing her surname is in Khrystchan’s best
9
interest, which is an inherently a fact intensive issue. 6 Reluctantly, we must vacate this
portion of the order and remand for the court to make appropriate findings as to
Khrystchan’s best interest.
C. Designation of Primary Residential Parent
Tennessee Code Annotated section 36-6-402(5) requires a residential parenting
schedule to designate a primary residential parent; section 36-6-402(4) defines primary
residential parent to be “the parent with whom the child resides more than fifty percent
(50%) of the time.” In developing the parenting plan, the court is to utilize the factors at
section 36-6-106. In our resolution of this issue, we are guided by the following:
Because decisions regarding parenting arrangements are factually driven
and require careful consideration of numerous factors, trial judges, who
have the opportunity to observe the witnesses and make credibility
determinations, are better positioned to evaluate the facts than appellate
judges. Thus, determining the details of parenting plans is “peculiarly
within the broad discretion of the trial judge.’” “It is not the function of
appellate courts to tweak a [residential parenting schedule] in the hopes of
achieving a more reasonable result than the trial court.” A trial court’s
decision regarding the details of a residential parenting schedule should not
be reversed absent an abuse of discretion. “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.” A trial court
6
As noted in In re Gunner F.:
There are circumstances where, if the trial court fails to make findings of fact, the
appellate court may proceed to determine where the preponderance of the evidence lies:
“On occasion, when a trial judge fails to make findings of fact and conclusions of law,
the appellate court ‘may “soldier on” when the case involves only a clear legal issue, or
when the court’s decision is “readily ascertainable.”’” In Pandey [v. Shrivastava, No.
W2012–00059–COA–R3–CV, 2013 WL 657799, at *5 (Tenn. Ct. App. Feb. 22, 2013)],
however, the court concluded that it could not proceed to make its own factual findings
because “[d]etermining the best interest of a child is a ‘fact-intensive issue,’ and the basis
of the trial court’s decision in this case is not readily ascertainable.” Similarly, in Crafton
v. Roberts, [No. W2015-00048-COA-R3-CV, 2015 WL 9466011, at *8 [(Tenn. Ct. App.
Dec. 28, 2015)], the court found “an absence of an appropriate best interest analysis”
such that there were “no factual findings that provide insight as to why the trial court
reached the decision that it ultimately did.” On that basis, the court vacated the trial
court’s order and remanded the case back to the trial court for further proceedings.
No. M2016-01650-COA-R3-JV, 2017 WL 2438572 (Tenn. Ct. App., May 23, 2017) (internal citations
omitted).
10
abuses its discretion in establishing a residential parenting schedule “only
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, 693 (Tenn. 2013) (internal citations omitted).
Father does not appeal the residential parenting schedule; he contends that the
court abused its discretion in designating Mother as primary residential parent, asserting
that Mother relocated to Ohio in order to defeat his claim for equal parenting time. He
also contends that the court erred in holding that factors 1, 5 and 10 at section 36-6-106
weighed only in favor of Mother.
We first address Father’s argument that Mother moved to Ohio to defeat his
parenting time. In his petition opposing Mother’s relocation, which was filed pursuant to
the relocation statute at Tennessee Code Annotated section 36-6-108 on January 20,
2015,7 Father specifically alleged that “Mother seeks to move to Cleveland, Ohio due to
vindictive motive top keep the minor child away from Father,” and requested that Mother
“not be allowed to relocate with the minor child to Cleveland, Ohio, or, in the alternative,
that the father be granted custody of the minor child and be named the primary residential
parent.” The issues raised in the petition were fully litigated in the hearing which
resulted in this appeal; the court held that “there are legitimate purposes behind her
move” and allowed Mother’s relocation. Father has not included the court’s ruling as an
issue in this appeal and has not briefed the issue of whether the trial court erred in the
7
At the time the petition opposing Mother’s relocation was filed, Tennessee Code Annotated section 36-
6-108(d)(1) provided:
If the parents are not actually spending substantially equal intervals of time with the child
and the parent spending the greater amount of time with the child proposes to relocate
with the child, the other parent may, within thirty (30) days of receipt of the notice, file a
petition in opposition to removal of the child. The other parent may not attempt to
relocate with the child unless expressly authorized to do so by the court pursuant to a
change of custody or primary custodial responsibility. The parent spending the greater
amount of time with the child shall be permitted to relocate with the child unless the court
finds:
(A) The relocation does not have a reasonable purpose;
(B) The relocation would pose a threat of specific and serious harm to the child that
outweighs the threat of harm to the child of a change of custody; or
(C) The parent’s motive for relocating with the child is vindictive in that it is intended to
defeat or deter visitation rights of the non-custodial parent or the parent spending less
time with the child.
11
ruling on Mother’s relocation; consequently the issue is waived.
In the Final Order, the court made the following findings as to the factors at
section 36-6-106:
With respect to TCA §36-6-106, the Court hereby conducts a best
interest analysis as to which parent should be designated as the Primary
Residential Parent and what is the appropriate parenting time for each
parent. The court finds the factors weigh as follows:
(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:
Both parents have a strong and stable relationship with the child.
However, this factor favors Mother due to Father’s lack of knowledge of
the minor child for the first two years of her life and her relocation to Ohio.
Mother has primarily parented the minor child even after Father learned of
the existence of the child. Mother has also performed the majority of
parenting responsibilities relating to the daily needs of the child, though this
is now due to the geographic distance between the parties.
(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 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:
This factor weighs in favor of the Father. This Court does have a
concern regarding both parents’ willingness to facilitate a close and
continuing relationship between the child and the other parent. Both parents
wish to be designated as the primary residential parent with the other parent
having limited time. However, Father proposes significant[ly] more time
for Mother before the beginning of kindergarten than Mother does for
Father. Although there exists a geographical distance between the two, the
Court intends to allow both parents to have maximum participation in the
12
child’s life.
