Brent H. Moore v. Karen R. Moore ( 2022 )

01/24/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 4, 2021 Session
BRENT H. MOORE v. KAREN R. MOORE
Appeal from the Chancery Court for Lawrence County
No. 14-16829 Stella L. Hargrove, Judge
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No. M2019-01065-COA-R3-CV
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Following their divorce, both parents sought modification of a permanent parenting plan.
The parents agreed that there had been a material change in circumstances warranting a
modification. But they disagreed over the parenting schedule and who should be the
primary residential parent. Among other things, the trial court retained the father as the
primary residential parent and gave him sole decision making over major decisions. And
the court substantially reduced the mother’s parenting time. Both parents also filed
petitions for contempt against the other. In part, the father sought to hold the mother in
contempt for failure to make certain payments as required by the divorce decree. Although
the court dismissed all of the contempt petitions, it ordered the mother to pay the father for
the missed payments anyway. We vacate the modified plan and remand for a determination
of the minor child’s best interest. Otherwise, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in
Part and Affirmed in Part and Remanded
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Christina Hammond Zettersten, Brentwood, Tennessee, for the appellant, Karen R. Moore.
Teresa Brewer Campbell, Lawrenceburg, Tennessee, for the appellee, Brent H. Moore.
OPINION
I.
Karen R. Moore (“Mother”) and Brent H. Moore (“Father”) divorced in 2018, when
their two younger daughters were fifteen and nearly eleven years old. The divorce decree
ordered a sale of the marital residence. Under the decree, Mother was responsible for
maintenance expenses and utilities on the residence pending its sale. She was also
responsible for making payments on her vehicle. As part of the divorce, the trial court
entered a permanent parenting plan, which ordered equal parenting time between the
parents and joint decision making for major decisions.
A few months after the divorce, Father petitioned to modify the parenting plan. He
claimed that Mother was essentially not exercising her parenting time and that she had
moved in with another man in Indiana. According to Father, Mother was unable to provide
a proper home environment for the children, whereas he maintained a stable relationship,
stable employment, and suitable housing. Father requested that he be named primary
residential parent. He also requested that Mother have parenting time for two
nonconsecutive weeks during the children’s summer vacation.
Mother filed a counter-petition. She agreed that the parenting plan should be
modified because she moved to Indiana. But she claimed that she had still tried to exercise
her parenting time in Tennessee. According to Mother, Father prevented her from
exercising her time. He had “engaged in a pattern of behavior so as to alienate the . . .
children from Mother.” For example, Mother claimed, Father “spoke[] disparagingly of
Mother” to the children and blocked her on their phones. Father also allegedly refused to
co-parent with Mother. Mother requested that she be named the primary residential parent
of the youngest daughter and that Father be named the primary residential parent of the
other minor child. Mother proposed that they alternate weeks with each child during the
children’s summer vacation.
Soon after filing the petition to modify the parenting plan, Father filed a petition for
civil and criminal contempt against Mother. As grounds, he reiterated that Mother failed
to exercise her parenting time under the parenting plan. She “ha[d] not met her obligation
to care for the children.” Father also claimed that Mother had not met various obligations
of the divorce decree. She allegedly did not refinance her car in her name, make car loan
payments, or put the marital residence utilities in her name. Father swiftly filed a second
civil and criminal contempt petition against Mother for her failure to pay maintenance
expenses on the marital residence pending its sale.
Mother filed her own criminal contempt petition against Father. She claimed that
Father refused to allow her to exercise her parenting time. According to Mother, on one
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occasion, Father assaulted her when she tried to pick up the youngest daughter from school.
Father allegedly rolled his car window up on Mother’s arm multiple times. The incident
resulted in a police report.
The trial court held a hearing on the parties’ petitions to modify the parenting plan
and for contempt. As for the parenting plan modification, the court found that there had
been a material change in circumstances and that it was in the children’s best interests to
modify the plan. The court granted Father, who remained primary residential parent to
both children, 311 days of parenting time and Mother 54 days. Mother’s parenting time
would be exercised on the third weekend of every month and could take place at her home
in Indiana. The court also granted Mother one week in June and one week in July, but “the
children’s activities . . . t[ook] precedence over Mother’s parenting time” during those two
weeks. And Father maintained “absolute responsibility” for making decisions about
extracurricular and school activities during those weeks. Although neither party requested
it, the court also granted Father sole decision-making authority over major decisions
regarding each child.
