Lindsey Beth Honea v. John William Honea ( 2021 )

04/22/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 3, 2021 Session
LINDSEY BETH HONEA V. JOHN WILLIAM HONEA
Appeal from the Chancery Court for Rutherford County
No. 17CV-833 Darrell Scarlett, Chancellor
No. M2020-00881-COA-R3-CV
A mother and father of three children were divorced in 2018, and both parties filed petitions
to modify the permanent parenting plan later that year. Both parties also asked the trial
court to hold the other party in contempt for violating the parenting plan and engaging in
other objectionable conduct. The trial court found the father guilty of two counts of
contempt and the mother guilty of three counts of contempt, and it ordered them to spend
two days in jail for each count. The court granted the husband’s petition to modify the
parenting plan and changed the designation of the primary residential parent from the
mother to the father. The mother appeals, and we affirm the trial court’s judgment in all
respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and THOMAS R. FRIERSON, II, J., joined.
Edward Evan Cope, Murfreesboro, Tennessee, for the appellant, Lindsey Beth Honea.
David Brock East, Murfreesboro, Tennessee, for the appellee, John William Honea.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
Lindsey Beth Honea (“Mother”) and John William Honea (“Father”) were married
for nearly eight years when, in May 2017, Father filed a complaint for divorce. The parties
have three children who were then two, four, and six years old. Mother answered Father’s
complaint and filed a counter-complaint for divorce. Following a trial in February 2018,
the trial court awarded Mother a divorce, named her the primary residential parent, and
awarded her transitional alimony for a year. Father was awarded 148 days of parenting
time per year.
On July 9, 2018, Father filed a motion seeking to have Mother held in criminal
contempt for interfering with his parenting time by refusing to transfer the children to him
on July 8 as required by the parenting plan. Mother filed a motion for immediate ex parte
relief on the same day, requesting that Father’s sister, brother-in-law, and nephew be
enjoined from being around the parties’ children. According to Mother, Father’s family
members regularly watched the children while he was at work during his parenting time in
the summer, and the parties’ daughters complained that Father’s seven-year-old nephew
acted inappropriately while they were all together by placing objects inside their bottoms.
The trial court issued an ex parte temporary restraining order prohibiting Father from
removing the children from Mother’s custody pending a full hearing on the matter.
Following the hearing on July 19, the trial court ordered Father not to allow the parties’
children to be in the presence of Father’s nephew and enjoined Father from leaving the
children alone with his mother for any reason.
On August 10, 2018, Mother filed a petition to modify the parenting plan to suspend
Father’s visitation based on the allegations supporting the restraining order granted on July
19. She amended her petition on November 27, 2019, to include counts of criminal
contempt based on other conduct by Father. Father filed a counter-petition to modify the
parenting plan by changing the primary residential parent from Mother to Father. He
amended his petition on November 27, 2019, to include conduct for which Father alleged
the court should hold Mother in criminal contempt.
The trial court held a hearing on the parties’ petitions from May 11 through May
14, 2020, and it issued two separate orders on June 19, 2020: one addressing the parties’
requests to hold the other party in criminal contempt and the other addressing the parties’
petitions to modify the permanent parenting plan. In the Memorandum and Order
addressing the parties’ criminal contempt allegations, the trial court concluded that Mother
was guilty of three of the six counts of criminal contempt against her.1 The court wrote:
Count I
[Father’s] first Count of contempt alleges [Mother] withheld the
children from him on July 9 and July 10, 2018, in violation of the Permanent
Parenting Plan. That week was to be [Father]’s week for summer vacation;
however, a Temporary Restraining Order was signed on Wednesday, July 11
which suspended [Father]’s time. As a result, [Father] maintains he missed
1
The court found Father guilty of two counts of criminal contempt and ordered him to serve four days in
the county jail. However, because Father did not appeal the ruling or sentence, we will not address those
counts or sanctions.
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two days of parenting time. Through [Mother]’s testimony she
acknowledges she decided on Sunday, July 8, 2018, based upon the
allegations of the children, she was not going to exchange the children
pursuant to the terms of the Permanent Parenting Plan and advised [Father]
that due to the children’s disclosures the “previous week” ‒ involving
[Father]’s mother and nephew ‒ that she would not allow for his visitation.
Of importance is the fact the allegations of abuse were not against [Father].
[Mother] acknowledges she did not tell [Father] about the allegations
immediately but, rather, scheduled an appointment with the children’s
pediatrician. During [Father]’s parenting time which [Mother] withheld, she
took the children to Indianapolis to see family members and did not return
until July 9 to Tennessee.
The proof is clear beyond a reasonable doubt the Permanent Parenting
Plan is clear and unambiguous, that [Mother] had the ability to comply with
the terms of the Parenting Plan regarding Father’s parenting time and that
she willfully took the children out of state and withheld the children from
[Father]. As a result, she is hereby found in criminal contempt of this Court’s
prior orders as to Count I.
....
Count V
By this Count [Father] alleges [Mother] violated the terms of the
Permanent Parenting Plan by denying [Father] his parenting time at the end
of May, 2019. The parties’ Permanent Parenting Plan, Section I.G. provides
for summer vacation parenting time. Specifically, this Section provides:
The parties shall alternate on a week-to-week basis. The father
shall have the first Sunday after school is released for summer
break at 6:00 p.m. until Sunday at 6 p.m. The parties shall
alternate on a week-to-week basis until the Sunday prior to
school resuming at which time the children will return to the
mother.
The last day of school for the 2018-19 school year was Wednesday,
May 29. As noted above, [Father]’s summer parenting time would have
started the following Sunday at 6:00 p.m. Until that time, as summer
vacation had not begun, the parties were under the day-to-day portion of their
Parenting Plan. Under the day-to-day portion of the Parenting Plan, [Father]
would have been entitled to parenting time on Thursday. Despite the fact the
Permanent Parenting Plan is clear and unambiguous, [Mother]
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inappropriately declared, unilaterally, the summer parenting schedule had
begun and denied [Father] his parenting time on Thursday, May 30. The
parties were before the Court on Friday, May 31 at which time the Court
ordered [Father]’s parenting time reinstated.
The Court finds beyond a reasonable doubt [Mother] had the ability
to comply with the Parenting Plan and willfully failed to do so and, as a
result, is in criminal contempt of Court as to this Count.
Count VI
Similar to Count V, this Count occurs at the end of summer and the
beginning of the following school year. [Father] contends [Mother] began
following the day-to-day schedule prematurely and, as a result, denied him
parenting time. The Court finds the Parenting Plan is clear and unambiguous
and the first day of school was August 6, 2019. Per the Permanent Parenting
Plan, the parties were to alternate the children on a week-to-week basis
during the summer “until the Sunday prior to school resuming at which time
the children shall be returned to the mother.” This date was Sunday, August
4. Accordingly, as of August 4, the parties were under the week-to-week
portion of the Plan. The Parenting Plan grants Father parenting time every
week. The parties, at the trial, were unsure whether [Father]’s parenting time
was from Thursday at 3:00 p.m. until the following Monday or, alternatively,
as provided for in the second paragraph of Section I.B., as amended by the
parties. Regardless of which parenting time [Father] should have received,
he clearly should have received some parenting time and Mother
intentionally and willfully denied him the same when she had the ability to
comply with the Court’s Order. The least amount of time [Father] would
have had would have been a period of one day and the Court finds [Father]
was denied that one day period of parenting time.
Beyond a reasonable doubt [Mother] is guilty of criminal contempt as
to this Count.
The trial court sentenced Mother to ten days in the Rutherford County jail for each of the
three counts of criminal contempt, suspending eight days of each count “conditioned upon
[Mother]’s future compliance with the Court’s order, resulting in the requirement she serve
six (6) days in the Rutherford County Jail.”
