David Bryan Hawk v. Crystal Goan Hawk ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 7, 2016 Session
DAVID BRYAN HAWK v. CRYSTAL GOAN HAWK
Appeal from the Chancery Court for Greene County
No. 20120191 Hon. E.G. Moody, Chancellor1
No. E2015-01333-COA-R3-CV-FILED-MARCH 9, 2016
This post-divorce appeal concerns the mother’s petition to modify the residential
schedule in an agreed parenting plan. Following a hearing, the trial court found that a
material change in circumstances had occurred that necessitated a change in the plan.
The court modified the plan by order and further required the parties to attend parenting
classes and mediation before seeking further relief from the court. The mother appeals.
We affirm the court’s modification of the plan. We reverse the requirement imposed
upon the parties to attend parenting classes before seeking further relief from the court.
We remand for entry of a permanent parenting plan and child support worksheet.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed in Part, Reversed in Part; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.
SUSANO, JR., J., and D. MICHAEL SWINEY, C.J., joined.
Thomas C. Jessee, Johnson City, Tennessee, for the appellant, Crystal Goan Hawk.
Lois B. Shults-Davis, Erwin, Tennessee, for the appellee, David Bryan Hawk.
OPINION
I. BACKGROUND
Crystal Goan Hawk (“Mother”) and David Bryan Hawk (“Father”) were married
on November 15, 2009. This was the third marriage for Father and the second for
Mother. One child, a girl (“the Child”), was born of the marriage. Father had one child
(“Daughter”) from a prior marriage. Throughout the majority of the marriage, Mother
1
Sitting by Supreme Court designation.
operated her own law firm, while Father was employed by the State of Tennessee as a
state representative for Greene County. Father’s employment required his prolonged
absence when the legislature was in session in Nashville.
At some point, Mother and Father (“the Parties”) engaged in a physical altercation.
As a result of the altercation, Father’s visitation with the Child was severely limited.
Father later filed a complaint for divorce, alleging inappropriate marital conduct and
irreconcilable differences as statutory grounds. Mother responded with a counter-
complaint for divorce, raising the same statutory grounds. The Parties were divorced by
order on September 11, 2013. Father was later convicted of reckless endangerment, a
misdemeanor, for his involvement in the altercation with Mother. His right to visitation
was gradually reinstated.
Meanwhile, Father filed a motion to require Mother to complete a psychological
examination. He also sought to disqualify her counsel, Thomas C. Jessee (“Counsel”)
because Counsel had entered into a romantic relationship with Mother.2 An agreed
parenting plan was entered on December 2, 2013. Pursuant to the plan, the Parties shared
designation as the primary residential parent, with Father holding the designation during
the summer when the legislature was no longer in session. The plan provided Father with
155 days of co-parenting time. He exercised visitation on a recurring two-week cycle
when in Nashville. The cycle began in January and expired the Monday “following the
completion of standardized testing, or until [Father] is out of session, [whichever] is
later.” The Parties shared equal co-parenting time on a biweekly schedule when the
recurring two-week cycle expired. The Parties modified the plan throughout the
pendency of this action. Despite the agreed plan and subsequent modifications, the
relationship between the Parties was contentious and continued to deteriorate.
Thereafter, the court held a hearing on the motion to order a psychological
examination and to disqualify counsel. The court required the Parties to each complete a
psychological examination at Father’s expense but held the motion to disqualify counsel
in abeyance pending the results of the examinations. The court noted that it was
“probably advisable for both sides for [Counsel] to remain in the case . . . through
additional mediation [because disqualification] would prolong the matter.”
On December 31, 2013, Mother filed a motion to alter or amend the parenting
plan, alleging that Father failed to timely pay for replacement eyeglasses for the Child
and failed to ensure the Child’s attendance in a preschool program. A flurry of
competing contempt motions followed.
2
Counsel and Mother married during the pendency of the case.
-2-
On February 13, 2015, the court held a hearing on a number of pending motions,
namely the motion to disqualify counsel and a motion to reconsider the need for
psychological examinations. As pertinent to this appeal, the court denied the motion to
disqualify counsel and reaffirmed its earlier ruling requiring the Parties to complete the
examinations. The examinations revealed that Mother could benefit from “brief therapy”
and that Father may benefit from family therapy, mental health treatment for symptoms
of anxiety, and psychiatric consultation if his symptoms of anxiety persist or intensify.
