Sherry Lynn Dalrymple v. Shawn Patrick Dalrymple ( 2017 )

11/14/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 7, 2017 Session
SHERRY LYNN DALRYMPLE v. SHAWN PATRICK DALRYMPLE
Appeal from the Circuit Court for Montgomery County
No. MCCCCVDV14-1644 Ross H. Hicks, Judge
___________________________________
No. M2016-01905-COA-R3-CV
___________________________________
In this post-divorce litigation, Father, who had been designated primary residential parent
of the parties’ two children, filed a petition to modify the parenting plan, citing his
military reassignment from Fort Campbell, Tennessee, to Huntsville, Alabama. Mother
filed a counter petition, seeking to be named the primary residential parent. The parties
reached agreement as to the parenting schedule but could not agree on which of them
would be the primary residential parent. The trial court held a hearing and determined
that it was in the children’s best interest for Mother to be named the primary residential
parent. Father appeals. Discerning no reversible error, we affirm the judgment of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
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.
Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellant, Shawn
Patrick Dalrymple.
Sharon T. Massey, Clarksville, Tennessee, for the appellee, Sherry Lynn Dalrymple.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
Sherry Dalrymple (“Mother”) and Shawn Dalrymple (“Father”) are the parents of
two minor children, James and Ethan, who were ages 10 and 8, respectively, at the time
this proceeding was initiated. Mother and Father were divorced in Montgomery County
Circuit Court on February 5, 2015. The divorce decree incorporated an agreed parenting
plan, naming Father primary residential parent and giving the parties equal parenting
time, with each parent having the children for a week at a time.
Father filed a Petition to Modify Parenting Plan on March 31, 2016, asserting that
he was being reassigned from Fort Campbell to Huntsville, Alabama, and that his
reassignment constituted a material change of circumstances justifying modification of
the parenting plan; with his petition, he filed a proposed parenting plan that continued his
designation as primary residential parent and gave him 265 days of parenting time and
Mother 100 days, to be exercised every other weekend. Mother answered, denying the
salient allegations of the petition; she included a counter-petition in which she sought to
hold Father in contempt, to have the court determine that certain of Father’s conduct
constituted a material change of circumstance, and to modify the plan to designate her as
primary residential parent.1
In mediation, the parties were able to agree on the residential parenting schedule
for the parent who was not the primary residential parent; they were not able to resolve
the question of which parent would be designated the primary residential parent. A
hearing on this issue was held on July 11 and 26, 2016. At the hearing, in addition to
himself, Father called the following witnesses: Billy Gene Bowie, Ph.D., a licensed
psychologist who conducted family therapy prior to the divorce and also individual
therapy for one of the children; Daryl Dalrymple, paternal grandfather; Matthew Tucker,
Father’s brother in law; Betty Berryhill, paternal grandmother; and Holly Mills, maternal
grandmother. In addition to herself, Mother called the following witnesses to testify:
Christen Edwards, a friend of Mother’s; Andrea Nance, Mother’s sister; and Daniel
Otero, characterized by Mother’s attorney as Mother’s “significant other.” Twenty-one
exhibits were entered into evidence. At the conclusion of the hearing, the parties were
directed to file proposed findings of fact and conclusions of law, which both did.
On August 26, 2016, the court entered a Memorandum Opinion and Order,
making findings as to the factors at Tennessee Code Annotated section 36-1-106(a); the
court designated Mother as primary residential parent, determined that the children
should remain in Tennessee with Mother, and awarded Mother 265 days of residential
parenting time. Pursuant to the agreement reached in mediation, the court awarded
Father 100 days of residential parenting time to be exercised every other weekend, and
ordered him to pay child support. At the court’s instruction, Mother submitted a revised
modified parenting plan with child support worksheets, and on September 30, 2016, the
court entered an order setting Father’s support obligation at $1,572 per month; the court
also dismissed the contempt petition.2
1
Mother’s Answer references her proposed parenting plan; however, the plan was not attached to the
pleading and is not otherwise present in the appellate record.
2
Father thereafter filed a motion to set aside the September 30 Order relative to child support, which was
2
Father appeals, contending that the findings in the August 26 Order are not
supported by the record and asking that we reverse the trial court’s decision, name him
primary residential parent, and permit him to relocate with the children.
