Jonathan Mackey v. Elizabeth Anne Mayfield

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 1, 2015 Session
JONATHAN MACKEY v. ELIZABETH ANNE MAYFIELD
Appeal from the Circuit Court for Hamilton County
No. 12D1328 L. Marie Williams, Judge
No. E2014-02052-COA-R3-CV-FILED-OCTOBER 8, 2015
Father, the primary residential parent with substantially more parenting time, sought to
relocate to Wisconsin with the parties’ minor son. After learning that Father was about to
relocate, Mother filed a petition in opposition to the relocation alleging that she had not
received notice of Father’s intent to relocate as required by Tenn. Code Ann.
§ 36-6-108(a) and contending that relocation was not for a reasonable purpose and not in
the child’s best interest. After a hearing on the issue of notice, the trial court found that
Mother received certified mail from Father more than 30 days prior to commencing this
action, but it did not contain notice of Father’s intent to relocate; thus, the court allowed
Mother’s challenge to the relocation to proceed. See Tenn. Code Ann. § 36-6-108(g).
Following a two-day trial on Mother’s petition, the court found that the testimony of
Father and his wife was not credible, that Father did not have a reasonable purpose to
relocate, and that relocation was not in the child’s best interest. The court also entered an
order prohibiting Father from relocating with the child and designating Mother as the
primary residential parent. Father appealed, contending that the trial court erred when it
found that Mother had not received notice of his intent to relocate, and that the relocation
did not have a reasonable purpose and was not in the child’s best interest. Because the
evidence does not preponderate against the trial court’s findings, we affirm the judgment
of the trial court in all respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which
CHARLES D. SUSANO, JR., C.J., and JOHN W. MCCLARTY, J. joined.
Lucy C. Wright and Carol M. Ballard, Chattanooga, Tennessee, for the appellant,
Jonathan Mackey.
Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Elizabeth Anne Mayfield.
Michele L. Coffman, Chattanooga, Tennessee, Guardian Ad Litem.
OPINION
Jonathan Mackey (“Father”) and Elizabeth Anne Mayfield (“Mother”) are the
parents of a ten-year-old son born in April 2005 in the state of Georgia. The parties were
never married, and Father’s parentage was established by a consent order filed in the
Superior Court for Catoosa County, Georgia, in March 2010. This consent order was
amended twice, and ultimately Father was given primary custody of the child.
By 2009, Father had moved to Tennessee with the child and married Shannon
Mackey (“Ms. Mackey”). By January 2011, Mother had also moved to Tennessee. On
June 28, 2012, Father filed a petition to enroll the consent orders in Tennessee. Mother
did not respond to this petition, and a default judgment was entered against her in
September 2012. On October 26, 2012, the Hamilton County Circuit Court (“trial court”)
enrolled the consent orders in Tennessee.
In February 2013, Father and Ms. Mackey decided to move to Wisconsin with the
child so that Ms. Mackey could take care of her mother. Father claims he sent Mother
written notice of his intent to relocate as required by Tenn. Code Ann. § 36-6-108 on
March 20, 2013. Under this statute, Mother was required to file any opposition to the
relocation within 30 days from her receipt of notice. See Tenn. Code Ann. § 36-6-108(g)
(2013).
On June 3, 2013, more than 30 days after Father claims he mailed Mother notice,
Mother filed a petition in opposition to Father’s relocation. The petition admitted that
Mother signed for and received documents that Father sent her but stated that those
documents were not related to Father’s relocation. The petition requested that Mother be
designated the primary residential parent because a material change in circumstances had
occurred and the parenting plan was no longer in the child’s best interest.
On June 11, 2013, the trial court held a hearing to determine whether Mother
received notice of Father’s intent to relocate. While there is no transcript of this hearing,
both parties submitted statements of the evidence pursuant to Tenn. R. App. P. 24(c). The
trial court determined that Mother’s statement of the evidence was more accurate than
Father’s and “true in all material respects.” Accordingly, we will only consider the
statement of the evidence approved by the trial court. See Tenn. R. App. P. 24(e).1
1
When multiple parties submit different statements of the evidence, the trial court has the
responsibility of settling any differences between them and ensuring that the record accurately discloses
(continued . . .)
