Rolando Toyos v. Amanda G. Hammock

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 25, 2012 Session
ROLANDO TOYOS v. AMANDA G. HAMMOCK
Direct Appeal from the Juvenile Court for Shelby County
No. R-2729 Curtis S. Person, Jr., Judge
No. W2011-01649-COA-R3-JV - Filed January 17, 2013
After primary residential parent Mother notified Father of her intent to relocate, Father
opposed relocation and he petitioned to be named the child’s primary residential parent. The
trial court determined the Father had demonstrated a material change in circumstances, but
it found the child’s best interests would be promoted by Mother remaining the primary
residential parent, and it allowed Mother’s relocation with the child. We affirm in part and
we reverse in part.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part, Reversed in Part and Remanded
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.
Kay Farese Turner, Emily L. Hamm, Memphis, Tennessee, for the appellant, Rolando Toyos
Christine W. Stephens, Memphis, Tennessee, for the appellee, Amanda G. Hammock
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
On May 5, 2005, a daughter, “E.T.”, was born to Amanda G. Hammock (“Mother”)
and Rolando Toyos (“Father”), who never married. On May 19, 2005, Father filed a
“Petition to Establish Paternity” in the Shelby County Juvenile Court. A subsequent DNA
test confirmed his paternity, and on November 15, 2005, Father petitioned the court for
visitation with the child.
On August 31, 2006, Juvenile Court Magistrate1 Dan H. Michael entered “Findings
and Recommendations of [Magistrate,]” which, among other things, awarded custody of the
child to Mother and permitted Father to visit with the child on alternating weekends, certain
holidays, and specified weeks during the summer. The findings and recommendations were
confirmed as the decree of the juvenile court.
Following mediation, the parties entered into a “Consent Order” on December 11,
2007, which, among other things, named Mother as the child’s primary residential
parent–awarding Mother 275 days per year with the child and awarding Father 90 days per
year with the child. Specifically, the Consent Order granted Father visitation with the child
on alternating weekends, certain holidays, two weeks in both June and July, and each
Wednesday night except in June and July. Among other things, the Consent Order required
Father, an opthalmologist, to pay $2,500.00 per month in child support, to pay certain K-12
and college education expenses, to “maintain reasonable health and dental insurance” for the
child, and to “insure his life in the minimum amount of $1,000,000.00 by whole life or term
insurance[.]” The Consent Order further provided that all major decisions concerning the
child would be made jointly, and that disagreements with, or modifications to, the Consent
Order must be submitted to mediation.
On or about January 19, 2010,2 Mother sent Father a certified letter stating her intent
to relocate from Memphis to Rockvale, Tennessee, in Rutherford County based upon her
pregnancy by, and her plan to wed, her fiancé “within [the] next two months.” Thereafter,
on January 26, 2010, Father filed a “Petition in Opposition to Mother’s Stated Intent to
Relocate with Minor Child to Rockvale, Rutherford County, Tennessee and for Modification
of Consent Order.” In his petition, Father claimed that “during the last year and a half,
1
In 2009, the title “referee” was substituted with the title “magistrate.” See Tenn. Code Ann. § 37-
1-107.
2
The letter is dated January 15, 20[10], while the postage label is dated January 19, 2010.
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Father has had defacto substantially equal time with the minor child and has participated in
the minor child’s activities in school and otherwise[,]” and thus, he claimed, that a
presumption favoring relocation should not arise. Alternatively, he argued that Mother’s
relocation had no reasonable purpose and that it would pose a threat of specific and serious
harm to the child that outweighed the threat of harm to the child of a change of custody, and
therefore, that Mother’s relocation request should be denied. Father argued that if Mother
was allowed to relocate, Father should be named the child’s primary residential parent, as
relocation was not in her best interest. As relevant to his petition for modification, Father
alleged the following material and substantial changes of circumstance: 1) Mother’s neglect
of the child’s educational needs; 2) Mother’s false allegations of sexual abuse of the child;3
3) Mother’s history of making false claims of sexual abuse; 4) Mother’s exposure of the child
to numerous boyfriends; 5) Mother’s pregnancy by a man living in Rockvale and her desire
to relocate there; and 6) Father’s substantially equal time with the child. Pursuant to a
motion filed by Father, the juvenile court temporarily enjoined Mother from relocating the
child from Shelby County pending trial.
In response to Father’s petition, Mother likewise requested modifications to the 2007
Consent Order. Specifically, in the event that a decision could not be reached jointly, Mother
sought to be designated as the final decision maker regarding all major decisions. Mother
adamantly denied that Father had exercised substantially equal time with the child, and she
alleged that Father did not personally care for the child during his scheduled visitation. To
accommodate her requested move, Mother sought to reduce Father’s parenting time from 90
days per year to 80 days per year–including a reduction of Father’s weekend visitation to one
weekend per month and cessation of Father’s Wednesday night visitation, but including
additional summer visitation for Father.
On April 21, 2010, Father amended his petition. In addition to his previous
allegations, Father stated that Mother’s relocation had no reasonable purpose because her
fiancé is a male nurse who could easily obtain employment in Memphis. Father further
alleged that Mother’s relocation was vindictive as it was aimed at defeating his parenting
rights and he claimed that since announcing her intent to relocate, Mother “has taken steps
to reduce Father’s parenting time that she had freely given him prior to her stated intent to
relocate.”
A trial was conducted in the matter over the course of thirteen days between April 29,
2010 and November 10, 2010. On December 17, 2010, Juvenile Court Magistrate Michael
3
Father claimed that “Mother has made false allegations of abuse against others and has caused
Father’s staff, the nanny hired by Father, and family to incur attorney’s fees and expenses to defend against
such allegations.”
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entered “Temporary Findings and Recommendations of Magistrate[,]” (“Temporary Order”)
which stated in part:
The Court finds that the parents have not spent substantially equal time with
the child. The court finds that the Mother spends substantially more time with
the child than the father and that the reason for her proposed relocation is
reasonable and in the child’s best interest. The Court finds no merit in the
Father’s claim that the Mother’s purpose is vindictive, or that there is a threat
of specific and serious harm that outweighs the threat of harm to the child of
a change of custody. The Court finds that the child’s educational needs can be
met in the Mother’s home of choice and that no severe emotional detriment to
the child would result if she is allowed to relocate with her Mother. The Court
hereby dismisses the Father’s plea to obtain custody based on the Mother’s
desire to relocate, lifts the temporary injunction against the Mother and allows
the Mother to relocate with the child immediately.
In addition, the Court finds that the Mother’s declaration of her intent to
relocate with the child approximately four hours from this jurisdiction creates
a material and substantial change of circumstances that merits the Court’s
consideration of existing orders. But, notwithstanding Father’s success in
proving a substantial and material change of circumstances all of his other
claims lack merit. In fact the majority of his claims are incredible. The court
finds that a change of custody would create more harm to the child than simply
modifying the underlying order to reflect the change of circumstances
presented by Mother’s relocation. This Court finds that it is in the best interest
of the child that she remain in the primary custody of her mother.
Thus, the juvenile court lifted the injunction preventing Mother’s relocation, and it awarded
temporary custody of the child to Mother. Father was awarded once-monthly visitation with
the child and he was allowed to exercise parenting time within Rutherford County “for no
more than five overnights every odd month.” The Temporary Order was confirmed as the
decree of the juvenile court.
On December 22, 2010, Father moved for permission for interlocutory appeal and for
a stay pending appeal. Father argued, among other things, that the court had improperly
decided the relocation issue after bifurcation, and without hearing proof on the issue. He
further contended that a stay of the Temporary Order was necessary because Mother would
neglect the child’s educational needs and because his decreased visitation set forth in the
Temporary Order would detrimentally affect his relationship with the child. The trial court
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denied Father’s motion for interlocutory appeal on February 17, 2011.4
On May 31, 2011, Mother’s attorneys, Christine W. Stephens and Michelle M.
Strocher, filed affidavits of attorney fees. Ms. Stephens recited a $275.00 per hour fee and
she stated that Mother “has incurred attorney’s fees of $56,986.00 through May 25, 2011”
as well as “expenses in the amount of $12,882.94 through May 25, 2011.” Ms. Strocher
recited an hourly fee of $200.00 per hour, and she stated that Mother “has incurred attorney’s
fees of $5,890.00 through May 24, 2011.” Father moved to strike the attorneys’ affidavits
contending that “at no time during these proceedings has Mother presented proof on the issue
of attorney fees.” Father contended that Mother had not alleged, nor was there an averment
in either deposition, that the fees incurred were reasonable and necessary or that Mother had
no other funds from which to pay the fees. Furthermore, Father contended that “if such
affidavits are allowed to remain in the record, Father will have been deprived of his right to
cross-examine the evidence[.]” On July 25, 2011, Magistrate Michael granted Father’s
motion, striking the affidavits from the record.
On July 12, 2011, Juvenile Court Magistrate Michael entered his single-spaced thirty-
three page “Findings and Recommendations of Magistrate,” which was confirmed as the
decree of the juvenile court by Juvenile Court Judge Curtis Person. The court found “The
Facts,” in relevant part, as follows:
After the parties failed to reach an agreement through mediation[,] the case
came to trial on April 29th 2010. The Father begins his case with the allegation
that the Mother makes unfounded accusations of sexual abuse/molestation by
others in an attempt to damage his reputation. He also claims her allegations
damage the reputations of his friends and family. He claims that his
daughter’s report of being inappropriately touched by the nanny’s 12 year old
grandson was a lie concocted by the Mother to “get at me.” It is his foundation
to the claim that the Mother makes unfounded accusations on a regular basis.
The proof clearly shows that the Father’s claims are self-serving and frivolous.
The Mother reported to the Tennessee Department of Children’s Services in
mid January of 2010, that her daughter E.T. told her and her fiancé[] that the
nanny’s grandson “Z”, age 12, liked to play house/mommy and daddy and that
he had touched her on the bottom during that play. The Mother notified the
Father via email about her actions. Upon hearing of Mother’s report, the
Father told the mother of “Z.” She is his long time employee, Durenda Camp.
4
It appears that the court denied Father’s motion at a February 17, 2011 hearing and that no written
order was entered.
-5-
Ms. Camp is the daughter of E.T.’s nanny. The incident occurred while E.T.
was staying with the nanny in the home of Ms. Camp and “Z.”
When Ms. Camp found out about the allegations against her son she sought out
a therapist to advise her on how to handle the allegations and the effects they
may have on her son. The therapist she chose was a Dr. Kim Clover. Dr.
Clover listened to Ms. Camp’s concerns then counseled her to wait and see
what the investigation revealed. After hearing Ms. Camp’s side of the story
she then counseled E.T. [Dr. Clover] was called as Father’s first witness.
This Court firmly believes Dr. Clover heard Ms. Camp’s version of the story
as well as her suspicions about and anger at the Mother. Dr. Clover did not
report the allegations to the Tennessee Department of Children’s Services. Dr.
Clover testified that she did not tell the Mother that she had counseled the
offender’s mother about the allegations.
Dr. Clover also testified that she had no written authorization to see E.T. from
either parent. She testified that she assumed she had a parent’s permission to
treat the child but had no documentation to that effect. She stated that E.T.
was brought to her office by Paige Patrick, the Father’s girlfriend.5 Testimony
revealed that he checked E.T. out of school early for this appointment and lied
to the Mother about it when confronted, Mother found out about Dr. Clover
from E.T. She then got a letter from Father’s attorney.
The Father told the Mother he wanted to hang out with E.T. that afternoon as
his reason for having his girlfriend check her out of school early. When
challenged on his lie he stated he didn’t tell the Mother because “my thinking
on that was I wanted E.T. to see a specialist without any preliminary
brainwashing by her Mother.” The Father took E.T. to two or three
appointments with Dr. Clover before telling the Mother.
Dr. Clover stated that Ms. Patrick informed her that they had concerns about
E.T. having sexual knowledge and an accusation that E.T. made against her
nanny’s grandson. Once again she heard from another adult closely associated
with the Father about their views of the Mother. At this point Dr. Clover had
not talked to either parent, but she testified that she needed to “check into” this
allegation. It came to light in later testimony that both Ms. Patrick and the
5
At the November 2011 hearing on attorney fees, Father testified that he is now engaged to another
woman.
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nanny had challenged E.T. about her allegations. There was also testimony
that the child was told that people go to jail for telling lies. E.T.’s counselor
at the Child Advocacy Center testified that Ms. Patrick told E.T. that “[it]
never happened.”
Prior to E.T. seeing Dr. Clover she was questioned by the nanny and Ms.
Patrick. Prior to Dr. Clover seeing the child she talked with Ms. Camp, the
mother of the alleged perpetrator and the Father’s girlfriend, both who harbor
intense animosity towards the Mother. At this point Dr. Clover decides she
needs to “check into” these[] allegations even though she has yet to consult
either parent.
Dr. Clover’s testimony was thrown further into suspicion after her admissions
on cross examination. It became clear to this Court that Dr. Clover had an
opinion of E.T.’s allegation before she met with E.T. Dr. Clover admitted that
she told Ms. Camp that she saw no need in the offender receiving treatment
until the investigation was completed by the authorities. She also admitted that
she was compelled by the law to report the abuse if she believed it occurred.
When challenged on cross, Dr. Clover admitted to forming her opinion of the
situation early. In response to Mother’s counsel’s question, “Okay, so you
believe it was a lie or by law you would have had to report it, correct?” [s]he
answered, “correct.” Dr. C[lover] never reported E.T.’s allegations.
In expressing it[]s grave concerns about Dr. Clover’s handling of this matter,
the Court questioned Dr. Clover as to her ethical obligations in this case. Her
response stunned the Court. Dr. Clover stated that “I think what I was
concerned about was the child because it seemed to be a fabricated situation.”
She denied that she came to that conclusion after talking to Ms. Camp and Ms.
Patrick, but it is clear to this court that her opinion was negatively influenced
by these two adults.
This Court is convinced that Dr. Clover’s intentions were misplaced. Her
testimony and demeanor leads this Court to believe that her opinion of this
incident was compromised by her meeting with the offender’s mother and the
Father’s girlfriend and the Father. It is clear to this Court that E.T.’s behavior
was influenced by the nanny, Ms. Patrick and the Father.
In considering Dr. Clover’s testimony in conjunction with that of the Father,
Ms. Paige Patrick, Ms. Camp, documented evidence and all other proof, the
Court finds her opinion to be unduly influenced by information she gathered
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prior to talking to the child. Further this Court finds her opinion in this matter
seriously flawed and hereby grants the Mother’s motion and strikes her
testimony from the record as incredible and prejudicial.6
Because of jurisdictional issues, the allegation of inappropriate touching was
closed without any final resolution. The alleged offender lives in Mississippi
while E.T. lives in Tennessee. The jurisdictions failed to communicate and the
allegations went no further. The Court finds the statement by E.T. to the
investigators at the Memphis Child Advocacy Center to be clear and devoid
of any coaching. This Court believes that E.T. is telling the truth and that “Z,”
the nanny’s grandson[,] touched her bottom.
