Robert John Skowronski v. Donna Rae Wade ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 11, 2015
ROBERT JOHN SKOWRONSKI v. DONNA RAE WADE
Appeal from the Chancery Court for Montgomery County
No. DI03266 Ross H. Hicks, Judge
________________________________
No. M2014-01501-COA-R3-CV – Filed October 27, 2015
_________________________________
This case involves the modification of a permanent parenting plan naming Mother the
primary residential parent. Father petitioned to be named the primary residential parent after
Mother moved with the child out-of-state without providing prior notice. After a one-day
hearing, the trial court found a material change in circumstance and that naming Father the
primary residential parent was in the best interest of the child. Although conceding she failed
to give notice of the move, Mother argues there was no material change in circumstance and
a change in primary residential parent was not in the best interest of the child. We affirm.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Todd Cole, Brentwood, Tennessee, for the appellant, Donna Rae Wade.
John W. Crow, Clarksville, Tennessee, for the appellee, Robert John Skowronski.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 15, 2003, the Chancery Court for Montgomery County, Tennessee
entered a final decree of absolute divorce for Donna Rae Skowronski (“Mother”) from
Robert John Skowronski (“Father”). The couple had one child together, Taylor, who was
born in 2001. As part of the final decree, the trial court approved a permanent parenting
plan, which named Mother the primary residential parent with an excess of 275 days of
parenting time. Father only received minimal parenting time because, at the time of the
divorce, he was active duty military and subject to the possibility of multiple deployments.
In 2007, Mother and Father negotiated a modification of the permanent parenting
plan. Mother desired to move with the child to Oklahoma, but she did not have sufficient
time to provide the requisite statutory notice.1 In consideration for acquiescing to the move,
Mother agreed to give Father ninety days of parenting time with Taylor and to share the cost
of travel for visitation. On August 10, 2007, the court approved a modified permanent
parenting plan reflecting the parties‟ agreement.2
On August 28, 2013, Father filed a Petition for Contempt and Change of Custody. As
grounds for contempt, Father alleged Mother moved to Texas with Taylor without providing
notice. Father further alleged Mother‟s failure to provide notice of relocation coupled with
the move and lack of a stable environment in Mother‟s home constituted a material change of
circumstance justifying a change in primary residential parent. Mother filed a response
admitting her failure to provide notice of her move, but she alleged, among other things, that
she did not have sufficient time to provide notice due to a job offer. Mother also filed a
counter-complaint, seeking an increase in child support.3
At the hearing on Father‟s petition, the trial court heard testimony from both parents.
The court also interviewed then thirteen-year-old Taylor in chambers. Father testified that,
since his divorce from Mother, he had remained with the Air Force and was currently a
squadron operations superintendent with the rank of senior master sergeant. He had
remarried and had a daughter, age three, by his new wife. Although at the time of the hearing
he lived in Georgia, he had received orders for a permanent change of station to Germany
since the filing of the petition.
Father testified his petition to change custody was preceded by an attempt to check
Taylor‟s school grades online. In the interim between the modification of the permanent
parenting plan and the petition, Mother had returned to Tennessee, and Taylor was attending
school in Montgomery County. When he was unable to log in, Father contacted the school
and was advised that Taylor was no longer enrolled. Father then contacted Mother, who
1
The version of Tennessee Code Annotated § 36-6-108(a) in effect at the time required notice to be
“mailed not later than sixty (60) days prior to the move.” Tenn. Code Ann. § 36-6-108(a) (2013). The
permanent parenting plan also contained a provision that tracked the language of the statute.
2
Neither the order nor the modified permanent parenting plan are included in the record on appeal.
3
Mother subsequently dismissed her counter-complaint.
2
informed him of her move to Texas with Taylor. Father stated this was one of several factors
that led to his request for a change in primary residential parent.
Father complained that Taylor‟s life with Mother was not stable. In addition to the
moves to Oklahoma and Texas, Father testified that Mother had moved within Tennessee.
As a result of the moves, the child had attended several different schools. Father stated
Mother had “trouble sustaining employment” and Taylor‟s living conditions were not always
the “best.” He described Mother as struggling financially.
Father also complained that Mother sometimes did not keep him informed of events in
his daughter‟s life. The preceding year Mother had contacted Father to obtain some
information on health insurance. When he inquired as to why, Father learned Taylor was
scheduled for surgery on her legs. Although he agreed the surgery was necessary, he felt he
should have been alerted sooner.