-2-
Ms. Mackey and Father testified at the notice hearing. Ms. Mackey testified that
she helped Father write a relocation letter to Mother and sent it by certified mail. Father
corroborated Ms. Mackey’s testimony and produced an email exchange that he had with
Mother. The emails indicated that Mother received a letter from Father but that the letter
did not say anything about relocating. Father also testified that Mother came to his house
to ask for a copy of the notice and that he did not give her one. Neither party called
Mother to testify.
On June 17, 2013, the trial court issued an order stating that, although there had
been “a great deal of testimony . . . with respect to the preparation and mailing of a letter
on March 20,” there was little evidence that Mother had received notice of Father’s intent
to move. Because it found that Mother did not receive notice of Father’s intent to
relocate, the trial court allowed Mother’s petition in opposition to proceed. Father filed a
motion to reconsider this ruling, which was denied. The order denying Father’s motion to
reconsider also stated that Father “shall continue to be restrained and enjoined from
removing the minor child . . . from the jurisdiction of [the trial court] pending further
Order of the Court.”
Despite this order and the ongoing proceedings in Tennessee, Father returned to
the Georgia Court in an attempt to secure permission to relocate.2 On October 9, 2013,
Father appeared before the Georgia Court and obtained an ex parte order allowing him to
relocate to Wisconsin. There is no indication he informed the Georgia Court of the
proceedings in Tennessee. After receiving permission to relocate from the Georgia Court,
Father picked the child up from school early and drove to Wisconsin.
On October 14, 2013, Mother filed a petition for emergency jurisdiction with the
trial court because she had learned about the proceedings in the Georgia Court. Father
what occurred at trial. See Tenn. R. App. P. 24(c), (e). “Absent extraordinary circumstances, the
determination of the trial court is conclusive.” Tenn. R. App. P. 24(e). Situations that constitute
“extraordinary circumstances” include the death of a judge or evidence of bias. Williams v. Williams, No.
M2013-01910-COA-R3-CV, 2015 WL 412985, at *6 (Tenn. Ct. App. Jan. 30, 2015) (citing Artrip v.
Crilley, 688 S.W.2d 451, 453 (Tenn. Ct. App. 1985)), perm. app. denied (June 12, 2015). Neither of these
circumstances is at issue here, and Father does not make any argument to the contrary. Therefore, the trial
court’s determination that Mother’s statement of the evidence was more accurate than Father’s is
conclusive on appeal.
2
Due to some procedural maneuvering not relevant here, the trial court vacated some of its prior
orders in this case. Based on the vacated orders, Father testified that he thought the case in Tennessee had
been “thrown out,” and that he could return to the Georgia Court. This contention is disingenuous because
Father returned to the Georgia Court before the trial court entered an order vacating some of its previous
orders.
-3-
voluntarily dismissed his ex parte petition with the Georgia Court on October 21, 2013,
but did not return the child to Tennessee. Mother filed a motion seeking an order
compelling Father to return the child to Tennessee, and the trial court granted that motion
in November 2013. Father complied with this order and returned to Tennessee with the
child.
The trial of Mother’s petition in opposition to Father’s relocation occurred on June
25-27, 2014. Several witnesses testified, including Mother, Father, and Ms. Mackey. The
proof revealed that the child had lived in the Chattanooga area3 for nine years, that both
Mother and Father had relatives who lived nearby, and that the child had developed
relationships with both Mother’s and Father’s relatives in Tennessee. Although the child
visited Wisconsin about twice a year, the only family members there were his stepsister
and Ms. Mackey’s relatives. The proof also indicated that the distance from Tennessee to
Wisconsin was over 700 miles and that Mother did not have the means to travel to
Wisconsin to visit the child.