The Father who dismissed his daughter’s allegation as a lie taught to her by her
Mother insists this allegation shows a pattern of unfounded accusations of
sexual abuse by the Mother. His witnesses parrot his perspective in their
testimony. The Father contends that the Mother makes these allegations when
she doesn’t get her way. He sees it as an attempt to get at him personally. As
proof he offered testimony and documents.
His first witness as to the Mother’s use of false allegations come from the
nanny, Terri Colon. Ms. Colon talked honestly about her relationship with the
Mother and admitted to becoming her friend. Evidence was provided that the
Mother was very fond of Ms. Colon and that Ms. Colon considered E.T. her
“7th grandchild.” Ms. Colon also raised serious concerns about E.T.’s acting
out sexually. . . .
Ms. Colon was genuinely frustrated by E.T.’s actions, but at a loss as to what
to do about them. . . . She then stated with certainty that she did not know
where the behavior came from but that it did not come from the Father. E.T.
sometimes stayed with her at her home with her daughter, Ms. Camp, and her
grandson “Z.” Although E.T. reported that she told her nanny when “Z”
touched her, the nanny denied this.
6
In a footnote in his brief to this Court, Father argues that the trial court acted inconsistently when,
at trial, it denied Mother’s motion ore tenus to strike Dr. Clover’s testimony, but then struck the testimony
in its Findings and Recommendations. At trial, Magistrate Michael indicated that he would not rule on
Mother’s motion to strike until he had “heard the proof from both sides.” Mid-testimony, he stated that he
believed striking Dr. Clover’s testimony would be “reversible error[,]” and he indicated that he must “listen
to her testimony and give it the credibility [he] think[s] it deserves.” We find no inconsistency between the
trial court’s statements and its actions.
-8-
Ms. Colon also testified that she saw emails where the Mother accused the
Father and his girlfriends of sexually abusing E.T. and concluded that E.T.’s
accusations about her grandson were a deliberate ruse perpetrated by the
Mother because she wanted to move. She stated on the record that the Mother
is no longer a friend. She was very upset at the Mother.
It is clear that Ms. Colon was pained to have to testify in this matter and that
she loves E.T. as her “7th grandchild.” She is also convinced her friend, the
Mother, betrayed her. . . . Her pain and anger, supported by her daughter’s
anger, supported by the Father’s anger, supported by Ms. Patrick’s anger, was
palpable to this Court. She no longer speaks to the Mother unless
circumstances force her to do so.
Although the Court finds absolutely no blame in Ms. Colon’s actions, it gives
no credence to her claim that E.T.’s allegation against her grandson was a lie
perpetrated by the Mother. The Court does not find a pattern of intentionally
destructive behavior by the Mother. The Court grants little weight to her angry
email to the Mother after the allegations came to light.
The nanny’s daughter, “Z’s” mother, is the Father’s long time employee,
Durenda Camp. . . . It was clear that Ms. Camp is very angry at the Mother. .
..
[Durenda Camp’s] anger is understandable given E.T.’s allegations against her
son. But it is clear to the Court that her anger influenced her testimony and
compromises her credibility. Ms. Camp has worked for the Father of E.T. for
eight years. She was his employee when he and Mother broke up. She
remained an employee through all of the previous protracted litigation between
the Father and the Mother. Her mother is the child’s nanny and also an
employee of the Father. Ms. Camp is squarely in the Father’s camp and firmly
believes that E.T. was told to lie about her son’s actions to get at the Father.
Having considered the demeanor and testimony of Ms. Camp, documented
evidence and the testimony of all witnesses, the Court gives her testimony little
weight. The Court finds that her anger clouds her judgment and that she is
loyal to a fault to the Father. The Court does not find her testimony dispositive
as to any pattern of behavior by the Mother concerning false accusations of
sexual abuse. This Court finds Ms. Camp’s testimony incredible.
Paige Patrick testified next. Ms. Patrick and the Father have been in a
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relationship for about two years. . . . Ms. Patrick stated that she and the Mother
were friendly but not friends. She stated that that all changed in January of
2010, when “I turned into a monster in her eyes. . . .”
....
Ms. Patrick went on to say that she had read emails where the Mother had
accused the Father’s former girlfriend of sexually abusing E.T. and one that
accused the Father’s father of being at risk to molest E.T. When asked about
her position that the Mother accused the Father’s father of having the potential
to abuse E.T., Ms. Patrick testified that, “I think the truth is that she knew the
trip to visit E.T.’s grandfather was planned and the day they were leaving she
didn’t get her way about something and made the accusation that his father
might do that.” This opinion exists in the face of uncontroverted testimony
from the Father that his father was extremely violent, beating the Father when
he was a child, perpetrating violence on the Father’s mother and brother
eventually forcing the three of them to flee the home permanently.
Like Ms. Camp and Ms. Colon, Ms. Patrick is angry at the Mother. Her anger
clouds her judgment and makes her testimony suspect. She is convinced the
Mother is a horrible person and that she needed to testify to “clear her name,”
despite the fact that no evidence exists that the Mother accused her of
anything. Ms. Patrick repeatedly makes the point that she doesn’t enter into
discussions between the Mother and the Father when it concerns E.T. But she
goes on to testify to things the Father has told her about what the Mother said
or what the Mother put in an email. She[,] like[] the Father’s other witnesses’
testimony[,] repeats almost verbatim their statements.
Having considered her demeanor and testimony at trial, all documented
evidence and testimony of all the witnesses[,] this Court finds Ms. Patrick’s
testimony incredible as to any pattern of behavior by the Mother concerning
false accusations of sexual abuse. The Court also questions her allegiance to
the truth. Like Father’s other witnesses[,] her perceptions are clouded by
anger and her relationship with the Father.
The Father testified next. He stated that he knew immediately that the
allegation E.T. made against the nanny’s grandson was “fabricated.”
....
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At one point in trial the Father claimed that E.T. said that her mother made her
lie. In a follow-up question “Did you hear her say that?” Father responded
“correct.” When asked what she said exactly, Father stated “That Z didn’t do
anything to me; that her mommy made her lie.” Considering his demeanor and
credibility at that time, the Court noted his answer to be incredible.
The only conclusions the court can draw from the Father’s insistence that he
has been accused of molesting his daughter is that he is so angry with the
Mother that he is willing to go to extremes to sway this Court. There is
absolutely no proof in the record that the Mother ever made such allegations
against anyone nor that she told her daughter to lie about the incident with the
nanny’s grandson.
Having considered the Father’s testimony and demeanor at trial, the Court
finds his actions and testimony incredible, frivolous and reckless. There is no
proof as to any pattern of behavior by the Mother concerning false accusations
of sexual abuse or molestation.
But the proof is clear that E.T. was inappropriately touched by “Z.” Her
Father claims to be the primary means of support for E.T. but when she
discloses “Z”’s actions he simply doesn’t believe her. He then surrounds her
with adults, her nanny and his girlfriend, who question her about the
allegations, tell her it didn’t happen [and] that liars go to jail.
The Father’s next allegation is that the Mother is “emotionally dependant and
is not capable of adequately parenting the child in the absence of the support
systems currently in place in the Father’s home and such support system is not
available at the proposed relocation site.” Father argues that he provides
primary parenting for the child every other weekend and on Wednesday nights.
He provides the child with a nanny and he has a reliable girlfriend to help out.
He also has long term employees that are willing to help if need be. Given
much of the testimony and evidence at this point in the trial, it was clear to this
Court that the Father is prone to parent by proxy.
The Father testified that he controlled his calendar, that he sets his own work
rules and the he owns his own business. But because he is busy he has his
girlfriend transport E.T. to her first dental appointment, and does not tell the
Mother. When he unilaterally determines that his child has been coached to
tell a very serious lie about her nanny’s grandson, he has his girlfriend take the
child to see a therapist, without telling the Mother.
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He provides a nanny to transport the child to school and pick her up from
school on the majority of the days it falls to him. He also has his girlfriend
perform this function on occasion. . . .
The Father fails to attend any of the child’s events at Grace Saint Luke’s pre-
kindergarten, instead he sends a proxy. E.T.’s teacher at Grace Saint Luke’s
does not know him. He did not attend either of the two parent teacher
conferences at Grace Saint Luke’s. The proof did show that E.T.’s Mother
was fully involved at Grace Saint Luke’s.
The Father’s behavior only marginally improved once E.T. got to St. Mary’s.
He still failed to attend many events there and he even offered to send a proxy
to a parent teacher conference when his work conflicted with the meeting. He
did go when his offer was denied. He missed E.T.’s graduation, but he sent
the nanny.
....
Father contends that Mother is emotionally unstable because of her father’s
actions [in murdering her disabled brother and then committing suicide] and
her family’s demise. Mother admitted to being depressed by the tragic actions
of her father and the loss of her mother but denied ongoing mental health
problems. No proof of any ongoing emotional instability as to the Mother
exists in the record, other than the Father’s claim that it exists.
....
There is no proof in the record that E.T. is malnourished while in the Mother’s
care. There is no proof that she goes unclothed, although Father takes
exception stating at one point that [E.T.’s] clothing was “very inexpensive
clothing that doesn’t match and that doesn’t present E.T. in a very good light.”
There is no proof that the Mother is totally dependent on the Father for a
support system.
Father’s allegation that the Mother is “emotionally dependant and is not
capable of adequately parenting the child in the absence of the support
systems currently in place in the Father’s home and such support system is not
available at the proposed relocation site,” is frivolous and arrogant and it is
not in any way supported by the evidence.
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Father’s next allegation is that “based on the Mother’s conduct over the last
year and a half, once out of the jurisdiction, Mother is unlikely to comply with
any new visitation arrangement or to provide the minor child with food,
clothing, medical care, education, and other necessary care[].” Like the
preceding allegations, this one is also baseless. There is no evidence in the
record to support this claim. The evidence is clear that the Mother will do
what is necessary to promote a continued relationship with the Father. On the
other hand[,] the Father at one point asked that her parenting time be
supervised.
Father then attacks the Mother’s morals. . . .
In an earnest attempt to determine which is blacker, the pot or the kettle, the
Court considers these claims. At one point in his testimony the Father made
it clear that he didn’t know what went on over at the Mother’s house. Then he
proceeds to allege that the Mother has boyfriends in and out of the home when
the child is present. Nowhere in his testimony does he deny that he has had
several girlfriends since he and the mother broke up. Nowhere in his
testimony does he deny having his girlfriends sleep over when the child was
present. The proof shows that the Father frequently uses his girlfriends to help
parent E.T. by providing transportation to school and doctor’s offices as well
as attending school functions.
What is clear from the record is that the mother did have several boyfriends
after her relationship with the Father. But she did not allow those men into her
home nor did she always introduce them to E.T. Her first relationship after the
CONSENT ORDER from December of 2007 was with a dermatologist. He
never met E.T. during their 7 month relationship. He was never in her home.
Her next relationship was with the CEO of Campbell’s Clinic. The
relationship lasted about five months and he met E.T. This man never spent
the night at the Mother’s home but she testified that she spent the night at his
home with E.T. one or two times. The next relationship was brief. The
Mother testified that the man showed up at her home unannounced and she
asked him to leave. He entered her home only once, and then no further than
the foyer. He never spent the night in her home and only had brief interactions
with E.T.
The Mother then met her current husband, Kenny Dudley and father of her
second child. Mr. Dudley did meet E.T. and did spend the night with the
Mother while E.T. was in the home. The Father makes the point repeatedly
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that she met her husband on the internet. His implication is that this is an
illegitimate venue for establishing a relationship. It is obvious that the Father
considers a bar a much more appropriate venue for such things. The Father
also challenges the moral sensibilities of exposing E.T. to her out of wedlock
pregnancy and the father of this illegitimate child. The Court struggles with
his argument.
The Court, in its attempt to distinguish the ever difficult task of discerning the
blackness of the pot and kettle makes note that E.T. was born out of wedlock,
after her parents met in a bar. There is absolutely no proof that the Mother had
men in and out of her home or that she exposed her daughter to these men in
an attempt to create a bond or for any other nefarious reasoning. There is
proof, on the other hand, that the Father did exactly what he has accused the
mother of doing.
The Father has maintained at least two long term live-in girlfriends and
perhaps two short term sleep over girlfriends. If he worries about his child’s
bonds with the Mother’s [boy]friends he utterly fails to give the same or
greater concern to his child’s bonds with Rebecca who lived with him for a
year and a half and Paige who has spent at least 70% of her time in his home
for the last two years. The Mother married the father of her second child.
Father and his girlfriend are as yet still girlfriend[ and boyfriend]. His
allegations lack any relationship to the truth. As to these allegations, the pot
is in fact blacker than the kettle.
The Father next avers that the CONSENT AGREEMENT requires that E.T.
attend an all-girl[]s school. In fact what the CONSENT AGREEMENT
actually says is . . . “Father shall pay for one hundred percent (100%) of the
tuition, fees and books for Child for kindergarten through twelfth grade at an
all-girls private school to be agreed upon by the parties . . . .” Both parties
agreed to E.T. attending a private co-ed pre-kindergarten, Grace St. Luke’s,
during the fall of 2008 and the spring of 2009. The proof shows that it was the
father’s idea to send the child to Grace St. Luke’s. This [] decision is provided
for in the CONSENT ORDER. The CONSENT ORDER requires the parties
to agree on an all-girl[]s school.
The proof shows that the Father and his girlfriend visited Saint Mary’s without
informing the Mother of his intent. He then unilaterally enrolled E.T. at St.
Mary’s without telling the Mother[,] who had paid a non-refundable deposit
to Grace St. Luke’s for the next year. There was no agreement for St. Mary’s.
-14-
The Mother capitulated.
The Father goes further in his allegations stating that the Mother has neglected
the child’s education. He specifically avers that the child missed 38 days of
pre-kindergarten at Grace St. Luke’s from the fall of 2008 to the spring of
2009. He avers that the child has been tardy 5 times in the fall of 2009 and has
amassed 10 days unexcused absences in [the] 2009/2010 school year. He
alleges the child had to repeat the pre-kindergarten because of the Mother’s
neglect.
The Mother contends the child successfully completed Grace St. Luke’s and
proof of E.T.’s successful completion of the Pre-Kindergarten course of study
at Grace St. Luke’s[] is in the record. E.T.’s teacher from Grace Saint Luke’s
testified credibly and supported the Mother[’]s position that E.T. succeeded at
Grace Saint Luke’s. She also testified that it was not unusual to hold back
children E.T.’s age because they are so young when they matriculate. The
proof in fact shows E.T. attended pre-kindergarten at Saint Mary’s primarily
because of her age and not because she was unprepared according to Father.