Despite the moves, Father acknowledged Taylor was a good student and seemed
happy living in Texas. She had maintained mostly A‟s and B‟s in school and was involved
in a variety of extracurricular activities. Father also acknowledged Taylor‟s strong
relationship with Mother, with whom Taylor had lived the majority of her life. For the first
couple of years after the divorce, Father had not been able to exercise all of his parenting
time with his daughter due to his deployments overseas.
When asked about Taylor‟s best interest, Father touted the opportunity to live and
attend school in a foreign country. He also claimed he could provide a more stable
environment for Taylor. Although still serving in the military, Father stated it was unlikely
he would be deployed again due to his current position. Father‟s assignment in Germany
would last at least three years, and he could request an extension, which would allow Taylor,
a rising eighth grader, to complete her secondary education in one place. Father conceded
that a change in primary residential parent would be an adjustment for Taylor, but he
described her as a “pretty resilient kid.”
Mother testified that she had married twice since her divorce from Father in 2003. In
addition to Taylor, she had four other children, all except the oldest living with her and her
current husband in a three-bedroom apartment in Texas. She had moved to Texas from
Clarksville in August 2013.
Mother admitted she did not give Father notice of her move to Texas. She stated she
was afraid that, if she gave notice, Father might not return Taylor after his parenting time.
Although Mother moved to Texas because of a job offer, she ultimately did not take the
position because it was not as represented by her prospective employer. After arriving in
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Texas, she found another job, but by the time of the hearing, she had been terminated due to
excessive absences.
Mother testified she has done the best she could to provide a stable environment for
Taylor. When asked whether Taylor has had a stable support environment for the majority of
her life, Mother admitted it has been “rocky.” Mother explained her frequent moves as a
consequence of leasing instead of buying: “If you don‟t own a house, you just go when your
lease is up.” She also attributed one of her moves to mold problems in the home. Mother
claimed to be looking to buy a house in Texas, which would end the constant moving.
As for the changes in school, Mother acknowledged Taylor had attended two different
schools in first grade. Taylor had also changed schools in fourth grade, a change precipitated
by mold in the home. Before moving to Texas and starting a new school, Taylor had started
middle school in Montgomery County.
At the conclusion of the hearing, the trial court granted the petition to change the
primary residential parent. In its written ruling, the court first found “that the Father has
carried his burden of proof showing that a material change of circumstances has occurred
which could not be anticipated by the parties and the same necessitates change of custody
from Mother to Father.” The court then considered the factors under Tennessee Code
Annotated § 36-6-106(a) (2014).4 In doing so, the court found the following factors favored
one parent over the other:
2) The disposition of the parents or caregivers to provide the child with food,
clothing, medical care, education and other necessary care and the degree to
which a parent or caregiver has been the primary caregiver. The Court finds
that the Mother‟s unstable employment history casts doubt upon her ability to
provide for the minor child. By contrast, the Father has had stable employment
since the divorce and is fully capable of providing for the child. Further, the
Court finds that due to the Mother‟s many relocations, the child has had to
change schools seven (7) different times. The Court finds these changes as
unstable for the child‟s benefit. This factor favors the Father.
3) The importance of continuity in the child‟s life and the length of time the
child has lived in a stable, satisfactory environment; provided, that, where
there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-
4
The hearing in this case took place before the effective date of the 2014 revisions to
Tennessee Code Annotated § 36-6-106(a). The citations in this opinion are to the pre-2014 version
of the statute.
4
15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one
(1) parent, and that a non-perpetrating parent or caregiver has relocated in
order to flee the perpetrating parent, that the relocation shall not weigh against
an award of custody. The Court finds that since the parties‟ divorce in 2003,
the Mother has moved eleven (11) different times. Due to the Mother‟s many
moves, the child has been forced to change schools seven (7) different times.
The Mother has three (3) other children and her husband living in a three
bedroom apartment. The minor child must share a bedroom with her much
younger sister. The Court finds that under the Mother‟s care, the child has not
lived in a stable, satisfactory environment. By contrast, the Father will be
transferred to Germany in July 2014 due to military orders. However, the
Court finds that this move does not affect the stability of the Father or his
ability to provide a stable home for the minor child. This factor favors the
Father. There is no evidence of any abuse.
