Stefani Franklin v. Jimmy Franklin

11/24/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 8, 2021 Session
STEFANI FRANKLIN v. JIMMY FRANKLIN
Appeal from the Circuit Court for Shelby County
No. CT-001869-13 Valerie L Smith, Judge
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No. W2020-00285-COA-R3-CV
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In this post-divorce case, Father appeals the trial court’s order allowing Mother to relocate
with the parties’ son from the Memphis area to Houston, Texas. Discerning no reversible
error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S. and KRISTI M. DAVIS, J., joined.
R. Linley Richter, Jr., Cordova, Tennessee, for the appellant, Jimmy Franklin.
Jeffrey Jones, Bartlett, Tennessee, for the appellee, Stefani Aglikin (Franklin).
OPINION
I. Background
On February 18, 2014, the Circuit Court of Shelby County (“trial court”) declared
Appellant Jimmy Franklin (“Father”) and Appellee Stefani Aglikin (“Mother”) divorced.
At that time, the parties entered an agreed permanent parenting plan (the “parenting plan”)
concerning their minor child, G.F. (d/o/b November 2011) (the “Child”). Under the
parenting plan, Mother was named the primary residential parent, and it was ordered that
the Child would reside with her for the majority of the year. Father exercised the following
visitation schedule with the Child: every other weekend from Friday after school until
Monday before school; every Tuesday from after school until 7:30 p.m.; and every other
Thursday from after school until 7:30 p.m. The parties alternated holidays with the Child
and employed a week-on-week-off schedule during the summer. Although the parties
agreed to jointly make major decisions for the Child, Mother was given final decision-
making power should the parties disagree. At the time of divorce, and in the years that
followed, both parties resided in the Memphis metropolitan area.
In late 2019, Mother was offered a position as Director of Transplant Financial
Services at the Houston Medical Center in Houston, Texas. She accepted the offer on the
condition that the trial court allow her to relocate with the Child. On November 11, 2019,
Mother notified Father via a letter from her attorney of her intent to relocate. By letter of
December 3, 2019, Father objected to the relocation. On December 6, 2019, Mother filed
her petition for relocation in the trial court. Father filed his answer in opposition on January
6, 2020.
Mother’s petition for relocation was tried on January 9 and 13, 2020. The trial court
heard testimony from the following witnesses: (1) Mother; (2) Father; (3) Dr. John Leite,
a clinical child psychologist and Father’s expert witness; (4) Katherine Aglikin, the Child’s
maternal grandmother; and (5) Christopher Jenkins, Mother’s ex-fiancé.1 By order of
January 21, 2020, the trial court granted Mother’s petition and ordered the parties to
mediation to modify the existing parenting plan. On February 18, 2020, the parties
submitted a new agreed parenting plan to the trial court. On February 20, 2020, Father
filed his notice of appeal of the trial court’s grant of Mother’s petition for relocation.2
II. Issue
Although Father raises several issues on appeal, we conclude that the sole
dispositive issue is whether the trial court erred in allowing Mother to relocate with the
Child to Houston, Texas.
III. Standard of Review
We review a non-jury case “de novo upon the record with a presumption of
correctness as to the findings of fact, unless the preponderance of the evidence is
otherwise.” Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000) (citing Tenn. R. App. P.
13(d)). The trial court’s conclusions of law are reviewed de novo and “are accorded no
presumption of correctness.” Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d
638, 642 (Tenn. 2008).
1
At the close of Mother’s proof, Father moved for involuntary dismissal of the petition, arguing
that Mother’s letter notice failed to comply with the requirements in the relocation statute. The trial court
found that Father should have brought this issue in the form of a motion to dismiss prior to trial.
Accordingly, the trial court found that Father waived the issue, and it continued to hear Mother’s petition
for relocation.
2
It does not appear that either party appeals the new parenting plan.
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Furthermore, we are “‘mindful that trial courts are vested with wide discretion in
matters of child custody.’” Schaeffer v. Patterson, No. W2018-02097-COA-R3-JV, 2019
WL 6824903, at *4 (Tenn. Ct. App. Dec. 13, 2019) (quoting Johnson v. Johnson, 165
S.W.3d 640, 645 (Tenn. Ct. App. 2004)). Appellate courts will not interfere with a trial
court’s custody determination absent an abuse of discretion. Dungey v. Dungey, No.
