Christa Goddard v. Thomas E. Goddard ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 13, 2011
CHRISTA GODDARD v. THOMAS E. GODDARD
Appeal from the Circuit Court for Hamilton County
No. 07D1512 W. Neil Thomas, III, Judge
No. E2011-00777-COA-R3-CV-FEBRUARY 24, 2012
This is a post-divorce case. Thomas E. Goddard (“Father”) appeals the trial court’s order
granting Christa Goddard (“Mother”) permission to move to Florida with the parties’ minor
child, Emma Elizabeth (DOB: July 1, 2004)(“the Child”). Based upon finding that Mother
was spending the greater amount of time with the Child, the court applied Tenn. Code Ann.
§ 36-6-108(d)(1)(2010). The court found that the proposed relocation (1) had a reasonable
purpose, (2) posed no threat of specific and serious harm to the Child, and (3) was not
motivated by a vindictive effort to defeat Father’s parenting rights. Father appeals. We
affirm .
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Lisa Z. Bowman, Chattanooga, Tennessee, for the appellant, Thomas E. Goddard.
J. Christopher Clem, Chattanooga, Tennessee, for the appellee, Christa Goddard.
OPINION
I.
The parties were divorced in April 2009 following a twelve-year marriage. The
agreed order of divorce incorporated the parties’ temporary parenting plan addressing the
custody and care of the Child who was nearly five at the time. The plan expressly provided
that “[b]oth parties recognize that mother will be seeking permission to move at a later date”;
the divorce judgment, however, stated that the parties had not reached an agreement “on the
issue of whether [Mother] shall be allowed to move out of state.” Accordingly, the matter
was reserved for a future hearing.
The court-approved permanent parenting plan was adopted by it in August 2009. It
largely mirrors the temporary plan. It did not expressly designate a primary residential
parent, but it did provide that Mother was responsible for the day-to-day care of the Child
except when the Child was with Father. Father was granted standard parenting time every
other weekend from 7:00 a.m. Friday until 6:00 p.m. Sunday and overnight time with the
Child every week from 3:00 p.m. Wednesday until 10:00 a.m. Thursday. Father was also
allocated parenting time Monday through Thursday from 7:00 a.m. until 10:00 a.m. The
summer parenting schedule provided that each of the parties was to receive two uninterrupted
weeks with the Child. Holidays, school breaks, and special occasions were evenly divided
between the parties. With respect to overall parenting time for the purpose of calculating
child support, the days allocated to the parents were 255 for Mother and 110 for Father.
Under the parenting plan, the figures were somewhat different, with Mother having the Child
for 233 days and Father for 132.
In May 2010, Mother filed a petition to amend the parenting plan to allow her to move
with the Child to Florida; she also sought increased child support. In June 2010, she filed
a formal motion to relocate. Mother, a physical therapist, cited job opportunities, the
proximity and support of her family, and a social network of friends available to her in
Florida. In response, Father filed a petition in opposition to the relocation request and a
counterclaim requesting that he be designated as the primary residential parent. In November
2010, Mother renewed her motion to relocate.
A three-day bench trial ensued. In addition to Father and Mother, the trial court heard
from Father’s new wife, Stephanie Goddard; the Child’s paternal grandmother; the Child’s
maternal grandfather; Mother’s aunt; Mother’s supervisor; and others. The proof was to the
effect that the parties had followed the parenting schedule as set forth in the permanent
parenting plan. The limited instances of conflict regarding the parties’ time with the Child
centered largely around their differing interpretations of parenting time on holidays and other
special dates, and the providing of care to the Child by anyone other than one of the parents.
In this regard, Mother complained that she was, on occasion, unaware of the Child’s
whereabouts after Father, without informing Mother, picked up the Child from the babysitter.
