The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 14, 2015 Session
KATHERINE SANKO v. CLINTON SANKO
Appeal from the Chancery Court for Hamilton County
No. 13-0273 Hon. W. Frank Brown, III, Chancellor
No. E2014-01816-COA-R3-CV-FILED-JUNE 16, 2015
This post-divorce appeal concerns the mother‟s notice of intent to relocate to
Pennsylvania with the parties‟ minor children. The father responded by filing a petition
in opposition to the requested relocation. Following a hearing, the trial court granted the
father‟s petition. The mother appeals. We reverse the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY and THOMAS R. FRIERSON, II, JJ., joined.
John P. Konvalinka and Jillyn M. O‟Shaughnessy, Chattanooga, Tennessee, for the
appellant, Katherine Sanko.
Jennifer H. Lawrence, Chattanooga, Tennessee, for the appellee, Clinton Sanko.
OPINION
I. BACKGROUND
Katherine Sanko (“Mother”) and Clinton Sanko (“Father”) were married on May
18, 2001, in Butler, Pennsylvania. Four children were born of the marriage, namely
Connor (D.O.B. 6/12/2003), Alyssa (D.O.B. 4/12/2005), Makayla (D.O.B. 2/13/2007),
and Brenden (D.O.B. 7/29/2008) (collectively “the Children”). Mother and Father
(collectively “Parents”) relocated to Chattanooga, Tennessee following the birth of
Connor. Throughout the majority of the marriage, Mother remained home to care for the
Children, while Father pursued a successful legal career.
Mother filed a complaint for legal separation on April 18, 2013, alleging
inappropriate marital conduct and irreconcilable differences as statutory grounds. Father
responded by filing a counter-complaint for divorce, also alleging inappropriate marital
conduct and irreconcilable differences as statutory grounds. Parents were divorced by
final decree in February 2014. Mother was awarded rehabilitative alimony in the amount
of $4,000 per month for 36 months, followed by $3,500 per month for an additional 24
months. The divorce decree incorporated a parenting plan in which Mother was
designated as the primary residential parent of the Children, while Father was awarded
125 days of co-parenting time. Shortly thereafter, Mother filed a motion to alter or
amend, requesting that alimony be increased and extended for an additional five years to
allow her to pursue advanced education to establish a career. The trial court granted the
motion, in part, by awarding rehabilitative alimony in the amount of $4,000 per month
for 48 months, as opposed to 36 months, followed by $3,500 per month for an additional
12 months, as opposed to 24 months. The order was entered on March 28, 2014.
On May 1, 2014, Mother provided Father with a notice of intent to relocate to
Butler, Pennsylvania, citing an educational opportunity and proximity to relatives as
reasons for the relocation. Father responded by filing a petition in opposition to the
requested relocation, asserting that Mother‟s relocation was proposed in a vindictive
manner, was neither reasonable nor in the best interest of the Children, and would cause
irreparable harm to the Children. He noted that Mother intentionally left her family in
Pennsylvania to move to Tennessee and that her relatives rarely visited and were not
involved with the Children to any significant degree. He asserted that Mother could
easily pursue suitable educational opportunities in Tennessee. Mother denied Father‟s
allegations and filed a proposed parenting plan that provided him with 108 days of co-
parenting time and provided for the Children‟s enrollment at a private school.
A hearing was held at which several witnesses testified. James K. Matta, Sr.,
Ed.D., testified that he served as the coordinator of the clinical mental health track in the
Master of Arts counseling program at Geneva College in Beaver Falls, Pennsylvania.1
He stated that Geneva College was a faith-based college founded on Reformed
Presbyterian principles and that the counseling program was accredited by the Council
for Accreditation of Counseling and Related Education Programs (“the CACREP”),
which was a very highly regarded accreditation in the mental health field. He provided
that the Veteran‟s Administration required their counselors to attend programs accredited
by the CACREP.
Dr. Matta asserted that Mother likely applied to the counseling program in March
2014, because she was notified of her acceptance in May 2014. He said that the
1
Beaver Falls is approximately 20 miles from Butler, Pennsylvania.