M2020-00277-COA-R3-CV, 2020 WL 5666906, at *2 (Tenn. Ct. App. Sept. 23, 2020)
(quoting C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017)). Indeed, this Court may
reverse a custody decision “only when the trial court’s ruling falls outside the spectrum of
rulings that might reasonably result from an application of the correct legal standards to
the evidence.” Dungey, 2020 WL 5666906, at *2 (quoting C.W.H., 538 S.W.3d at 495).
“This Court’s ‘paramount concern’ is the well-being and best interests of the child . . . .”
Schaeffer, 2019 WL 6824903, at *4 (citing Johnson, 165 S.W.3d at 645). Whether
relocation is in a child’s best interest often hinges on the particular facts of each case.
Schaeffer, 2019 WL 6824903, at *4 (citing Johnson, 165 S.W.3d at 645). Because
“custody and visitation determinations often [turn] on subtle factors, including the parents’
demeanor and credibility . . . appellate courts are reluctant to second-guess a trial court’s
decisions.” Johnson, 165 S.W.3d at 645; see also Schaeffer, 2019 WL 6824903, at *4.
Indeed, as “trial courts are able to observe witnesses as they testify and to assess their
demeanor, . . . trial judges [are best suited] to evaluate witness credibility.” Wells v.
Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999) (citing State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct.
App. 1991)); see also Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 733 (Tenn. 2002)
(“As this Court has repeatedly emphasized, a reviewing court must give ‘considerable
deference’ to the trial judge with regard to oral, in-court testimony as it is the trial judge
who has viewed the witnesses and heard the testimony.”). To this end, “appellate courts
will not re-evaluate a trial judge’s assessment of witness credibility absent clear and
convincing evidence to the contrary.” Wells, 9 S.W.3d at 783 (internal citations omitted).
With the foregoing law in mind, we turn to the substantive issue.
IV. Analysis
In July 2018, the Tennessee General Assembly amended Tennessee’s relocation
statute, Tennessee Code Annotated section 36-6-108. According to our research, this Court
has applied the amended statute in only two other cases, Dungey, 2020 WL 5666906 and
Schaeffer, 2019 WL 6824903. In these cases, we explained that the previous relocation
statute “often required courts to conduct an analysis of whether the parents were spending
‘substantially equal intervals of time’ with the child and whether the parent seeking
relocation demonstrated a ‘reasonable purpose’ for the proposed move.” Dungey, 2020
WL 5666906, at *2; see also Schaeffer, 2019 WL 6824903, at *4-5. The amendment
removed the “substantially equal intervals of time” and “reasonable purpose” criteria from
the trial court’s analysis. Dungey, 2020 WL 5666906, at *2. As noted in Dungey, the
current version of the statute “restore[s] a significant amount of discretion to trial courts
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and does not contain a presumption either for or against relocation.” Dungey, 2020 WL
5666906, at *2 n.1.
Under the amended statute, “if a parent who is spending intervals of time with a
child desires to relocate outside the state or more than fifty (50) miles from the other parent
within the state,” the relocating parent shall send notice to the other parent, and such notice
shall include:
(1) Statement of intent to move;
(2) Location of proposed new residence;
(3) Reasons for proposed relocation; and
(4) Statement that absent agreement between the parents or an objection by
the non-relocating parent within thirty (30) days of the date notice is sent by
registered or certified mail in accordance with subsection (a), the relocating
parent will be permitted to do so by law.
Tenn. Code Ann. § 36-6-108(a).3 If the non-relocating parent timely objects to the
relocation, “the relocating parent shall file a petition seeking approval [from the court] of
the relocation.” Tenn. Code Ann. § 36-6-108(b). “The non-relocating parent [then] has
thirty (30) days to file a response in opposition to the petition.” Tenn. Code Ann. § 36-6-
108(b). Upon review of such petition, a trial court must determine whether relocation is in
the child’s best interest. Tenn. Code Ann. § 36-6-108(c)(1). There are several factors for
courts to consider when making this best interest determination. See Tenn. Code Ann. §
36-6-108(c)(2). Below, we review these factors against the trial court’s findings of facts
3
As mentioned briefly, supra footnote 1, at the close of Mother’s proof, Father moved for
involuntary dismissal of her petition for relocation. Specifically, Father argued that Mother’s notice failed
to comply with Tennessee Code Annotated section 36-6-108(a)(4). Although Mother’s notice stated that
Father had a “right to file a petition in opposition to the move within 30 days of the receipt of [the] letter,”
it did not explain that if Father did not object to Mother’s relocation within thirty (30) days that Mother
would be permitted to relocate with the Child by law. The trial court found that Father should have brought
this argument “in the form of a motion to dismiss prior to beginning [the relocation hearing].” As such, the
trial court held that Father waived this issue. Even assuming, arguendo, that the trial court erred in finding
that Father waived this issue, such error was harmless. The purpose of section 36-6-108(a)(4) is to provide
the non-relocating parent with notice that he or she must object to the proposed relocation within thirty (30)
days of the date the notice is sent or the relocating parent will be permitted by law to relocate with the child.