Similarly, Father recalled two occasions when Mother had refused to allow the Child’s
paternal grandmother to pick up the Child at school when he could not; Mother insisted that
if she were available, it was her option to have that time with the Child. Mother indicated,
however, that since the summer of 2010, there had been no further disagreements or incidents
regarding parenting time. Mother stated her willingness to allow the Child to spend more
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days with Father than as set forth in her newly proposed plan drafted in anticipation of her
move. She suggested that, if more frequents visits or even relocation to Florida became an
option for Father and Father’s mother, they would be welcomed.
Mother explained that her proposed relocation was motivated by her desire to improve
her financial circumstances; she believed that, with the assistance of her family, she could
accomplish this by securing a better-paying job. Mother explained that she was in financial
straits which she attributed primarily to a “tax scheme” that Father was involved in at his
former place of employment involving tax evasion and fraud. In summary, the proof showed
that Father left his job in January 2006 after the fertility clinic he managed was“raided” by
the IRS. Subsequently, Father and Mother were left owing a substantial sum to the IRS as
a result of unpaid taxes, penalties and interest. In addition, Father’s former employer had
secured a judgment against him as a result of Father’s conversion of funds. Father had filed
for bankruptcy protection. Mother returned to work to support the family after Father left
his job. She estimated that, in the last four years, she had paid $40,000 to $50,000 on their
behalf toward the IRS debt. Although Mother was deemed an “innocent spouse” in the filing
of their joint tax returns, she remained liable for the tax obligation, exclusive of penalties and
interest. As set forth in the divorce judgment, she was liable for a percentage of the taxes
owed. Her income had been “seized” or garnished more than once. Asked at trial whether
she was moving because of friction with Father, Mother testified, “No. Financially, I’m not
going to make it here.”
In addition to the other hardships created by the tax debt, Mother had encountered
problems trying to refinance the former marital home which had been awarded to her in the
divorce. She testified that there was a “balloon payment” of $120,000 due in August 2010,
which had not been paid and stated that she had received a letter from her bank advising that
it intended to begin foreclosure proceedings. Mother said she had voluntarily paid thousands
of dollars to the IRS trying to remove multiple liens, but still had not been able to refinance
her home. She testified that, as a result of the time and effort she was spending trying to save
her home and get her finances in order, she felt she had no choice but to reduce her case load
at work, thereby lowering her anticipated income. For his part, Father had ceased working
full-time in 2006, well before the divorce. At the time of trial, Father had remarried and was
earning some $24,000 annually as a part-time contract employee at Southern Adventist
University. He had obtained his master’s degree and was pursuing increased responsibilities
and pay at work.
Friends, family, and acquaintances of the parties testified to each party’s relationship
with the Child. Mother was described as a “wonderful” parent who was always careful not
to discuss anything related to Father in the Child’s presence. Father was described as doing
a good job of balancing proper parenting and discipline with letting the Child know how
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special she was to him; one close friend of Father’s stated it would be “devastating” to
Father if the Child moved away. The paternal grandmother testified that, although they had
shared a good relationship in the past, Mother had grown “cold” toward her after the divorce
and that Mother now considered her nothing more than one of the Child’s babysitters. With
respect to her immediate family, Mother’s own mother had died when Mother was a child.
Mother conceded that she and her father had differences that resulted in a lack of
communication for some six years – during most of the time that she and Father were
married. Mother and her father agreed that they had repaired their relationship. They
planned to work together to get Mother in a better financial position. To this end, her father
had given Mother prospective job contacts, offered her the use of a vehicle, and had opened
his home to her and the Child during their transition to a new home.
The trial court found that the parties were not spending “substantially equal” intervals
of time with the Child; accordingly, it applied Tenn. Code Ann. § 36-6-108(d)(1) to the
relocation request. The court concluded that Mother was entitled to relocate with the Child
upon concluding that (1) “[M]other’s financial condition, employment situation, family
support and desire to relocate to Florida” constituted a reasonable purpose for the move; (2)
the move did not pose a threat of specific and serious harm to the Child; and (3) the move
was not motivated by a desire on Mother’s part to impinge upon Father’s parenting time.