-2-
counseling program offered three tracks, a clinical mental health track, a marriage and
family counseling track, and a school counseling track. He related that students could
obtain a degree in any track by attending classes during the day until approximately 4:30
p.m. He stated that students in the school counseling track must complete 51 credit
hours, while those who sought licensing as a professional counselor needed 60 credit
hours to obtain a license. He encouraged students in the school counseling track to
continue their schooling until they obtained the requisite hours to obtain a professional
license. He claimed that students could obtain 60 credit hours in two years by taking 12
credit hours each semester and attending summer courses. He claimed that each credit
hour cost approximately $620. He estimated that students who attained licensing as a
professional counselor could anticipate an income from $30,000 to $40,000 per year,
while students who completed the school counseling program and then achieved
certification could anticipate a higher income.
Dr. Matta testified that he was uncertain as to whether Mother could obtain a
professional license in Tennessee based upon her completion of the program at Geneva
College. He explained that each state has a licensure board with differing requirements.
Father testified that he did not have any knowledge of Mother‟s intent to relocate
prior to his receipt of the relocation letter in May 2014. He opined that Mother‟s request
to relocate was unreasonable and intended to inflict pain upon him. He acknowledged
that his parents, Mother‟s parents, and Mother‟s brother and sister-in-law lived in
Pennsylvania and that neither he nor Mother had any extended family in Tennessee. He
asserted that Mother did not have much contact with her brother but agreed that the
maternal grandparents usually visited once per year and provided gifts for the Children at
Christmas and on birthdays. He noted that he and Mother traveled to Pennsylvania to
visit their respective families twice per year.
Father acknowledged that maternal grandparents are loving grandparents but
opined that they are also largely uninvolved. He stated that he and Mother moved away
from their respective families to Chattanooga at Mother‟s insistence. He explained that
Mother attended Covenant College in Lookout Mountain, Georgia, prior to their marriage
and wanted to return to the area to reconnect with college friends and the church she
attended while in college.
Father stated that he consistently exercised his co-parenting time every Thursday
afternoon until Friday morning and every other weekend from Thursday afternoon until
Sunday afternoon pursuant to the parenting plan. He claimed that his co-parenting time
was “going very well” and that he had prepared a place in his new residence for the
Children with furniture, toys, and games. He also enrolled the Children in a number of
-3-
extracurricular activities. He opined that the Children are doing well at their new school
and had also made friends in the neighborhood.
Father testified that he was currently a partner at a law firm in Chattanooga,
Tennessee. He was doubtful as to whether he could find comparable employment in
Pennsylvania. He explained that his law firm had an office in Atlanta, Georgia, but not
Pennsylvania. He admitted that he could fly directly from Atlanta to Pennsylvania but
asserted that he had no desire to relocate to Atlanta. He opined that maintaining
comparable visitation with the Children on a long-distance basis would require him to
reduce his title and significantly modify his compensation. He noted that traveling to
Pennsylvania would require a 660-mile drive or a drive to Atlanta, a flight to
Pennsylvania, and then a drive to Butler. He related that if Mother relocated, he would
be unable to attend school events or exercise co-parenting time during the week. He
believed that weekly communication was necessary to maintain a relationship with the
Children. He said that the proposed parenting plan was complex with arduous notice
provisions and only provided him with 108 days of co-parenting time, which was a 17-
day reduction in his co-parenting time.
Father testified that Mother refused to communicate with him except by e-mail or
text message and provided him with very little information concerning the Children. He
claimed that he was dependent upon the Children and their respective schools for
information. He noted that she failed to keep him apprised of Brenden‟s occupational
therapy appointments and had procured glasses for Connor without his knowledge. He
stated that he attended the Children‟s events and activities when he was able and admitted
that Mother also provided him with a “couple of short videos” from events that he was
unable to attend. He agreed that she had been willing to work with him to accommodate
his schedule on the few occasions he was unable to exercise his co-parenting time. He
claimed that he had also assisted her with the Children once when she was sick during her
co-parenting time.
Father testified that he was unfamiliar with the private school designated by
Mother. He provided that the Children had spent most of their lives in Chattanooga. He
claimed that he was more than willing to care for the Children while Mother pursued an
advanced education in Tennessee. He asserted that he was supportive of her desire to
attend school and that he could schedule his employment around her schedule. He
provided that she could choose from a number of institutions in the Chattanooga area.