Here, Mother notified Father of her intent to relocate on November 11, 2019. By letter of December 3,
2019, Father objected to the relocation, which prevented Mother’s and the Child’s automatic relocation. In
short, even if Mother’s notice failed to fully comply with the statute, and even if the trial court erred in
finding that Father waived this argument, Father was not prejudiced by these errors because he timely
objected to Mother’s notice to relocate.
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and the proof in the record.4
The nature, quality, extent of involvement, and duration of the child’s relationship with
the parent proposing to relocate and with the non-relocating parent, siblings, and other
significant persons in the child’s life.
Tenn. Code Ann. § 36-6-108(c)(2)(A)
Concerning the first factor, the trial court found that, despite divorcing when the
Child was less than three years old, both parents enjoyed a loving relationship with him.
Specifically, the trial court found that Father was very involved in the Child’s life,
volunteering as a room parent and acting as the Child’s baseball coach. Although Father
was continually present in the Child’s life, the trial court found that Mother was the Child’s
primary residential parent and had “performed the majority of parenting responsibilities
relating to the daily needs of the [C]hild.”5 The trial court further found that the Child
spent “the majority of his time with Mother as overnight visits with Father [were] only
every other weekend.” Aside from the Child’s relationship with the parents, the trial court
placed “significant weight on the involvement of both siblings and other significant persons
in the [C]hild’s life.” Specifically, the trial court found that the Child had no relationship
with his half-sister, Father’s daughter from a previous relationship. Furthermore, the trial
court found that Father may have fathered another daughter (Father was unsure of her
parentage), but the Child had no relationship with her. The trial court also found that Father
was estranged from his parents. Conversely, the trial court found that “[t]he testimony of
Mother, Father, and [Ms. Aglikin, the maternal grandmother,] establish[ed] that there [was]
a significant relationship between [the Child] and his [maternal] grandparents.” The trial
court found credible Ms. Aglikin’s testimony that she and her husband intended to move
to Houston to support Mother and the Child should Mother be allowed to relocate.
Ultimately, the trial court found that this first factor favored relocation.
On appeal, Father argues that “it is speculative at best” whether the maternal
grandparents would move to Houston with Mother and the Child. As discussed, supra, we
defer to the trial court concerning questions of witness credibility, and we will not re-
evaluate such findings absent clear and convincing evidence to the contrary. See Wells, 9
S.W.3d at 783; Johnson, 165 S.W.3d at 645; see also Schaeffer, 2019 WL 6824903, at
*4. Because Ms. Aglikin testified that she and her husband would move to Houston to
support Mother and the Child, we cannot opine that the trial court erred in finding her
testimony credible as there was no clear and convincing evidence to the contrary. Father
also alleges that the trial court placed more weight on the Child’s relationship with his
grandparents than on the Child’s relationship with Father in determining that this factor
4
In his appellate brief, Father addressed the trial court’s findings concerning only Tennessee Code
Annotated section 36-6-108(c)(2)(A) and (B). Nevertheless, we address each factor in the statute, as did
the trial court.
5
The trial court made this finding under section 36-6-108(c)(2)(H), but we note that these facts are
also pertinent here.
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favored relocation. We disagree. As the trial court stated in its order, “[I]t [was] obvious
to [the trial court] that both parents love[d] and want[ed] what [was] best for their child,
[but] the [trial court could not] help but acknowledge the obvious relationship with [the
Child’s] maternal grandparents.” The trial court did not substitute the Child’s relationship
with the grandparents for the Child’s relationship with Father. Rather, it considered the
Child’s relationship with “other significant persons in the child’s life,” i.e. the maternal
grandparents, as the statute instructs. See Tenn. Code Ann. § 36-6-108(c)(2)(A).
We cannot conclude that the trial court abused its discretion with regard to this
factor. It is clear from the record that Mother performed the majority of parenting
responsibilities, and that the Child spent the majority of his time with her. The record also
demonstrates that, while Father was very involved in the Child’s life, he did not share the
same loving relationship with his other child(ren) or his parents. As such, the Child never
established relationships with his paternal relatives. It appears that the only close familial
relationship the Child developed (other than with his parents) was his relationship with the
maternal grandparents. Indeed, Mother, Father, and Ms. Aglikin each testified that Ms.
