Joseph Martin Colley v. Alisha Dale McBee ( 2017 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 18, 2016 Session
JOSEPH MARTIN COLLEY v. ALISHA DALE MCBEE
Appeal from the Circuit Court for Marion County
No. 15829 J. Curtis Smith, Judge
___________________________________
No. M2014-02296-COA-R3-CV – Filed February 2, 2017
___________________________________
This case concerns modification of a parenting plan. Following her divorce in
Tennessee, Mother moved with her child to Maryland. Father initially opposed the move,
but an agreed order entered after the move adopted an amended permanent parenting
plan, which named Mother the primary residential parent. The amended permanent
parenting plan granted Father parenting time over the summer, during certain holidays,
and when either Father traveled to Maryland or Mother traveled to Tennessee. After
experiencing difficulties exercising parenting time and growing concern over Mother‟s
care of the child, Father filed a petition requesting to be named primary residential parent.
The trial court denied the request. Although it found a material change in circumstances
based on the child‟s serious mental health issues, the court determined that it was in the
best interest of the child to remain with Mother. Father appeals arguing that the trial
court erred in: (1) finding it was in the child‟s best interest for Mother to remain the
primary residential parent; (2) not finding Mother in contempt; and (3) awarding
attorney‟s fees to Mother. We affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT
and RICHARD H. DINKINS, JJ., joined.
Joseph Martin Colley, Whitwell, Tennessee, pro se appellant.
Trudy Bloodworth, Nashville, Tennessee, for the appellee, Alisha Dale McBee.
OPINION
I. FACTUAL HISTORY AND PROCEDURAL BACKGROUND
Alisha Dale McBee (“Mother”) and Joseph M. Colley (“Father”) are the parents of
a child (“Child”) born in 2003. They divorced on February 17, 2006, when Child was
two. Mother was designated the primary residential parent.
In 2008, Mother moved with Child to Maryland. In response, Father filed a
petition opposing parental relocation, to find Mother in contempt, and to modify custody
in the Circuit Court for Marion County, Tennessee. The parties successfully mediated
their dispute, and on April 17, 2008, the court entered an agreed order, which modified
the previous permanent parenting plan.
Under the amended permanent parenting plan, Mother remained the primary
residential parent. But the plan did not specify a number of days for Father to exercise
his parenting time. The plan granted Father parenting time on every spring break and for
thirty-five consecutive days in the summer. Otherwise, Father‟s parenting time was
contingent on the parents‟ travel schedule.
The new plan allowed Father parenting time if he traveled to Maryland, and the
plan also required Mother to notify Father if she traveled to Tennessee. If Mother came
to Tennessee for Thanksgiving, Child went to Father on Thanksgiving Day at 2:00 p.m.
If Mother did not come to Tennessee for Thanksgiving, the parties were to alternate the
Thanksgiving holidays. For Christmas, if Mother came to Tennessee, Child went to
Father from noon on Christmas day until the day before school or the date of Mother‟s
departure. If Mother did not come to Tennessee, Child went to Father on December 23
until the day before school.
On April 16, 2012, Father filed a petition to modify the parenting plan. Father
alleged a material change in circumstances because of Mother‟s failure to notify Father of
Child‟s multiple hospitalizations due to mental health issues and withholding of medical
information regarding Child. Father also alleged that Mother stated she was “unable to
„handle‟ the child.” According to Father, Mother‟s lifestyle was unstable and negatively
affected Child‟s mental and physical health. Father attached a proposed parenting
schedule to his petition, which essentially swapped the provisions from the amended
permanent parenting plan in terms of primary residential parent and parenting time.
A. PROOF AT HEARING
On April 11 and 29, 2014, the trial court held a hearing on Father‟s petition. Both
parents testified, offering contradictory views of Child‟s mental health. According to
2
Mother, Child started counseling and therapy in 2007 at the age of four. That year, Child
ate the pet fish; was harming himself; had problems with other children at preschool; and
was lashing out, hitting, spitting, and biting. Specifically at home, Child‟s behavior
included banging his head against the wall; spinning; holding his half-sister down and
pulling her hair; running into walls trying to harm himself; trying to harm the family dog;
and pulling the tails off of two gerbils.