. . . . The Mother took complete responsibility for E.T. missing 38 days of pre-
kindergarten. . . . She testified that the Father actually caused the child to miss
several days due to his taking her on trips. . . . But she claimed a majority of
the missed days. . . . The majority included trips to the Mother’s family when
her step-father died and then again when her mother died. . . .
. . . . The proof clearly shows [Father] was mailed a narrative from the school
that showed the days missed and the days tardy. No proof exists that he did
anything about the report at that time. In fact the proof shows he failed to
communicate with the school at all and obviously had no interest in being
involved in E.T.’s first educational experience. The proof is clear that Mother
was intimately involved with E.T. at Grace Saint Luke’s. E.T. successfully
completed her program and was successful as a student according to her
teacher, despite the Father’s negligence in being part of her experience.
Father goes on to testify that E.T. has been tardy 5 times at Saint Mary’s and
amassed 10 unexcused absences. . . . Father did not know the reasons why his
daughter missed school and it was obvious from his testimony he did not care.
It was the Mother’s fault as far as he was concerned and any reason given was
contrived.
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The Father testified that he had to hire a tutor over the summer to bring E.T.
up to speed for her entrance into St. Mary’s. . . . He hired Sallie Streeter, a
retired school teacher . . . . She spent approximately three hours total tutoring
E.T. over a three week period. Father stated he never spoke to the tutor, he
stated he went through a[n] intermediary. Father did not tell Mother about the
tutor. Father also claims he provided E.T. with a Spanish tutor but [he] could
not remember her name. He did not tell Mother about this tutor either.
....
[Ms. Streeter] testified that E.T. was behind on learning her colors, color
words, forming letters correctly and that she was writing her name
inappropriately; “I thought for her age.” . . .
....
Ms. Streeter then insisted that E.T. was five years old when she came for
tutoring. She said “I thought she was five.” . . .
....
Ms. Streeter tutored E.T. at the level of a five year old child. E.T. was just
four. Her testimony on the record was that she thought E.T. was five. She
went on to erroneously state that E.T. was four when she entered Grace St.
Luke’s when she was in fact just three. . . .
The Court having considered the demeanor and credibility of Ms. Streeter,
finds her testimony credible. This Court finds that Ms. Streeter was telling the
truth when she stated that she was teaching E.T. at the level of a five year old.
. . . The Court also finds that Ms. Streeter was expecting more of E.T. than she
could give, not because of her absences but because of her age. She was
tutoring to a five year old who was only just four.7
There is no proof in the record that the Father objected to the child missing the
days at the time they were missed, one and one half years ago. He claimed that
he talked to the Mother about E.T.’s absences. She testified he never raised
the issue. The Court believes the Mother. The Father’s testimony on this issue
7
Father correctly points out that at another point in her testimony, Ms. Streeter correctly recited
E.T.’s age.
-16-
is highly suspect given his tendency to hyperbole and frivolous allegations. It
is the humble opinion of this Court that the Father saw this as a problem only
after the Mother advised him of her plans to marry and move. He certainly
failed to bring the issue up until now. Father argues that he has been the
primary caregiver for the minor child, providing a stable home and continuity
of care. Perhaps his responsibilities did not extend to the child’s education.
The Mother’s testimony on E.T.’s tard[ies] and absences was credible. She
accepted full responsibility and blamed no one else. She provided proof when
E.T. was sick and credible reasons for her tard[ies]. Overall the Mother’s
explanations were reasonable and credible. . . .
Next Father argues that “Over the last twelve (12) months, contrary to the
terms set forth in the Consent Parenting Order, Father has been exercising
substantially equal parenting time with the minor child, with the consent of
Mother, and the minor child has benefitted from Father’s additional
involvement in her life.” . . .
....
Father constantly complains that the Mother was easy to get along with until
he denied her extra money or some other request. He testified that she would
only accommodate changes in his parenting time if he honored her requests.
The proof fails to support his complaints. In an email dated December 22 nd
2008, Father responds to Mother’s request to work out a parenting schedule for
2009 and tells her “we had a good year, and I hope we can continue this
tradition.”
Father’s testimony on cross about the discrepancies in his calendar goes
directly to his credibility. On direct he spewed off the number of days he spent
with E.T. without any supporting detail or original proof. His calendar was a
compilation of various other calendars and his memory. Having considered
his testimony on direct and cross, the evidence presented and the witnesses,
this Court finds his testimony as to the number of days he spent with E.T. and
his claim that he had shared substantially equal time with the Mother to be
incredible.
The Father testified that during the period of this litigation he has told E.T. on
more than one occasion that she was not leaving Memphis and that she was
staying at Saint Mary’s. His testimony was bolstered by statements E.T. made
-17-
to her Mother that she was not going to live with her Mother in Rockvale. He
testified that he told his daughter this because she needed stability. The
Mother testified that she does not talk about these things with E.T. The Court
believes her.
Mother’s first witness was Dawn Inman. She testified as to her experience at
Saint Mary’s and her knowledge of E.T. and her Mother. Her testimony was
supportive of the Mother. Considering her demeanor and credulity at trial[,]
the Court found her testimony credible.
Next, Mother presented Melinda Williams, a friend. The Mother and E.T.
lived with Ms. Williams briefly after the Mother lost her condominium. The
court found her testimony credible after considering her demeanor and
statements at trial. She bolstered the Mother’s case by clearly showing the
Court that the Mother is not neglectful or unable to parent E.T. without the
Father’s “support systems.” She testified that E.T. told her that “Daddy won’t
be there; I’ll end up being with Terri [the nanny]; I won’t be with my daddy.”
The Mother’s next witness was Margaret Comes. She was E.T.’s teacher at
Grace Saint Luke’s. Having considered her demeanor and statement at trial
the Court finds her testimony credible. . . . She testified that the “main basis
for the pre-kindergarten children is social emotional skill and we don’t, per
se, fail them, you know, because they don’t know their letters and numbers.
For me I based it upon whether I feel like they’re ready socially and
emotionally.” When asked how E.T. did as far as developing those skills[,]
Ms. Comes said she did fine.
She clearly proved that the Father had little or no meaningful contact with
E.T.’s schooling during her stint in pre-kindergarten. She also proved that
E.T. succeeded in the program despite her absences and tard[ies]. . . . She went
on to confirm that E.T.’s Mother was intimately involved in her education . .
..
When asked why she would recommend if E.T. move ahead or stay in pre-
kindergarten she testified that, “we just felt like she was not ready to move on
to junior kindergarten socially, emotionally, cognitively being with that late,
late birthday; that it would behoove her to have another year of pre-
kindergarten.” . . .
....
-18-
The Mother’s next witness was Jennifer Coffey, a licensed clinical social
worker and therapist at the Memphis Child Advocacy Center. Ms. Coffey’s
testimony was credible and the Court recognized her as an expert in her field.
Ms. Coffey treated E.T. after she disclosed the inappropriate touching by “Z.”
She testified that E.T. was forthcoming and not lying. She also testified that
“the child gave no indication that she had been coerced.” . . .
....
It is certainly unfortunate that this young child was subjected to the events that
resulted in a forensic interview and counseling. In addition[,] she suffered at
the hands of the Father’s girlfriend telling this four year old child it never
happened and that people that tell lies go to jail. The Court understands the
nanny’s reaction and Z’s mother’s reaction, but for the Father to take the
position that this was all a ruse perpetrated by Mother to get at him is
disturbing.
It happened. It was not as serious as many of the things that occur to children
every day and E.T. was not traumatized by the event, but it happened. E.T.
told the truth, and to her credit she stuck with it despite her Father, his
girlfriend and others.
E.T.’s Father used this simple truth in an attempt to destroy Mother.
The Mother’s next witness was her friend Sarah Beth Cohen. Considering Ms.
Cohen’s demeanor and testimony the Court found her to be credible. Her
testimony was that of a friend. She testified that the Mother’s doesn’t talk bad
about the Father, in fact she doesn’t talk about him much at all. She testified
that E.T. is sometimes fussy when she has to go to her Father’s for a visit but
that mother always encourages E.T. to go by telling her she will have fun. Her
testimony credibly negates all of Father’s accusations that this Mother is
neglectful.
Cherlander Hunt, from the Tennessee Department of Children[’s] Services
testified next. Her demeanor and testimony at trial was credible. Ms. Hunt
personally watched the forensic interview with E.T. at the Memphis Child
Advocacy Center. She confirmed E.T.’s statement that “Z” touched her
inappropriately.
Kenny Dudley testified next. He is the Mother’s husband, E.T.’s stepfather
-19-
and the father of . . . E.T.’s half brother. Having considered his testimony and
demeanor at trial the Court finds his testimony credible. . . . From the
testimony he gave on both direct and cross he is clearly an appropriate adult
to be a part of E.T.’s extended family.
When asked what he would do if the Court did not allow the move, he stated
that “I’ll do whatever the Court orders, but I’ll also do what’s necessary to
keep the family together, if that’s move, whatever.” He went on to testify that
he had searched for jobs in the Memphis area. . . .
. . . . He did not have any job offers in Memphis at the time of his testimony.
He does not have the ability to pay off his home and start over in Memphis
without a job.
....
. . . . He went on to say that the Mother portrays the Father as a “very caring
father.”
It is clear from Mr. Dudley’s testimony that he has done everything he can do
to try to find a job in his field of work here in Memphis. It is also clear from
his testimony that he is concerned over the prospects of selling his home. . . .
It is also clear to the Court that there is no animosity o[r] anger directed at the
Father for his position in this matter from Mr. Dudley. The Court believes him
to be credible and honest.
Next, Mother testified. Her demeanor and testimony at trial clearly shows her
to be credible and honest. Her testimony was not tinged with the anger that
arose from the Father, his girlfriend, the nanny and his employee. She
expressed being hurt by the allegations leveled at her by the Father and
proceeded to refute them all.
Father insisted that she could not keep a job. She was only fired from one job
and that, by the Father.8 All of her other jobs were by choice. She testified
about the Father’s parenting time and disputed that he spent substantially equal
time with E.T. She testified to switching days with the Father when his work
got in the way. It is clear from her testimony that she worked with the Father
8
Mother testified that Father terminated her employment with his clinic the day after she told him
of her pregnancy.
-20-
for him to make up [time] he lost to work.
....
[Mother’s] testimony made it clear to this Court that the Father does not follow
the CONSENT ORDER when it comes to joint decision making. The
evidence at trial is that he makes important decisions concerning his child
without any input f[ro]m the Mother. He sent her to a dentist with his
girlfriend, he sent her to a therapist with his girlfriend, he and his girlfriend
toured Saint Mary’s. He hired tutors, he enrolled her in extra curricular
activities, all without notice to the Mother.
[Mother’s] testimony clearly shows that the Father was not involved at all in
E.T.’s time at Grace St. Luke’s and [he] is only marginally involved at Saint
Mary’s. . . .
[Mother] also described the anger that is displayed by the nanny since E.T.
made the allegation against the nanny’s grandson. The nanny does not talk to
the Mother now, this even though she is responsible for the child when the
parents swap parenting time. Mother testified that the nanny can’t interact
with her. If the Mother tells her something she simply doesn’t respond. When
the Mother saw her at a school function and said hello, the nanny ignored her.
E.T. is now 5. She surely knows there is something wrong.
It is clear that the Father does not participate in his daughter’s medical care.
...
Mother testified that “regardless of our personal history, he’s E.T.’s daddy.
That’s her DNA. My daddy was my world and for her to know her father is the
most important thing in having a relationship with him.” She went on to say
that she would continue to work with the Father to make sure that relationship
was protected. Her testimony was very credible.
The Mother also testified as to her and her husband’s attempts to figure out
what to do in the face of an adverse decision by this Court. She stated directly
that they would try to sell his home in Rockvale and make a home here. She
supported her husband’s testimony that he was unable to find work here at the
same level of his present job. It is clear from her testimony that she has
considered the alternatives.
-21-
On cross, the Father failed to disavow this Court of its opinion as to the
Mother’s honesty and credibility.
In the next section entitled “The Facts and the Law[,]” the trial court further stated, in
relevant part, as follows:
. . . . It is clear to this Court the Father is not credible. It is also clear that he
has surrounded himself with employees and a girlfriend that join in his outrage
at the Mother. The anger in their testimony was palpable. That anger clouded
their judgment and may continue to do so until today.
His one expert was poisoned by that anger, destroying her credibility with the
Court. Many of the things he accused the Mother of doing he was actually
guilty of perpetrating[,] not her. Father pleads that Mother does not parent the
child, when he does so by proxy. He claims she impedes the child’s education
but he is the one who actually ignores it, only paying lip service and the bill.
He insists she [is] vindictive but it is he who refuses to communicate. Father
pleas they share joint decision making b[ut] he makes decisions unilaterally.
The court then found the following material changes of circumstance: 1) Father’s
“anger at the Mother and the effect he has had on the members of his support system[;]” 2)
Mother’s remarriage, having given birth to a child and her desire to move more than 100
miles from Memphis to join her new husband in his home; and 3) Father’s lack of
educational involvement, his parenting by proxy, and his ignoring the Consent Order by
making unilateral decisions regarding E.T.
The court then employed a best interest analysis, discussing the relevant factors set
forth in Tennessee Code Annotated section 36-6-106. The court determined that it was in
the child’s best interest for Mother to remain the primary residential parent.
Having resolved the custody issue, the court then considered Mother’s request to
relocate. The court noted
Father argues that the Court did not allow the issue of the Mother’s move to
be addressed at trial. He is right that the Court did not hold a separate hearing
on the move but the facts presented at trial made such a hearing redundant.
First, the Father’s credibility is seriously in question. Any testimony he offers
against the Mother’s move is highly suspect. The Court in fact prevented the
Mother from moving at his request until the trial ended because his unfounded
allegations raised such serious concerns for the Court.
-22-
The court determined that Father did not spend substantially equal time with the child, stating
that “Saying it, does not make it so and it is clear that the Father will fabricate the truth.” It
further determined that Father had failed to offer any evidence that Mother’s move lacked
a reasonable purpose, or that the move would “pose a threat of specific and serous harm to
the child that outweighs the threat of harm to the child of a change of custody[.]”
Furthermore, it found that the evidence clearly demonstrated that Mother’s relocation was
not vindictive or intended to interfere with Father’s visitation rights. Thus, the court
concluded that it was in the child’s best interest to allow Mother’s relocation.
Finally, the court stated that the material changes in circumstance necessitated
modifications to the Consent Order. The court then “str[uck] in total the language of the
CONSENT ORDER” and substituted its own “Findings and Recommendations,” some of
which mirrored the Consent Order, some of which did not. The order stated that “Father
shall pay reasonable attorney fees to the Mother to be determined at a separate hearing.”
The “Findings and Recommendations of the Magistrate” were confirmed as the decree of
juvenile court by Juvenile Court Judge Person on July 12, 2011.
