Soumya Pandey v. Manish Shrivastava ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT MEMPHIS
February 25, 2015 Session
SOUMYA PANDEY v. MANISH SHRIVASTAVA
Direct Appeal from the Chancery Court for Shelby County
No. CH-08-1259-1 Walter L. Evans, Chancellor
No. W2014-01071-COA-R3-CV – Filed May 15, 2015
At issue in this appeal are several divorce and post-divorce matters. We conclude that we
are without jurisdiction to adjudicate the issues related to the divorce litigation, as they
were not timely appealed. With respect to the post-divorce matters, we conclude that the
trial court properly exercised jurisdiction over Mother‟s petition to modify the parties‟
parenting schedule, that the evidence does not preponderate against its decision to modify
the parenting schedule, and that it did not err in its refusal to find Father in civil
contempt. Exercising our discretion, we decline to award Mother discretionary costs and
attorney‟s fees pursuant to Tennessee Code Annotated § 27-1-122 or attorney‟s fees
pursuant to Tennessee Code Annotated § 36-5-103(c).
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., joined. ARNOLD B. GOLDIN, NOT PARTICIPATING.
Bryan Matthew Meredith and Robert L.J. Spence, Jr., Memphis, Tennessee, for the
appellant, Manish Shrivastava.
Margaret M. Chesney, Memphis, Tennessee, for the appellee, Soumya Pandey.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
I. Background and Procedural History
This is the second appeal dealing with issues of parenting time between Manish
Shrivastava (“Father”) and Soumya Pandey (“Mother”). The background facts regarding
the initial divorce proceedings between the parties are discussed extensively in Pandey v.
Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799 (Tenn. Ct. App. Feb. 22,
2013) (“Pandey I”), and we restate them only briefly here. Mother and Father are
citizens of India and have one minor child.2 Pandey I, at *1. The parties married in 2005
while living in Ohio, and in 2007, the family moved to Memphis so that Mother, who is a
medical doctor, could participate in a four-year residency program at the University of
Tennessee. Id. In July 2008, Mother filed a complaint for divorce, and Father
subsequently filed a counter-complaint for divorce. Id. Although the parties entered into
a settlement agreement prior to trial that resolved many of the divorce issues, several
issues remained a source of contention, including competing claims by the parties to be
named the primary residential parent, Mother‟s request to relocate to Little Rock,
Arkansas, for a medical fellowship, and Father‟s request that the trial court place
restrictions on the minor child‟s passport in order to safeguard against Father‟s fear that
Mother might flee with the child to India. Id.
After a four-day bench trial, the trial court entered an order and permanent
parenting plan naming Mother the primary residential parent of the minor child and
permitting her to relocate to Little Rock with him. Id. at *2. The trial court also rejected
Father‟s request that the minor child‟s passport be kept in a safe deposit box and instead
ordered that the parties, “when applying for the child‟s passport, to „notify the United
States Government that the child can only travel outside of the United States with written
consent of the other parent or order of the Court.‟” Id. Father later filed a motion to alter
or amend the divorce decree on multiple fronts. First, he noted that the schedule of days
set forth in the parenting plan did not actually total the 145 days of parenting time the
parenting plan stated he would receive.3 Id. Second, Father alleged that the Department
of State could not issue a conditional passport with the types of restrictions set forth in
the final decree. Id. Although the trial court subsequently entered an amended divorce
decree providing Father with 140 days of parenting time, the trial court again refused to
require that the minor child‟s passport be kept in a safe deposit box. Id.
2
The parties‟ minor child, a son, was born in March 2006. Although our opinion in Pandey I states that
the minor child is a citizen of the United States and a citizen of India, we note that the minor child is not a
true dual-citizen, but is a United States citizen who holds an Indian overseas citizenship.
3
The parties previously stipulated that Father would receive 145 days of parenting time in the event that
the trial court named Mother primary residential parent. Pandey I, at *1.
2
After the entry of the amended divorce decree, Father appealed to this Court and
raised several issues for review. Specifically, he challenged the trial court‟s designation
of Mother as the primary residential parent, the trial court‟s reduction of Father‟s
parenting time from the originally stated 145 days, and the trial court‟s denial of Father‟s
request that the minor child‟s passport be held in a safe deposit box. Id. at * 2˗3. When
we reviewed the matter on appeal, we observed that the trial court‟s orders contained “no
factual findings regarding the comparative fitness of the parents[.]” Id. at *4. We also
observed that there “was no mention of the best interest of [the minor child] or the
statutory „best interest‟ factors that should have controlled the trial court‟s decision.” Id.
Further, we noted that the “[t]rial court‟s orders did not provide any explanation for
denying Father‟s request to have [the minor child‟s] passport be held in a safe deposit
box, or for reducing his parenting time beyond the parties‟ previous stipulation.” Id. at
*6. As a result of these deficiencies, we concluded that we were unable to conduct a
meaningful appellate review of the trial court‟s decision and remanded the matter for the
trial court to enter an order that complied with the dictates of Tennessee Rule of Civil
Procedure 52.01.4 Id. at *3, 6. Our opinion in Pandey I was filed on February 22, 2013,
and the mandate issued on April 29, 2013.