In its order on the parties’ petitions to modify the parenting plan, the court noted
that the litigation between Mother and Father had been “consistent and hostile since the
original complaint for divorce was filed on May 24, 2017.” After summarizing the
evidence presented during the trial, the court determined that the parties had established a
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material change in circumstances since the entry of the divorce decree, that the change had
affected the children in a meaningful way, and that the current parenting plan was no longer
in the children’s best interest. The court wrote, in part, the following:
At the time of the divorce [Father], as found by the Court at that time,
had a propensity toward binge drinking and alcohol abuse. As to [Mother],
the divorce court found [Mother]’s willingness and ability to encourage a
relationship between the children and [Father] was “somewhat lacking” and
her actions reflected the “early cultivation of parental alienation.” [2] Since
the entry of the Final Decree of Divorce incorporating the Permanent
Parenting Plan, [Father] continues to evidence problems with alcohol . . . .
The Court finds [Father]’s issues with alcohol have not materially changed
since the entry of the Final Decree. As testified to by [Mother], [Father] has
always consumed alcohol during the course of his marriage and his
consumption would vacillate over time.
Since the entry of the Final Decree [Mother]’s “early cultivation of
parental alienation” and risk of “laying the building blocks of parental
alienation,” as found by the divorce court have significantly escalated. . . .
2
Parental alienation has been described by an expert as follows:
[T]he most straightforward way to understand the harm from parental alienation is against
the backdrop of the normal developmental support that parents provide in a healthy family.
In a healthy parent/child relationship, parents provide by example and by instruction
assistance in children’s emotional development and their development of the capacity to
relate to others in [the] development of a moral sensibility, in the development of capacity
for empathy, to appreciate another person’s state of mind and emotional experience.
Parental alienation at one level or another undermines each of those developmental
pathways so that when a child is alienated and that alienation is supported by the other
parent, the parent who is supporting the alienation, whether this is their intent or not, is
effectively supporting the child in cruel, unempathic behavior towards another human
being, they are supporting the child in attitudes and behaviors towards interpersonal
conflict that emphasize rejection, separation, and polarization, rather than resolution.
Often, in dealing with the professed basis for the alienation, the child is being supported in
oversimplified, polarized, black-and-white thinking, which undermines critical-thinking
skills and so forth so that ultimately parental alienation is a risk to normal personality
development because of those kinds of effects. To the extent that we have research on long-
term outcomes of people who report having experienced parental alienation, there is
certainly a basis for concern that these kinds of adverse effects can persist long-term and
can have adverse effects on adult capacity for intimate relationships and on adult capacity
for emotional self-regulation.
McClain v. McClain, 539 S.W.3d 170, 205 (Tenn. Ct. App. 2017) (citing Varley v. Varley, 934 S.W.2d
659, 667 (Tenn. Ct. App. 1996)).
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Many of the allegations against [Father], suspiciously, immediately precede
Thanksgiving, an anticipated cruise, and the beginning of his extended
summer parenting time. Also, . . . despite the numerous allegations of sexual
abuse and the 15-18 referrals to DCS, not one claim against [Father] or a
single member of his family has been substantiated, yet [Mother] continues
maintaining these claims and encourages the children to speak to people
about them. Additionally, [Mother] has filed numerous petitions seeking to
terminate [Father]’s parenting time with his children. These efforts on her
part have negatively impacted the children. As confirmed by [Father], his
relationship with the children is strained as a result of the constant allegations
and, according to him, he is “walking on eggshells” when he has the children
with him. . . . It is apparent from the divorce court’s ruling it had hoped
[Mother]’s efforts at alienation would subside; however, it is
overwhelmingly clear from the evidence her efforts in this regard have
significantly intensified, to the detriment of the children’s relationship with
their father and to their emotional detriment as well.
After considering the best interest factors set forth in Tenn. Code Ann. § 36-6-106(a), the
trial court concluded that it was in the children’s best interest to modify the parenting plan
by changing the primary residential parent from Mother to Father and giving each party
equal residential time with the children. The court specified in its order that Father was
not to consume alcohol during his parenting time:
The restriction against [Father]’s consumption of alcohol contained in
the most recent Temporary Restraining Order shall remain in place such that
[Father] shall not consume alcohol, in any quantity whatsoever during his
parenting time with the children or for the twelve (12) hours immediately
preceding his parenting time. In an effort to lessen concerns in this regard,
[Father] shall not have alcohol present in his home when exercising his
parenting time with the children.
Mother appeals the trial court’s rulings and contends the trial court erred by (1)
finding her guilty of criminal contempt on Counts I, V, and VI and (2) granting Father’s
petition to modify the permanent parenting plan and changing the primary residential
parent from her to Father.
II. ANALYSIS
A. Contempt Convictions
A person can violate a court order “‘by either refusing to perform an act mandated
by the order or performing an act forbidden by the order.’” In re Samuel P., No. W2016-
01665-COA-R3-JV, 2018 WL 1046784, at *8 (Tenn. Ct. App. Feb. 23, 2018) (quoting
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Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 510-11 (Tenn.
2005)). When a court makes a finding of contempt based on the contemnor’s disobedience
of a court order, “‘the order alleged to have been violated must be clear, specific, and
unambiguous.’” Id. (quoting Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249
S.W.3d 346, 354 (Tenn. 2008)). Courts may punish contempts of court based on a party’s
“willful disobedience” of any lawful order of the court. Tenn. Code Ann. § 29-9-102(3);
Mawn v. Tarquino, No. M2019-00933-COA-R3-CV, 2020 WL 1491368, at *3 (Tenn. Ct.
App. Mar. 27, 2020).
A finding of criminal contempt requires evidence of “‘(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) (quoting Foster v.
Foster, No. M2006-01277-COA-R3-CV, 2007 WL 4530813, at *5 (Tenn. Ct. App. Dec.
20, 2007)). The moving party must also show that (1) “the order allegedly violated was
lawful,” (2) “the order was clear and unambiguous,” (3) the defendant “did, in fact, violate
the order,” and (4) the defendant’s violation was willful. Mawn, 2020 WL 1491368, at *3
(citing Konvalinka, 249 S.W.3d at 354-55; Furlong v. Furlong, 370 S.W.3d 329, 336
(Tenn. Ct. App. 2011)). “In the context of criminal contempt, willfulness has two elements:
(1) intentional conduct; and (2) a culpable state of mind.” Renken v. Renken, No. M2017-
00861-COA-R3-CV, 2019 WL 719179, at *6 (Tenn. Ct. App. Feb. 20, 2019) (citing State
v. Beeler, 387 S.W.3d 511, 523 (Tenn. 2012); Konvalinka, 249 S.W.3d at 357). A person’s
acts are intentional when the person has the “‘conscious objective or desire to engage in
the conduct or cause the result.’” Id. (quoting Tenn. Code Ann. § 39-11-302(a)).
“A person charged with criminal contempt is ‘presumed innocent’” and may not be
found guilty “‘in the absence of proof beyond a reasonable doubt that they have willfully
failed to comply with the court’s order.’” Pruitt, 293 S.W.3d at 545 (quoting Long v.
McAllister-Long, 221 S.W.3d 1, 13 (Tenn. Ct. App. 2006)); see also Mawn, 2020 WL
1491368, at *3. Once a trial court finds a defendant guilty of criminal contempt, the
presumption of innocence the defendant enjoyed at trial is replaced with a presumption of
guilt on appeal. Black v. Blount, 938 S.W.2d 394, 399 (Tenn. 1996). A defendant
appealing a finding of criminal contempt has the burden of “illustrating why the evidence
is insufficient to support the verdict of guilt.” Pruitt, 293 S.W.3d at 545 (citing Black, 938
S.W.2d at 399); see also Mawn, 2020 WL 1491368, at *3.
“After a permanent parenting plan has been incorporated into a final order or decree,
the parties are required to comply with it unless and until it is modified as permitted by
law.” C.W.H. v. L.A.S., 538 S.W.3d 488, 496 (Tenn. 2017); see also Armbrister v.
Armbrister, 414 S.W.3d 685, 697 (Tenn. 2013). All three counts of criminal contempt
against Mother arise from her violation of the parenting plan that was a part of the trial
court’s divorce decree in 2018. Section I.B. of the plan is titled “Day-to-Day Schedule”
and states as follows:
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The Mother shall have responsibility for the care of the children except at the
following times when the other parent shall have responsibility:
From Thursday at school release or 3:00 p.m. if school is not
in session to Monday when he shall return the children to
school or 8:00 a.m. if school is not in session every other
weekend.