A hearing on attorney fees was scheduled for July 21, 2011, but Father objected to the
hearing, claiming that Mother’s counsel had not “provided to counsel for Father an affidavit
of attorney fees, an itemized billing statement, or information regarding an expert witness
whom Wife intended to testify.” The trial court continued the hearing to August 4, 2011,
granting Father “reasonable time to review the documentation underlying Mother’s assertion
of her reasonable attorney fees and suit expenses.” In an attempt to finalize the judgment,
the court certified the judgment pursuant to Tennessee Rule of Civil Procedure 54.02,
although the attorney fee issue had not been resolved. Father filed his Notice of Appeal on
July 26, 2011.
On August 29, 2011, this Court entered a per curiam opinion finding that we lacked
jurisdiction in the matter because the trial court’s order failed to adjudicate Mother’s request
for attorney fees and because the Consent Order, which was not stamped “filed” by the trial
court clerk, did not comply with Tennessee Rule of Civil Procedure 58. The clerical error
to the Consent Order was subsequently corrected and the record to this Court supplemented.
According to Magistrate Michael’s September 7, 2011 “Findings and
Recommendations,” on August 4, 2011, the attorneys appeared for the scheduled fee hearing,
but the hearing was continued “due to a scheduling conflict with the Court, and both
attorneys appearing that day to advise a hearing was not necessary at that time due to
settlement negotiations by the parties . . . [such that] the attorneys desired to continue such
negotiations until such time that a hearing was needed.” Apparently, on September 1, 2011,
Mother’s attorney was notified via letter that the fee issue had been set for a hearing on
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September 2, 2011. Not until the beginning of the September 2 hearing did Mother’s counsel
provide her billing statements and affidavit. Thus, on September 7, 2011, Magistrate
Michael found it appropriate to grant Father’s “Motion Ore Tenus to Deny Mother’s Award
of Attorney Fees” due to her late-submitted information. That same day, Magistrate
Michael’s “Findings and Recommendations” were confirmed as a decree of the juvenile
court by Juvenile Court Judge Person.
Also on September 7, 2011, Mother’s counsel filed a request for a hearing before
Juvenile Court Judge Person. Father, however, filed a “Motion to Strike Mother’s Request
for Hearing Before the Judge” arguing that once the findings were confirmed by the juvenile
court judge, Mother could no longer seek a hearing. Alternatively, Father argued that
because no initial hearing took place, Mother could not seek a “rehearing.” Juvenile Court
Special Judge Herbert J. Lane9 denied Father’s “Motion to Strike,” and on November 17,
2011, he entered an order granting Mother $40,000.00 of her requested $69,336.75 in
attorney fees, as well as her full request of $13,683.17 in expenses, finding:
Mother’s attorney’s fees and expenses were reasonable and necessary in
defending the Father’s Petition to Modify Custody and to Oppose Mother’s
Relocation, and in representing Mother in her Petition to Modify the Consent
Order dated December 11, 2007. The Court also finds that the Mother’s
attorney’s fees and expenses were customary and within [the] range of rates
charged by local attorneys in similar actions.
The court required Father to post a $53,683.17 bond to secure Mother’s judgment.10
Following requests from both parties for additional time in which to file briefs, as well as
various post-trial motions, oral argument was heard before this Court on October 25, 2012.
II. I SSUES P RESENTED
Father presents the following issues for review, as summarized:
1. Whether the trial court erred in finding that Mother should remain the primary
residential parent;
9
The record states that “The Judge finds it necessary to be absent from holding Court, and . . .
appoints as substitute judge, Herbert J. Lane . . . .”
10
Father subsequently filed a motion to waive the bond requirement, which Judge Lane denied.
-24-
2. Whether the trial court erred in ruling on the relocation issue;
3. Whether the trial court erred in striking the Consent Order and then in reinstating,
sometimes altered, portions thereof;
4. Whether the trial court erred in allowing a hearing on Mother’s attorney fees; and
5. Whether the trial court erred in its award of attorney fees and expenses to Mother.
For the following reasons, we affirm in part and we reverse in part and we remand for further
proceedings.
III. S TANDARD OF R EVIEW
On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d) (2011); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). 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) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999)). When the resolution of the issues in a case depends upon the truthfulness of
witnesses, the fact-finder, who has the opportunity to observe the witnesses in their manner
and demeanor while testifying, is in a far better position than this Court to decide those
issues. Mach. Sales Co., Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643
(Tenn. Ct. App. 2002). “The weight, faith, and credit to be given to any witness’s testimony
lies in the first instance with the trier of fact, and the credibility accorded will be given great
weight by the appellate court.” Id. “Trial courts are vested with wide discretion in matters
of child custody and the appellate courts will not interfere except upon a showing of
erroneous exercise of that discretion.” Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App.
1993). We review a trial court’s conclusions of law under a de novo standard upon the
record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788
S.W.2d 815, 817 (Tenn. Ct. App. 1989)).
IV. D ISCUSSION
-25-
A. Primary Residential Parent11
Because Father argues that the trial court erred in declining to name him primary
residential parent, and therefore, that resolution of the relocation issue should have been
rendered moot, we first address custody. Again, the trial court found that material changes
in circumstance had occurred since entry of the Consent Order: 1) Father’s “anger at the
Mother and the effect he has had on the members of his support system[;]” 2) Mother’s
remarriage, having given birth to a child and her desire to move more than 100 miles from
Memphis to join her new husband in his home; and 3) Father’s lack of educational
involvement, his parenting by proxy, and his ignoring the Consent Order by making
unilateral decisions regarding E.T. However, it determined that it was in the child’s best
interest for Mother to remain the primary residential parent.
“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, 193 Tenn. 480, 246 S.W.2d 93, 95 (Tenn. 1952); Steen v. Steen, 61 S.W.3d 324,
327 (Tenn. Ct. App. 2001); Solima v. Solima, 7 S.W.3d 30, 32 (Tenn. Ct. App. 1998); Long
v. Long, 488 S.W.2d 729, 731-32 (Tenn. Ct. App. 1972)). However, because children’s and
parents’ circumstances change, our courts are “empowered to alter custody arrangements
when intervening circumstances require modifications.” Id. (citing Tenn. Code Ann. § 36-6-
101(a)(1); Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995)).
Modification of an existing custody or visitation arrangement involves a two-step
analysis. See Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007). First, the
parent attempting to modify the existing custody or visitation arrangement must prove that
a material change in circumstances has occurred. See Taylor v. McKinnie, No. W2007-
01468-COA-R3-JV, 2008 WL 2971767, at *3 (Tenn. Ct. App. Aug. 5, 2008) (citing
Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002)). “[N]ot all changes in the
circumstances of the parties and the child warrant a change in custody.” Cosner v. Cosner,
No. E2007-02031-COA-R3-CV, 2008 WL 3892024, at *4 (Tenn. Ct. App. Aug.22, 2008).
“There are no hard and fast rules for when there has been a change of circumstances
sufficient to justify a change in custody.” Id. (citing Cranston v. Combs, 106 S.W.3d 641,
11
We note that our resolution of the disputes concerning the testimony offered at trial has been
significantly made more difficult due to the lack of citations to the record in Mother’s brief. Mother has
often cited to the trial court’s Findings and Recommendations rather than to witness testimony ostensibly
supporting such findings. Given the size of the record on appeal, Mother’s failure to provide sufficient
citations is particularly troubling. Moreover, Mother’s brief contains no table of authorities as required by
Tennessee Rule of Appellate Procedure 27(2).
-26-
644 (Tenn. 2003)). The decision turns on the facts of each case. Scofield, 2007 WL 624351,
at *4. However, to determine whether a material change in circumstance has occurred, the
court should consider whether: “(1) the change occurred after the entry of the order sought
to be modified; (2) the changed circumstances were not reasonably anticipated when the
underlying decree was entered, and (3) the change is one that affects the child's well-being
in a meaningful way.” Cosner, 2008 WL 3892024, at *4 (citing Cranston, 106 S.W.3d at
644; Kendrick, 90 S.W.3d at 570; Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002)). “The
presence of the word ‘material’ indicates that the change must be significant.” Patterson v.
Patterson, No. W1999-01544-COA-R3-CV, 2000 WL 33774558, at *3 (citing Black's Law
Dictionary 991 (7th ed.1999)). “If the person seeking the change of custody cannot
demonstrate that the child's circumstances have changed in some material way, the trial court
should not re-examine the comparative fitness of the parents, Caudill v. Foley, 21 S.W.3d
203, 213 (Tenn. Ct. App. 1999), or engage in a ‘best interests of the child’ analysis. Rather,
in the absence of proof of a material change in the child's circumstances, the trial court
should simply decline to change custody.” Oliver v. Oliver, No. M2002-02880-COA-R3-
CV, 2004 WL 892536, at *3 (Tenn. Ct. App. Apr.26, 2004) (citing Hoalcraft v. Smithson,
19 S.W.3d 822, 828 (Tenn. Ct. App. 1999)). However, if a material change in circumstances
is demonstrated, the court must then consider whether a modification in custody is in the
child’s best interest. See Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003).
On appeal, Father concedes that Mother’s remarriage, having given birth to a child
and her desire to move more than 100 miles constitutes a material change in circumstances.
However, he disputes that the other material changes in circumstance found by the trial court
are supported by the record and that such changes constitute material changes. Additionally,
he contends that the trial court erred in not finding that E.T.’s poor school attendance while
in Mother’s care constituted a material change in circumstances.
Regarding his involvement in the child’s life, Father states that “the proof was
uncontroverted that Father encourages education, travel, and new experiences for [E.T.]”
He concedes that he is unable to attend “all events and conferences at [E.T.’s] schools due
to his work schedule and obligations” as an opthalmologist, but he contends that it was
foreseeable when the Consent Order was entered that he would be required to work long
hours and that he “would not be able to be personally present for all of [E.T.’s] events and
would have to rely on a support system at times to assist him in caring for his daughter.”
Concerning the trial court’s finding that he ignored the Consent Order–which required
joint decision making–by unilaterally making decisions regarding the child, he claims that
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the trial court “ignored testimony by Mother regarding how Father had consulted her
regarding [E.T.’s] school choices . . . as well as regarding medical appointments.” Moreover,
he claims that the trial court “ignored uncontroverted proof that Mother had made decisions
relative to [E.T.’s] welfare without consulting Father.”
Father further claims that “there is no evidence that any anger the Trial Court
perceived Father felt toward Mother and the effect he has had on the members of his support
system had resulted in any negative effect on [E.T.].”
In her brief to this Court, Mother argues, without much elaboration, that Father has
failed to demonstrate that the material changes in circumstance alleged are changes which
would affect the child's well-being in a meaningful way. See Cosner, 2008 WL 3892024,
at *4 (citations omitted). She states, without citation to the record, that the child “has been
doing well and thriving and the Mother has been the primary residential parent with the
Father primarily having weekend visitation and one overnight visitation during the week.”
Mother states, without citation to authority, that “while a move in and of itself is not a basis
for a modification of custody, it can be a basis for a modification of a previous order
regarding parenting time.”
Although Mother did not specifically use the phrase “material change in
circumstances,” in her response to Father’s petition she alleged various ways that Father had
failed to comply with the Consent Order and she requested that certain modifications be
made to it, including its visitation provisions. See Connors v. Lawson, No. E2011-00757-
COA-R3-CV, 2012 WL 1744400, at *9 (Tenn. Ct. App. May 16, 2012) (citing Tenn. Code
Ann. § 36-6-101(a)(2)(B)-(C)) (“[T]he parent attempting to modify the existing custody or
visitation arrangement must prove that a material change in circumstances has occurred.”)
(emphasis added). In Krupp v. Cunningham-Grogan, No. M2005-01098-COA-R3-CV, 2006
WL 2505037, at *7 (Tenn. Ct. App. Aug. 29, 2006), a parent similarly argued to the trial
court that a custody order should be modified, then on appeal, claimed that there was no basis
for modifying the original order. The Court explained:
Parties cannot make arguments on appeal that are inconsistent with the
arguments they made in the trial court. Thus, having contended in the trial
court that there has been a material change in circumstance sufficient to trigger
a judicial reevaluation of the [original] child custody and visitation order, Mr.
Krupp is judicially estopped from denying the existence of a material change
in circumstance on appeal. In re Austin S., No. M2005-01839-COA-R3-JV,
2006 WL 770455, at *2 (Tenn. Ct. App. Mar. 24, 2006) (No Tenn. R. App. P.
11 application filed); see also Marcus v. Marcus, 993 S.W.2d 596, 602
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(Tenn. 1999); Webber v. Webber, 109 S.W.3d 357, 359 (Tenn. Ct. App. 2003)
Id. In another case, we refused to consider a parent’s argument on appeal that no material
change in circumstance had occurred, when he admitted in his answer that circumstances had
changed since the entry of the original decree. Rose v. Lashlee, No. M2005-00361-COA-R3-
CV, 2006 WL 2390980, at *2 (Tenn. Ct. App. Aug. 18, 2006). In any event, we find
sufficient evidence in the record to support the trial court’s determination that a material
change in circumstance had occurred since the entry of the Consent Order.
When the Consent Order was entered in 2007, both parties apparently were single and
living in Memphis. Pursuant to the Consent Order, Mother was named the child’s primary
residential parent and she was awarded 275 days per year with the child, while Father was
awarded 90 days per year with the child. Father was allowed to exercise his visitation on the
first, third and fifth weekends of each month, every Wednesday night, two weeks during both
June and July, and specific holidays.
Since entry of the Consent Order, Mother has remarried, given birth to a child, and
sought to relocate a significant distance from Memphis. Additionally, despite Father’s
arguments otherwise, the evidence demonstrates that numerous unilateral decisions were
made by Father contrary to the Consent Order which required joint decision making. Father
admitted that he hired a tutor for E.T. without informing Mother, and that he had checked
E.T. out of school, lied to Mother about the reason for doing so, and had her seen by a
therapist without Mother’s knowledge. He testified that his “thinking on that was I wanted
[E.T.] to see a specialist without any preliminary brainwashing by her mother.” Mother
testified that Father and his girlfriend toured St. Mary’s and began the application process
without informing Mother. Mother was initially upset by his actions, but she took E.T. for
her evaluation and, after touring the school, was “very happy” with it. However, as pointed
out in Father’s brief, the previous year, Mother and Father did jointly enroll E.T. in Grace
St. Luke’s. Additionally, Mother testified that Father did not consult her before he enrolled
E.T. in extracurricular activities such as piano and tennis lessons, and he had his girlfriend
take E.T. to the dentist without Mother’s prior knowledge.12
12
In his brief to this Court, Father states that “the Trial Court further ignored uncontroverted proof
that Mother had made decisions relative to [E.T.’s] welfare without consulting Father.” As a purported
authority for this statement, Father cites an e-mail sent from Mother to Father which notified Father of E.T.’s
allegation against “Z” and in which Mother asked Father if E.T. had made similar allegations to him, his
girlfriends, or his employees. Mother did state that E.T.’s statements had been reported to DCS, and that an
interview had been scheduled, but Mother assured Father that she would “keep [him] informed of
(continued...)