On July 1, 2013, after the case was remanded but prior to the trial court‟s
compliance with the remand instructions, Mother filed a “Petition for Civil Contempt of
Court, to Transfer Jurisdiction to Arkansas, and, in the Alternative, to Modify the
Parenting Schedule.” Therein, Mother asserted that Father was in contempt of court for
failing to cooperate with her in renewing the minor child‟s passport despite being ordered
to do so. Additionally, Mother contended that the parenting plan should be modified, and
she requested that the modification proceeding be transferred to a court in Arkansas,
where Mother had been living for approximately two years. Alternatively, in the event
the trial court determined it retained jurisdiction, Mother prayed for a modification of
Father‟s parenting time in accordance with her proposed parenting plan. Mother alleged
that a modification of the parenting schedule was justified, in part, due to the difficulty
the parties experienced in exchanging the minor child between Little Rock and Memphis.
On July 26, 2013, Father filed a petition to modify his child support payments and
requested a downward adjustment of his support obligations.
On November 6, 2013, the trial court entered its “Second Amended Final Decree
of Divorce.” The decree indicated that it was entered in order to correct certain errors
identified by this Court in Pandey I, and it expressly stated that it was to replace the
amended final decree that had been entered prior to the first appeal. Although the second
amended divorce decree did not alter the prior designation of Mother as the primary
4
In part, Rule 52.01 provides that, “[i]n all actions tried upon the facts without a jury, the court shall find
the facts specially and shall state separately its conclusion of law and direct the entry of the appropriate
judgment.” Tenn. R. Civ. P. 52.01.
3
residential parent or change the allocation of parenting time that was established in the
first amended divorce decree, it did contain analysis responsive to this Court‟s
instructions in Pandey I. In addition to containing a comparative fitness analysis of the
parents and a thorough consideration of the minor child‟s best interests, the second
amended divorce decree contained an explanation as to why the trial court awarded
Father 140 days of parenting time a year as opposed to the 145 days provided by the
parties‟ written stipulation. Moreover, the second amended divorce decree contained an
explanation as to why the trial court denied Father‟s request that the minor child‟s
passport be kept in a safe deposit box. The second amended divorce decree finalized all
matters in connection with the initial divorce proceeding.
On November 20, 2013, the trial court entered an order adjudicating some of the
matters Mother raised in her July 1, 2013 petition. In addition to denying Mother‟s
request that Father be held in willful contempt, the trial court denied Mother‟s request
that the modification proceeding be transferred to an Arkansas court. The trial court
reserved Mother‟s request to modify the parenting schedule and Father‟s request to
modify his child support payments for future adjudication.
On March 31, 2014, the trial court entered an order disposing of all outstanding
issues from Mother‟s petition to modify the parenting schedule and Father‟s petition to
modify his child support payment. In addition to modifying Father‟s child support
obligation, the trial court found that a modification of the parenting schedule was in the
minor child‟s best interest. Specifically, the trial court noted that the parties had
experienced difficulties with the number of exchanges of the minor child under the
previous parenting schedule. Although the trial court reduced Father‟s scheduled
parenting time to 130 days per year, the trial court found that a restructured plan would
allow fewer exchanges of the minor child while still providing Father with significant
parenting time. An amended parenting plan implementing these objectives was entered
contemporaneously with the order. On April 9, 2014, Father filed a notice of appeal.5
II. Issues
Father raises three issues for our review, stated as follows:
1. The trial court‟s ruling designating Mother as primary residential parent
is based on an erroneous application of the law and is contrary to the weight
of the evidence presented at trial.
5
Father‟s notice of appeal indicated that he was appealing the final judgment entered on March 31, 2014,
as well as “all interlocutory orders entered by the Shelby County Chancery Court after [the] case was
remanded by the Tennessee Court of Appeals.”
4
2. The trial court erred in arbitrarily reducing Father‟s parenting time with
the minor child.
3. The trial court erred in denying Father‟s request that the minor child‟s
passport be held in a safe deposit box paid for by Father.
Mother raises several additional issues for our review, stated as follows:
1. The trial court erred in its allocation of parenting time in light of the
minor child‟s permanent relocation to Little Rock, Arkansas.
2. The trial court erred in not finding Father in willful contempt of court by
his failure to cooperate with Mother in renewing the minor child‟s United
States passport.
3. The trial court erred in declining to transfer all further proceedings in
this matter to the circuit court of Pulaski County, Little Rock, Arkansas,
now the home state of the child pursuant to Tenn. Code Ann. § 36-6-
217(a)(1).
4. Mother is entitled to an award of discretionary costs and attorney‟s fees
in having to respond to Father‟s appeal since Father‟s appeal is friv[o]lous
pursuant to Tenn. Code Ann. § 27-1-122 and because Mother is defending
the trial court‟s determination that she be designated the primary residential
parent of the minor child pursuant to Tenn. Code Ann. § 36-5-103(c).
