STATE OF TENNESSEE

THIRD JUDICIAL DISTRICT

HAMBLEN COUNTY CHANCERY COURT

 

TIMOTHY WAYNE WOODFIN
            Plaintiff

VS.                                                                              NO. 2002-141

AMY LYNN COCKRUM
   Defendant

 

MEMORANDUM OPINION AND ORDER

 

                        PROCEDURAL HISTORY

The parties were divorced by Final Decree entered October 9 _ 2002. In connection with the divorce, the Court approved a Permanent Parenting Plan addressing the residential sharing schedule and other relevant parenting arrangements for the minor child, Jordan Chase Woodfin.

On March 3, 2003, the Child Support Division of the District Attorney's General Office requested the issuance of a Show Cause Order directing Mr. Woodfin to appear for an alleged failure to pay his child support obligation as previously ordered by the Court. On March 11, 2003, Mr. Woodfin, pro se, filed a petition with reference to his parenting time with the minor child. On April 29, 2003, the Child Support Referee filed certain findings and recommendations with reference to Mr. Woodfin's current child support obligation, as well as a child support arrearage. By Order entered May 2, 2003, the Court directed that the parties proceed with mediation. The findings and recommendations of the Referee were confirmed by the Court on May 9, 2003.

On October 17, 2003, Mr. Woodfin filed a motion to enforce visitation and for sanctions. Both parties, pro se, appeared for a trial on the merits on October 27,2003. The Court directed that all issues regarding child support be referred to the Child Support Referee. Following an evidentiary hearing with reference to the remaining issues joined, the Court took the matter under advisement. Having considered the testimony of parties and witnesses, the evidence admitted and the record as a whole, the Court makes the following findings of fact and conclusions of law.

 

ISSUES PRESENTED

The primary issues presented for adjudication include the following:

1. Has there been shown to exist a material change of circumstances so as to warrant a modification in the allocation of parental responsibilities as defined by the existing Permanent Parenting Plan.

                       2. What residential schedule and allocation of parental responsibilities shall promote

and protect the child's manifest best interests.

                       3. Is Ms. Cockrum in contempt of any previous Order of this Court.

 

                        FACTUAL BACKGROUND

                       The parties' minor child, Jordan Chase Woodfin, was born on September 21, 2000.

The child presently resides with Ms. Cockrum in Morristown, Tennessee. Ms. Cockrum remarried

on February 14, 2003.

                       Mr. Woodfin currently resides in Clinton, Tennessee. His last parenting time with

the minor child was on December 27, 2002. Mr. Woodfin is self-employed and enjoys an income of approximately $700.00 per month.

 

MODIFICATION OF PERMANENT PARENTING PIAN

 

"Courts understand the traumatic effect that divorce has on children, as well as the children's need for continuity and stability in their personal relationships", Hall v. Honeycutt, 489 S.W.2d 37 (1972); Hill v. Robbins, 859 S.W.2d 355 (1993). Courts contemplate that most children find stability by "bonding" to the initial custody situation following a divorce, McDaniel v. McDaniel, 743 S.W.2d 167 (1987).

            The party seeking to change primary residential status must prove (1) that the child's

circumstances have materially changed in a way that could not have been reasonably foreseen at the time of the original custody decision, and (2) that the child's best interests will be served by changing the existing custody arrangement, Adelsperger v. Adelsperger, 970 S.W.2d 482 (1997). "The courts may change custody if a custodial parent moves to another state in order to interfere vindictively with the non-custodial parent's visitation or if there is specific proof that the move will cause serious harm to the child", Adelsperger.

                       The court in In Re: Bridges, 63 S. W .3d 346 (2001) recently elucidated the applicable standard and factors to be addressed with reference to a petition seeking a modification in parenting schedules and responsibilities:

 

In a custody modification proceeding, the burden is on the non-custodial parent to prove a change of circumstances. See, e.g., Nichols v. Nichols, 792 S. W2d 713, 714 (Tenn. 1990); Musselman v. Acuff, 826 S. W.2d 920,922 (Tenn. Ct. App. 1991). Because an original custody decree is res judicata, there is a strong presumption in favor of the custodial parent which the non-custodial parent can only overcome by demonstrating that the alleged change in circumstances is "material." See Taylor v. Taylor, 849 S. W2d 319, 322 (Tenn. 1993); Nichols, 792 S. W2d at 715-16. This Court has described "changed circumstances" as follows:

When two people join in conceiving a child, they select that child's natural parents. When they decide to separate and divorce, they give up the privilege of jointly rearing the child. and the divorce court must decide which parent will have primary responsibility for rearing the child. This decision of the Court is not changeable except for "change of circumstances" which is defined as that which requires a change to prevent substantial harm to the child. Custody is not changed for the welfare or pleasure of either parent or to punish either parent, but to preserve the welfare of the child. Custody is not changed because one parent is able to furnish a more commodious or pleasant environment than the other, but where continuation of the adjudicated custody will sub8tantiaUy harm the child.

 

"Changed circumstances 'includes any material change of circumstances affecting the welfare of the child, including new factors or changed conditions which could not be anticipated by the custody order"', Blair v. Badenhope, infra; Dalton y. Dalton. 858 S.W.2d 324 (1993). Tennessee courts recognize that remarriage of either parent does not, of itself, constitute a material change of circumstances warranting a change of custody, Arnold v. Arnold, 774S.W.2d 613 (1989); Tortorich v. Erickson, 675 S.W.2d 190 (1984). "Changed circumstances" include new factors or changed conditions which could not be anticipated by the original custody order, Dalton v. Dalton, supra, and evidence that the children have grown closer to the noncustodial parent is a circumstance that is hoped for in granting regular visitation, not an unexpected circumstance, Blair v. Badenhope, 940 S.W.2d 575 (1996).

"The change of circumstances must involve the child's circumstances rather than those of either or both parents", Taylor v. Yanusz, 2002 LEXIS 446 (Tenn. App. 2002); Steen v. Steen, 61 S.W.3d 324 (2001); Hoalcraft v. Smithson, 19 S.W.3d 822 (1999). Moreover, hostility between the parents regarding the care of children will not constitute a change of circumstances warranting a modification in parenting responsibilities absent a showing that such was not the situation at the time of the divorce decree, Rubin v. Kirshner, 948 S.W.2d 742(1997). Finally, when the consideration of all applicable factors results in an even balance, the presumption in favor of continuity of placement mandates that a modification in parenting responsibilities be denied, Steen, supra; Placencia v. Placencia, 3 S.W.3d 497 (1999).

The Supreme Court in Kendrick v. Shoemake, 90 S.W.3d 566 (2002) recently elucidated the pertinent factors to be considered by the trial court in determining whether a material change of circumstances has occurred:

While "there are no hard and fast rules for determining when a child's circumstances have changed sufficiently to warrant a change of his or her custody, " the following factors have found a sound basis for determining whether a material change in circumstances has occurred: the change "has occurred after the entry of the order sought to be modified," the change "is nor one that was known or reasonably anticipated when the order entered, " and the "change "is one that affects the child's well-being in a meaningful way." We note that a parent's change in circumstances may be a material change in circumstances for the purposes of modifying custody if such a change affects the child's well-being.

 

The original Permanent Parenting Plan established a residential sharing schedule for the minor child whereby Mr. Woodfin was to gradually reestablish a parent/child relationship with Jordon Chase Woodfill. Specifically, Mr. Woodfin was to exercise quality parenting time with the minor child each Wednesday for three consecutive weeks, beginning at 5: 30p.m. During this period. Mr. Woodfin was directed to meet with the child's physician for instruction and training with reference to the child's medical needs. Following such term of parenting time, Mr. Woodfin was granted expanded parenting time every other Sunday from 1:00 p.m. until 4:00 p.m. at College Square Mall in Morristown, Tennessee. Beginning March 1, 2003, Mr. Woodfin was to enjoy overnight parenting time with the minor child on alternating weekends from Friday at 7 :00 p.m. until Sunday at 6:00 p.m. 

The evidence preponderates in favor of a finding that Mr. Woodfin never met with the child's physician for the purpose of acquiring instruction and training regarding the child's medical care and needs. The last parenting time exercised by Mr. Woodfin was December 27, 2002. Subsequent to that date, Mr. Woodfin attempted to spend time with the child, but by virtue of the child's illness in February 2003, as well as deteriorating lines of communication between Mr. Woodfin and Ms. Cockrum, no further parenting time was exercised by Mr. Woodfin. On one recent occasion, Mr. Woodfin's utilities were disconnected and later restored upon his acquisition of financial assistance.