On the weeks the Father does not have weekend visitation the
Father shall exercise parenting time on Wednesday[3] from
school release or 3:00 p.m. if school is not in session to
Thursday when he shall return the children to school or 8:00
a.m. if school is not in session.
The Father’s weekend visitation shall begin on Thursday,
March 22, 2018.
Section I.G. of the parenting plan is titled “Summer Vacation,” and it provides that:
The parties shall alternate on a week-to-week basis. The Father shall have
the first Sunday after school is released for summer break at 6:00 p.m. until
Sunday at 6:00 p.m. The parties shall alternate on a week-to-week basis until
the Sunday prior to school resuming at which time the children shall be
returned to the Mother.
Count I
Count I is based on Mother’s failure to transfer the children to Father for the week
of July 8, 2018, when the children were on their summer vacation. Mother does not
challenge the trial court’s finding that she violated the court’s order or that the order was
unambiguous. She contends that she was not “willful” in her violation of the order because
she did not undertake to violate the order “for a bad purpose.” Mother testified as follows:
Q: Now leading up to that week, what’s called the week you had with the
children before July 8th, you and your ex-husband had been doing a week-
on, week-off parenting schedule for that summer. Is that fair?
A: Yes.
3
The evidence showed that the parties agreed that Father would have parenting time on Thursdays rather
than Wednesdays in the weeks when he did not have weekend visitation.
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Q: So it’s fair to assume [Father] was going to have the children on that
Sunday until you told him that wasn’t going to happen; is that right?
A: Yes.
Q: He expected them?
A: Right. That would have been the exchange day, yes.
Q: You said sometime that week before the children had made some
disclosures to you; is that right?
A: Yes.
Q: When they made these disclosures, those disclosures involved my client’s
mother and his nephew; is that right?
A: Yes, I believe so, yes.
Q: And these are the same individuals that had previously been accused of
inappropriate touching of your children; is that right?
....
A: Yes, that’s correct.
....
Q: When they [the children] disclosed this, I take it on either a Monday or
Tuesday - - you said a day or two after you got [them] back. You get them
back on Sunday, right?
A: Right.
Q: So on Monday or Tuesday when they disclosed this to you, do you tell
[Father]?
A: I don’t believe so.
Q: At some point thereafter you schedule an appointment with Dr. Bradley,
the primary care - - or the pediatrician, right?
-9-
A: Yes. After [the youngest child] had used the restroom in her pants twice,
I then thought maybe something was wrong or something had happened, so
yes, I called the pediatrician.
Q: And you set up that appointment for - - was it Wednesday? Is that right?
A: Wednesday or Thursday of that week.
Q: When you called, you set up that appointment for your children then, did
you then go ahead and tell [Father], hey, look, I’m scheduling this
appointment, it’s to discuss these issues, these allegations?
A: I don’t - - I don’t remember specifically when I shared this incident with
him. I can’t recall exactly.
Q: But you do recall exactly not until Sunday telling him that he wasn’t
going to get the time that he was expecting?
A: Right.
....
Q: Again, up to that point [Father] had no knowledge of the fact that this
was going to be talked about, brought up or even been alleged by his children.
Isn’t that right?
A: No, not at this point.
....
Q: And their whole lives, your whole marriage, et cetera, there had never
been an allegation of inappropriate touching at this point against [Father] - -
your ex-husband, true?
A: That is true.
The evidence showed that Mother drove the children up to Indianapolis to see her family
on Friday, July 6, and did not return home with them until Monday, July 9, which was one
day after she was supposed to transfer them to Father. Mother did not inform Father until
Sunday, July 8, that he would not get the children that day. Mother moved for a restraining
order against Father’s family on July 9, 2018, but she did not seek any relief against Father.
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Mother cites Miller v. Miller, No. M2014-00281-COA-R3-CV, 2015 WL 113338(Tenn. Ct. App. Jan. 7, 2015), in support of her argument that the trial court erred in holding
her in criminal contempt for failing to transfer the children to Father on July 8. In Miller
v. Miller, the mother refused to deliver her children to their father due to sexual abuse
allegations against the father. Miller, 2015 WL 113338, at *2. The mother was living in
Wisconsin, and a social worker employed by a local department of human services
investigated the allegations and wrote a letter recommending that the children’s visitation
with the father be suspended until the investigation was completed. Id. The investigation
was ultimately concluded with no actions taken against the father, and the father moved
for the mother to be held in criminal contempt for failing to comply with the parenting
plan. Id. at *3. The trial court found the mother guilty of criminal contempt, and she
appealed. Id. at *4.
On appeal, we considered whether the mother’s violation of the court’s order was
“willful.” Id. at *10. We stated that “‘[i]n the criminal context, a willful act is one
undertaken for a bad purpose.’” Id. (quoting Konvalinka, 249 S.W.3d at 357).
Acknowledging that the mother had failed to comply with the court’s order by transferring
the children to the father for his scheduled parenting time, we determined that she did not
withhold the children for “a bad purpose” and reversed the trial court’s order finding the
mother guilty of criminal contempt. Id. We concluded that the mother “did not intend to
flaunt the orders of the Davidson County court” and that her decision to withhold the
children reflected her concerns about sending the children to spend time with the father
after receiving the recommendation by the local department of human services not to do
so. Id.In contrast to the case at bar, before his parenting time was scheduled to start, the
father in Miller was made aware of the sexual abuse allegations and was provided with the
letter from the social services agency recommending that his visitation be suspended
pending the investigation’s conclusion. Id. at *2. Here, the trial court focused on the
following facts when it held Mother was guilty of criminal contempt for Count I: (1) the
children’s disclosures were against Father’s mother and his seven-year-old nephew, not
against Father; (2) Mother did not inform Father about the children’s allegations until
several days after the allegations were made, after Mother brought the children in to see
their pediatrician; and (3) Mother arranged for the children to be in Indianapolis on the day
they were supposed to go to Father. Despite Mother’s claim that she was trying to protect
the children from inappropriate touching, the court found that Mother’s testimony was “not
credible” insofar as it related to “allegations of wrongdoing by [Father] and his family.”
Mother fails to illustrate how the evidence introduced at trial was insufficient to
support the trial court’s verdict of guilt. See Pruitt, 293 S.W.3d at 545. As a result, she
has not overcome the presumption of guilt on appeal. See Black, 938 S.W.2d at 399. We
affirm the trial court’s conviction of Mother for criminal contempt on Count I.
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Counts V and VI
Counts V and VI are based on Mother’s failure to comply with the parenting plan
after the children’s school ended in May 2019 (Count V) and again before the start of
school in August 2019 (Count VI). The final day of the children’s 2018-19 school year
was on Wednesday, May 29. According to the terms of the plan, the Summer Vacation
schedule did not go into effect until the first Sunday following the children’s release from
school. Section I.G. of the plan provided for the parents to alternate weeks with the
children during the summer and stated: “The Father shall have the first Sunday after school
is released for summer break at 6:00 p.m. until [the following] Sunday at 6:00 p.m.” Until
the first Sunday following the children’s release from school, therefore, the parties were
operating under Section I.B. of the parenting plan, which, on that particular weekend,
meant that Father was to have parenting time from Thursday at 3:00 and continuing through
the weekend. The trial court found Mother was guilty of criminal contempt for refusing to
transfer the children to Father on the Thursday before the Summer Vacation schedule
began, when the parties were required to follow the Day-to-Day schedule of the parenting
plan.
Count VI is based on Mother’s refusal to transfer the children to Father in August
2019, once school had started again. Under the terms of the parenting plan, the Summer
Vacation schedule was operative until the Sunday before school started. The children’s
school began during the week of August 5, 2019, which meant that the Day-to-Day
schedule was in effect that week. Mother refused to transfer the children to Father on
Thursday, August 8, as she was required to do. The evidence did not reveal whether Father
was entitled to just an overnight or a full weekend with the children that week, but, as the
trial court wrote, “[r]egardless of which parenting time [Father] should have received, he
clearly should have received some parenting time” that week.