Mother testified that she received a Bachelor‟s degree in sociology with a
concentration in marriage and family counseling from Covenant College. She attended
Covenant College because of its affiliation with the Presbyterian Church and its
integration of the Christian faith into the classroom. She advised the court during the
-4-
divorce hearing that she sought an advanced degree and had researched a number of
schools, including Geneva College and the University of Tennessee at Chattanooga
(“UTC”). She also researched Southern Adventist University (“SAU”). She claimed that
employment without an advanced degree in her field would only yield a salary of
approximately $25,000 to $30,000.
Mother testified that SAU‟s program was not CACREP accredited. She stated that
she originally planned to attend UTC, which was CACREP accredited, but that the social
work program she desired was unavailable. She asserted that UTC‟s counseling program
provided classes after the Children were finished with school for the day. She noted that
attaining degrees in school counseling and professional counseling from UTC would
require at least three years of schooling. She provided that she could attain the credits for
dual licensures from Geneva College, which was CACREP accredited, in approximately
two years during the day while the Children attended school. She opined that a dual
licensure made her more marketable and provided her with the flexibility to maintain a
private practice and work while the Children attended school. She stated that she also
preferred Geneva College for its integration of the Christian faith into the classroom.
Mother testified that if she were allowed to relocate, her parents would assist her
with the Children until she returned home from class around 5:00 p.m. She noted that her
sister-in-law was also available to help her. She stated that she did not have any family in
Tennessee and that she could not depend on her friends in the area for assistance when
they had families of their own. She asserted that she spoke with her parents daily and
that they visited her and the Children twice per year.
Mother testified that she visited her parents in June 2014 and enrolled the Children
at Penn Christian Academy in Pennsylvania to secure their placement in the event that the
court allowed her to relocate. She provided that Penn Christian Academy was a small
Christian school that was academically challenging. She noted that tuition for the
Children without financial assistance would cost approximately $1,200 per month. She
also researched the public schools in the area and found that they were very well-
respected. She acknowledged that her relocation would disrupt the Children‟s current
schooling but asserted that the Children had not been challenged academically since their
removal from Chattanooga Christian School.
Mother testified that she worked to accommodate Father‟s schedule on a number
of occasions since the separation and that she never declined his request for assistance
with the Children during his co-parenting time. She also provided him with videos of
school performances when he was unable to attend. She acknowledged that her
communication with Father was limited to e-mail and text message. She explained that
written correspondence allowed for more clarity because she and Father had a history of
-5-
miscommunication. She opined that their communication had improved since the
separation but agreed that she had not engaged Father in any form of personal
conversation when exchanging the Children for co-parenting time. She acknowledged
that she had refused his request to enroll the Children in extracurricular activities.
Mother testified that her proposed parenting plan provided Father with visitation
in accordance with the Children‟s school calendar. She claimed that in addition to the
dates specified in the parenting plan, Father could also visit the Children upon request if
he traveled to Pennsylvania. She asserted that she intended to provide Father with a
substantial amount of co-parenting time and that she would consider returning to
Tennessee once she attained her degree.
David F. Ross, Ph.D., a professor of psychology at UTC, testified that he had
reviewed graduate counseling programs in Tennessee. He related that there were six
universities in East Tennessee that offered on-site counseling programs, namely East
Tennessee State University in Johnson City, Lee University in Cleveland, Richmont
Graduate University in Chattanooga, SAU in Collegedale, UTC, and the University of
Tennessee at Knoxville (“UTK”). He provided that there were also four universities that
offered online counseling programs, namely Capella University in Minnesota, Liberty
University in Virginia, University of Massachusetts, and Walden University in Maryland.
UTC, UTK, and Cappella University were the only universities that had achieved
CACREP accreditation for their counseling programs. He agreed that Richmont
Graduate University did not have a school counseling program. He noted that the
completion of a counseling program did not guarantee the receipt of a license and that
each state had differing licensing requirements. He acknowledged that UTC and UTK
required the completion of a graduate entrance examination.
Dr. Ross testified that UTC offered a Master‟s of Education in Clinical Mental
Health Counseling or School Counseling. He stated that the clinical mental health
counseling program required 60 credit hours, while the school counseling program
required between 48 and 50 credit hours. He noted that some of the courses required for
each program overlapped. He agreed that he was in the psychology department, not the
education department and could not speak definitively as to whether one could use one
course to fulfill credit hours in both programs. He acknowledged that he was not aware
of a student that had obtained the credit hours to receive a dual degree in school
counseling and mental health counseling.