At the hearing on Mother’s motion to alter or amend the parenting plan, the court
granted her request to orally amend her motion to include a petition to modify the
parenting plan. Mother later filed an amended motion that included a petition in which
she alleged that a material change in circumstances had occurred that necessitated a
change in the residential parenting schedule. She alleged that Father failed to remit
payment for medical and other expenses and that he refused to engage in healthy
communication. She proposed a residential schedule that conformed to the Greeneville
City School schedule and clarified the Parties’ right to co-parenting time during the
holidays. She also requested sole decision-making authority on a number of issues due to
Father’s refusal to communicate. Father objected to any change in the parenting schedule
that did not afford him additional co-parenting time during the legislative session.
The case proceeded to a hearing, at which several witnesses testified. A number
of Mother’s friends testified as to her loving relationship with the Child and her
exemplary parenting style. Additionally, several of these witnesses had accompanied
Mother to exchange the Child with Father. These witnesses testified as to Father’s odd
behavior, namely he appeared to record Mother with his cellular telephone throughout the
exchange.3 One witness also testified that Father called Mother “evil” while in the
presence of the Child.4 Additionally, Crystal Carol Brown, Mother’s relative, claimed
that Father appeared as if he was recording her when she retrieved the Child in Mother’s
stead. Another witness testified that Father failed to acknowledge the Child while the
Parties were present for a public event.5
Much of the remaining testimony presented concerned the Child’s participation in
various activities, namely a T-ball program at the Young Men’s Christian Association
(“the YMCA”), a T-ball program in Bull’s Gap, a Mother’s Day Out program (“MDO”),
and a gymnastics program at Flip Zone. Danny Silvers, the Senior Program Director for
the Greene County YMCA, testified by deposition concerning the Child’s participation in
the T-ball program at the YMCA. He recalled that Father initially expressed interest in
3
Father denied excessively recording Mother. He explained that he was ready to film in the event that he
felt documentation of his interaction was necessary given their prior physical altercation.
4
Father denied calling Mother “evil.”
5
Father claimed that his attempt to acknowledge the Child was to no avail in the crowded event.
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the program and volunteered to coach. Mother later volunteered to coach and attended
the organizational meeting, where Father was also present. He claimed that Father
refused to coach after he learned that Mother had volunteered. Thereafter, Father failed
to respond to his repeated attempts to work with the Parties to find a solution. He
acknowledged that Mother offered to step aside in an effort to placate Father. He claimed
that the Child thrived in the T-ball program despite Father’s absence.
Stephanie Tweed, Mother’s friend and another assistant coach for the T-ball
program at the YMCA, testified that the Child only participated while in Mother’s care
and that Father never attended a practice or game. She noted that Father’s mother,
Jeanette Hawk (“Grandmother”), lived across the street from the field. She provided that
Mother remained involved when the Child missed practices and games while in Father’s
care. Ms. Brown, Mother’s relative and another volunteer for the T-ball program,
confirmed that the Child enjoyed Mother’s involvement in the program.
Terry Tillery, the director of MDO, and Marlys Raider, an MDO employee,
testified concerning the Child’s involvement in MDO. They explained that MDO is
essentially a day care and that regular attendance in the program is not mandatory. Ms.
Raider provided that the Child was enrolled in her class on Tuesdays and Thursdays from
8 a.m. to 2:00 p.m. She, as well as Ms. Tillery, observed a loving relationship between
the Child and both parents. They recalled that Father attended orientation with the Child
but claimed that he arrived after the majority of the students and parents had left.
Ms. Brown testified that Mother attended the MDO orientation. She observed
Father waiting in his car in a different parking lot while Mother attended the event.6
Bri Campbell, a Flip Zone employee, testified that the Child usually attended class
each week on Wednesday at 6:30 p.m. Mother was often present for class to encourage
the Child. She agreed that Father also attended the class on occasion. She recalled a
specific occasion in which she observed Father pointing a camera at Mother during class.
Daughter testified by deposition7 that she assisted Father in caring for the Child
and had babysat her once. She claimed that the Child cried “all the time” and was upset
by “a lot of things.” She agreed that Father comforted the Child when necessary. She
recalled that the Child had asked for Mother on occasion while in Father’s care but
admitted that the Child appeared to enjoy spending time with Father and did not want
him to leave. She acknowledged that the Child often played outside with Father.