III. Standard of Review
In reviewing any findings of fact by the trial court, our review is de novo “upon
the record of the trial court, accompanied by a presumption of the correctness of the
finding, unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d).
We review a trial court‟s conclusions on questions of law de novo, but no presumption of
correctness attaches to the trial court‟s legal conclusions. Bowden v. Ward, 27 S.W.3d
913, 916 (Tenn. 2000).
IV. Discussion
Designation of Primary Residential Parent
We first address Father‟s assertion that the trial court‟s designation of Mother as
the primary residential parent was erroneous and contrary to the weight of the evidence
5
presented at trial. There are no hard and fast rules that apply in deciding custody
disputes. Taylor v. Taylor, 849 S.W.2d 319, 327 (Tenn. 1993). Rather, “[c]ustody . . .
determinations often hinge on subtle factors, including the parents‟ demeanor and
credibility during the divorce proceedings themselves.” Gaskill v. Gaskill, 936 S.W.2d
626, 631 (Tenn. Ct. App. 1996). “[T]he paramount concern of the trial court must be the
welfare and best interest of the children.” Dobbs v. Dobbs, No. M2011-01523-COA-R3-
CV, 2012 WL 3201938, at *2 (Tenn. Ct. App. Aug. 7, 2012). In choosing to designate
one parent over the other as the primary residential parent, the trial court must engage in
a “comparative fitness” analysis. Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App.
2006) (citing Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. 1983)). On appeal, we are
reluctant to second-guess the trial court, as the decision to designate the primary
residential parent is within its sound discretion. Gaskill, 936 S.W.2d at 631.
In challenging the trial court‟s designation of Mother as the primary residential
parent, Father argues that the trial court erred in conducting the comparative fitness
analysis contained within the second amended divorce decree. In addition to suggesting
that the trial court improperly applied the law as it pertains to continuity of the minor
child‟s life, Father contends that the trial court failed to consider the parties‟ respective
willingness to foster the minor child‟s relationship with the other parent.
Having reviewed the record transmitted to us, we conclude that these grievances
were not timely raised on appeal. “In an appeal as of right to the Supreme Court, Court
of Appeals or Court of Criminal Appeals, the notice of appeal required by Rule 3 shall be
filed with and received by the clerk of the trial court within 30 days after the date of entry
of the judgment appealed from[.]” Tenn. R. App. P. 4. The thirty-day time limit for
filing a notice of appeal is mandatory and jurisdictional in civil matters. Albert v. Frye,
145 S.W.3d 526, 528 (Tenn. 2004) (citing Binkley v. Medling, 117 S.W.3d 252, 255
(Tenn. 2003)).
Inasmuch as a portion of this appeal concerns issues connected to the initial
divorce litigation, this thirty-day time limit was clearly not satisfied. The second
amended divorce decree was entered by the trial court on November 6, 2013, and
finalized all matters incident to the initial divorce proceeding. Nothing in the record
indicates that Father filed a notice of appeal with respect to the November 6, 2013 order
within thirty days after its entry. Indeed, the only notice of appeal filed post-remand was
the notice of appeal filed on April 9, 2014. Although this notice indicated that Father was
appealing the final judgment entered on March 31, 2014, as well as “all interlocutory
orders entered by the Shelby County Chancery Court after [the] case was remanded[,]”
the second amended divorce decree was not interlocutory in nature. The initial divorce
litigation was one action; the litigation initiated by Mother‟s post-remand petition for
contempt was another. In Pandey I, we assumed jurisdiction over the appeal, but we
6
ultimately remanded the matter based on our inability to conduct a meaningful appellate
review of the case. The action that had been appealed, a divorce action, was remanded so
that the trial court could enter an order explaining its previous decisions. As this Court
previously noted in Earls v. Earls, No. M1999-00035-COA-R3-CV, 2001 WL 504905
(Tenn. Ct. App. May 14, 2001):
Once the mandate reinvests the trial court‟s jurisdiction over a case, the
case stands in the same posture it did before the appeal except insofar as the
trial court‟s judgment has been changed or modified by the appellate court.
The appellate court‟s opinion becomes the law of the case, foreclosing and
excluding any complaint, constitutional or otherwise, as to the issues
addressed and decided in the appellate court‟s opinion. Thus, the trial
court does not have the authority to modify or revise the appellate court‟s
opinion, or to expand the proceedings beyond the remand order. The
trial court’s sole responsibility is to carefully comply with directions in
the appellate court’s opinion.
Earls, 2001 WL 504905, at *3 (internal citations omitted) (emphasis added). Within the
context of the civil action that we remanded to the trial court, the trial court was only
authorized to enter orders explaining its actions incident to the divorce.
