Elizabeth Leanne Hudson v. Larson Douglas Hudson ( 2009 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 10, 2009 Session
ELIZABETH LEANNE HUDSON v. LARSON DOUGLAS HUDSON
Appeal from the Eighth Circuit Court for Davidson County
No. 06D-533 Carol Soloman, Judge
No. M2008-01143-COA-R3-CV - Filed November 3, 2009
This case involves an appeal concerning the relocation of Elizabeth Leanne Hudson (“Mother”) and
her two minor children from Nashville, Tennessee, to Hopkinsville, Kentucky. Larson Douglas
Hudson (“Father”) opposed the relocation. After a three day bench trial, the trial court granted
Mother’s request to relocate after finding, pursuant to Tenn. Code Ann. § 36-6-108, that the
relocation was reasonable and not vindictive. The trial court also awarded Mother attorney’s fees.
For the following reasons, we affirm the holding of the trial court regarding the relocation but reverse
concerning the attorney’s fees.1
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part, Reversed in Part; Case Remanded
JOHN W. MCCLARTY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.
joined. D. MICHAEL SWINEY , J. filed a dissenting opinion.
Helen S. Rogers and Lawrence J. Kamm, Nashville, Tennessee, for the Appellant, Larson Douglas
Hudson.
Phillip Robinson and Philip E. Smith, Nashville, Tennessee, for the Appellee, Elizabeth Leanne
Hudson.
1
Our first opinion in this case originally was filed on September 29, 2009. Father thereafter filed a petition
to rehear. The petition to rehear contained a meritorious assertion. Accordingly, we granted the petition, withdrew our
original Opinion, and now submit this substitute opinion. The dissenting opinion is also withdrawn, and a new
dissenting opinion will be submitted.
OPINION
I.
Factual Background
The Divorce Settlement
Mother and Father were divorced on January 29, 2007, on the grounds of irreconcilable
differences. The parties have two minor children, Sara (d.o.b. 9/15/99) and Emily (d.o.b. 4/24/2001)
(“children”). Per the custody agreement, Father saw the children five out of every fourteen days,
four of which he had 24-hour custody. He had custody every other Wednesday evening and every
other Wednesday evening through Sunday.
Per a mediated divorce settlement, Mother received $38,400 in child support per year; the
$600,000 home (not yet fully paid for); $1,033,686 in proceeds from the recent sale of Father’s
company, Hearing Planet, Inc. (“Company”); alimony in the amount of $130,268; and $3000 for a
country club membership. Father agreed to pay around $33,000 per year for the children to attend
a prestigious private school in Nashville. Mother also was to receive half of any “earn-out”
payments (“earn-outs”) – additional payments contingent on the post-sale performance of the
Company.
The earn-out agreement set aside a potential $8,000,000 that would be paid out to several
Company executives over a three-year period based upon the attainment of specified goals. The
earn-outs were used by the buyer (“Buyer”) of the Company as an incentive to keep the experienced
Father on as CEO for at least three years. However, the earn-outs were not guaranteed because the
performance criteria were designed to become more difficult to achieve each year. In fact, the
company barely met the criteria the first year; the standard was met only after Father forfeited his
$108,000 yearly bonus in return for the more lucrative earn-out. As a result, Mother received an
additional $625,000 in earn-outs for the fiscal year April 1, 2006 - March 31, 2007.
The divorce was contentious; the acrimony between Father and Mother continued after the
divorce and eventually spilled over into the relocation dispute. For instance, on June 4, 2007, Father
filed a Petition for Contempt against Mother for failing to remove his name from the mortgage as
required under a previous agreement. Father also complained that Mother interfered with his custody
time on one occasion and impeded his ability to contact the children by phone. Additionally, Father
alleged, without any concrete proof, that Mother was having overnight male guests while the
children were present. On August 13, 2007, Father amended the Petition for Contempt to include
a charge that Mother failed to pay for the expenses for the copying of certain video tapes.
2
As a result of Father’s Petition for Contempt, Mother payed off the mortgage by borrowing
against $300,000 of her investment portfolio. Subsequently, Father voluntarily withdrew his Petition
for Contempt. Thus, as a result of the divorce, Mother owned the house free and clear and still had
a net worth of approximately $1,570,000, not including the $300,000 debt. If invested
conservatively, it was estimated that she would receive at least $50,000 per year in interest. Added
to the $38,400 she receives for child support, Mother will make around $90,000 per year without
working.
