Jamie Gravatt v. Michael Barczykowski ( 2021 )

05/25/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 1, 2021
JAMIE GRAVATT v. MICHAEL BARCZYKOWSKI
Appeal from the Circuit Court for Montgomery County
No. CC2016-CV-0933 Ross H. Hicks, Judge
___________________________________
No. M2019-01481-COA-R3-CV
___________________________________
This appeal arises from the modification of a parenting plan in a post-divorce action, upon
a petition filed by the minor child’s mother. We have determined that the evidence does
not preponderate against the trial court’s findings that there was a material change of
circumstances under Tennessee Code Annotated sections 36-6-101(a)(2)(B) and 36-6-
101(a)(2)(C) and that modification of the parenting schedule and of primary residential
parent was in the best interest of the child. Therefore, we affirm the trial court’s order.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which ANDY D. BENNETT,
J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Jacob P. Mathis, Clarksville, Tennessee, for the appellant, Michael Barczykowski.1
Christopher J. Pittman and Catherine W. Cheney, Clarksville, Tennessee, for the appellee,
Jamie Gravatt.
OPINION
I. BACKGROUND
R.B. (“the child”) was born in July of 2012 during the marriage of Jamie Gravatt
1
Appellant notified the Office of the Attorney General of his intent to raise a constitutional challenge to
the Tennessee Child Support Guidelines on appeal. The State was not a party to the trial court proceedings.
On March 15, 2021, the Office of the Attorney General filed notice that the State would not file an appellate
brief or otherwise participate in this appeal. See Tenn. R. App. P. 32.
(“Mother”) and Michael Barczykowski (“Father”). Mother and Father were divorced by
final decree entered in August of 2016, when the child was four-years-old. The final decree
incorporated an agreed permanent parenting plan that named Father the primary residential
parent and provided for joint decision-making and equal parenting time between the
parties, to follow a week on/week off schedule.
At the time of the divorce, both parties lived in Clarksville, Tennessee. Father was
medically discharged from the United States Army. In October of 2016, pursuant to the
parental relocation statute,2 Father notified Mother of his intent to relocate out of state.
Mother filed a petition opposing Father’s relocation. In response, Father stated that he
sought relocation after failing to find suitable employment in Tennessee. Father indicated
that he was offered a job with significantly better pay in Maryland, nearby the child’s
maternal and paternal grandparents and extended family.3 The child was not yet school-
aged, so pending the final hearing on the relocation matter, the parties agreed to meet
halfway in Bristol, Virginia to alternate parenting time on a month on/month off schedule.
Mother gave birth to another child over the summer of 2017.
By memorandum opinion entered August 15, 2017, the trial court ordered the parties
to exercise parenting time on a year on/year off basis and further ordered that each parent
was to enjoy “maximum visitation” with the child during the other parent’s year on. 4 The
trial court found that the child’s best interest was served by designating Father as the
primary residential parent for the 2017–2018 school year. Father was ordered to pay
Mother $208.00 monthly child support, based on the entry of 182.5 days per parent on the
child support worksheet. Accordingly, the child enrolled in Kindergarten in Delaware and
spent the 2017–2018 school year with Father. During that year, Mother was employed as
a part-time substitute teacher and took advantage of her flexible work schedule to visit the
child in Delaware on several occasions.
On October 26, 2018, when the child had just begun first grade and was living with
Mother in Tennessee, Mother petitioned the court to modify the existing parenting plan. In
her petition, Mother alleged material changes in circumstances since entry of the previous
parenting plan including: Father’s unrealistic expectations of Mother’s obligations;
Father’s demands to speak to the child at any time; Father’s daily demands about the child’s
school; Father’s interference with and micromanaging of Mother’s parenting; Father’s
questioning of the child about Mother’s care of her; Father’s prohibiting the child to visit
Mother’s family while the child was living in Delaware; Father’s inability to communicate
2
Tenn. Code Ann. § 36-6-108.