6
Father explained that he did not immediately enter the building because the Child had just woken from a
nap when they arrived.
7
Daughter was 14 years old at the time of the deposition.
-4-
Father testified that he was employed by the State of Tennessee as a state
representative for Greene County. His employment required his presence in Nashville
when the legislature is in session from January through May or June. He also had
different obligations a few days each month when the legislature is out of session. He
claimed that he attended events and meetings throughout the year and is constantly
campaigning because his position is subject to a two-year election cycle.
Father admitted that he did not take the Child to T-ball practice or games last
season. He claimed that Mother expressed anger when he enrolled the Child in the
program because he failed to gain her permission before enrolling her. He later chose not
to participate in an effort to avoid conflict. He acknowledged that Mr. Silvers sought to
work with them for the benefit of the Child. He appreciated the effort expended by Mr.
Silvers but provided that he could not participate for fear of conflict with Mother. He
also did not attend the Child’s soccer practices or games in an effort to avoid conflict. He
claimed that Mother later rebuffed his offer of compromise when he attempted to
cooperate with her for the current T-ball season.
Father agreed that he and Mother were together on occasion, specifically when the
Child attended class at Flip Zone. He explained that he took the Child to class during his
co-parenting time and that Mother attended of her own volition. He felt that he could not
ask her to leave the building. He agreed that he had taken the Child at a different time or
day on occasion without informing Mother.
Father acknowledged that the Child’s participation at Flip Zone and in MDO was
anticipated in the parenting plan. He recalled only one or two occasions where he did not
take the Child to MDO. He explained that he likely spent the day with the Child instead
but agreed that he failed to inform Mother. He also agreed that he did not take the Child
to birthday parties during his co-parenting time. He claimed that Mother scheduled
activities during his co-parenting time in an effort to gain more time with the Child and to
control his schedule. He asserted that he did not schedule events or activities for the
Child during Mother’s co-parenting time. He simply requested the same consideration.
Father testified as to his interactions with Mother when they exchanged the Child
for co-parenting time. He refused to take the Child from Mother’s arms because he did
not want to engage in physical contact with her. He identified three recordings
documenting his exchange of the Child. He related that they later reached an agreement
in which the receiving parent would remain in the car while the Child was placed in the
car seat. He claimed that the new arrangement proved unworkable. He noted that the
maternal grandmother waited for him outside the car on one occasion and that Mother
interfered with his attempt to place the Child in the car seat on another occasion.
-5-
Father agreed that he and Mother had trouble communicating. He acknowledged
that he was required by order to respond to her emails within 48 hours. He denied receipt
of several emails but explained that he received “hundreds of emails every day.” He
asserted that communicating with Mother was challenging when she insisted on his
acquiescence to her excessive requests. He proposed assigning someone to mediate
future disputes concerning the Child and to assist them in achieving healthy
communication. He identified a plethora of emails between himself and Mother in which
their inability to communicate in a healthy manner was evident.
Father requested an adjustment to the residential schedule to coordinate with the
adjournment of the legislative session in Nashville. He noted that the current schedule
only allowed for equal co-parenting time to start the Monday after the completion of
standardized testing in the school system. He claimed that the arrangement caused
confusion and resulted in his loss of a week of equal co-parenting time when the Child
was not yet in school and required to complete standardized testing.8
Father testified that he attempted to remit payment for the Child’s medical
expenses. He explained that Mother had sought payment for her own medical bill at one
point, prompting him to carefully evaluate each bill submitted by Mother. He provided
that he kept copious documentation of the Child’s expenses and that he was current with
his financial responsibilities, despite Mother’s claim to the contrary. He testified that the
Child never went without glasses and that he simply advised Mother to wait to procure
new glasses until his insurance began in January.
Father denied responsibility for the physical altercation that preceded the divorce
and his reckless endangerment conviction. He also denied responsibility for his tense
relationship with Mother and their failure to communicate.
Mother testified that she opened her own law practice in 2009 and that she also
held a license as a real estate broker. She acknowledged that she had been publicly
censured by the Tennessee Supreme Court in October 2014 for using improper methods
to obtain evidence against her first husband in their divorce proceeding.