Father’s resignation and the Petition to Relocate
Around the end of the first earn-out period, March 2007, Father resigned from the Company,
although he remained employed there in a limited capacity until June 30, 2007. Father did not
immediately disclose his resignation to Mother. Father insisted the reason he did not immediately
tell her was fear of her reaction because his resignation foreclosed any possibility of further earn-
outs. Instead, Mother found out about the resignation from other sources sometime in April. On
April 25, 2007, Mother called Father to confirm the resignation. That same day, she called her
attorneys and began discussing relocation plans.
On June 21, 2007 - about four and a half months after the divorce was finalized - Mother
filed a Petition to Relocate (“Petition”). The Petition contained the following reasons for the
relocation:
1. Mother can no longer afford to stay in her home at 3600 Bowlingate Lane, Nashville,
Tennessee, and has been forced to place this property for sale.
2. Mother must secure employment, and needs a flexible work schedule not available
to her in the vicinity of Nashville, Tennessee.
3. The cost of living in Hopkinsville, Kentucky, is less than the cost of living in
Nashville, Tennessee.
4. In Hopkinsville, Kentucky, Mother will have family members as an additional
support system that is not available to her in Nashville, Tennessee.
5. Mother feels there is such hostility toward her in the community where she and the
children reside that it is advisable for her and the children to relocate.
Father opposed the relocation and submitted Interrogatories and Document Requests on
August 6, 2007, concerning the Petition. On September 5, 2007, Mother filed a Motion for a
Protective Order based on what she considered to be inappropriate Interrogatory and Document
Requests. The trial court granted the Motion on October 4, 2007, and, as a result, Father was only
given access to Mother’s sworn financial statement.
During a deposition on March 6, 2008, Father produced an email that purported to contradict
some of Mother’s deposition testimony regarding the quality of her relationship with her mother.
Father obtained the email by accessing Mother’s email account without her knowledge. He had
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previously set up the account, and Mother had failed to reset the password after the divorce. On
March 17, 2008, the trial court granted Mother a Restraining Order against Father from accessing
any of Mother’s electronic communications. The Order also prevented Father from using the email
at trial. This court declined to hear Father’s interlocutory appeal on the matter.
Trial Proceedings
The relocation trial was held on April 14 - 15, 2008. The trial court spent an inordinate
amount of time hearing testimony regarding Father’s resignation from the Company, despite its
tangential relationship to the reasons for relocation stated in the Petition. In short, Father insisted
his departure was purely a business decision based on his dissatisfaction with Buyer. Although at
trial he admitted that he used the divorce as the excuse to end the business relationship, he alleged
that he only did so to avoid “burning bridges” with Buyer. In other words, Father thought it was
better to tell Buyer that he was leaving to get a “fresh start” as a result of the divorce rather than tell
Buyer he was leaving because of Buyer’s behavior. Mother, on the other hand, contended Father left
the business only to ensure that she would not receive any more earn-outs.
Mother testified that she is a trained nurse. Although she did not work full-time during the
marriage, she would work one shift every quarter in order to keep her license current. She received
these quarterly appointments through a temporary health care staffing agency named “All About
Staffing.” Mother admitted that she did not start looking for a job in Hopkinsville until after she
filed the Petition. She found a job in Hopkinsville as a “Home Health Nurse” that had very flexible
hours, allowing her to only work during the hours when the children were in school. Significantly,
Mother admits that she did not look for any nursing jobs in Nashville. When questioned about why
she did not look in Nashville, she responded that, based on her previous experience as a nurse in
Nashville, she would not be able to find a job that met her hourly requirements.
Father responded to Mother’s testimony by calling two expert witnesses, both of whom
claimed that a nurse with Mother’s skills could have almost certainly found a job in Nashville to fit
her needs. Edwina Temple, the Human Resources Director for “All About Staffing,” testified there
was a “very high probability” of finding shifts for Mother on the days when the children were in
Father’s custody. Michelle Jarrett, a regional manager for a nursing staffing company in Nashville,
testified that Mother’s preferred hours from 8:00 a.m. to 2:00 p.m. existed in doctor’s offices, clinics,
home health, hospice, and outpatient surgery centers, and that such jobs would pay more than their
counterparts in Hopkinsville. She also claimed that these jobs would offer Mother career
advancement, while the job in Hopkinsville would not.
