Timothy W. Neves v. Erica Regan Neves (Arrell)

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 7, 2004
TIMOTHY W. NEVES v. ERICA REGAN NEVES (ARRELL)
Appeal from the Chancery Court for Lewis County
No. 4549 Donald P. Harris, Chancellor
No. M2003-02269-COA-R3-CV - Filed December 13, 2004
This case involves a custody dispute between the parents of one daughter. Mother lives in Belgium,
and Father, the primary residential custodian, currently lives in Lewis County, Tennessee, although
he has also lived with his daughter in Hawaii, Oregon, and Washington State at various times since
the parties’ separation in 1998. Father has refused to allow most of Mother’s visitation since the
divorce became final, has interfered with communication between Mother and Daughter, and has
convinced Daughter to falsely accuse her maternal grandfather and stepfather of sexual abuse. The
trial court found that these occurrences amounted to a material change in circumstances and found
that it would be in the best interest of Daughter to make Mother her primary residential custodian
and to allow Daughter to move to Belgium with Mother. We affirm the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed and Remanded
WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,
and PATRICIA J. COTTRELL, J., joined.
William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Timothy W. Neves.
James Yeiser Ross, Waynesboro, Tennessee, for the appellee, Erica Regan Neves (Arrell).
OPINION
The parties in this case, Timothy Neves (Appellant), and Erica Neves Arrell (Appellee), were
married in 1994. The child at issue in this case (hereinafter referred to as “Daughter”) was born to
the marriage later that same year. The parties initially separated in 1998 and obtained a divorce in
the State of Oregon in May of 1999.
At the time of the divorce, Mother was not represented by counsel and, due to poor health
and financial hardship, agreed to allow Father to have primary residential custody of Daughter. The
divorce judgment allowed for specific visitation by Mother, the non-custodial parent. Under the
terms of the agreement, if either party chose to move out of state, Mother would have visitation for
the majority of the summer vacation, one-half of Christmas vacation, every other Thanksgiving, and
every spring break . Each parent was to pay one-half of the cost of the round-trip ticket.
Both parents chose to leave the State of Oregon. On March 3, 1999, Mother moved to
Belgium with her current husband, and shortly after the divorce was final, Father moved to
Washington State with his current wife. In May of 2000, Father moved again to Hawaii to be close
to his family. Then, in the summer of 2002, Father moved to Tennessee.
Mother began having problems obtaining her visitation shortly after the divorce became final,
as Father stated that he would not allow Daughter to visit Mother in Belgium citing fears that she
would not be returned. After the divorce was final in May 1999, Mother decided to remain in
Oregon through the month of July to exercise her summer visitation with Daughter. However, she
was not able to see Daughter again until spring 2001. Father refused to allow Daughter to visit
Mother for Christmas 1999, spring break 2000, summer of 2000, and Christmas 2000.
In August of 2000, Mother filed a Motion for Enforcement of Parenting Time, which resulted
in a judgment in her favor from the Oregon court in December of 2000, but that court also
transferred jurisdiction for modification of custody to the family court in Hawaii, as Father and
Daughter were living in Hawaii at the time. Father still refused to allow the court ordered visitation,
immediately filing a Motion for Post Decree Relief in the Hawaii family court.
Father asked the Hawaii court to severely restrict Mother’s visitation. The Hawaii court
appointed a guardian ad litem who throughly reviewed the case and recommended that Mother have
her visitation. As Mother had not seen the child in almost two years, the guardian ad litem
recommended that Mother and Daughter begin with some “warm up visitation” in the United States
in May of 2001. The Hawaii court issued an Order adopting the guardian ad litem’s
recommendations and ordering Father to allow Mother’s visitation beginning with the “warm up”
visitation but, ultimately, allowing visitation in Belgium. Visitation resumed in Hawaii during
spring break of 2001. Mother and Daughter then spent her summer 2001 visitation with Mother’s
parents in Oregon. All visitation went very well.