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Father correctly points out that the trial court found that he “encourages travel and
new experiences for his child[.]” Thus, he contends that the trial court erred in determining
that he parents primarily by proxy. Moreover, he contends that his inability to be present for
all of E.T.’s events was reasonably foreseeable when the Consent Order was entered.
The evidence presented at trial indicates that Father’s nanny, Terri Colon, retrieved
E.T. from school on Father’s visitation days. Dawn Inman, a mother of E.T.’s classmate at
St. Mary’s, testified that Mother attended all school parties with the exception of one, while
Father only attended a single function. Father did, however, send Ms. Colon to three to four
school events and to two birthday parties. Similarly, E.T.’s 2008-2009 Pre-Kindergarten
teacher at Grace St. Luke’s, Margaret Comes, testified that Mother attended E.T.’s school
functions and she came to school “just about every day.” However, Ms. Comes stated that
she does not even know Father who only came to school “once or twice.” She stated that
Father had either a babysitter or a girlfriend bring E.T. to school once a week. Mother
testified that Father failed to attend a scheduled parent/teacher conference; however, Father
claimed that he missed a conference due to his performing an emergency eye surgery.
Mother also claimed that Father traveled extensively, that he did not always reschedule his
parenting time, and that E.T. would “c[o]me back and sa[y] she stayed with Terri or Paige
or something; that she didn’t see him[.]” Moreover, Father was unable to name E.T.’s
pediatrician, and Mother was not aware of Father ever accompanying his daughter there.
Mother’s former co-worker, Melinda Williams, testified that E.T. complains about leaving
Mother’s home to visit with Father. According to Ms. Williams, “[E.T.] always says, but
Daddy won’t be there; I’ll end up being with Terri; I won’t be with Daddy.”
Father however testified that during the 2009-2010 school year, when E.T. was
enrolled in Pre-Kindergarten at St. Mary’s, he participated in more than ten school activities
including “the potting of plants, the Easter egg hunt, [and] going to lunches.” He testified
that he controls his schedule and that as E.T. has gotten older he has reduced the number of
clinics he owns “so [he] has more free time and more control.” He stated that he has his
clinic employee Durenda Camp block off his schedule to accommodate E.T.’s activities and
that he “clear[ed his] schedule” when E.T. visited. Similarly, his nanny, Ms. Camp, testified
that Father helps E.T. with her schoolwork, the two exercise together, and he takes E.T. to
the ballet and to the opera, and Ms. Camp testified that if Father has E.T. on his “clinic day”
that he will have her brought to the eye clinic so that “he can see her and spend sometime
[sic] with her.”
12
(...continued)
everything.” We conclude that Mother’s conduct in contacting DCS and then notifying Father prior to the
DCS interview does not constitute unilateral action in violation of the Consent Order.
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Again, the trial court found that Father’s “anger at the Mother and the effect he has
had on the members of his support system” constituted a material change in circumstances,
while Father contends that there is no evidence that this perceived anger negatively affected
E.T. While no direct proof of the effects upon E.T. may have been offered, evidence of
anger towards Mother certainly was. Ms. Colon testified that she no longer considers Mother
her friend. Email communications between Mother and Ms. Colon were introduced at trial.
In response to Mother’s email to Father, Father’s girlfriend, and Ms. Colon stating that
peanut products are not allowed on campus, Ms. Colon responded as follows:
please take me off ur list. everything I need to know will come from
[E.T.’s] dad! you have gone beyond repair with your hatefulness in trying to
ruin lives. I know that everything [E.T.] is doing has come from you and your
lifestyle. how could u twoface people like you are doing and hurting your
daughter in return? [sic] I never thought u would turn on the people u say u
love so much! this is what everyone warned me about. I hope you can live
with yourself. Poor [E.T.]!! I love her so much!!
Mother testified to negativity which could have been perceived by E.T. Mother stated, “[Ms.
Colon] can’t interact - - she can’t put aside her emotional feelings what she feels I accused
her grandson of doing with [E.T.] or she can’t even speak to me, like if I said, [E.T.]’s had
her dose this morning, she doesn’t even say, okay.” Additionally, Mother stated that Ms.
Colon refused to speak to her at E.T.’s 2010 school birthday party. Similarly, Father’s
girlfriend, Paige Patrick, testified that she and Mother were nice to one another “up until
January of [2010 when she] turned into a monster in [Mother’s] eyes[,]” and she testified that
she came to court to “clear her name” of Mother’s accusations. Like Father, she stated that
everything is fine until Mother does not get her way and “then just crazy things happen.”
Finally, Father contends that the trial court erred in not finding that E.T.’s poor school
attendance while in Mother’s care constituted a material change in circumstances. The trial
court found that E.T. was successful in school and that she had repeated Pre-Kindergarten
primarily because of her age. It further found that Mother accepted responsibility for E.T.’s
attendance, but it noted that a majority of the absences were incurred due to the deaths of
Mother’s step-father and Mother. It found that Father had been aware of, but had not timely
objected to, E.T.’s absences.
The school records of E.T., who turned three in May 2008, were introduced at trial.
E.T.’s Preschool Narrative dated November 7, 2008, reported eight absences in fall 2008.
However, the report stated that E.T. speaks in complete sentences and that her “speech is
developing.” It indicated that E.T. is able to recognize certain letters, shapes and numbers,
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as well as her name in print. She can count and repeat certain Spanish words.
During “Spring 2008-2009,”13 Grace St. Luke’s reported eight absences during the
fall; 18 absences during the winter; and 12 absences during the spring. E.T’s Preschool
Narrative stated:
“A regular routine of attending school would help [E.T.] progress in all areas
of her development especially in her relationships with her classmates.
Frequently, she arrives late which causes her to enter a group of children
already playing and disagreements begin as opposed to the days in which she
arrives early. During early arrival, [E.T.] is given the opportunity to create her
own play area, which allows others to enter her established setting more
pleasantly, her days run much more smoothly when she has arrived at school
in a timely manner.”
The narrative described problems such as forgetting the discussion topic, speaking with a
lisp, confusing pronouns, and needing to be reminded to clean up her area after eating, to use
the restroom, or to wash her hands. However, it described E.T.’s ability to recognize certain
numbers, shapes, and letters; to duplicate a pattern; and to count. It further stated that E.T.
is expressive in her play and she interacts well socially. E.T.’s “Pre-Kindergarten
Certificate,” indicating completion, appears in the record. Mother testified that Father
received E.T.’s progress reports from Grace St. Luke’s which stated the number of absences,
but that he did not complain about her attendance until May 2009.
E.T.’s teacher at Grace St. Luke’s testified that “the main basis for the pre-
kindergarten children is social emotional skill and we don’t, per se, fail them, you know,
because they don’t know their letters and numbers. For me I base it upon whether I feel like
they’re ready socially and emotionally.” She stated that in 2008-2009 E.T. “did fine”
developing social and emotional skills, but that “[s]he was treated sometimes as . . . just the
younger one. . . . probably [due to her] being on the younger end with the May birthday[.]”
During the 2009-2010 school year at St. Mary’s, E.T.’s attendance was reported as
follows: First Quarter - 5 tardies, 3 absences; Second Quarter - 0 tardies, 2 absences; Third
Quarter - 1 tardy, 4 absences. However, the St. Mary’s Handbook was introduced into
13
The narrative is dated May 8, 2009.
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evidence and it indicated that 5 excused tardies were allowed during each marking period.
With the exception of two categories during the first quarter, E.T. earned the highest rating
of “Secure,” indicating that she “[u]sually completes the task correctly and independently[.]”
She was described as “making consistent academic progress” and as a “strong student
academically.”
Mother testified that her mother died on December 8, 2008, causing E.T. to miss “at
least twenty” days of school for the out-of-town funeral and later to accompany Mother in
attending to her mother’s affairs. She also testified that during the 2008-2009 school year
E.T. missed school due to illness, flight changes during a trip to visit Mother’s stepmother
and stepsister, Ms. Colon wanting to keep E.T. at Father’s home, and trips with Father to Los
Angeles and Miami. However, both Ms. Colon and Father’s girlfriend, Paige Patrick,
testified that on one occasion E.T., at Mother’s insistence, had feigned an illness. Ms.
Patrick testified that, on another occasion, E.T. told her she had missed school “because her
mom said it was too cold outside[;]” however, Father could not recall whether Ms. Patrick’s
testimony related to a day when E.T.’s school was closed due to inclement weather.
From the foregoing, we conclude that changes occurred after entry of the Consent
Order, which were not reasonably anticipated, and which affect E.T.’s well-being in a
meaningful way. Specifically, we find that Father’s anger and its effect on his support
system, Mother’s remarriage, having given birth to a child and her desire to move to
Rockvale, see In re Haven T., No. E2010-01902-COA-R3-JV, 2012 WL 295685, at *4
(Tenn. Ct. App. Jan. 31, 2012) (“We did not hold [in a prior case] that relocation could never
constitute a material change in circumstances.”), and his unilateral decision-making
constitute material changes in circumstance. Moreover, because the Consent Order
contemplated “Father”–as opposed to his girlfriend or nanny–having “responsibility for
car[ing] for [the] Child[,]” during his enumerated visitation days, we Father’s limited
involvement with E.T., likewise, constitutes a material change in circumstances. However,
in light of the difficulties Mother experienced during the 2008-2009 school year, E.T.’s
since-improved attendance record and her academic success, we reject Father’s argument that
E.T.’s Pre-Kindergarten attendance record constitutes a material change in circumstances.
Having found a material change in circumstances has occurred since the entry of the
Consent Order, we must now consider whether a change in the designation of the primary
residential parent from Mother to Father is in the child’s best interest, utilizing the relevant
factors set forth in Tennessee Code Annotated section 36-6-106.
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As stated above, the trial court considered the relevant best interest factors and it
determined that Mother should remain the primary residential parent. “Because ‘[a]
determination of a child’s best interests must turn on the particular facts of each case[,]’ we
must review the trial court’s findings de novo with a presumption of correctness.” Anthony
v. Rodgers, No. W2002-01240-COA-R3-CV, 2003 WL 22213208, at *4 (Tenn. Ct. App.
Sept. 23, 2003) (quoting Koch, 874 S.W.2d at 575).
In his “Findings and Recommendations,” Magistrate Michael discussed the section
36-6-106 factors as follows:
(1) The love, affection and emotional ties existing between the
parents or caregivers and the child;
It is clear from the testimony that this Mother loves her child and is closely
bo[]nded to her and the child to her Mother. It is also clear that the nanny feels
great affection for this child. But the child’s affection for the nanny is at risk
based on the nanny’s outright dislike for her Mother. The Court will take the
Mother’s word that the Father loves and cares for his child, but he failed to
assert that devotion in so many words despite having ample opportunity to do
so at trial[.]
(2) The disposition of the parents or caregivers to provide the
child with food, clothing, medical care, education and other
necessary care and the degree to which a parent or caregiver has
been the primary caregiver;
It is clear that the Mother is the primary caregiver to E.T. When she is sick she
tends to her needs, when at school she participates, when E.T. needs a doctor
[] Mother takes her. When in her Mother’s care she is . . . well fed and
clothed. Her Mother has always provided E.T. a stable home. The Father
attends to E.T. and cloth[e]s and keeps her well fed. He also pays for her
education. He has never attended a visit to her pediatrician, in fact to hear him
tell it E.T. has never been sick while in his care. He ignored her first year of
pre-kindergarten and has only marginally improved and that only since this
litigation began. He is not and never has been E.T.’s primary caregiver.
(3) The importance of continuity in the child's life and the length
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of time the child has lived in a stable, satisfactory environment;
provided, that, where there is a finding, under subdivision (a)(8),
of child abuse, as defined in § 39-15-401 or § 39-15-402, or
child sexual abuse, as defined in § 37-1-602, by one (1) parent,
and that a nonperpetrating parent or caregiver has relocated in
order to flee the perpetrating parent, that the relocation shall not
weigh against an award of custody;
Having her Mother as her primary caregiver since birth is of great importance
in considering E.T.’s future continuity and stability. Although she may not see
her Father as frequently during the school year if she moves, she will have the
opportunity to be with him on a regular basis during the summer months and
perhaps the holidays if he chooses to exercise that time. She will also see him
every month and if Father so decides he can spend regular intervals with her
in Rockvale. Her Mother will no doubt continue to provide E.T. with a stable
home and education.
(4) The stability of the family unit of the parents or caregivers;
E.T.’s Mother, Stepfather and younger brother offer a much more stable family
life than does the Father. Her stepfather has worked and lived in the area for
five years. His only living parent lives nearby. The Father has also worked
and lived in the Memphis area for many years but his mother lives on the west
coast, his father in Florida and his brother is in the military. Father can
provide a stable environment but he must do so through his employees and his
girlfriends.
(5) The mental and physical health of the parents or caregivers;
Although Father argued that the Mother was mentally unhealthy[,] his claims
were frivolous and unsupported by the facts. Both parent[s] appeared healthy
although the Father’s anger towards the Mother does concern this Court.
(6) The home, school and community record of the child;
It is obvious that E.T. will get an education. By all accounts she is a bright
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child. She will be able to enjoy many of the things she currently has at her
disposal in her new home as well as her home here.
(8)14 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 to the evidence. In addition, the
court shall, where appropriate, refer any issues of abuse to the
juvenile court for further proceedings;
The Court has serious concerns that the environment the Father has created
surrounding this litigation could cause emotional damage to E.T. It therefore
rules that the Father shall immediately enroll in a course of parent training that
will assist him in better understanding his role as a parent.
(9) The character and behavior of any other person who resides
in or frequents the home of a parent or caregiver and the
person's interactions with the child; and
The Court is also concerned with the attitudes of the Father’s girlfriend and the
child’s nanny. Their anger at trial was palpable. The nanny’s attitude towards
the Mother is disturbing. The Court finds that the Father shall not allow any
person of the opposite sex to reside in his home while E.T. is in his care. In
addition, the Father shall within 90 days of th[e] entry of this order either assist
the current nanny in obtaining professional counseling to deal with her dislike
for the Mother or find an appropriate replacement; and
(10) Each parent’s or caregiver's past and potential for future
14
The court did not discuss the factor related to an older child’s preference. See Tenn. Code Ann.
§ 36-6-106(7).
-36-
performance of parenting responsibilities, including the
willingness and ability of each of the parents and caregivers to
facilitate and encourage a close and continuing parent-child
relationship between the child and both of the child's parents,
consistent with the best interest of the child. In determining the
willingness of each of the parents and caregivers to facilitate and
encourage a close and continuing parent-child relationship
between the child and both of the child's parents, the court shall
consider the likelihood of each parent and caregiver to honor
and facilitate court ordered parenting arrangements and rights,
and the court shall further consider any history of either parent
or any caregiver denying parenting time to either parent in
violation of a court order.