Both the trial and previous deposition testimony of Mother’s mother, Wanda Wade,
established that the mother, grandmother, aunt, and uncle live in Hopkinsville. Although not raised
at trial, Father points out in his brief that Ms. Wade stated in her deposition that she did not plan on
“being a baby sitter” for the children. Ms.Wade also is the primary caretaker of the grandmother,
who has dementia. Ms. Wade also noted in her deposition that the aunt and uncle provide little help
with the grandmother because of their busy jobs.
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As a result of the divorce, Mother had to re-apply to the local country club where she and her
husband had been members. Mother’s application was tabled by the application committee, and the
trial court heard testimony from Father about his involvement in the decision. Although Father
admitted to being friends with those on the committee, he claimed he had nothing to do with their
decision. Additionally, on the advice of counsel, Father refused to write a letter supporting Mother’s
admission, as he did not want to become involved in the situation. However, Father admitted that
he knew that membership in the country club was important to Mother and that it was embarrassing
for her to be denied admission. Father did eventually write a short note in support of Mother’s
membership, although the trial court found it to be “too little, too late.”
In addition to the country club incident, Mother testified that she “didn’t feel comfortable”
in the subdivision where she lived because of her neighbor’s activities. Mother claimed a neighbor
told Father that one of the children kept pulling the “For Sale” sign out of the yard. One of the
neighbors also told Father about a strange car parked outside of Mother’s house overnight. That
information was used as a basis for Father’s assertion in the Petition for Contempt that Mother was
having male over-night guests. Father admitted that he formerly jogged with one of Mother’s
neighbors who occasionally provided unsolicited gossip about Mother. However, Father contended
that he would not perpetuate such conversations.
The trial court also heard testimony concerning the communication problems between Father
and Mother during the period following the divorce. For instance, Father complained that he and
his parents had been treated rudely by Mother at a birthday party for one of the children. On the
other hand, Mother complained about Father’s request for separate parent-teacher conferences.
During the divorce trial, Dr. David McMillan, Father’s therapist, testified that Father understood
that his hyper-controlling nature was a significant reason why the marriage failed. Additionally, Dr.
McMillan opined that part of the problem post-divorce was that Mother and Father were maintaining
too much contact. In other words, neither party was doing particularly well at transitioning from the
status of marriage to divorce. Dr. McMillan also testified that Father was making good progress in
changing his controlling behavior and that Father loved his children very much.
The trial court heard extensive testimony about the differences between the children’s
Nashville school, the Ensworth School (“Ensworth”), and the Hopkinsville school, University
Heights Academy (“UHA”). Although both schools are private, it is undisputed that UHA is much
smaller and has significantly fewer resources than Ensworth. For example, at UHA, Spanish is the
only foreign language offered and it is only taught three days a week; there is no musical instrument
instruction; and the starting salary for teachers is only $21,000 per year. Meanwhile, Ensworth is
nationally accredited offering several foreign languages and a first class library. At trial, Father
offered the testimony of Dr. Susan Smartt, who works at the National Comprehensive Center for
Teacher Quality at Vanderbilt University. Dr. Smartt testified that Ensworth was an “exemplary
school when it comes to independent schools, not only in Nashville but in the Southeast. . . .” She
also opined that removing the children from Ensworth was a “dramatic decision” that would make
a “big difference” in their lives.
5
The Trial Court’s Rulings
The trial court held that there was a reasonable purpose for Mother’s relocation based on 1)
Father’s premature resignation from the Company, 2) Mother’s difficulty in gaining membership in
the country club, 3) Father’s improper and controlling behavior towards Mother, 4) the existence of
support from her extended family, and 5) the relative closeness of Hopkinsville to Nashville.
Specifically, the trial court’s Opinion and Order stated that:
• There is a legitimate purpose for wife to move home to her family where she
can work and have some assistance with the childcare, coupled with Father’s
behavior and his desire to control everyone and everything;
• There is nothing negative about the move to Hopkinsville except that the
children will not get to see their Father quite as much as they do now;
• The lower cost of living in Hopkinsville will assist Mother with her loss of
income by Father’s quitting his employment and allows Mother freedom from
the harassment and daily intrusion of the Father.