Ms. Mackey testified that she had to remain in Wisconsin in order to care for her
mother. She described her mother’s health problems and stated that she held a power of
attorney for her mother.4 Ms. Mackey testified that she had several relatives in
Wisconsin, including two siblings who lived about 20 minutes from her mother. She
stated that these siblings were not capable of caring for her mother because they were
immature and did not hold powers of attorney for their mother.
Ms. Mackey also testified that her mother had visited Tennessee on several
occasions and helped renovate the Mackeys’ house so that they could rent it while they
lived in Wisconsin.5 Ms. Mackey’s trial testimony was that her mother was unable to
paint but helped renovate by instructing and advising other workers. Her deposition
testimony, however, was not as specific about her mother’s participation in the
renovation and only indicated that her mother had worked on the renovation.
Father and Ms. Mackey also testified about the economic opportunities in
Wisconsin. Ms. Mackey was currently unemployed but had worked for a painting
company in the past. Father had received unpaid training at the same company, which
3
The record is not clear about exactly when Father moved to Chattanooga with the child.
However, prior to moving to Tennessee, Father and the child lived in and around Dalton, Georgia, which
is only about 33 miles from Chattanooga.
4
Notably, the power of attorney included in the record concerns the management of financial
affairs and does not purport to give Ms. Mackey authority to make health care decisions for her mother.
5
Indeed, Ms. Mackey’s mother was in Tennessee at the time of trial.
-4-
later employed Father for an unspecified period of time in 2013 at a rate of $20 to $25 an
hour. Although Father testified that he had not been terminated from the position at the
painting company, it was unclear whether the position was available to him.
On July 25, 2014, the trial court entered an order finding that the relocation did not
have a reasonable purpose and was not in the best interest of the parties’ child. The trial
court found that both Father and Ms. Mackey’s testimony regarding the purpose for
relocation “had serious credibility issues.” Specifically, the trial court found that Ms.
Mackey “evaded questions about her mother’s health,” and that “her answers in the
deposition and on cross were conflicting and/or misleading.” The court also found that
Father was evasive when cross-examined and that his demeanor was “substantially less
than persuasive.” Consistent with these credibility findings, the trial court found that the
proposed relocation was for the convenience of Ms. Mackey rather than for a reasonable
purpose.
The trial court found that relocation was not in the child’s best interest because the
environment in Wisconsin “does not afford him the same stability as the environment in
which he has grown up,” and because the child had formed relationships with both
Mother’s and Father’s relatives near Chattanooga. The trial court was also deeply
concerned about Father’s ability and willingness to foster the relationship between
Mother and the child because he had failed to abide by court orders previously and
sought an order permitting relocation from the Georgia Court during the course of
litigation in Tennessee. The trial court found that Mother’s credibility was “substantially
greater” than Father’s, and that she testified credibly about her desire for the child to have
a relationship with Father. The court stated that it would be “very easy for [Father] to
completely undermine the relationship” between Mother and the child and found that
Father was “not likely to comply with any new visitation arrangement once out of the
jurisdiction if it did not meet with his desires.”
Based on its findings, the trial court enjoined Father from relocating with the child
to Wisconsin, designated Mother the primary residential parent, and altered the parenting
schedule accordingly. Father appealed.
ANALYSIS
Father argues that he was entitled to relocate without court approval because
Mother’s petition in opposition to his relocation was not filed within 30 days of her
receipt of the relocation notice as required by Tenn. Code Ann. § 36-6-108(g). Father
also argues that the trial court erred when it found that the relocation did not have a
-5-
reasonable purpose and was not in the child’s best interest.6 For her part, Mother argues
that she should be awarded attorney’s fees for the litigation in the trial court and for the
appeal to this court. We will address each issue in turn.
STANDARD OF REVIEW
In cases such as this where the action is “tried upon the facts without a jury,”
Tenn. R. Civ. P. 52.01 provides that the trial court “shall find the facts specially and shall
state separately its conclusions of law and direct the entry of the appropriate judgment.”
Compliance with the Rule 52.01 mandate enhances the authority of the trial court’s
decision by providing an explanation of the court’s reasoning, see In re Zaylen R., No.
