In re John B., No. M2019-02022-COA-R3-JV

CourtCourt of Appeals of Tennessee
Writing for the CourtJ. STEVEN STAFFORD, JUDGE
PartiesIN RE JOHN B.
Decision Date15 October 2020
Docket NumberNo. M2019-02022-COA-R3-JV

IN RE JOHN B.

No. M2019-02022-COA-R3-JV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

August 4, 2020 Session
October 15, 2020


Appeal from the Juvenile Court for Macon County
No. 2012-JV-10
Ken Witcher, Judge

Father appeals the trial court's decision to reduce his parenting time significantly. Discerning no reversible error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

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

Bert W. McCarter, II, Murfreesboro, Tennessee, for the appellant, Scott H.B.

Lisa C. Cothron, Lafayette, Tennessee, for the appellee, Nedra D.P.

OPINION

BACKGROUND

A parenting plan ("the initial order") was entered by the trial court in January 2013 giving Petitioner/Appellee Nedra D.P. ("Mother") "sole" custody of the child and awarding Respondent/Appellant Scott H.B. ("Father") 116 days of parenting time per year.1 A prior appeal affirmed this parenting plan, including the findings that Father had engaged in conduct, including emotional abuse toward women, that was detrimental to the child. See In re John H.B., No. M2013-00496-COA-R3-JV, 2014 WL 1572715 (Tenn. Ct. App. Apr. 17, 2014) (hereinafter, "John I").2 Father filed a petition to modify the plan in October 2016, seeking to increase his parenting time to equal time (182.5 days to each parent) and to make major decisions jointly. Father also sought for certain restrictions on his exercise

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of parental authority to be removed. Mother answered in opposition and sought an award of attorney's fees. Mother did not, however, seek any reduction in Father's parenting time in this pleading.

A trial was held over two days in July 2018. During opening statements, Mother's counsel announced that she was relying on Tennessee Code Annotated section 36-6-406 to restrict Father's parenting time. After questioning from the trial court at the end of the first day of trial, Mother filed a counter-petition to further limit Father's parenting time to supervised parenting or to 48-hour periods of time.

Father, his daughter, Mother, Mother's husband, Father's former girlfriend, and maternal grandparents testified at trial. The child was seven years old at the time of trial. Father testified in support of his petition, detailing his love and affection for the child, his home environment, and his parenting of the child. In particular, Father testified because of his strong bond with the child, the current plan allowed was "not fair" and "hurts us both." Father testified that he was planning to move to a newly built home that is thirty-eight miles from the child's school, but he could get the child to school on time. Father also testified that his employment allows him some flexibility for parenting time. Father also testified that the child's needs had changed due to growing older. Father denied that he suggested that the child say inappropriate things to Mother or hit her. Father also denied that he was controlling or emotionally abusive toward women. Father admitted that he picked the child up from grandparents without permission, but denied that he did so at the child's day care. Father further testified that the majority of exchanges take place with maternal grandparents and that he has a "wonderful relationship" with them.

Father's daughter ("Daughter") also testified in favor of Father. Daughter testified that Father did not disparage Mother and even encouraged her to have a better relationship with her own mother. Maternal Grandmother admitted that Father was a good dad, took care of the child's physical needs, and that Father and the child love each other.

In contrast, Mother testified during the trial that she wanted Father's time with the child further reduced due to Father's continuing campaign of emotional abuse toward Mother that had now spilled over to the child. Mother provided detailed testimony to support her claim that Father's bad conduct was harming both herself and the child. For example, Mother testified that the child was parroting Father's language that Father should have equal time with child because it was "fair." Mother testified that after one visit the child said that Father told him Mother did not love him. Mother also testified that on more than one occasion the child informed her that Father told him to argue with Mother and hit her, as that was "God's rule." According to Mother, the child would indeed be more argumentative and refuse to follow directions after extended time with Father. After Mother took the child to see a psychologist, this behavior stopped. Mother testified about an incident where Father had extended visitation with the child and she texted Father than the child needed decongestant medication. Father responded with a bible verse about

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vengeance, which Mother perceived as a threat. Father also taught the child his phone number so that the child could secretly call him during Mother's time, even though phone calls were prohibited under the prior order. Mother also testified that Father sometimes picked the child up early from daycare or the maternal grandparents without permission.