When Mother filed her petition to modify the parenting schedule and Father filed
his petition to modify child support, these petitions constituted part of a new, independent
civil action, separate from the divorce case that we remanded. So, too, did Mother‟s
petition for civil contempt.6 The fact these matters were still pending at the time the
second amended divorce decree was entered did not prevent the divorce from becoming
final. The post-remand petitions commenced a post-divorce action distinguishable from
the original divorce litigation. Father‟s failure to timely appeal matters related to the
initial divorce proceeding deprives this Court of jurisdiction to entertain Father‟s appeal.7
6
Contempt is a sui generis proceeding and “is considered incidental to the case out of which it arises[.]”
Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 474 (Tenn. 2003) (citations omitted).
7
Although Father‟s April 9, 2014 notice of appeal ostensibly treats the second amended divorce decree as
an interlocutory order, we note that Father‟s counsel previously seemed to acknowledge his obligation to
appeal the second amended divorce decree within thirty days from its entry. On November 6, 2013, the
same day the trial court entered the second amended divorce decree, the trial court discussed potential
dates for a hearing on Mother‟s petition to modify the parenting plan. When asked if December 16, 2013
would be an acceptable date for the hearing, Father‟s counsel responded as follows:
Your Honor, the problem with December 16th, any date past the 5th of December is more
than 30 days from the entry of the order you just entered today, and this case may be on
appeal. So I would like to try to resolve this issue before I have to file a notice of appeal
removing [the case.]
7
Allocation of Parenting Time and Jurisdiction of Proceedings
Father‟s second issue for review asserts that the trial court erred by arbitrarily
reducing his parenting time on a number of occasions. In addition to challenging the trial
court‟s allocation of parenting time incident to its entry of the second amended divorce
decree, Father asserts that the trial court erred in reducing his parenting time under the
March 31, 2014 order. To the extent that Father asserts the trial court erred in allocating
parenting time incident to its entry of the second amended divorce decree, we conclude
that we are without jurisdiction to review his concerns. As already explained, the second
amended divorce decree constituted a final judgment within the context of the initial
divorce proceeding. Father‟s failure to initiate an appeal within thirty days of its entry
operates as a bar to our review of matters adjudicated therein.
With that said, Father did initiate a timely appeal with respect to the trial court‟s
modification of his parenting time in its March 31, 2014 order. In his appellate brief,
Father specifically argues that the trial court erred in reducing his parenting time from
140 days a year to 130 days a year. Incidentally, Father is not the only party to take issue
with the trial court‟s modification of parenting time pursuant to the March 31, 2014
order. Mother also raises the trial court‟s reduction of Father‟s parenting time as an issue
for our review. Of course, Mother‟s challenge is of a different ilk than Father‟s. Rather
than contesting the legitimacy of modifying the allocation of parenting days, Mother
asserts that the trial court should have reduced Father‟s parenting time more than it did.
Before we can consider the propriety of the trial court‟s March 31, 2014
modification order, we must first address the preliminary question of whether the trial
court properly exercised jurisdiction over Mother‟s petition to modify the parenting
schedule. Despite acknowledging that Tennessee was the proper venue to make the
original custody determination for the parties‟ child, Mother contends that the trial court
should not have exercised jurisdiction to modify the parenting plan. According to her,
the trial court should have transferred the case to Arkansas. Having reviewed the record,
we cannot conclude that the trial court erred in declining to transfer the case.
“The concept of subject matter jurisdiction implicates a court‟s power to
adjudicate a particular type of case or controversy.” Staats v. McKinnon, 206 S.W.3d
532, 541˗42 (Tenn. Ct. App. 2006) (citations omitted). In Tennessee, jurisdiction
between our state and other states over child custody proceedings is governed by the
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Button v. Waite,
208 S.W.3d 366, 369 (Tenn. 2006). “Whether a court has jurisdiction is a question of
law over which our review is de novo with no presumption of the correctness of the
ruling of the lower courts.” Id. (citation omitted).
8
Under the UCCJEA, the court that made the initial custody determination “retains
exclusive, continuing jurisdiction over the matter unless certain contingencies are met.”
Iman v. Iman, No. M2012-02388-COA-R3-CV, 2013 WL 7343928, at *4 (Tenn. Ct. App.
Nov. 19, 2013) (citing Tenn. Code Ann. § 36-6-217(a)). The statute specifically provides
as follows:
(a) Except as otherwise provided in § 36-6-219, a court of this state
which has made a child-custody determination consistent with this part has
exclusive, continuing jurisdiction over the determination until:
(1) A court of this state determines that neither the child, nor the child
and one (1) parent, nor the child and a person acting as a parent have a
significant connection with this state and that substantial evidence is no
longer available in this state concerning the child‟s care, protection,
training, and personal relationships; or
(2) A court of this state or a court of another state determines that the
child, the child‟s parents, and any person acting as a parent do not presently
reside in this state.
