Jerry Alan Richards v. Tina Lou Richards ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 15, 2010 Session
JERRY ALAN RICHARDS v. TINA LOU RICHARDS
Appeal from the Circuit Court for Sevier County
No. 2002-0491-II Richard R. Vance, Judge
No. E2010-00521-COA-R3-CV-FILED-MAY 31, 2011
This is a post-divorce case where both parties sought to modify the existing custody
arrangement. At the time of the divorce, the parties agreed to equal co-parenting time. Upon
the mother’s request for modification, the court designated her as the primary residential
parent and awarded the father standard co-parenting time. The trial court also ordered the
father to pay child support and certain outstanding expenses incurred by the mother toward
the child’s care. Further, the mother was awarded her attorney fees. In the initial appeal, we
found that a material change in circumstances had not been proven. Accordingly, we
reversed the trial court’s modification of the original custody arrangement and reinstated the
initial permanent parenting plan. We also vacated the trial court’s order as to child support,
the payment by the father of expenses incurred by the mother, and the award of attorney fees
to the mother, and remanded the case to the trial court for further proceedings. The matter
was reheard, with the parties stipulating that there has been a material and substantial change
in circumstances. The trial court again named the mother primary residential parent, with the
father having co-parenting time every other weekend and on an alternating two-week
schedule in the summer. The father appeals. We hold that the evidence does not
preponderate against the trial court’s findings. The judgment of the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R. and D. M ICHAEL S WINEY, JJ., joined.
Robert W. White, Maryville, Tennessee, for the appellant, Jerry Alan Richards.
Rebecca D. Slone, Dandridge, Tennessee, for the appellee, Tina Lou Richards (Long).
OPINION
I. BACKGROUND
The parties, Jerry Alan Richards (“Father”) and Tina Lou Richards (Long)
(“Mother”), were divorced on February 18, 2003, and a permanent parenting plan (“the
Plan”) was entered with the trial court regarding their minor child (“the Child”). The Plan
provided that Father and Mother, who lived at the time within fifteen minutes of each other,
had the Child in one week intervals with the exchange to occur on Sunday evenings. If
Father moved, the Plan provided that the parties would mediate a new schedule. There was
no mention of either party paying child support.
In April 2004, Mother filed a petition for modification, alleging a substantial and
material change in circumstances that made it in the Child’s best interest to reside primarily
with her. According to Mother, Father had not been exercising the full amount of his co-
parenting time. In July 2005, Father filed a petition for primary residential custody, claiming
that Mother had denied him co-parenting time. On November 22, 2005, an order was entered
by the trial court naming Mother as the primary residential parent and ordering Father to
reimburse Mother for certain expenses (medical and educational) and fees (supervision and
babysitting) for the Child, as well as her attorney fees. The amount owed by Father was
determined to be $8,409. He was instructed to pay 20% immediately in a lump sum with the
remaining balance to be paid in equal monthly installments of $280.30 per month for 24
months. Father was awarded co-parenting time every other weekend and on alternating
weeks in the summer. The order, entered nunc pro tunc to August 17, 2005, required Father
to pay monthly child support in the amount of $733.
After Father appealed, we found that neither party had proven a material change in
circumstances. Accordingly, we issued an opinion reversing the trial court’s November 2005
order, reinstating the original custody arrangement, and vacating the trial court’s order as to
child support, expenses, and attorney fees.
On September 13, 2007, the case was reheard by the trial court. The parties stipulated
that there had been a material change in circumstances. The trial court provided as follows:
THE COURT: This has been a very contentious relationship between these
two parents over the course of several years since their original divorce. The
Court has to observe and I think I’ve previously found and I find today, that
they do not cooperate fully with one another, that oftentimes their personal
pride, ego, or whatever has interfered with that relationship and
communication. And all of that is not in the best interest of [the Child]. It
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hurts him to know that his parents are down here at the courthouse fighting
each other. But they have not been able to agree, so they’ve presented their
cases here today. The Court has considered very carefully the testimony, the
exhibits, statements and arguments of counsel in the entire record of this cause.
The parties have stipulated that material changes of circumstances which have
adversely affected the welfare of [the Child] have occurred, and that a
modification of the parenting plan is warranted. The Court has considered in
determining the issues presented all those factors as set out in Tennessee Code
Annotated § 36-6-404 in making its findings.