Dr. Ross stated that the programs are small with approximately 10 to 13 students
in each class and that class offerings are dependent upon the enrollment of a suitable
number of students. He explained that the faculty worked very closely with the students
in guiding their career and development, evaluating their progress, and in interacting with
-6-
the institution where the student is placed in the field. He opined that the stated
classroom times are flexible as evidenced by the fact that internships and practicums are
completed in the field, not in the classroom. He agreed that students might be required to
meet in the classroom at the stated time after working in the field. He believed that a
student could also work with the department head to adjust the time of a course. He
stated that UTC would also allow for the transfer of online courses once the specified
course went through an evaluation process and that professors might allow for some
coursework to be completed online.
Dr. Ross testified that SAU offered a school counseling program that was
accredited by the National Council for Accreditation of Teacher Education. He opined
that the format at SAU was comparable to UTC. He stated that Lee University also
offered school counseling and professional counseling programs. He related that Lee
University was a Christian-based school that placed emphasis on integrating counselors
into the community by involvement with social programs. He acknowledged that Lee
University did not provide online courses. He stated that Liberty University was a
Christian-based school that allowed for the online completion of the school counseling or
professional counseling program. He acknowledged that Liberty University requires the
completion of four on-campus intensive seminars. He stated that Walden University also
allowed for the online completion of the school counseling program with the additional
requirement that students attend on-campus intensive seminars.
Following the presentation of the above evidence, the trial court granted Father‟s
petition in opposition of Mother‟s request to relocate. The court found that the relocation
did not have a reasonable purpose, that her motive for relocating was vindictive, and that
the proposed relocation was not in the best interest of the Children. This timely appeal
followed.
II. ISSUES
We consolidate and restate the issues raised by Parents on appeal as follows:
A. Whether the trial court erred in granting the petition in opposition to
the relocation pursuant to Tennessee Code Annotated section 36-6-
108(d)(1).
B. Whether Father was entitled to attorney fees at trial pursuant to
Tennessee Code Annotated section 36-6-108(i).
C. Whether either party is entitled to attorney fees on appeal pursuant to
Tennessee Code Annotated section 36-6-108(i).
-7-
III. STANDARD OF REVIEW
On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them.
Tenn. R. App. P. 13(d). The trial court‟s conclusions of law are subject to a de novo
review with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47
(Tenn. 2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Mixed questions of law and fact are reviewed de novo with no presumption of
correctness; however, appellate courts have “great latitude to determine whether findings
as to mixed questions of fact and law made by the trial court are sustained by probative
evidence on appeal.” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995). “„Because
[c]ustody and visitation determinations often hinge on subtle factors, including the
parents‟ demeanor and credibility during . . . proceedings,” appellate courts “are reluctant
to second-guess a trial court‟s decision.‟” Hyde v. Bradley, No. M2009-02117-COA-R3-
JV, 2010 WL 4024905, at *3 (Tenn. Ct. App. Oct. 12, 2010) (quoting Johnson v.
Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004)).
IV. DISCUSSION
A.
The parental relocation statute, codified at Tennessee Code Annotated section 36-
6-108 governs this action. The statute creates a mechanism for determining whether a
parent who has custody of a child may relocate outside the state or more than 100 miles
from the other parent within Tennessee. Tennessee Code Annotated section 36-6-
108(d)(1) applies in this action because Father concedes that he does not spend
substantially equal intervals of time with the children. The provision provides:
(d)(1) If the parents are not actually spending substantially equal intervals
of time with the child and the parent spending the greater amount of time
with the child proposes to relocate with the child, the other parent may,
within thirty (30) days of receipt of the notice, file a petition in opposition
to removal of the child. The other parent may not attempt to relocate with
the child unless expressly authorized to do so by the court pursuant to a
change of custody or primary custodial responsibility. The parent spending
the greater amount of time with the child shall be permitted to relocate with
the child unless the court finds:
(A) The relocation does not have a reasonable purpose;
-8-
(B) The relocation would pose a threat of specific and serious
harm to the child that outweighs the threat of harm to the
child of a change of custody; or
(C) The parent‟s motive for relocating with the child is
vindictive in that it is intended to defeat or deter visitation
rights of the non-custodial parent or the parent spending less
time with the child.