Mother testified that she initially sought to amend the parenting plan because
Father failed to take the Child to MDO and because he refused to remit payment for the
Child’s glasses. Relative to MDO, she asserted that Father failed to take the Child on
three occasions but admitted she could not recall the exact dates. She acknowledged that
she was unsure as to whether Father failed to take the Child to MDO in the 30 days
between the entry of the parenting plan and the filing of her motion to alter or amend the
8
Suzanne Claiborne Bryant, the assistant director of schools for instruction at Greeneville City Schools,
testified by deposition concerning the standardized testing schedule.
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plan. Relative to his failure to remit payment for medical expenses, Mother
acknowledged that Father’s insurance policy would have covered the cost of glasses if
she had waited 30 days to place the order. She explained that the Child could not wait for
glasses because she suffered from a medical condition called amblyopia.
Mother testified that a number of changes had been made to the parenting plan
since they reached an agreement. She provided that her proposed parenting plan included
the changes and a few additional adjustments, namely she requested designation as the
party responsible for decision-making. She explained that the current plan that allowed
for joint decision-making was unworkable because of Father’s refusal to communicate.
Mother next testified as to Father’s refusal to communicate and his effort to either
avoid her or film her in a public setting. She related that the Child had numerous medical
appointments to treat her amblyopia. She asserted that the appointments were set around
Father’s schedule. She claimed that Father either failed to attend the appointments or
engaged in odd behavior throughout the appointment, namely he filmed her instead of
comforting the Child. She asserted that he also failed to attend the Child’s yearly well-
child appointment even though that appointment was set around his schedule.
Mother recalled that Father failed to respond to her invite to the orientation for
MDO and that he sat in a parking lot until she left. She claimed that the Child was unable
to meet the other children in the classroom because he waited for her to leave before
entering the building. She asserted that Father took the Child to Flip Zone on a different
day on at least two occasions without informing her. She explained that the Child
expected her to attend the class and was likely confused by her absence. She claimed that
Father often filmed her instead of watching the Child when they were both present at Flip
Zone. She recalled that he refused to respond to her when she sought permission to
enroll the Child in a T-ball program in Bulls Gap. She enrolled the Child anyway, but the
Child was only able to participate while in her care. She recalled that Father also refused
to attend the Child’s soccer practices and games.
Relative to the T-ball program at the YMCA, Mother claimed that she offered to
coach well before Father enrolled the Child in the program. She provided that he
enrolled the Child without discussing the matter with her and then expressed frustration
when she advised him that she also planned to volunteer. She stated that he refused to
take the Child to practices or games, thereby only allowing the Child to participate while
in her care. She noted that the field was across the street from Grandmother’s house.
She agreed that Father offered to cooperate with her for the current season but provided
that his cooperation came with “certain conditions” that she did not want to meet.
-7-
Mother claimed that she could not co-parent with Father because he refused to
communicate with her. She noted that he often failed to respond to her requests to
reschedule co-parenting time even though she adjusted her schedule on at least two
occasions for his benefit. She agreed that he allowed her to reschedule on one occasion
but asserted that he requested additional time for his cooperation. She sought decision-
making authority only for those occasions where he refused to respond to her with a
definitive answer. She noted that he complied with the court’s order to respond within 48
hours by simply stating that he would take her request under advisement.
Mother testified that Father had neglected the Child’s hygiene on at least one
occasion. She provided that the Child was returned with yogurt in her hair. She claimed
that Father denied her accusation and called her a liar instead of working with her to
resolve the issue. She also testified as to the Child’s repeated requests to return home to
her while in Father’s care.
Mother objected to Father’s request to begin equal co-parenting time when the
legislature is out of session. She provided that the legislature adjourns at a different time
each year depending upon that year’s circumstances. She explained that she did not want
to disrupt the Child’s schedule once the Child is enrolled in school. She asserted that
significant changes during the standardized testing period could be detrimental to the
Child. She sought a parenting plan that provided for equal parenting time beginning the
Monday following the last day of school and ending the Friday before the start of the
school year. She agreed that her proposed parenting plan afforded her an additional eight
days of co-parenting time. She also acknowledged that the court would have to adjust the
schedule again if the Greeneville City Schools transitioned to a year-round schedule.
