Jennifer Gaby v. Tony Gaby

11/17/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 16, 2022 Session
JENNIFER GABY v. TONY GABY
Appeal from the Circuit Court for Greene County
No. 15CV259TJW Thomas J. Wright, Judge
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No. E2022-00217-COA-R3-CV
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This is the second appeal of this action concerning the father’s petition to modify the
permanent parenting plan for his two children. In the first appeal, we remanded the case
back to the trial court for submission of additional findings of fact and conclusions of law.
The father now appeals the decision on remand. We vacate the order of the trial court and
remand for entry of a new permanent parenting plan for the remaining minor child.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R. FRIERSON,
II and KRISTI M. DAVIS, JJ., joined.
Crystal G. Jessee, Greeneville, Tennessee, for the appellant, Tony Gaby.
Joseph O. McAfee, Greeneville, Tennessee, for the appellee, Jennifer Gaby.
OPINION
I. BACKGROUND
Tony Gaby (“Father”) and Jennifer Gaby (“Mother”) married in 2003. Two children
were born of the marriage, “P.” and “A.” (collectively “the Children”), in November 2004
and July 2007, respectively. The parties were divorced by order of the trial court on August
11, 2017.
The divorce decree incorporated a permanent parenting plan, in which Mother was
named primary residential parent of the Children. The trial court limited Father’s co-
parenting time to 52 days per year as a result of his “apparent lack of an emotional
attachment to the Children, his anger management issues, and his unusual work schedule,
which made it difficult for him to spend time with the Children.” Gaby v. Gaby, No.
E2020-00790-COA-R3-CV, 2021 WL 3719359, at *1 (Tenn. Ct. App. Aug. 23, 2021).
On August 30, 2018, Father petitioned the trial court to modify the permanent
parenting plan, asserting that he had taken significant steps to improve himself and his
relationship with the Children. He requested equal co-parenting time. Mother moved for
dismissal of the petition. During the pendency of the hearing, Father’s relationship with P.
deteriorated to the point that she refused to cooperate with his co-parenting time. Her
refusal was primarily related to Father’s alleged favoritism toward her sister and his
relationship with his live-in girlfriend, referred to as “Michelle.”
The case proceeded to a hearing on December 2, 2019, at which multiple witnesses
testified. Father testified that he changed his schedule to work Monday through Friday
from 1 a.m. to 1 p.m., allowing him to be with the Children during the weekday after school
and on the weekends. He admitted that if the Children stayed with him during the week,
then Michelle or the paternal grandparents would supervise the Children at night and get
them ready for school the next morning.
Father stated that he worked with a counselor to introduce Michelle to the Children.
He claimed that they responded well to her and that A. had formed a healthy relationship
with her. He admitted that he has recently had difficulty maintaining a healthy relationship
with P. and that she now refuses to come with him for his co-parenting time or even answer
his telephone calls. He claimed that Mother failed to encourage P. to maintain the
relationship and that Mother also refused to attend counseling with them, stating that she
was not the problem in the relationship.
P. testified that she did not feel comfortable with Father and that he made her feel
guilty instead of working to improve the relationship. She agreed that he attended her
extracurricular activities but claimed that he only attended to appease the trial court. She
further claimed that she witnessed Father and Michelle fighting.
A. agreed that she mostly enjoyed her time with Father and Michelle but admitted
that she had also witnessed disagreements between them. She stated that her main concern
with Father was his treatment of her sister and her sister’s reluctance to visit. She explained
that she did not want to hurt anyone and felt “caught in the middle.”
Mother testified that the Children are doing well in school and are both involved in
extracurricular activities. She confirmed that A. cooperated with Father’s co-parenting
time and sometimes stayed longer at his house than scheduled. She stated that she had
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some concerns about the clothing that A. purchased while with Father and that she had also
overheard a heated discussion between Father and Michelle. She explained that she was
talking to A. on the telephone when she suddenly heard loud yelling in the background.
She also expressed concerns regarding Father’s ability to provide structure for the Children
during the weekday when homework is required or when they need to arrive in a timely
manner for their extracurricular activities. She stated that despite their differences, they
remain civil and work well dividing their time with the Children.
Mother stated that P. had more difficulty with Father’s co-parenting time. She
explained that P. expressed her hesitation about her time with him and sometimes refused
to cooperate. Mother denied advising P. not to attend but asserted that she could also not
make her attend. She was concerned that forcing visitation would damage their
relationship and increase P.’s anxiety in the situation.
Following the hearing, the trial court entered an order finding that there had been a
material change of circumstance based upon Father’s new schedule that increased his
availability for the Children and Mother’s failure to facilitate Father’s relationship with the
Children. The court failed to issue specific findings of fact in support of its decision that a
modification of the current plan was in the best interest of the Children. Rather, the court
offered a cursory explanation that the “best interest” factors remained as previously found
in the prior court hearing. The court modified the plan to increase Father’s co-parenting
time from 52 to 90 days, with the added time occurring in the summer months.
Father appealed to this court, arguing that the trial court failed to issue sufficient
findings of fact and requesting equal co-parenting time with the Children. Neither party
disputed the trial court’s conclusion that there had been a material change of circumstances.
A panel of this Court remanded the case to the trial court for entry of an order containing
required findings of fact and conclusions of law necessary for meaningful appellate review.
Gaby, 2021 WL 3719359, at *1.
Upon remand, the trial court held a hearing on January 14, 2022. The parties were
permitted to present arguments on the best interest analysis. Father’s counsel requested
further specificity on the trial court’s best interest findings and further explanation on the
calculation of total days of parenting time. The parties provided the trial court with copies
of their appellate briefs, which contained their analyses of the best interest factors set forth
in Tennessee Code Annotated section 36-6-106(a).