That fall, the terrorist attacks of September 11 occurred. As Father was extremely disturbed
about the possibility of more terrorist attacks over Christmas, the parties mutually agreed to forego
Christmas in Belgium that year, to make up Mother’s Christmas visitation the following year, and
to return to their regular visitation schedule thereafter. However, future visitation did not go as
planned. Father refused to allow Daughter to make the trip to Belgium for spring break 2002; Father
then moved to Tennessee in the summer of 2002. Daughter finally made her first trip to Belgium
for the summer of 2002, and by all accounts, the visitation went very well. But, shortly after the
summer 2002 visitation, Mother attempted to enter into a dialogue with Father regarding Christmas
visitation and how expenses should be split, and Father refused to discuss splitting of any Christmas
expenses and, once again, would not allow Daughter to visit Mother in Belgium. Mother
subsequently made arrangements for Christmas visitation to occur in Oregon. She purchased a ticket
-2-
for Daughter to fly with her from Atlanta to Oregon. According to Mother, the plan was for Father
to bring Daughter to the Atlanta airport where Mother and Daughter would fly together to Oregon
to spend Christmas with Mother’s family. Father never showed up with Daughter at the Atlanta
airport, and the Christmas 2002 visitation did not take place. Mother was also denied her visitation
for spring break 2003 and summer 2003.
In December of 2002, Father filed a Petition to Modify the Custody Arrangements in the
Chancery Court of Lewis County, Tennessee. This matter was heard on August 1, 2003. After the
hearing, the trial court found a material change of circumstances that warranted modification of the
custody arrangement and found that such modification was in the child’s best interest. Under the
Parenting Plan incorporated into the trial court’s Order, Mother was given primary residential
custody with Father getting visitation every other Christmas, every spring break and summers from
June 15th until August 15th. Father appeals the trial court’s decision.
A trial court’s custody determination is reviewed de novo with a presumption of correctness
as to the trial court’s findings of fact unless the evidence preponderates against these findings. Tenn.
R. App. P. 13(d). In addition, it has long been held that the trial judge is in the best position to
determine the credibility of the witnesses, and, thus, their determinations are entitled to great weight
on appeal. Whitaker v. Whitaker, No. E2002-00847-COA-R3-CV, 2003 WL 465873, at *5
(Tenn.Ct.App. Feb. 25, 2003); Barnes v. Barnes, No. W2002-00428-COA-R3-CV, 2002 WL
31387268, at *1 (Tenn.Ct.App. Oct. 23, 2002).
The law in Tennessee with regard to modification of child custody is now well-settled. The
trial court must first find a material change in circumstances that has occurred since the initial
custody determination and, also, find that a modification of custody is in the child’s best interest.
The principal issue in this case concerns the proper standard to be applied to
a petition to modify custody from one parent to the other parent. This issue is largely
resolved by our recent decision in Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002).
Blair involved a custody dispute between a parent and a non-parent. We concluded
that once a valid order of custody has been issued, subsequent custody modification
proceedings should apply the “standard typically applied in parent-vs-parent
modification cases: that a material change in circumstances has occurred, which
makes a change in custody in the child’s best interests.” Id. at 148. As explained in
Blair, the “threshold issue” is whether a material change in circumstances has
occurred after the initial custody determination. Id. at 150. While “[t]here are no
hard and fast rules for determining when a child’s circumstances have changed
sufficiently to warrant a change of his or her custody,” the following factors have
formed a sound basis for determining whether a material change in circumstances has
occurred: the change “has occurred after the entry of the order sought to be
modified,” the change “is not one that was known or reasonably anticipated when the
order was entered,” and the change “is one that affects the child’s well-being in a
meaningful way.” Id. (citations omitted). We note that a parent’s change in
-3-
circumstances may be a material change in circumstances for the purposes of
modifying custody if such a change affects the child’s well-being.
If a material change in circumstances has occurred, it must then be
determined whether the modification is in the child’s best interests. This
determination should be made according to the factors enumerated in Tennessee
Code Annotated section 36-6-106.
Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002).
The following year, the Tennessee Supreme Court reiterated the proper standard for
modifying custody decisions.