The Court is confronted with a situation where the mother lives in White Pine,
Tennessee, and the father in Louisville, Tennessee, or near Louisville, a
distance of fifty miles and an hour’s drive each way. It is simply unworkable
and a burden and undue hardship on this child, seven year old child, soon to
be eight, to have to travel back and forth to attend school. It’s hard enough on
weekend schedules because that’s an hour out of his day. In any event, the
father is seeking primary residential parental control and would enroll the child
in Blount County. He has indicated that he would be willing to move to White
Pine, Tennessee, but he’s under no obligation to do so. While the mother
seeks to retain primary residential parental right and keep [the Child] in his
presently enrolled school where he is in his, I guess third year. He attended
preschool, kindergarten, and perhaps the first grade. But in any event, that’s
where he’s lived and gone to school all of his school years.
Both of these parents love their son, that’s not a question; that each would like
to have as much time as possible with him and raise him and be the parents,
but circumstances are that they are no longer husband and wife. They’ve been
divorced for a number of years, and that’s simply not possible. The mother
now resides with her present husband and stepchildren in a house owned in
White Pine, Tennessee. From the testimony, this appears to be a stable family
unit in which everyone gets along. The father has not remarried and lives
alone in an apartment. While [the Child] has a strong relationship from all
indications that I’ve seen with both parents, it appears that the mother has
taken the greater responsibility for the daily needs of [the Child] throughout
his lifetime.
It appears to the Court, and it’s clear that neither party has been fully willing
to cooperate with the other parent in fostering a close relationship with the
other parent. There’s been too much aggravation between the two of them,
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which they need to lay aside, let it go. Whatever happened in the past to divide
you as a family is gone, it’s history. You’ve got a child to raise, and that
should be the primary consideration.
While both parents are financially able to provide for all of the necessities and
care for [the Child], it must be noted that while there’s no order to do so, that
[Father] has paid nothing toward support for [the Child] to [Mother] now. It
also must be noted he is not paying a portion of extra expenses for medical
care, for school, expenses for child care and others as required by the original
parenting plan. In balance from the evidence presented it appears that the
mother has been the primary caregiver and has taken the greater responsibility
in performing those parental duties.
The love, affection, and emotional ties between a child and both his parents is
equally balanced. He loves you both, I’ve said that, as a parent. And each is
fit to address the emotional needs and development of [the Child], and each is
physically and emotionally fit to be a parent. As I have observed, sometimes
the frustration with the other parent has overridden reason in communicating
and dealing with what must be done for [the Child]. Primarily the
transportation back and forth. This shouldn’t be any sort of a problem at all,
just do it and be responsible toward the other parent. Likewise, it appears to
be equally balanced, there’s no evidence to the contrary, about the child’s
interaction with other significant family members from either side.
An important factor . . . is the continuity of a child’s life to consider --
considering the statutory factors. It appears that [the Child] is in a stable,
satisfactory environment with his mother by a preponderance of the evidence.
That’s in favor of the mother. That’s not to say that he doesn’t have a good
environment with his father when he’s with him. There is no evidence of any
kind of any abuse by either parent against [the Child]. And there’s no
evidence against any person who resides with or frequents the home of either
parent with the possible exception of the testimony regarding [Father’s]
mother. And at this time the Court believes that it is not in [the Child’s] best
interest that he be left in the sole care of [paternal grandmother] as the adult
caregiver. That may change in the future. I hope it does. But for the time
being, that is a reasonable request.
All in all from all the evidence, the Court finds that the evidence does
preponderate in favor of the mother, Tina Richards Long, as the primary
residential parent. The schedules of the work of the parents, the distances
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involved is a significant hurdle to try and to balance and to equalize the time
that each parent has with [the Child]. During the school year, it’s simply
unworkable to carry him back and forth on any school day from Blount County
to White Pine. So the previously entered parenting plan will be modified to
accommodate the work and school schedules as follows: The father shall have
. . . primary parental control . . . every other weekend from Friday at 6:00 P.M.
until Sunday at 6:00 P.M. during the school year. . . .
During the summer months, . . . the summer vacation from school, the parents
shall alternate co-parenting on a two week to two week rotation. This will
give each parent two weeks at a time with [the Child]. One week at a time is
just sometimes not enough when there’s this much distance between not only
the residences but the distances between the community and other family
members in order to be able to keep that close relationship. So it will be on a
two week schedule. That will begin with the Sunday following the end of
school, the week will be from Sunday to 6:00 P.M. until the next Sunday at
6:00 P.M., two weeks from then where [Father] would have that first two week
period beginning the Sunday following the last day of school. . . .