Tenn. Code Ann. § 36-6-217(a) (2014). As the trial court made the initial custody
determination in this case, it retained exclusive, continuing jurisdiction absent the
occurrence of one of the statutory triggers provided for in Tennessee Code Annotated §
36-6-217(a)(1) and (2). Pursuant to the terms of the UCCJEA, jurisdiction attaches at the
commencement of a proceeding. Iman, 2013 WL 7343928, at *4; Busler v. Lee, No.
M2011-01893-COA-R3-CV, 2012 WL 1799027, at *2 (Tenn. Ct. App. May 17, 2012).
Because the commencement of a proceeding is statutorily defined as the date of the filing
of the first pleading, Tennessee Code Annotated § 36-6-205(5) (2014), we must focus on
whether the trial court retained jurisdiction as of July 1, 2013, the date Mother filed her
petition to modify.
Because Father still resided in Tennessee as of July 1, 2013, Tennessee‟s
exclusive, continuing jurisdiction did not terminate under the criterion set forth in
Tennessee Code Annotated § 36-6-217(a)(2). Whether it terminated under the criterion
set forth in Tennessee Code Annotated § 36-6-217(a)(1) requires us to consider whether
the parties‟ child has a significant connection with the state and whether substantial
evidence is still available in the state concerning his care. On appeal, Mother notes that
the parties‟ child has primarily been living with her in Little Rock since 2011 and argues
that Arkansas is the appropriate forum for adjudication of her modification petition. In
support of her argument, she suggests that this case is analogous to Lee v. Lee, No.
W2003-01053-COA-R3-CV, 2004 WL 3021107 (Tenn. Ct. App. Dec. 29, 2004). In Lee,
this Court considered whether Tennessee had subject matter jurisdiction over a father‟s
petition to modify custody. The parties‟ child in that case was born in Tennessee in 1994,
9
but in 1996, the mother moved with the child to California after the parties‟ marriage
deteriorated. Id. at *1. The child‟s mother filed for divorce in Tennessee the same year
she relocated to California. Id. After a bench trial, the Tennessee trial court ultimately
entered a custody order in favor of the mother. Id. In 2001, the father in Lee filed a
petition to change custody. Id. The trial court determined that it did not have continuing
jurisdiction to hear the father‟s petition, and when the matter came before this Court in
2004, we affirmed. Id. at * 3˗4. In Lee, the child had been living in California since
1996 and still resided there as of the time of the 2004 appeal. Moreover, although the
father exercised visitation with the child, the visitation occurred “primarily in
California.” Id. at *5 (emphasis added).
In Lee, it was clear that the minor child did not retain a significant connection to
Tennessee. As noted, the father‟s visitation with the child occurred primarily in
California, and when we reviewed the record on appeal, we concluded that it did “not
contain any evidence of any current connection between the child and this state other than
that his father lives here.” Id. While the underlying facts in Lee did not support a finding
warranting the exercise of continuing jurisdiction, the facts in this case do. The child in
this case has significant connections with Tennessee. Under the parenting plan in effect
prior to the trial court‟s March 31, 2014 modification order, Father was afforded 140 days
of parenting time every year. In practical terms of the child‟s day-to-day schedule, this
plan awarded Father parenting time every weekend except the last weekend of each
month. Moreover, the record indicates that Father exercised his parenting time with the
child in Tennessee.8 Based on the amount of time the child spent in this state, we cannot
conclude that the child‟s relationship with Tennessee has become so attenuated that the
trial court no longer possessed exclusive, continuing jurisdiction.9
Because we conclude that the trial court properly exercised jurisdiction with
respect to Mother‟s petition to modify, we now review whether it erred in reducing
Father‟s parenting time from 140 days per year to 130 days per year. Under Tennessee
8
We note that in Mother‟s petition to modify, Mother alleges that Father missed five of his parenting days
with the child “[f]or the past calendar year[.]” Although the record does not reflect a specific finding with
respect to this allegation, even if true, the child retained a significant connection to Tennessee. In
addition to the standard day-to-day schedule, Father exercised parenting time with the child over specified
holiday and vacation periods.
9
Although a court retaining continuing, exclusive jurisdiction “may decline to exercise its jurisdiction at
any time if it determines that it is an inconvenient forum[,]” Tennessee Code Annotated § 36-6-222
(2014), Mother did not properly raise this as an issue for our review on appeal. Although Mother
attempted to briefly litigate the inconvenient forum issue under Tennessee Code Annotated § 36-6-222 in
the trial court, she has not raised that statute and issue in her brief. An issue that is not expressly raised in
an appellant‟s statement of the issues may be considered waived. Champion v. CLC of Dyersburg, LLC,
359 S.W.3d 161, 163 (Tenn. Ct. App. 2011) (citing Regions Fin. Corp. v. Marsh USA, Inc., 310 S.W.3d
382, 392 (Tenn. Ct. App. 2009)).
