Lovlace v. Copley, M2011-00170-COA-R3-CV

CourtCourt of Appeals of Tennessee
Docket NumberNo. M2011-00170-COA-R3-CV,M2011-00170-COA-R3-CV
Decision Date03 February 2012


No. M2011-00170-COA-R3-CV


September 28, 2011 Session
Filed February 3, 2012

Direct Appeal from the Chancery Court for Hickman County
No. 06-128-C Robbie T. Beal, Judge

This is a modification of child visitation case, involving grandparent visitation. The Appellant grandparents appeal the trial court's order, denying their request for more visitation with the minor child, as well as the failure of the trial court to find the Appellee Mother guilty of all alleged incidents of civil contempt. In the posture of Appellees, the mother and her husband (the child's adoptive father) argue that the Appellants are not entitled to any visitation. We conclude that in modification of grandparent visitation cases, if the parent is the movant, his or her burden is to show, by a preponderance of the evidence, that there has been a material change in circumstance affecting the child's best interest. However, where the movant is the non-parent, we hold that the grandparent visitation statute provides that the burden is on the non-parent to show, by a preponderance of the evidence, that there has been a material change in circumstance that would present a substantial risk of harm to the child if modification is denied. Because the trial court incorrectly applied the best interest standard, we vacate its order modifying the visitation arrangement. We also conclude that the trial court did not abuse its discretion in finding the mother in civil contempt on five counts; however, we conclude that the award of attorney's fees for that contempt is not clear as to what portion, if any, of those fees was expended for prosecution of the contempts, and what portion, if any, was expended in pursuit of the Appellees' attempt to modify the visitation order. Therefore, we also vacate the award of attorney's fees and remand for an award of those fees associated only with the prosecution of the contempts. Vacated in part, affirmed in part, and remanded.

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

J. STEVEN STAFFORD, J. , delivered the opinion of the Court. ALAN E. HIGHERS, P.J., W.S.,

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and HOLLY M. KIRBY, J., each filed a separate concurrence and partial dissent.

Thomas F. Bloom, Nashville, Tennessee and Grant C. Glassford, Brentwood, Tennessee, for the appellants, Neal Lovlace and Norma Lovlace.

Rebecca K. McKelvey and Gregory D. Smith, Nashville, Tennessee, for the appellees, Timothy Kevin Copley and Beth Copley.


The minor child at issue in this case was born on September 4, 2002. She is the biological daughter of Beth Copley and Jerry David Rochelle. According to the Appellees' brief, Mrs. Lovlace and her former husband, Larry Rochelle, adopted Jerry David Rochelle while they were married. Mrs. Lovlace and Larry Rochelle subsequently divorced and she then married Neal Lovlace (together with Mrs. Lovlace, the "Lovlaces," "Grandparents," or "Appellants"); at the time of the hearing, the Lovlaces had been married for fifteen years.

Beth Copley and Jerry Rochelle were married at the time of the child's birth; however, they were divorced by decree of the Chancery Court for Hickman County on April 20, 2004. The final decree of divorce granted primary residential custody to Mrs. Copley, but granted Mr. Rochelle standard visitation. It is undisputed that Mr. Rochelle struggled with drug addiction during the marriage. Consequently, Mr. Rochelle's visitation with the child was to be supervised by the grandparents (i.e., the Lovlaces or Larry Rochelle and his wife), or by Mrs. Copley.

On January 15, 2005, Beth Copley married Timothy Kevin Copley (together with Mrs. Copley, the "Copleys," or "Appellees"). At this time, Mr. Rochelle was incarcerated in the Hickman County Jail. While incarcerated, Mr. Rochelle consented to the minor child being adopted by Mr. Copley. However, this petition was dismissed when Mr. Rochelle withdrew his consent in January 2006. The Lovlaces allege that, because Mrs. Copley believed that Mr. Rochelle's withdrawal of consent was encouraged by the Lovlaces, Mrs. Copley terminated any contact between the Lovlaces and the minor child in February 2006.

