Dominique Nance v. Mark Franklin ( 2022 )

09/15/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 4, 2022
DOMINIQUE NANCE v. MARK FRANKLIN
Appeal from the Juvenile Court for Davidson County
Nos. 2016-1629, PT242318, PT242458 Sheila Calloway, Judge
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No. M2021-00161-COA-R3-JV
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This appeal concerns the trial court’s denial of the mother’s petition to relocate with her
minor child. We affirm the trial court’s decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S. and CARMA DENNIS MCGEE, J., joined.
Kelli Barr Summers, Brentwood, Tennessee, for the appellant, Dominique Nance.
Brad H. Frakes, Nashville, Tennessee, for the appellee, Mark Franklin.
OPINION
I. BACKGROUND
Dominique Nance (“Mother”) and Mark Franklin (“Father”) met and began a
romantic relationship while living in Alabama.1 The Child at issue was conceived from
their relationship and born in Alabama in June 2011. Father moved to Tennessee prior to
the birth, while Mother followed with the Child thereafter. They separated in 2015,
following a domestic violence incident. Mother sought an Order of Protection, but the
matter was ultimately dismissed.
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The parties each have a child from a prior relationship.
Following the separation, Mother accepted the primary parenting responsibility for
the Child. Father enjoyed visitation from time to time but did not have designated co-
parenting time until 2017, when he petitioned for such time. Father has since exercised his
co-parenting time regularly.
In 2018, Mother married Carlton Beckwith (“Stepfather”), also from Alabama. Two
additional children were born from their relationship. Meanwhile, Father began a
relationship with Rosheka Williams, also from Alabama but now living in Tennessee. Ms.
Williams has children from a prior relationship. She is not the custodial parent of her
children, but she frequents Alabama for her co-parenting time.
Mother and Stepfather made plans to move to Alabama with the Child and their
other children. On August 23, 2018, Mother sent a Notice of Intent to Relocate to Father
via certified mail. The return receipt on the certified letter came back marked as
“unclaimed.” On August 30, Mother, through counsel, sent Father a second certified letter,
again advising him of her intent to relocate. On September 17, Mother filed the petition to
relocate at issue in this proceeding. Father objected to the relocation and filed a response
in opposition to the petition and a petition to modify the parenting plan on September 24.
The matter lingered for some time before the case was heard by the Magistrate for
the Juvenile Court of Davidson County over the course of several days in September and
October 2019. The Magistrate denied Mother’s petition to relocate and granted Father’s
petition for modification, awarding him equal co-parenting time on an alternating bi-
weekly basis, by order entered on December 9, 2019. The modified parenting plan was
entered on February 7, 2020.
Mother sought a de novo rehearing before the Judge of the Juvenile Court. The
matter finally proceeded to a final hearing before the juvenile court over the course of
several days in August 2020, during which several witnesses testified. The paternal step-
grandmother testified concerning the parties’ relationship with the Child. She alleged that
Mother’s relationship with the Child was superior to Father’s following the domestic
violence incident.
Mother testified that she lived in Alabama for 30 years prior to her move to
Tennessee with Father in 2011. Her extended family resides in Alabama, and she has
secured gainful employment in Alabama with an increased salary. Further, Stepfather’s
family resides in Alabama. He is also employed in Alabama and has secured living
arrangements for them in the event of their move. She claimed that Father initially agreed
to her plans to relocate but changed his mind once she provided formal notice of her intent.
She believed that the school system was more favorable for the Child than his current
school, at which he has been the subject of bullying.
Mother suggested that the current parenting plan was detrimental to the Child, who
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experienced a decrease in his academic performance that corresponded with Father’s
increased co-parenting time. She asserted that Father will not discuss the Child’s care and
specific needs with her. However, she expressed a willingness to facilitate a healthy
relationship between Father and the Child.
Mother believed she enjoyed a good relationship with the Child and stated that she
was able to spend time with him due to her current favorable work hours. He also enjoyed
spending time with his siblings. She stated, in contrast, that the Child does not spend much
time with Father due to Father’s work schedule. She suggested that the Child spent the
majority of Father’s co-parenting time with Father’s girlfriend, Ms. Williams.
Ms. Williams confirmed that the Child has spent the night at her residence with
Father. She also supervised the Child while school was out due to the Covid-19 pandemic.