II. STANDARD OF REVIEW
This case was tried by the trial court sitting without a jury, so we review the
factual findings de novo with a presumption of correctness unless the preponderance of
the evidence is otherwise. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005)
(citing Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Tenn. R. App.
P. 13(d)). To preponderate against a trial court’s finding of fact, the evidence has to
support another finding of fact with greater convincing effect. Watson, 196 S.W.3d at 701
(citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct.
App. 1999). We review the court’s legal conclusions de novo with no presumption of
correctness. Watson, 196 S.W.3d at 701 (citing Campbell, 919 S.W.2d at 35).
III. DISCUSSION
Even though the current litigation was precipitated by Father’s relocation to
Huntsville, Alabama, he initiated the proceeding by filing a petition governed by
Tennessee Code Annotated section 36-6-101(a)(2)(C) seeking to modify the residential
parenting schedule; this statute requires that he prove by a preponderance of the evidence
that a material change of circumstance affecting the children’s best interests has occurred.
When a change in designation of the primary residential parent is sought pursuant to
section 36-6-101(a)(2)(B), as pursued by Mother, this court has interpreted the statute to
additionally require that the petitioner prove that the change in circumstance be
“significant” before it will be considered material. In re T.C.D., 261 S.W.3d 734, 744
(Tenn. Ct. App. 2007). Under either procedure, once the petitioner has proven a material
change of circumstance, the court is to make a determination as to whether a modification
is warranted based on the best interest of the children, applying the factors at section 36-
6-106(a). The parties do not dispute that a material change of circumstance has occurred
warranting a modification of the parenting plan; the issues before us concern the trial
court’s findings as to the children’s best interest.3
heard on November 17. On that date, in accordance with an agreement between the parties, the court
modified the previous order and set child support at $1,456 per month.
3
On June 1, 2016, after both parties had filed their petitions, Father sent Mother a notice of his intent to
relocate, presumably in accordance with the Parental Relocation Statute at Tennessee Code Annotated
section 36-6-108(a); Mother did not file a petition opposing the relocation and, given the nature of the
petitions which had been filed, she was not required to do so. Since the parties agreed that there was a
material change of circumstance and had agreed on a residential parenting schedule, the only issue before
3
We first address Father’s complaint, based on being required to file his proposed
findings of fact and conclusions of law first, that the court “designat[ed] . . . Father as the
party bearing the burden of proof”; he contends that this indicated that the ultimate
decision was “tainted” and that the court erred as a matter of law. This argument is
without merit. Father initiated the proceeding by filing a petition to modify the parenting
plan and, consequently, bore the burden of proof with respect to the matters inherent
therein, including the best interest of the children, which was the only issue remaining at
trial. Trial courts have the inherent authority to control their dockets and the proceedings
before them, and reviewing courts will not second-guess a trial court’s exercise of that
authority unless it has acted unreasonably, arbitrarily, or unconscionably. Hessmer v.
Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App. 2003); Hodges v. Attorney General, 43
S.W.3d 918, 921 (Tenn. Ct. App. 2000). The requirement that Father submit his findings
and conclusions first was a discretionary matter, and we find no abuse of discretion in
that regard.
Father argues that the evidence preponderates against the court’s findings of fact
relative to the factors at Tennessee Code Annotated section 36-6-106(a).4 Father
the trial court was whether a change in the designation of the primary residential parent was in the best
interest of the children.
4
Tennessee Code Annotated section 36-6-106(a) reads:
In a suit for annulment, divorce, separate maintenance, or in any other proceeding
requiring the court to make a custody determination regarding a minor child, the
determination shall be made on the basis of the best interest of the child. 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 this subsection (a), the location of the residences of
the parents, the child's need for stability and all other relevant factors. The court shall
consider all relevant factors, including the following, where applicable:
(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 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;
(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;
4
contends generally that the court “arbitrarily adopted the findings and conclusions
submitted by the Mother” and states in his brief at multiple points that the court adopted
Mother’s proposed findings “verbatim.”
With respect to party-prepared findings of fact, the Tennessee Supreme Court has
held:
[M]ost courts have approved, but not recommended, the practice of trial
courts receiving and using party-prepared findings of fact, conclusions of
law, and orders as long as two conditions are satisfied. First, the findings
and conclusions must accurately reflect the decision of the trial court.
Second, the record must not create doubt that the decision represents the
(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. 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;
(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. The court shall, where appropriate, refer any issues of abuse to
juvenile court for further proceedings;
(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;
(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;
(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.
