Trevor Howell v. Kennedy Smithwick

02/01/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 4, 2017

TREVOR HOWELL v. KENNEDY SMITHWICK

Appeal from the Chancery Court for Anderson County

No. 14CH6820 M. Nichole Cantrell, Chancellor

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No. E2016-00628-COA-R3-CV

___________________________________

Mother has appealed the trial court’s decisions regarding parenting time, criminal

contempt, child support, and the child’s surname. We have determined that the trial court

erred in finding Mother in criminal contempt as to one of the three incidents at issue, in

setting temporary child support, in failing to order Father to pay child support by wage

assignment, and in ordering the child’s surname to be changed to Father’s surname. In

all other respects, we affirm the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

in Part, Vacated in Part, Reversed in Part, and Remanded

ANDY D. BENNETT, J., delivered the opinion of the court, in which CHARLES D. SUSANO,

JR., and KENNY W. ARMSTRONG, JJ., joined.

Bruce T. Hill, Sevierville, Tennessee, for the appellant, Kennedy Smithwick.

Trevor Howell, Oak Ridge, Tennessee, appellee, pro se.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Trevor Howell (“Father”) and Kennedy Smithwick (“Mother”) are the parents of a

child born in December 2014. The parents were no longer together at the time of the

child’s birth. Within a week of the birth, Father filed a petition to establish paternity and

custody. On January 21, 2015, the parties submitted an agreed order pursuant to which

Father would have parenting time every Wednesday for four hours and every Saturday

for four hours.

After paternity was established, the parties attended mediation. On May 21, 2015,

the trial court entered an agreed temporary parenting plan order pursuant to which Father

would exercise parenting time every Wednesday from 11:00 a.m. until 6:00 p.m., every

Friday from 3:30 p.m. until 7:00 p.m., every Saturday from 11:00 a.m. until 6:00 p.m.,

and every other Sunday from 10:00 a.m. until 6:00 p.m. The order provided for approved

child care providers while the child was in the care of each parent. The parties also

agreed that “Father shall pay child support in the amount of $300.00 per month to

Mother” and that “this amount is correct as a deviation from the guidelines given Father’s

time with the child.” The agreed order states that “this temporary parenting plan will be

modified by agreement, mediation, or hearing upon Father obtaining different

employment, Mother discontinuing breastfeeding, or October 1, 2015, whichever occurs

first.”

On December 3, 2015, Father filed a verified motion for criminal contempt against

Mother alleging that she was in criminal contempt for violating the temporary parenting

plan agreement entered on May 21, 2015. The details of this petition will be set forth as

relevant in the analysis below. On December 9, 2015, the trial court entered a show

cause order and notice of rights pursuant to Rule 42 of the Tennessee Rules of Criminal

Procedure. Father filed an amended verified motion for contempt on December 16, 2015.

The case was heard on January 26, 2016. Father, Mother, Patricia Spraker

(paternal grandmother), and Ashley McCarter (Father’s girlfriend) testified. The court

took the matter under advisement and then made a ruling from the bench, with findings of

fact and conclusions of law, on January 27, 2016; the court entered its final order on

February 23, 2016.

The February order includes a detailed analysis of the factors set forth in Tenn.

Code Ann. § 36-6-106(a). The court reached the following relevant conclusions:

3. Breastfeeding does not prohibit Father’s co-parenting time. The minor

child is thirteen months old and has the ability to eat baby and solid food as

well as drink milk from a sippy cup.

4. The Father is a good parent and shows a willingness to co-parent by

testimony of witnesses and both parties. Co-parenting time with the Father,

by law, should be maximized.

5. It is in the best interest of the minor child that the Father immediately

have overnights with the child but that the extended periods of overnight be

on a graduated plan.

....

7. The Mother committed three acts of criminal contempt by failing to

comply with an order of this Court as it relates to visitation between the

minor child and the Father. The Mother willfully and knowingly failed to

comply with an order of this Court on three occasions by not allowing the

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Father to have visitation with the minor child as contained in the Agreed

Temporary Parenting Plan Order. . . . Mother shall pay for reasonable

attorney fees for the contempt pending both attorneys submitting an

affidavit of times.