Aglikin often visited Memphis, for weeks at a time, to help care for the Child, and that she
would also care for the Child during Father’s visitation if both parents were unavailable.
Accordingly, it is clear that the Child’s relationship with his maternal grandparents was
both “significant” and beneficial to the Child. From the evidence, we cannot surmise that
the trial court’s conclusion that this factor favored relocation “falls outside the spectrum of
rulings that might reasonably result from an application of the correct legal standards to
the evidence.” Dungey, 2020 WL 5666906, at *2 (quoting C.W.H., 538 S.W.3d at 495).
The age, developmental stage, needs of the child, and the likely impact the relocation
will have on the child’s physical, educational, and emotional development, taking into
consideration any special needs of the child.
Tenn. Code Ann. § 36-6-108(c)(2)(B)
The trial court made several findings concerning this factor before concluding that
it also favored relocation. The trial court first focused on the Child’s emotional and
behavioral needs. As an initial matter, the record shows that the Child was eight years old
at the time of trial, was on the autism spectrum, and had been diagnosed with Attention
Deficit Hyperactivity Disorder (“ADHD”). Mother testified that, over the last several
years, she sought the expertise of numerous doctors and behavioral therapists to develop a
comprehensive treatment plan for the Child’s autism and ADHD. She testified that such
treatment included medication to help with his hyperactivity and impulse control as well
as social skills classes to learn how to appropriately interact with other children. The trial
court found that, despite Mother’s efforts, Father initially rejected the Child’s ADHD
diagnosis and refused to administer the Child’s prescribed medications. The trial court
further found that, even after Father was ordered to comply with the Child’s treatment
regimen, Father remained inconsistent in his administration of the Child’s medications,
which concerned the trial court. Ironically, although Father disputed the Child’s ADHD
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diagnosis, he cited that diagnosis as a reason for the trial court to deny Mother’s relocation
petition. Father called Dr. Leite, a clinical child psychologist, as an expert witness to testify
that relocation would be particularly disruptive to the Child and would “exacerbate” his
ADHD and autism symptoms. The trial court was not persuaded by Dr. Leite’s testimony.
The trial court noted that the Dr. Leite did not interview Mother or the Child and relied
exclusively on his review of the Child’s medical records as the basis for his opinion that
relocation would exacerbate the Child’s ADHD and autism symptoms. In view of its
concern with Dr. Leite’s testimony, the trial court focused primarily on the parties’
testimony concerning the Child’s needs. Mother testified that the Child’s “behavior ha[d]
reached a level of more consistency[, and that] [h]e ha[d] outgrown things that [he was]
struggling with” in the previous months and years. She also testified that the doctors
expected the Child’s behavior to become even more consistent as he matured. Concerning
relocation, Mother testified that she believed the Child would be “scared, nervous, and
excited” to relocate. In contrast, Father testified that he believed the Child would be
“devastated” to move because “he doesn’t handle change well.” Despite this testimony,
Father admitted that the Child’s behavioral issues were indeed improving. In its order, the
trial court found that the parties “stated multiple times that the [C]hild [was] not ‘special
needs’ but instead experience[d] behavioral issues, and ha[d] made great progress with
those issues.” In making this finding, it appears that the trial court implicitly found
Mother’s testimony concerning the Child’s behavioral improvements and the likely effect
of relocation to be more credible than Father’s. As discussed, supra, we defer to the trial
court concerning its credibility determinations, including those that are implicit. Wells, 9
S.W.3d at 783; see also In re C.M., No. E2018-02108-COA-R3-PT, 2019 WL 3812421,
at *6 (Tenn. Ct. App. Aug. 14, 2019).