Mother asserts that the parenting plan was ambiguous with regard to when the
Summer Vacation schedule was to begin in May 2019 (Count V) and when the Summer
Vacation schedule was to end in August 2019 (Count VI). Mother correctly states that the
order she is charged with violating “must be clear, specific, and unambiguous.” In re
Samuel P., 2018 WL 1046784, at *8.
“A person may not be held in [ ] contempt for violating an order unless
the order expressly and precisely spells out the details of compliance in a way
that will enable reasonable persons to know exactly what actions are required
or forbidden. The order must, therefore, be clear, specific, and unambiguous.
Vague or ambiguous orders that are susceptible to more than one
reasonable interpretation cannot support a finding of [ ] contempt. Orders
need not be full of superfluous terms and specifications adequate to counter
any flight of fancy a contemnor may imagine in order to declare it vague.
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They must, however, leave no reasonable basis for doubt regarding their
meaning.
Orders alleged to have been violated should be construed using an
objective standard that takes into account both the language of the order and
the circumstances surrounding the issuance of the order, including the
audience to whom the order is addressed. Ambiguities in an order alleged to
have been violated should be interpreted in favor of the person facing the
contempt charge. Determining whether an order is sufficiently free from
ambiguity to be enforced in a contempt proceeding is a legal inquiry that is
subject to de novo review.”
Id. (quoting Konvalinka, 249 S.W.3d at 355-56 (citations and footnotes omitted)).
Applying these principles to the facts before us and considering the circumstances of the
parties, we conclude that the language of the parenting plan is unambiguous.
Contrary to Mother’s argument, the language in Sections I.B. and I.G. is not
susceptible to more than one interpretation and is not ambiguous. The parenting plan
clearly provides that the Day-to-Day schedule remains in effect until the first Sunday
following the end of the school year, at which time the Summer Vacation schedule will
begin, and that the Summer Vacation schedule ends the Sunday before school starts again
for the following school year, at which time the Day-to-Day schedule will go back into
effect. Cf. Adkisson v. Adkisson, No. E2012-00174-COA-R3-CV, 2013 WL 936369, at
*5-6 (Tenn. Ct. App. Mar. 11, 2013) (finding terms of parenting plan ambiguous where
parents were to alternate spring break vacations but plan did not specify whether “spring
break” was to include) surrounding weekends). The trial court put the parenting plan into
place in March 2018, more than a year before the events leading up to the trial court’s
finding Mother in violation of its terms. Mother points to no evidence showing that they
were unable to follow the same schedule at the end of the 2017-18 school year or the
beginning of the 2018-19 school year. Mother fails to demonstrate that the evidence was
insufficient to support the trial court’s guilty verdicts on Counts V or VI. Accordingly, we
affirm the trial court’s judgment finding Mother guilty of criminal contempt on Counts V
and VI.
B. Modification of Parenting Plan
1. Standard of Review and Legal Principles
Our review of a trial court’s findings of fact is de novo on the record, and we apply
a presumption of correctness to the findings unless the preponderance of the evidence is
otherwise. TENN. R. APP. P. 13(d); C.W.H., 538 S.W.3d at 495 (citing Armbrister, 414
S.W.3d at 692-93). With regard to the modification of a parenting plan, our Supreme Court
has written:
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“A trial court’s determinations of whether a material change in circumstances
has occurred and whether modification of a parenting plan serves a child’s
best interests are factual questions. Thus, appellate courts must presume that
a trial court’s factual findings on these matters are correct and not overturn
them, unless the evidence preponderates against the trial court’s findings.”
C.W.H., 538 S.W.3d at 495 (quoting Armbrister, 414 S.W.3d at 692-93). Trial courts have
“broad discretion in formulating parenting plans” because of their ability to observe the
witnesses and assess their credibility. Id. (citing Armbrister, 414 S.W.3d at 693); see also
Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996) (“Custody and visitation
determinations often hinge on subtle factors, including the parents’ demeanor and
credibility”); Williamson v. Lamm, No. M2015-02006-COA-R3-CV, 2016 WL 5723953,
at *3 (Tenn. Ct. App. Sept. 30, 2016) (explaining that appellate courts hesitate to second-
guess a trial court’s rulings on custody and residential schedules because rulings often turn
on the parents’ demeanor and credibility at trial). As a result, we employ a “limited scope
of review” of a trial court’s factual findings in cases involving the primary residential
parent designation and residential parenting schedules. C.W.H., 538 S.W.3d at 495 (citing
Armbrister, 414 S.W.3d at 692-93).
Appellate courts review a trial court’s parenting plan for an abuse of discretion and
“should not overturn a trial court’s decision merely because reasonable minds could reach
a different conclusion.” Id. (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).
“An abuse of discretion occurs when the trial court causes an injustice by applying 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); see also C.W.H., 538 S.W.3d at 495. “This
standard does not permit an appellate court to substitute its judgment for that of the trial
court, but ‘reflects an awareness that the decision being reviewed involved a choice among
several acceptable alternatives,’ and thus ‘envisions a less rigorous review of the lower
court’s decision and a decreased likelihood that the decision will be reversed on
appeal.’” Gonsewski, 350 S.W.3d at 105 (quoting Henderson v. SAIA, Inc., 318 S.W.3d
328, 335 (Tenn. 2010)). “‘Appellate courts should reverse custody decisions ‘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.’” C.W.H., 538 S.W.3d
at 495 (quoting Kelly v. Kelly, 445 S.W.3d 685, 696 (Tenn. 2014)). We review a trial
court’s conclusions of law de novo, with no presumption of correctness. Armbrister, 414
S.W.3d at 692.
When a petitioner seeks to change the primary residential parent, he or she must
initially prove by a preponderance of the evidence that there has been a “material change
of circumstance.” Tenn. Code Ann. § 36-6-101(a)(2)(B); C.W.H., 538 S.W.3d at 496. In
this context, “[a] material change of circumstance may include, but is not limited to,
failures to adhere to the parenting plan or an order of custody and visitation or
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circumstances that make the parenting plan no longer in the best interest of the child.”
Tenn. Code Ann. § 36-6-101(a)(2)(B). There is no bright-line test for determining when a
change of circumstances is material enough to support a change in the primary residential
parent. McClain v. McClain, 539 S.W.3d 170, 188 (Tenn. Ct. App. 2017). Some general
guiding principles are that “the changed circumstances must have arisen after the entry of
the order sought to be modified,” and they “must not have been reasonably anticipated
when the underlying decree was entered.” Id. (quoting Oliver v. Oliver, No. M2002-
02880-COA-R3-CV, 2004 WL 892536, at *3 (Tenn. Ct. App. Apr. 26, 2004)). If the
petitioner makes these showings, the trial court then conducts a best interest analysis by
applying the factors set out in Tenn. Code Ann. 36-6-106(a) to the facts of the case.
C.W.H., 538 S.W.3d at 496 (citing Armbrister, 414 S.W.3d at 697-98). Whether a material
change of circumstance has occurred is a question of fact. In re T.C.D., 261 S.W.3d 734,
742 (Tenn. Ct. App. 2007).
If a party seeks a modification of the parenting schedule only, the party must prove
by a preponderance of the evidence that there has been “a material change of circumstance
affecting the child’s best interest.” Tenn. Code Ann. § 36-6-101(a)(2)(C). The Supreme
Court has interpreted this section as “set[ting] ‘a very low threshold for establishing a
material change of circumstances’ when a party seeks to modify a residential parenting
schedule.” Armbrister, 414 S.W.3d at 703 (quoting Boyer v. Heimermann, 238 S.W.3d
249, 257 (Tenn. Ct. App. 2007)). The party requesting a change to the parenting schedule
is not required to show that the material change in circumstance could not have been
anticipated when the initial residential parenting schedule was made. Id. “To modify the
residential parenting schedule, a showing that the current schedule is not workable for the
parties can be enough to satisfy the material change of circumstances standard.” Drucker
v. Daley, No. M2019-01264-COA-R3-JV, 2020 WL 6946621, at *6 (Tenn. Ct. App. Nov.