Furthermore, the trial court held that Mother’s purpose for moving to Hopkinsville was not
vindictive. The court found that the relocation would be in the best interest of the children, even
though the relocation statute does not require such a finding once it is found that the relocation has
a reasonable purpose, does not threaten the children, and is not vindictive. Additionally, Mother
was granted attorney fees. Father filed a timely appeal.
II.
Issues for Review
1. Did the trial court err in finding that Mother’s relocation from
Nashville, Tennessee, to Hopkinsville, Kentucky, served a reasonable
purpose?
2. Did the trial court err in not finding that Mother sought relocation for
a vindictive purpose?
3. Did the trial court err in finding that relocation was in the children’s
best interest.
4. Did the trial court err in granting attorney’s fees to Mother.
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III.
Standard of Review and the Relocation Statute
The standard of review of a trial court’s findings of fact is de novo and we presume that the
findings of fact of the trial court are correct unless the preponderance of the evidence is otherwise.
Tenn. R. App. P. 13(d); Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn.
Ct. App. 2001). For the evidence to preponderate against a trial court’s finding of fact, it must
support another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs.,
40 S.W.3d 66, 71 (Tenn. Ct. App. 2000). Where the trial court does not make findings of fact, there
is no presumption of correctness and “we must conduct our own independent review of the record
to determine where the preponderance of the evidence lies.” Brooks v. Brooks, 992 S.W.2d 403, 405
(Tenn. 1999). We also give great weight to a trial court’s determinations of the credibility of
witnesses. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997); B&G Constr., Inc. v.
Polk, 37 S.W.3d 462, 465 (Tenn. Ct. App. 2000). Issues of law are reviewed de novo with no
presumption of correctness. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
The relocation statute, Tenn. Code Ann. § 36-6-108 (Supp. 2008), governs this action. The
statute creates a mechanism for determining whether a parent who has custody of a child may relocate
outside the state or more than 100 miles from the other parent within Tennessee. Because Father
concedes that he does not spend substantially equal time with the children, Tenn. Code Ann. § 36-6-
108(d)(1) applies in this action. The Code provides:
The parent spending the greater amount of time with the child shall be permitted to
relocate with the child unless the court finds:
(A) The relocation does not have a reasonable purpose;
(B) The relocation would pose a threat of specific and serious
harm to the child that outweighs the threat of harm to the child
of a change of custody; or
(C) The parent’s motive for relocating with the child is vindictive
in that it is intended to defeat or deter visitation rights of the
non-custodial parent or the parent spending less time with the
child.
Id.
Tenn. Code Ann. § 36-6-108(e) goes on to state that, “[i]f the court finds one (1) or more of
the grounds designated in subsection (d), the court shall determine whether or not to permit relocation
of the child based on the best interest of the child.”
Although the statute does not provide a definition of “reasonable purpose,” it does define
“specific and serious harm.” Tenn. Code Ann. § 36-6-108(d)(2). As such, the parties agree that while
subsection (A) and (C) are in issue, subsection (B) is not.
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Father also argues that Mother’s relocation was done for a vindictive purpose. “A parent’s
motive for relocating is vindictive if it is intended to defeat or deter the visitation rights of the other
parent.” See Tenn. Code Ann. §36-6-108(d)(1)(C); Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct.
App. 1999).
The party opposing the relocation - in this case Father - bears the burden of proving
unreasonableness or vindictiveness. Clark v. Clark, No. M2002-03071-COA-R3-CV, 2003 WL
23094000, at *3 (Tenn. Ct. App. M.S., Dec. 30, 2003).
IV.
Discussion
Contentions of the Parties
Trial Court Errors
Father emphatically asserts that the trial court made numerous errors during trial and in its
Opinion and Order.
First, Father argues that the trial court incorrectly focused on whether Father quit his job to
ensure that Mother would not receive any more earn-outs. Father asserts that even if Father quit his
job in bad faith (which he claims he did not), it has nothing to do with the relocation issue; instead,
it is a breach of contract issue regarding the marital dissolution agreement that should be litigated in
another forum.
Second, Father takes issue with the trial court’s finding that he was responsible for the
Mother’s rejection at the country club. The record, according to Father, contains no proof that Father
did anything other than take his lawyer’s advice to remain neutral.