We clarified that this standard requires the trial court to engage in a two-step
process to make its final custody determination. First, the court must determine
whether a material change in circumstances has occurred after the initial custody
determination. Although there are no bright-line rules for determining when such a
change has occurred, there are several relevant considerations: (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.
Kendrick, 90 S.W.3d at 570; see also Blair, 77 S.W.23d at 150.
Second, after finding that a material change in circumstances has occurred,
the trial court must determine whether modification of custody is in the child’s best
interests using the factors enumerated in Tennessee Code Annotated section 36-6-106
(2001).
Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003).
In addition, it has been held that interference with the parent-child relationship by the
custodial parent may be a material change in circumstances.
However, a custodial parent’s actions which interfere with the relationship
between the child and non-custodial parent may constitute a material change of
circumstances. At the time of the initial grant of custody, the court and the parties
anticipate that the custody and visitation arrangements will be complied with. The
initial custody arrangement is intended to enhance the child’s relationship with each
parent. Adelsperger, 970 S.W.2d at 484. Both the courts and the legislature have
recognized the importance to the child’s well-being of maintaining a relationship
with the noncustodial parent. Wilson v. Wilson, 987 S.W.2d 555, 564 (Tenn.Ct.App.
1998); Tenn. Code Ann. § 36-6-106(10) (Supp. 2000). A custodial parent’s
obstruction of the non-custodial parent’s visitation rights or conduct to preclude
continuation of the parent-child relationship is a sufficient change of circumstances
to warrant further consideration of a change of custody. Wilson v. Tittle, No. M2000-
-4-
00115-COA-R3-CV, 2000 WL 1207247, at *2, 4, 6 (Tenn.Ct.App. Aug. 25, 2000)
(perm. App. denied Mar. 12, 2001).
Roache v. Bourisaw, No. M2000-02651-COA-R3-CV, 2001 WL 1191379, at *6 (Tenn.Ct.App. Oct.
10, 2001).
In addition to the chronic obstruction of Mother’s visitation, Mother also alleged continual
problems communicating with Daughter, either through telephone conversations or e-mail. These
problems began shortly after Mother’s summer 1999 visitation in Oregon when Mother received an
e-mail from Father stating:
I am writ-ting (sic) to ask you to please . . not call. I know it is hard on you
. . . but you have no idea what it puts [Daughter] through.
She was in bed at 8:30 but cried till 10:30 for you. It is very hard on her and
makes it difficult for me to reason with her. I am truly sorry!!! If you want I will try
to make an effort to make some voice mails for you of her . . and any questions about
her, e-mail me and I will do my best to write.
Father has continuously refused to communicate in any way with Mother regarding Daughter.
Further, when a phone call occurs between Mother and Daughter, Father simply hands the phone to
Daughter without so much as speaking to Mother. This has repeatedly placed Daughter in between
her parents when exchange of information is necessary. He then monitors Daughter’s phone calls
and corrects her when she makes statements of which he does not approve. Most recently,
significant and unreasonable problems with telephone calls between Mother and Daughter have
resulted from Father and his wife not having a hard line telephone in their home. Father and his wife
each have a cell phone. During the day, when Daughter is at home, Father takes his cell phone to
work. Father’s cell phone number is the only phone number that was given to Mother, as Father and
his wife refused to allow Mother access to his wife’s telephone number. Thus, Mother is unable to
communicate with Daughter during the day and can only place phone calls at times specifically
designated by Father. Father also claims to not have adequate internet capability so that Mother and
Daughter could communicate through e-mail.
In addition, Mother has been denied access to Daughter’s school records, medical records,
and counseling records. Mother has tried to speak with Daughter’s school teachers and counselors,
but, due to Father’s requests, was not allowed to have conversations with any of these people.
In an attempt to find evidence to help his case, Father made allegations a few weeks prior to
trial of sexual abuse against Daughter by both her maternal grandfather and Mother’s husband. After
hearing all the evidence in this case, the trial judge had this to say:
In my opinion, those things never happened and the reason I say they never
[happened] is this. I have here a father who from the time this couple were divorced
has done nothing but try to interfere with the visitation of the mother of this child.