After granting Mother’s motion to relocate, the court entered a modified permanent
parenting plan and denied Mother’s petition for a wage assignment and increased child
support, without prejudice, in order to allow Father more time to obtain a better-paying job.
Father timely filed a notice of appeal.
II.
Father presents the following issues for our review:
1. The trial court erred in its application of Tenn. Code Ann. §
36-6-108(d)(1) to grant Mother permission to relocate with the
parties’ minor child.
2. The trial court erred in allowing Mother to move with the
minor child to the state of Florida prior to the order becoming
final and resolution of this appeal.
As an additional issue, Mother submits that she is entitled to an award of her reasonable
attorney’s fees and costs incurred in defending this appeal.
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III.
In this non-jury case, our standard of review is de novo upon the record of the
proceedings below; however, the record comes to us with a presumption of correctness as
to the trial court’s factual determinations, a presumption we must honor unless the evidence
preponderates against those findings. Tenn. R. App. P. 13(d); Wright v. City of Knoxville,
898 S.W.2d 177, 181 (Tenn. 1995). Because “custody and visitation determinations often
hinge on subtle factors, including the parents’ demeanor and credibility . . . appellate courts
are reluctant to second-guess a trial court’s decisions.” Gaskill v. Gaskill, 936 S.W.2d 626,
631 (Tenn. Ct. App. 1996). Our review of questions of law is de novo with no presumption
of correctness attaching to the trial court’s conclusions of law. Campbell v. Florida Steel
Corp., 919 S.W.2d 26, 35 (Tenn. 1996).
IV.
A.
In granting Mother permission to relocate, the trial court made the following pertinent
findings:
[P]ursuant to T.C.A. Section 36-6-108(d)(1), the parties were
not spending substantially equal intervals of time with the child,
and . . . [M]other was spending the greater amount of time.
[M]other’s financial condition, employment situation, family
support and desire to relocate to Florida constitute[ ] a
reasonable purpose pursuant to T.C.A. Section 36-6-
108(d)(1)(A).
[M]other’s relocation to Florida would not pose a threat of
specific and serious harm to the child pursuant to T.C.A. Section
36-6-108(d)(1)(B).
[M]other’s motive was not vindictive and was not intended to
defeat [F]ather’s parenting time pursuant to T.C.A. Section 36-
6-108(d)(1)(C).
Accordingly, considering the above findings of fact this Court
finds that T.C.A. Section 36-6-108 is applicable to the current
case, and that [M]other is entitled to relocate to Florida.
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Father seems to suggest that the trial court erred when it determined that subsection
(d)(1) of Tenn. Code Ann. § 36-6-108 is the appropriate law in this case. We will now
examine that statute, the trial court’s findings with respect to the facts when viewed in the
context of the statute, and the various arguments of the parties.
B.
Parental relocation cases are governed by the provisions of Tenn. Code Ann. 36-6-
108. The statute provides, in relevant part, as follows:
(a) If a parent who is spending intervals of time with a child
desires to relocate outside the state or more than one hundred
(100) miles from the other parent within the state, the relocating
parent shall send a notice to the other parent . . . .
(b) Unless the parents can agree on a new visitation schedule,
the relocating parent shall file a petition seeking to alter
visitation. The court shall consider all relevant factors, including
those factors enumerated within subsection (d). The court shall
also consider the availability of alternative arrangements to
foster and continue the child’s relationship with and access to
the other parent. The court shall assess the costs of transporting
the child for visitation and determine whether a deviation from
the child support guidelines should be considered in light of all
factors including, but not limited to, additional costs incurred for
transporting the child for visitation.
(c) If the parents are actually spending substantially equal
intervals of time with the child and the relocating parent seeks
to move with the child, the other parent may, within thirty (30)
days of receipt of notice, file a petition in opposition to removal
of the child. No presumption in favor of or against the request
to relocate with the child shall arise. The court shall determine
whether or not to permit relocation of the child based upon the
best interests of the child. The court shall consider all relevant
factors . . . .