10
law, the modification of an existing parenting arrangement is essentially a two-step
process. In re Jalin M.B., No. E2013-00635-COA-R3-JV, 2014 WL 1052094, at *7
(Tenn. Ct. App. Mar. 19, 2014), no perm. app. filed. First, the trial court must determine
whether a material change in circumstance has occurred. Id. (citing Tenn. Code Ann. §
36-6-101(a)(2)(B), (C)). If the trial court determines a material change in circumstance
has occurred, the trial court must then determine whether the modification of the existing
parenting arrangement is in the minor child‟s best interest. Id. The standard for
determining whether a “material change in circumstance” has occurred depends on
whether a parent is seeking to modify custody or modify the residential parenting
schedule. Id. When a parent seeks to modify the residential parenting schedule, as
Mother has in this case, a lower threshold applies. Id. For purposes of modifying a
residential parenting schedule, a material change of circumstance may include the
following:
[S]ignificant 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) (2014).
Having reviewed the record transmitted to us on appeal, we discern no error in the
trial court‟s decision to modify the parties‟ parenting schedule. Before the parenting
schedule was modified by the trial court‟s March 31, 2014 order, Father generally
exercised his parenting time in Memphis every weekend except the last weekend of each
month.10 Mother sought to modify this arrangement, in part, due to the difficulties the
parties experienced in exchanging the minor child between Little Rock and Memphis.
Significant construction apparently plagued the interstate route between the two cities,
and according to Mother‟s testimony, the accompanying delays often resulted in the
parties‟ child spending substantial amounts of time on the road. She testified that it was
not uncommon for the child to spend “five to six hours in the car on a Friday and around
the same time on a Sunday.” When there was a traffic jam, she claimed the child could
be in the car as long as nine hours. In addition to these traffic concerns, Mother sought to
modify the parenting schedule to provide the child with more weekend days in Little
Rock so he could participate in extracurricular activities with his friends. As she outlined
in her petition to modify, the parties‟ child had aged two years since the time of the
divorce trial, and she wanted him to become more involved in the Little Rock community
on weekends. She initially proposed reducing Father‟s parenting time by approximately
10
Of course, in addition to this basic schedule, Father exercised parenting time over specified holiday and
vacation periods.
11
sixty days a year in order to reduce the amount of travel time and number of exchanges
required for the child, but she later proposed that Father‟s time be reduced by only twenty
days. Although Father certainly did not agree with Mother‟s plan to reduce his parenting
time by up to sixty days a year, we note that he did not mount any opposition to Mother‟s
general desire to restructure the parenting schedule. In fact, when the matter was
discussed briefly for the first time at the November 6, 2013 hearing, Father‟s counsel
stated as follows: “I know it‟s a long drive. I know there‟s a better way to do this
schedule for this child[.]” Father proposed keeping his parenting time at 140 days a year
but allocating the time in such a way that the travel schedule could be reduced. As
opposed to the existing plan which resulted in the child visiting Memphis three to four
weekends a month, Father‟s plan proposed that his parenting time be exercised two
weekends per month. In order to effectuate this modification, Father suggested that he
receive the majority of the parenting time during the child‟s summer vacation.
After Mother expressed concern that Father‟s plan would keep her apart from their
child during the summer, Father indicated that he was willing to give Mother a couple of
weeks of overnight visitation in the summer if she wanted it. When asked by Mother‟s
counsel how this would impact the overall calculation of days in his proposed plan,
Father replied as follows:
There can be various ways to do cooperation. We can keep the same
number of days or even if it is 130 days it doesn‟t matter to me because –
the thing is I am willing to share the child with mother. On the contrary,
mother is trying to cut my time.
As Mother‟s counsel cross-examined Father on the subject further, Father‟s testimony
continued to indicate that he was willing to be flexible for the best interest of the parties‟
child:
Q: Okay. . . . So you‟re saying, if I understand, that you would be willing
to reduce your number of days by 14 days to give mother two weeks of
summer parenting time; is that correct?
A: Yeah. And for instance we can adjust the schedule so that we keep the
higher framework the same at 140 days, but if there is a need to reduce a
few days, that‟s fine, a few days here and there doesn‟t make much
difference.
Q: Okay. Let me try it again, yes or no. Are you testifying that you would
be willing to reduce your number of parenting days from 140 days to 14
days less than that to give mother two more weeks of parenting time?
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A: If I have to I can reduce it, but for instance again the time has been
reduced significantly already, so my preference would be it‟s in the best
interest of the child to keep the same order as it was approved by the Court
before and keep the same allocation of the number of days as much as
possible. But if we have to reduce the number of days, that‟s fine, I don‟t
object to it.