25, 2020) (citing Burnett v. Burnett, No. M2014-00833-COA-R3-CV, 2015 WL 5157489,
at *6 (Tenn. Ct. App. Aug. 31, 2015)). If a party requesting a change in the parenting
schedule proves a material change of circumstances, the trial court will then conduct a best
interest analysis to determine if a change to the schedule is warranted. Broadrick v.
Broadrick, No. M2013-02628-COA-R3-CV, 2015 WL 1947186, at *4 (Tenn. Ct. App.
Apr. 29, 2015).
2. Trial Court’s Decision
In ruling that Father established a material change in circumstances and that
changing the primary residential parent from Mother to Father was in the children’s best
interests, the trial court reviewed the evidence presented at trial and conducted a best
interest analysis by considering the factors set forth in Tenn. Code Ann. § 36-6-106(a).
Mother contends that the trial court abused its discretion by reaching an illogical or
unreasonable decision in light of the evidence or based its decision on a clearly erroneous
assessment of the evidence. She argues that the trial court failed to properly consider the
testimony of the expert it appointed to conduct Rule 35 examinations of the parties, the
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testimony of the counselor it appointed to provide counseling to the children, or the
evidence of Father’s alcohol abuse. Mother wanted Father’s visitation with the children to
be suspended or supervised “until he gets the help that he needs to be healthy, in remission,
able to be the best dad that he can be for these children.” Mother also contends the court
improperly found she had engaged in parental alienation.
In addition to the parties, the following witnesses testified at the four-day trial:
detectives from the Rutherford County Sheriff’s office, a captain from the Humphreys
County Sheriff’s Department, an employee of the Child Advocacy Center, a court-
appointed counselor for the children, some of the children’s teachers and school
counselors, a babysitter, and Father’s parents. Mother also introduced into evidence the
deposition and report of the psychiatrist the court appointed to perform a Rule 35
examination upon both Mother and Father, the deposition of the children’s pediatrician,
and a transcript of the testimony from an earlier proceeding of Father’s former girlfriend.
Mother testified that she filed a dependency and neglect petition against Father in
the fall of 2018 based on information Father’s former girlfriend, Dawn Hively, conveyed
to her about Father’s excessive drinking around the children and inappropriate interactions
with them. Mother testified that the dependency and neglect petition was ultimately
dismissed due to insufficient evidence.
Mother acknowledged that the children’s allegations against Father’s mother and
nephew were investigated by the Department of Children’s Services (“DCS”) and the
Humphreys County Sheriff’s Department and that the investigations were eventually
closed due to insufficient evidence of any wrongdoing. The children’s allegations led
Mother to make two referrals to DCS: once in December 2018 or January 2019, and once
in the spring of 2019. The first referral related to allegations of inappropriate touching of
the eldest child by Father’s mother during the Christmas holidays, and the second referral
was based on the eldest child’s report to Mother that Father had touched her inappropriately
while the two were sleeping in the same bed. Mother testified that the children made
additional allegations against Father but that she did not make any more referrals to DCS
or any other entity because the children were seeing a counselor and Mother was leaving
it up to the counselor to determine whether another referral was warranted. At one point
in the winter or spring of 2019, two of the parties’ children told Mother they had lied about
the inappropriate touching. Mother testified:
Q: Have your children - - any of them, have they ever recanted one of their
allegations?
A: Yes. Let me rephrase that. The girls came back from [Father]’s house
several weeks ago, and immediately got in the car and said, “Mommy, we
lied about everything.”
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Q: And what did you say?
A: Well, first I said - - pulled the car over. I said, “What do you mean, you
lied about everything? What does that mean?”
[One of the girls] said, “Daddy never touched us, his mom never
touched us, [our cousin] never touched us.”
I got upset. I started crying because it was devastating after
everything we had gone through, everything - - everything. I didn’t know
how to take it. My son, on the other hand, was over there, started crying. He
said, “No, Mommy, no, Mommy. Daddy told them to say that. Daddy told
them to say that.”
So then I did not get upset at the girls. I said, “Did Daddy tell you to
say that to me?,” and [the eldest child] said, “Yes, Daddy and Grandma told
us they would take us on a vacation if we told you that everything - - we
made everything up.”
Q: What did you do with that information?
A: Well, the girls then came back. They told me that it wasn’t true. They
said they had lied about lying. It was confusing.
Mother acknowledged that the children love Father and that it was not her goal for
the children to have no residential time with him. She testified that she wanted them “to
have the dad they deserve.” Mother’s attorney asked her the following question:
If [Father] follows the recommendation of Dr. Montgomery and Jamie
Langley, under the supervision of this court, are you comfortable with
whatever Dr. Montgomery, Dr. Langley, and this court come up with, with
respect to [Father]’s residential time with these children?
Mother responded, “Yes. All I want is for the kids to be safe. That’s it.”
Father testified that he was an engineer and that he had not been disciplined for any
work performance issues. As of the time of trial, he lived in the house the parties shared
when they were married, and he stated that he had no plans to move. When the children
were at Father’s house, his daughters shared a bedroom and his son had his own bedroom.
Father stated that he had been investigated by DCS officers from Rutherford County,
Dickson County, and Humphreys County based on allegations of inappropriate touching
or sexual abuse by him or his family members, and that all of the investigations had been
closed due to insufficient evidence of wrongdoing. Father denied ever touching any of the
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children inappropriately. He testified that at one point after an allegation of abuse had been
made against him and it was being investigated, the eldest child recanted her accusation.
According to Father, the child told him, “Daddy, it’s not true. I know I lied. I don’t know
why I lied.”4
Father said that he and the children have a lot of fun when they are all together and
that they do “normal daddy-kid stuff.” He said that things seemed to change when they
left and returned to Mother. When asked how all of the DCS investigations affected the
way he parents the children, Father responded that he “walk[s] on eggshells” around them.
When Father was asked about his consumption of alcohol, he responded:
I’ve never been drunk with the kids. . . . [P]ost-divorce I don’t drink around
the kids. I know I’m the only one to take care of them.
Father testified that he had never been disciplined at work for alcohol-related issues and
had never been pulled over on the road for driving drunk. Father denied that he had a
drinking problem or needed to stop consuming alcohol. Father’s mother and father also
testified that they did not believe Father abused alcohol.
Father testified that he wanted to be named the primary residential parent so that the
children would be zoned for the school near his house and not be changing schools
whenever Mother moved.5 Father stated his opinion that it would be in the children’s best
interest if he and Mother shared time with the children equally.
Charlie Borel was a counselor at the children’s school, and she testified that the
middle child reported that Father “was aggressive, rough, yelled a lot, drank a lot, and
touched them inappropriately.” Ms. Borel then spoke with the eldest child, who confirmed
the things the middle child reported and said those things usually happened “after there’s
been too much alcohol.” When Ms. Borel showed the elder child a doll and asked her to
indicate where she and her siblings were being touched, the child pointed to the lower back
below the waist. According to Ms. Borel, Mother encouraged the children to talk with
people whom they thought could help them, but Ms. Borel had no reason to believe Mother
coached the children to make specific reports about Father.
Jennifer Myers was a teacher at the children’s school, and she testified that she made
a referral to DCS after the eldest child told her about concerns surrounding Father’s
drinking. The child told Ms. Myers that Father was drinking alcohol while he was driving
4
Father also testified that the eldest child told him that one of Mother’s nephews had touched her
inappropriately. According to Father, Mother was aware of this accusation but did not share this
information with Father and only acknowledged it when Father asked her about it.
5
The evidence reflected that Mother had moved a few times after the parties’ divorce and that her moves
had the effect of changing the schools the children attended.
- 18 -
the children around on Halloween in 2019. Ms. Myers testified that the same child told
her that Father had “grazed her butt” as he was walking behind her and that this contact
made the child uncomfortable. Ms. Myers did not report this incident to DCS because she
did not believe a referral was warranted.