* * *
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(d)(1) If the parents are not actually spending substantially equal
intervals of time with the child and the parent spending the
greater amount of time with the child proposes to relocate with
the child, the other parent may, within thirty (30) days of receipt
of the notice, file a petition in opposition to removal of the child.
The other parent may not attempt to relocate with the child
unless expressly authorized to do so by the court pursuant to a
change of custody or primary custodial responsibility. 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.
* * *
(e) If 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. If the court finds it is not in the best interests of the child
to relocate as defined herein, but the parent with whom the child
resides the majority of the time elects to relocate, the court shall
make a custody determination and shall consider all relevant
factors. . . .
Recently, this Court reiterated the purpose and application of Section 36-6-108 as
follows:
In 1998, our state legislature enacted Tennessee Code Annotated
section 36-6-108, which applies when a parent seeks to relocate
outside the state or more than 100 miles away from the other
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parent residing within the state. The statute was enacted to
provide consistency in relocation proceedings.
* * *
Under the statute, the appropriate standard to be applied when
the other parent does file a petition in opposition to removal of
the child depends upon whether the parents actually spend
substantially equal amounts of time with the child. Thus, the
trial court must first decide whether the parents are “actually
spending substantially equal intervals of time with the child.”
Tenn. Code Ann. § 36-6-108(c), (d). If they do, no presumption
in favor of or against relocation arises, and the court decides the
petition to relocate on the basis of the child’s best interest. Tenn.
Code Ann. § 36-6-108(c). “The approach differs if the parents
are ‘not actually spending substantially equal intervals of time
with the child.’ ” The statute “reflects a legislatively mandated
presumption in favor of relocating custodial parents who spend
‘the greater amount of time with the child.’ ” If the parent who
seeks to relocate with the child spends the greater amount of
time with the child, the court “shall” permit the relocation unless
the other parent can establish that the relocation: 1) does not
have a reasonable purpose; 2) poses a threat of specific and
serious harm to the child that outweighs the threat of harm from
a change of custody; or 3) is due to a vindictive motive in that
it is intended to defeat or deter visitation rights of the other
parent. Tenn. Code Ann. § 36-6-108(d). The parent opposing the
relocation bears the burden of proof to establish one of these
three grounds, and if he or she fails to do so, the relocation shall
be permitted. If one of these three circumstances is shown, the
court then proceeds to a best interest analysis. Tenn. Code Ann.
§ 36-6-108(e).
Lima v. Lima, No. W2010-02027-COA-R3-CV, 2011 WL 3445961 at * 3 (Tenn. Ct. App.
W.S., filed Aug. 9, 2011)(internal citations omitted).
C.
First, without directly asserting that the trial court erred in applying Tenn. Code Ann.
§ 36-6-108(d)(1), Father urges us to apply subsection (c) – governing situations in which the
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parents are spending “substantially equal intervals of the time with the child.” He reasons
that “the fact that he was seeing his daughter 11 out of every 14 days, while not for the same
number of hours, does equate to a ‘substantially equal’ amount of time. . . .”
The Supreme Court has observed that “section 36-6-108 does not define what
constitutes ‘actually spending substantially equal intervals of time.’ ” Kawatra v. Kawatra,
182 S.W.3d 800, 803 (Tenn. 2005). The High Court has concluded, however, that
the use of hours as the sole basis for computing the time that
each parent spent with the child does not provide the trial court
with the flexibility needed to consider the circumstances of each
case. Rather, the “time actually spent” with each parent should
be computed in units of a day.