-5-
He has filed actions in three separate states now and every one of the actions had as
a purpose to limit the visitation to be exercised by the mother. That’s what this one
was, that’s what the one in Florida was, that’s what the one in Oregon was and he has
been rebuffed at every point and he continues not to follow the court orders.
In this case he alleged that the mother of this child was having sex in front of
the child and he didn’t - - totally unfounded. He didn’t even bother to testify about
why he thought that might be true.
He goes out two weeks before this court hearing and in effect gets him a
witness. He has - - hires a counselor, Ms. Mobley, and he sees that that child gets to
her twice and tells this story somehow and what makes it most untrue and why I’m
really satisfied that it is untrue is that she tells it about not only one man, but about
two men, all the men that she would be around if she gets to exercise visitation. It’s
so incredible that its not to be believed.
And then finally, how does he use this information. If I were a parent and I
wanted to protect my child, the first person I think I would have called would be the
child’s mother and let her tell - - let the child tell the mother what has been going on
so that the mother can assist in protection, but no, he’s refused at all to tell her about
what was said until today. Today was the first time this mother knew.
....
I find that these false allegations are as abusive to this child almost as what
he’s alleged to have happened. I think that his actions in that regard and his actions
in refusing to allow the child to visit her mother and refusing to talk to the mother
about matters relating to the child, interfering with the phone conversations by
admittedly taping them on one - - during one stretch and now apparently monitoring
most of the calls that are made and then of course just cutting them off altogether
constitutes a sufficient change of circumstances to modify the previous order of the
Court.
I note that she’s done well, but like I say, I consider this encouragement to
make false allegations and the other treatment that this child received to be abusive
and I find that the custody should be joint between these people. The mother will be
the primary residential parent.
After reviewing all testimony and evidence presented in this matter, we cannot say that the
evidence preponderates against the trial court’s findings of fact. Father admitted in testimony that
he knew Mother was to be allowed summer, spring and Christmas visitation and understood that this
visitation had been ordered by the courts. Even after the Oregon court ordered enforcement of
Mother’s visitation and the Hawaii court agreed that Mother should get the previously ordered
visitation, Father still continued to obstruct Mother’s visitation and interfere with her relationship
with Daughter. Father and his wife also admitted to correcting Daughter during phone calls with
Mother.
-6-
The role of custodial parent carries with it a particularly important duty to foster a
relationship between the child and the non-custodial parent. Father has not only abrogated this
responsibility, but has intentionally placed every possible barrier between Daughter and Mother,
including preventing visitation, impeding phone calls, blocking Mother’s efforts to talk with
Daughter’s teachers and counselors, precluding Mother from obtaining Daughter’s medical, school,
and counseling records, and averting any communication between himself and Mother. This
behavior by Father, in addition to the false allegations of sexual abuse, certainly constitute a material
change of circumstances.
In determining the best interests of the child, we turn to factors set out by the legislature in
Tennessee Code Annotated section 36-6-106(a) (2001):
(1) The love, affection and emotional ties existing between the parents and
child;
(2) The disposition of the parents to provide the child with food, clothing,
medical care, education and other necessary care and the degree to which a parent has
been the primary caregiver;
(3) The importance of continuity in the child’s life and the length of time the
child has lived in a stable, satisfactory environment; provided, that where there is a
finding, under § 36-6-106(8), of child abuse, as defined in § 39-15-401 or § 39-15-
402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a
non-perpetrating parent has relocated in order to flee the perpetrating parent, that
such relocation shall not weigh against an award of custody;
(4) The stability of the family unit of the parents;
(5) The mental and physical health of the parents;
(6) The home, school and community record of the child;
(7) The reasonable preference of the child if twelve (12) years of age or
older. The court may hear the preference of a younger child upon request. The
preferences of older children should normally be given greater weight than those of
younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person; provided, that where there are allegations that one (1) parent
has committed child abuse, [as defined in § 39-15-401 or § 39-15-402], or child
sexual abuse, [as defined in § 37-1-602], against a family member, the court shall
consider all evidence relevant to the physical and emotional safety of the child, and
determine, by a clear preponderance of the evidence, whether such abuse has
occurred. The court shall include in its decision a written finding of all evidence, and
all findings of facts connected thereto. In addition, the court shall, where appropriate,
refer any issues of abuse to the juvenile court for further proceedings;
(9) The character and behavior of any other person who resides in or
frequents the home of a parent and such person’s interactions with the child; and
(10) Each parent’s past and potential for future performance of parenting
responsibilities, including the willingness and ability of each of the parents to
-7-
facilitate and encourage a close and continuing parent-child relationship between the
chid and the other parent, consistent with the best interest of the child.