Sarah Parker was a teacher, and she testified that when she was the eldest child’s
second-grade teacher in the fall of 2018, the child sought her out to talk about Father’s
drinking. Ms. Parker testified that the child complained about the amount Father drank,
that Father did not feed her and her siblings while they were with him, and that Father
“would look at images of women without clothes on around her when she was there.” As
a result of the child’s reports to her during the school year, Ms. Parker made two different
referrals to DCS.
Tara Davis was the director of children’s services at the Child Advocacy Center in
Rutherford County, and she testified that she provided in-home services to the parties’
children after receiving a referral from DCS. Ms. Davis explained that she offered in-home
counseling services to families affected by alcohol and/or substance abuse. She met with
the children five or six times in 2019 and testified that the eldest and youngest children told
her that Father had “touched them on their bottom” while they were on a cruise. Ms. Davis
made a referral to DCS for further investigation.
Patty Oeser was a family crimes detective from the Rutherford County Sheriff’s
Department, and she testified that her department received a referral from DCS in 2019
based on allegations of abuse against the children during a cruise. Ms. Oeser watched an
interview of the children by the Child Advocacy Center and then conducted an interview
of Father. Ms. Oeser stated that Father was “very upset about the allegations and he
actually suggested taking a polygraph.” Ultimately, no charges were brought against
Father and the case was closed.
Will Pinson was a criminal investigations detective at the Rutherford County
Sheriff’s Office, and he testified that he became aware of allegations of abuse by Father
against the children in October 2019. A resource officer at the children’s school made a
referral to Mr. Pinson’s supervisor, and Mr. Pinson drove out to the school. After learning
that DCS was being notified of the allegations, Mr. Pinson contacted Father and asked him
to come in for an interview. Sarah Deharde, who was a case manager from DCS, conducted
the interview, and after listening to it, Mr. Pinson determined there was insufficient
evidence to pursue criminal charges against Father. Before Mr. Pinson closed the case,
however, Ms. Deharde informed him that another allegation of inappropriate touching had
been made against Father. A Child Advocacy Center employee conducted a forensic
interview with the children, which Mr. Pinson reviewed.
- 19 -
Mr. Pinson noted inconsistencies among the children’s statements and stated:
Paired with my knowledge that he had denied the allegations, the lack of any
physical evidence of a crime, Sarah [Deharde] and I basically discussed, and
I told her that I didn’t have enough evidence to proceed with any kind of
criminal charges in this case. There was some suspicion on our part that the
children may have been coached by somebody to make accusations against
their father.
When asked why he believed the children may have been coached, Mr. Pinson responded:
Well, the timing of the complaints. The Honeas were involved in child
custody proceedings. Mr. Honea had been accused multiple times by the
children. He had cooperated with investigations up to this point.
Investigations had failed to find any evidence that he had actually - - other
than the statements of the children, that he had actually sexually abused them.
The timing of the new complaint was suspicious to me, because as soon as
we told the family that we wouldn’t be proceeding with the initial
investigation I was involved in, almost immediately after a new allegation
popped up.
That was suspicious to me, yet the allegations seemed to escalate in severity
over the course of a couple of years, and there had been no prior allegations
of abuse against Mr. Honea to my knowledge prior to 2017.
Mr. Pinson stated that his department closed the case against Father around Christmas
2019. Then, in April 2020, a month before the trial, Mr. Pinson testified that another
referral had been made to DCS that he and Ms. Deharde (from DCS) were investigating.
Mr. Pinson stated:
The children made some concerning comments to their mother after a recent
visit to their father’s. We interviewed the father. He’s denied doing anything
inappropriate. Sarah Deharde has made some recommendations to the father
which, as far as I can tell, he’s kept. I’ve asked the father to take part in a
computer voice stress analysis exam. It’s another - - what people would refer
to as a lie detector test. He has agreed. We haven’t conducted it yet. That’s
where we’re at.
Mr. Pinson stated that he and Ms. Deharde stopped by Father’s house the week before the
trial “as soon as [Father] got the kids” to check on the children’s welfare and the condition
of the house. At that point, Mr. Pinson said, everything looked fine. When asked what
recommendations Ms. Deharde had made to Father, Mr. Pinson responded that they
- 20 -
included being sure the children had their own bedrooms and setting up cameras in
common areas of the house and in the father’s bedroom.
Captain Clay Anderson was employed with the Humphreys County Sheriff’s Office
and was the commander of the criminal investigation division. He testified that two
different referrals came into his office from DCS regarding reports of sexual abuse of the
Honea children by Father’s nephew and Father’s mother. Captain Anderson stated that a
forensic interview of the children was conducted, the suspects were interviewed, and that
in both cases the allegations were unsubstantiated. Captain Anderson testified that the
investigation had not been closed yet because of “lingering questions about [Mother] and
her failure to cooperate during the investigation.”
A college student whom Father hired to watch the children while he was at work in
the summers also testified. She stated that she had never seen Father act inappropriately
with the children and that she had seen nothing she would describe as “inappropriate” in
Father’s house. The babysitter said that the children seemed to love and care for Father
and seemed happy “being in the neighborhood, being under his roof.” The babysitter
testified that she had never observed Father drinking or intoxicated and that she had not
seen any alcohol in the house.
The trial court appointed Stephen A. Montgomery, M.D., to conduct psychiatric
parenting evaluations of both Mother and Father. Dr. Montgomery was deposed prior to
trial, and his deposition testimony and written evaluation were entered as evidence. Dr.
Montgomery concluded that Father suffered from an “alcoholic use disorder,” which he
stated was another way of saying Father was an alcoholic. Dr. Montgomery wrote that
drinking alcohol “could interfere with one’s capacity to safely parent young children” and
that Father “should maintain sobriety when parenting his children with and without
supervision.” Dr. Montgomery recommended that Father “should abstain from any further
use of alcohol” and “should be monitored in some way for continued abstinence.” He also
stated that Father “should not parent his children until he can demonstrate sustained
abstinence from alcohol.” With regard to Mother, Dr. Montgomery noted Mother’s history
with depression and diagnosed her as suffering from a major depressive disorder that was
in partial remission as well as a generalized anxiety disorder with panic attacks. He
concluded that Mother’s depression did not significantly interfere with her ability “to safely
and independently parent her children.”
The trial court also appointed Jamie Langley, a licensed clinical social worker, to
provide counseling to the children. In her trial testimony, Ms. Langley said that she met
with the children twenty-four times for close to a year. Mother’s attorney asked Ms.
Langley whether the children ever disclosed anything to her that she would categorize as
“child abuse.” Ms. Langley responded that “all three of them have been very consistent in
terms of concerns about Dad’s drinking.” Ms. Langley continued:
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They talk about that quite often. Sometimes I’ll ask for descriptions, like
how do you know Dad’s drinking. Sometimes they’ll describe behavior.
They describe times he’s fallen down and being helped, being picked up by
the grandparents. The grandparents have to take him to the bathroom.
....
What I noticed is even though the details were a little bit different, each child
would say similar things about being concerned about Dad’s drinking, about
him being mean, calling them names, and then sometimes the falling-down
behaviors.
Ms. Langley also testified about the children’s reports of inappropriate touching by Father.
She said that the older two children reported touching “on the bottom of their butt” during
a cruise the children took with Father and his mother in the summer of 2019. The youngest
child reported that Father had “scratched her butt” in February 2020 and then made another
disclosure in April 2020. Ms. Langley testified that she believed the children’s reports to
her. Ms. Langley did not think the children were being coached to say the things they did
about Father.
The children’s pediatrician, Melita Bradley, testified by deposition. Dr. Bradley
testified about an incident in November 2018 when the middle child told her that Father
had gotten angry with him in the car and had “slapped him in the right side of his face and
grabbed his ear and pulled it down.” Dr. Bradley testified that she did not see any visible
marks on the child’s face when she examined him, but she made a referral to DCS based
on the child’s report. Both Mother and Father were in the office with the child during this
appointment, and Dr. Bradley stated that Father became very upset when she said DCS
would be there shortly to investigate the case. Dr. Bradley stated that Mother usually
brought the children in for appointments and that she had seen Father at the children’s
appointments just a handful of times. Dr. Bradley testified that she thought Mother was “a
very loving, kind mother to the children.” Based on her interaction with the children, Dr.