Id.; see also Tenn. Comp. R. & Regs. 1240-2-4-.02(10) (2005) (adopting a definition of
“day” under the Child Support Guidelines). Further,
[t]o allocate a day to one parent when both parents claim credit
for that day, the trial court should examine 1) the hours each
parent actually spent with the child on that day; 2) the activities
in which each parent engaged with the child; 3) the resources the
parent expended on the child’s behalf during that time period,
including the costs of a meal or any other costs directly related
to that parent’s care and supervision of the child; and 4) any
other factor that the trial court deems relevant.
Id. at 804.
Father offers no support for his assertion that his seeing or having contact with the
Child on most days, regardless of the time involved, somehow automatically equates to equal
parenting time with that credited to Mother. In any event, we must reject Father’s argument.
As this Court has observed, “the question is not how often a parent ‘sees’ a child, but rather
the number of days a child is in the custody of a parent.” Roberts v. Roberts, No. E2005-
01175-COA-R3-CV, 2005 WL 2860199 at *5 (Tenn. Ct. App. E.S., filed Oct. 31, 2005).
In the present case, the proof at trial showed that, under any relevant measure of time,
whether it be the “days” used to calculate child support, the residential schedule set out in the
parenting plan, or the calculation of the time each parent actually spent with the Child over
a period of some seven months before trial, there is no question but that Mother spent the
greater amount of time with the Child. At best, Mother’s calculation of the hours that each
parent actually spent with the Child – in the seven-month period from the filing of the
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petition to relocate until the trial – showed that the Child was with Mother 65.3% of the time
and with Father the remaining 34.7%. At trial, Father did not dispute the accuracy of
Mother’s calculations or offer any proof to the contrary.
In summary, the evidence overwhelmingly supports the application of Tenn. Code
Ann. Sec. 36-6-108(d)(1) as the proof shows that these parents were not spending
“substantially equal intervals of time” with the Child. In reaching this conclusion, we do not
mean to suggest that the time Father spends with the Child is not substantial, only that it is
not “substantially equal” under the applicable statutory provision. Id. (citing Collins v.
Coode, No. M2002-02557-COA-R3-CV, 2004 WL 904097 at *3 (Tenn. Ct. App. M.S., filed
Apr. 27, 2004) (stating that the “plain meaning of the term ‘substantially equal’ connotes a
relationship that is very close to equality – so close that it may be considered equal.”)).
Having determined that the trial court properly applied subsection (d)(1), we turn now
to consider the trial court’s additional findings – that Mother’s relocation had a reasonable
purpose, that relocation would not result in specific and serious harm to the child, and that
Mother’s motive for relocating was not vindictive. See Tenn. Code Ann. §
36-6-108(d)(1)(A)-(C).
D.
1.
At trial, Mother testified to the reasons for her proposed relocation:
Financially, I can’t do it financially. And the amount of time
that I’m having to spend working on issues with the IRS is
increasing and increasing, and my house is going into
foreclosure. My car is about to die. . . . This January it’s going
to be 20 years old. The family that I have here cannot give me
the support I need. The people that I interact with here, they
have their own lives.
If I was able to move down to Florida, . . . my dad could loan me
a car . . . until I can get things worked out, and, . . . they have a
higher pay there. It’s a no garnish state. You know, I don’t
have to worry about the IRS garnishing my wages. I can
actually get back on my feet.
* * *
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And I have four job opportunities, viable job opportunities in
Florida that make more money.
Mother named the four health care entities with whom she felt she had “viable job
prospects.” She testified that she had had “multiple interviews and multiple interviews with
the same person like second and third interviews with employers, and they’ve stated that if
I am allowed to move, that they are interested in hiring me.” Mother noted that all four
options would provide her better pay but still afford her a flexible schedule. Mother
estimated that, as a physical therapist, she could earn up to $10 more per patient in the
Florida market which would make a “significant” difference in her income. She also
planned to accept assistance from her father and his wife regarding housing, transportation,
and some child care during her transition. Mother had checked into schooling for the Child.
She planned for her daughter to attend the same private, church-based elementary school that
Mother herself had attended as a child.