Child started in a “regular” school and continued therapy, but an incident late in
2010 changed that. According to Mother, during bath time, Child ripped a towel bar off
of the bathroom wall and attempted to hit Mother on the head. Child‟s half-sister and
Mother locked Child in the bathroom, but Child continued to beat on the door and broke
all of the glass in the bathroom. Mother called the police, and they transported him to the
Rockford Center, a mental health facility. This episode led to a series of hospitalizations
for Child in 20101 and 2011.
During this time period, Child also began taking medications for his behavior.
According to Mother, Child took medications for attention-deficit/hyperactivity disorder
(“ADHD”) and mood and anxiety disorders.
In July of 2012, following a visit with Father, Mother took Child to the doctor
because, upon his return, he was very agitated, fidgety, and vomiting. The doctor‟s visit
led to Child‟s admission at Sheppard Pratt, another mental health facility. July 1, 2012,
would be the last time Father saw Child.
Child returned to Sheppard Pratt in December of 2012. Thereafter, Child had
multiple admissions, primarily at Sheppard Pratt, through August of 2013. The
admissions generally lasted weeks.
In August 2013, Child went from Sheppard Pratt to St. Vincent‟s Villa, a
residential treatment facility for children with behavioral and emotional challenges. At
the time of the hearing on Father‟s petition, Child had been at St. Vincent‟s Villa
continuously except for the weekly twenty-four hour periods that Mother was allowed to
bring Child home for visits.
Father‟s assessment of Child‟s mental health and behavior was markedly different
than Mother‟s. In most respects, Father believed Child to be like any other child. At one
point, Father compared child to his step-son:
He – [Step-son], he – they have the same traits when it comes to, you know,
they – [Child], he gets up in the morning. He is a good kid. He‟s got a
smile on his face first thing in the morning. He goes to bed at night. You
1
There was conflicting testimony on when the hospitalizations began.
3
don‟t have to chase him off to bed. He is good about that. Overall, he is –
he is a good kid. He just – he is always – he is full of energy. He – he
loves his LEGOs and all that stuff like that, you know. He‟s got his shows
that he likes and stuff like that, but he is no different than [Step-son] is
when it comes to – I mean, they are both, you know, good kids. In my
opinion, they are – they act like any other kid.
Father did not dispute the diagnoses for Child, but he did question Child‟s
treatment. Father described an incident in 2009 after giving Child the medication Mother
had provided:
I‟d bought [Child] a bunch of these Star Wars action figures and he was in
there playing and he got quiet and the next thing I know, he is walking
around the house and he is mumbling. And I said, “what are you saying,
buddy?” And he finally got close enough I could hear what he was saying
and he was looking for his action figures. Well, the whole time he had
every one of his action figures in his hand, but it‟s just like he went from
being normal to like a zombie just wandering the house and it just scared
me to death, you know.
Father felt that Child could be treated on an outpatient basis and needed to be home. He
also felt that the repeated hospitalizations were harmful. Father testified that he had
researched and lined up psychiatric care and special education services for Child should
he become the primary residential parent.
Father also testified regarding problems he experienced with Mother. When Child
did visit, Father claimed that Mother would only send enough medication for the duration
of the visit, providing no extra for unforeseen circumstances. Father stated, and Mother
acknowledged, in one instance she did not send enough medication for Child‟s visit with
Father and, in another instance, provided medication in bottles with hand-written labels.
Father complained about Mother‟s failure to inform him of Child‟s
hospitalizations. Once, Father only discovered Child had been hospitalized through
family members who presumably heard from Mother‟s family living in Marion County.
In her testimony, Mother seemed to blame the failure to communicate on hospital rules
that prevented her from using her mobile phone, but she denied intentionally keeping
information from Father. However, she admitted on cross-examination that she had not
kept Father informed of changes in school, which was a requirement of the amended
permanent parenting plan.
Since July 1, 2012, Father has had limited contact with Child. He telephoned
Child at St. Vincent‟s, but he was not always allowed to speak with him. When he
4
attempted to arrange a visit, St. Vincent informed Father that the visit would have to be
approved by Mother and arranged through her.
In addition to testimony at the hearing, the trial court admitted the depositions of
individuals involved in Child‟s treatment at St. Vincent‟s Villa: Paula Sherman,
Dr. Mohammad Miasami, and Mindy Leifer. Ms. Sherman worked as an intern at St.