In fashioning the new parenting plan, the court reasoned that Mother had failed to
exercise her parenting time as originally ordered. Instead of petitioning to modify the
parenting plan first, she simply chose to move to Indiana and never return. Mother also
shared her animosity toward Father with the children. She “bad-mouthed” Father when
she was with them. The court ordered that Mother would be responsible for transporting
the children to and from Indiana until she was no longer “bad-mouthing” Father—or even
discussing the case at all. In the court’s view, “Mother likes to play a victim although she
likes to see herself as a Survivor.”
The court dismissed both parties’ contempt petitions. It found Mother’s petition
without merit. As for Father’s petitions, the court found that Mother did not willfully
disobey the court’s orders. Still, the court required Mother to pay Father $1,813.11 for car
and utility payments “that she did not pay as ordered by th[e] court.”
II.
On appeal, Mother argues that the trial court abused its discretion in modifying the
parenting plan. Mother takes issue with the court’s allocation of parenting time and the
award of sole decision-making power to Father. She also takes issue with being responsible
for all the children’s transportation costs to and from Indiana. And Mother argues that the
court did not find her in contempt of the court’s divorce decree. So, she contends, the court
could not order her to pay Father for the car and utility payments.
We review the trial court’s factual findings de novo on the record with a
presumption of correctness, unless the evidence preponderates otherwise. TENN. R. APP.
P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013). We review the
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trial court’s conclusions of law de novo with no presumption of correctness. Armbrister,
414 S.W.3d at 692.
A.
All final divorce decrees involving a minor child must include a permanent
parenting plan. Tenn. Code Ann. § 36-6-404(a) (2021). Absent an agreement, once a
permanent parenting plan is incorporated into a final divorce decree, the parties must
comply with it unless it is modified by the court. Id. § 36-6-405(b) (2021). Tennessee
courts apply a two-step analysis for requests for either a modification of the primary
residential parent or the residential parenting schedule. See, e.g., In re T.R.Y., No. M2012-
01343-COA-R3-JV, 2014 WL 586046, at *12 (Tenn. Ct. App. Feb. 12, 2014) (primary
residential parent modification); In re C.R.D., No. M2005-02376-COA-R3-JV, 2007 WL
2491821, at *6 (Tenn. Ct. App. Sept. 4, 2007) (parenting time modification); see also
Brunetz v. Brunetz, 573 S.W.3d 173, 179 (Tenn. Ct. App. 2018). The threshold issue is
whether a material change in circumstances has occurred since the court adopted the
current parenting plan. Tenn. Code Ann. § 36-6-101(a)(2)(B)(i), (C) (2021). If a material
change has occurred, the court must then determine whether modifying the parenting plan
is in the child’s best interest by examining the statutory best interest factors. Armbrister,
414 S.W.3d at 697-98; see Tenn. Code Ann. § 36-6-106(a) (2021).
Here, the parties agreed, and the trial court found, that there had been a material
change in circumstances. But, as Mother argues, and Father acknowledges, the trial court
failed to conduct a best interest analysis. See Tenn. Code Ann. § 36-6-404(b), -405(a). In
a best interest analysis, the court “shall consider all relevant factors.” Id. § 36-6-106(a);
see Burden v. Burden, 250 S.W.3d 899, 910 (Tenn. Ct. App. 2007) (reasoning that the court
“shall consider” best interest factors “if they are relevant”); Burnett v. Burnett, No. E2002-
01614-COA-R3-CV, 2003 WL 21782290, at *6 (Tenn. Ct. App. July 23, 2003) (explaining
that a trial court must “consider all of the listed factors which are applicable”). And it must
discuss those relevant factors. Dishman v. Dishman, No. M2008-01194-COA-R3-CV,
2009 WL 1181341, at *3 (Tenn. Ct. App. May 1, 2009).
The court here arguably made some best interest findings for a plan making Father
the primary residential parent. For example, the court found that Father had been caring
for the children most of the time, while Mother failed to exercise her parenting time.