3
It appears that the reference to Maryland was made in error because Father’s job was in Delaware.
4
Both Mother and Father were reluctant to agree to a year on/year off parenting schedule. Thereafter, this
case was transferred to a different trial court judge.
-2-
with Mother; the parties’ disagreements concerning times and locations at which to
exchange the child; and Father’s use of the child as the intermediary between the parties.
Mother further alleged that Father’s “unrealistic and uncooperative behavior” since entry
of the parenting plan “made the year-on/year-off schedule untenable and not in the best
interest of the minor child.” Mother requested that the trial court enter a new parenting
plan naming her primary residential parent and awarding Father “reasonable parenting time
during school vacations.” Father denied the allegations of the petition.
After mediation failed, the case proceeded to trial on May 6, 2019. By then, Mother
had transitioned to working full-time in the local school district while studying, primarily
online, to earn a Master’s Degree in special education. The child was then nearly seven
years old and Mother had remarried. Four months earlier, Father had also remarried, but
did not inform Mother of this fact until the day of trial.
Mother, Father, Mother’s husband, and the child’s paternal grandmother testified at
trial. Mother’s husband related that he is a member of the United States Army subject to
last-minute deployments, but that he was campaigning to avoid relocation to another state.
He further testified that the child enjoys a “really good” relationship with her same-aged
stepsister and a “great” relationship with her then-20-month-old half-sister. The testimony
indicated that Mother and her husband provide a home suitable for children and that he
helps care for the child as much as he is able. The child’s paternal grandmother related
that she lives in Delaware, approximately twenty minutes driving distance from Father, as
do most of Father’s and Mother’s extended family members, several of whom are involved
in the child’s life. Both parents testified about the positive impact of the child’s
extracurricular activities. During the child’s year in Delaware, Father invited Mother’s
extended family members to observe the child’s karate practices and dance recitals.
Mother and Father each provided extensive testimony and exhibits detailing the
communication issues and acrimony between them. Mother instructed Father to prohibit
his then-fiancée from purchasing school clothing for, posing in photos with, or “being
motherly” toward the child. Both parents described their irritation that the child was
frequently distracted when calling one parent from the other parent’s home.
Two significant themes emerged from the testimony. The first was Father’s
resentment toward paying child support to Mother. Mother recounted that Father told her
that “having to pay child support [was] going to make it very hard for him to be able to co-
parent.” While the child was living in Delaware with Father during the Kindergarten year,
he texted Mother, “I actually tried to maintain a civil relationship between us, and you
basically destroyed that with seeking child support that you don’t need and don’t deserve.
I provided [the child] everything she needs financially, yet you try to earn a quick buck off
my hard work.”
The second theme was that neither parent believed the year on/year off residential
parenting schedule in effect was workable or in the child’s best interest. In February of the
-3-
child’s Kindergarten year, Father texted Mother that he did not think it “healthy” for the
child to “bounce around” and “try[] to fit in every year.” Mother agreed, “I don’t think it
is either, but it’s what is [in] the parenting plan and the only way to change it is going back
to court because I know you and I will not agree on where [the child] will go to school
every year.” At trial, Father opined as follows:
Q. Mr. Barczykowski, if the Court sees fit to simply dismiss this petition and
continue following the schedule, do you think the child’s going to be able to
thrive under that?
A. I don’t, simply because she has such a close bond with not just [my]
family in Delaware, but with [Mother’s] family in Delaware. She has thrived
academically in Delaware. I just see her having a better upbringing if she
remained in Delaware for the school year.
Q. So if the Court does see fit to change the [parenting] plan, do you feel
like it would be in her best interest to stay there?
A. Absolutely.
Mother recounted that, although the child was performing “pretty well in school,” she
“struggle[d] in the first grade because she didn’t learn everything that the current first
graders did down here [in Tennessee].” Mother expressed concern that, in the long run,
the child would struggle to change schools yearly because “different schools, different
states have different standards of what they teach” and because “as the grades get higher,
the material gets harder, and it’s going to be harder for her to bounce back.”