8. The minor child’s surname shall be changed to Howell . . . .

The trial court entered a new parenting plan giving Mother and Father equal

parenting time and naming Mother the primary residential parent. The court established a

transitional period, from January 29 through February 24, 2016, during which Father

would begin to exercise more overnight parenting time. Then, as of February 24, 2016,

the regular parenting schedule would be as follows:

[T]he Mother shall have co-parenting time with the minor child every

Monday at 6:00 p.m. until Wednesday at 6:00 p.m. and the Father shall

have co-parenting time every Wednesday at 6:00 p.m. until Friday at 6:00

p.m. The parties shall alternate the following block: Friday at 6:00 p.m.

until Monday at 6:00 p.m.

Based upon the child support guidelines, Father was required to pay Mother $139.00 per

month in child support beginning on February 1, 2016. Mother was awarded a judgment

in the amount of $300.00 in retroactive child support.

On March 15, 2016, the trial court entered an agreed amendment to its February

23, 2016 order stating that “each party shall be responsible for their own respective

attorney fees on all issues, including, but not limited to, criminal contempt.” This order

was entered nunc pro tunc January 26, 2016, the date of the hearing.

On appeal, Mother raises a number of issues, which we summarize as follows:

whether the trial court erred in (1) finding Mother in criminal contempt; (2) failing to

adopt Mother’s proposed parenting plan; (3) its calculation of temporary child support;

(4) failing to require Father to pay child support by wage assignment; and (5) changing

the child’s surname to Father’s surname.1

ANALYSIS

(1) Criminal contempt

Mother raises two main arguments on the issue of contempt: lack of notice and

failure of proof beyond a reasonable doubt. We begin with notice.

A. Notice

1

Father did not file a brief on appeal.

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All courts have the power to punish for criminal contempt pursuant to Tenn. Code

Ann. § 29-9-102(3) in cases of “willful disobedience or resistance of any . . . party . . . to

any lawful writ, process, order, rule, decree, or command of such courts.” (Emphasis

added). Tennessee Rule of Criminal Procedure 42(b)(1) requires that a criminal

contempt be prosecuted on notice, which shall:

A. state the time and place of the hearing;

B. allow the alleged contemner a reasonable time to prepare a defense; and

C. state the essential facts constituting the criminal contempt charged and

describe it as such.

In cases involving indirect contempt, which concern actions committed outside the

presence of the court, adequate notice “must be given before the contempt hearing.” Fox

v. Fox, No. M2009-01884-COA-R3-CV, 2010 WL 4244356, at *6 (Tenn. Ct. App. Oct.

26, 2010); see TENN. R. CRIM. P. 42(b)(1).

Mother asserts that she was not properly served with the original or amended

verified motion for criminal contempt because the motions were served on her attorney

and not on her personally. Mother likewise argues that the court’s show cause order and

notice of Rule 42 rights was not served on her personally.2 These arguments are without

merit. Rule 49 of the Tennessee Rules of Criminal Procedure requires service upon

“every other party” of written motions (other than ex parte motions) and court orders

required by their terms to be served upon the parties. TENN. R. CRIM. P. 49 (a)(1). Rule

49 further provides: “When the law, these rules, or a court order requires or permits

service to be made on a party represented by an attorney, the service shall be made on the

attorney unless service on the party in person is required by law or is ordered by the

court.” TENN. R. CRIM. P. 49 (b)(1). The permissible methods of service include mailing

a copy to the attorney’s last known address. TENN. R. CRIM. P. 49(b)(2)(B). Thus,

service upon Mother’s attorney constitutes service upon Mother.

Mother further argues that the trial court failed to advise her of her rights prior to

her testimony at the hearing, that the show cause order failed to give notice of the specific

instances of contemptuous behavior, and that the order’s erroneous mention of the Rules

of Civil Procedure in the title is a fatal error. In the show cause order, which was served

upon Mother through her attorney, the trial court put Mother on notice of the following:

1. Each violation of the Orders of this Court subjects the Defendant to 10

days in jail and a fifty dollar ($50.00) fine.

2. The Plaintiff seeks contempt sanctions for each failure listed in the

2

Mother also suggests that her attorney was not served with the show cause order, but the

certificate of service on the order states otherwise.