By order entered January 20, 2022, the trial court set forth detailed findings on the
best interest factors and concluded that the children’s best interest would be served by
modifying the parenting plan to provide “a week about schedule during the summer
months, continuing the every other weekend schedule during the school year, and having
an equal split of the holidays and vacation times.” The trial court noted that this order
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supplemented its previous April 3, 2020, order. The parenting time remained the same: 90
days to Father and 275 to Mother. Father filed this timely appeal.
II. ISSUE
The sole and dispositive issue on appeal is as follows: Whether the trial court erred
as a matter of law by failing to maximize Father’s time with the Children, providing him
with only 90 days of co-parenting time.
III. STANDARD OF REVIEW
“A trial court’s determinations of whether a material change in circumstances has
occurred and whether modification of a parenting plan serves a child’s best interests are
factual questions.” Armbrister v. Armbrister, 414 S.W.3d 684, 692 (Tenn. 2013) (citing In
re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 2007)). Therefore, “appellate courts must
presume that a trial court’s factual findings on these matters are correct and not overturn
them, unless the evidence preponderates against the trial court’s findings.” Id.; see also
Tenn. R. App. P. 13(d). Likewise, trial courts have “broad discretion in formulating
parenting plans” because they “are in a better position to observe the witnesses and assess
their credibility.” C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017) (citing Armbrister,
414 S.W.3d at 693). On appeal, we review a trial court’s decision regarding parenting
schedules for an abuse of discretion. Armbrister, 414 S.W.3d at 693 (citing Eldridge v.
Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001)). “An abuse of discretion occurs when the trial
court . . . appl[ies] an incorrect legal standard, reaches an illogical result, resolves the case
on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an
injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court
abuses its discretion in establishing a residential parenting schedule “only when the trial
court’s ruling falls outside the spectrum of rulings that might reasonably result from an
application of the correct legal standard to the evidence found in the record.” Eldridge, 42
S.W.3d at 88.
IV. DISCUSSION
The trial court found and the parties agreed on appeal that a material change in
circumstances had occurred that necessitated a change in the residential schedule.
Accordingly, the trial court’s opinion on remand and our review on appeal concerns
whether the modification itself was in the best interest of the Children pursuant to
Tennessee Code Annotated section 36-6-106(a). Father argues on appeal that the trial court
failed to fashion a plan that would permit each parent’s maximum participation in the
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Children’s lives. He requests equal co-parenting time and suggests that such an
arrangement would be in the best interest of the Children.
The best interest determination “is a fact-sensitive inquiry.” Steakin v. Steakin, No.
M2017-00115-COA-R3-CV, 2018 WL 334445 at *5 (Tenn. Ct. App. Jan. 9, 2018). The
determination “‘does not call for a rote examination of each of [the relevant] factors and
then a determination of whether the sum of the factors tips in favor of or against the
parent.’” Id. (quoting In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)). Rather,
“‘[t]he relevancy and weight to be given each factor depends on the unique facts of each
case.’” Id. The trial court is directed to consider the following factors when conducting
the best interest analysis:
(1) The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
(2) Each parent’s past and potential for future performance of parenting
responsibilities[;]
(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined
as the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent
and the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child;
(9) The child’s interaction and interrelationships with siblings, other
relatives and step-relatives, and mentors, as well as the child’s involvement
with the child’s physical surroundings, school, or other significant activities;
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
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(11) Evidence of physical or emotional abuse to the child, to the other
parent or to any other person. The court shall, where appropriate, refer any
issues of abuse to juvenile court for further proceedings;
(12) The character and behavior of any other person who resides in or
frequents the home of a parent and such person's interactions with the child;
(13) The reasonable preference of the child if twelve (12) years of age or
older . . .;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-106(a)(1)–(15) (emphasis added).1
As with all cases, we recognize that time has marched on during this litigation. P.
attained the age of majority during the pendency of this appeal in November 2022. She is
no longer subject to the parameters of the trial court’s permanent parenting plan. Our
review of the opinion on remand reveals that the trial court placed great weight on the
sibling relationship in determining the residential schedule in accordance with the best
interest of both children. The court referenced P.’s strained relationship with Father in its
consideration of Factors 1, 6, 9, 12, 13, and 14. Citing Factor 15, the court further found
that Father evidenced significant effort in his attempt to improve his parental role but that
any progress was stalled due to P.’s feelings toward him. The court explained throughout
the opinion that A. desired more time with Father at one point but that she now presented
as a reluctant participant, in part, due to her allegiance to the sibling relationship.
With these considerations in mind, we hold that remand, once again, is appropriate
for the trial court to solely consider the best interest of A., the only remaining minor child
subject to the parameters of a permanent parenting plan. Upon remand, we encourage the
parties to work together with the trial court to fashion a residential schedule that is in the
minor child’s best interest and that maximizes each parent’s participation in her life for the
remainder of her adolescence.
1
Effective March 18, 2022, the General Assembly has amended Tennessee Code Annotated § 36-
6-106(a) by adding a new subdivision for the court’s consideration, requiring the court to consider 16
factors. See 2022 Tenn. Pub. Acts, Ch. 671 § 1 (H.B. 1866). However, because the petition in this case
was filed before the effective date of the amendment, the statutory best interest factors provided in the prior
version of the statute apply here. See, e.g., In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).
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V. CONCLUSION
For the reasons stated above, we vacate the decision of the trial court. The case is
remanded for entry of a revised permanent parenting plan for the remaining minor child.
Costs of the appeal are taxed equally to the parties, Jennifer Gaby and Tony Gaby.
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JOHN W. MCCLARTY, JUDGE
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