L.A.S. v. C.W.H.

• Decision Date: 07 December 2022
• Docket Number: E2021-00504-COA-R3-JV
• Parties: L.A.S. v. C.W.H.
• Court: Tennessee Court of Appeals

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L.A.S. v. C.W.H.

No. E2021-00504-COA-R3-JV

Court of Appeals of Tennessee, Knoxville

December 7, 2022

Session July 19, 2022

Appeal from the Juvenile Court for Hamilton County No. 293-521 293-522 Robert D. Philyaw, Judge

This is a custody dispute over two minor children, P.H. and V.H (together, "the Children"). The Children's mother, L.A.S. ("Mother"), lives in Nevada, while the Children live primarily in Tennessee with their father C.W.H. ("Father"), and his wife ("Stepmother"). Father is the primary residential parent, and Mother sees the Children over the summers and during their breaks from school. On June 12, 2020, Mother filed a petition to modify the permanent parenting plan and for contempt in the Hamilton County Juvenile Court (the "juvenile court"). Mother asked to be named primary residential parent. Following a three-day bench trial, the juvenile court dismissed Mother's petition. The juvenile court determined that no material change in circumstances warranting a change in custody had occurred. Mother timely appealed to this Court. Having thoroughly reviewed the record, we discern no error and affirm the juvenile court's judgment.

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

Jillyn M. O'Shaughnessy, Chattanooga, Tennessee, and Donald Capparella and Kimberly Macdonald, Nashville, Tennessee for the appellant, L.A.S.

Randall D. Larramore, Chattanooga, Tennessee, for the appellee, C.W.H.

Kristi M. Davis, J., delivered the opinion of the Court, in which D Michael Swiney, C.J., and J. Steven Stafford, P.J., W.S., joined.

OPINION

KRISTI M. DAVIS, JUDGE

Background

Mother and Father, who never married, have been disputing custody of the Children since 2013. The parties have been before this Court multiple times, and the case proceeded to our Supreme Court in 2017. A brief history of the case is thus helpful:

Mother and Father began a dating relationship in 2008. During that time, Father lived in Pennsylvania and Mother lived in Ohio. Mother became pregnant with the parties' older child, P.H., and gave birth to [P.H. in January of 2009]. Soon thereafter, Mother moved to Chattanooga, Tennessee, and resided with her mother. Father relocated two to three months later, in August 2009, and lived with Mother. Father cared for P.H. as a stay-at-home father. The parties' younger child, [V.H.], was born [in June of 2010].

* * *

In November 2010, the relationship deteriorated and the parties separated. Mother planned to relocate to Ohio in pursuit of a master's degree. To facilitate the move, the parties entered into an agreed parenting plan in May 2011 to accommodate the distance and address parenting time. The plan designated Mother as the primary residential parent and allotted Father 144 days of parenting time per year.

* * *

During a February 2013 conference, Mother indicated that she was working as an independent contractor in social work. She said she was seeking employment in different states and that Nevada was one such state. Father had previously noted that in January 2013 when the children arrived in Tennessee for a visit, the children's luggage bore labels from Charlotte and Phoenix, but he was unaware that the children had visited the western United States. The parties agreed upon a modified plan that addressed Father's concerns but left the residential parenting designation and the parenting time between the parties as it was.

* * *

Shortly thereafter, Mother's sister contacted Father and informed him that Mother actually resided in Nevada with the minor children and that she was employed as a prostitute. Father had believed that Mother resided in Ohio and worked as an independent contractor. Father researched the internet and confirmed these assertions when he found sexually explicit photographs and videos of Mother advertising her services as a prostitute employed by the Moonlight Bunny Ranch in Nevada. He filed a motion for an emergency temporary custody order and temporary restraining order on March 12, 2013. The magistrate found that a material change in circumstances had occurred and that it was in the children's best interest for Father to be designated as the primary residential parent.

* * *

Mother appealed the juvenile court's ruling to the Court of Appeals. Without addressing the juvenile court's finding of a material change in circumstances, the appellate court vacated the juvenile court's order and remanded the case for the juvenile court to conduct a best interest analysis. C.W.H. v. L.A.S., No. E2015-01498-COA-R3-JV, 2016 WL 6426731, at *3 (Tenn. Ct. App. Oct. 31, 2016), perm. app. granted (Tenn. Apr. 12, 2017) (citation omitted).