***
. . . I’m going to order in ninety days each of you must attend, file a new
certificate of completion of the parenting class. Pay attention to what they’re
telling you, because that they’re telling you is not how to be a parent, it’s from
the viewpoint of your son, how it affects him, how every time there’s a
conflict, whether it’s a lack of communication, how that affects him. That’s
the Court’s primary interest, and under the law that is my primary concern,
what is in his best interest.
Given [the Child’s] hemophilia, that he should not be permitted to operate any
type of motor vehicle, motor-driven vehicle, whether electric or gas, until such
time as he is old and mature enough to understand . . . the safe operation of the
vehicle and understand and appreciate the risks. While that may seem a bit
vague, I want to make it an absolute prohibition against operation of any type
of motorcycle, four-wheeler, all terrain vehicle, the risks are simply too high
for injury which could lead -- it’s bad enough for an ordinary person, but with
hemophilia, it would certainly be life-threatening, and he doesn’t need to be
on four-wheelers and three-wheelers and motorcycles and ATV’s, that type
thing, off road.
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The parties shall adhere to the parental rights as set forth in the Tennessee
Code Annotated § 36-6-110, and I want each party, the attorneys will prepare
a copy of those, and want each party to sign and file with the Court a copy of
that to acknowledge that they have read and understand what it says, and that
should be a part of -- those rights shall be a part of this Order.
***
The Court finds based upon the evidence that [Father] has not paid his portion
of the medical, school, child care related expenses for [the Child] as previously
been ordered in the parenting plan. That’s [Father’s] responsibility. He has
not done that. The Court finds . . . those attorney’s fees are reasonable and
should be paid and paid as requested . . . .
The amount of child support will be calculated . . . based upon the relative
incomes of the parents, the number of days of parental responsibility. And
giving [Father] the consideration that he has a support obligation for this
daughter, Katie, of [$153] per week. The Court finds that the mother’s income
is [$500] a week, the father’s income is [$13.75] for a forty hour week with
one additional hour per week on average at one and a half times that rate for
his total weekly earnings. [Father] is obligated and is having deducted health
and dental insurance for [the Child] which he’s entitled to consideration under
the child support guidelines. Forty dollars a week was his testimony under the
family plan. Child support payments will be paid directly until the wage
assignment kicks in because it will take probably a cycle or two, a month or so
for that to kick in, the wage assignment to be executed. The court costs will
be assessed against [Father].
***
. . . [Father] hasn’t paid a dime. . . . That didn’t help [Father] a bit in this
hearing at all because that goes directly to one of the significant factors that the
Court must consider under the law, and that is the willingness and ability of
each parent to provide support and maintenance for the child. He hasn’t done
that. And I have to consider that. The proof is, and there’s no proof to the
contrary, that these are the correct amounts. I found them to be the correct
amounts for those expenses.
***
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. . . But what I have found that [Father] hasn’t paid is doctor bills, school
expenses, things that have been testified that he was obligated to pay under the
previous parenting plan. . . .
On September 22, 2009, Father was ordered to pay $521 per month in child support.
The trial court found that Father owed the sum of $15,221.90 to Mother and set forth a
payment plan. On February 5, 2010, an amended order was entered that provided as follows:
1. The Defendant’s child support obligation, which was reserved based on the
decision of this Court from the hearing and announcement on September 17,
2007, shall be $69.00 per month beginning with the month of October 2007
and going through the month of December 2008 . . . ;
2. The Defendant’s child support obligation, from the month of January 2009
forward and current child support obligation shall be $473.00 per month . . .
.
Father filed a timely appeal.
II. ISSUES
The issues we review in this case are restated as follows:
1) Whether the trial court correctly found that the Child’s best interests were
served by naming Mother primary residential parent and awarding her the
majority of the co-parenting time.
2) Whether the trial court properly ordered Father to pay expenses for the
Child and attorney fees.
III. STANDARD OF REVIEW
An order of the trial court making a modification of custody is a finding of fact that
the best interest of the child is served by that court order. The de novo review of the findings
of fact by the trial court is accompanied with a presumption of correctness of the finding.
Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993). We will not overturn those findings unless the evidence preponderates against them.