4) The stability of the family unit of the parents or caregivers. The Court has
taken into consideration the stability of the family unit of the parents regarding
the minor child and finds the Mother‟s family unit to be unstable. By Mother‟s
own testimony, the child‟s life has been described as “rocky” while in
Mother‟s care. Mother also shows a lack of stability in her employment and
her ability to financially support the child. Father has remarried and has a
second daughter with his current Wife. While Father will be transferred to
Germany due to military orders, the Court finds that this move does not affect
the stability of the Father. The Court finds that the Father has demonstrated
that he is a stable person and will provide a stable home for the minor child.
This factor favors the Father.
....
6) The home, school and community record of the child. The Court finds that
the child has made good grades under Mother‟s care and has been involved in
many different extracurricular activities. However, the Court finds that the
minor child‟s frequent change in schools has resulted in a lack of stability for
the child. This factor slightly favors the Father.
7) The reasonable preference of the child, if twelve (12) years of age or older.
The Court finds that the child is a well-mannered and very intelligent young
lady. She seems to have a good understanding of the present custody action.
The Court finds that the child‟s preference is to stay with the Mother. The
Court also finds that the primary reasons the child wants to stay in care of the
5
Mother is based upon the close relationship with her half-siblings on her
Mother‟s side and the friendships she has developed in Texas. This factor
favors the Mother.
....
10) Each parent‟s or caregiver‟s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of the
parents and caregivers to facilitate and encourage a close and continuing
parent-child relationship between the child and both of the child‟s parents,
consistent with the best interest of the child. In determining the willingness of
each of the parents and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and both of the child‟s
parents, the court shall consider the likelihood of each parent and caregiver to
honor and facilitate court ordered parenting arrangements and rights, and the
court shall further consider any history of either parent or any caregiver
denying parenting time to either parent in violation of a court order. The Court
finds that Mother did not comply with [Tennessee Code Annotated] § 36-6-
108, the parental relocation statute, in her move to Texas and she acted in a
clandestine manner by not informing Father of her move to Texas until after
she had moved to Texas. Further the Court finds that the evidence
preponderates in favor of Father‟s claims that he was not notified of other
moves that Mother made. This factor favors the Father.
The court also adopted a new permanent parenting plan, which was appended to the order.5
With regard to Father‟s contempt petition, the court found Mother in civil contempt but did
not impose any sanctions.
Mother appeals the decision to modify the permanent parenting plan by designating
Father as the primary residential parent.
II. ANALYSIS
Adjudicating disputes over who should be designated the primary residential parent is
one of a court‟s greatest responsibilities. Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn.
Ct. App. 2007). A court‟s designation of the primary residential parent as part of a final
5
Although the permanent parenting plan provides Mother 42 days of parenting time, the Order of
Change of Custody grants Mother six consecutive weeks of visitation in the summer and one week at
Christmas. This discrepancy is not raised as an issue on appeal.
6
decree of divorce is considered res judicata upon the facts in existence or those which were
reasonably foreseeable when the decision was made. Steen v. Steen, 61 S.W.3d 324, 327
(Tenn. Ct. App. 2001). However, because circumstances change in unanticipated ways,
courts are statutorily empowered to modify a primary residential parent designation. See
Tenn. Code Ann. § 36-6-101(a)(1) (A decree awarding custody of minor child “shall remain
within the control of the court and be subject to such changes or modification as the
exigencies of the case may require.”).
Courts apply a two-step analysis to requests to change the primary residential parent
designation. Keisling v. Keisling, 196 S.W.3d 703, 718 (Tenn. Ct. App. 2005). The
threshold issue is whether a material change in circumstance has occurred since the court‟s
prior custody order. See Armbrister v. Armbrister, 414 S.W.3d 685, 697-98 (Tenn. 2013);
Tenn. Code Ann. § 36-6-101(a)(2)(B). Only if a material change in circumstance has
occurred do we consider whether a modification is in the child‟s best interest. Armbrister,
414 S.W.3d at 705. The “determinations of whether a material change of circumstances has
occurred and where the best interests of the child lie are factual questions.” In re T.C.D.,
261 S.W.3d 734, 742 (Tenn. Ct. App. 2007).
On appeal, Mother faults both the factual findings that there was a material change of
circumstance and that a change in the primary residential parent was in the child‟s best
interest. Mother also argues the court only modified the permanent parenting plan to punish
her for her failure to comply with the parental relocation notice requirements.