It is no surprise that the trial court felt it necessary to modify the parenting schedule in
light of the parties‟ representations and the difficulties that existed between the two in
exchanging the child between Little Rock and Memphis. In its March 31, 2014 order that
modified the parenting schedule, the trial court found as follows:
Mother has demonstrated a material change in circumstances since the
entry of the Amended Permanent Parenting Plan Order on November 10,
2011, which makes a modification of the existing plan and schedule in the
minor child‟s best interest. The Court specifically finds that the parties
have experienced difficulties with the number of exchanges of the minor
child in Brinkley, Arkansas while Mother resides in Little Rock, Arkansas
and Father resides in Memphis, Tennessee, due to weather conditions and
road construction. The Court specifically finds that the Father‟s parenting
time will be restructured to reduce the number of exchanges with the minor
child without substantially reducing Father‟s parenting time with the minor
child. The Court finds that One Hundred Thirty (130) days of parenting
time, meaning overnights with the minor child and Father, provides Father
with significant parenting time with the minor child and allows fewer
exchanges of the minor child. The Court finds that the Second Amended
Permanent Parenting Plan Order, entered contemporaneously with the entry
of this order, provides a schedule that is in the minor child‟s best interest
because it allows Father to maintain significant and meaningful time with
the minor child while reducing the number of exchanges of the minor child
since the parents live in different states.
Having reviewed the record transmitted to us, we conclude that the evidence does not
preponderate against the trial court‟s determination that a material change in
circumstance occurred. Moreover, the evidence does not preponderate against the trial
court‟s determination that a modification of the parenting plan was in the minor child‟s
best interest. As already indicated, there was no disagreement between the parties that
the parenting schedule should be restructured in order to reduce the number of exchanges
between Little Rock and Memphis. Although each party suggested different ways the
trial court could modify the parenting schedule, both parties actively proposed plans that
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sought to decrease the amount of time the child spent traveling back and forth between
the two cities. Prior to the modification, the child generally traveled to visit Father in
Memphis every weekend except the last weekend of each month. Under the Second
Amended Permanent Parenting Plan Order that was entered in connection with the trial
court‟s March 31, 2014 order, Father was awarded visitation with the child more or less
every other weekend during the school year. This modification is consistent with the trial
court‟s attempt to reduce the number of exchanges required between Little Rock and
Memphis.
In this vein, we reject both parties‟ specific concerns with the modified parenting
schedule. Whereas Father complains that his residential parenting days were decreased
from 140 days a year to 130 days a year, Mother asserts the trial court erred in not
reducing Father‟s days more than it did. As the Tennessee Supreme Court explained in
Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013), “the specific modifications a
trial court adopts to address a material change in circumstances and to serve the best
interests of children are the kinds of details an appellate court should not „tweak‟ absent
an abuse of discretion.” Id. at 706 (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 88
(Tenn. 2001)). “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 standards to the evidence
found in the record.‟” Id. at 693 (quoting Eldridge, 42 S.W.3d at 88). Because we
cannot say that the trial court‟s ruling falls outside the spectrum of reasonableness, we
discern no abuse of discretion on its part.
Restrictions on the Minor Child’s Passport
We next address Father‟s assertion that the trial court erred in denying his request
that the minor child‟s passport be held in a safe deposit box paid for by Father. This
issue, which is related to the initial divorce proceeding, challenges the sufficiency of the
restrictions the trial court placed on the child‟s passport in the second amended divorce
decree. Therein, the trial court held as follows:
[T]he minor child‟s passport is restricted by this Second Amended Final
Decree of Divorce in that neither party can travel with the child
internationally without either the written permission of the other parent or
an order of the Court. . . . The Court does not find any evidence that either
parent has or would violate the orders of the Court and remove the minor
child from the United States in violation of the Court‟s order; therefore the
Court declines to craft any further extraordinary procedures regarding the
possession of the child‟s passport.
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Although Father presently seeks to attack the trial court‟s order for its failure to place
additional restrictions, we conclude that we are without jurisdiction to review the issue.
As noted, the trial court‟s ruling regarding restrictions on the child‟s passport was
memorialized in the second amended divorce decree. That decree finalized all matters
incident to the initial divorce proceeding. Father‟s failure to file a notice of appeal within
thirty days of its entry prevents this Court from reviewing any matters adjudicated
therein.
Contempt
Mother also asserts that the trial court erred in not finding Father to be in willful
contempt of court for his alleged failure to cooperate with Mother in renewing the minor
child‟s passport. The hearing on the petition for contempt occurred on November 6,
2013, and on November 20, 2013, the trial court entered an order declining to find Father
in contempt. In pertinent part, the trial court found as follows:
[T]here was a miscommunication between Mother and Father regarding
cooperating in renewing the minor child‟s passport which was not willful;
however, the Mother‟s request that Father cooperate immediately in
renewing the minor child‟s passport is granted and the Court orders Father
to sign the passport renewal documents immediately and in the presence of
the Court.
A “[c]ivil contempt occurs when a person does not comply with a court order and an
action is brought by a private party to enforce rights under the order that has been
violated.” Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 473 (Tenn. 2003)
(citations omitted). The corresponding punishment “is designed to coerce compliance
with the court‟s order and is imposed at the insistence and for the benefit of the private
party who has suffered a violation of rights.” Id. (citations omitted). “The quantum of
proof needed to find that a person has actually violated a court order is a preponderance
of the evidence.” Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d
346, 356 (Tenn. 2008) (citation omitted).