M2003-00367-COA-R3-JV, 2005 WL 2384703, at *2 (Tenn. Ct. App. Sept. 27, 2005),
and facilitates appellate review by “affording a reviewing court a clear understanding of
the basis of a trial court’s decision.” In re Estate of Oakley, No. M2014-00341-COA-R3-
CV, 2015 WL 572747, at *10 (Tenn. Ct. App. Feb. 10, 2015) (citing Lovlace v. Copley,
418 S.W.3d 1, 35 (Tenn. 2013)), no perm. app. filed. In the absence of findings of fact
and conclusions of law, “this court is left to wonder on what basis the court reached its
ultimate decision.” Id.
We review a trial court’s factual findings de novo, accompanied by a presumption
of the correctness of the finding of fact, unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d); see Boarman v. Jaynes, 109 S.W.3d 286, 289-90
(Tenn. 2003). For the evidence to preponderate against a trial court’s finding of fact, it
must support another finding of fact with greater convincing effect. Watson v. Watson,
196 S.W.3d 695, 701 (Tenn. Ct. App. 2005).
Additionally, we give great weight to the trial court’s findings regarding the
credibility of witnesses. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
This is because “[u]nlike appellate courts, trial courts are able to observe witnesses as
they testify and to assess their demeanor, which best situates trial judges to evaluate
witness credibility.” Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
Accordingly, appellate courts do not usually second-guess a trial court’s credibility
determinations unless there is “concrete, clear, and convincing evidence to the contrary.”
In re Adoption of Kleshinski, No. M2004-00986-COA-R3-CV, 2005 WL 1046796, at *21
(Tenn. Ct. App. May 4, 2005) (quoting Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn.
Ct. App. 1998)).
The presumption of correctness in Tenn. R. App. P. 13(d) applies only to findings
of fact, not to conclusions of law. See Blair v. Brownson, 197 S.W.3d 681, 683-84 (Tenn.
6
Father has not appealed the trial court’s determination that Mother should be designated the
primary residential parent.
-6-
2006). Accordingly, no presumption of correctness attaches to the trial court’s
conclusions of law, and our review is de novo. Id.
I. RELOCATION
When a parent seeks to relocate with his or her minor child outside of Tennessee,
that parent must give written notice of the proposed move to the other parent 60 days
before the move. Tenn. Code Ann. § 36-6-108(a) (2013). This notice must include the
location of the new residence, the reasons for relocation, and a statement that the other
parent may file a petition in opposition to the move. See id. If the other parent does not
file a petition in opposition to the relocation “within thirty (30) days of receipt of the
notice” of intent to relocate, then the relocating parent will be allowed to move without
any further inquiry by the trial court. Tenn. Code Ann. § 36-6-108(g); see Rutherford v.
Rutherford, 416 S.W.3d 845, 853-54 (Tenn. Ct. App. 2013).
When a timely petition in opposition to the relocation is filed, the trial court must
first determine the amount of time the relocating parent actually spends with the parties’
child. See Tenn. Code Ann. § 36-6-108(c)-(d); Kawatra v. Kawatra, 182 S.W.3d 800,
802-03 (Tenn. 2005). In this case it is undisputed that Father was spending a greater
amount of time with the child than Mother; accordingly, Tenn. Code Ann.
§ 36-6-108(d)(1) governs.
Pursuant to this subsection, a statutory presumption in favor of the relocation
request arises. See Tenn. Code Ann. § 36-6-108(d)(1); Webster v. Webster, No. W2005-
01288-COA-R3-CV, 2006 WL 3008019, at *8 (Tenn. Ct. App. Oct. 24, 2006). In order to
rebut this presumption, the parent opposing relocation must establish that the relocation
does not have a reasonable purpose; the relocation would pose a specific and serious
threat of harm to the child; or the parent’s motive for relocating is vindictive. See Tenn.
Code Ann. § 36-6-108(d)(1)(A)-(C); Webster, 2006 WL 3008019, at *8.