Mother admitted that she did not inform Father when she signed the child up for activities, but testified that she always gave Father notice when the activities were going to take place. Father was present at the child's baseball games and gave the child equipment against Mother's objections. Mother also admitted that her adult son had legal and drug issues, but she testified that he was not present in her life.

Mother testified that Father's former girlfriend had participated in the emotional abuse, creating a fake social media account to harass Mother. Father's former girlfriend testified that Father would "play mind games" with people in his life. She also testified that Father knew about and approved the social media antagonism toward Mother. Moreover, she claimed that Father had once pulled a gun on her and had made threatening comments in the past.

The trial court entered both a judgment and a separate order containing findings of fact and conclusions of law on August 6, 2018. Therein, the trial court found that Father had not halted his campaign of emotional abuse against Mother and that the child was now affected by Father's conduct. The trial court therefore reduced Father's parenting time to fifty-five days, limited Father to no more than forty-eight hours of consecutive parenting time, gave Mother the ability to cancel some of Father's visits unilaterally, and placed additional restrictions on Father's exercise of parental authority. The trial court later awarded Mother attorney's fees and costs totaling $21,418.98. Father thereafter appealed to this Court.

On September 17, 2019, this Court dismissed Father's appeal on the basis that Father had appealed a non-final order. In re John B., No. M2018-01589-COA-R3-JV, 2019 WL 4447459 (Tenn. Ct. App. Sept. 17, 2019). Specifically, we held that there had been no order adjudicating Mother's counter-petition. Id. at *3. Back in the trial court, Mother filed a motion for default judgment due to Father's failure to respond to her counter-petition. In the end, however, on October 17, 2019, the trial court entered an order dismissing Mother's counter-petition on the basis that she did not properly obtain leave of court to file the petition. Father filed a second notice of appeal on November 13, 2019. The record from the prior appeal was then consolidated with this appeal.

ISSUES PRESENTED

Father raises the following issues, which are taken from his brief:

I. Whether the trial court erred in reducing the parenting time of the Father.

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A. The trial court erred in reducing Father's parenting time where Mother failed to properly put Father on notice that a reduction was sought.
B. The trial court misapplied Tennessee Code Annotated § 36-6-406, and failed to make sufficient findings of fact and conclusions of law on the factors in Tennessee Code Annotated § 36-6-406(d) and Tennessee Code Annotated § 36-6-106(a) factors.
C. The weight of the evidence preponderated against the judgment of the trial court.
II. Whether the trial court erred in awarding attorney's fees and costs to the Mother and whether Father should be awarded attorney's fees for the appeal.

Mother also seeks an award of attorney's fees incurred in this appeal.

STANDARD OF REVIEW

It is well settled that, in matters of child custody, visitation, and related issues, trial courts are given broad discretion; consequently, appellate courts are reluctant to second-guess a trial court's determinations regarding these important domestic matters. See Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013); Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App. 1980). "It is not the function of appellate courts to tweak a [residential parenting schedule] in the hopes of achieving a more reasonable result than the trial court." Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). As explained in Richards on Tennessee Family Law:

Appellate courts correct errors. When no error in the trial court's ruling is evident from the record, the trial court's ruling must stand. This maxim has special significance in cases reviewed under the abuse of discretion standard. The abuse of discretion standard recognizes that the trial court is in a better position than the appellate court to make certain judgments. The abuse of discretion standard does not require a trial court to render an ideal order, even in matters involving visitation, to withstand reversal. Reversal should not result simply because the appellate court found a "better" resolution.

Janet L. Richards, Richards on Tennessee Family Law § 9-2 (2d ed. 2004) (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (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...

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