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Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 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. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005). The trial court is in
the best position to weigh the credibility of the witnesses and the evidence presented at trial.
Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999). The trial
court’s conclusions of law are accorded no presumption of correctness. Presley v. Bennett,
860 S.W.2d 857, 859 (Tenn. 1993).
Trial courts have broad discretion to fashion parenting plans that best suit the unique
circumstances of each case, see Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999), and
decisions regarding parenting schedules often hinge on subtle factors, such as the parent’s
demeanor and credibility during the proceedings. Adelsperger v. Adelsperger, 970 S.W.2d
482, 485 (Tenn. Ct. App. 1997). Thus, a trial court’s decision regarding a permanent
parenting plan will be set aside only when it “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.
IV. DISCUSSION
A. Modification
When a petition to change or modify custody is filed, the parent seeking the change
has the burden of showing (1) that a material change in circumstances has occurred and (2)
that a change in custody or residential schedule is in the child’s best interest. Kendrick v.
Shoemake, 90 S.W.3d 566, 575 (Tenn. 2002); Blair v. Badenhope, 77 S.W.3d 137, 148
(Tenn. 2002); In re M.J.H., 196 S.W.3d 731, 744 (Tenn. Ct. App. 2005); In re Bridges, 63
S.W.3d 346, 348 (Tenn. Ct. App. 2001). A finding that a material change in circumstances
has occurred is a threshold inquiry that, when made, allows the court to proceed to make a
fresh determination of the best interest of the child. Kendrick, 90 S.W.3d at 569; Badenhope,
77 S.W.3d at 150; Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003); Curtis v. Hill, 215
S.W.3d 836, 840 (Tenn. Ct. App. 2006). “[I]f the petition is denied for failure to prove a
material change of circumstance, modification is not to be considered.” Burchett v. Burchett,
M2008-00790-COA-R3-CV, 2009 WL 161084, at *2 (Tenn.Ct.App. M.S., Jan. 22, 2009).
There are no bright line rules as to the requirements necessary to modify a custody
arrangement, but the Tennessee Supreme Court has directed courts to consider (1) whether
the change occurred after the entry of the order sought to be modified; (2) whether the
change was known or reasonably anticipated when the order was entered; and (3) whether
the change is one that affects the child’s well-being in a meaningful way. Cranston, 106
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S.W.3d at 644 (citing Kendrick, 90 S.W.3d at 570).
A 2004 amendment to Tenn. Code Ann. § 36-6-101(a)(2) differentiated between
modification of a custody decree change of “primary residential parent” and modification of
a parenting plan schedule. Scofield v. Scofield, No. M2006-00350-COA-R3-CV, 2007 WL
624351, at *3 (Tenn. Ct. App. M.S., Feb. 28, 2007). Prior to the amendment, the showing
of a material change in circumstances was the same for both modifications of custody and
parenting plans. See id. However, after the amendment, the statute reads:
(B) If the issue before the court is a modification of the court’s prior decree
pertaining to custody, the petitioner must prove by a preponderance of the
evidence a material change in circumstance. A material change of
circumstance does not require a showing of a substantial risk of harm to the
child. A material change of circumstance may include, but is not limited to,
failures to adhere to the parenting plan or an order of custody and visitation or
circumstances that make the parenting plan no longer in the best interest of the
child.
Tenn. Code Ann. 36-6-101(a)(2)(B). A new subsection addressing modification of a
parenting schedule was added:
(C) If the issue before the court is a modification of the court’s prior decree
pertaining to a residential parenting schedule, then the petitioner must prove
by a preponderance of the evidence a material change of circumstance
affecting the child’s best interest. A material change of circumstance does not
require a showing of substantial risk of harm to the child. A material change
of circumstance for purposes of modification of a residential parenting
schedule may include, but is not limited to, significant changes in the needs of
the child over time, which may include changes relating to age; significant
changes in the parent’s living or working condition that significantly affect
parenting; failure to adhere to the parenting plan; or other circumstances
making a change in the residential parenting time in the best interest of the
child.