If the trial court finds that none of the three grounds has been established, no
further analysis is required, and the court “shall” grant the request to relocate. See Tenn.
Code Ann. § 36-6-108(d)(1). However, if any of the three grounds is established, the
court must determine whether relocation is or is not in the child’s best interest. Tenn.
Code Ann. § 36-6-108(e) (2013). If the court finds it is not in the best interests of the
child to relocate, then the requested relocation must be denied. Id.
A. NOTICE OF INTENT TO RELOCATE
Father contends that we should dismiss Mother’s appeal because she did not file a
timely petition in opposition after he sent proper notice of his intent to relocate. See Tenn.
Code Ann. § 36-6-108(g). We disagree.
-7-
The trial court conducted an evidentiary hearing on the issue of notice and found
that Mother received “something” in the mail from Father on April 3, 2013, but that it
was not written notice of Father’s intent to relocate. Father contends this was error.
Specifically, he insists he proved that Mother received the notice because he presented
proof of due mailing, which raises a presumption of receipt. See In re Adoption of S.A.W.,
No. M2007-01690-COA-R3-PT, 2008 WL 820540, at *1 (Tenn. Ct. App. Mar. 26, 2008).
We have concluded that Father misconstrues the trial court’s factual finding on the
issue of notice. The court agreed with Father, finding that he mailed something to Mother
on the date in question and that Mother received what Father mailed her. Thus, Father
received the benefit of the evidentiary presumption that Mother received whatever he
mailed to her. However, the factual issue in dispute is not whether Father mailed
“something” to Mother on the date in question, it is whether Father included written
notice of his intent to relocate in the envelope he mailed.
The trial court specifically found that Mother did not receive written notice of
Father’s intent to relocate. This finding is supported by the email exchange indicating that
Mother received documents in the mail that did not relate to Father’s relocation and by
Father’s own testimony that he refused to give Mother a copy of the notice when she
came to his house to ask for one. In addition, this evidence constitutes “[c]redible
testimony or other evidence of non-receipt . . . “ sufficient to rebut the presumption of
receipt. See id.
Having determined that the evidence from the notice hearing does not
preponderate against the trial court’s finding that Mother did not receive written notice
from Father of his intent to relocate, we affirm the trial court’s determination that
Mother’s petition was not time barred.
B. REASONABLE PURPOSE
Because Father was spending a greater amount of time with the child than Mother,
there was a presumption in favor of allowing him to relocate unless the trial court found
that one of the grounds specified in Tenn. Code Ann. § 36-6-108(d)(1)(A)-(C) existed.
See Tenn. Code Ann. § 36-6-108(d)(1). One of the grounds is that there is no reasonable
purpose for the relocation. See Tenn. Code Ann. § 36-6-108(d)(1)(A). The trial court
found that Father did not have a reasonable purpose for relocating to Wisconsin. Father
contends this finding was error.
“There are no bright-line rules with regard to what constitutes a reasonable
purpose for a proposed relocation.” Rudd v. Gonzalez, No. M2012-02714-COA-R3-CV,
2014 WL 872816, at * 11 (Tenn. Ct. App. Feb. 28, 2014), no perm. app. filed. Instead,
such determinations are fact-intensive and require a thorough examination of the unique
circumstances of each case and the specific, factual rationales for the relocation. Carman
-8-
v. Carman, No. M2011-01265-COA-R3-CV, 2012 WL 1048600, at *4 (Tenn. Ct. App.
Mar. 26, 2012); Lima v. Lima, No. W2010-02027-COA-R3-CV, 2011 WL 3445961, at
*7 (Tenn. Ct. App. Aug. 9, 2011). Whatever the rationale for relocation, it “must be a
significant purpose, substantial when weighed against the gravity of the loss of the
noncustodial parent’s ability to participate fully in their children’s lives in a more
meaningful way.” Carman, 2012 WL 1048600, at *4 (quoting Webster, 2006 WL
3008019, at *14) (internal quotation marks omitted).