Third, Father argues that the trial court put too much emphasis on Father’s alleged behavior
towards Mother, when in fact none of the grounds listed in the Petition concern Father’s interactions
with Mother.
As an example of the above contentions, Father focuses on findings from the trial court like
“the lower cost of living in Hopkinsville will assist Mother with her loss of income by Father’s
quitting his employment and allows Mother freedom from the harassment and daily intrusion of the
Father.” Father argues that Mother had no “loss of income” because the earn-out payments were not
guaranteed in the first place; if Mother had wanted more guaranteed income she should have
bargained for it during the divorce proceedings. Father also reiterates that Mother’s Petition contains
no grounds regarding the purported “harassment and daily intrusions of Father.”
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Reasonable Purpose
Father argues that the facts in the record, when applied to the reasons stated in the Petition,
preponderate against the trial court’s finding that the Mother’s relocation serves a reasonable purpose.
Father points out that Mother’s assertion that she could no longer afford to stay in her home is
factually incorrect; even if she was to pay off the house completely, she would still have a net worth
of at least $1.3 million.
Father also takes issue with Mother’s contention that she needs to move for employment
reasons. First, Father notes that Mother does not have to work at all since her combined alimony and
investments should yield around $90,000 per year. Second, Father points out Mother made no
attempt to find work in Nashville. Furthermore, the testimony at trial shows that she could have
found a better paying job with flexible hours and opportunities for career advancement in Nashville.
Father argues that while this court has consistently held that an increase in salary or career
advancement can be a factual predicate to constitute a reasonable purpose for relocation, the same
cannot be said when similar employment is available without relocation. Father supports this
contention by analogizing to Robinson v. Robinson, No. M2003-022089-COA-R3-CV, 2005 WL
1541861, at *7 (Tenn. Ct. App. M.S., June 30, 2005), where the court held there was no reasonable
purpose for relocating to attend a school when an equivalent education was available without
relocation.
Father contends that Mother’s cost of living argument is contrary to established case law.
Father cites to Slayton v. Ray, No. M2004-01809-COA-R3-CV, 2005 WL 2756076, at *3 (Tenn. Ct.
App. M.S., Oct. 24, 2005), for the proposition that cost of living does not by itself constitute a
reasonable purpose, but is instead only a factor that must be taken into consideration along with other
economic components. For instance, this Court has taken cost of living into consideration where
relocation would have resulted in a only a slight increase in pay. See, e.g., Roberts v. Roberts, No.
E2005-01175-COA-R3-CV, 2005 WL 2860199, at *6. (Tenn. Ct. App. E.S., Oct. 31, 2005).
However, Father notes he was unable to find any cases where a decrease in cost of living that offset
a decrease in pay was found to be a reasonable purpose. Thus, Father argues that Mother has no other
economic factors to couple with the lower cost of living that would turn “cost of living” into a
reasonable purpose.
Mother, on the other hand, states that if she stays in Nashville, she would have to invade the
principal of her assets to continue to enjoy the same standard of living that she had during the
marriage. Father points out in his reply brief that Mother is not entitled to the same standard of living
at this stage; that was a matter for the previous divorce mediation and is completely separate from the
relocation question.
Regarding the presence of Mother’s family members in Hopkinsville, Father argues that,
contrary to Mother’s contention, relocation will cause a net loss of support for the children. Father
questions the effectiveness of a support system that consists of a grandmother who has dementia, a
mother who is busy caring for the grandmother, and an aunt and uncle who are so busy they provide
9
little help in caring for the grandmother. Father also suggests that, based on the deposition testimony
of Ms. Wade that she will not be a “baby sitter,” the strength of Mother’s relationship with her
mother is questionable.2 Father then points out that, before the relocation, Father had provided a
support system which has now been significantly diminished due to the move.
Father also cites to Rogers v. Rogers, No. W2006-00858-COA-R3-CV, 2007 WL 1946617,
at *11 (Tenn. Ct. App. W.S., July 3, 2007), in which this court upheld the trial court’s finding that
the custodial mother’s relocation from Memphis to South Carolina was not reasonable where the only
reason for the move was to be with her extended family. In that case, the mother, who lived in
Memphis, had extended family who also lived there. The members of the extended family were in
the early stages of planning to move to Spartanburg, South Carolina, and the mother wished to
accompany them. Id. at *3. Because of the distance of the move and the speculative nature of
whether the extended family would even follow through with their plan to move, the trial court found
the mother’s relocation request to be unreasonable. Id. at *11. In reaching our conclusion, this court
noted that “the desire of a primary residential parent to move to be near his or her extended family
can form the basis for a reasonable purpose, particularly when this reason is augmented by additional
considerations.” Id.