By memorandum opinion entered July 15, 2019, the trial court found “the parties
agree and the court finds that the year on/off schedule is not working.” The court also
found and noted the parties’ agreement that the residential parenting schedule in place was
not in the child’s best interest. Additionally, the trial court noted Mother’s “unrefuted
testimony” that Father’s original designation as primary residential parent “was done by
agreement because [he] misinformed the Mother that [he] was required to be designated as
Primary Residential Parent in order to keep the child’s Tricare coverage.”5 After
considering the best interest factors set forth in Tennessee Code Annotated section 36-6-
106, the trial court determined that it was in the child’s best interest for Mother to be
designated primary residential parent and for Mother’s proposed parenting plan to be
adopted.
On July 31, 2019, Father moved to impute income to Mother, alleging that she was
5
Mother was not represented by counsel during the divorce proceedings.
-4-
voluntarily underemployed. The trial court denied the motion, reasoning that the proof at
trial supported Mother’s income as previously found by the court, and that Mother’s work
within the school system would allow her to complete her graduate degree and earn a
teaching job that would “increase her income in the long run.” The modified parenting
plan was entered as the court’s order on August 13, 2019. Pursuant to the plan, Father was
awarded 100 days of parenting time to include every fall break, spring break, half of winter
break, and every summer break. Mother was awarded 265 days of yearly parenting time.
Pursuant to the child support worksheet, Father’s child support obligation was modified to
$955.00 monthly by agreed order entered August 29, 2019. Father appealed.
II. ISSUES
Father raises three issues on appeal, which we quote verbatim from his brief:
1. Did the trial court err in finding a material change of circumstance
necessitating modification of the parenting plan?
2. Should a cost of living adjustment be factored into child support
obligations?
3. Should a post-marital child be included in child support calculations?
In the posture of Appellee, Mother raises the issue of whether the appeal lacks
justiciable issues such that she is entitled to relief under the frivolous appeal statute.
III. STANDARD OF REVIEW
“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.” Armbrister v. Armbrister, 414 S.W.3d 684, 692 (Tenn. 2013) (citing In
re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007)). Therefore, “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.” Id.; see also
Tenn. R. App. P. 13(d). Likewise, trial courts have “broad discretion in formulating
parenting plans” because they “are in a better position to observe the witnesses and assess
their credibility.” C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017) (citing Armbrister,
414 S.W.3d at 693). On appeal, we review a trial court’s decision regarding parenting
schedules for an abuse of discretion. Armbrister, 414 S.W.3d at 693 (citing Eldridge v.
Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001)). “An abuse of discretion occurs when the trial
court . . . appl[ies] an incorrect legal standard, reaches an illogical result, resolves the case
on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an
-5-
injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court
abuses its discretion in establishing a residential parenting schedule “only when the trial
court’s ruling falls outside the spectrum of rulings that might reasonably result from an
application of the correct legal standard to the evidence found in the record.” Eldridge, 42
S.W.3d at 88.
We review a trial court’s child support determination under the abuse of discretion
standard. Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005).
We review questions of law de novo, affording the trial court’s decision no
presumption of correctness. Armbrister, 414 S.W.3d at 692 (citing Mills v. Fulmarque,
360 S.W.3d 362, 366 (Tenn. 2012)).
IV. DISCUSSION
1.
To modify an existing parenting plan, the trial court must first determine whether a
material change in circumstances has occurred. Armbrister, 414 S.W.3d at 697–98 (citing
Tenn. Code Ann. § 36-6-101(a)(2)(C)). “The petitioner . . . must prove by a preponderance
of the evidence a material change of circumstance affecting the child’s best interests, and
the change must have occurred after entry of the order sought to be modified.” Gentile v.
Gentile, No. M2014-01356-COA-R3-CV, 2015 WL 8482047, at *5 (Tenn. Ct. App. Dec.