5
trial court’s own deliberations and decision. Accordingly, reviewing courts
have declined to accept findings, conclusions, or orders when the record
provides no insight into the trial court’s decision-making process or when
the record “casts doubt” on whether the trial court “conducted its own
independent review, or that the opinion is the product of its own
judgment[.]”
There are, to be sure, acceptable reasons for permitting trial courts to
request the preparation of proposed findings of fact, conclusions of law,
and orders. They can promote the expeditious disposition of cases, and they
may, when used properly, assist the trial court in placing the litigants’
factual and legal disputes in sharper focus. In the final analysis, the ultimate
concern is the fairness and independence of the trial court’s judgment.
Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 315–16 (Tenn. 2014) (internal citations
and footnote omitted).
The court did not rule from the bench, but took the matter under advisement and
required to the parties to submit proposed findings and conclusions. While the court
adopted the format of Mother’s findings, the court made many edits to them and
incorporated some of Father’s proposed findings in the court’s findings. As more fully
explained hereinafter, the findings were supported by the evidence. We have reviewed
each party’s proposed findings and the court’s order and do not find any evidence that
leads us to doubt that the findings are the result of the court’s own independent review
and the product of the court’s own judgment.
In the portion of the Memorandum Opinion and Order entitled “Findings of Facts”
the court made three general findings, labeled “A,” “B,” and “C,” and a fourth finding,
“D,” which contained the court’s determination relative to each factor at Tennessee Code
Annotated section 36-6-106(a).
With respect to paragraph A, Father argues that the court’s finding “that the Father
knew that he was planning to relocate even when he was negotiating the original
Parenting Plan and there was no relocation mentioned in the divorce document or
Parenting Plan and acknowledged that he needed to be primary residential parent in order
to have an advantage when he relocates” was unsupported by the evidence. This
argument is inconsistent with the court’s finding in that paragraph and the evidence. The
court actually stated:
Mr. Dalrymple is active duty military. He plans to relocate to the
Huntsville, Alabama area due to his military obligations. He has known
that he was planning to move and knew this fact even during the time he
was negotiating this parenting plan back in December, 2015. He admitted
6
that this move was anticipated by him, although there is no mention of any
relocation in any divorce documents or parenting plan. He admitted he
needed to be primary parent in order to have an advantage when he did
relocate.
The court also addressed this matter in the discussion of Tennessee Code
Annotated section 36-1-106(a)(14). In the interest of brevity and clarity, we will discuss
Father’s remaining contentions relative to that finding in our discussion of the specific
statutory factors.
Father takes issue with the findings in paragraph B, which reads:
Mr. Dalrymple has not resolved his anger issues with his former spouse.
He continues to refuse to work with her regarding the best interest of the
children. During conversations regarding simple issues with the children
such as doctor appointments or parent teacher conferences, his response is
regularly “I don’t need any help from you,” ‘You can do us a favor and get
out of our life,” or “I can provide them with all that they need, we don’t
need you.”
As evidence which he argues preponderates against these findings, Father cites to
his testimony that he had given up the Thanksgiving holiday to allow Mother to have the
boys on Christmas Day and Mother’s Day; that he had “step[ped] aside as an assistant
coach so the Mother could be team mom”; that he was frustrated due to Mother “tr[ying]
to bypass the league draft system by calling coaches”; and that he “wanted to make a
joint health decision during his parenting time by speaking to the child [about his
vomiting before permitting Mother to take him home], but the Mother refused to do so.”
We have reviewed the testimony cited by Father and conclude that it does not
preponderate against the finding that Father has not resolved his anger issues. Substantial
and material evidence in the record, including Mother’s testimony and emails and text
messages from Father to Mother, supports this finding.
In paragraph C, the court found:
Ms. Dalrymple has moved on in her life and has employment with
Workforce Essentials. She resides in Montgomery County with her mother.
She works during the day only and is available to care for the children on a
daily basis. Ms. Dalrymple testified that she has attempted to get along
with her former spouse, however, he makes it clear that he has no intention
of working with her.