Mother acknowledged that her psychological examination revealed that she
possessed an impulsive personality with narcissistic features and that her personality was
also classified as histrionic. She agreed that she informed the examiner that Father hit her
on one occasion and had been “found guilty” following trial. She acknowledged that
Father had been found guilty of reckless endangerment, not assault. She explained that
she simply failed to clarify the offense during her examination. She agreed that her
examiner suggested that she might benefit from therapy. She asserted that Father’s
examiner suggested that he might benefit from psychiatric help.
Grandmother admitted that she did not attend any of the Child’s T-ball games in
an effort to avoid conflict with Mother. She provided that Mother did not make her feel
welcome. She claimed that Mother refused her offer to teach the Child piano at her local
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church on Wednesday mornings.9 She agreed that Father and the Child frequented her
house during his co-parenting time. She described a loving relationship between them.
She acknowledged that the Child was returned to Mother with messy hair once. She
explained that the Child “had been fidgety and did not want [her hair combed]” that day.
Citing Mother’s public censure and Father’s failure to acknowledge responsibility
for his conviction of reckless endangerment, the court found that the Parties were not
credible witnesses. The court also found Mother’s testimony unconvincing concerning
Father’s failure to remit payment for glasses and to ensure the Child’s attendance at
MDO. Nevertheless, the court modified the plan “on the basis of the proven inability
and/or unwillingness of the parties to effectively communicate and/or co-parent and in
the best interest[] of the [C]hild.” As pertinent to this appeal, the modifications were as
follows:
 Until [the Child] enters the first grade, equal parenting
time shall begin at 8:00 a.m. on the Monday following the last
day of the legislative session.
 Once [the Child] enters the first grade, equal parenting
time shall begin at 8:00 a.m. on the Monday following the last
day of school for the Greeneville City School System.
 In the event that [Father] no longer serves in the
Tennessee General Assembly, equal parenting time shall be
instituted year-round.
 Both parties shall attend psychological counseling as
recommended by the psychologist who evaluated him/her and
as recommended by the psychologist.
 The day count of parenting time shall remain the same
as previously ordered.
 The order for support in this matter shall remain the
same as previously ordered.
9
Mother testified that she was unable to take the Child on Wednesday due to her court schedule. She
provided that she was willing to schedule lessons for another day and asserted that Grandmother had
refused her request to start a music program in the past.
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 The same parent who has taken [the Child] to
healthcare providers in the past shall continue to do so in the
future and the parent taking her to such appointments shall
have sole decision making authority while she is in that
parent’s care unless the decision constitutes a major medical
decision and is not an emergency.
 Both parties shall work together to facilitate [the
Child’s] participation in and enjoyment of extracurricular
activities whether that be in sports, music, the arts, or some
other activity. Each parent shall cooperate in ensuring that
[the Child] attends activities in which she has been enrolled,
including, those she was enrolled in by the other parent.
 Both parties shall complete the parenting classes.
 Both parties shall fully reply to communications sent
by the other within 48 hours.
 In the event that the parties are unable to settle future
co-parenting issues among themselves, they shall complete
the parenting classes again and they shall complete mediation
before filing any additional motions before the [c]ourt. If the
parties are unable to agree on a mediator, the [c]ourt will
appoint one.
 Since the psychological evaluations were very
beneficial to the [c]ourt in this case and since [Father] paid
for both, [Mother] shall reimburse [Father] the cost of her
evaluation within 30 days of the entry of this order.
This timely appeal followed.
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II. ISSUES
We consolidate and restate the issues raised on appeal by Mother as follows:
A. Whether the court erred in modifying the parenting plan.
B. Whether the court erred by failing to enter a parenting plan and child
support worksheet.
C. Whether the court erred by requiring the Parties to attend additional
parenting classes and mediation before seeking further relief from the court.
D. Whether the court erred by requiring Mother to reimburse Father for
her psychological examination.
E. Whether the court erred by requiring the Parties to undergo
psychological counseling.
Father also raised an issue on appeal for our consideration that we restate as follows:
F. Whether the court erred by refusing to disqualify Mother’s counsel.
III. STANDARD OF REVIEW
On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them.
See Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo
review with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47
(Tenn. 2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). “A
trial court’s determinations of whether a material change in circumstances has occurred
and whether modification of a parenting plan serves a child’s best interests are factual
questions.” Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013) (citing In re
T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007)).