9, 2015) (citing Caldwell v. Hill, 250 S.W.3d 865, 870 (Tenn. Ct. App. 2007)). “[A]
material change of circumstance for purposes of modification of a residential parenting
schedule may include, but is not limited to, significant changes in the needs of the child
over time, which may include changes relating to age; significant changes in the parent’s
living or working condition that significantly affect parenting; failure to adhere to the
parenting plan; or other circumstances making a change in the residential parenting time in
the best interest of the child.” Tenn. Code Ann. § 36-6-101(a)(2)(C). If a material change
in circumstances is found, the court must then determine whether a modification of the
parenting plan is in the child’s best interest in consideration of the factors set forth in
Tennessee Code Annotated section 36-6-106(a). Armbrister, 414 S.W.3d at 697–98.
“Facts or changed conditions which reasonably could have been anticipated when the
initial residential parenting schedule was adopted may support a finding of a material
change in circumstances, so long as the party seeking modification has proven by a
preponderance of the evidence ‘a material change of circumstance affecting the child’s best
interest.’” Id. at 704 (quoting Tenn. Code Ann. § 36-6-101(a)(2)(C)).
Where the issue before the court is a modification of the residential parenting
schedule, the threshold for determining whether there has been a material change of
circumstances is “much lower” as compared to the threshold for modification of the
-6-
primary residential parent. Burnett v. Burnett, No. M2014-00833-COA-R3-CV, 2015 WL
5157489, at *6 (Tenn. Ct. App. Aug. 31, 2015). Where the issue before the court is
modification of the primary residential parent (“custody”), then:
the petitioner must prove by a preponderance of the evidence a material
change in circumstance. A material change of circumstance does not require
a showing of a substantial risk of harm to the child. 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 circumstances that
make the parenting plan no longer in the best interest of the child.
Tenn. Code Ann. § 36-6-101(a)(2)(B). See Armbrister, 414 S.W.3d at 703 (comparing the
standard for an action to modify custody to the standard for an action to modify only a
residential parenting schedule).
To modify a residential parenting schedule, “merely showing that the existing
arrangement [is] unworkable for the parties is sufficient.” Rose v. Lashlee, No. M2005-
00361-COA-R3-CV, 2006 WL 2390980 at *2 n.3 (Tenn. Ct. App. Aug. 18, 2006). As
found by the trial court, both Mother and Father agreed that the year on/year off schedule
was entered into reluctantly, was not working well, would become unworkable as the child
progressed in school, and did not serve the child’s best interest. The parties’ testimony and
exhibits amply support the trial court’s finding and modification of the previous year
on/year off residential parenting schedule. Accordingly, we affirm.
We turn now to material change in circumstance sufficient to consider whether a
modification of custody was in the child’s best interest. Father argues that “it was error for
the trial court to find [] a material change in circumstances” because “nothing between the
parties had changed, other than the parties exercising the parenting plan established by the
court.” We respectfully disagree. Again, in the context of a modification of custody, a
material change in circumstance “may include, but is not limited to, failures to adhere to
the parenting plan or an order of custody and visitation or circumstances that make the
parenting plan no longer in the best interest of the child.” Tenn. Code Ann. § 36-6-
101(a)(2)(B). Furthermore, “trial courts have broad discretion in determining which parent
should be the primary residential parent and appellate courts are reluctant to second guess
a trial court’s decision on this issue when so much depends on the trial court’s assessment
of the witnesses’ credibility.” In re Shayla H., No. M2013-00567-COA-R3-JV, 2014 WL
2601564 at *5 (Tenn. Ct. App. June 9, 2014) (citations omitted).