She acknowledged that the Child has traveled with her and Father to Alabama to visit her
biological children. She admitted that she no longer has custody of her children following
an incident in which she spanked her youngest child with a belt. She explained that she
was charged with aggravated child abuse but that the charges have since been dismissed.
Father testified that he enjoyed a good relationship with the Child. Father stated
that he and the Child spend time together after school. He retrieves the Child from school
and ensures that the Child finishes homework, eats dinner, and plays outside. He is
employed and has a suitable residence. He stated that he has sufficient income and has
always been able to provide food, clothing, and other necessities for the Child.2
Father stated that the Child is also involved with his nonprofit organization, the
Distinguished Black Gentlemen Association, which frequented the Child’s school prior to
the Covid-19 pandemic. He explained that they visited the school every other Friday to
meet with children who may need some extra help working through their emotions and
disciplinary issues. He stated that the Child attends his meetings with the members of the
organization.
Father alleged that Mother does not communicate with him and tends to “run the
show” where the Child is concerned. He explained that she has prevented his co-parenting
time. He stated that the court awarded him one full week of visitation during Fall Break
of 2017 to make up the time he lost due to Mother’s refusal to comply with the parenting
schedule. He recalled another time in which she refused his co-parenting time due to a
mold issue at his residence. He acknowledged that the court directed him to resolve the
mold situation prior to his co-parenting time. He claimed that despite their differences, he
would facilitate a close relationship between the Child and Mother.
Stepfather confirmed that he is employed in Alabama and that he wishes to live in
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Mother presented evidence to establish that Father’s bank account was regularly overdrawn.
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Alabama with Mother and the Child. He explained that they would likely live in one of
his family’s residences because their initial plan for a residence was delayed due to the
ongoing proceedings. Much of his testimony concerned his disdain for Father and their
less than cordial relationship. Father confirmed the difficulties in their relationship and his
unfavorable feelings toward Stepfather.
The Child, who was nine years old at the time of the hearing, also testified. He
expressed concern about moving away from Father and indicated a desire to remain in
Tennessee to ensure he maintained a close relationship with both parties.
Following the hearing, the trial court denied Mother’s petition to relocate. The court
entered a modified permanent parenting plan applicable only if Mother chose to relocate
without the Child. Mother chose to remain in Tennessee. This timely appeal followed the
entry of an amended final order that clarified some factual information.
II. ISSUES
We consolidate and restate the issues raised on appeal as follows:
A. Whether the trial court had jurisdiction to consider Father’s response
in opposition to the proposed relocation.
B. Whether this appeal should be dismissed for failure to adhere to the
Tennessee Rules of Appellate Procedure.
C. Whether the trial court erred in its refusal to permit the proposed
relocation.
III. STANDARD OF REVIEW
In non-jury cases such as this one, we review the trial court’s factual findings de
novo upon the record, affording them a presumption of correctness unless the evidence
preponderates otherwise. See Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414
S.W.3d 685, 692 (Tenn. 2013). We review questions of law de novo, affording the trial
court’s decision no presumption of correctness. Armbrister, 414 S.W.3d at 692 (citing
Mills v. Fulmarque, 360 S.W.3d 362, 366 (Tenn. 2012)). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be
disturbed absent clear and convincing evidence to the contrary. Morrison v. Allen, 338
S.W.3d 417, 426 (Tenn. 2011).
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IV. DISCUSSION
A.
Mother first argues that the trial court erred in considering Father’s opposition to
her petition when he failed to file a response within 30 days of her notice of intent to
relocate. Parental relocation matters are governed by Tennessee Code Annotated section
36-6-108, most recently clarified by our Supreme Court’s decision in Aragon v. Aragon,
513 S.W.3d 447 (Tenn. 2018). “The Parental Relocation Statute sets out a comprehensive
framework for disputes involving the relocation of a primary residential parent, beginning
with detailed requirements for notice to the non-relocating parent.” Aragon, 513 S.W.3d
at 458. The statute’s notice requirement applicable in this action is as follows:
(a) After custody or co-parenting has been established by the entry of a
permanent parenting plan or final order, if a parent who is spending intervals
of time with a child desires to relocate outside the state or more than fifty
(50) miles from the other parent within the state, the relocating parent shall
send a notice to the other parent at the other parent’s last known address by
registered or certified mail. Unless excused by the court for exigent
circumstances, the notice shall be mailed not later than sixty (60) days prior
to the move. The notice shall contain the following:
(1) Statement of intent to move;
(2) Location of proposed new residence;
(3) Reasons for proposed relocation; and
(4) Statement that absent agreement between the parents or an objection
by the nonrelocating parent within thirty (30) days of the date notice is sent
by registered or certified mail in accordance with this subsection (a), the
relocating parent will be permitted to do so by law.