Tenn. Code Ann. § 36-6-101(a)(2)(C). As we noted in Blakes v. Sims, No. W2007-02129-
COA-R3-CV, 2008 WL 5130425, at * 5 (Tenn. Ct. App. W.S., Dec. 5, 2008),
As a result of the 2004 amendment, Tennessee now has a different set of
criteria for determining whether a material change of circumstance has
occurred to justify a modification of a ‘residential parenting schedule’ and the
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specifics of such a schedule.” Scofield, 2007 WL 624351, at *3. “The
amendment, specifically the addition of subsection (a)(2)(C), establishes
different criteria and a lower threshold for modification of a residential
parenting schedule.” Id. (citing Rose v. Lashlee, No. M2005-00361-COA-R3-
CV, 2006 WL 2390980, at *2, n. 3 (Tenn. Ct. App. Aug. 18, 2006) (holding
that Tennessee Code Annotated section 36-6-101(a)(2)(C) “sets a very low
threshold for establishing a material change of circumstances”)). . . .
In the instant case, the modification sought concerned the primary residential parent, so
subsection (a)(2)(B) criteria are at issue.
During the course of the proceedings, the parties stipulated that a material change in
circumstances had occurred. Taken as a whole, the testimony supports the trial court’s
conclusion that a change of circumstance indeed had occurred since the entry of the prior
order and that modifications to the order and the entry of a new parenting plan was
appropriate. With Mother’s move from Seymour to White Pine upon her remarriage, the
distance between the parties is too great to continue co-parenting pursuant to the initial Plan.
Mother also established that Father had allowed the Child to participate in activities that are
potentially detriment to the youngster’s health. Furthermore, Father disobeyed the trial
court’s prior order by leaving the Child in the paternal grandmother’s care. Perhaps most
significant, Father has failed to provide anything more than insurance for the Child, despite
the initial Plan’s provision that “[t]he parents agree to split equally the costs of clothing the
minor child and for school expenses,” babysitter, medical care, and dental/orthodontic care.
We now must determine whether the trial court’s modification – designating Mother
as the primary residential parent – was in the best interest of the Child. Cranston, 106
S.W.3d at 644. The factors included in Tenn. Code Ann. §§ 36-6-106 and 36-6-404 are
taken into consideration.
Tenn. Code Ann. § 36-6-404(b) provides as follows:
(1) The parent’s ability to instruct, inspire, and encourage the child to prepare
for a life of service, and to compete successfully in the society that the child
faces as an adult;
(2) The relative strength, nature, and stability of the child’s relationship with
each parent, including whether a parent has taken greater responsibility for
performing parenting responsibilities relating to the daily needs of the child;
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(3) The willingness and ability of each of the parents to facilitate and
encourage a close and continuing parent-child relationship between the child
and the other parent, consistent with the best interests of the child;
(4) Willful refusal to attend a court-ordered parent education seminar may be
considered by the court as evidence of the parent’s lack of good faith in these
proceedings;
(5) The disposition of each parent to provide the child with food, clothing,
medical care, education, and other necessary care;
(6) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
(7) The love, affection, and emotional ties existing between each parent and
the child;
(8) The emotional needs and developmental level of the child;
(9) The character and physical and emotional fitness of each parent as it relates
to each parent’s ability to parent or the welfare of the child;
(10) The child’s interaction and interrelationships with siblings and with
significant adults, as well as the child’s involvement with the child’s physical
surroundings, school, or other significant activities;
(11) The importance of continuity in the child’s life and the length of time the
child has lived in a stable, satisfactory environment;
(12) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person;
(13) The character and behavior of any other person who resides in or
frequents the home of a parent and such person’s interactions with the child;
(14) The reasonable preference of the child if twelve (12) years of age or
older. . . .
(15) Each parent’s employment schedule, and the court may make
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accommodations consistent with those schedules; and
(16) Any other factors deemed relevant by the court.
These factors incorporate those set out in Tenn. Code Ann. § 36-6-106,1 the statute by which
trial courts were guided in custody determinations prior to the parenting plan legislation. See
Hines v. Simms, No. M2003-01459-COA-R3-CV, 2004 Tenn. App. LEXIS 552, at *16
(Tenn. Ct. App. M.S., Aug. 24, 2004).
As to the factors considered, Father asserts that the trial court improperly ruled that
Mother had taken the greater responsibility for the daily needs of the Child; he contends that
1
The factors listed in Tenn. Code Ann. § 36-6-106 are as follows:
(1) The love, affection and emotional ties existing between the parents and child;
(2) The disposition of the parents to provide the child with food, clothing, medical care,
education and other necessary care and the degree to which a parent has been the primary
caregiver;
(3) The importance of continuity in the child’s life and the length of time the child has lived
in a stable, satisfactory environment; . . . .