The evidence is clear that the Mother has actively fostered a close relationship
between E.T. and her Father. It is also clear she will continue to do so. The
proof is clear that the Father fails in this regard. He was secretive and
unilateral in his decision-making and at one point in his testimony called for
the Mother’s time to be supervised. It is the opinion of this Court based on the
evidence at trial that the Father has not actively encouraged E.T.’s relationship
with her Mother and that he would seek to undermine the same in future.
On appeal, Father argues that “the Trial Court blatantly conflates a relocation best interest
analysis with a custody modification best interest analysis, as it repeatedly assumes that E.T.
has relocated with Mother, even before the Trial Court had (erroneously) addressed the
relocation issue.” We agree, in part. The trial court correctly applied the modification
factors set forth in Tennessee Code Annotated section 36-6-106, as opposed to the relocation
factors set forth in Tennessee Code Annotated section 36-6-108. However, the trial court
did, with regard to three factors, reference E.T.’s best interests upon her presumed relocation
to Rockvale. The trial court erred in presuming relocation at that point; however, we will
consider whether modification is in E.T.’s best interest without consideration of relocation.
Father argues that naming him primary residential parent is in the child’s best interest.
He claims that “[t]he Trial Court . . . ignored the substantial proof offered regarding
Mother’s own bad conduct.” He cites Mother’s “nonchalance towards [E.T.]’s education”
and her failure to provide E.T. with a consistent schedule “which adversely affected [E.T.’s]
growth, learning, and maturity.” Moreover, he claims that “Mother’s conduct in the child’s
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presence may have also influenced [E.T.]’s age-inappropriate behavior.” 15 (emphasis added).
In contrast, he maintains that he “made great efforts to maintain a regular schedule for [E.T.]
and to stress learning and development while [E.T.] was in his care.”
Father claims that the trial court merely assumed, without proof of actual harm, that
E.T. “could” suffer emotional damage from the perceived anger of Father and his confidants.
He again argues that the trial court made unsupported findings that he made unilateral
decisions[,] and he claims that the trial court “continued to fault [him] for his work schedule
even though such work schedule had existed at the time of the 2007 Consent Order and had
even become more flexible since that time.”
As discussed above, E.T.’s absences were a result of the choices of both parents.
Although Mother was primarily responsible for the absences, such occurred during a difficult
period in Mother’s life, and the program in which E.T. was enrolled was merely voluntary
Pre-Kindergarten. Moreover, E.T. continued to achieve academically. Mother admits that
Father places great focus on academics, while she tends to be more nurturing; however, she
too, has purchased academic games and workbooks to supplement E.T.’s learning.
We reject Father’s argument that the trial court could not consider his work schedule
in a best interest analysis even if such schedule was contemplated when the Consent Order
was entered. See Bumpus v. Bumpus, No. W2007-00395-COA-R3-CV, 2008 WL 763780,
at *13 (Tenn. Ct. App. Mar. 25, 2008) (“A trial court can and should make a ‘fresh
determination’ of the children’s best interest if it first finds that a material change in
circumstances has occurred since the original decree. In doing so, it should not turn a blind
eye to facts that were known at the time of the previous decree.”). The evidence
demonstrated, as the trial court found, that Mother is the more involved parent. She attends
E.T’s functions while Father usually does not. Father sends a nanny or a girlfriend to E.T.’s
functions and to retrieve E.T. from school. Father even exercises his “parenting” time by
proxy when he is away on travel.
15
Father cites Ms. Colon’s testimony that she observed Mother at a “little family get-together”
drinking and dancing and kissing her boyfriend in E.T.’s presence. Previous claims of inappropriate behavior
by E.T. include Father’s girlfriend’s testimony that E.T. would try to “make out” with her and that E.T. had
asked her to “lay on top of her[.]” Additionally, the girlfriend testified that E.T. “knows things that a child
should not know . . . . [S]he has talked to me before about sex.” However, Mother accused Father and his
girlfriend of exposing themselves, nude, to [E.T.]–Father, accidentally while urinating. Additionally, she
claimed that E.T. had described seeing Father and his girlfriend have sexual intercourse, and Mother assumed
they had forgotten to shut or lock a door.
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Moreover, the evidence supports the trial court’s determination that Father made
numerous unilateral decisions regarding E.T.–for example, hiring a tutor, having E.T. seen
by a therapist, beginning the application process to St. Mary’s, enrolling E.T. in
extracurricular activities, and taking her to see a dentist. Additionally, evidence was
presented that Ms. Colon refused to speak to Mother in E.T.’s presence.
Overall, we find the evidence supports the trial court’s conclusion that a modification
of the primary residential parent is not in E.T.’s best interest. The evidence at trial indicated
that both Mother and Father love E.T. However, testimony was elicited that E.T. complains
when she is required to visit Father. Both parents are capable of providing for E.T.’s basic
and educational needs, but Mother has been her primary caregiver, while Father often relies
upon others. Father, alone, testified that Mother is unstable. To the contrary, Mother
acknowledged the tremendous pain of losing her mother, but in an email to Father, she
declared that she would “not allow the loss to compromise [her] child’s life.” 16
The trial court found that Father exhibited anger towards the Mother, and we find the
evidence does not preponderate against this finding. Father testified that he is unsure of
Mother’s love for E.T., he questioned her mental stability, and he worried about her
exercising unsupervised visitation with E.T. He claimed that any time Mother did not get her
way, she would accuse his girlfriends of exposing themselves to E.T. or accuse him of having
sex in front of E.T. However, at least with regard to Father, Mother claimed that the alleged
exposure was innocent. Additionally, she assumed that E.T.’s descriptions of seeing Father
and his girlfriend having sexual intercourse simply stemmed from Father’s forgetting to shut
or lock a door.
Father stated that Mother accused his father of being a molester when he refused to
give her money. Mother acknowledged refusing to allow Father’s father to babysit E.T.
alone, but she denied labeling him a “molester.” Father conceded that his father was abusive,
stating “[H]e was physically abusive to my mother and he was fairly abusive with my brother
and I . . . . And my mom made the decision that we needed to get far away from him.”
When Mother contacted Father regarding the allegations E.T. made against “Z,”
16
In his reply brief, Father argues that the trial court ignored evidence that Mother had reported a
history of depression and ADD to the Memphis Child Advocacy Center, and that she had reported a history
of domestic violence between her stepfather and her mother. We find both an ADD diagnosis and abuse
which did not involve Mother irrelevant. Moreover, there is no evidence that Mother’s reported depression
and prior use of anti-depressant medication renders her unstable or unable to parent.
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Father failed to respond to Mother because, as he stated, “I thought it was just another
attempt at accusing some body of something that they hadn’t done and I knew “Z” hadn’t
done anything to [E.T.] and it was just another play of [Mother] not getting what she wanted
and accusing.” Father’s girlfriend, Paige Patrick, and Father’s nanny, Terri Colon, who
frequent Father’s home failed to believe E.T.’s allegations. Both testified that E.T. told them
that Mother had instructed E.T. to make the allegation against “Z” although nothing had
happened. Mother, however, denied coaching E.T.’s statements and a licensed clinical social
worker at the Memphis Child Advocacy Center found E.T. “gave no indication that she had
been coerced.” Instead, her story was made “more credible” because she kept “telling a
story, the same story, over and over without faltering with the details.”
As discussed above, Ms. Colon exhibits anger towards the Mother, even in front of
E.T. Moreover, Father’s girlfriend, Paige Patrick, stated that she and Mother were nice to
one another “up until January of [2010 when she] turned into a monster in [Mother’s]
eyes[.]” Ms. Patrick testified that she came to court to “clear her name” of Mother’s
accusations. Like Father, she stated that everything is fine until Mother does not get her way
and “then just crazy things happen.” Ms. Patrick stated that if Father was named primary
residential parent both she and Father would promote a continued relationship between E.T.
and Mother. However, the trial court questioned Ms. Patrick’s “allegiance to the truth” based
upon her anger towards Mother and her relationship with Father.
Mother has overwhelmingly been the parent willing to foster the other’s relationship
with E.T. Mother testified to rearranging the parenting schedule on multiple occasions to
meet Father’s work and travel requirements. She testified regarding the importance of E.T.
visiting with Father as follows:
regardless of our personal history, relational history, he’s [E.T.’s] daddy.
That’s half her DNA. My daddy was my world and for her to know her father
is the most important thing in having a relationship with him.
Mother’s best friend, Sarah Beth Cohen, similarly testified that Mother is “pretty
accommodating” of Father’s schedule, and she maintained that she has never heard Mother
make derogatory remarks about Father in E.T.’s presence. She stated that when E.T.
complains about going to Father’s, Mother encourages E.T.’s visit by telling her that she will
have fun and that her father loves her. Ms. Cohen testified that Mother does not try to
exclude Father from E.T.’s life. Instead, “She always makes sure that [E.T.] knows that there
is always going to be Daddy; there’s always going to be time for Daddy.”
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In contrast, Father has attempted to alienate E.T. from Mother, according to Mother,
by telling her that Mother’s son with Mr. Dudley is not her real brother. Additionally,
Mother testified that E.T. told her “That Daddy said she’s not going anywhere; not to worry;
she’s going to be at St. Mary’s; she’s going to be with him; that Mommy’s already moved;
that now that Mommy has [her son] she doesn’t have as much time for you; that [Mother’s
son is] not her real brother[.]”
Based upon the evidence presented, and its credibility determinations, the trial court
concluded that E.T.’s best interests will be promoted by having Mother remain her primary
residential parent. Having reviewed the record presented, and giving due deference to the
trial court’s credibility determinations–finding no clear evidence to the contrary–we find the
evidence fully supports this determination.
B. Relocation
Tennessee Code Annotated section 36-6-108 provides that “[i]f a parent who is
spending intervals of time with a child desires to relocate . . . more than one hundred (100)
miles from the other parent within the state,” the relocating parent must provide notice to the
other parent by registered or certified mail at least sixty days prior to the move, in the absence
of court-found exigent circumstances. The notice must contain a statement of intent to move,
the location of the proposed new residence, the reasons for the proposed relocation, and a
statement that the other parent may oppose relocation within thirty days of notice receipt.
Tenn. Code Ann. § 36-6-108(a)(1)-(4).
If the parents spend substantially equal time with the child, no presumption in favor
of or against relocation arises. Instead, the court determines whether to allow relocation
based upon the best interests of the child, considering the relevant factors set forth in
Tennessee Code Annotated section 36-16-108(c)(1)-(11). If, however, the parents do not
spend substantially equal time with the child, the parent spending the greater amount of time
with the child shall be permitted to relocate unless the court finds the relocation has no
reasonable purpose, “relocation would pose a threat of specific and serious harm 17 to the
17
“Specific and serious harm to the child includes, but is not limited to, the following:
(A) If a parent wishes to take a child with a serious medical problem to an area where no
adequate treatment is readily available;
(B) If a parent wishes to take a child with specific educational requirements to an area with
no adequate education facilities;
(continued...)
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child that outweighs the threat of harm to the child of a change of custody[,]” or the parent’s
motive for relocating is vindictive, in that it is aimed at defeating or interfering with the
visitation of the parent spending less time with the child. Tenn. Code Ann. §36-6-
108(d)(1b.)
As stated above, the trial court determined that Father did not spend substantially
equal time with the child. It further determined that Mother’s relocation was not vindictive
and that Father had failed to offer any evidence that Mother’s move lacked a reasonable
purpose, or that the move would “pose a threat of specific and serous harm to the child that
outweighs the threat of harm to the child of a change of custody[.]” Thus, the court
concluded that it was in the child’s best interest to allow Mother’s relocation.
On appeal, Father argues that the trial court erred in ruling on the Mother’s relocation
request. Father claims that the relocation issue was bifurcated from the modification
issue–which was tried first–and that he was denied an opportunity to be heard regarding
relocation. He claims that “the Trial Court heard no proof on the relocation issue, and it
sustained multiple objections that evidence relevant only to the relocation issue should not
be presented.”
Mother does not seem to deny that bifurcation occurred, but she contends that Father
was, nonetheless, afforded opportunities to present evidence related to relocation. She claims
he was afforded the opportunity to testify regarding “Mother notifying him of her intent to
move and the reasons for her move as set out in her Certified Letter dated January 15, 2010
. . . . [as well as] the number of days that he claims he parents E.T.” She also claims that he
was afforded the opportunity to prove that Mother’s move had no reasonable purpose, that
17
(...continued)
(C) If a parent wishes to relocate and take up residence with a person with a history of child
or domestic abuse or who is currently abusing alcohol or other drugs;
(D) If the child relies on the parent not relocating who provides emotional support, nurturing
and development such that removal would result in severe emotional detriment to the child;
(E) If the custodial parent is emotionally disturbed or dependent such that the custodial
parent is not capable of adequately parenting the child in the absence of the support systems
currently in place in this state, and such support system is not available at the proposed
relocation site; or
(F) If the proposed relocation is to a foreign country whose public policy does not normally
enforce the visitation of non-custodial parents, that does not have an adequately functioning
legal system or that otherwise presents a substantial risk of specific and serious harm to the
child.”
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it would be harmful to E.T., or that it was vindictive. She states that Father’s counsel called
only Father as a rebuttal witness and that “Father offered nothing further as it related to the
issue of Mother’s relocation.”
Alternatively, Mother argues that if Father was not given ample opportunity to present
proof on the relocation issue, that he waived the opportunity to do so. Mother points to
Father’s counsel’s statements at the February 17, 2011 hearing on his motion for permission
for interlocutory appeal:
[Father’s counsel]: At the conclusion of the proof on the Petition for
Modification, the Court called us into chambers and told us . . . that it was for
purposes of scheduling, and, accordingly, the court reporter was not invited to
attend such scheduling conference.
I’m sure - - I cannot speak for opposing counsel, but my anticipation
was that we would be told to come back for a ruling on the Petition for
Modification, and then depending upon that ruling, we would proceed - - either
proceed or there would be no need to proceed with the relocation proof.
....
I say this in all due respect to the Court, not in criticism to the court, but
what transpired was, when we went into chambers, that the father had
sustained his burden of proof in showing that a material and substantial change
of circumstances had occurred, but that the Court was going to allow the
relocation and allow it immediately upon the recessing of the school term from
St. Mary’s School to which the child was attending.
In support of her waiver argument, Mother claims that after the in-chamber meeting, Father
failed to request a separate hearing on the relocation issue. Furthermore, she cites the
following statements of Magistrate Michael at the February 17, 2011 hearing on Father’s
motion for permission for interlocutory appeal:
My sense is, and low be it for me to limit proof on [the relocation]
issue, that the amount of proof that was presented at trial gave me everything
I needed to make that decision.
