Richardson v. Richardson
| Decision Date | 17 September 2021 |
| Docket Number | M2020-00179-COA-R3-CV |
| Parties | SARAH H. RICHARDSON v. BENJAMIN N. RICHARDSON |
| Court | Tennessee Court of Appeals |
Assigned on Briefs July 1, 2021
Appeal from the Circuit Court for Montgomery County No. CC-14-1953 Ross H. Hicks, Judge
Mother appeals the trial court's decision to change the parties' permanent parenting plan to designate Father as the primary residential parent of the children. Discerning no reversible error, we affirm.
Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Mart G. Fendley and Paisley Anderson, Clarksville, Tennessee, for the appellant, Sarah H. Richardson.
Jacob P. Mathis and Tiffany D. Leffler, Clarksville, Tennessee, for the appellee, Benjamin N. Richardson.
OPINION
Plaintiff/Appellant Sarah Richardson ("Mother") and Defendant/Appellee Benjamin Richardson ("Father") were divorced on July 10, 2015. Incorporated into the divorce decree was an agreed permanent parenting plan that designated Mother as the primary residential parent for the parties' two children. Because Father is an active duty military member, Father's time with the children was dependent on whether he resided in the Clarksville, Tennessee area. If he did, the parties would enjoy equal time with the children. If not, Mother would enjoy substantially more time with the children.
Pursuant to the parties' marital dissolution agreement, Mother was awarded the marital home in Clarksville and the responsibility of the mortgage payments going forward, but Father was ordered to make payments to get the mortgage current. Father was unable to do so, and the mortgage was foreclosed. As a result, Mother asserted that she informed Father that she was moving to Texas so that a "friend" who was also in the military could help prevent her from becoming homeless. Mother married this "friend" only a short time after the divorce was finalized. There was some dispute as to whether Mother properly notified Father of the move, but Mother moved in any event. As a result of the move, Father was not able to exercise equal parenting time even when he resided in the Clarksville area.
Mother later filed a petition to modify the permanent parenting plan on April 3, 2019. Therein, Mother alleged that a material change in circumstances had occurred due to her relocation and Father's refusal to communicate or abide by the current parenting plan. Mother further asserted that it was in the children's best interest that she continue to be named primary residential parent, but that Father's parenting time be reduced to only eighty days per year. Mother also asked that child support be recalculated based on any changes in parenting time.
Father filed an answer and counter-petition on April 11, 2019. Therein, Father admitted that a material change in circumstances had occurred, but asserted that the material change related to Mother's behavior. In particular, Father alleged that Mother, inter alia, involved the children in adult conversations, refused to cooperate with Father regarding his parenting time, denied Father parenting time, and made constant attempts to alienate the children from him. Father asserted that these facts constituted a material change in circumstances, but that it was in the children's best interest that he be named primary residential parent.[1] Mother answered Father's counter-petition on April 16, 2019, denying the material allegations therein.
On July 5, 2019, Father filed a motion for contempt and to enforce the summer parenting time provided for in the permanent parenting plan. Father struck his motion twenty days later. On August 5, 2019, the parties entered into an agreed order setting trial for December 5, 2019. The parties participated in mediation on August 6, 2019, which was unsuccessful.
On October 17, 2019, Father filed a motion to hold Mother in contempt and to enforce the Thanksgiving parenting time contained in the parties' permanent parenting plan. Father asserted that because he resided in Clarksville, he was entitled to Thanksgiving parenting time on odd years, i.e., 2019. According to Father, Mother refused to allow him this parenting time, arguing that Thanksgiving is the same as Fall break, which Mother was awarded on odd years. Father therefore asked that Mother be held in contempt and that he be awarded the proper parenting time. Mother responded to Father's motion on October 22, 2019, arguing that because Father was given the Thanksgiving holiday in 2018, she was entitled to the holiday in 2019. After a hearing, however, the trial court ruled that Father was entitled to the Thanksgiving holiday under the permanent parenting plan. The trial court did not, however, address Father's request that Mother be held in contempt.
Not to be deterred, Father filed another motion for Mother to be held in contempt on November 5, 2019. Therein, Father alleged that Mother had made derogatory comments against Father in front of the children in violation of the permanent parenting plan. Father therefore asked that Mother be found in criminal contempt and sentenced to ten days in jail, and that he be awarded attorney's fees. Mother later filed a response to Father's motion, denying the material allegations contained therein.
On November 6, 2019, Mother filed a motion for the trial court to appoint a guardian ad litem for the children under Rule 40A of the Rules of the Tennessee Supreme Court. Mother also asked that the final hearing be continued to allow the guardian ad litem to investigate. In her motion, Mother alleged that her petition "contains serious allegations involving Father which require further investigation by an advocate for the minor children." Mother alleged the same about Father's petition. Moreover, Mother alleged that "unless an advocate is appointed to represent the minor children's best interests[, ] the children will continue to be influenced by Father's actions and will suffer significant emotional harm." Father opposed both the appointment of a guardian ad litem and the continuation of the trial. The trial court denied Mother's motion for the appointment of a guardian ad litem and to continue the trial by order of November 19, 2019.
Trial occurred on December 5, 2019. Several exhibits were introduced at trial, including text messages between the parties, a school calendar, before-and-after photographs of the children's haircuts, pictures stating that they showed the worn-out and wrong-sized shoes sent with the children by Mother on visits to Father, a letter written by Father's current wife ("Step-Mother") to Mother, and a recording of a call between the parties. In the letter, Step-Mother sought to introduce herself to Mother as the person who would "be tending to most of the children's needs," including "kiss[ing] boo-boos, . . . help[ing] with homework, . . . buy[ing] the birthday presents, organiz[ing] the family calendar, [and] mak[ing] playdates[.]" The letter further stated that it was not about Father, but about Step-Mother's own desire to parent the children. The letter ended as follows:
So, I write to you to ask a tough question. Can I take care of [the children]? This question comes with the understanding that they are expected to continue building a relationship with you [and your family]. We do not want to take the girls away from your home. We want to care for them and love them. . . .
The recorded phone call was initially between Father and one of the children. The child asked Father why he went to court over the 2019 Thanksgiving parenting time, when Father had parenting time the previous Thanksgiving. Father attempted to deflect the question by asserting that it was an adult issue. Mother then entered the call, berating Father for not answering the question, and for hurting the children with his actions, Step-Mother's ill-advised letter, and generally acting in a selfish manner.[2] Mother denied that the children were present during the call, but children could be heard at times in the background, and during the call Mother admitted their presence.
At the conclusion of the trial, the trial court orally ruled that Father had shown a material change in circumstances and that the best interest factors favored naming him the primary residential parent. The trial court also found that Mother was guilty of criminal contempt and sentenced her to ten days incarceration, suspended to two days.
On December 18, 2019, Father filed a motion to enforce the suspended sentence against Mother on the basis that she was still denying Father contact with the children. On January 3, 2020, Father also filed a motion to relocate with the children, as he had been transferred due to his military service. Mother later responded in opposition to both motions. As to the motion to enforce the suspended sentence, Mother denied that she denied Father contact with the children; instead, she claimed she was just respecting the children's wish not to speak to Father. As for the proposed relocation, she claimed that Father knew about his upcoming move by the time of trial and intentionally withheld that information. Mother asked that Father's relocation be denied or that the children be returned to her care.
A written order on the modification of the parenting plan was eventually entered on January 3, 2020. Therein, the trial court first ruled that Mother's relocation to Texas was reasonable under the circumstances and that issues related to the relocation were now moot. The trial court further ruled that Mother failed to meet her burden to demonstrate a material...
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