The evidence does not preponderate against these findings. Father complains that
the court failed to note that the children’s maternal grandmother “had mental health
7
issues,” and that “both Mother and grandmother take medication for mood and behavioral
issues, that the Mother has given some of the grandmother’s medication, including
Phenergan, to the children, and that the grandmother has no driver’s license because of
her three DUI’s.” Inasmuch as the court made findings relative to maternal grandmother
in its consideration of statutory factors (9) and (12), we will consider Father’s argument
in this regard in our discussion of those factors.
In paragraph D the court stated:
This is a relocation case pursuant to T.C.A. § 36-6-108.[5] There is no
question that the parties are actually spending substantially equal amounts
of time with the children, and, therefore, the Court must look to the factors
outlined in T.C.A. § 36-6-106. . . .
The Court proceeded to make findings with respect to each factor and to state in whose
favor the factor weighed. Father challenges the court’s findings with respect to factors
(1), (2), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), and (14).
In his discussion of the specific statutory factors, Father does not cite to any
evidence in the record that preponderates against the court’s findings as to factors (4), (6),
(9), (11), (13), and (14), as required by Rule 27(a)(7)(A) of the Rules of Appellate
Procedure, as well as Rule 6(a)(b) of the Rules of the Tennessee Court of Appeals.
Accordingly, with the exception of factors (9) and (14), which we will discuss below, we
deem his issues with respect to those factors to be waived. See, e.g., Murray v. Miracle,
457 S.W.3d 399, 403 (Tenn. Ct. App. 2014); Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn.
Ct. App. 2000); Matter of Throneberry, 754 S.W.2d 633, 636 (Tenn. Crim. App. 1988);
Pinney v. Tarpley, 686 S.W.2d 574, 579 (Tenn. Ct. App. 1984).
We have carefully reviewed the transcript of the evidence, the exhibits, the court’s
order, Father’s arguments on appeal, and the arguments in Mother’s brief, and conclude
that, with the exception of factor (8), the evidence with respect to each factor does not
preponderate against the trial court’s findings of fact; we shall separately discuss factors
(9), (12) and (14).
With respect to factor (8), the trial court found, in part, that “[t]he Mother has no
family history of addiction.” Both Mother and maternal grandmother testified that
maternal grandmother has struggled with alcohol addiction in the past, is currently in
recovery, and has been sober for four years; accordingly, the evidence preponderates
against this finding. There is no evidence, however, that Mother has a history of
5
As previously stated, the court was not called upon to apply the relocation statute but was correct in
addressing the best interest factors at Tennessee Code Annotated section 36-6-106(a).
8
addiction. In addition the court made numerous other findings relative to this factor,
which are fully supported by the evidence.
Father takes issue with the court’s finding with respect to best interest factor (14):
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules[]
Both parents are employed. The Mother’s schedule is a standard 8-4:30
p.m. position with Workforce Essentials in Clarksville, Tennessee. She was
a stay at home mother for the majority of the marriage, however, she
became employed after the parties’ separation. The Mother has been
actively involved in all aspects of the children’s lives including their
sporting events.
Both parties have participated in their extracurricular activities, Father as a
parent volunteer/assistant coach and Mother as the team mother and
volunteer.
The Mother’s schedule is more stable for the children and she is able to
personally do things for them. The Father is in the military, is on a career
track and may deploy and/or be transferred again. The Father knew that he
was going to be moving and he should not be rewarded for intentionally
withholding information and “planning” this relocation. He testified that he
knew this would happen and he intentionally wanted to be the primary in
order to have an advantage when this relocation issue came up in court.
Father’s position in Alabama is an office job and will be flexible for
parenting obligation. He lives within minutes of other family members who
can provide assistance if a conflict arises.
This factor favors both parents equally.
Father takes particular umbrage with the statement that he intentionally withheld
information about the reassignment to Huntsville, citing to his testimony that Mother was
aware of his potential relocation to Huntsville at the time of the divorce in support of his
position that the finding is not supported by the record.
There is no testimony or other evidence that Father intentionally withheld
information relating to an anticipated relocation at the time he and Mother entered into
the agreed parenting plan; to the extent this statement by the court is construed as a
factual finding, it is unsupported. The court correctly noted in paragraph A of the
Memorandum Opinion and Order, and our review of the record confirms, that the
statement that “there is no mention of any relocation in any divorce documents or
9
parenting plan” is supported by the record. Viewed in light of the fact that the court held
that factor (14) weighed equally in favor of Father, it is apparent that the court did not
penalize Father in this regard.