Vincent‟s Villa; at the time, she was studying for her Masters Degree in Social Work.
Her testimony related to Child‟s individual therapy, family therapy, and group therapy.
Ms. Sherman testified that Child was not very interested in therapy initially. She
stated that his behavior was “unsafe.” She explained that the facility had to make sure
that someone was always there in case the therapists needed assistance. Child would
“bolt,” as in he would suddenly run out of the unit. They knew that he had a history of
violence with other people based upon the unit he had been in previously. She described
him as being agitated on some days and happy on others. According to her, many factors
affected his state of mind.
Despite this, Ms. Sherman testified that Child was making progress towards the
goal of going home. She stated Child had been less violent overall and had made better
peer relationships and staff relationships. She described Child as working on improving
his behaviors and coping skills and stated that he “really wants to do well” at St.
Vincent‟s. Ms. Sherman also stated that Child‟s relationship with Mother was very good
and that they worked well as a team.
Yet, Ms. Sherman also stated that Child had a lot left to do. She testified that his
behavior was very unpredictable and he had trouble controlling his behavior. She opined
that more time in a residential center would be helpful to him.
Dr. Mohammad Miasami, a professor of psychiatry and pediatrics at Johns
Hopkins University, conducted Child‟s initial psychiatric evaluation upon his admission
to St. Vincent‟s. He diagnosed Child with mood disorder (not otherwise specified);
oppositional defiant disorder; ADHD; autism spectrum disorder; and a parent-child
relational problem. He also testified about residential care and why it was beneficial to
Child. He stated that ninety percent of the time, residential care, such as that offered at
St. Vincent‟s, was preceded by hospitalization and acute care. Residential care provided
intensive integrated multi-model therapies, including “individual therapy, . . . group
therapy, . . . recreational therapy, . . . [and] residential counselors, [to] monitor and sector
and supervise him 24/7.” St. Vincent‟s also provided “a special educational program,
instructional assistance, crisis management and supervision.”
Dr. Miasami also testified about Child‟s medications. Dr. Miasami had prescribed
several medications. Child‟s medications included Depakote, a mood stabilizer;
Trazodone, a mild antidepressant used for sleep; Clonidine, to control ADD
5
hyperactivity/ADHD and to help Child calm down; Vyvanse, for ADHD; Abilify, used
for controlling assault disorder and aggression as well as augmenting the mood stabilizer;
and DDAVP, used for bedwetting.
Dr. Miasami opined that Child had made relative improvement, but not to the
extent that he could leave residential treatment. Dr. Miasami explained:
[Child] has [sic] extreme irritable [sic], all the things that you said,
that I identified as major or chief complaints. All those problems interferes
[sic] with his individual relationships, with peer relationships, compliance
with the routine, and at times he becomes self-injurious and aggressive. I
have to say all those exist, but the severity is reduced and frequency is
reduced, but he still has problems. When he still needs one-to-one
[therapy] in school and one-to-one [therapy] in residence, that means he
still needs intensive therapy, our residential treatment therapy. And the
good advantage we have is his school is walking distance within five
minutes from the residence and the team could collaborate with each other,
enhance his improvement and provide consistency, consistency to change
behavior. Changing the old behavior and teaching him new behavior takes
a lot of effort, consistency and consistency.
....
At this stage, I could testify to the fact that he still requires the
treatment provided. I do know that he has had some momentum and some
improvement, and I do think if we make any changes, because particularly
he has autism and transitions are very difficult for him, he would lose the
gain he‟s had here so far. It doesn‟t mean in future [sic] if he made enough
of improvement and there‟s another identical program like ours found in
any geographic place, we may not be able to help the transition, but at the
present time, he cannot move to less [sic] restrictive environment and he‟s
not finished with his treatment here.
Dr. Miasami stated that the eventual goal of any treatment was to discharge the patient.
But, in Child‟s case, his treatment team believed he still required treatment at St.
Vincent‟s.
Mindy Leifer was a social worker at St. Vincent‟s. She worked as an individual,
group, and family therapist for a unit of ten boys, which included Child. When Child
first came to St. Vincent‟s, he “presented with anxiety, conduct issues, school problems,
social and problems with peers and problems with self-care and some sleep problems.”