In matters of child custody, trial courts are vested with broad discretion, and
appellate courts will not interfere with the trial court’s decision except upon a showing of
erroneous exercise of that discretion. See Whitaker v. Whitaker, 957 S.W.2d 834, 836-37
(Tenn. Ct. App. 1997). The Tennessee Supreme Court further explained the broad
discretion afforded trial courts in such matters as follows:
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Because decisions regarding parenting arrangements are factually driven
and require careful consideration of numerous factors, trial judges, who
have the opportunity to observe the witnesses and make credibility
determinations, are better positioned to evaluate the facts than appellate
judges. Thus, determining the details of parenting plans is peculiarly
within the broad discretion of the trial judge. It is not the function of
appellate courts to tweak a [residential parenting schedule] in the hopes of
achieving a more reasonable result than the trial court. A trial court’s
decision regarding the details of a residential parenting schedule should not
be reversed absent an abuse of discretion. An abuse of discretion occurs
when the trial court . . . appl[ies] an incorrect legal standard, reaches an
illogical result, resolves the case on a clearly erroneous assessment of the
evidence, or relies on reasoning that causes an injustice. A trial court
abuses its discretion in establishing a residential parenting schedule only
when the trial court’s ruling 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.
Armbrister, 414 S.W.3d at 693 (internal citations omitted).
IV. DISCUSSION
A. & B.
Mother argues that the court erred by refusing to adopt her proposed parenting
plan, specifically she requests a residential schedule that conforms to the Greeneville City
School schedule and provides Father with adequate visitation. She also requests sole
decision-making authority for issues pertaining to the Child’s healthcare, extracurricular
activities, religion, and education. She asserts that the court erroneously established an
alternative schedule that provided for equal co-parenting time in the event that Father’s
employment responsibilities changed. She further claims that the court failed to make the
appropriate findings in support of its decision and also failed to enter a permanent
parenting plan with an attached child support worksheet. Father responds that the court
did not err; however, he acknowledges that entry of a permanent parenting plan with a
child support worksheet would be beneficial.
“A custody decision, once final, is res judicata upon the facts in existence or
reasonably foreseeable when the decision was made.” Scofield v. Scofield, No. M2006-
00350-COA-R3-CV, 2007 WL 624351, at *3 (Tenn. Ct. App. Feb. 28, 2007) (citing
Young v. Smith, 246 S.W.2d 93, 95 (Tenn. 1952)). However, because the circumstances
of children and parents change, our courts are “empowered to alter custody arrangements
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when intervening circumstances require modifications.” Id. at *2 (citing Tenn. Code
Ann. § 36-6-101(a)(1)). Modification of an existing custody or visitation arrangement
involves a two-step analysis. Tenn. Code Ann. § 36-6-101(a)(2)(B), (C). First, the
parent attempting to modify the existing custody or visitation arrangement must prove
that a material change in circumstances has occurred. Tenn. Code Ann. § 36-6-
101(a)(2)(B), (C). “If a material change in circumstances has occurred, it must then be
determined whether the modification is in the child’s best interest[ ].” Kendrick v.
Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002) (footnote omitted).
The determination of whether a “material change in circumstance” occurred
requires a different standard depending upon whether a parent is seeking to modify
custody (i.e., change the primary residential parent) or modify the residential parenting
schedule. Tenn. Code Ann. § 36-6-101(a)(2)(B), (C). A lower threshold is required for
modification of a residential parenting schedule. Scofield, 2007 WL 624351, at *3.
Tennessee Code Annotated section 36-6-101(a)(2)(C) provides, in pertinent part,
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 a 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.
Here, the Parties agreed that they were unable to communicate in a healthy manner. The
record confirms that the Parties were in constant disagreement and that Father simply
refused to respond to Mother on occasion in an effort to avoid conflict. The record
supports a finding that the pattern of conflict and failure to communicate affected the
Child’s well-being in a meaningful way and necessitated a change in the residential
parenting schedule that was in the best interest of the Child. Accordingly, we affirm the
court’s decision that a material change in circumstances occurred.