Tenn. Code Ann. § 36-6-108(d)(1). The parent opposing the relocation bears the burden
of proof to establish one of these three grounds. Clark v. Clark, No. M2002-03071-
COA-R3-CV, 2003 WL 23094000, at *3 (Tenn. Ct. App. Dec. 20, 2003). The relocation
shall be permitted if the opposing parent fails to prove any of the three grounds. Tenn.
Code Ann. § 36-6-108(d)(1). If the court finds one of the grounds to be present, “the
court shall determine whether or not to permit relocation of the child based on the best
interest of the child.” Tenn. Code Ann. § 36-6-108(e).
In this case, the trial court based its determination on the reasonableness of the
relocation and the motive behind the desire to relocate. Father does not allege on appeal
that the relocation posed a threat of serious and specific harm. In finding that Mother‟s
motive for relocating was vindictive, the trial court stated, in pertinent part,
[B]ecause of the proposed relocation, [Mother‟s] proposed parenting plan
makes it very inconvenient and expensive for [Father] to travel to [the
Pittsburgh area to see the children]. The meeting way in West Virginia
would take a lot of time by car which would cut into the parental sharing
time.
The Court believes that this ground is proved on the basis of the totality of
this case. One, obviously [Mother] is frustrated and perhaps even angry.
The Court in the summer of 2013 approved the three older children going
to public school for the first time. Previously, they had gone to
Chattanooga Christian School. Money was an issue in the home and
[Father] was the only working parent. Obviously this decision did not set
well with [Mother] because she believed that the children should be
involved in private Christian education.
***
In the divorce case when it was tried in December, [Mother] in one way
wanted all the parties‟ assets, at least the valuable assets. She wanted all
-9-
the equity derived from the sale of the marital residence. She wanted all of
[Father‟s] various accumulated retirement benefits. She wanted all the
bonus that was going to be paid to him in early 2014 for his 2013 annual
compensation. She also wanted [Father] to pay her alimony for the rest of
her life. The Court did not grant all of her wishes.
She filed a motion to alter or amend and asked for additional alimony. The
Court had granted her five years of alimony . . . . She asked the Court
because her proposed education would require three years that she be given
additional alimony in order to make the transition not only from a stay-at-
home mom to student, but also to an employee.
She wanted an additional five years which meant she would have gotten ten
years of alimony for a roughly 12 and half to 13-year marriage. . . .
In real estate, location is the key. Sometimes in divorce litigation, timing is
the key. The day after the motion to alter or amend, [Father] was sent a
relocation letter. . . . . [T]he timing of [Mother‟s] relocation letter is very
close to the time of her notification [of acceptance into Geneva College‟s
counseling program].
If you look at the surface of the picture, [Mother‟s] returning to her
hometown where her parents, brother and sister-in-law and other extended
family live looks really good. However, I think the underlying facts give a
different picture. That is . . . [Mother] chose to leave Pennsylvania to
pursue her college education . . . She returned to Pennsylvania thereafter,
after graduation [but then returned to Tennessee after her marriage to
Father].
***
[Mother‟s] parents, according to her testimony, may average two times a
year coming to Chattanooga. Her brother and his wife have never visited
[Parents] in Chattanooga. [Parents] usually go to their parents‟ home once
or twice a year.
There is no evidence that [Mother] has attempted to apply for any jobs
since she filed the divorce complaint. There has been no application to any
other school, college or university other than to Geneva College. Normally,
one would expect quite an adjustment from being a stay-at-home
mother/wife to being a full-time student taking 12 [credit hours] a semester
- 10 -
while managing four minor children at home. The track is five straight
semesters; fall, spring, summer, fall, spring.
It appears that [Mother‟s] plans have been very deliberate in that she visited
in Pennsylvania and made a tentative reservation for [the Children] to
attend Penn Christian School. It was interesting for the Court to look at her
proposed permanent parenting plan in which she indicated the educational
decisions would be joint. However, [Father‟s] first knowledge of [the
school] was after the fact, after she had made reservations.
***
[Mother] has proposed the first weekend of each month for [Father] to visit
the children in Pennsylvania on Friday after school until Monday morning.