A. STANDARD OF REVIEW
We review the trial court‟s findings of fact de novo on the record with a presumption
of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d);
Armbrister, 414 S.W.3d at 692. In weighing the preponderance of the evidence,
determinations of witness credibility are given great weight, and they will not be overturned
without clear and convincing evidence to the contrary. In re Adoption of A.M.H., 215 S.W.3d
793, 809 (Tenn. 2007). “Because „[c]ustody . . . determinations often hinge on subtle factors,
including the parents‟ demeanor and credibility during . . . proceedings themselves,‟ appellate
courts „are reluctant to second-guess a trial court‟s decisions.‟” In re Alexandra J.D., No.
E2009-00459-COA-R3-JV, 2010 WL 5093862, at *3 (Tenn. Ct. App. Dec. 10, 2010)
(quoting Johnson v. Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004)). We review the
trial court‟s conclusions of law de novo with no presumption of correctness. Tenn. R. App.
P. 13(d); Armbrister, 414 S.W.3d at 692.
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B. MODIFICATION OF THE PRIMARY RESIDENTIAL PARENT DESIGNATION
1. Material Change in Circumstance
The parent requesting a change in the primary residential parent has the burden of
proving the threshold issue of a material change in circumstance by a preponderance of the
evidence. Tenn. Code Ann. § 36-6-101(a)(2)(B). In determining whether a material change
has occurred, courts consider the following factors: “(1) whether a change has occurred after
the entry of the order sought to be modified; (2) whether a change was not known or
reasonably anticipated when the order was entered; and (3) whether a change is one that
affects the child‟s well-being in a meaningful way.” Cranston v. Combs, 106 S.W.3d 641,
644 (Tenn. 2003).
Not every change in circumstance is a material change; “[t]he change must be
significant before it will be considered material.” In re T.C.D., 261 S.W.3d at 744.
However, the change does not have to pose “a substantial risk of harm to the child.” Tenn.
Code Ann. § 36-6-101(a)(2)(B). “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.” Id.
Mother argues there was no material change in circumstance warranting a
modification of the primary residential parent designation. As an initial matter, Mother
correctly points out that, although it found “that the Father has carried his burden of proof
showing that a material change of circumstances has occurred,” the trial court did not state
what the material change of circumstance was. In this instance, the court was required to
state “the reason and the facts that constitute the basis for the custody determination.” Id.
§ 36-6-101(a)(2)(B)(i); Tenn. R. Civ. P. 52.01 (“[i]n all actions tried upon the facts without a
jury, the court shall find the facts specially and shall state separately its conclusions of law
and direct the entry of the appropriate judgment.”).
When confronted with insufficient findings of fact in a written order, appellate courts
generally pursue one of two alternatives. One alternative is to vacate the decision and
remand so the trial court can make specific findings of fact. Lovlace v. Copley, 418 S.W.3d
1, 36 (Tenn. 2013). Another alternative is to conduct a “de novo review of the record to
determine where the preponderance of the evidence lies.” Id. The appropriate alternative
depends on the particular circumstances of the case, including the adequacy of the record, the
fact-intensive nature of the case, and whether witness credibility determinations must be
made. See id. (declining to conduct a de novo review because credibility determinations
were necessary to resolve factual disputes).
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In this circumstance, we find a de novo review of the record appropriate. The record
is adequate. More importantly, the court addressed the facts relied upon by Father in his
request for a change in primary residential parent in conjunction with its analysis of the
child‟s best interest.
Based on the record before us, Mother argues Father failed to show a material change
in circumstance. While she admits to violating the terms of the parenting plan and Tennessee
Code Annotated § 36-6-108(a) by failing to notify Father of her move to Texas, Mother
submits a single violation cannot rise to the level of a material change in circumstance. As
noted above, a material change of circumstance may include “failures to adhere to the
parenting plan.” Tenn. Code Ann. § 36-6-101(a)(2)(B). However, we have been disinclined
to allow a single incident to serve as the basis for changing a primary residential parent
designation:
[A]n apparently isolated episode of poor judgment . . . is
insufficient to establish a material change of circumstance. If
that were the case, no parent ever would be able to maintain
custody of his or her children as parents are inherently human
and fallible. A parent is not required to be perfect or error free in
his/her parenting in order to avoid there being a material change
of circumstances.
Beckham v. Beckham, No. M2007-02863-COA-R3-CV, 2009 WL 690692, at *12 (Tenn. Ct.
App. Mar. 13, 2009).
In this instance, we find Mother‟s argument unavailing because the lack of notice of
her move to Texas is not the sole basis for finding a material change in circumstance. The
change in circumstance can best be described as a lack of stability in the life of Mother since
she was designated primary residential parent. As the record reflects, Mother‟s move to
Texas was not her only move, and Mother‟s moves have directly impacted Taylor by
necessitating changes in schools. As Mother conceded, Taylor‟s support system has been
“rocky.”6 At the same time, while his life may have lacked stability at the time of the divorce
due to his military career and deployments, Father‟s life has become more stable.