Having concluded that a material change in circumstances occurred, this court
must now consider whether the trial court erred in modifying the parenting plan. In
modifying a residential parenting schedule, the trial court must determine whether a
change in visitation is in the best interest of the child. In re J.C.S., No. M2007-02049-
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COA-R3-PT, 2008 WL 2924982, at *6 (Tenn. Ct. App. July 28, 2008). This
determination requires consideration of a number of factors, including those set forth at
Tennessee Code Annotated section 36-6-106(a) to make an initial custody determination
and those at Tennessee Code Annotated section 36-6-404(b) to establish the schedule. Id.
We acknowledge that the record does not reflect that the trial court articulated
each relevant factor and assigned weight to each factor. Such is not required. Trial
courts are not required to articulate each and every fact and its application in custody
cases. See Murray v. Murray, No. M2009-01576-COA-R3-CV, 2010 WL 3852218, at *8
(Tenn. Ct. App. Sept. 28, 2010) (stating that “while the statute requires the trial court to
consider all the applicable factors, there is no statutory requirement that the court list
every applicable factor along with its conclusion as to how that particular factor impacted
the overall custody determination”). Additionally, the order contains findings “as to the
reason and the facts that constitute the basis for the custody determination.” Tenn. Code
Ann. § 36-6-101(a)(2)(B)(i). The order also reflects the court’s performance of the
appropriate two-step analysis. See Crafton v. Roberts, No. W2015-00048-COA-R3, 2015
WL 9466011, *7-8 (Tenn. Ct. App. Dec. 28, 2015) (vacating the court’s modification of a
parenting plan due to a “lack of findings evidencing that the trial court performed the
two-step analysis required for a custody modification”).
Here, the court modified the plan “on the basis of the proven inability and/or
unwillingness of the parties to effectively communicate and/or co-parent and in the best
interest[] of the [C]hild.” The Parties submitted exhaustive evidence of the other parent’s
shortcomings. Mother alleged that Father was vindictive and unresponsive, while Father
alleged that Mother was controlling and manipulative. Notably, the court questioned
each parent’s credibility but ultimately found that the Parties loved the Child, despite
their inability or unwillingness to cooperate with one another. The court then established
a residential schedule that minimized the potential for conflict in the decision-making
process, established equal co-parenting time when possible and in the best interest of the
Child, and provided guidance for likely changes in the future.10 With these
considerations in mind and recognizing the court’s broad discretion on this matter, we
hold that the record supports the court’s modifications. However, we agree that the court
erred by failing to craft a permanent parenting plan and child support worksheet that
incorporated its modifications. Tenn. Code Ann. § 36-6-404(a). We remand this case for
entry of a permanent parenting plan and a child support worksheet.
10
We note that Mother may file a new petition to modify the residential schedule in the event that the
alternative residential schedule requiring year-round equal co-parenting time becomes applicable but is no
longer in the best interest of the Child pursuant to Tennessee Code Annotated section 36-6-101(a)(2)(C).
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C.
Mother argues that the trial court erred in ordering the Parties to attend parenting
classes and mediation before seeking further relief from the court. Father responds that
the court did not err.
Relative to mediation, Tennessee Code Annotated section 36-6-404(a)(4)
provides, in pertinent part, that a permanent parenting plan must “[p]rovide for a process
for dispute resolution” before either party may initiate future court action. The court did
not err in ordering the Parties to submit to mediation before initiating court action.
Relative to parenting classes, Tennessee Code Annotated section 36-6-408(a)
provides, in pertinent part, as follows:
In an action where a permanent parenting plan is or will be entered, each
parent shall attend a parent educational seminar as soon as possible after
the filing of the complaint.
(Emphasis added). We agree that the statute permits successive attendance in cases
where numerous parenting plans are entered. However, the statute does not require
attendance before a party may seek relief from the court. Such a requirement
unnecessarily hinders a party’s access to justice. Accordingly, the court erred by
requiring attendance in an education seminar before seeking further relief from the court.
D. & E.
Mother argues that the trial court erred by ordering her to remit payment for her
psychological examination and by ordering her to comply with the recommendations
contained in her psychological examination. She also opines that ordering her to submit
to an examination was error. Father responds that the court did not err.