Mother responds that Father mis-characterizes the Mother’s relationship with her mother.
Furthermore, Mother testified that she thought the Hopkinsville community was “tight knit” and that
it would provide a safe, supportive environment for the children. Mother notes that this court and the
Tennessee Supreme Court have on several occasions held that non-economic reasons can form the
basis of a reasonable purpose for relocation. See, e.g., Caudill, 21 S.W.3d at 212 (holding that having
“many friends and relatives” in the relocation area constitutes a reasonable purpose for relocation).
In response to Father’s reliance on Rogers, Mother argues that the trial court considered Father’s
inappropriate behavior towards Mother to augment Mother’s desire to be closer to her family.
Regarding Mother’s final reason for relocation, Father disagrees with Mother’s contention that
the community is so hostile that it is advisable for her and the children to relocate. Father argues that
the incidences Mother complains of hardly rise to the level of hostility; instead, they are simply social
consequences of divorce. Father then cites to O’Bannon v. O’Bannon, No. E2002-02553-COA-R3-
CV, 2003 WL 22734673, at *8 (Tenn. Ct. App. E.S., Nov. 20, 2003) which notes, inter alia, that a
parent’s desire to move to escape the social consequences of a divorce does not constitute a
reasonable purpose. Mother contends that Father is downplaying the embarrassment that the country
club incident and neighborhood gossip has caused her.
Vindictiveness
Father contends that Mother wished to move for a vindictive purpose. While Father admits
2
Father also makes this assertion based on the email he took from Mother’s email account without her
knowledge or permission. The trial court refused to consider this evidence, and we agree with the trial
court’s reasoning. Thus, we refuse to credit the information contained in this email.
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there is no overt admission of vindictiveness in the record, Father argues the “totality of the
circumstances” reveals Mother’s bad faith motives. For instance, Father notes the suspicious timing
of Mother’s decision to relocate. Father also argues that Mother’s stated purposes for moving are so
unreasonable that her real motivation must be revenge.
Mother responds by asserting that the new parenting schedule she proposed had substantially
the same amount of visitation time as the old schedule. Thus, she was not defeating the visitation
rights of Father. Since, per Caudill, relocation is vindictive only if it is intended to defeat or deter the
visitation rights of the other parent, Mother argues she was not being vindictive as a matter of law.
Mother contends that the trial court’s rejection of Mother’s proposed schedule is immaterial; Father,
on the other hand, replies that Mother knew her proposed schedule would be rejected and that she
only presented it to satisfy Caudill’s requirements.
Mother also argues that the trial judge credited Mother’s testimony that she had no vindictive
purpose, and that this court must give deference to those findings.
Best Interest of the Children
Father contends that it was error for the trial court to make the best interest finding because
once a reasonable purpose is established, the statute demands a halt to any further inquiry. Father also
is emphatic that the relocation could not possibly be in the best interests of the children because:
• the children grew up in Nashville;
• they have immediate access to both parents in Nashville;
• they go to a superior school in Nashville; and
• they will now have to spend three hours on the road every other weekend
when visiting Father.
Attorney’s Fees
Father contends that the trial court never made a finding of the reasonableness of the attorney
fees, nor did it give Father an opportunity to question them. Mother’s brief was silent on this issue.
V.
Analysis
Reasonable purpose
Although this court affirms the ultimate conclusion of the trial court, we nevertheless find
merit in several of Father’s arguments. We concur that the motivations regarding Father’s resignation
are largely immaterial to the relocation case. Per the marital dissolution agreement, the earn-out
payments were never guaranteed. Furthermore, the evidence strongly suggests that even if Father had
stayed on, the Company likely would not have met the earn-out thresholds during the second and third
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year. Thus, it is inappropriate to conclude that Mother “lost income” because of Father’s resignation.
Although the timing of the resignation and the events surrounding it do tangentially touch upon the
strained relationship of Mother and Father, we do not think that the issue warranted the depth of
inquiry that was given to it.