With respect to factors (9)6 and (12)7, in paragraph C the court made findings
relative to Mother’s then-current living situation, including the fact that she resides with
her mother. Father complains that court ignored pertinent evidence about maternal
grandmother and argues:
The court referenced that the Mother was residing with her mother, without
noting that the maternal grandmother had mental health issues, that both
Mother and grandmother take medication for mood and behavioral issues,
that the Mother has given some of the grandmother’s medication, to include
Phenergan, to the children, and that the grandmother has not driver’s
license because of her three (3) DUI’s.
We discuss these factors as well as paragraph C together.
Father does not cite to evidence that preponderates against any of the trial court’s
findings; he argues that the court “neglects” other evidence of issues related to maternal
grandmother’s continued use of medication and mental health. The evidence cited by
Father establishes that the maternal grandmother did not have a driver’s license due to
past DUI convictions, that she takes medication for attention deficit hyperactivity
disorder and anxiety, and that Mother gave some of grandmother’s vomiting medication
to one of the boys who was “vomiting profusely.”8 In discussing factor (9), the court
addressed the maternal grandmother’s interactions with the children; the court
acknowledged her history of alcohol addiction and notes that she was in recovery, and
holds that “there are no complaints regarding her care of the children.” In its
6
With respect to factor (9), the court made the following findings relative to the maternal
grandmother:
The maternal grandmother admitted that she is an alcoholic. She does not currently have
a driver’s license. She does not drive with the children; the Mother has other persons to
assist if necessary. The maternal grandmother has lived with both the parents when they
were married and now resides with the Mother. The grandmother is a teacher in the
public school system and babysits the children on occasion. There are no complaints
regarding her care of the children.
7
With respect to factor (12), the court found “. . . the maternal grandmother has had issues but is a
recovering alcoholic and has been sober for several years. There is no indication that her current behavior
or character presents any problem.”
8
Mother testified that she gave her son some of maternal grandmother’s Phenergan, as it was “what
safely has been recommended in the past to stop that vomiting.”
10
consideration of factor (12) the court discussed the evidence relating to other persons
who reside in or frequent the parents’ homes, including Mr. Otero and the paternal
grandparents, and concluded that “[t]here are no indications that the character and/or
behavior any of these individuals has any harmful impact on the children.”
We discern no error in the court’s decision to not include the factual findings as
suggested by Father. The findings made by the court address the statutory factors it is
obliged to consider and, as noted, are supported by the evidence. The evidence cited by
Father does not preponderate against the Court’s findings.
In the course of making its ruling, the court determined that factors (1), (12), and
(14) favored both parents equally; that factor (2) weighed heavily in favor of Mother; that
factors (4), (5), (6), (7), (8), (9), (10), and (11) favored Mother; that factor (3) was
neutral; and that factors (13) and (15) were not applicable. Many of Father’s arguments
hinge on his assertion that the trial court assigned improper weight to certain factors or
certain evidence with respect to those factors.
In considering of Father’s contentions, we are mindful of the standard set forth in
Johnson v. Johnson:
“[T]rial courts are vested with wide discretion in matters of child custody”
and . . . “the appellate courts will not interfere except upon a showing of
erroneous exercise of that discretion.” Because “[c]ustody and visitation
determinations often hinge on subtle factors, including the parents’
demeanor and credibility during the divorce proceedings themselves,”
appellate courts “are reluctant to second-guess a trial court’s decisions.”
The courts’ paramount concern in a custody case is the welfare and best
interest of the parties’ minor children. This determination necessarily turns
on the particular facts of each case.
165 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (internal citations omitted).
We conclude that there is testimony or other evidence in support of each of the
court’s findings of fact, with the exception of one finding made with respect to factor (8).
The testimony and other evidence cited by Father, while sometimes conflicting with that
of Mother, does not preponderate against the court’s findings or compel different
findings. See Watson, 196 S.W.3d at 701. Much of Father’s argument is centered on the
conclusions reached by the court on the basis of evidence with which Father disagrees or
the weight assigned by the court to specific evidence; the evidence cited by Father does
not, however, conflict or compel the findings that Father suggests. We find no abuse of
discretion in the court’s determination that naming Mother primary residential parent was
in the children’s best interest.
11
IV. CONCLUSION
In light of the foregoing, we affirm the judgment of the trial court.
RICHARD H. DINKINS, JUDGE
12