* * *

On remand, the parties had the opportunity to present additional evidence but declined to do so. By order dated July 10, 2015, the juvenile court reaffirmed its prior findings of material change in circumstance and incorporated the required best interest analysis.

* * *

Mother appealed the juvenile court's ruling. In reversing the juvenile court's determination, the Court of Appeals concluded that neither the juvenile court's finding of Mother's deceit nor her former employment as a prostitute constituted a material change in circumstance without a finding of how the circumstances affected the children. C.W.H., 2016 WL 6426731, at **5, 9. The Court of Appeals further concluded that the evidence did not preponderate against the juvenile court's factual findings of Mother's hostility toward Father and Stepmother or its finding that said hostility constituted a material change in circumstances because it had affected the children. Id. at *11. However, the Court of Appeals reasoned that the juvenile court abused its discretion in determining that it was in the best interest of the children for Father to be designated as the primary residential parent because the juvenile court relied heavily on Mother's employment as a prostitute and failed to consider in its analysis Father's child support arrearage and his ingesting cocaine in his home while the children were present. Id. at *16. Father's appeal to this Court followed. Upon our consideration, we hold that the Court of Appeals improperly applied the well-settled standard of review as set forth in Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013); that the Court of Appeals applied the incorrect version of the statute governing the requisite best interest analysis, see Tenn. Code Ann. § 36-6-106; and that the appellate court erred in mandating an immediate change of custody without allowing Father an opportunity to seek review by this Court, see Brooks v. Carter, 993 S.W.2d 603, 610-11 & n.6 (Tenn. 1999) (citing Tenn. R. App. P. 42(b)).

C.W.H. v. L.A.S., 538 S.W.3d 488, 491-95 (Tenn. 2017).

After our Supreme Court reversed this Court's decision on December 19, 2017, the case was remanded to the juvenile court, and Mother was ordered to return the Children to Father and Stepmother. Mother instead filed emergency proceedings in Nevada asking the Nevada court to exercise jurisdiction over the case and keep the Children in Mother's custody. While the details of the Nevada proceedings are unclear, Mother's efforts were ultimately unsuccessful, and the Children returned to Tennessee in January of 2018 to reside primarily with Father and Stepmother. Soon after this change, Father and Stepmother bought a new home in Chattanooga, and the Children began new schools in the fall of 2018. Father and Stepmother also have another child together, C.H., who resides full time with Father and Stepmother. C.H. is younger, but still close in age, to the Children.

Since the Supreme Court ruling, the Children have spent most of their time in Tennessee, with Mother's parenting time exercised over the summers and during school holidays. Mother's extended family still resides around Chattanooga, and Mother comes into town several times a year to visit and exercise parenting time with the Children. In the interim, Mother has moved in with a registered domestic partner,^[1] G.T., with whom she now has an infant daughter. The infant was born in May of 2020. G.T. also has minor children with his ex-wife; these children split their time with G.T. and Mother, and G.T.'s ex-wife.

Mother is now employed as a social worker and works primarily from home. Her work schedule tends to be Monday through Friday, 6:00 a.m. to 3:00 p.m. She has a lot of flexibility over her schedule. Father is a restaurant manager who works approximately fifty hours per week. Father's schedule tends to be 7:00 a.m. to 5:00 p.m., with one day off during the week and Saturdays off. As he is the manager and makes the schedule, Father also has some flexibility with his time. Stepmother stopped working in early 2019 to stay home with the Children and C.H. She testified that the schedule became too chaotic with all three children needing to be dropped off and picked up from school and then taken to various sports and extra-curricular activities. When Father is off work during the week, he takes the Children to school and picks them up. Otherwise, this responsibility lies with Stepmother.

In keeping with their history, the parties continued to have great difficulty co-parenting. See C.W.H., 538 S.W.3d at 492-93 (expounding on the difficult relationship between the parties, including Mother's refusal to allow the Children to attend Father's and Stepmother's wedding). The relationship between Mother and Stepmother, who apparently worked together many years ago, is particularly contentious. It is undisputed that Mother and Stepmother do not speak to one another, Mother going so far as to block Stepmother's phone number. Stepmother testified at trial that she would like to communicate with Mother...