As a practical matter, he would have to fly from Atlanta to Pittsburgh in
order to have any significant time during such a weekend. Obviously, if he
did not return the children until Monday morning at school time, then his
work for Monday would probably be done away with.
She did propose some possible long weekends, but those weekends
excluded holiday weekends. She wanted 14-day notice. There was a
possibility of fifth weekends, but the problem is the great distance between
Chattanooga and Pittsburgh.
After noting that some of the stated reasons supporting evidence of vindictiveness
overlapped with the determination as to whether the relocation was reasonable, the court
addressed the reasonableness of the relocation as follows:
The Court finds that it is reasonable for her to go to grad school. What the
Court finds unreasonable is the fact that she has decided to go to Geneva
College in Butler, Pennsylvania [and take the Children]. The Court does
not feel that that is reasonable.
In part, she never made application to any other college or university. She
did not talk to the head of any department. She has her mind – and she is
entitled to this – what she thinks is best. She wants to do a dual track
program where she can get two certifications. She can go to Geneva
without taking the GRE and she believes that‟s the best way to go.
There was some discussion about her . . . returning to Chattanooga. I don‟t
think there is any chance that she will return to Chattanooga after getting a
- 11 -
master‟s degree from Geneva College, because one, she will be
automatically licensed in Pennsylvania. That would not necessarily happen
for Tennessee. There is no discussion about Tennessee reciprocity or what
Tennessee would require.
This may be an over-simplification, but it seems to me that [Mother] is of
the opinion that life is all about her and what she wants and [Father‟s]
purpose in life is to pay for what she wants.
Thereafter, the court supplemented its bench opinion to include the following points:
One, [Mother] was concerned that the UTC classes, she showed as an
exhibit, were late in the afternoon and would interfere with her care of the
children. She did not ask [Father] if he could provide parental-sharing time
during the time she was in class and the children were not in school or help
provide someone to be with the children.
Two, [Father] has become a much more engaged father with the children
since the divorce process began. In effect, part of what [Mother] wanted
has been accomplished. However, that father-child time and bond would
be greatly decreased and weakened if she moved to Pennsylvania with the
children.
Three, [Mother‟s] attendance at Geneva College would be very expensive
compared to UTC or another public university. There are several colleges
that offer an online master‟s program.
Four, [Mother], other than the offer to meet [Father] in West Virginia if
parental-sharing time was effectuated by motor vehicle travel, did not offer
to share transportation costs. See Tenn. Cod[e] Ann. § 36-6-108(f) (Supp.
2013). She did not propose the use of skype and web cam as a way for
[Father] to see the children and they to see him.
Five, [Mother] did not present any evidence about her proposed residence,
number of bedrooms, baths, etc. The court mentions this as something only
because [Mother] made her college decision and the educational decision
for the parties‟ four children before moving to Pennsylvania. Therefore, the
court thinks she made this decision also.
- 12 -
Reasonable purpose
Mother claims that the trial court erred in finding that her purpose for relocating
was unreasonable. Mother presents six reasons in support of her relocation, including (1)
the ability to attend classes during the day while the Children attend school, (2) Geneva
College provides a dual licensure program in the fields of school counseling and
professional counseling, (3) Geneva College is certified by CACREP, (4) the ability to
graduate with a dual degree in approximately two years, (5) Geneva College is a faith-
based school, and (6) proximity to extended family. Father responds that the trial court
did not err in finding that Mother‟s purpose for relocating was unreasonable. He notes
that there are comparable institutions in Tennessee, that maternal grandparents are largely
uninvolved with the Children, and that he is available to take care of the Children while
Mother attends school.
“[D]eterminations concerning whether a proposed move has a reasonable purpose
are fact-intensive and require a thorough examination of the unique circumstances of
each case.” In re Spencer E., No. M2009-02572-COA-R3-CV, 2011 WL 295896, at *11
(Tenn. Ct. App. Jan. 20, 2011) (citation omitted). “[T]he „reasonable purpose‟ of the
proposed relocation must be a significant purpose, substantial when weighed against the
gravity of the loss of the non-custodial parent‟s ability „to participate fully in their
children‟s lives in a more meaningful way.‟” Webster v. Webster, No. W2005-01288-
COA-R3-CV, 2006 WL 3008019, at *14 (Tenn. Ct. App. Oct. 24, 2006) (quoting Aaby v.