After a thorough review of the record, we find that Father did show a material change
in circumstance. Mother‟s move to Texas, by itself, may not rise to the level of a material
6
Taylor has seen counselors on two separate occasions, but the trial court found she did not have any
ongoing issues that required counseling.
9
change in circumstance, but the Texas move coupled with the prior eleven years of moves
does.
2. Best Interest of the Child
A material change of circumstance only permits the court to reexamine the parenting
plan in light of the child‟s best interest. In re T.C.D., 261 S.W.3d at 746. The best interest
analysis is a “particularly fact-intensive process.” McEvoy v. Brewer, No. M2001-02054-
COA-R3-CV, 2003 WL 22794521, at *5 (Tenn. Ct. App. Nov. 25, 2003). Under the
analysis, the trial court must determine which parent is “comparatively more fit than the other
to be the custodial parent.” Id.
Mother makes two arguments relative to the trial court‟s best interest analysis. First,
she argues the trial court did not conduct a best interest analysis at all. Second, she argues
the court failed to properly apply the best interest factors to the evidence in this case.
We can dispense with the first argument quickly. In its order, the court provides
“Father has carried his burden of proof showing that a material change of circumstances has
occurred which could not be anticipated by the parties and the same necessitates a change of
custody from Mother to Father.” A material change in circumstance does not necessitate a
change in the primary residential parent. In re T.C.D., 261 S.W.3d at 746. Yet, the order‟s
misstatement of the law does not convince us that the court failed to conduct a best interest
analysis. The order addresses each of the relevant statutory best interest factors, and the
order provides detailed findings of fact in conjunction with each factor it considered.
Mother also claims the trial court erred in its application of the best interest factors. In
general, Mother complains the trial court placed too much importance on instability and not
enough on continuity. Mother also argues the trial court should have given greater weight to
the child‟s preference. Finally, Mother claims the evidence does not support the trial court‟s
finding that factor 10, Mother‟s willingness to foster a close relationship between the child
and Father, favored Father. To address Mother‟s argument, we review each factor the trial
court considered as favoring one party over the other.
Factor 2 focuses on the willingness of the parents to provide the child with food,
clothing, and other necessities and the degree to which a parent has been the primary
caregiver. Tenn. Code Ann. § 36-6-106(a)(2). The trial court found factor 2 favored Father
because Mother‟s many moves, job history, and the school changes made the child‟s
environment unstable. The order concludes that “Mother‟s unstable employment history
casts doubt upon her ability to provide for the minor child.” In contrast, the court found
Father had a stable employment history. The record reflects that Mother has been the
10
primary caregiver since the divorce. Although the trial court found that Mother‟s job history
casts doubt on her ability to provide for Taylor, the record contains no proof that the child
ever went without any necessary care. Mother has consistently been willing to provide for
Taylor. We find that the evidence preponderates against the trial court‟s finding that factor 2
favors Father.
Mother claims the trial court did not consider the importance of continuity under
factor 3. Factor 3 involves an evaluation of the importance of continuity and the length of
time the child has lived in a “stable, satisfactory environment.” Id. § 36-6-106(a)(3).
Although it does not trump the other best interest factors, continuity is a significant factor in
child custody cases because stability is important to any child‟s well-being. Gaskill v. Gaskill,
936 S.W.2d 626, 630 (Tenn. Ct. App. 1996); see In re Sidney J., 313 S.W.3d 772, 777 (Tenn.
2010) (noting that continuity is an important factor in the best interest analysis); Wall v. Wall,
No. W2010-01069-COA-R3-CV, 2011 WL 2732269, at *30 (Tenn. Ct. App. July 14, 2011)
(noting that continuity in a child‟s life and the degree to which one parent has been the
primary caregiver are “powerful considerations”).
The trial court found “under the Mother‟s care, the child has not lived in a stable,
satisfactory environment.” The trial court discounted any benefit the child would receive
from continuity because the court found the child‟s current environment was unstable.