(4) The stability of the family unit of the parents;
(5) The mental and physical health of the parents;
(6) The home, school and community record of the child;
(7) The reasonable preference of the child if twelve (12) years of age or older. The court
may hear the preference of a younger child upon request. The preferences of older children
should normally be given greater weight than those of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other
person; . . . . .
(9) The character and behavior of any other person who resides in or frequents the home
of a parent and such person’s interactions with the child; and
(10) Each parent’s past and potential for future performance of parenting responsibilities,
including the willingness and ability of each of the parents to facilitate and encourage a
close and continuing parent-child relationship between the child and the other parent,
consistent with the best interest of the child.
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Mother prevented him from being an equal caregiver in the Child’s life. Arguing that Mother
did not provide him with requested bills and receipts and that he had no child support
obligation under the initial Plan, Father claims the court placed too much emphasis on the
fact that he did not pay the enumerated expenses Mother stated were for the Child. He
further asserts that Mother violated the Plan by unilaterally making the educational decision
to place the Child in school in White Pine and that she has not promoted a good relationship
with Father by surreptitiously moving from Seymour without notifying him. Father questions
the trial court’s decision that Mother’s family unit is stable when he has maintained the same
home and same job for a more extensive period of time. He claims that Mother’s actions
have impaired his relationship with the Child.
The trial court determined that although both parents love the Child, Mother most sees
to his daily needs. Mother has provided the necessities and care, including all medical
expenses, school expenses, and child care. Father has paid nothing. The trial court also
found continuity to be an important factor, noting that the Child had lived and attended
school in White Pine for three years and had a stable, satisfactory environment with Mother.
The court further determined that it was not in the Child’s best interest that Father had
allowed the paternal grandmother keep the Child and had also let the Child ride toys that
were not conducive to his safety because of his medical condition.
Based on the factors outlined in Tenn. Code Ann. §§ 36-6-106 and 36-6-404(b), we
affirm the trial court’s naming of Mother to be the primary residential parent as being in the
best interest of the Child. Both parties are advised that failure to promote and encourage a
close relationship between the Child and the other parent may result in this custody
determination being reviewed in the future.
B. Expenses and Attorney fees
In the previous judgment, this court remanded the trial court’s order awarding Mother
a judgment against Father in the amount of $8,409 for the Child’s medical bills, one half of
school expenses, supervision fees, babysitter’s fees, and attorney fees to determine this issue
in conformity with the Plan. The original Plan ordered the parties to split equally the cost of
clothing and school expenses for the Child. The Plan also provided in regard to health
insurance for the Child that both parties will maintain the same for the Child and that
uncovered medical expenses shall be divided equally. Furthermore, the parent receiving the
medical bill shall send the bill to the other parent within ten days, with the parent paying
his/her portion within 30 days. Father testified that he had never received any bill or receipt
related to these expenses other than a summary from Mother.
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Father avers that Mother, due to her noncompliance in sending receipts or proof to
him has failed to meet her burden of proof by a preponderance of the evidence in relation to
the expenses. He further argues that the trial court abused its discretion in awarding attorney
fees in this cause due to the fact that he has been forced to constantly seek relief from the
court to maintain a relationship with the Child.
The original permanent parenting plan entered by the trial court provides that any
uncovered medical expenses for the Child shall be divided equally between the parties. The
parties also agreed to equally divide clothing and school expenses for the Child in the same
parenting plan. They also agreed to split babysitter costs. Mother testified as to the amount
of the expenses at trial. Her testimony was not contradicted.
In custody disputes, the question of whether to award attorney’s fees and the amount
of any such fees is largely in the discretion of the trial court, and the appellate court will not
interfere except upon a clear abuse of that discretion. Deas v. Deas, 774 S.W.2d 167, 170
(Tenn. 1989).
We find the trial court did not abuse its discretion in granting Mother the requested
fees and expenses. Upon our review of the record, there is no doubt that the court considered
all the evidence, as well as the concerns expressed by Father, in making its determination.
Father has failed to pay any expenses or to follow the trial court’s orders. The court properly
determined that Mother’s request for attorney fees was reasonable.
V. CONCLUSION
The determination of the trial court is affirmed and the case is remanded for such
further proceedings as may be appropriate. Costs on appeal are assessed to the appellant,
Jerry Alan Richards.
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JOHN W. McCLARTY, JUDGE
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