Father argues that Mother’s financial condition and employment situation, in
particular, do not provide a “reasonable purpose” for her planned move. He points to the fact
that, at trial, Mother had no firm Florida job offer in hand. He likens Mother’s situation to
that presented in Butler v. Butler, No. M2002-00347-COA-R3-CV, 2003 WL367241 (Tenn.
Ct. App. M.S., filed Feb. 20, 2003). In that case, this Court observed a “fundamental
problem [with] the lack of proof concerning any job in Texas” and further noted that
[m]other offers no proof of anything in Texas except a belief
and a hope that she can secure better employment. There is no
proof in the record that [she] has any friends or acquaintances in
the Dallas-Ft. Worth area.
Id. at *4. The Butler Court affirmed the trial court’s denial of the motion to relocate on the
basis that the move had no reasonable purpose.
Returning to the present case, the trial court relied instead on Caudill v. Foley, 21
S.W.3d 203, 212 (Tenn. Ct. App. 1999). In Caudill, we concluded that, as distinguished
from Butler, the mother’s purported reasons for relocating, including her “excellent chance
for re-employment” with her former employer in Florida, constituted a reasonable purpose
for her relocation. In the present case, the trial court similarly found that “the possibility of
better employment, a possibility of perhaps putting certain financial matters behind her does
constitute a reasonable purpose for moving. . . .” On our review of the record, the evidence
does not preponderate against the trial court’s finding that Mother’s “financial condition,
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employment situation, family support and desire to relocate to Florida constitute[ ] a
reasonable purpose” for the move.
2.
Next, the trial court found that the relocation did not 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.” Tenn. Code Ann. § 36-6-108(d)(1)(B). With respect to this ground, the statute
further provides that “specific and serious harm to the child” includes, but is not limited to
the following:
(A) If a parent wishes to take a child with a serious medical
problem to an area where no adequate treatment is readily
available;
(B) If a parent wishes to take a child with specific educational
requirements to an area with no acceptable education facilities;
(C) If a parent wishes to relocate and take up residence with a
person with a history of child or domestic abuse or who is
currently abusing alcohol or other drugs;
(D) If the child relies on the parent not relocating who provides
emotional support, nurturing and development such that removal
would result in severe emotional detriment to the child;
(E) If the custodial parent is emotionally disturbed or dependent
such that the custodial parent is not capable of adequately
parenting the child in the absence of support systems currently
in place in this state, and such support system is not available at
the proposed relocation site; or
(F) If the proposed relocation is to a foreign country whose
public policy does not normally enforce the visitation rights of
non-custodial parents, that does not have an adequately
functioning legal system or that otherwise presents a substantial
risk of specific and serious harm to the child.
Tenn. Code Ann. § 36-6-108(d)(2)(A)-(F).
Of the listed instances of “specific and serious harm,” Father essentially concedes that
none, with the possible exception of subpart (D), exist in this case. Referring to subpart (D),
Father implicitly suggests that, because of the Child’s relationship with him, she would suffer
serious emotional harm if forced to move to Florida. As we understand his argument, Father
contends that it would be in the Child’s best interest, and less “harmful” and disruptive to the
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Child, to remain in Tennessee with Father serving as the primary residential parent, rather
than to relocate to Florida with Mother. In its bench ruling, the trial court addressed Father’s
position:
Subsection [(d)(1)(B)] . . . provides that the relocation may take
place unless there is harm to the child. If I were to approach this
case on a best interest of the child, that is[,] best interest of
Emma, I would have to approach it differently. I am not placed
with the best interest of the child. The best interest of the child
appl[ies] only when the parents are spending substantially equal
time with the child. It’s that provision which kicks in the best
interest. So to find harm to the child, I would have to have some
sort of medical or other serious proof of physical or mental harm
to the child, and in this case, I can’t make that finding.
