Gaby v. Gaby

• Decision Date: 23 August 2021
• Docket Number: E2020-00790-COA-R3-CV
• Parties: JENNIFER PALLOTTA GABY v. TONY HAROLD GABY
• Court: Tennessee Court of Appeals

JENNIFER PALLOTTA GABY v. TONY HAROLD GABY

No. E2020-00790-COA-R3-CV

Court of Appeals of Tennessee, Knoxville

August 23, 2021

Session June 9, 2021

Appeal from the Circuit Court for Greene County No. 15CV259 TJW Thomas J. Wright, Judge.

In this post-divorce, child custody case, Appellant/Father filed a petition to modify the permanent parenting plan, seeking equal parenting time. Appellee/Mother opposed the petition. The trial court held that there had been a material change of circumstance and awarded Father additional parenting time but not equal parenting time. On appeal, Father asserts that the trial court failed to consider the statutory best interest factors. Tenn. Code Ann. § 36-6-106(a). Although we leave undisturbed the portion of the trial court's order concerning a material change of circumstance, the trial court's failure to make best interest findings in compliance with Tennessee Rule of Civil Procedure 52.01 precludes any meaningful appellate review of that question. Accordingly, we vacate the order and remand for entry of an order that includes the required findings of fact and conclusions of law.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in Part and Remanded.

Crystal G. Jessee, Greeneville, Tennessee, for the appellant, Tony Harold Gaby.

Joseph O. McAfee, Greeneville, Tennessee, for the appellee, Jennifer Pallotta Gaby.

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

OPINION

KENNY ARMSTRONG, JUDGE.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 11, 2017, Appellant Tony Harold Gaby ("Father") and Appellee Jennifer Pallotta Gaby ("Mother") were divorced by order of the Circuit Court for Greene County ("trial court"). The divorce decree incorporated a permanent parenting plan, in which Mother was named primary residential parent of the parties' two daughters ("the Children"). The trial court awarded Mother 313 parenting days and awarded Father 52 parenting days. In making its determination, the trial court emphasized Father's 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. Following the divorce, Father completed a parenting class and an anger management class, and he engaged a counselor to help rebuild his relationship with the Children. In addition, Father modified his work schedule so that he could spend more time with the Children.

On August 30, 2018, Father filed a Petition to Modify the Permanent Parenting Plan, wherein he requested equal parenting time. He averred that his improved relationship with the Children and his change in work schedule constituted material changes of circumstance that warranted modification. In her response, Mother denied Father's averments and asked the trial court to dismiss the petition.

On December 2, 2019, and after an unsuccessful attempt at mediation, the trial court heard Father's petition to modify the permanent parenting plan. On April 3, 2020, the trial court entered an order finding that there had been a material change of circumstance based on two grounds-Father's new work schedule and Mother's failure to facilitate and encourage a relationship between Father and the Children. As discussed below, concerning the best interest analysis under Tennessee Code Annotated § 36-6-106(a), the trial court found only that the best interests factors "remain as previously found in the prior Court hearing." Based on these findings, the court modified the permanent parenting plan to award 275 days to Mother and 90 days to Father. On April 30, 2020, Father filed a Motion to Alter or Amend Judgment. Therein, he argued that the trial court: (1) "failed to give him sufficient credit for the overpayment of child support";^[1] and (2) failed to "make specific findings as to the stacking of extra time he has with the children, on his weekends, above the regular day count." On May 11, 2020, the trial court denied Father's motion. Father appeals.

II. ISSUES PRESENTED

Father raises the following issues for review:

1. Did the Circuit Court for Greene County err as a matter of law when it failed to specifically address each of the best interest factors outlined in Tenn. Code Ann. § 36-6-106(a)?

2. Did the Circuit Court for Greene County err as a matter of law in failing to maximize Tony Gaby's parenting time with the children, providing him with only 90 days of parenting time?

3. Did the Circuit Court for Greene County err as a matter of law in its calculation of days of parenting time for Tony Gaby?