Here, for instance, the year on/year off parenting plan provided specific instructions
about transportation arrangements and costs related to the exchange of the child. In her
petition, Mother alleged constant argument between the parties regarding this provision of
the plan. At trial, there was evidence that Father unilaterally booked a flight for the child
to return to Delaware before Mother’s parenting time was complete, despite the parenting
-7-
plan provision that the parties were to meet halfway unless they jointly made other
arrangements. Under the parenting plan, payment of long-distance travel costs was to be
shared equally. Yet, more than once, Father asked Mother to waive child support to help
offset his transportation expense. These failures to adhere to the parenting plan established
the threshold material change in circumstance for modification of primary residential
parent. Based on the foregoing, as well as our review of the entire record, we conclude
that the evidence does not preponderate against the finding of a material change in
circumstance sufficient to modify the primary residential parent.
Best Interest
Once the trial court determines that there has been a material change in circumstance
sufficient to modify the residential parenting schedule or primary residential parent, the
second step in the modification analysis requires the court to determine whether
modification is in the child’s best interest under the factors in Tennessee Code Annotated
section 36-6-106(a). Boyer v. Heimermann, 238 S.W.3d 249, 259–60 (Tenn. Ct. App.
2007). The best interest determination “is a fact-sensitive inquiry.” Steakin v. Steakin, No.
M2017-00115-COA-R3-CV, 2018 WL 334445 at *5 (Tenn. Ct. App. Jan. 9, 2018). The
determination “‘does not call for a rote examination of each of [the relevant] factors and
then a determination of whether the sum of the factors tips in favor of or against the
parent.’” Id. (quoting In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)). Rather,
“‘[t]he relevancy and weight to be given each factor depends on the unique facts of each
case.’” Id. The trial court is directed to consider the following factors when conducting
the best interest 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;
-8-
(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). . . .;
(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.
-9-
Tenn. Code Ann. § 36-6-106(a).
The trial court found factor one to be equal because both parents “have essentially
exercised equal parenting time since their divorce.” The court placed considerable weight
on factor two, finding that “Mother is more likely to foster a good relationship with Father
than the Father is with the Mother.” The trial court acknowledged Father’s difficulties in
communicating with the child due to distractions and disruptions while she is in Mother’s
home, but found that “this can be easily remedied.” Father’s “disparaging and distressing
comments to Mother,” including referring to her as “ya leech,” and to himself as “just a
pay day” were viewed unfavorably by the trial court. So, too, were Father’s objections to
paying child support and his admonition that paying child support would “be the biggest
strain on” the co-parenting relationship, despite earning nearly ten times as much income
as Mother. Finally, as to factor two, the trial court considered Father’s emailed complaint
that Mother’s visiting the child 19 out of 127 days was “excessive” during his year of
custody. The court found this to be “evidence that Father would be less likely to support a
positive relationship with the child’s Mother should the Father be designated as the Primary
Residential Parent.”
As to the fourth factor, the trial court found:
[W]hile both parties are certainly capable of providing the child with food,
clothing, medical care, education, and other necessary care, the Mother has
a greater disposition to provide these necessities than does Father. The Court
again refers to Father’s resentment toward paying child support [and] his
statement that he was financially devastated by paying only $200.00 a month
in child support when [h]is income is over $100,000.00 per year. This factor
favors Mother.
As to factor nine, the trial court considered the undisputed proof of the child’s
engagement in extracurricular activities in Tennessee and Delaware. The court found that
this factor favored Father because although “the child has bonded with her baby sister over
the last year and has a strong relationship with her step-sister . . . most of the child’s
extended family relationships are in Delaware.” As to the tenth factor, in consideration of
the child’s “issues with changing schools,” the trial court reasoned that the child was “now
settled” and enjoying a “stable environment in Tennessee,” and that it “concern[ed] the
Court to require the child to change schools for what would be the third time in three years.”
The court found that the fourteenth factor favored Mother because “Mother works for the
school system and is therefore off work when the child is not in school,” whereas “Father’s
work schedule is longer and does not follow the Delaware school schedule.”
Other relevant factors that impacted the child’s best interest weighed in Mother’s
favor. Importantly, the trial court noted that Father did not seek to be designated primary
- 10 -
residential parent in his answer to the petition to modify the parenting plan. The court
found that Mother was afforded no notice of any allegations against her or of Father’s
request to be designated primary residential parent until five days before trial. The trial
court also considered certain exhibits showing that “Father has engaged in a pattern of
failing to work with the Mother in transportation.”