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If you disagree with that, and it’s obvious that you do, then I need to
reconsider whether or not we need to have a scheduling conference to set it up
so you can have your argument on the relocation and posit your objections
pending my final order.
....
If counsel wishes to schedule a hearing to posit your objections on the
move, I will be glad to have a scheduling conference with you on the record
and we’ll schedule a hearing. I will tell you this, I will withhold any Final
Order pending the proof on that hearing and I will set a time frame on it.
Father’s counsel, however, refused such a hearing based upon the trial court’s prior decision
to allow the move. Thus, Mother’s counsel claims a second waiver occurred when Father
refused the court’s offer for a relocation hearing following its denial of his motion for
interlocutory appeal.
This Court has previously considered a similar situation. In Placencia v. Placencia,
48 S.W.3d 732, 733 (Tenn. Ct. App. 2000) (“Placenia II), primary residential parent father
filed a petition to relocate, and mother petitioned to be named the primary residential parent.
After finding a material change in circumstances, the trial court granted mother’s petition to
be named the primary residential parent. Id. However, this decision was reversed on appeal.
Placencia v. Placencia, 3 S.W.3d 497 (Tenn. Ct. App. 1999) (Placencia I) perm. app. denied
(Tenn. Sept. 13, 1999).
After the first appeal, mother filed a second petition to modify alleging additional
changes in circumstances and seeking a hearing on Father’s proposed relocation. Id. The
trial court, however, denied mother’s petition declaring that it “‘took into consideration all
issues and factors in the Court’s original ruling and the Court of appeals has spoken to these
issues.’” Id. Mother filed a second appeal to this Court. Id.
In Placencia II, we rejected father’s argument that in addressing custody in the trial
court, the relocation issue was tried by implication. Id. at 735. We noted that only father’s
motive had been addressed in Placencia I; whether the relocation had a reasonable purpose
or would seriously harm the child was not addressed. Id. We found that although Tennessee
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Code Annotated section 36-6-108(d) “does not appear to require specific findings as to the
three [relocation] elements[,] . . . . given the fundamental nature of the interests involved, .
. . the trial court should at least have addressed the issues of ‘reasonable purpose’ and
‘specific and serious harm’ in its opinion.” Id. at 735-36. Importantly, we held that “even
if the trial court had addressed all three prongs of the applicable statute,” that mother’s
second petition to modify should nonetheless have been considered as an amendment to her
original response to father’s petition to relocate because it alleged new facts since the prior
proceedings. Id. at 736. In sum, we determined that “the issues involved in allowing a
custodial parent to relocate with a child are too important to leave to ‘implication.’” Id. at
735.
In the instant case, the modification and relocation issues were clearly bifurcated, with
modification to be heard first and relocation then addressed, if necessary. On at least two
occasions, the trial court sustained objections that evidence related to relocation should be
reserved. Unlike Placencia, the trial court here addressed each of the three relocation issues
in its “Findings and Recommendations.” It found that the evidence clearly demonstrated that
Mother’s relocation was not vindictive or intended to interfere with Father’s visitation rights;
however, it found that Father had failed to offer any proof that Mother’s move lacked a
reasonable purpose or that it would “pose a threat of specific and serious harm to the child
that outweighs the threat of harm to the child of a change of custody[.]”
As we stated in Placencia II, “Tennessee has long recognized that a parent’s right to
custody is a fundamental liberty interest which may not be abridged absent due process of
law.” Placencia II, 48 S.W.3d at 734 (citations omitted). Father and his counsel reasonably
believed they would be allowed to present relocation-specific evidence at a second hearing.
However, due to the trial court’s discrediting of Father’s testimony and its conclusion that
a second hearing would be “redundant[,]” no such hearing ever occurred. In ruling on the
relocation issue after limiting the evidence to that concerning modification, the trial court
effectively denied Father his day in court. We find no waiver of the relocation issue by
Father, as the trial court offered Father the opportunity to schedule a relocation hearing only
after it had announced its decision to allow Mother’s relocation. Accordingly, we vacate the
trial court’s order permitting Mother to relocate with E.T and we remand the case to the trial
court for an evidentiary hearing on the issue of Mother’s relocation. E.T. shall be permitted
to reside with Mother in Rockvale, Tennessee, pending resolution of the issue on remand.
C. 2007 Consent Order
Next, we address Father’s argument that the trial court erred in striking the Consent
Order in total and then in reinstating certain, sometimes altered, provisions thereof. Father
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seems to argue that after striking the order, identical provisions could not be reinstated
without proof thereon and that modified provisions could not be ordered because neither
party sought such modifications either in their pleadings or at trial. Father groups his
objections into three categories: financial matters; decision-making authority, and visitation.
1. Financial Matters
In his brief to this Court, Father claims that the trial court erred in modifying and/or
reinstating certain financial provisions of the Consent Order: Father’s obligations related to
the child’s K-12 and college educational costs, child support,18 uncovered medical expenses,
health and dental insurance, and life insurance; and Mother’s ability to claim E.T. as a
dependent for tax purposes.19
Because Father’s financial obligations may be affected by resolution of the relocation
issue, we find these financial issues should be addressed, if desired by the parties, on
remand.20 Thus, we vacate the trial court’s “Findings and Recommendations” regarding K-
12 and college educational costs, child support, uncovered medical expenses, health and
dental insurance, life insurance, and tax deductions. Pending further order of the trial court
on remand, we reinstate the Consent Order relative to these provisions.
2. Decision-Making Authority
Next, Father challenges certain “decision-making authority” provisions set forth in the
18
Both the 2007 Consent Order and the “Findings and Recommendations” required Father to pay
$2,500.00 per month in child support.
19
Both the 2007 Consent Order and the “Findings and Recommendations” permitted Mother to claim
the child for income tax purposes. Father also claims that the trial court erred in awarding Mother her
attorney fees. This issue will be addressed in a later section of this opinion.
20
We recognize that if the trial court denies Mother’s relocation request, Father will not automatically
become the child’s primary residential parent; however, should Mother choose to relocate without the child
or should Mother return to Memphis with the child, Father’s parenting time could be affected, necessitating
a change in his financial obligations.
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trial court’s “Findings and Recommendations.” Specifically, Father challenges the trial
court’s grant of “sole decision making authority” to Mother “concerning E.T.’s future
including but not limited to education, non-emergency medical care, religion and
extracurricular activities.” Father points out that in her response to Father’s petition for
modification, Mother requested only that the parties continue to exercise joint decision-
making, with Mother having final authority in the event of a dispute.
Father also challenges the parenting schedule set forth in the “Findings and
Recommendations.” He claims that the ordered schedule affords him less parenting time
than that obliged by Mother in her response to his petition for modification, but he fails to
specify the alleged fewer number of days. Finally, he contends that the trial court
erroneously ordered that the exchange of the child should occur at Interstate 40, Exit 170,
when Mother agreed to exchange the child forty-four miles closer to Father at Interstate 40,
Exit 126.
Like the financial matters, we find that these “decision-making authority” provisions
may be affected by the trial court’s resolution of the relocation issue. Thus, these provisions
should be addressed, if necessary, by the parties on remand. We vacate the trial court’s
“Findings and Recommendations” regarding Mother’s sole decision-making authority, and,
pending further order of the trial court, we reinstate the provision set forth in the Consent
Order providing for joint decision making authority. Because E.T. is permitted to live with
Mother pending resolution of the relocation issue, reinstatement of the Consent Order’s
parenting schedule is infeasible;21 thus, the parenting schedule set forth in the “Findings and
Recommendations” is to be followed pending further order of the trial court. Finally,
because the Consent Order does not speak to an exchange location, E.T.’s exchange shall
continue to occur at Interstate 40, Exit 170 pending further order of the trial court.
3. Visitation
Finally, Father challenges certain “visitation” provisions imposed by the trial court:
21
For example, the Consent Order provides that Father shall have overnight visitation each
Wednesday night.
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ordering Father to enroll in parenting training, ordering Father either to assist his nanny in
obtaining professional counseling or to find an appropriate replacement, and prohibiting
Father from allowing any person of the opposite sex to reside in his home while E.T. is in his
care.
“A trial court has broad discretion to take necessary action in order to ‘protect the
welfare of [a] child or a party.’” Curry v. Curry, No. M2007-02446-COA-R3-CV, 2008 WL
4426895, at *15 (Tenn. Ct. App. Sept. 18, 2008) (quoting Tenn. Code Ann. § 36-6-
404(a)(4)(F)). The abuse of discretion standard requires us to consider “(1) whether the
decision has a sufficient evidentiary foundation, (2) whether the court correctly identified and
properly applied the appropriate legal principles, and (3) whether the decision is within the
range of acceptable alternatives.” State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248
(Tenn. Ct. App. 2000) (citing BIF v. Service Constr. Co., No. 87-136-II, 1988 WL 72409,
at *2 (Tenn. Ct. App. July 13, 1988)).
a. Parenting Training
Regarding the trial court’s requirement that he enroll in parenting training, Father
argues that “neither the record nor the Trial Court’s own findings support the Trial Court’s
conclusion that Father did not understand his role as a parent or that any such supposed lack
of understanding had caused any harm to [E.T.]” He further contends that there is no
evidence that he had interfered with Mother’s parenting time, or that he had attempted to
“substitute any third person for Mother.” In contrast, he claims, “Mother’s own witnesses
testified to incidents that support a finding that Mother had attempted to alienate [E.T.] from
Father.”
First, we reject Father’s insistence that requiring parenting training is a “restriction
upon visitation” which requires a specific finding that unrestricted visitation would harm the
child. See Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)(“The noncustodial parent’s
visitation ‘may be limited, or eliminated, if there is definite evidence that to permit . . . the
right would jeopardize the child, in either a physical or moral sense.’”) (quoting Suttles v.
Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)). However, we find the trial court’s decision to
require Father to attend parenting training is, nonetheless, sufficiently supported by the
evidence presented. As stated above, Mother testified that Father has attempted to alienate
E.T. from her by telling E.T. that Mother’s son with Mr. Dudley is not her real brother.
Additionally, Mother testified that E.T. told her “That Daddy said she’s not going anywhere;
not to worry; she’s going to be at St. Mary’s; she’s going to be with him; that Mommy’s
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already moved; that now that Mommy has [her son] she doesn’t have as much time for you;
that [Mother’s son is] not her real brother[.]” At trial, Father admitted telling E.T. that “she
wasn’t going anywhere,” although he claimed it was in response to E.T. “crying about
leaving[.]”
Although we question the relevancy of Mother’s alleged interference with the
Father/child relationship to the issue of Father’s required parenting training, we will briefly
respond to these allegations set forth in Father’s brief. Father correctly points out that,
according to Mr. Dudley, E.T. sometimes refers to Mr. Dudley as “Big Daddy[.]” However,
Father cites no evidence that Mother promoted the use of this title, or that such use alienated
E.T. from Father. Father claims that “Father’s testimony was replete with examples of how
Mother had adversely affected [E.T.’s] enjoyment of activities to which Father had exposed
her.” However, the cited authority for this statement includes testimony from Mother’s
former co-worker Melinda Williams who agreed that Father exposed E.T. to ballet and
tennis; however, Ms. Williams stated that E.T. did not like tennis and when Father’s counsel
insinuated that Mother had fostered such dislike, Ms. Williams responded that “[Mother]
didn’t say a word to [E.T.] about tennis.” Father also cites his own testimony in which he
alleged that Mother allows E.T. to watch too much television and to eat in front of the
television. He stated that E.T. was learning Spanish until he and Mother “had some
problems[,]” at which point E.T. no longer wanted him to speak in Spanish or to read to her
in Spanish. However, Father conceded that he “[doesn’t] know whether [Mother is]
supportive or non supportive” of E.T. learning Spanish.
In sum, we find sufficient evidence to support the trial court’s requirement that Father
attend parenting training.
b. Counseling for Nanny
Next, Father claims that “there is an insufficient evidentiary foundation” to support
the trial court’s order that Father assist his nanny, Ms. Colon, in obtaining professional
counseling “to deal with her dislike for the Mother” or to find an appropriate replacement.
We disagree.
At trial, evidence was presented demonstrating Ms. Colon’s affection for E.T., which
the trial court noted. However, significant evidence of the deteriorated relationship between
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Ms. Colon and Mother, following Mother’s divulgence of E.T.’s statements regarding abuse
by Z, was also presented. As discussed above, Ms. Colon testified that she no longer
considers Mother a friend, and an angry email from Ms. Colon to Mother was submitted into
evidence. Mother testified that Ms. Colon is no longer able to interact with Mother, and she
even refused to speak to Mother at E.T.’s 2010 school birthday party. We find the trial court
did not abuse its discretion in ordering Father to obtain counseling for Ms. Colon or to find
a suitable replacement.
c. Overnight Visitation by Opposite Sex
Finally, Father challenges the trial court’s order that “Father shall not allow any
person of the opposite sex to reside22 in his home while E.T. is in his care[,]” apparently
based upon its finding that Father’s girlfriend, Paige Patrick, harbored anger for Mother.23
Father argues that in order to prohibit the overnight presence of a paramour, the trial court
must make a specific finding that the paramour’s presence would harm the child. According
to Father, such finding was not made.
Our Supreme Court discussed visitation restrictions based upon the presence of a
paramour in Eldridge v. Eldridge, 42 S.W.3d 82, (Tenn. 2001). The trial court permitted the
mother, who was engaged in a live-in lesbian relationship, unrestricted overnight visitation
with the child. Id. at 84. However, the eastern section of the Court of Appeals reversed,
finding that the trial court abused its discretion in failing to prohibit the child’s overnight
visitation with the mother while the mother’s girlfriend was present. Id. at 85. The Court
22
Husband’s girlfriend, Paige Patrick, testified that she and Father have “[n]ever lived together[,]”
but she acknowledged that she spends the night at his home “a little over half the time[.]” Father seems to
interpret the trial court’s restriction on members of the opposite sex “resid[ing]” in his home to include
overnight visits by Ms. Patrick. As stated above, at the November 2011 hearing on attorney fees, Father
testified that he is engaged to another woman. The parties have not supplemented the record with post-trial
facts to address whether Father has since married this woman.
23
The “Findings and Recommendations” state:
The Court is also concerned with the attitudes of the Father’s girlfriend and the child’s
nanny. Their anger at trial was palpable. The nanny’s attitude towards the Mother is
disturbing. The Court finds that the Father shall not allow any person of the opposite sex
to reside in his home while E.T. is in his care. In addition, the Father shall within 90 days
of th[e] entry of this order either assist the current nanny in obtaining professional
counseling to deal with her dislike for the Mother or find an appropriate replacement[.]
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of Appeals then modified the trial court’s visitation order by prohibiting the girlfriend’s
presence during the child’s overnight visitation with the mother. Id.