Having addressed the Child’s behavioral and emotional needs, the trial court turned
to address the likely impact that relocation would have on the Child’s educational
development. As an initial matter, the trial court found that the Child was of above average
intelligence and had been accepted into gifted and talented programs at his current school,
Riverwood Elementary. Concerning Riverwood, Mother testified that neither parent
wanted the Child to attend the school, but it was the only educational option available at
the time. The evidence shows that the parties would have preferred that the Child attend
Catholic school, but the preferred Catholic school lacked sufficient resources to support
the Child’s behavioral needs. Mother testified that if the Child could not attend a Catholic
school she would prefer that he attend one of the public schools in the neighboring suburbs,
but she could not afford to live in those school districts. Father testified that he was happy
with Riverwood and wanted the Child to continue his education there. In addressing the
parties’ conflicting testimony, the trial court found Mother’s testimony more credible
because “Father [had] expressed displeasure with [Riverwood] through texts and
comments only weeks prior to Mother’s petition [for relocation] being filed.” Accordingly,
the trial court found that Father’s approval of the school was “likely [the] result of the
litigation before [the trial court].” We again reiterate that appellate courts “will not re-
evaluate a trial judge’s assessment of witness credibility absent clear and convincing
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evidence to the contrary.” Wells, 9 S.W.3d at 783. Here, text messages entered into
evidence support the trial court’s finding that Father was unhappy with Riverwood as late
as October 7, 2019, a few weeks before Mother notified Father of her intent to relocate.
Accordingly, there is evidence to support the trial court’s finding that Mother’s testimony
that Father was unhappy with Riverwood was more credible than Father’s testimony that
he was pleased with the school.
Mother also testified concerning potential schools for the Child in the Houston area.
Specifically, Mother testified that if she were allowed to relocate, she would move to
Sienna Plantation, a suburb north of Houston, because the neighborhood had a highly-rated
school district.6 Mother testified that, “The schools in that district are between eights and
6
Father argues that the trial court erred in allowing the following testimony from Mother over his
objection:
Mother’s Attorney: Have you investigated the schools that [the Child] would attend in
[Houston] if the judge would allow you to relocate?
Mother: I have. And one of the reasons –
Father’s Attorney: Same objection. No foundation for this testimony. She’s not an expert
of education.
The trial court: No, but if she’s looked at schools I think she can testify as to that. . . .
Overruled.
Mother: I have looked at schools. And one of the reasons I looked at Sienna Plantation is
because it’s a highly-rated school district. The schools in that district are between eights
and tens according to GreatSchools, which is the same thing we use here in Memphis.
Mother’s Attorney: We’ll be talking about this in a second, but how is the school rated
that [the Child] attends presently?
Mother: It is a 5 out of 10.
Mother’s Attorney: And these schools he’ll be going to are eight to ten you said?
Mother: Correct.
We review a trial court’s evidentiary rulings under an abuse of discretion standard. See Mercer v.
Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004).
As an initial matter, although Father argues in his appellate brief that the foregoing testimony was
hearsay, it is unclear from the transcript what type of objection Father was attempting to lodge at trial.
According to the transcript, Father first stated that he was making the “same objection” as his previous
objection, which was for hearsay. However, Father then proceeded to argue that there was no foundation
for Mother’s testimony and that she was “not an expert of education,” ostensibly arguing that Mother could
not provide expert testimony on educational issues. Regardless of the ground for the objection, it is clear
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tens according to GreatSchools,” a website that compares and rates schools in the United
States based on test scores and other data. Concerning Riverwood’s rating, Mother testified
that it was rated only a five out of ten. Although Father’s testimony confirmed that
Riverwood was rated a five out of ten, he argued that this rating did not include the optional
program in which the Child was enrolled. Father presented no evidence concerning the
Houston schools.
Although there was evidence that the Child struggled with change due to his
behavioral issues, the record also demonstrates that these issues have greatly improved
with treatment, and that the Child’s behavior is stabilizing. The record further shows that
neither parent was happy with the Child’s education at Riverwood Elementary, that the
Child’s educational prospects in Memphis were limited, and that he would likely be
afforded better educational opportunities in Houston. For the foregoing reasons, we cannot
conclude that the trial court abused its discretion in finding that this factor favored
relocation.
The feasibility of preserving the relationship between the non-relocating parent and the
child through suitable visitation arrangements, considering the logistics and financial
circumstances of the parties.
Tenn. Code Ann. § 36-6-108(c)(2)(C)
that the trial court did not err in overruling it. Here, the question posed to Mother was whether she had
investigated schools in the Houston area that the Child would attend; Mother answered that question in the
affirmative, and then Father objected. Mother’s testimony affirming that she had investigated the schools
was neither expert testimony nor hearsay. See Tenn. R. Evid. 702, 801(c). Rather, it was Mother’s
declaration as to her own actions, i.e., that she had investigated the schools in Houston. Thus, we cannot
conclude that the trial court abused its discretion in overruling Father’s objection. We note that, in his
appellate brief, Father appears to take issue with Mother’s subsequent testimony, to-wit: “one of the reasons
I looked at Sienna Plantation [was] because it’s a highly-rated school district.” Indeed, Father argues that
the trial court relied on this allegedly inadmissible testimony when it found that “the schools available to
[the [C]hild] [in Houston] would be high[-]ranking and beneficial to the [C]hild.” Notably, Father failed
to renew his objection to this portion of Mother’s testimony. As we have explained before,
[o]bjections to the introduction of evidence must be timely and specific. They must be
made contemporaneously with the objectionable testimony, and they must state the specific
ground on which they are based. Therefore, they cannot be raised for the first time on
appeal.
Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 702 (Tenn. Ct. App. 1999) (internal citations omitted). Father’s
failure to object to Mother’s subsequent testimony constituted his waiver of any error concerning this
portion of her testimony. See Ray v. Richards, No. M2000-01808-COA-R3-CV, 2001 WL 799756, at *5
(Tenn. Ct. App. July 17, 2001) (“This Court is of the opinion that Plaintiff's failure
to renew his objection constituted a waiver of any error by the court . . . .”); State ex rel. Com’r of Dep’t
of Transp., For & On Behalf of Said Dep’t v. Rummage, No. 01A01-9011CV00402, 1991 WL 122885,
at *5 (Tenn. Ct. App. July 10, 1991).
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Regarding this factor, the trial court found:
Relocation to Houston, TX from Memphis, TN is no small trip. The [c]ourt
heard testimony that the trip is a short flight on Southwest Airlines[.] The
[c]ourt did not hear testimony regarding the time to get to the airport, and a
firm plan for traveling with the [C]hild. There was testimony from Mother
that she hoped that she and Father could work together to find a way to make
that work. Mother also proposed larger blocks of time with Father. Mother
seeks to move to Houston for a greater financial position, but the Court
cannot see that Father will be able to maintain the same relationship that he
now has with the [C]hild upon a move over 500 miles away from his current
home. This factor weighs in favor of Father’s opposition to relocation.
There was little proof offered at the hearing concerning the logistics of how Father
and the Child would maintain a long-distance relationship. Mother testified that there were
direct flights every day between Memphis and Houston, and that the flights were under
two hours. She also testified that she was willing to give Father most, if not all, holidays
with the Child so that Father and the Child could have longer periods of time together.
Despite this testimony, the trial court found that Father and the Child would be unable to
maintain the same relationship they had prior to relocation. As discussed further, infra, it
is axiomatic that the Child’s relocation to a city hundreds of miles away from Father would
alter the nature of the Child’s relationship with Father. While Father would certainly be
able to continue to foster his relationship with the Child at a distance, if Mother is allowed
to relocate, it simply would not be possible for Father and the Child to maintain the type
of relationship they now enjoy in Memphis. Accordingly, the trial court did not abuse its
discretion in finding that this factor favored Father’s opposition to relocation.
The child’s preference, if the child is twelve (12) years of age or older. The court may
hear the preference of a younger child upon request. The preference of older children
should normally be given greater weight than those of younger children.
Tenn. Code Ann. § 36-6-108(c)(2)(D)
The trial court did not consider the Child’s preference because he was under 12
years of age at the time of the hearing. As such, we turn to the next factor.
Whether there is an established pattern of conduct of the relocating parent, either to
promote or thwart the relationship of the child and the non-relocating parent.
Tenn. Code Ann. § 36-6-108(c)(2)(E)
The trial court found that there was little evidence presented concerning this factor,
but it ultimately concluded that neither party attempted to thwart the other’s relationship
with the Child. Turning to the record, both parties testified that it was important for the
other parent to be involved in the Child’s life, and the trial court found this testimony
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credible. However, Father called Chris Jenkins, Mother’s ex-fiancé, as a witness to testify
to Mother’s alleged statements that she desired to move to keep the Child away from
Father. Turning to the transcript, Mr. Jenkins testified that Mother commented that she
“felt like if [Father] moved that he would not have any interaction with [the Child], that he
would drop out of the picture.” On this Court’s review, this was the only testimony elicited
related to Mother’s alleged attempt to thwart Father’s relationship with the Child. Contrary
to Mr. Jenkins’ testimony, Mother testified that, although she had considered employment
in Charleston, South Carolina, Weston, Florida, and San Antonio, Texas, she never pursued
these opportunities because travel to these locations from Memphis was inconvenient and
expensive. Indeed, Mother testified that she would only move to a new city if Father and
the Child could easily travel to see each other for visits because it was very important for
the Child “to have [Father] in his life.”