In challenging the trial court’s finding, Father insists that the court erred in failing to
consider Mother’s relocation solely in the context of the best interest of the child. To the
extent Father’s argument suggests that the parental relocation statute fails to incorporate
considerations of a child’s best interest, we must disagree. As we said in Caudill, 21 S.W.3d
at 211-12, n.3
[t]he best interests of the child are fundamentally interrelated
with the best interests of the custodial parent. See Aaby, 924
S.W.2d at 627 (citing Taylor v. Taylor, 849 S.W.2d 319, 328
(Tenn. 1993)). Similarly, we think that the best interests of the
child are also fundamentally interrelated with the best interests
of the parent with whom the child spends the majority of his or
her time.
Hence, the reason for the “legislatively mandated presumption in favor of relocating
custodial parents who spend ‘the greater amount of time with the child.’ ” Elder v. Elder,
No. M1998-00935-COA-R3-CV, 2001 WL 1077961 at *5 (Tenn. Ct. App. M.S., filed Sept.
14, 2001).
Returning to the relocation statute, Tenn Code Ann. 36-6-108(e) provides 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.” (Emphasis added). As can be seen, the statute does not direct the trial court to
undertake a separate, best-interest-of-the-child analysis unless and until one of the grounds
in subsection (d) is proven. In this case, the evidence does not preponderate against the trial
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court’s finding that the move poses no “specific and serious” threat of harm to the Child as
contemplated by Section 36-6-108(d)(1)(B).
3.
The trial court found that Mother did not have a vindictive motive for moving. Father
points to the fact that, under the new residential schedule Mother has proposed, his “day to
day” parenting time is eliminated and the schedule was otherwise modified to account for the
Child residing out of state. At trial, Mother testified that she was willing for Father (and
paternal grandmother) to have still more days during the summer and other school breaks and
any other times that they could travel to Florida. Father, however, asserts that the changes
to the parenting schedule in and of themselves evidence a vindictive motive on Mother’s part
to decrease his time with the Child. On this issue, the trial court found:
We finally get to subsection [(d)(1)(C)], which I think, and as I
indicated to you before, is the heart of this case, and that is
whether the motive of the mother is vindictive to defeat or deter
the visitation rights of the father. . . . Here the mother has made
an offer of substantial time.
Now, I will say, I will concede that it is not the same amount of
time that the father is spending with Emma here, but . . . any
relocation is going to involve a disruption of a residential
schedule. . . . [A]lthough there . . . have been disputes between
the parties concerning residential time and whether the
residential time with one party has been interrupted by the
conduct or action of the other, I do not find that to rise to the
level of vindictiveness to defeat or deter the visitation rights of
the other parent.
Consequently, I believe that the request for relocation is well
taken and I will grant that petition. I also want the father to
have substantial time with Emma as offered by the mother, and
by that I mean at least seven weeks during the summer, spring
break, fall break, equal time at Christmas. . . .
Also, any amount of time on reasonable notice that either
[Father] or [paternal grandmother] or [Father’s] present wife
want to spend with Emma in Florida, just give her notice that
that’s going to happen and that will happen. So I’m trying to
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accommodate the father as well as consider the requirements
that I am required to consider under the statute.
As the trial court observed, it is practically impossible for a parent to relocate out of
state with no discernable changes to the other parent’s scheduled time with the child. In this
case, however, the court found that Mother was not motivated by vindictiveness, but, rather,
was acting reasonably, and that her offer for Father to spend more, extended periods of time
with the Child during school breaks was sincere. As the Supreme Court has held,
[a] move in any child’s life, whether he or she is raised in the
context of a one or two parent home, carries with it the potential
of disruption; such common phenomena – both the fact of
moving and the accompanying distress – cannot constitute a
basis for the drastic measure of a change of custody.
Aaby, 924 S.W.2d at 630. Again, the evidence does not preponderate against the trial court’s
finding that Mother’s motive in wanting to relocate to Florida was not vindictive.