Upon consideration of all of the above factors, the trial court determined that
Mother’s designation as primary residential parent and the modification of the residential
parenting schedule, as proposed by Mother, would be in the child’s best interest. Father
does not challenge the trial court’s best interest findings, and we conclude that the evidence
does not preponderate against them. Accordingly, we affirm the trial court’s finding that
modification of the residential parenting schedule and of primary residential parent was in
the best interest of the child.
2.
Father “believes that a locality adjustment can and should be made for parents, like
himself, who live outside the state of Tennessee.” Father contends that, as applicable to
the calculation of child support generally, “Tennessee should adopt a deviation allowing
for a locality adjustment based on where the parties reside at the time of modification.”
After a thorough review of the record, we find that Father failed to properly raise this issue
in the trial court. Father testified briefly about the “prerequisite context” behind his general
“frustration” toward Mother regarding child support payments:
A. I had two mortgages.[6] My ex-wife stuck me with a house in Clarksville
that I had to take care [of], so I had a mortgage there. I was trying to become
established in Delaware and purchase a new house. On top of that, the cost
of living in Delaware is almost triple than it is in Tennessee. So when
[Mother’s counsel] expresses that I make all this money, I really don’t.
Q. There’s a difference between gross and netting?
A. Absolutely. And I learned that quickly when you’re in a higher tax
bracket.
Q. You understand the rules, though, don’t take into account cost of living?
A. And I’ve never been late for a child support payment.
Father stated “it’s not a matter of me paying the child support,” and affirmed that he
6
Father admitted that he paid two mortgages for two months following the divorce.
- 11 -
understood the obligation to pay the amount of child support ordered by the court, despite
his opinion that Mother did not deserve such payments.
The record is clear that the issue Father now raises on appeal was not raised through
a pleading or argued at trial. “The law in Tennessee is well settled that issues not raised in
the trial court may not be raised on appeal.” Blankenship v. Anesthesiology Consultants
Exch., P.C., 446 S.W.3d 757, 760 (Tenn. Ct. App. 2014); see also Jackson v. Burrell, 602
S.W.3d 340, 344 (Tenn. 2020). Therefore, this issue has been waived.
3.
Father argues “a parent should not be responsible for a child the other parent
conceives after the dissolution of the marriage” and that considering “the post-marital
child(ren) into child support modifications” is inequitable. The current agreed child
support order entered August 29, 2019 and the incorporated child support worksheet show
that Mother does not receive a credit for an in-home child. The child’s younger sister born
to Mother and her husband is not considered in Father’s child support calculation.
Therefore, we hold that this issue is moot.
4.
Mother requests her costs and reasonable attorney fees on appeal pursuant to
Tennessee Code Annotated section 27-1-122, which provides as follows:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include but need not be limited to, costs, interest on the
judgment, and expenses incurred by the appellee as a result of the appeal.
The decision whether to award damages for a frivolous appeal rests solely in our discretion.
Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009). Appellate courts exercise
their discretion to award fees under this statute ‘“sparingly so as not to discourage
legitimate appeals.”’ Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017) (quoting
Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006)). ‘“Successful litigants
should not have to bear the expense and vexation of groundless appeals.”’ Whalum, 224
S.W.3d at 181 (quoting Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977)). “A
frivolous appeal is one that is ‘devoid of merit,’ or one in which there is little prospect that
it can ever succeed.” Indus. Dev. Bd. v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App.
1995). Exercising our discretion, we deny the request for attorney fees and costs pursuant
to the statute.
- 12 -
V. CONCLUSION
We affirm the decision of the trial court. The case is remanded for such further
proceedings as may be necessary and consistent with this Opinion. Costs of the appeal are
taxed to the appellant, Michael Barczykowski.
_________________________________
JOHN W. McCLARTY, JUDGE
- 13 -