The trial court found Mother’s testimony credible and placed “little to no weight”
on Mr. Jenkins’ testimony. As discussed, supra, because the trial court is able to observe
witnesses as they testify and assess their demeanor, the trial court is best suited to evaluate
witness credibility. Wells, 9 S.W.3d at 783. Accordingly, we give considerable deference
to the trial court’s determination to give “little to no weight” to Mr. Jenkins’ testimony and
to find Mother’s testimony credible. See Richards, 70 S.W.3d at 733. Based on the
foregoing evidence, we cannot conclude the trial court abused its discretion with regard to
this factor.
Whether the relocation of the child will enhance the general quality of life for both the
relocating parent and the child, including, but not limited to, financial or emotional
benefit or educational opportunity.
Tenn. Code Ann. § 36-6-108(c)(2)(F)
With regard to this factor, the trial court found:
Mother testified in detail as to the financial benefit to her, and thus [the
Child], of this move[.] Much discussion was had by the attorneys as to the
cost of living difference in Houston as opposed to Memphis, but other than
an unresponsive answer by Mr. Jenkins, the Court heard no persuasive
testimony that this move would not be of financial benefit. Further, the fact
that the child’s maternal grandparents will be present and alleviate the need
for after care is in itself a great financial benefit. Mother testified that she
requests this relocation not only for her benefit but the [C]hild’s, and that in
bettering herself, she will be better able to provide for [the Child]. The
[c]ourt finds that this factor weighs in favor of Mother’s request [for
relocation].
The record supports the trial court’s findings. Mother testified that relocation would
provide a significant financial benefit. Specifically, she testified that her income at the
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time of the hearing was $81,000.00 per year. As Director of Transplant Financial Services
at the Houston Medical Center, Mother’s base salary would be $122,000.00 per year with
an annual ten percent bonus.7 Additionally, the Houston job offered a $25,000.00
relocation package and annual merit increases. Accordingly, Mother’s first year salary
would be $147,000.00 (not including the ten percent bonus), a substantial increase from
her salary in Memphis. Further, as discussed, supra, the record supports the trial court’s
finding that the maternal grandmother would provide after school care for the Child, which
financially benefits Mother.
Mother also testified concerning the emotional benefits relocation would provide.
Specifically, she testified that the Director of Transplant Financial Services position would
be her “dream job” and would allow her to return to a field about which she is passionate.
Mother testified that she enjoyed previous employment as a transplant manager at
Methodist University Hospital in Memphis for four years before being laid off during
restructuring. Although transplant operations are her passion, Mother was unable to find
another job in that field in Memphis. She testified that, at the time of trial, she was
employed as the Director of Development for the University of Tennessee College of
Medicine, that her job mainly involved fundraising for student scholarships, and that she
had “zero [job] satisfaction” there. Concerning the offer of employment in Houston,
Mother testified:
This is an incredible opportunity because it gives me the opportunity to build
on what I know and then learn more. They’re giving me a chance to learn
7
Father argues that Mother’s testimony regarding her compensation package for the Director of
Transplant Financial Services position constituted inadmissible hearsay evidence. At trial, Mother was
asked “what were the terms [the Houston Medical Center] offered in way of compensation?” Mother began
her response with, “They offered me,” at which point Father’s counsel objected to her testimony as hearsay.
The trial court overruled Father’s objection, and Mother subsequently testified:
The offer is [$]122,000 a year. It comes with a $25,000 relocation package. It also comes
with a bonus of 10 percent of the base salary. And then it also comes with an annual merit
increase.
On review, we conclude that the trial court did not err in admitting the foregoing testimony because it was
not hearsay. Hearsay is defined as “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).
Where a witness testifies to an objective fact based on that witness’ firsthand knowledge of the fact, such
testimony does not constitute hearsay. See State v. Kelly, No. M2001-01054-CCA-R3-CD, 2002 WL
31730874, at *17 (Tenn. Crim. App. Dec. 5, 2002); 31A C.J.S. Evidence § 381. In the disputed testimony,
Mother was not relaying an out-of-court statement made by a third party. Rather, she was testifying to
objective facts within the scope of her personal knowledge, i.e., the terms of her compensation package (a
salary of $122,000.00, a $25,000.00 relocation package, a 10% bonus, and an annual merit increase).
Because these statements are based on Mother’s personal knowledge of her compensation package, such
testimony is not hearsay, and the trial court did not err in overruling Father’s objection.
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about heart and lung [transplants] and all that, and I’ve never had exposure
to that. So long term for my career, it makes me more robust. It lets me do
more in the field of transplant. It lets me apply for higher positions so that
my career doesn’t stay stagnant.