Strange, 924 S.W.2d 623, 631 (Tenn. 1996)). “As this [c]ourt has held in the past, the
desire of a primary residential parent to move to be near his or her extended family can
form the basis for a reasonable purpose, particularly when this reason is augmented by
additional considerations.” Rogers v. Rogers, No. W2006-00858-COA-R3-CV, 2007
WL 1946617, at *11 (Tenn. Ct. App. July 3, 2007) (citing Price v. Bright, No. E2003-
02738-COA-R3-CV, 2005 WL 166955, at *11 (Tenn. Ct. App. Jan. 26, 2006); (Caudill v.
Foley, 21 S.W.3d 203, 212 (Tenn. Ct. App. 1999)). In Rogers, the court held that the
purpose for relocating was unreasonable when the only reason for the proposed move was
the proximity of extended family. 2007 WL 1946617, at *11 (noting that even that
reason was speculative when the extended family had not yet moved to the proposed
location). In contrast, this court determined in Price and Caudill that the purpose for
relocating was reasonable when the relocating parent sought to be near family and when
there were concrete job opportunities available. Price, 2005 WL 166955, at 11; Caudill,
21 S.W.3d, at 212.
Here, Father argues that Mother only asserted that she had the possibility of an
increased income after completing the programs at Geneva College and did not present
any evidence of a tangible job offer. We agree that Mother did not have a tangible job
offer awaiting her following relocation. However, Mother presented many other
- 13 -
considerations in support of her proposed relocation. Notably, Mother would be eligible
for dual licensures following two years of schooling, as opposed to the speculative
opportunity of qualifying for dual licensure at UTC after approximately three years of
schooling. Mother also preferred Geneva College for its accredited program and its
integration of faith into the classroom. Most importantly, Mother wanted to maintain her
role as primary care-giver for the Children by attending classes during the day, as
opposed to attending classes at night and depending on Father, who has substantial work
obligations. While we acknowledge that maternal grandparents only visited the Children
on occasion, Father presented no evidence to establish that they were unfit or unwilling to
assist Mother with the Children when necessary. Instead, Father argues that Mother‟s
desire to return to family should not be considered reasonable when she initially choose
to move to Chattanooga away from her family. We disagree. It was only natural for
Mother to reach out to family when faced with the reality of divorce and the prospect of
becoming a single mother. With all of the above considerations in mind, we conclude
that the stated purposes for relocating provided by Mother were reasonable and
substantial when considered together and that the purposes outweighed Father‟s loss of
co-parenting time. We reverse the decision of the trial court because the court‟s finding
that the relocation did not have a reasonable purpose was contrary to the preponderance
of the evidence.
Vindictive motive
Mother asserts that the trial court erred in finding that her motive for relocating
was vindictive. Father responds that the court did not err. The legislature provided that
the motive for relocation is “vindictive” within the meaning of the statute when “it is
intended to defeat or deter visitation rights of the non-custodial parent or the parent
spending less time with the child.” Tenn. Code Ann. § 36-6-108(d)(1)(C). “We are not
at liberty to broaden the definition of „vindictive‟ provided by the legislature in the
parental relocation statute.” Rudd v. Gonzalez, No. M2012-02714-COA-R3-CV, 2014
WL 872816, at *8 (Tenn. Ct. App. Feb. 28, 2014).
In deciding that Mother‟s motive was vindictive, the court focused primarily on
the timing of the relocation letter, her desire to gain the assets and not the liabilities from
the marriage, her refusal to communicate with Father other than by electronic means, her
enrollment of the Children in school without Father‟s permission, and the difficulties
inherent in exercising co-parenting time as a result of the relocation. Mother advised the
court at the divorce hearing in December 2013 that she was considering attendance at
Geneva College. Specifically, the testimony provided as follows:
Q. With regard to schools, what schools have you looked at?
- 14 -
A. I‟ve looked at UTC and Richmont. I‟ve looked at a number of schools.
I‟ve looked at Southern as well as online programs and Geneva College.
Q. What are you hoping to do with regard to schooling? What institution?
A. I haven‟t decided yet. I‟m hoping to go to UTC for the – I was hoping
to go for the master‟s of social work, but it does not look like that‟s going
to be available at this time.