Father has identified two reasons for relocation: (1) to live with his wife in
Wisconsin because she needed to live in Wisconsin to care for her mother; and (2) so
Father could pursue improved economic opportunities there, including what Father
identified as “a well-paying job at a painting company.” Under certain circumstances,
these reasons can form the basis for a reasonable purpose to relocate; however, the trial
court found that both reasons lacked a factual foundation.
It is understandable that Father wants to live with his wife, but this desire alone
does not provide a reasonable purpose for relocation. Carman, 2012 WL 1048600, at *5
(quoting Mitchell, 2005 WL 1521850, at *3). Instead, cases dealing with this issue have
focused on whether it is more reasonable for the new spouse to move to Tennessee. Id.;
see Mann v. Mann, 299 S.W.3d 69, 72-74 (Tenn. Ct. App. 2009); Mitchell, 2005 WL
1521850, at *3. In this context, a new spouse’s need to remain outside of Tennessee to
care for a relative could justify the relocating parent’s decision to join his new spouse in
another state. See Carman, 2012 WL 1048600, at *7. However, this justification is not as
strong when the relative in question can live independently and has other sources of care
available. See id.
Here, although Ms. Mackey testified that she needed to care for her mother and
that there were no other relatives who could do so, the trial court found this testimony
less than credible. The credibility finding was based in part on the fact the court found
that Ms. Mackey “evaded questions about her mother’s health” and gave conflicting or
misleading answers when cross-examined. Further, the court noted that her mother was
healthy enough to have recently visited Tennessee to help renovate Ms. Mackey’s and
Father’s Tennessee residence. See id. Accordingly, the trial court did not err when it
found that Ms. Mackey wanted to remain in Wisconsin for her own convenience rather
than because she needed to care for her mother.
As for Father’s other reason for relocating, a higher salary and opportunities for
career advancement, may serve as the basis for relocation. See Rudd, 2014 WL 872816,
at *11 (quoting Butler v. Butler, No. M2002-00347-COA-R3-CV, 2003 WL 367241, at
*2 (Tenn. Ct. App. Feb. 20, 2003)). However, when there is no firm job offer or proof of
better job opportunities, this court has found such planned relocations did not have a
reasonable purpose. Id. (citing Rogers v. Rogers, No. M2008-00918-COA-R3-CV, 2009
WL 1034795, at *6 (Tenn. Ct. App. Apr. 16, 2009)); see Dye v. Fowler, No. M2006-
-9-
01896-COA-R3-CV, 2007 WL 1515140, at *3 (Tenn. Ct. App. May 23, 2007) (“It is not
enough, however, that there exists a mere hope or belief of a better opportunity or a
salary increase.”).
On this issue, the trial court noted that Father was “extremely evasive” about his
job in Wisconsin and that his demeanor was not convincing. More specifically, Father
was evasive about the amount of time he worked for the painting company and whether
he could continue to work for this employer on a full time basis in the future. Father’s
testimony, to the extent he provided any details, was that he worked in Wisconsin as a
painter for Valenti’s Painting and Redecorating for a period of time in 2013 at an hourly
rate “[b]etween 20 and $25.” But when asked “[h]ow long did you work there [i.e. at
Valenti’s in 2013]?” Father testified: “While I was there, before I got ordered back [by
the circuit court in Tennessee for relocating without court approval], I was doing some
work with them. There was a big project coming up, and it was kind of in between
projects, so I was doing.mostly [sic] like some training on some stuff like that.” However,
in a January 2014 deposition, Father testified that he “only did a little training with
Valenti” in Wisconsin, but he did not remember how long he trained.
Having reviewed Father’s testimony, it is clear why the trial court found his
credibility lacking. Moreover, Father has not identified – and we have not found – the
clear and convincing evidence necessary for us to discount the trial court’s credibility
determination. See In re Adoption of Kleshinski, 2005 WL 1046796, at *21. Thus, the
evidence preponderates in favor of the finding that Father merely hoped for the
possibility for better economic opportunities in Wisconsin, which is insufficient to
constitute a reasonable purpose for relocation. See Rudd, 2014 WL 872816, at *11.