Mother “like[d] to play a victim although she like[d] to see herself as a Survivor.” And
she harbored animosity toward Father that she shared with the children. But the court did
not relate these findings to any best interest factors. Its order did not demonstrate a
consideration of the relevant factors. Cf. Broadrick v. Broadrick, No. M2013-02628-COA-
R3-CV, 2015 WL 1947186, at *6 (Tenn. Ct. App. Apr. 29, 2015) (holding that the trial
court’s findings that the child now had more opportunities for extracurricular activities and
should remain with the mother to “avoid disruption” showed consideration of the relevant
factors). Instead, the findings support consequences for Mother’s prior conduct. For
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example, transportation costs were taxed to Mother, not based on a best interest
determination, but because Mother was discussing the case and “bad-mouthing” Father
with the children. “Parenting plans should never be used to punish . . . parents for their
human frailties or past mis-steps.” Shofner v. Shofner, 181 S.W.3d 703, 716 (Tenn. Ct.
App. 2004).
Mother asks us to conduct our own best interest analysis and fashion a new parenting
plan. When a trial court’s factual findings are inadequate, we may “remand the case to the
trial court with directions to issue sufficient findings and conclusions.” Lovlace v. Copley,
418 S.W.3d 1, 36 (Tenn. 2013). Or we may conduct “a de novo review of the record to
determine where the preponderance of the evidence lies.” Id. Whether to conduct a de
novo review depends on “the adequacy of the record, the fact-intensive nature of the case,
and whether witness credibility determinations must be made.” Solima v. Solima, No.
M2013-01074-COA-R3-CV, 2015 WL 1186251, at *4 (Tenn. Ct. App. Mar. 11, 2015); see
also State v. King, 432 S.W.3d 316, 328 (Tenn. 2014) (considering the adequacy of the
record, the fact-intensive nature of the inquiry, and the ability to request supplementation
of the record).
Here, we decline to conduct a de novo review of the record to make our own best
interest determination. Whether a parenting plan modification serves a child’s best
interests is a factual question. Brunetz, 573 S.W.3d at 178 (citing Armbrister, 414 S.W.3d
at 692). “The inquiry is factually driven and requires the courts to carefully weigh
numerous considerations.” Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996);
see Hardin v. Hardin, No. W2012-00273-COA-R3-CV, 2012 WL 6727533, at *5 (Tenn.
Ct. App. Dec. 27, 2012) (describing a child’s best interests as a “fact-intensive issue”).
Thus, “trial judges, who have the opportunity to observe the witnesses and make credibility
determinations, are better positioned to evaluate the facts than appellate judges.” Kelly v.
Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing Armbrister, 414 S.W.3d at 693).
Although the trial court questioned Mother’s credibility, it is unclear whether the court did
so as to the entirety of her testimony. This record contains some facts helpful for a best
interest determination. But it is inadequate for us to make our own determination.
The circumstances here also make a de novo review of the record to make our own
best interest determination inappropriate. By the time this case was argued on appeal, one
of the children had reached the age of majority. So any parenting plan will only have to
address the needs of one child.
Due to the lack of a best interest analysis, we vacate the trial court’s modification
of the parenting plan and remand the case for a determination of the minor child’s best
interest. The modified parenting plan shall remain in place on a temporary basis until the
court makes such a determination. At either party’s request, the court will conduct a new
evidentiary hearing to account for developments since the original hearing on modification
of the parenting plan.
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B.
As for Mother’s second issue on appeal, we are not persuaded by her argument that
she could not be ordered to pay Father for the payments she was required to make under
the final decree of divorce. Although the court dismissed Father’s contempt petition for
those payments, a “final judgment shall grant the relief to which the party in whose favor
it is rendered is entitled.” TENN. R. CIV. P. 54.03. Mother concedes that she owes Father
for the missed payments.
III.
We vacate the trial court’s modification of the parenting plan. The current modified
parenting plan will remain in effect for the one minor child pending the entry of an order
containing the necessary findings of fact and conclusions of law related to the child’s best
interest. We affirm the judgment against Mother for those payments she was required to
pay under the divorce decree. The case is remanded for further proceedings in accordance
with this opinion.
s/ W. Neal McBrayer
W. NEAL MCBRAYER, JUDGE
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