The court gave Mother five years to establish herself before Father‟s alimony obligation
expired. It is understandable that Mother sought to immediately pursue her preferred
educational opportunity when faced with the reality of becoming a single mother with a
less than desirable income.
Additionally, Mother‟s anger toward Father as it related to the separation and
divorce does not demonstrate vindictiveness as defined by the statute at issue. It is
understandable that Mother sought the assets and not the liabilities from the divorce.
She, like any divorcing litigant, sought the best financial outcome for herself. Parents are
also not required to maintain a friendship or even communicate without the aid of
electronic devices while in the midst of divorcing or even after the divorce becomes final.
However, we agree that Mother should strive to foster better communication in some
form regarding the Children and their schooling.
Parents have had their difficulty since the divorce, just like any divorcing couple,
but they have been able to successfully follow the parenting plan as it relates to co-
parenting time without incident. Indeed, Father did not present any evidence to establish
that Mother ever lessened or hindered his co-parenting time. To the contrary, the
evidence reflects that Mother was amenable to Father‟s attempts to connect with the
Children and that one of her motivations for seeking separation was Father‟s lack of
attention to the family. We acknowledge that Mother‟s relocation will naturally result in
less co-parenting time for Father due to distance and his work restraints. Such is the case
when most parents relocate. The record is simply devoid of any evidence that the motive
for relocating was vindictive in that it was intended to defeat or deter Father‟s co-
parenting time. With these considerations in mind, we reverse the decision of the trial
court because the court‟s finding of vindictiveness was contrary to the preponderance of
the evidence.
Having concluded that the evidence preponderates against the trial court‟s finding
that Father established that the relocation did not have a reasonable purpose and that the
motive for relocating was vindictive, we need not address whether the relocation was in
- 15 -
the best interest of the Children. See Tenn. Code Ann. 36-6-108(d)(1) (providing that
relocation shall be permitted unless one of the enumerated grounds has been established).
B. & C.
Mother asserts that the trial court abused its discretion in awarding attorney fees to
Father at trial. She also requests attorney fees on appeal. Father responds that the court
properly awarded him attorney fees at trial and asserts that Mother waived the right to
recover attorney fees on appeal by not requesting them in the trial court. He also requests
attorney fees on appeal.
Tennessee follows the American Rule which provides that “litigants pay their own
attorney‟s fees absent a statute or an agreement providing otherwise.” State v. Brown &
Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000); accord Taylor v. Fezell,
158 S.W.3d 352, 359 (Tenn. 2005). “Under the American [R]ule, a party in a civil action
may recover attorney fees only if: (1) a contractual or statutory provision creates a right
to recover attorney fees; or (2) some other recognized exception to the American [R]ule
applies, allowing for recovery of such fees in a particular case.” Cracker Barrel Old
Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citing Taylor, 158
S.W.3d at 359; John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn.
1998)). “[A]s a general principle, the American [R]ule reflects the idea that public policy
is best served by litigants bearing their own legal fees regardless of the outcome of the
case.” House v. Estate of Edmondson, 245 S.W.3d 372, 377 (Tenn. 2008).
Tennessee Code Annotated section 36-6-108(i) provides as follows:
Either parent in a parental relocation matter may recover reasonable
attorney fees and other litigation expenses from the other parent in the
discretion of the court.
Father is no longer permitted to recover attorney fees at trial or on appeal as the
prevailing party as a result of this court‟s decision. Donald F. Bradford v. James W. Sell,
No. E2008-02424-COA-R3-CV, 2009 WL 3103814, at *7 (Tenn. Ct. App. Sept. 29,
2009) (“A party who prevails in the trial court but loses on appeal is no longer the
prevailing party.”) We reverse Father‟s award of attorney fees at trial and respectfully
deny his request for attorney fees on appeal. Mother never requested attorney fees at
trial; however, she has requested attorney fees on appeal from this court. Contrary to
Father‟s assertion, Mother‟s request for attorney fees on appeal is not subject to waiver.
However, we respectfully deny Mother‟s request for attorney fees on appeal.
- 16 -
V. CONCLUSION
The judgment of the trial court is reversed. The case is remanded for further
proceedings such as modification of the parenting plan, including the designation of a
school for the Children, to accommodate Mother‟s relocation. Costs of the appeal are
taxed to the appellee, Clinton Sanko.
_________________________________
JOHN W. McCLARTY, JUDGE
- 17 -