The evidence does not preponderate against the trial court’s findings that Father
lacked a reasonable purpose for relocating with the child to Wisconsin. Accordingly, we
affirm the trial court’s finding that there was no reasonable purpose for Father to relocate
to Wisconsin.
C. BEST INTEREST OF THE CHILD
Once the trial court found that the proposed relocation did not have a reasonable
purpose, it was required to determine whether relocation was in the best interest of the
child. Tenn. Code Ann. § 36-6-108(e); see Carman, 2012 WL 1048600, at *8. After
considering the relevant factors, the trial court determined that relocation was not in the
child’s best interest. This determination was based on the findings that Chattanooga
provided the child with more stability than Wisconsin; the child had formed relationships
with relatives of both Mother and Father who lived nearby; and Father could not foster
the relationship between Mother and the child. We have determined that the evidence
does not preponderate against these findings.
- 10 -
Although the child had visited Wisconsin periodically, Tennessee had been his
home for several years and both Mother and Father had family who lived near
Chattanooga. Moreover, the child had good relationships with both sets of relatives. In
contrast, the only family members the child had in Wisconsin were his stepsister and Ms.
Mackey’s relatives.
One of the important factors the trial court considered was Father’s record of
refusing to foster a healthy relationship between the child and Mother. See Tenn. Code
Ann. § 36-6-106(a)(10) (2013). The court found that Father had failed to keep Mother
advised of plans for the child and had interfered with Mother’s time and involvement
with the child.
The trial court was also concerned that Father would refuse to comply with future
court orders if he relocated to Wisconsin. Significantly, the trial court found that
Mother’s credibility was “substantially greater than” Father’s and that she testified
convincingly about her desire for Father and the child to have a relationship. The court
also found that Father surreptitiously sought an ex parte order from a Georgia court to
relocate while this action was pending and Father was subject to the jurisdiction of the
Tennessee court. When he obtained that order, he relocated almost immediately and did
not notify Mother. Accordingly, the trial court was right to be concerned about Father’s
willingness to foster the relationship between Mother and the child, especially given the
distance between Tennessee and Wisconsin.
Father contends that the trial court failed to address all of the applicable factors in
Tenn. Code Ann. § 36-6-106 and that a review of all of the statutory factors demonstrates
that relocation to Wisconsin is in the child’s best interest. Although it is important for
trial courts to be as detailed as possible, the relevant statutes only require the trial court to
consider factors that are applicable to the case before it. Burnett v. Burnett, No. E2002-
01614-COA-R3-CV, 2003 WL 21782290, at *6 (Tenn. Ct. App. July 23, 2003); see
Tenn. Code Ann. § 36-6-106 (“The court shall consider all relevant factors, including the
following, where applicable . . . .”) (emphasis added). The trial court’s order contains
findings of fact regarding the applicable factors, and we conclude that the trial court
satisfied its obligation in this regard. Moreover, as we have stated before:
Ascertaining a child’s best interests does not call for a rote examination of
each of [the statutory factors] and then a determination of whether the sum
of the factors tips in favor of or against the parent. The relevancy and
weight to be given each factor depends on the unique facts of each case.
Thus, depending upon the circumstances of a particular child and a
particular parent, the consideration of one factor may very well dictate the
outcome of the analysis.
In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005).
- 11 -
The greater willingness of one parent to foster a close relationship between the
child and the other parent is an important factor in a best-interest determination, and
“[o]ur case law is accordingly replete with examples where [this factor] has been the
decisive factor in determining parenting arrangements.” In re Zamorah B., No. M2011-
00864-COA-R3-JV, 2013 WL 614449, at *6 (Tenn. Ct. App. Feb. 15, 2013); In re
Jonathan S. C-B, No. M2010-02536-COA-R3-JV, 2012 WL 3112897, at *14 (Tenn. Ct.