This Court concludes that Mr. Woodfin, as Petitioner, has failed to establish a material change in circumstances warranting a modification in the primary residential parent status in favor of Ms. Cockrum. This Court does determine however, that the manifest best interests of the child warrant an alteration in parenting schedules as defined by the original Permanent Parenting Plan.

 

ALLOCATION OF PARENTAL RESPONSIBILITIES

Effective January 1, 2001, the Tennessee General Assembly adopted the Parenting Plan legislation codified at T.C.A. 36-6-401, et seq. The legislative findings undergirding the new legislation are elucidated by T.C.A. 36-6-401 as follows:

36.6.401. Findings

(a) Parents have the responsibility to make decisions and perform otb.er parental duties necessary for the care and growth of their minor children. hl any proceeding between parents under this chapter, the best interests of the child shall be the standard by which the court detemrines and allocates the parties' parental responsibilities. The general assembly recognizes the detrimental effect of divorce on many children and that divorce, by its nature, me.ans that neither parent will have the same access to the child as would have been possible had they been able to maintain an intact family. The general assembly finds the need for stability and consistency in children's lives. The general assembly also has an interest in educating parents concerning the impact of divorce on children. The general assembly recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and the relationship between the child and each parent should be fostered unless inconsistent with tbe child's best interests. The best interests of the child are served by a parenting arrangement that best maintains a child's emotional growth, health and stability, and physical care.

(b) The general assembly finds that mothers and fathers in families are the backbone of this state and this nation. They teach children right from wrong, respect for others, and the value of working hard to make a good life for themselves and for their future families. Most children do best when they receive the emotional and financial support of both parents. The general assembly finds that a different approach to dispute resolution in child custody and visitation matters is useful.

 

With an aim toward promoting, protecting and preserving the manifest best interests of minor children of a divorce, courts and parents are guided by the new legislation in establishing parenting arrangements which best maintain a child's emotional growth, health, stability and physical care. Terms such as "custody" and "visitation" have been replaced by new language to be contained in a "permanent parenting plan" which allocates parenting responsibilities and establishes a residential schedule for the child. Under the permanent parenting plan, the primary residential parent is that parent with whom the child resides more than fifty percent of the time, T.C.A. 36-6­402(4). "The statute contemplates that the designation of 'primary residential custodian' will be based upon an analysis of the total time the child is under the legal care and supervision of each parent - a concept which basically equates to the concept of residence", Hansen v. Hansen, 2000 LEXIS 267 (Tenn. App., 2000). As the Court in Hansen noted:

Our approach to the concept of "primary residential custodian" also recognizes that a parent's responsibilities do not end when a child is at school or asleep or otherwise outside the presence of that parent. Rather, such responsibilities continue during the entire time that a child is under the general care and supervision of a parent, regardless of what the child is doing or where he or she is doing it.

 

Though the terms custody and "visitation" have been replaced, previous appellate decisions incorporating such language are instructive to the trial court in determining the appropri.ate parenting arrangement, schedule and responsibilities. Trial courts maintain broad discretion in determining matters of custody and visitation and such determinations are factually driven involving the consideration of several factors, Parker v. Parker, 986 S.W .2d 557 (1999); Gaski!l v. Gaskill,  936 S.W.2d 626 (1996); Adelsperger v. Adelsperger, 970 S.W.2d 482 (1997),

Regarding child custody and visitation arrangements, the needs and best interests of the children are paramount concerns while the desires and interests of the parents are secondary, Lentz v. Lentz, 717 S.W.2d 876 (1986); Whitaker v. Whitaker, 957 S,W.2d 834 (1997). Custody should never be used to punish or reward the parents, Turner v. Turner, supra; but rather should promote the children's best interests by placing them in an environment that will best serve their physical and emotional needs, Luke v. Luke, 651 S.W.2d 219 (1983).

                       No hard and fast rules exist for determining which custody and visitation arrangement will best serve a child's needs, Taylor v. Taylor, 849 S.W.2d319 (1993). However, the Court iIfulh v. Bah. 668 S.W.2d 663 (1983) established some guidelines for making the determination of best interest:

 

To arrive at the point of deciding with whom to place a child in preparation for a caring and productive adult life requires consideration of many relevant factors, including but certainly not limited to the age, habits, mental and emotional make-up of the child and those parties competing for custody; the education and experience of those seeking to raise the child; their character and propensities as evidenced by their past conduct; the financial and physical circumstances available in the home of each party seeking custody and the special requirements of the child; the availability and extent of third-party support; the associations and influences to which the child is roost likely to be exposed in the alternatives afforded, both positive and negative; and where is the greater likelihood of an environment for the child of love, warmth, stability, support, consistency, care and concern, and physical and spiritual nurture.