“Children thrive in stable environments.” Oliver v. Oliver, No. M2002-02880-COA-R3-CV,
2004 WL 892536, at *2 (Tenn. Ct. App. Apr. 26, 2004). “The purpose of the emphasis on
continuity and the primary caregiver is to provide children without an intact family with as
much stability and security as possible.” Maxwell v. Woodard, No. M2011-02482-COA-R3-
CV, 2013 WL 2420500, at *20 (Tenn. Ct. App. May 31, 2013). “Accordingly, when the
evidence shows that continuity does not provide a child with stability, the justification for
maintaining the current custody arrangement diminishes, and the evidence may support a
finding that it is in the child‟s best interest to change custody.” Solima v. Solima, No. M2014-
01452-COA-R3-CV, 2015 WL 4594134, at *4 (Tenn. Ct. App. July 30, 2015). See Wall,
2011 WL 2732269, at *30. The trial court found Taylor has never lived in a stable,
satisfactory environment. Consequently, we cannot conclude that the evidence
preponderates against the trial court‟s finding that factor 3 favors Father.
Factor 6 concerns the child‟s home, school, and community record. Id. § 36-6-
106(a)(6). Although the trial court found that Taylor has been a successful student and has
been involved in a variety of extracurricular activities, the court also found that Taylor‟s
frequent school changes created a lack of stability. Taylor‟s good grades do not preclude the
court from finding that her constant school changes have been detrimental to her. See
S.A.M.D. v. J.P.D., W2011-01256-COA-R3-CV, 2012 WL 5266194, at *17 (Tenn. Ct. App.
Oct. 25, 2012). The trial court found that factor 6 only slightly favored Father. While this
11
factor presents a close question, the evidence does not preponderate against the finding of the
trial court.
Mother argues the court should have placed greater weight on Factor 7, the only factor
the trial court found in Mother‟s favor. Factor 7 requires the court to consider the child‟s
preference. Id. § 36-6-106(a)(7). The trial court acknowledged Taylor preferred to live with
Mother. We have stated on numerous occasions a child‟s preference is only one of many
factors to be given consideration in a custody determination. While a child‟s preference can
be considered, it is not controlling on the court. Scoggins v. Scoggins, No. M2007-02148-
COA-R3-CV, 2008 WL 2648966, at *6 (Tenn. Ct. App. July 2, 2008).
Mother argues that the trial court erred in finding that factor 10 favored Father. Under
factor 10, the trial court must consider each parent‟s willingness to foster a close relationship
between the child and the other parent. Id. § 36-6-106(a)(10). The trial court found that
Mother‟s moves without notifying Father evidenced an unwillingness to support a close
relationship between Taylor and Father. While Mother testified that she has never interfered
with visitation between Taylor and Father, Father is entitled to know the whereabouts of his
daughter. The fact that Father has been able to find his daughter each time she has moved
does not detract from Mother‟s apparent indifference to Father‟s rights. The evidence in this
case does not preponderate against the trial court‟s finding that factor 10 favored Father. The
trial court properly considered Mother‟s pattern of moving without notifying Father as
evidence of her unwillingness to foster a close relationship between Taylor and Father.
Based on the foregoing, we cannot conclude that the trial court erred in finding that it
was in Taylor‟s best interest to designate Father the primary residential parent. Even if factor
2 in addition to the child‟s preference favored Mother as the primary caregiver, factors 3, 4,
6, and 10 still favored Father.
C. MODIFICATION AS PUNISHMENT
As we have noted, “[p]arenting plans should never be used to punish or reward the
parents for their human frailties or past mis-steps.” Shofner v. Shofner, 181 S.W.3d 703, 716
(Tenn. Ct. App. 2004). Mother contends, again relying on language in the order, that the trial
court made Father the primary residential parent as punishment for her failure to notify
Father of her move to Texas. The order provided as follows:
The Court does find that the Mother [is] in civil contempt for
failure to properly notify Father of her intent to move to Texas
in August 2013. The Court finds that the Mother moved away in
a clandestine manner in an attempt to prevent Father from
12
discovering her move before it was made. However, the only
sanction that the Court will award to Father as a result of
Mother‟s actions is that he shall be awarded custody of the
minor child.
We do not agree with Mother‟s interpretation of the trial court‟s order. Read in
context, the paragraph cited by Mother merely indicates the court was not disposed to impose
sanctions for Mother‟s contempt in light of its independent decision to designate Father the
primary residential parent. The court considered the appropriate factors in modifying the
parenting plan, and as noted above, Mother‟s failure to give notice before her move was only
one fact among many relied upon by the court.
III. CONCLUSION
For the foregoing reasons, the decision of the chancery court is affirmed.
_________________________________
W. NEAL MCBRAYER, JUDGE
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