She explained that Child‟s parent-child relational diagnosis related to his difficulty in
accepting directives, being aggressive, and being oppositional at home.
6
Ms. Leifer described Child‟s treatment plan and care.
[I]ndividual therapy to assist him in dealing with past traumas, identifying
feelings, working on social skills, peer relationships, getting along at home,
dealing with mood lability. We have psycho pharmacotherapy, which is
basically use of psychotropic drugs. He‟s on medication to deal with mood,
deal with hyperactivity and impulsivity, to deal with attention deficit and to
deal with sleep difficulties. He has family therapy to help others learn
about his illness, help them work with issues at home, group therapy to deal
with social and peer relationships. There are therapeutic milieu, which is
day-to-day living. He attends a private separate day school which provides
a small classroom, crisis intervention, one-to-one assistance.
Ms. Leifer also described Child‟s progress. According to her, Child was
responding well to his therapy at St. Vincent‟s and was improving. However, she opined
that it would not be in Child‟s best interest to be discharged because, while he had
improved, he would not be successful without the structure provided by St. Vincent‟s.
Ms. Leifer stated that, when Child was first brought to St. Vincent‟s, he heard voices and
that had subsided. But she warned that the voices might return if he was discharged too
early. In addition, according to Ms. Leifer, leaving at this point in his therapy would be
stressful, and he was at risk of causing harm to himself due to his impulsivity.
Ms. Leifer testified that, although the ultimate goal was for Child to be released,
he would be unable to attend a regular public school. She did not believe he could
manage a public school. She thought he would most likely have to attend a school run by
St. Vincent‟s and be evaluated yearly.
B. TRIAL COURT‟S RULINGS
On October 10, 2014, the trial court entered its Memorandum Opinion and Order
denying Father‟s request for a change of primary residential parent. Although finding
Mother not to be credible, the court explained that “her testimony about [Child‟s] mental
health problems [wa]s corroborated by medical proof.” The court found that Child had a
“significant psychological illness” and noted that he had been diagnosed with disruptive
mood dysregulation disorder, ADHD, and autism spectrum disorder.
Based on Child‟s mental condition, the court concluded that there had been a
material change of circumstance since approval of the amended permanent parenting
plan. See Tenn. Code Ann. § 36-6-106(a)(2)(B) (2014). However, after considering the
best interest factors, see Tennessee Code Annotated § 36-6-106(a) (2014),2 the court
2
The hearing in this case took place before the effective date of the 2014 revisions to Tennessee
7
determined that it was in Child‟s best interest to remain with Mother and to continue with
his current mental health providers in Maryland.
In the Memorandum Opinion and Order, the trial court also denied Father‟s
request to hold Mother in contempt for violation of the amended permanent parenting
plan. The court determined that Mother‟s decision to prevent Father from exercising his
parenting time in Tennessee was due to medical necessity and not a willful violation of
the plan.
On May 5, 2015, the trial court entered a separate order approving a parenting
plan. The order provided the amended permanent parenting plan would remain in place,
but the court adopted an alternative parenting plan to be effective when Child was “in
residential and/or in-patient treatment.” Under the order, Mother was required to notify
the circuit court clerk in writing within five days of Child‟s admission or discharge from
a residential or in-patient treatment program.
On May 26, 2015, the trial court entered an order on Mother‟s request for award of
her attorney‟s fees and costs. The court awarded Mother $7,000 in attorney‟s fees to be
paid at the rate of $500 per month.
II. ANALYSIS
On appeal, Father argues the trial court erred in: (1) finding a material change but
still determining it to be in the best interest of the child to remain with Mother; (2) failing
to find Mother in contempt; and (3) awarding Mother $7,000 in attorney‟s fees.
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 v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). 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.
Code Annotated § 36-6-106(a). The citations in this opinion are to the pre-2014 version of the statute.
8
B. PRIMARY RESIDENTIAL PARENT
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 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) (Supp. 2016) (indicating a
decree awarding custody of a 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 primary residential parent designation
decisions. 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. Armbrister, 414 S.W.3d at 697-98; 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). Decisions on questions related to custody and visitation
should be directed towards promoting the children‟s best interests by placing them in an
environment that will best serve their physical and emotional needs. Shofner v. Shofner,
181 S.W.3d 703, 716 (Tenn. Ct. App. 2004); Gaskill v. Gaskill, 936 S.W.2d 626, 630
(Tenn. Ct. App. 1996).