App. July 31, 2012); Howe v. Howe, No. E2008-02580-COA-R3-CV, 2010 WL 323068,
at *4 (Tenn. Ct. App. Jan. 28, 2010); Morman v. Morman, No. M2005-00931-COA-R3-
CV, 2006 WL 2068757, at *5 (Tenn. Ct. App. July 25, 2006). Indeed, the General
Assembly has stated that custody arrangements should “permit[] both parents to enjoy the
maximum participation possible in the life of the child” consistent with the other factors.
See Tenn. Code Ann. § 36-6-106(a) (2013).
The determination of where the best interests of the child lie is a factual question,
see In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007), and we have concluded
that the facts do not preponderate against the trial court’s finding that relocating to
Wisconsin is not in the child’s best interest. Therefore, we affirm the trial court’s ruling
that the proposed relocation would not be allowed.
II. ATTORNEY’S FEES
Mother contends that she should be awarded attorney’s fees for the proceedings in
the trial court and for the proceedings on appeal.
Mother first contends that the trial court erred when it failed to award her
attorney’s fees for the trial of her petition. Trial courts are vested with wide discretion
when determining whether to award attorney’s fees. Threadgill v. Threadgill, 740 S.W.2d
419, 426 (Tenn. Ct. App.1987); see Tenn. Code Ann. § 36-5-103(c) (permitting a spouse
to recover attorney’s fees for actions concerning child custody “which fees may be fixed
and allowed by the court, before whom such action or proceeding is pending, in the
discretion of such court.”). We review a trial court’s discretionary decision regarding
attorney’s fees pursuant to the abuse of discretion standard. See Aaron v. Aaron, 909
S.W.2d 408, 411 (Tenn. 1995). After reviewing the record pursuant to this standard, we
are unable to conclude that the trial court abused its discretion by requiring that the
parties pay their own attorney’s fees.
Mother argues that she should be awarded attorney’s fees for this appeal because
Father’s appeal was frivolous. This court may award one party “just damages” when it
appears that “the appeal from any court of record was frivolous or taken solely for
delay . . . .” Tenn. Code Ann. § 27-1-122. A frivolous appeal is one that is devoid of
merit or one in which there is little prospect of success. Morton v. Morton, 182 S.W.3d
821, 838 (Tenn. Ct. App. 2005). Determining whether to award damages for a frivolous
- 12 -
appeal is discretionary decision. Young v. Barrow, 130 S.W.3d 59, 66-67 (Tenn. Ct. App.
2003). After reviewing the record, we decline to deem Father’s appeal frivolous.
Mother also contends that she should be awarded attorney’s fees for this appeal
under Tenn. Code Ann. § 36-5-103(c).7 The decision to award attorney’s fees on appeal
is within the sole discretion of this court. Hill v. Hill, No. M2006-02753-COA-R3-CV,
2007 WL 4404097, at *6 (Tenn. Ct. App. Dec. 17, 2007). “In determining whether an
award for attorney’s fees is warranted, we should consider, among other factors, the
ability of the requesting party to pay his or her own attorney’s fees, the requesting party’s
success on appeal, and whether the requesting party has been acting in good faith.”
Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App. 2004).
Here, Mother has succeeded on appeal and the record reflects that she has acted in
good faith throughout the proceedings. Conversely, the record reflects that Father has not
always acted in good faith throughout these proceedings. As for Mother’s ability to pay
her own attorney’s fees, the proof was that Mother supported herself by working three
jobs. Consequently, we find that Mother is entitled to recover her reasonable attorney’s
fees incurred in this appeal. Accordingly, on remand, the trial court shall award Mother
the reasonable and necessary attorney’s fees she incurred in this appeal.
IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against the
appellant, Jonathan Mackey.
______________________________
FRANK G. CLEMENT, JR., JUDGE
7
Although Tenn. Code Ann. § 36-5-103(c) is applicable to this case because it was an action
concerning a change in child custody, we also note that Tenn. Code Ann. § 36-6-108(i) permits “[e]ither
parent in a parental relocation matter [to] recover reasonable attorney fees and other litigation expenses
from the other parent in the discretion of the court.”
- 13 -