Tenn. Code Ann. § 36-6-108(a). Father argues and the record confirms that the first notice,
dated August 23, 2018, did not contain a statement providing that absent agreement or
objection within 30 days of the notice, the move would be permitted. The August 30 letter
did provide such a statement, thereby establishing that Father’s petition in opposition to
the move was timely filed on September 24. This issue is without merit.
B. & C.
Father argues that dismissal of this appeal is warranted pursuant to the Rules of the
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Court of Appeals. Rule 6 of the Rules of the Court of Appeals provides that the argument
for each issue shall contain citations to the record pointing to the alleged errors in the trial
court. Rule 6(b) then provides that:
No complaint for reliance upon action by the trial court will be considered
on appeal unless the argument thereon contains a specific reference to the
page or pages of the record where such action is recorded. No assertion of
fact will be considered on appeal unless the argument upon such assertion
contains a reference to the page or pages of the record where evidence of
such fact is recorded.
A review of the appellate brief filed in this case reveals that Plaintiff failed to comply with
Rule 6 of the Rules of the Court of Appeals. “For good cause, we may suspend the
requirements or provisions of these rules in a given case. However, the Supreme Court has
held that it will not find this Court in error for not considering a case on its merits where
the plaintiff did not comply with the rules of this Court.” Bean v. Bean, 40 S.W.3d 52, 54–
55 (Tenn. Ct. App. 2000) (citing Crowe v. Birmingham & N.W. Ry. Co., 1 S.W.2d 781,
781–82 (Tenn. 1928)). Regardless of the potential for waiver, we will briefly address the
merits of this case in the interest of providing a resolution on the merits for those involved
in this parental relocation action, specifically the Child at issue.
Having received a timely petition in opposition to the relocation, the trial court was
then required to determine whether relocation was in the best interest of the Child in
accordance with the following factors:
(A) The nature, quality, extent of involvement, and duration of the child’s
relationship with the parent proposing to relocate and with the nonrelocating
parent, siblings, and other significant persons in the child’s life;
(B) The age, developmental stage, needs of the child, and the likely impact
the relocation will have on the child’s physical, educational, and emotional
development, taking into consideration any special needs of the child;
(C) The feasibility of preserving the relationship between the
nonrelocating parent and the child through suitable visitation arrangements,
considering the logistics and financial circumstances of the parties;
(D) The child’s preference, if the child is twelve (12) years of age or older.
The court may hear the preference of a younger child upon request. The
preference of older children should normally be given greater weight than
those of younger children;
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(E) Whether there is an established pattern of conduct of the relocating
parent, either to promote or thwart the relationship of the child and the
nonrelocating parent;
(F) Whether the relocation of the child will enhance the general quality of
life for both the relocating parent and the child, including, but not limited to,
financial or emotional benefit or educational opportunity;
(G) The reasons of each parent for seeking or opposing the relocation; and
(H) Any other factor affecting the best interest of the child, including
those enumerated in § 36-6-106(a).
Tenn. Code Ann. § 36-6-108(c)(1)–(2).
Here, the trial court provided a detailed order with its findings for each factor. Of
particular interest to the court was the feasibility of preserving the Child’s relationship with
Father in the event of relocation given Mother and Stepfather’s disdain for Father. The
court further considered Mother’s pattern of conduct toward Father in limiting or
preventing his co-parenting time. Lastly, the court found that the relocation would not
enhance the Child’s general quality of life as evidenced by the Child’s concern that the
relocation would inhibit his relationship with Father. The Child has enjoyed equal
visitation with the parties since February 2020. Based upon these findings, the trial court
found that relocation was not in the best interest of the Child. The record supports the trial
courts findings and ultimate determination that the relocation was not in the Child’s best
interest when Mother’s assertions that the Child’s quality of life would improve were
speculative, at best. Accordingly, we affirm the decision of the trial court.
V. CONCLUSION
For the reasons stated above, we affirm the decision of the trial court. The case is
remanded for such further proceedings as may be necessary. Costs of the appeal are taxed
to the appellant, Dominique Nance.
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JOHN W. MCCLARTY, JUDGE
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