III. STANDARD OF REVIEW

Whether there has been a material change of circumstance and whether modification of an existing parenting plan is in the children's best interests are questions of fact. Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review the trial court's findings of fact de novo on the record of the trial court, accompanied by a presumption of the correctness of these findings, unless the evidence preponderates otherwise. Tenn. R. App. P. 13; Coal Creek Co. v. Anderson Cty., 546 S.W.3d 87, 98 (Tenn. Ct. App. 2017). Furthermore, the trial court has broad discretion in fashioning parenting plans. Armbrister, 414 S.W.3d at 693; Grissom v. Grissom, 586 S.W.3d 387, 391 (Tenn. Ct. App. 2019). Thus, we will not disturb the details of a residential parenting schedule unless there has been an abuse of discretion. Armbrister, 414 S.W.3d at 693. "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).

IV. Analysis

Modification of an existing parenting plan is a two-step process. First, the court must find that a material change of circumstance has occurred since the entry of the prior plan. Tenn. Code Ann. § 36-6-101(a)(2)(C);^[2] Armbrister, 414 S.W.3d at 706-07. If the court finds that a material change of circumstance has occurred, it must then consider the factors enumerated in Tennessee Code Annotated § 36-6-106(a) to determine whether it is in the children's best interests to modify the current parenting plan.^[3] Armbrister, 414 S.W.3d at 705. When these two steps are complete and "a material change of circumstance[] affecting the children's best interests has been established, a court finally must utilize the process prescribed by Tennessee Code Annotated section 36-6-404(b)^[4] to determine how the residential parenting schedule should be modified." Id. at 706.

In the instant case, neither party disputes the trial court's conclusion that there was a material change of circumstance. As such, we do not disturb this portion of the trial court's order. Father argues that the trial court failed to make sufficient findings concerning the Children's best interests. Such findings, he contends, would result in an award of equal parenting. Mother counters that: (1) the change of circumstance did not "merit[] increasing [Fathers]'s parenting time to the extent it was increased"; (2) the trial court simply "rewarded [Father] for his conduct in following the trial court's instructions since the divorce trial in 2017"; and (3) "the record is . . . missing support for the increase in parenting time serving the physical and emotional needs of the children." See Shofner v. Shofner, 181 S.W.3d 703, 716 (Tenn. Ct. App. 2004) ("Parenting plans should never be used to punish or reward the parents . . . but rather they should be used to advance the children's best interests by placing them in an environment that best serves their physical and emotional needs.") We begin our analysis with Father's assertion that the trial court erred in failing to make sufficient best interest findings under Tennessee Code Annotated § 36-6-106(a).

In its order, the trial court held:

After testimony of several witnesses, as well as the parties and their children, the Court finds that there has been a material change [of] circumstance[]. A transcript of the court's oral findings and conclusions and rulings is attached and incorporated herein.^[5] Specifically, the Court finds that as to Factor 14, the Father's work schedule has changed dramatically since the last hearing and he is now able to spend substantially more quality time with the children during the day, after he gets off of work at 1:00 p.m. Additionally, as to Factor Number 2, the Court finds that it is in favor of the Father, as the Mother has not been found to facilitate or encourage a close relationship between the Father and the children. As to all other Factors, the Court finds that they remain as previously found in the prior Court hearing. However, these two factors warrant a substantial and material change [of] circumstance[], which leads the Court to change the Parenting Plan as follows[.]

In addition to the foregoing findings, the trial court's order incorporates the "transcript of the court's oral findings and conclusions and rulings" from the December 2, 2019 hearing. This portion of the transcript provides, in relevant part:

The court: All right. Just for the record, we're all, to make sure we're all talking about the same factors that the court's legislatively required to consider they're found in 36-6-106. Is that right?

Mother's attorney: Yes, Your Honor.

The court: Which is 36-6-106(a) and then (1) through (15), which (15) is the any other factor. And so, for the record, the court does have the Code in front of it. And I'm taking a minute to make sure I have reviewed each one of the 14 factors specifically listed.

...