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 this case, Father does not contest
the trial court‟s finding a material change. Rather, Father argues that the trial court erred
in determining the child‟s best interest.
In determining a child‟s best interest, courts must consider a non-exclusive list of
factors found at Tennessee Code Annotated § 36-6-106(a). 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.
9
As stated above, the determination of where the best interests of the child lie is a
factual question. In re T.C.D., 261 S.W.3d at 742. On appeal, we presume that the trial
court‟s findings are correct unless the evidence preponderates against them. Armbrister,
414 S.W.3d at 693; see Tenn. R. App. P. 13(d). In order for evidence to preponderate
against a finding of the trial court, it must support another finding of fact with greater
convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing
Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000)).
The trial court made factual findings relative to several of the best interest factors.
In doing so, the court determined the following factors favored Mother over Father:
(1) The strength, nature, and stability of the child’s relationship with
each parent, including whether one (1) parent has performed the
majority of parenting responsibilities relating to the daily needs of the
child; and
(5) 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. Because of [Child‟s] lengthy and
on-going mental condition Mother has overseen his treatment and is more
attuned to his condition and needs. She has performed the majority of daily
parenting responsibilities. As a result she has a much stronger and more
stable relationship with [Child]. The Court places heavy weight on these
factors in Mother‟s favor in the best interest analysis.
....
(6) The love, affection, and emotional ties existing between each parent
and the child. Father has had little recent opportunity to develop ties with
his son because of [Child‟s] unfortunate mental condition. However this
Court must evaluate this factor based on present circumstances and places
moderate weight in the best interest analysis in favor of Mother.
(7) The emotional needs and developmental level of the child. [Child]
has substantial emotional needs and his developmental level presently is
extremely limited. Since Mother is more intimately acquainted with his
emotional needs and level of development the Court places heavy weight in
her favor in the best interest analysis.
(10) The importance of continuity in the child’s life and the length of
time the child has lived in a stable, satisfactory environment.
Continuity is of utmost importance in [Child‟s] life if he is to achieve some
semblance of a normal life. He will likely remain in counseling and must
10
remain in an extremely structured environment at least until he is 18 years
old. Since Mother is more attuned and acquainted with his needs the Court
places heavy weight on this factor in her favor in the best interest analysis.
The court did not find that any of the best interest factors weighed in favor of Father.
The court then concluded that Child‟s best interest was not to change the primary
residential parent:
The medical proof substantiates Mother‟s testimony that [Child] is
presently unable to function in a normal fashion. All his care has been
provided in the geographic area where Mother resides and it is not in
[Child‟s] best interest that he be placed under the care of different doctors
and other personnel as such would be detrimental to his well-being. The
Court has concerns for the well-being of [Child‟s half- and step-siblings] if
[Child] lived in Father‟s home. The Court concludes that it is in [Child‟s]
best interest that Mother remain his primary parent.
Father takes issue with the court‟s best interest analysis. He argues that best
interest factors 1 and 5 actually weigh in his favor. Factor 1 concerns the strength,
nature, and stability of each parent‟s relationship with the child, including whether one
parent has performed the majority of parenting responsibilities. Tenn. Code Ann. § 36-6-
106(a)(1). Factor 5 considers the degree to which one parent has been the primary
caregiver. Id. § 36-6-106(a)(5).
From our review of the record, the evidence does not preponderate against the trial
court‟s factual finding, and we discern no error in the weighing of factors 1 and 5. The
trial court found these factors weighed in favor of Mother because Mother had been the
primary caregiver since the divorce. She had overseen Child‟s treatment for his mental
illnesses and was therefore attuned to Child‟s condition and needs. The trial court also
found that Mother had a stronger and more stable relationship with Child than Father,
which would be a natural consequence of spending considerably more time with Child.