In recognition of the many variables and factors that come into play in each individual case,
this Court has stated:
“In child custody cases, the welfare and best interest of the children are the
paramount concern and the determination of the children’s best interest must turn on
the particular facts of each case.” Akins v. Akins, 805 S.W.2d 377, 378
(Tenn.Ct.App. 1990) (citing Holloway v. Bradley, 190 Tenn. 565, 570-72, 230
S.W.2d 1003, 1006 (1950)). In determining what is in the best interest of the child,
the court is to assess the comparative fitness of the parties in light of the particular
circumstances of the case. Ruyle v. Ruyle, 928 S.W.2d 439, 442 (Tenn.Ct.App.
1996); Matter of Parsons, 914 S.W.2d 889, 893 (Tenn.Ct.App. 1995). “There are
literally thousands of things that must be taken into consideration in the lives of
young children, and these factors must be reviewed on a comparative approach.”
Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.Ct.App. 1983) (internal citations omitted).
Roache, 2001 WL 1191379, at *8.
In reviewing the factors in this case, we find that many of these factors bode equally for both
parents. There appear to be love, affection and emotional ties existing between Daughter and both
parents. Both parents appear ready, willing and able to provide the child with food, clothing,
medical care and other necessary care. Both parents, also, have a stable family unit, and both parents
currently seem to be in good mental and physical health. Although Daughter has lived primarily
with Father since 1999, Father has made frequent moves during that period of time, so we cannot
say that her time with Father has represented a large measure of continuity.
The factors that tip the best interest analysis in the direction of Mother are (1) the evidence
of emotional abuse, in that Daughter was evidently subjected to some type of coercion to either
convince her that she was sexually molested by her stepfather and grandfather or to convince her that
she should lie regarding such molestation, and (2) Father’s insistence on interfering with Mother’s
visitation and relationship with Daughter. Father has definitely not demonstrated “past and potential
for future performance of parenting responsibilities, including the willingness and ability . . . to
facilitate and encourage a close and continuing parent-child relationship between the child and the
other parent. . . .” Mother has stated that she will allow all scheduled visitation with Father,
encourage phone calls, and do everything in her power to assist Daughter with maintaining a
relationship with Father. As has been demonstrated over the last four years, Father will not. See
Burke v. Burke, No. M2000-01111-COA-R3-CV, 2001 WL 921770, at * 4-5 (Tenn.Ct.App. Aug.
7, 2001).
Although Daughter will be moving to live with Mother in Belgium, she will live in a
neighborhood near an American military base with many English speaking families and will be
-8-
attending an English speaking school located five minutes from her home. Mother has also already
located an English speaking counselor in the event Daughter needs help with the adjustment.
Although this move will likely be initially difficult for Daughter, the importance of having a
relationship with both parents outweighs any initial hardship. As Father has moved with Daughter
more than three times in the last five years, Daughter has shown her ability to adapt to such life
changes.
We agree with the trial court that Father’s actions amount to a material change of
circumstances and that it is in Daughter’s best interests that primary residential custody be given to
Mother with Father having visitation as outlined by the trial court.
The judgment of the trial court is in all respects affirmed and the case remanded to the trial
court for such further proceedings as may be necessary. Costs are assessed against Appellant.
___________________________________
WILLIAM B. CAIN, JUDGE
-9-