Bradley had no reason to believe Mother was coaching the children to report abuse
allegations.
Dawn Hively, who was Father’s girlfriend from August to about October 2018,
testified at a proceeding in December 2018, and the transcript of her testimony was offered
as an exhibit at trial. Ms. Hively testified that Father often consumed alcohol when she
was at his house, regardless of whether the children were there or not. Ms. Hively stated
that she observed Father’s adding vodka to Gatorade on more than one occasion and letting
the eldest child, who was seven at the time, drink some of it. Ms. Hively recounted a car
trip, when she was driving, during which Father consumed an entire fifth of alcohol on the
way to a wedding reception. The children were in the car and Father’s middle child, who
was then five years old, said, “Daddy, why are you talking weird? Daddy, why are you
- 22 -
acting weird?” Ms. Hively testified that Father usually tried to hide his consumption of
alcohol around the children because “if [Mother] found out about it, that he would wind up
in court.” Ms. Hively stated the following about Father’s drinking:
Well, when I was there he would drink a lot, all the time, up to the point
where no matter where we went, I would have to drive. For example, we had
to drop the blankets off at [Mother]’s house. Well, he was so intoxicated, I
had to drive to make sure the kids had their things at night. When I was with
him, he would drink an incredible amount of alcohol all the time where he
would pass out completely, be blacked out. He would be stumbling all over
the place. Every time I was with him he was drinking. There was not a day
he was not drinking, drinking in the middle of the day because he wasn’t
working, just always drinking. Every time I was there, he was drinking.
Ms. Hively also testified that Father told her that he lied in court so that he would get more
time with the children. Ms. Hively stated that she was concerned for the children’s welfare,
but she also testified that she left Father and the children at a state park with no ride home
one day when she became upset with the way Father was treating her.
Material Change of Circumstances
The trial court addressed each person’s testimony introduced at trial and made some
credibility determinations. As to Mother, the court wrote, “Specifically, as it relates to
allegations of wrongdoing by [Father] and his family, [Mother] is not credible.” The court
further wrote:
Although [Mother] did not make the majority of these referrals [to DCS], the
Court finds [Mother] has encouraged the children to make incriminating
statements about [Father] and his family to teachers, the counselor and others
in her unrelenting effort to alienate the children from [Father]. [Mother]
denies alienating conduct; however, the Court had the opportunity to observe
her testify, observe her demeanor while doing so and these observations were
extremely helpful in assisting the Court in determining credibility, not only
with [Mother] but with all witnesses. . . . The only exception to this lack of
finding of credibility on [Mother]’s part relates to [Father]’s alcohol
consumption both during and after the marriage. . . . [T]he evidence is clear
that [Father] has a problem with alcohol and that problem has impacted his
relationship with his children. Specifically, the Court finds both parents are
at fault for this. [Father] is clearly at fault for his excessive consumption of
alcohol and [Mother] also bears fault by, in the Court’s opinion, magnifying
this issue with the parties’ minor children, to their detriment.
....
- 23 -
Though clear [Father] has a problem with alcohol, this problem, from the
viewpoint of the children, appears to have elevated only after Dr.
Montgomery’s report. The Court finds [Mother] has alerted the children to
this issue and caused their concern over [Father]’s drinking to be elevated, in
furtherance of her quest to eliminate [Father]’s involvement with his
children.
The court found Detectives Pinson and Oeser credible and also found Captain
Anderson credible. The court did not find Ms. Hively credible, writing: “A review of all
the text messages reveals Ms. Hively misrepresented the truth frequently and the Court
does not find Ms. Hively the least bit credible. She is in essence a disgruntled former
girlfriend out to seek revenge on [Father].”
The trial court addressed Father’s credibility as follows:
As with all the other witnesses, the Court had the opportunity to observe
[Father]’s demeanor while testifying and that ability was substantially
helpful in assisting the Court in determining credibility. The Court
specifically finds [Father] was honest with the Court in his testimony but not
honest with himself. [Father]’s denial of his alcohol problem indicates either
he refuses to see the same or, alternatively, is misrepresenting that problem
in court. The Court concludes [Father]’s denial is not an intentional
misrepresentation but, rather, an unjustified refusal to acknowledge an
obvious problem. This refusal is a common problem among individuals with
substance abuse problems.
With regard to Father’s alcohol use, the court wrote, in part:
[Father] has stated the relationship between the parties has
progressively worsened over the last two (2) years with the allegations of
sexual misconduct and alcohol abuse. This is understandable. As it relates
to alcohol abuse, the Court specifically finds there has been no injury to the
children as a result of [Father]’s alcohol use, he has suffered no work
discipline, he has had no DUI’s and he has not participated in any alcohol
program, although perhaps he should. This does not mean [Father] does not
have a problem.
The court made a finding as to Dr. Bradley’s testimony and determined that Mother
had influenced her to view Father in a negative light. The only testimony by Dr. Bradley
the court considered was the lack of injury to the child who complained Father had hit him
in the eye.
- 24 -
The trial court also addressed the deposition testimony and reports by the experts
the court appointed to interview the parties and the children. As to Ms. Langley, the court
wrote:
Jamie Langley, licensed clinical social worker and the children’s
counselor, testified regarding her interactions with the children. She has
reported concerns to DCS regarding [Father]’s consumption of alcohol and
concerns regarding the children’s well-being if [Father] is consuming alcohol
during his parenting time. She acknowledged she did not investigate the
truthfulness of the children’s allegations but, rather, was helping the children
dealing with the issues, whether real or perceived. Ms. Langley stated, and
the Court fully accredits this statement; the children want their father to quit
drinking. Ms. Langley further noted [Mother] had discussed the custody
situation and investigation with the children and that this was inappropriate
on [Mother]’s part.
As to Dr. Montgomery, the court stated, in part:
As to [Father], Dr. Montgomery determined [Father] suffers from an Alcohol
Use Disorder and the Court concurs with this conclusion. As to [Mother],
Dr. Montgomery diagnosed her with a Major Depressive Disorder which
began postpartum and has been recurrent as well as a feeling she may suffer
from Generalized Anxiety Disorder, Inattentive Type.
Dr. Montgomery opined both [Mother] and [Father] should abstain
from alcohol consumption.
The trial court concluded that Father established that a material change of
circumstances had occurred since the entry of the most recent parenting plan, and that the
material change in circumstances consisted of Mother’s significant escalation of the
parental alienation that had begun by the time of the parties’ divorce trial. Mother argues
that the trial court erred in failing to find that Father’s “alcoholism” was a material change
in circumstance sufficient to modify the parenting plan to restrict or eliminate Father’s
residential time with the children. The parties introduced conflicting evidence, and we
must rely on the trial court’s findings of credibility because, unlike the trial court, we are
not in a position to observe the witnesses or assess their demeaner. See C.W.H., 538
S.W.3d at 495; Armbrister, 414 S.W.3d at 692-93. We conclude that Mother has failed to
show that the evidence preponderates against the trial court’s conclusion that Father proved
a material change in circumstances pursuant to Tenn. Code Ann. § 36-6-101(a)(2)(B). See
C.W.H., 538 S.W.3d at 495. We agree with the trial court’s determination that Mother
failed to show that Father’s drinking has changed since the parties were married.
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Best Interest Analysis
After concluding that Father established a material change of circumstances
sufficient to change the primary residential parent designation pursuant to Tenn. Code Ann.
§ 36-6-101(a)(2)(B), the trial court conducted a best interest analysis in accordance with
Tenn. Code Ann. § 36-6-106(a). A court is required to consider the following factors in
conducting this type of analysis:
(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) 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
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necessary for the conduct of the proceedings, order the disclosure of
confidential mental health information of a party under § 33-3-105(3). . . .;
(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.