On April 24, 2006, the Lovlaces filed a petition for grandparent visitation under Tennessee Code Annotated Section 36-6-306 (the "Grandparent Visitation Statute"). In support of their petition, the Lovlaces averred that, from the time of the child's birth, until just before they filed the petition, they had been an integral part of the child's life. Specifically, the Lovlaces stated that they: (1) kept the child no less than two days per week at the request of Mrs. Copley; (2) provided financial support for the child; (3) had been involved in the child's activities, and (4) had developed a close bond with the child.

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A hearing on the Lovlaces' petition was held on April 25, 2006. On May 15, 2006, the trial court entered an "Agreed Order," granting the Lovlaces visitation under the Grandparent Visitation Statute.1 Specifically, the Lovlaces were granted one Saturday per month from 9:00 a.m. until 5:00 p.m., and an additional two hours of visitation per week during the summer recess. The Lovlaces' visitation was subject to the following, relevant stipulations, which are set out in the Agreed Order: (1) Beth Copley will select the Saturday for visitation and will notify the Lovlaces at least five days in advance; (2) Beth Copley will select the two hour weekly period for summer visitation and will notify the Lovlaces at least thirty-six hours in advance; (3) as the child becomes involved in normal childhood activities, the Lovlaces must yield the portion of their visitation that conflicts with the child's activities, and Mrs. Copley will try to avoid such conflicts in choosing the date and time of visitation; (4) the Lovlaces' visitation time must come from Mr. Rochelle's time . . .; and (5) all parties shall cooperate and endeavor in good faith to effect this agreement in the best interest of the child. No appeal was taken from this Agreed Order.

On March 24, 2009, a Final Order of Adoption (the "Adoption Order") was entered, whereby Mr. Copley adopted the minor child. The Adoption Order specifically acknowledges that Mr. Rochelle consented to the adoption. As is relevant to the instant appeal, the Adoption Order contains the following language:

It is further ORDERED, ADJUDGED and DECREED by the Court that the entry of this Final Order of Adoption does not alter or modify the grandparent visitation rights of Neal and Jean Lovlace as previously ordered by the Hickman County Chancery Court.

There is no evidence in the record that any appeal was taken from the Adoption Order.

Even before Mr. Copley adopted the minor child, the relationship between the Copleys and the Lovlaces was strained. This is evidenced by the Lovlaces filing a petition for contempt against Mrs. Copley on March 15, 2007. This petition alleges that Beth Copley had violated the Agreed Order on visitation by, among other things, failing to provide the required notice to the Lovlaces. The Copleys answered the first petition for contempt with a motion to dismiss based upon the Lovlaces' alleged failure to provide proper notice in satisfaction of due process. Before a hearing on the petition for contempt and the corresponding motion to dismiss, on February 25, 2008, the Lovlaces were allowed to file an amended petition for contempt. Then, again, on March 9, 2009, the Lovlaces were

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granted leave to file a second amended petition for contempt and to modify the May 15, 2006 Agreed Order. By their petition, the Lovlaces aver numerous counts of civil contempt against Mrs. Copley. The alleged violations of the May 15, 2006 Agreed Order took place from June 2006 through January 2009. We will discuss the specific allegations below. However, suffice to say, the Lovlaces state that Mrs. Copley repeatedly failed to give them proper notice of visitation as required under the Agreed Order, failed to allow the court ordered visitation on numerous occasions, and generally failed to cooperate and endeavor in good faith to effect the visitation agreement in the best interest of the child. In addition to the allegations of contempt, the Lovlaces' petition also asks the court to modify the Agreed Order on visitation to allow the Lovlaces additional time with the child.

On May 29, 2009, the Copleys filed an answer to the Lovlaces' second amended petition for contempt and to modify, wherein they denied the material allegations of contempt and further moved the court to terminate the Lovlaces' visitation with the minor child. As grounds for terminating the Lovlaces' visitation, the Copleys averred that Mrs. Lovlace had exacerbated the friction between the parties, that the Lovlaces had short tempers, and that visitation was not in the child's best interest. On July 24, 2009, the Lovlaces answered the counter-petition to terminate visitation, denying the material allegations contained therein.

On July 24, 2009, the Lovlaces filed a motion asking the court, inter alia, for make-up visitation with the child. Specifically, the Lovlaces argued that their Saturday visitation was denied from December 2008 until March of 2009, and was again denied in July 2009. On August 24, 2009, the Copleys moved the court to...

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