In addition to misapplication of factors 1 and 5, Father argues that the trial court
failed to consider factors 8, 9, and 11; factors he submits weigh in his favor. Factor 8
concerns the moral, physical, mental, and emotional fitness of each parent as it relates to
their ability to parent the child. Id. § 36-6-106(a)(8). Father claims there was domestic
violence involved in Mother‟s most recent marriage. He argues she had moved
residences four times and placed Child in six different schools since she moved to
Maryland. He also argues Mother‟s health, including migraines and breast cancer, posed
obstacles to her ability to parent. He, on the other hand, had a stable home and no health
issues.
11
We respectfully disagree with Father‟s assessment of factor 8. Mother testified
that she moved to Maryland because of her previous husband‟s job. Mother and her
former husband separated in 2010 and divorced in 2013. Mother was with her former
husband only a short period of time, and there was no evidence that Mother‟s former
husband was involved in her life since the divorce.
Mother admitted that she had moved multiple times since moving to Maryland,
but she provided adequate explanations for the moves. She was attempting to find the
best situation for Child and his half-sister. We have recognized that school changes may
be detrimental to a child. 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). But in this situation Child‟s mental
health required specialized treatment, and it is understandable that the treatment might
necessitate moves and changes of schools.
Factor 9 focuses on the child‟s interaction and relationships with siblings and
relatives and involvement with physical surroundings, school, and other significant
activities. Tenn. Code Ann. § 36-6-106(a)(9). For his argument that factor 9 weighs in
his favor, Father submits that Child never displayed aggressive behavior in front of him
and that he was not concerned that Child might harm others in his household. However,
even if we discount Mother‟s testimony, Ms. Sherman testified that Child‟s previous unit
was known for having violent patients and that his behavior upon admission at St.
Vincent‟s was “unsafe.” Dr. Miasami also testified that he had prescribed medication to
treat Child‟s “assault disorder” and aggression. Although the proof showed that Child
was making progress in dealing with his aggressive behavior, factor 9 does not favor
Father.
Finally, factor 11 requires the court to consider whether there is any evidence of
physical or emotional abuse of the child. Id. § 36-6-106(a)(11). Father cites to one
instance in which Mother informed Father of a cut on Child‟s head that, after a medical
visit, did not require stitches. Father also claims that Child‟s admission to mental health
facilities on multiple occasions constitutes abuse. In light of the medical proof, we
disagree. This record does not support a finding of either physical or emotional abuse.
We conclude that the trial court appropriately weighed the best interest factors and
found that it was in the child‟s best interest for Mother to remain the primary residential
parent. The court found that Child had serious mental health issues and that premature
removal from treatment could cause harm. Furthermore, the court stated that it appeared
that Father was not thoroughly convinced of the severity of Child‟s mental health issues.
The evidence does not preponderate against any of these findings.
12
C. CONTEMPT
Father argues that the trial court erred in not holding Mother in contempt. In
denying Father‟s request, the court made the following findings:
This Court has the power to inflict punishment for contempt for the
willful disobedience of any order of the court pursuant to T.C.A. § 29-9-
102. Father argues Mother willfully failed to comply with the current
Parenting Plan. The proof has established [Child‟s] long-standing
psychological problems and the extensive care that he has received.
Mother has failed to effectively inform Father of [Child‟s] treatment. Even
if she had done better at communicating the details of [Child‟s] treatment to
Father the Court doubts Father would have accepted the information as true
or necessary. The Court concludes Mother‟s actions in not allowing Father
to exercise parenting time in Tennessee was based on medical necessity and
not a willful violation of Court order.
Tennessee Code Annotated § 29-9-102 grants courts the power to “issue
attachments, and inflict punishments for contempts of court” for “[t]he willful
disobedience or resistance of any officer of such courts, party, juror, witness, or any other
person, to any lawful writ, process, order, rule, decree, or command of such courts.” Id.
§ 29-9-102(3) (2010). Civil or criminal contempt requires four elements: (1) the order
allegedly violated must be lawful; (2) the order must be clear and unambiguous; (3) the
individual charged must have violated the order; and (4) the individual must have acted
willfully in violating the order. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth.,
249 S.W.3d 346, 354-55 (Tenn. 2008); Furlong v. Furlong, 370 S.W.3d 329, 336 (Tenn.
Ct. App. 2011) (stating that the four-element analysis outlined in Konvalinka applies to
criminal and civil contempt actions). The only element at issue here is whether Mother
acted willfully in violating the amended permanent parenting plan by not permitting
Father to exercise his visitation.