On our considered review of the evidence, we conclude that Tenn. Code Ann. § 36-6-
108(d)(1) governs this case and that Father failed to meet his burden of establishing the
existence of any of the designated bases for denying Mother’s relocation request pursuant to
Section 36-6-108(d)(1) (A)-(C). The trial court did not err in its application of the parental
relocation statute and the evidence does not preponderate against its findings in support of
its judgment to allow Mother’s request to relocate to Florida with the Child.
V.
Father challenges the trial court’s decision to allow the Child’s removal to Florida
pending entry of the final judgment and resolution of the instant appeal. To review, the court
issued its bench ruling permitting Mother’s relocation on January 13, 2011. At the
conclusion of the hearing, the court and counsel discussed the effect of the ruling. Asked
whether there would be “any limitations on when [Mother] can relocate,” the court advised
that if an appeal was filed, it would hear a motion to stay at that time. The court further
advised that under the Rules of Civil Procedure, its decision would not become effective
“until 30 days from the expiration of the date of the final decree.”
Father complains that “only 29 days” after the court announced its ruling on January
13, 2011, the court allowed Mother to relocate, which was well before the expiration of his
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time for filing an appeal from the March 4, written order.1 See Tenn. R. App. P. 4 (providing
that an appeal as of right shall be filed “within 30 days after the date of entry of the judgment
appealed from . . . .”). Mother counters that after the court announced its bench ruling in
January, Father refused to agree to the terms of the final order until March 4, which led her
to seek post-judgment relief. The March 4, 2011, final order reflects that a post-judgment
hearing was held on February 14, 2011, at which time the court ruled from the bench that as
of that hearing date, “[Mother] may move to Florida pending the resolution of post judgment
issues and pending any possible appeal.”
Tennessee Rule of Civil Procedure 62 governs the stay of proceedings to enforce a
judgment pending appeal. Rule 62.01 provides, in relevant part, as follows:
Except as otherwise provided in this rule, no execution shall
issue upon a judgment, nor shall proceedings be taken for its
enforcement until the expiration of 30 days after its entry. In
. . . actions . . . that award, change or otherwise affect the
custody of a minor child, an interlocutory or final judgment
shall not be stayed after entry unless otherwise ordered by the
court and upon such terms as to bond or otherwise as it deems
proper to secure the other party.
(Emphasis added). Rule 62.03, regarding relief pending appeal, further provides that
“[w]hen an appeal is taken from an interlocutory or final judgment in actions specified in
Rule 62.01 . . . , the court in its discretion may suspend relief or grant whatever additional
or modified relief is deemed appropriate during the pendency of the appeal . . . .” Lastly,
Rule 62.04 provides that “[e]xcept as otherwise provided in Rule 62.01, when an appeal is
taken the appellant by giving a bond may obtain a stay.”
Rule 62.01 thus expressly excepts the present action pertaining to custody of the Child
from its automatic stay provisions. The record does not reflect when Mother and the Child
actually left Tennessee for Florida, and Father’s only assertion on this subject is that the
Child was moved “prior to the end of the 2011 school year.” Again, the court’s final order
was filed on March 4, and Father timely filed an appeal later that month. Pursuant to Rule
62.03, it was within the trial court’s discretion to grant Mother post-judgment relief and
permit her to relocate during the pendency of the appeal.
1
The record reflects that Father filed a notice of appeal on March 31, 2011.
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VI.
Finally, we consider Mother’s request for an award of her attorney’s fees and
expenses on appeal. The decision whether to award attorney’s fees incurred on appeal is a
matter within the discretion of this Court. See Archer v. Archer, 907 S.W.2d 412, 419 (Tenn.
Ct. App. 1995); see also Tenn. Code Ann. § 36-5-103(c). In our discretion, we deny
Mother’s request for an award of attorney’s fees and expenses for appellate work.
VII.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Thomas E. Goddard. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the court’s judgment and the collection of costs assessed below.
_________________________________
CHARLES D. SUSANO, JR., JUDGE
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