Bastone v. Bastone
| Decision Date | 30 April 2021 |
| Docket Number | No. E2020-00711-COA-R3-CV,E2020-00711-COA-R3-CV |
| Parties | KIMBER KEPLINGER BASTONE v. JAMES MICHAEL BASTONE |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Hamilton County
This is a consolidated appeal from judgments entered upon two post-divorce petitions filed by the mother, seeking to modify the parties' permanent parenting plan to require the father to pay an upward deviation in child support to fund private school tuition at Baylor School in Chattanooga ("Baylor"), first for the parties' eldest of three children in one petition and then for the parties' middle child in the second petition. The father filed an answer objecting to the expense of Baylor tuition given the parties' respective financial situations. He also filed a counter-petition alleging that the mother had violated the joint decision-making provision in the permanent parenting plan by unilaterally enrolling the eldest child at Baylor. Although both parties sought essentially equal co-parenting time, the father also requested modification of the permanent parenting plan to designate him as the primary residential parent. Each party requested sole educational decision-making authority. Following a bench trial as to the first petition, the trial court, inter alia, approved the parties' stipulation that a material change in circumstance had occurred since entry of the prior order; maintained the mother as the primary residential parent; maintained joint decision-making authority; found that although the mother had unilaterally enrolled the eldest child at Baylor, it was in the child's best interest to remain at the school; and found that an upward deviation in the father's child support obligation was appropriate to fund sixty percent of the Baylor tuition for the eldest child. During a subsequent bench trial on the mother's second petition, the Baylor financial aid director, who had testified during the first trial concerning typical financial aid awards, testified that neither of the children at issue had been awarded financial aid for the upcoming year. The trial court sua sponte amended its prior order to reduce the upward deviation in the father's child support obligation to fifty percent of the Baylor tuition for the eldest child and to eliminate the father's responsibility for any extracurricular expenses at Baylor. The trial court entered a separate judgment dismissing the mother's petition as to the middle child but including a provision that the mother would be allowed to enroll the middle child at Baylor or another private school provided that the father was notresponsible for any portion of the tuition. The trial court incorporated its rulings into a modified permanent parenting plan that included a prohibition against enrollment of the third child in private school absent agreement of the parties or a subsequent court order. The father has appealed both judgments. Having determined that the upward deviation in child support for the eldest child should be capped at no more than fifty percent of the 2020-2021 Baylor tuition amount testified to at the time of trial, we modify the deviation to equal the lesser of (a) $13,200.00 annually or (b) fifty percent of the current annual Baylor tuition each year for the eldest child after deduction of proceeds from scholarships, grants, stipends, or other cost-reducing programs received by or on behalf of the child. We affirm the trial court's judgments in all other respects and deny the father's request for attorney's fees on appeal.
Sandra J. Bott, Chattanooga, Tennessee, for the appellant, James Michael Bastone.
Jennifer H. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellee, Kimber Keplinger Bastone.
OPINIONThe petitioner, Kimber Keplinger Bastone ("Mother"), and the respondent, James Michael Bastone ("Father"), were married in May 2005 and were divorced by final decree entered in April 2013 by the Hamilton County Circuit Court ("trial court"). The trial court also entered a permanent parenting plan order at that time concerning the parties' three children: Stella, who at the time of the divorce judgment was six years of age; Amy, who was four; and Joseph, who was two (collectively, "the Children").
Upon Mother's subsequent petition for contempt and modification of child support, the trial court entered an agreed order on July 6, 2016, incorporating a modified permanent parenting plan order ("2016 PPP"). Under the 2016 PPP, Mother was designated the primary residential parent, as she had been in the original parenting plan, and Father enjoyed 145 days of annual co-parenting time. As pertinent on appeal, the parents were granted joint decision-making authority under the 2016 PPP, and Father's child support obligation was increased to $1,562.00 monthly from the prior amount of$1,200.00. Father maintained the Children on his health insurance as he had in the initial parenting plan. The 2016 PPP also provided that Father would claim Stella and Amy as dependents on his federal income tax return while Mother would claim Joseph as a dependent. Concerning the Children's schooling and extracurricular activities, the 2016 PPP included the following special provisions:
The trial court in the 2016 agreed order dismissed Mother's contempt petition upon directing Father to pay a lump sum of $7,500.00 to Mother "as satisfaction of all claims."
Mother initiated the first of the instant actions when she filed a petition to modify the 2016 PPP on April 2, 2018, alleging that "there [had] been a substantial change of material circumstances" in that Stella had "educational opportunities" at Baylor and that it was in Stella's best interest to attend Baylor. Mother requested modification of the 2016 PPP to require the parties to enroll Stella at Baylor and "share the expense of the private school tuition on a pro rata basis." Mother also requested that Father's co-parenting time be increased by one evening on alternate weeks and that she be awarded reasonable attorney's fees.
Father filed an answer and counter-petition on May 2, 2018, also asserting that a material change in circumstance had occurred but alleging that Mother was in contempt of court for violation of the 2016 PPP because she had "changed the children's schools multiple times," attempted to unilaterally enroll Stella at Baylor, and registered the Children for extracurricular activities under Mother's maiden name. Father also alleged that a "significant variance" existed between the amount of child support ordered in 2016 and the amount that would now be required under the Tennessee Child Support Guidelines ("the Guidelines"). In partial support of the latter allegation, Father averred that Mother was voluntarily underemployed. Father also requested an award ofreasonable attorney's fees. Father attached a proposed permanent parenting plan in which he would be designated the primary residential parent and the sole decision-maker for the Children's education. He also proposed modifications to include equal co-parenting time (182.5 annual days for each parent) and an equal split of costs between the parents for agreed-upon summer camps.
Mother filed an answer to the counter-petition, denying all substantive allegations against her. Admitting that a variance existed between the amount of child support ordered and the amount indicated by the Guidelines, Mother stated that she "lack[ed] sufficient information to admit that the variance [was] significant." Mother subsequently filed a motion to amend her petition for modification to add an allegation that Father was in contempt of the 2016 PPP because he had refused to pay his share of the Children's summer camp expenses in 2018. Mother alleged that she had informed Father that the Children would be attending summer camps in 2018 and that he had impliedly agreed because he did not object. Mother attached a proposed permanent parenting plan to her amended petition, which included a designation that she would have sole decision-making authority for educational matters and the Children's extracurricular activities.
Father filed an objection to Mother's proposed amendment and attached a letter from his counsel to Mother's counsel, dated March 19, 2018, in which Father had objected to a "schedule" that Mother had sent him for summer camps because of the $9,741.75 total cost and because the parents had not agreed upon the Children's attendance. The trial court entered an order on July 9, 2018, allowing Mother to amend her petition pursuant to Tennessee Rule of Civil Procedure 15, and Father filed an amended response.
The trial court conducted a bench trial on November 5, 2019, concerning Mother's petition to modify as to Stella, who was by then nearly thirteen years of age. Upon a motion filed by Mother and stipulation of the parties at the beginning of trial, the court ordered that Mother would assume responsibility for health insurance for the Children because they could be covered economically on a health insurance plan maintained by her current husband,...
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