In this case, we discern no error in the trial court‟s decision to not hold Father in
civil contempt. Notwithstanding the trial court‟s finding that Mother and Father had
miscommunicated regarding the minor child‟s passport, we note that Mother failed to put
on any formal proof concerning the contempt charge at the November 6, 2013, hearing.
Having carefully reviewed the transcript from that proceeding, we observe that Mother‟s
presentation consisted entirely of argument from her counsel. Even assuming, arguendo,
that the representations of Mother‟s counsel demonstrated willful noncompliance on the
part of Father, such a fact is insufficient to hold him in contempt. “Statements of counsel
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are not evidence or a substitute for testimony[.]” Hathaway v. Hathaway, 98 S.W.3d
675, 681 (Tenn. Ct. App. 2002) (citations omitted). Here, it was clear that a dispute
existed between the parties regarding Father‟s level of cooperation in renewing the minor
child‟s passport. Whereas Mother‟s counsel told one story, Father‟s counsel conveyed
another. It would have been inappropriate for the trial court to resolve such a dispute on
the statements of Mother‟s counsel alone. Again, “mere statements of counsel are not
evidence or a substitute for testimony.” Metro. Gov’t of Nashville & Davidson County v.
Shacklett, 554 S.W.2d 601, 605 (Tenn. 1977). We accordingly affirm the trial court on
this issue.11
Attorney’s Fees and Costs
Finally, we address Mother‟s contention that she is entitled to an award of costs
and attorney‟s fees pursuant to Tennessee Code Annotated § 27-1-122, or alternatively, to
an award of attorney‟s fees pursuant to Tennessee Code Annotated § 36-5-103(c). An
award of damages pursuant to Tennessee Code Annotated § 27-1-122 may be made
“against parties whose appeals are frivolous or are brought solely for the purpose of
delay.” Young v. Barrow, 130 S.W.3d 59, 66 (Tenn. Ct. App. 2003) (citation omitted).
The decision to award these damages is a discretionary one. Id. at 66˗67. Damages
pursuant to Tennessee Code Annotated §36-5-103(c) are available as follows:
The plaintiff spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded
may recover from the other spouse reasonable attorney fees incurred in
enforcing any decree for alimony and/or child support, or in regard to any
suit or action concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing, which fees may be fixed
and allowed by the court, before whom such action or proceeding is
11
We note that Mother‟s brief also appears to connect the trial court‟s alleged error regarding the civil
contempt charge to the hearing conducted on February 10, 2014. During that hearing, Mother‟s counsel
stated that the minor child still did not have a passport and alleged that this was a result of Father‟s
withdrawal of consent from a form submitted to the passport authority. In light of the concerns raised, the
trial court orally ruled that Father should produce whatever consent was necessary for the minor child to
receive a passport. This ruling was memorialized in the trial court‟s March 31, 2014 order. Despite the
suggestion in Mother‟s brief that the trial court should have held Father in contempt based on his alleged
withdrawal of consent, we cannot conclude that the trial court erred. As previously discussed, the
contempt charge was adjudicated by way of the trial court‟s November 20, 2013 order. Although Mother
raised her concerns that a passport had still not been obtained as of the date of the February 10, 2014
hearing, we note that Mother did not ask the trial court to hold Father in contempt based on these new
concerns. This fact countenances against any conclusion that the trial court should have held Father in
contempt for conduct subsequent to the November 20, 2013 court order.
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pending, in the discretion of such court.
Tenn. Code Ann. § 36-5-103(c) (2014). As we have previously recognized, this statute
also applies to awards of attorney fees that are incurred on appeal. Pippin v. Pippin, 277
S.W.3d 398, 407 (Tenn. Ct. App. 2008) (citation omitted). Exercising our discretion, we
decline to award Mother attorney‟s fees incurred on appeal pursuant to either cited
statutory basis.
V. Conclusion
Given Father‟s failure to initiate a timely appeal with respect to the second
amended divorce decree, we conclude we are without jurisdiction to review the following
issues adjudicated therein: the trial court‟s designation of Mother as the primary
residential parent, the trial court‟s allocation of parenting time, and the sufficiency of the
trial court‟s restrictions on the minor child‟s passport. With respect to the other issues
raised for our review, we discern no error on the part of the trial court. We conclude that
the trial court retained exclusive, continuing jurisdiction over Mother‟s petition to
modify, and on review of the record, we affirm its order modifying the parties‟ parenting
schedule. We also affirm the trial court‟s refusal to find Father in civil contempt.
Exercising our discretion, we decline to award Mother any attorney‟s fees incurred on
appeal. Costs on appeal are assessed one-half against the Mother, Soumya Pandey, and
one-half against the Father, Manish Shrivastava, and his surety, for which execution may
issue if necessary. This matter is remanded to the trial court for enforcement of the
judgment, the collection of costs, and further proceedings as may be necessary and
consistent with this Opinion.
_________________________________
BRANDON O. GIBSON, JUDGE
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