Rule 35.01 of the Tennessee Rules of Civil Procedure provides as follows:
When the mental or physical condition (including the blood group) of a
party, or of a person in the custody or under the legal control of a party, is
in controversy, the court in which the action is pending may order the party
to submit to a physical or mental examination by a suitably licensed or
certified examiner or to produce for examination the person in his custody
or legal control. The order may be made only on motion for good cause
shown and upon notice to the person to be examined and to all parties and
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shall specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made.
In any proceeding involving the modification of a residential parenting schedule, the
court must determine whether a material change of circumstance affecting the best
interest of the child has occurred. Tenn. Code Ann. § 36-6-101(a)(2)(C). A party’s
mental or physical condition is necessarily at issue in a best interest analysis. Indeed,
Tennessee Code Annotated section 36-6-106(8) provides, in pertinent part, as follows:
[In conducting a best interest analysis, the court shall consider the] moral,
physical, mental and emotional fitness of each parent as it relates to their
ability to parent the child. The court may order an examination of a party
under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary
for the conduct of the proceedings, order the disclosure of confidential
mental health information of a party under § 33-3-105(3). The court order
required by § 33-3-105(3) must contain a qualified protective order that
limits the dissemination of confidential protected mental health information
to the purpose of the litigation pending before the court and provides for the
return or destruction of the confidential protected mental health information
at the conclusion of the proceedings[.]
With these considerations in mind, we conclude that the court did not err in ordering the
Parties to submit to psychological examinations and in directing Mother to share in the
cost of the examinations once it determined that the examinations were pertinent to its
decision.
Relative to the requirement to undergo counseling as recommended by their
individual examiners, we note that trial courts are afforded with broad discretion to
fashion parenting plans that meet the needs of the child at issue and address the
circumstances presented in each particular case. Kelly v. Kelly, 445 S.W.3d 685, 692
(Tenn. 2014) (citing Armbrister, 414 S.W.3d at 693). Trial courts are also specifically
tasked with fashioning parenting plans that “[m]inimize the child’s exposure to harmful
parental conflict.” Tenn. Code Ann. § 36-6-404(a)(3). With these considerations in
mind, we decline to disturb the court’s discretion given the hostility between the Parties
in this case and their inability to communicate.
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F.
Father argues that the trial court erred in denying his motion to recuse Counsel.
Wife responds that this issue is waived because Father failed to timely appeal the denial
of the motion, which was denied by a separate order entered before trial.
Rule 3 of the Tennessee Rules of Appellate Procedure provides, as follows:
(a) Availability of Appeal as of Right in Civil Actions. In civil actions
every final judgment entered by a trial court from which an appeal lies to
the Supreme Court or Court of Appeals is appealable as of right. Except as
otherwise permitted in Rule 9 and in Rule 54.02 Tennessee Rules of Civil
Procedure, if multiple parties or multiple claims for relief are involved in an
action, any order that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties is not enforceable or appealable
and is subject to revision at any time before entry of a final judgment
adjudicating all the claims, rights, and liabilities of all parties.
(Emphasis added). Here, the record reflects that the order denying the motion to
disqualify is not a final order. The order disposed of approximately five pre-trial motions
and further provided that “[a]ll other motions will be heard concerning the parenting plan,
contempt motions and any other pending issues at the [April 2015] trial which is the final
hearing in this matter.” This issue is not waived. However, Father fails to establish how
any error in denying the motion to disqualify “affected the judgment or . . . resulted in
prejudice to the judicial process” when he does not object to the modifications ordered by
the trial court. Tenn. R. App. 36(b).11 Accordingly, we conclude that any error in
denying the motion was harmless.
11
A final judgment from which relief is available and otherwise appropriate shall not be set aside unless,
considering the whole record, error involving a substantial right more probably than not affected the
judgment or would result in prejudice to the judicial process. When necessary to do substantial justice, an
appellate court may consider an error that has affected the substantial rights of a party at any time, even
though the error was not raised in the motion for a new trial or assigned as error on appeal.
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V. CONCLUSION
The judgment of the trial court is reversed, as to the requirement to attend a parent
education seminar before seeking further relief from the court. The judgment of the trial
court is affirmed in all other respects. The case is remanded for entry of a permanent
parenting plan and child support worksheet and for such further proceedings as may be
necessary. Costs of the appeal are taxed one-half to the appellant, Crystal Goan Hawk,
and one-half to the appellee, David Bryan Hawk.
_________________________________
JOHN W. McCLARTY, JUDGE
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