We also agree with Father that the economic reasons for relocation presented by Mother are
insufficient. It is undisputed that Mother never looked for employment in Nashville. This fact alone
is fatal to Mother’s contention that she could only find suitable employment in Hopkinsville. Because
of this, Father is correct in his assertion that there are no other economic factors to couple with the
lower cost of living to constitute a “reasonable purpose.”
We also concur with Father that the country club incident and the neighborhood gossip are
social consequences of divorce that do not rise to the level of a “hostile environment,” especially
considering their temporal proximity to the actual divorce. The country club incident certainly
disappointed Mother, and the neighborhood gossip may have made her uncomfortable. However, per
O’Bannon, those incidences alone cannot be considered a reasonable basis for relocation.
Despite our agreement with Father on the above issues, we must nevertheless conclude that
the trial court was correct in its ultimate decision to allow the relocation based upon familial support
in Hopkinsville. As Mother correctly points out, Caudill announces that the presence of family
members in another town can be a reasonable purpose for relocation. Furthermore, we find Father’s
reliance on Rogers to be misplaced. The relocation in that case is easily distinguishable from the one
at bar. In Rogers, the mother was attempting to move from Memphis to South Carolina based on the
speculative plans of her extended family members. In this case, Mother is only moving about sixty
60 miles to be near her Mother and other relatives who have lived in Hopkinsville for some time.
It is also important to keep in mind that Tenn. Code Ann. § 36-6-108 is only applied when a
custodial parent relocates outside the state or 100 miles from the other parent within Tennessee.
Thus, had Mother moved the same 60 mile distance in-state, the statute would not even be applicable.
While this court is certainly not implying that any move out-of-state is reasonable if it is less than
100 miles, the relatively close distance between Nashville and Hopkinsville must be taken into
consideration. The trial court found that the short distance between the two cities militated towards
the reasonableness of the relocation, and we agree.
Father complains that it was improper for the trial court to put so much emphasis on his
controlling nature and poor behavior towards Mother because such a ground was not contained in the
original Petition. We agree that, in the absence of such a ground in the Petition, those interactions
by themselves do not constitute a reasonable purpose for relocation. However, we find that those past
interactions have had a direct bearing on the amount of support Mother believes she could receive
from Father in Nashville. Although Father makes a compelling case that the relocation will in fact
cause a net loss of support because of Father’s absence, it is clear from Father’s argument that he is
thinking in terms of pure logistical support. At the same time, the “support” Mother refers to
undoubtably has an emotional component. While we applaud Father’s recent efforts to see a therapist
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to change his controlling behavior, his past interactions with Mother have clearly created an
atmosphere of hostility and distrust between the parties that cannot be undone in the short term. Thus,
it is not surprising that Mother believes the emotional support she would receive in Hopkinsville
would be greater than any support Father could provide in Nashville. Furthermore, the trial court
credited Mother’s testimony that she believed she would receive more support in Hopkinsville, and
this court must give “great weight” to that determination. In short, we do not believe the record
preponderates against the trial court’s finding that “it is reasonable for Mother to relocate to
Hopkinsville, where Mother will have family members as an additional support system that is not
available to her in Nashville.”
Vindictiveness
We find that the record does not preponderate against the trial court’s findings that Mother’s
relocation was not vindictive. The trial court heard Mother testify that the purpose of the relocation
was not vindictive and it found her testimony credible. Although Mother’s timing concerning
Father’s resignation and her decision to relocate is slightly suspicious, it is not enough to give rise to
an inference of vindictiveness or preponderate against the trial court’s findings. Furthermore, we find
Father’s contention that Mother’s proposed parenting plan was nothing more than a ruse to
circumscribe Caudill is a stretch at best and completely without merit at worst.
Best Interest of the Children
Tenn. Code Ann. § 36-6-108(d)(1) is clear that if a relocation has a reasonable purpose, does
not threaten the child, and is not vindictive, then the parent shall be allowed to move. Having
determined that Mother has satisfied all three of these requirements, there is no reason for this court
to make a best interest inquiry because it will not affect the outcome of this appeal.
Attorney’s Fees
Father contends that the trial court abused its discretion by awarding attorney’s fees to Mother.