On appeal to the Supreme Court, the Court noted that a visitation order is reviewed
for an abuse of discretion, id., and it acknowledged that “the noncustodial parent’s visitation
‘may be limited, or eliminated, if there is definite evidence that to permit . . . the right would
jeopardize the child, in either a physical or moral sense.’” Id. (quoting Suttles, 748 S.W.2d
at 429). However, the Supreme Court found that the Court of Appeals had failed to “identify
any legal or factual error by the trial court that might constitute an abuse of discretion.” Id.
Furthermore, the Court of Appeals had failed to demonstrate how its ordered modification
would cure any alleged error by the trial court. Id. Thus, it reversed the decision of the
Court of Appeals. Id. at 84.
In the present case, Father’s girlfriend of two years, Paige Patrick, stated that she and
Mother were nice to one another “up until January of [2010 when she] turned into a monster
in [Mother’s] eyes[,]” and she testified that she came to court to “clear her name” of
Mother’s accusations. Like Father, she stated that everything is fine until Mother does not
get her way and “then just crazy things happen.”
The trial court found that Ms. Patrick is angry at Mother, that both her anger and her
relationship with Father cloud her judgment, and the court questioned her allegiance to the
truth. The trial court made no finding, however, that allowing Father overnight visitation
with E.T. while Ms. Patrick, or another girlfriend, is present would “jeopardize the child, in
either a physical or moral sense.” Accordingly, we find the trial court’s prohibition lacked
a sufficient evidentiary foundation and we vacate the provision set forth in the “Findings and
Recommendations.”
D. Attorney Fees
1. Allowing Attorney Fee Hearing Before Juvenile Court
Next, we address Father’s arguments regarding attorney fees. As set out above, in its
“Findings and Recommendations,” the trial court reserved the issue of attorney fees. A
hearing on attorney fees was subsequently scheduled for July 21, 2011, but Father objected
to the hearing, claiming that Mother’s counsel had not “provided to counsel for Father an
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affidavit of attorney fees, an itemized billing statement, or information regarding an expert
witness whom Wife intended to testify.” The trial court continued the hearing to August 4,
2011, granting Father “reasonable time to review the documentation underlying Mother’s
assertion of her reasonable attorney fees and suit expenses.”
According to Magistrate Michael’s September 7, 2011 “Findings and
Recommendations,” on August 4, 2011, the attorneys appeared for the scheduled fee hearing,
but the hearing was continued “due to a scheduling conflict with the Court, and both
attorneys appearing that day to advise a hearing was not necessary at that time due to
settlement negotiations by the parties . . . [such that] the attorneys desired to continue such
negotiations until such time that a hearing was needed.” Apparently, on September 1, 2011,
Mother’s attorney was notified via letter that the fee issue had been set for a hearing on
September 2, 2011.24 At the beginning of the September 2 hearing, Mother’s counsel
provided her billing statements and affidavit. Thus, on September 7, 2011, Magistrate
Michael found it appropriate to grant Father’s “Motion Ore Tenus to Deny Mother’s Award
of Attorney Fees” due to her late-submitted information. That same day, Magistrate
Michael’s “Findings and Recommendations” were confirmed as a decree of the juvenile
court by Juvenile Court Judge Person.
Also on September 7, 2011, Mother’s counsel filed a request for a hearing before
Juvenile Court Judge Person. Father, however, filed a “Motion to Strike Mother’s Request
for Hearing Before the Judge” arguing that once the findings were confirmed by the juvenile
court judge, Mother could no longer seek a rehearing. Alternatively, Father argued that
because no initial hearing took place, Mother could not seek a “rehearing.” Juvenile Court
Special Judge Lane denied Father’s “Motion to Strike,” and on November 17, 2011, he
entered an order granting Mother $40,000.00 of her requested $69,336.75 in attorney fees,
as well as her full request of $13,683.17 in expenses, finding:
Mother’s attorney’s fees and expenses were reasonable and necessary in
defending the Father’s Petition to Modify Custody and to Oppose Mother’s
Relocation, and in representing Mother in her Petition to Modify the Consent
Order dated December 11, 2007. The Court also finds that the Mother’s
attorney’s fees and expenses were customary and within [the] range of rates
charged by local attorneys in similar actions.
24
Magistrate Michael’s September 7, 2011 “Findings and Recommendations” states that following
the August 4, 2011 continuance, “[t]he case was reset for hearing at 1:00 p.m. on Friday, September 2, 2011,
after the phone call between the attorneys and the Court, and the letter from Father’s attorney dated
Thursday, September 1, 2011[,] that advised Mother’s attorney the case had been set for Friday, September
2, 2011 at 1:00 p.m.”
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The court required Father to post a $53,683.17 bond to secure Mother’s judgment.
On appeal, Father reasserts the arguments made in his “Motion to Strike.” He first
contends that once the findings and recommendations of the magistrate become the decree
of the juvenile court, a party may no longer request a rehearing before the juvenile judge.
He maintains that Mother “waited” for the juvenile court to confirm the Magistrate’s granting
of Father’s “Motion Ore Tenus to Deny Mother’s Award of Attorney Fees” before filing her
request for a hearing, and therefore, that her right to such hearing was waived. Alternatively,
Father contends that Magistrate Michael granted his “Motion Ore Tenus” before the hearing
on Mother’s request for attorney fees had begun and therefore, that Mother had no right to
a rehearing.
Tennessee Code Annotated section 37-1-107, regarding juvenile court magistrates,
provides:
(d) Upon the conclusion of the hearing in each case, the magistrate shall
transmit to the judge all papers relating to the case, together with the
magistrate’s findings and recommendations in writing. Any hearing by a
magistrate on any preliminary matter is final and not reviewable by the judge
of the juvenile court, except on the court’s own motion. . . .
(e) Any party may, within five (5) days thereafter, excluding nonjudicial days,
file a request with the court for a hearing by the judge of the juvenile court.
The judge may, on the judge’s own motion, order a rehearing of any matter
heard before a magistrate, and shall allow a hearing if a request for such
hearing is filed as herein prescribed. Unless the judge orders otherwise, the
recommendation of the magistrate shall be the decree of the court pending a
rehearing.
(f) In case no hearing before the judge is requested, or when the right to
hearing is waived, the findings and recommendations of the magistrate become
the decree of the court when confirmed by an order of the judge. . . .
The plain language of Tennessee Code Annotated section 37-1-107(e) provides that
a party may request a hearing before the juvenile court within five days of transmittal of the
magistrate’s findings and recommendations. On September 7, 2011, Magistrate Michael
granted Father’s “Motion Ore Tenus to Deny Mother’s Award of Attorney Fees.” That same
day, Mother filed a request for a hearing before Juvenile Court Judge Person. We simply
find no language in Tennessee Code Annotated section 37-1-107 to support Father’s
argument that waiver occurs where a hearing is requested within five days, but following
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confirmation by the juvenile court. Such a reading would effectively deny a party a hearing
where, as here, confirmation occurred within the 5-day filing period.
We likewise reject Father’s argument that Mother could not request a hearing before
the juvenile court because Magistrate Michael granted Father’s motion prior to a full hearing
on attorney fees. Tennessee Code Annotated section 37-7-107 provides that a party may
request a “hearing” before the juvenile court “[u]pon the conclusion of the hearing in each
case[.]” We find that Magistrate Michael’s grant of Father’s motion concluded the hearing,
invoking Mother’s right to request a hearing within five days. Accordingly, Juvenile Court
Special Judge Lane did not err in denying Father’s “Motion to Strike.”
2. Award of Attorney Fees
In Tennessee, the recovery of attorney fees in custody matters has been authorized
by statute for many years. Deas v. Deas, 774 S.W.2d 167, 169 (Tenn. 1989). Tennessee
Code Annotated section 36-5-103(c) provides:
The plaintiff spouse25 may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded may
recover from the other spouse reasonable attorney fees incurred in enforcing
any decree for alimony and/or child support, or in regard to any suit or action
concerning the adjudication of the custody or the change of custody of any
child, or child, of the parties, both upon the original divorce hearing and at any
subsequent hearing, which fees may be fixed and allowed by the court, before
whom such action or proceeding is pending, in the discretion of such court.
“There is no absolute right to such fees, but their award in custody and support proceedings
is familiar and almost common place.” Deas, 774 S.W.2d at 170. Regarding an award of
attorney fees under the statute, we have stated:
There is no exhaustive list of the factors a trial court should take into account
in exercising its discretion on the question of attorney’s fees. Such an award
would seem to be most appropriate, however, where the plaintiff proves that
she is entitled to an award for the benefit of her minor child, and where the
cost of vindicating that right produces an inequitable reduction in the actual
25
The statute has been interpreted to allow the recovery and/or payment of attorney fees by non-
spouses. See Jones v. Smith, No. W2010-01160-COA-R3-CV, 2011 WL 6160239, at *1-2 (Tenn. Ct. App.
Dec. 12, 2011) perm. app. denied (Tenn. Apr. 20, 2012)
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amount the child receives.
Richardson v. Richardson, 969 S.W.2d 931, 936 (Tenn. Ct. App. 1997). However, “trial
courts may award attorney’s fees without proof that the requesting party is unable to pay
them as long as the award is just and equitable under the facts of the case.” Id.
“The award of attorneys’ fees is within the trial court’s discretion.” Huntley v.
Huntley, 61 S.W.3d 329, 341 (Tenn. Ct. App. 2001) (citing Richardson v. Richardson, 969
S.W.2d 931, 936 (Tenn. Ct. App. 1997)). Therefore, unless it “‘affirmatively appears that
the trial court’s decision was against logic or reasoning, and caused an injustice or injury to
the party complaining,’” we will not reverse the trial court’s decision on appeal. Id. (quoting
Marcus v. Marcus, 993 S.W.2d 596, 601 (Tenn. 1999)).
A hearing on the issue of attorney fees was held before Juvenile Court Special Judge
Lane on November 15, 2011. As recited above, Judge Lane entered an order, on November
17, 2011, granting Mother $40,000.00 of her requested $69,336.75 in attorney fees, and
granting her full request of $13,683.17 in expenses, stating:
Mother’s attorney’s fees and expenses were reasonable and necessary in
defending the Father’s Petition to Modify Custody and to Oppose Mother’s
Relocation, and in representing Mother in her Petition to Modify the Consent
Order dated December 11, 2007. The Court also finds that the Mother’s
attorney’s fees and expenses were customary and within [the] range of rates
charged by local attorneys in similar actions.
At the November 2011 hearing on Mother’s request for attorney fees, Father testified
that he had earned approximately $200,000.00 thus far in 2011 and that he expected to earn
approximately $250,000.00 for the year. He also testified regarding various expenses and
debts, but on appeal he does not argue that he lacks the ability to pay Mother’s fees. Father
instead argues that the trial court’s award was error because, he claims, “the record is devoid
of proof that the cost of litigation had produced an inequitable reduction in the actual amount
of support [E.T.] receives or that securing such an award of attorney fees and expenses would
ultimately inure to the benefit of [E.T.].”26 He points to Mother’s testimony that she had
already paid $70,504 in attorney fees by withdrawing funds from Mr. Dudley’s 401k. He
26
Father does not seem to argue that the amount of the fee charged was unreasonable.
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also claims that “both parties enjoyed some success in litigating their cross-petitions” and he
argues that Mother “initiated this litigation” by requesting to relocate.
At the hearing, Mother testified that she is a full-time stay-at-home mother to E.T. and
her then-fifteen month old son. In her appellate brief, she contends that “[i]t is obvious that
a thirteen day trial and all the necessary preparation would be costly, and that Mother, a stay-
at-home Mom, would not have the ability to pay those fees and expenses and Mother being
able to secure an award of fees and expenses would ultimately inure to the benefit of E.T.”
Although we have stated that an award of attorney fees “would seem to be most
appropriate” where the fee-seeking party proves the award would benefit the child and where
the absence of a fee award would inequitably reduce the actual support the child receives, see
Richardson, 969 S.W.2d at 936 (emphasis added), we find no requirement that proof of such
is a prerequisite to an award of attorney fees. In any event, we find sufficient evidence to
infer that the trial court’s award to Mother will inure to E.T.’s benefit. That Mother was
able to pay her fees by withdrawing funds from her husband’s retirement account does not
preclude an award of attorney fees, as, again, “trial courts may award attorney’s fees without
proof that the requesting party is unable to pay them[.]” Id. Father filed his modification
petition after Mother stated her intent to relocate; however, he testified that he had consulted
his attorney regarding filing such a petition prior to receiving Mother’s relocation notice.
Although Father was successful in demonstrating a material change in circumstances, the
trial court ultimately denied his petition’s request to name him primary residential parent.
In sum, we find no abuse of discretion in the trial court’s partial award of attorney fees to
Mother nor in its full award of litigation expenses to Mother.
3. Appellate Attorney Fees
In the “Conclusion” sections of their respective briefs, both parties request appellate
attorney fees. “An award of appellate attorney’s fees is a matter within this Court’s sound
discretion.” Chaffin v. Ellis, 211 S.W.3d 264, 294 (Tenn. Ct. App. 2006) (citing Archer v.
Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995)). When considering a request for
attorney’s fees on appeal, we consider the requesting party’s ability to pay such fees, his
success on appeal, whether he sought the appeal in good faith, and any other equitable factors
relevant in a given case. Id. (citing Darvarmanesh v. Gharacholou, No. M2004-00262-
COA-R3-CV, 2005 WL 1684050, at *16 (Tenn. Ct. App. July 19, 2005)). In this matter, we
find it equitable to decline to award attorney fees to either party on appeal.
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E. Remand
In his brief to this Court, Father makes numerous assertions that Magistrate Michael
“ignored” or “disregarded” certain evidence and he further states that Magistrate Michael
“vehemently and unnecessarily attacked Father,” that he “took every opportunity to vilify
Father[,]” and that he made “inappropriate and unnecessary statements . . . [indicating] bias
and prejudice against Father.” Based upon these allegations, Father asks this Court to
remand the issues to judges “other than Honorable Dan Michael or Honorable Herbert Lane.”
The preamble to Rule of Professional Conduct 8 directs that “[a] lawyer should
demonstrate respect for the legal system and for those who serve it, including judges, other
lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the
rectitude of official action, it is also a lawyer’s duty to uphold.” Tenn. Sup. Ct. R. 8,
Preamble 6. Father’s comments, attributing improper motives to the trial court judges,
manifest disrespect for the juvenile court judges involved in this matter and will not be
tolerated by this Court.
This Court has not been presented sufficient evidence of bias and prejudice to warrant
remand to non-participating judges. However, this issue may be pursued on remand.
V. C ONCLUSION
For the aforementioned reasons, we affirm in part and we reverse in part and we
remand for further proceedings. Costs of this appeal are taxed equally to Appellee Amanda
G. Hammock and Appellant, Rolando Toyos, and his surety, for which execution may issue
if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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