The trial court placed considerable weight on factor two and found as follows:
[T]his factor overwhelmingly favors [Father]. . . . [Mother] has denied
[Father] parenting time in willful violation of the Court’s Order, has
interfered with his ability to obtain childcare during his parenting time and
has expended substantial effort in attempting to alienate the children from
the father. [Mother] has demonstrated neither a willingness nor an ability to
“facilitate and encourage a close and continuing parent-child relationship”
between the children and their father. Further, . . . [Mother] has not
evidenced a likelihood to honor and facilitate court ordered parenting
arrangements and her history clearly reflects this. [Mother] has been on a
quest, apparently prior to the divorce and subsequent to the divorce, to
eliminate [Father] from the lives of his children. She has been successful in
having third parties, either wittingly or unwittingly, assist her in this regard.
For example, there was no reason for Dr. Bradley to call the Department of
Children’s Services for the “black eye” incident. The same appears true with
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most of the teachers. The court finds [Mother] has discussed these issues at
length with the teachers and the children’s pediatrician and influenced their
perceptions of comments made by the children. Further, [Mother]
continuously comes to court seeking to eliminate [Father]’s parenting time.
When a particular allegation fails to accomplish this purpose a different
allegation, unsupported by the evidence, is brought forth. When that one
fails, there is another and another. It appears [Mother] will not rest until the
children cannot ever see [Father].
The court found that the majority of factors favored neither party or else were not
applicable. The court found that factor one favored Mother because Mother had performed
the majority of the parenting responsibilities. The court also found that factor five slightly
favored Mother because she had more parenting days than Father. The court found factors
seven and ten favored Father:
Factor 7
This factor favors the father. The children emotionally need both
parents. [Mother] has attempted to, and with some success, interfered with
the emotional needs of the children and having a close relationship with their
father. There is no evidence [Father] has reciprocated. In fact, he opposed
the suggestion by his attorney that [Mother]’s parenting time be less than his.
Factor 10
This factor slightly favors the father. As evidenced by the proof, since
the divorce, the mother has lived in three (3) different locations, although
two (2) of them were with her parents, separated by a short stint in
independent housing. Additionally, the children have attended three (3)
different schools, although one of the changes of school was consented to by
the father. [Father] has remained stable in his residence.
The court found factor eight favored neither parent and that factor eleven favored Father:
Factor 8
As noted above, [Father] clearly has a substance abuse problem and
the problem has impacted the children emotionally. The Court finds this is
due in part to [Father]’s continued abuse of alcohol and to [Mother]’s
magnification of that issue to the children.
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Factor 11
The court specifically finds neither party has been physically abusive
to the children. Despite the numerous allegations against [Father] and his
family, and the 15-18 referrals to DCS, none of these allegations have been
substantiated. . . . As noted herein, [Mother]’s alienation is emotionally
abusive to the children and has subjected them to numerous interviews with
law enforcement and DCS. Accordingly, this factor favors [Father].
After addressing each of the best interest factors, the court stated the following, in
part:
In the present case, the Court attaches significantly greater weight to
factors involving [Mother]’s failure to facilitate and encourage a close
relationship between the children and their father and finds this factor
overwhelming. Thus, considering this and the totality of the circumstances,
the Court finds it is in the best interest of the children to modify the existing
Parenting Plan.
....
As reflected in the Parenting Plan attached hereto and incorporated
herein by reference, [Father] is hereby designated the primary residential
parent. It is abundantly clear these parties are completely unable to
communicate effectively and, thus, unable to co-parent effectively.
Accordingly, sole decision-making regarding education decisions is hereby
awarded to [Father]. This is based, in part, on [Mother]’s lack of stability in
school zoning and [Mother]’s poisoning of school personnel against [Father].
Undoubtedly, [Mother] will not reside with her parents forever and, upon her
relocation from her parents’ home, this could cause yet another change in
schools. [Father] has lived in his home for a period of years and currently
has no plans to move. Accordingly, this will provide greater stability for the
children.
Mother contends the trial court abused its discretion in changing the primary
residential parent to Father and increasing his residential parenting time. Mother faults the
trial court for not following Dr. Montgomery’s recommendation that Father “should not
parent his children until he can demonstrate sustained abstinence from alcohol.” We
disagree with Mother’s assertion that the trial court ignored Dr. Montgomery’s
recommendations because the trial court’s order restricts Father from consuming alcohol
“in any quantity whatsoever during his parenting time with the children or for the twelve
(12) hours immediately preceding his parenting time.” In addition, the court has ordered
Father to have no alcohol in his house “when exercising his parenting time with the
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children.” We conclude that, by conditioning Father’s time with the children on his
abstinence from alcohol while the children are in his custody as well as twelve hours
beforehand, the court incorporated Dr. Montgomery’s concerns into its order.6
As stated in a case upon which Mother relies, “‘[e]xpert testimony is not conclusive,
even if uncontradicted, but is rather purely advisory in character, and the trier of fact may
place whatever weight it chooses on such testimony.’” Burden v. Burden, 250 S.W.3d 899,
915 (Tenn. Ct. App. 2007) (quoting Thurmon v. Sellers, 62 S.W.3d 145, 162 (Tenn. Ct.
App. 2001)); see also Brunetz v. Brunetz, 573 S.W.3d 173, 182 (Tenn. Ct. App. 2018);
Forrest Constr. Co., LLC v. Laughlin, 337 S.W.3d 211, 233 (Tenn. Ct. App. 2009). Unlike
Burden, the trial court here did not disregard Dr. Montgomery’s recommendation. See
Burden, 250 S.W.3d at 915 (stating trial court “must have some valid evidentiary basis” to
reach conclusions contrary to uncontradicted expert opinion). The court awarded the
parties equal residential time with the children, and it explained that it was designating
Father as the primary residential parent, in part, because he had a more stable residence
and the children would not have to change schools due to changes in Mother’s place of
residence.
Mother further asserts that, in modifying the parenting plan, the trial court ignored
Ms. Langley’s testimony. Ms. Langley testified about the children’s reports of Father’s
drinking and inappropriate touching, and she stated that she did not believe they were being
coached. She did not investigate the children’s reports, however, because that was not her
job. The inappropriate touching allegations were investigated on numerous occasions by
DCS and county sheriffs’ offices, and all of the investigations were closed due to
insufficient evidence. We believe the trial court addressed the children’s complaints
regarding Father’s drinking appropriately by instructing him not to drink or have alcohol
in his house when the children were present and to refrain from drinking twelve hours
before he was to have time with the children.
Finally, we disagree with Mother’s assertion that the trial court modified the
parenting plan in an effort to “punish” her rather than serve the best interest of the children.
The evidence showed that most of the allegations against Father occurred after Father had
been consuming alcohol. By instructing Father to refrain from alcohol altogether when he
has the children as well as twelve hours beforehand, the court addressed a majority of the
6
The date of the trial court’s order was June 19, 2020. We note that the record contains a transcript from a
hearing conducted on June 2, after the trial concluded but before the final order was filed, based on an
episode of Father’s inebriation while the children were in his care and one or two of the children called 911.
The police went to check on the children and had to break down the door to Father’s house because Father
refused to let the police enter. One of the police officers on the scene testified that Father shouted “you little
assholes” to the children for calling the police. Father was charged with three misdemeanor counts of
reckless endangerment. One of the responding officers made a referral to DCS, and the case was under
investigation as of the hearing on June 2.
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issues Mother raised against Father. The court did not, as Mother suggests, warn Mother
against filing additional prayers for relief if the facts warrant it.
Mother has failed to show that the trial court abused its discretion in modifying the
parties’ permanent parenting plan. The facts the trial court found are supported by the
evidentiary record, and we conclude that the court’s modification of the parenting plan is
among several acceptable alternatives the court could have adopted. See Gonsewski, 350
S.W.3d at 105. Accordingly, we affirm the trial court’s judgment in all respects.7
III. CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are assessed against
the appellant, Lindsey Beth Honea, for which execution may issue if necessary.
_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE
7
Mother asks us to reverse the trial court’s award of attorney’s fees to Father, but she provides no argument
in support of this request and we, therefore, consider the issue waived.
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