In the context of civil contempt, “a person acts „willfully‟ if he or she is a free
agent, knows what he or she is doing, and intends to do what he or she is doing.” State ex
rel. Flowers v. Tenn. Trucking Ass’n Self. Ins. Grp. Trust, 209 S.W.3d 602, 612 (Tenn.
Ct. App. 2006)). Our Supreme Court has addressed the standard of review for a trial
court‟s willfulness determination:
Determining whether the violation of a court order was willful is a factual
issue that is uniquely within the province of the finder-of-fact who will be
able to view the witnesses and assess their credibility. Thus, findings
regarding “willfulness” should be reviewed in accordance with the Tenn. R.
App. P. 13(d) standards.
13
Id. at 357. In other words, we will review the trial court‟s finding on willfulness “de
novo upon the record of the trial court, accompanied by a presumption of the correctness
of the finding, unless the preponderance of the evidence is otherwise.” Tenn. R. App. P.
13(d).
The evidence does not preponderate against the trial court‟s factual findings that
Mother‟s actions were based on medical necessity. The proof showed that Mother was
allowed only once weekly visits of twenty-four hours at a time. As such, the court did
not err in denying Father‟s request.
D. ATTORNEY‟S FEES
Mother sought attorney‟s fees at the conclusion of the hearing. Father argues that
the trial court erred in awarding attorney‟s fees to Mother. The trial court entered the
following order:
Before the Court is an application asking Joseph Martin Colley,
Petitioner (“Mr. Colley”), to pay attorney‟s fees and costs in the amount of
$13,162.25 filed by Catherine White (“Ms.White”), former counsel for
Alisha Dale McBee, Defendant and Respondent (“Ms. McBee”). . . .
The Court finds that Ms. White was reasonably successful in this
litigation on behalf of her client but that the litigation was unduly prolonged
by tactics employed by Ms. McBee. The Court finds the amount of
attorney‟s fees and costs submitted by Ms. White is reasonable based on
applicable legal standards but because Ms. McBee prolonged this litigation,
the full amount of fees and costs requested should not be awarded. The
Court concludes that Ms. McBee has the financial need and Mr. Colley has
the financial ability to pay the sum of $7,000
Tennessee courts follow the American Rule, which provides that litigants are
responsible for paying their own attorney‟s fees unless there is a statutory or contractual
provision stating otherwise. Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005) (citing
State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000)).
Tennessee Code Annotated § 36-5-103(c) does permit an award of attorney‟s fees when
one parent successfully defends a prior primary residential parent designation. See
Shofner v. Shofner, 232 S.W.3d 36, 40 (Tenn. Ct. App. 2007); Scofield v. Scofield, No.
M2006-00350-COA-R3-CV, 2007 WL 624351, at *7 (Tenn. Ct. App. Feb. 28, 2007).
The statute provides as follows:
The plaintiff spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded
may recover from the other spouse reasonable attorney fees incurred in
14
enforcing any decree for alimony and/or child support, or in regard to any
suit or action concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing, which fees may be fixed
and allowed by the court, before whom such action or proceeding is
pending, in the discretion of such court.
Tenn. Code Ann. § 36-5-103(c) (2014). We have observed that “requiring parents who
precipitate custody or support proceedings to underwrite the costs if their claims are
ultimately found to be unwarranted is appropriate as a matter of policy.” Sherrod v. Wix,
849 S.W.2d 780, 785 (Tenn. Ct. App. 1992). The award of attorney‟s fees is within the
trial court‟s sole discretion, and we will not interfere with the trial court‟s decision absent
a clear showing of an abuse of that discretion. See, e.g., Taylor, 158 S.W.3d at 359.
We affirm the award of attorney‟s fees. Father has not shown a clear abuse of
discretion on the part of the trial court.
III. CONCLUSION
We affirm the denial of Father‟s request to change the primary residential parent.
The trial court appropriately considered the best interest factors and the evidence does not
weigh against its factual finding. We also affirm the denial of the request to hold Mother
in contempt and the award of attorney‟s fees to Mother. This case is remanded to the trial
court for such further proceedings as may be necessary and consistent with this opinion.
_________________________________
W. NEAL MCBRAYER, JUDGE
15