Father argues that Mother has substantial assets to pay her legal fees, and the trial court did not afford
him an opportunity to be heard on this issue.
Tenn. Code Ann. § 36-6-108(i) provides the trial court with the discretion to award attorney’s
fees in relocation cases. It permits either parent to “recover reasonable attorney fees and other
litigation expenses from the other parent[.]” Id. Pursuant to the statute, we review this issue raised
on appeal for abuse of discretion. Id.
Discussing the abuse of discretion standard in Eldridge v. Eldridge, the Tennessee Supreme
Court stated that an appellate court should not disturb a trial court’s ruling when “reasonable minds
can disagree as to [the] propriety of the decision made.” Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001). The Eldridge court further explained:
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A trial court abuses its discretion only when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that
causes an injustice to the party complaining.” The abuse of discretion
standard does not permit the appellate court to substitute its judgment for that
of the trial court.
Id. (citations omitted).
Thus, a trial court’s discretionary decision ordinarily will stand as long as reasonable judicial
minds can differ regarding its soundness. Overstreet v. Shoney’s Inc., 4 S.W.3d 694, 709 (Tenn. Ct.
App. 1999). As a result, when we review a trial court’s discretionary decision, we “begin with the
presumption that the decision is correct and should review the evidence in the light most favorable
to the decision.” Id.
In this case, we find that the trial court abused its discretion in its award of attorney’s fees to
Mother. While it is within the trial court’s discretion to award attorney’s fees, it appears
unreasonable, unfair, and against logic in this case based upon the totality of the circumstances.
Mother has the financial means to pay her own attorney’s fees. When awarding attorney’s fees to
Mother, the trial court did not take into account Mother’s financial position. Mother has a net worth
that totals in excess of one million dollars coupled with her investment earnings and wages from her
new job in Hopkinsville, Kentucky, all of which provides Mother with the means to afford the legal
fees associated with a matter she initiated.
Although Mother presented sufficient proof to justify the relocation petition, the proof also
reveals that the relocation favored Mother’s interests more than the children’s interests. For example,
the Petition to Relocate states the following:
(1) Mother can no longer afford to reside in the marital residence . . . .
(2) Mother has located employment in the State of Kentucky that
offered her work with the greater flexibility she needs . . . .
(3) Mother will have her family close by as additional support system.
(4) [Mother] feels that there is such hostility toward her in the
community where she and her children resided that it is advisable for
her . . . to relocate.
Additionally, it appears from this court’s review of the record that the trial court’s order
directing Father to pay Mother’s attorney’s fees is punitive. There are numerous references
expressing disapproval of Father’s conduct and actions throughout the proceedings. The trial court’s
Opinion and Order contained the following remarks:
(1) [Father] had a severe issue with the need to be in control . . . .
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(2) Father told the Mother, you can kiss your country club goodbye . . . .
(3) Referring to Father’s note to the country club, “this was too little,
too late.”
(4) He is the source of conflict in this situation.
(5) Living in Hopkinsville will assist Mother with her loss of income by
Father’s quitting his employment and allow the Mother freedom from
harassment and daily intrusion of Father . . . .
Instead of focusing on Mother’s relocation and its purpose, the trial court persisted in making
irrelevant observations about Father’s conduct and actions. We found nothing in the record to support
awarding attorney’s fees to Mother in light of her financial means. Further, the relocation favored
Mother’s interests more than the children’s interests, and it seems that the trial court’s disapproval of
Father influenced its decision to award attorney’s fees.
As a result, this court finds that the award of attorney’s fees in this case is unreasonable, unfair,
and against logic. We further find that it causes an injustice to Father based upon the totality of the
circumstances, and therefore, it is an abuse of the trial court’s discretion to make such an award. We
thus reverse the trial court’s award of attorney’s fees to Mother.
VI.
Conclusion
For the reasons discussed above, we affirm the trial court’s ruling allowing Mother to relocate
from Nashville, Tennessee, to Hopkinsville, Kentucky, in that this relocation serves a reasonable
purpose and is not for a vindictive purpose. We reverse the trial court’s award of attorney’s fees based
upon an abuse of discretion. Therefore, the judgment of the trial court is affirmed in part and reversed
in part. Costs on appeal are taxed equally to both parties. The case is remanded to the trial court for
payment of costs below.
_____________________________
JOHN W. McCLARTY, JUDGE
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