There is a significant level of distrust between the parties. This is not
surprising given the parties did not know one another when the child was
conceived. The distrust between the parties began the night of the
conception of the child. Both have differing accounts of what took place
that evening and disagree regarding most of the specifics circumstances.
The relationship between the parties has only deteriorated since the birth of
the child. Mother seems to provide Father with only the information she
feels he needs to know. Mother is cautious regarding the information she
provides to Father as she is concerned it will be used against her in
litigation. Father is suspect of the information Mother provides, or fails to
provide, and sought to investigate on his own many aspects of Mother and
the child’s life, which has led to further distrust between the parties. Mother
failed to inform Father of the child’s medical needs, including an eating
issue, until Father obtained the medical records and child’s need for glasses
for six months after recommendation by the doctor. Mother failed to inform
Father of the daycare provider’s contact information until required by the
Court.
The Court has concerns about the ability of Mother to comply with
the Permanent Parenting Plan. There have been several instances in which
Mother has not complied with the Court’s orders, including bringing the
minor child to Nashville to begin Father’s supervised visitation, and
making arrangements for the child to be brought to the exchange for
Thanksgiving 2016. The Court can only go on past behavior of the parties
in this respect. It is clear that Mother denied Father several instances of
parenting time.
(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings:
This factor does not apply in this case.
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care:
This factor is equal. This Court has no concerns about the child’s
needs being met.
(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:
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This factor weighs in favor of the Mother. Mother has been the
primary caregiver for the child. However, the Court will not diminish
Father’s involvement in the child’s life. Since Father learned of his
paternity of the child, he has sought parenting time. Litigation has been
extensive due to the allegations made by both parent against each other.
Father has shown since his involvement that he has the ability to be the
primary caregiver, as he has served as the caregiver for three other children,
all of whom are successful and accomplished children.
(6) The love, affection, and emotional ties existing between each parent and
the child:
This factor is equal. The parents share a loving and close
relationship with the child and are emotionally attached.
(7) The emotional needs and developmental level of the child:
This factor does not apply in this case. Both parties’ testimony
indicates that the child is a well-adjusted child and is thriving in both
homes.
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. The court may order an
examination of a party under Rule 35 of the Tennessee Rules of Civil
Procedure and, if necessary for the conduct of the proceedings, order the
disclosure of confidential mental health information of a party under § 33-
3-105(3). The court order required by § 33-3-105(3) must contain a
qualified protective order that limits the dissemination of confidential
protected mental health information to the purpose of the litigation pending
before the court and provides for the return or destruction of the
confidential protected mental health information at the conclusion of the
proceedings:
This factor does not apply in this case. The Court does not have any
significant concerns regarding either parent.
(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:
This factor is given equal weight to both parents. Khrystchan has a
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strong relationship with both sides of her family and seems like a happy
child. Khrystchan spends a lot of time with her Step-Mother and seems to
have a close relationship with her. The Mother resides with the Maternal
Grandmother and Khrystchan has a close relationship with her as well.
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment:
This factor favors Mother. While both home environments are
satisfactory and stable, the Mother has had the main responsibility for
providing continuity and stability for this child, both while living alone in
Nashville, TN and after moving to Cleveland, Ohio.
(11) Evidence of physical or emotional abuse to the child, to the other
parent or to any other person. The court shall, where appropriate, refer any
issues of abuse to juvenile court for further proceedings:
This factor does not apply in this case. The allegations initially made
against the Father by his wife were never supported by any proof.
(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:
This factor is given equal weight to both parents. Although Father
had concerns about Mother’s boyfriend and his use of marijuana, there was
no information as to the character or behavior of the Mr. Jeremiah D[.] and
how it would affect the child.
(13) The reasonable preference of the child if twelve (12) years of age or
older. The court may hear the preference of a younger child upon request.
The preference of older children should normally be given greater weight
than those of younger children:
This factor does not apply in this case.
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules:
This factor weighs equally between the parents. Both parties are
employed full time. Father works for Nelson Mazda and has worked for the
company for several years. Mother has had several changes in her
employment, but has worked for several years for Cardinal Health. Both
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parties have made adequate accommodations to be available for their child.
(15) Any other factors deemed relevant by the court.
No additional factors apply in this case.
Father contends that factors 1, 5 and 10 should be weighed equally “based on
Mother’s unwillingness to have Father involved in the child’s life prior to and throughout
the litigation.” Father’s concerns as to the court’s weighing of these factors are largely
based on the fact that he did not learn of Khrystchan and that he was her father until
eighteen months after her birth. He argues that, since that time, he has sought to maintain
a relationship with his daughter and, he contends, has been frustrated in that regard by
Mother’s actions. With respect to each of the factors, the final decree shows that Father’s
concerns were considered and given substantial weight by the court. Indeed, other than
the factors with which Father takes issue, every other factor was found either in his favor
(factor (2)), equally in his and Mother’s favor (factors (4), (6), (9), (12), and (14)), or not
applicable. The record shows that the court fully considered the matters argued by
Father. As noted earlier, we give great deference to the trial court in designing parenting
plans, including the designation of the primary residential parent. Upon a thorough
review of the record, we are not persuaded that the evidence preponderates against the
court’s designation and do not discern any error of law in the court’s application of
section 36-6-106 to the facts.
IV. CONCLUSION
For the foregoing reasons, we vacate the portion of the order that changes
Khrystchan’s surname and remand the case for the court to make specific findings as to
whether the name change is in her best interest and enter judgment accordingly; in all
other respects, the judgment is affirmed.
RICHARD H. DINKINS, JUDGE
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