It is clear from Mother’s testimony that relocation would enhance her quality of life
both financially and emotionally, but Mother also testified as to how relocation would
improve the Child’s quality of life. When asked why it would be in the Child’s best interest
to relocate, Mother testified:
. . . Because no single mom has ever said, I just want to make it and I don’t
want to have all the resources that my child needs as he progresses in life.
It’s my financial responsibility to take care of [the Child], and that’s what
I’m trying to do. And by moving to Houston, he would have access to better
school districts where I can actually afford to live.
And I think that’s really important. It’s critically important because in my
current place in Memphis I can’t do that. He has to go to a school that’s zoned
a five because that’s what I can comfortably afford. I have to plan for [the
Child]’s future, and that is my job. I need every opportunity to be able to do
that. And in Memphis, there is not much that I can do anymore.
Although Mother receives child support from Father, as the primary residential parent,
Mother has borne (and would continue to bear) the majority of parenting responsibilities,
financial and otherwise. It is obvious that an increase in Mother’s income, which would
only occur if Mother and the Child relocated, would raise both Mother’s and the Child’s
standard of living and create new opportunities for the Child. Most notably, as the trial
court found and as discussed supra, the increase in Mother’s income would allow Mother
and the Child to live in a neighborhood with highly-rated school districts. As such, the
Child would be afforded educational opportunities in Houston that are not available in
Memphis. This fact alone demonstrates that relocation would enhance the Child’s “general
quality of life.” Tenn. Code Ann. § 36-6-108(c)(2)(F). The record supports the trial court’s
finding that this factor favored relocation.
The reasons of each parent for seeking or opposing the relocation.
Tenn. Code Ann. § 36-6-108(c)(2)(G)
The trial court made very limited findings concerning this factor, to-wit:
It is obvious to this [c]ourt why Father opposes relocation. The reasons stated
are simply put, a change in the relationship as it is[.] Father will not be able
to see the [C]hild as often, and not be able to be involved in day to day
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activities[.]
This factor weighs in favor of Father’s position.
Indeed, the Child’s relocation to Houston would dramatically alter Father’s visitation with
the Child. As the trial court found, Father’s reasons for opposing the relocation are
obvious—he would be unable to maintain the same level of day-to-day involvement in the
Child’s life. Although Mother’s reasons for relocating are certainly valid, we cannot
conclude that the trial court erred in finding that this factor weighed against relocation.
Any other factor affecting the best interest of the child, including those enumerated in
§ 36-6-106(a).
Tenn. Code Ann. § 36-6-108(c)(2)(H)
The trial court made only brief findings concerning any additional factors affecting
the Child’s best interest and noted that “the majority of factors addressed in [its] [o]rder . .
. would fall under [a best interest] analysis.” Although the trial court affirmed that Father
was very involved in the Child’s life, it ultimately found that Mother “performed the
majority of parenting responsibilities relating to the daily needs of the [C]hild.”
Accordingly, the trial court found that this factor favored relocation. For many of the
foregoing reasons, this finding is supported by the record and bolsters the trial court’s
finding that relocation is in the Child’s best interest.
As the trial court stated in its order, “[a] decision whether . . . to allow a move for a
parent with a child over objection of the other [parent] is a difficult task.” Ultimately, the
trial court found that relocation is in the Child’s best interest. On appeal, we are prevented
from second guessing the trial court’s decision to allow relocation unless we conclude the
trial court abused its discretion. See Dungey, 2020 WL 5666906, at *2; Schaeffer, 2019
WL 6824903, at *4. Here, the trial court methodically analyzed each relocation factor
against the evidence. The evidence demonstrates that relocation will provide the Child
with an increased standard of living, better educational opportunities than what he would
have in Memphis, and the additional support of his maternal grandparents. Although the
trial court noted that the Child’s relocation to Houston would undoubtedly alter the nature
of the Child’s relationship with Father, the evidence shows that the two would still be able
to foster a meaningful relationship, albeit from different cities. This Court does not doubt
Father’s unwavering commitment to the Child, but based on the trial court’s order and the
entire record, we cannot conclude that the trial court abused its discretion in finding that
relocation is in the Child’s best interest.
V. Conclusion
For the foregoing reasons, we affirm the trial court’s final order. The case is
remanded for such further proceedings as are necessary and consistent with this opinion.
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Costs of the appeal are assessed to the Appellant, Jimmy Franklin, for all of which
execution may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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