 

The Court in Russell v. Russell, 2000 LEXIS 716 (Tenn. App., 2000) also explained:

“In determining the best interest of the child and in engaging in the comparative fitness test, subtle factors such as parent's demeanor and credibility during the pendency of the divorce trial can be a determining factor for the trial court" .

      

       In establishing an appropriate residential schedule, the Court must make residential provisions for the child consistent with the child's developmental level and the family's social and economic circumstances with an aim toward encouraging each parent to maintain a loving, stable and nurturing relationship with the child, T.C.A. 36-6-404(b). The residential schedule shall be established upon the Court's consideration of the following factors:

(1) The parent's ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society which the child faces as an adult;

(2) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and tbe other parent, consistent with the best interests of the child;

(4) Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent's lack of good faith in these proceedings;

(5) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(6) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

(7) The love, affection, and emotional ties existing between each parent and the child;

(8) The emotional needs and developmental level of the child;

(9) The character and physical and emotional fitness of each parent as it relates to each parent's ability to parent or the welfare of the child;

(10) The child's interaction and interrelationships with siblings and with significant adults, as well as the child's involvement with the child's physical surroundings, school, or other significant activities;

(11) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;

(12) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

(13) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child;

(14) The reasonable preference of the cbild if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;

(15) Each parent's employment schedule, and the court may make accommodations consistent with those schedules; and

(16) Any other factors deemed relevant by the court.

 

Based upon the applicable factors and other criteria upon which Tennessee courts have made parenting determinations, this Court concludes that the manifest best interests of the child will be served by establishing a residential schedule with attendant parenting responsibilities in accordance with the Amended Permanent Parenting Plan attached hereto as Exhibit A. By virtue of the residential schedule established, Ms. Cockrum is designated as the primary residential parent.

Each party shall inform the other parent of the current address and telephone number where he/she may be reached in the event of an emergency. Any parent who desires to relocate outside the State of Tennessee or more than 100 miles from the other parent within this state shall send a written notice to the other parent at that parent's last known address by registered or certified mail. Said notice shall be mailed not later than 60 days prior to the anticipated move.  In such instances, the parties shall comply with all provisions of T.CA. 36-6-108 and any amendments thereto.

 

                        CONTEMPT

                       "An act of contempt is a wilful or intentional act that offends the court and its administration of justice", Ahern v. Ahern, 15 S.W.3d 73 (2000); T.C.A. 29-9-102. In Tennessee,

contempt is classified as either civil or criminal, depending upon the action taken by the court to address the contempt. Title 29, Chapter 9, of the Tennessee Code on Remedies and Special Proceedings provides the grounds for contempt and the remedies available to courts. T.C.A. 29_9­102 provides:

 

The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:

 

(1) The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice.

 

(2) The willful misbehavior of any of the officers of said courts, in their official transactions.

 

(3) The willful disobedience or resistance of any officer of the said courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of said courts.

 

(4) Abuse of, or unlawful interference with, the process or proceedings of the court.

 

(5) Willfully conversing with jurors in relation to the merits of the cause in the trial of which they are engaged, or otherwise tampering with them.

 

(6) Any other act or omission declared a contempt by law.

 

To find contempt under this statute, a court must determine the behavior, disobedience, resistence [sic], or interference to be willful. Considering the testimony of parties and witnesses and the evidence admitted, this Court determines that Ms. Cockrum has not been shown

to have exhibited willful misbehavior, disobedience, resistence [sic] or interference relative to previous Orders of this Court.

            Mr. Woodfin’s request for reimbursement of his travel expenses is denied.  Travel expenses are not allowable discretionary costs, T.R.C.P. 54.04.  All costs in connection with this matter shall be divided equally between the parties.  Each party shall bear his/her own attorney’s fees.  This Memorandum and Order shall constitute a Final Judgment.

            This 28^th day of October, 2003.

 

                                                            Thomas R. Frierson, II, Chancellor