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pleadings. These allegations must be proven by Plaintiff beyond a

reasonable doubt to subject [Mother] to being found guilty of contempt.

3. You are entitled to bail throughout these proceedings.

If found guilty of contempt, the Court shall enter an Order setting the

punishment for each violation so found.

Furthermore, the Defendant is put on notice that she has the

following rights pursuant to Rule 42 of the Tennessee Rules of Criminal

Procedure:

A. You have the right to be represented by counsel, and if you are unable

to afford one, counsel shall be appointed for you.

B. You have the right to have guilt proven against you beyond a reasonable

doubt with the burden of proof being on the Petitioner.

C. You have the right against self-incrimination, which includes the right

to remain silent as to the allegations of criminal contempt filed against

you.

D. You have the right to a presumption of innocence until such time as the

allegations of guilt are proven beyond a reasonable doubt; and

E. You have all other rights afforded to any other individual charged with

violation of a criminal statute except the right for a trial by jury.

Although the show cause order erroneously referenced the Rules of Civil Procedure in

the title, the body of the order sets forth the pertinent provisions of Rule 42 of the

Tennessee Rules of Criminal Procedure and gave Mother notice of her rights under Rule

42. At the hearing, Mother took advantage of the rights afforded to her under Rule 42 by

invoking her Fifth Amendment right not to answer questions that might incriminate her.

Moreover, although the order did not detail the specific acts of contempt alleged, the

amended motion for contempt filed on December 16, 2015 and served on Mother through

her attorney specifies the three incidents of contempt, as will be discussed below.

We find no merit in Mother’s arguments that she did not receive adequate notice

of the criminal contempt motion or the show cause order.

B. Proof beyond a reasonable doubt

Convictions for criminal contempt are punitive in nature, and “their primary

purpose is to vindicate the court’s authority.” Long v. McAllister-Long, 221 S.W.3d 1, 12

(Tenn. Ct. App. 2006); see also Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App.

1993) (citing Gunn v. S. Bell Tel. & Tel. Co., 296 S.W.2d 843, 844 (Tenn. 1956)). A

person charged with criminal contempt enjoys a presumption of innocence and must be

found guilty beyond a reasonable doubt. Long, 221 S.W.3d at 13 (citing Black v. Blount,

938 S.W.2d 394, 398 (Tenn. 1996)). A person found guilty of criminal contempt may be

imprisoned for up to ten days for each offense, fined $50, or both. Tenn. Code Ann. § 29-

9-103; Thigpen, 874 S.W.2d at 53. Sanctions for criminal contempt are imposed for no

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reason other than punishment, so a person imprisoned for contempt cannot win freedom

by complying with the court’s order. Long, 221 S.W.3d at 12-13 (citing Robinson v.

Fulliton, 140 S.W.3d 304, 310 (Tenn. Ct. App. 2003)).

Once a person is convicted of criminal contempt, he or she loses the presumption

of innocence and must overcome the presumption of guilt on appeal. Thigpen, 874

S.W.2d at 53. “‘Appellate courts do not review the evidence in a light favorable to the

accused and will reverse criminal contempt convictions only when the evidence is

insufficient to support the trier-of-fact’s finding of contempt beyond a reasonable

doubt.’” Moody v. Hutchison, 159 S.W.3d 15, 25 (Tenn. Ct. App. 2004) (quoting Barber

v. Chapman, No. M2003-00378-COA-R3-CV, 2004 WL 343799, at *2 (Tenn. Ct. App.

Feb. 23, 2004)).

There are three elements to criminal contempt: “‘(1) a court order, (2) the

defendant’s violation of that order, and (3) proof that the defendant willfully violated that

order.’” Pruitt v. Pruitt, 293 S.W.3d 537, 545 (Tenn. Ct. App. 2008) (quoting Foster v.

Foster, No. M2006-01277-COA-R3-CV, 2007 WL 4530813, at *5 (Tenn. Ct. App. Dec.

20, 2007)). In the context of criminal contempt, willfulness requires that an act be “‘done

voluntarily and intentionally and with the specific intent to do something the law

forbids.’” Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 357

(Tenn. 2008) (quoting State v. Braden, 867 S.W.2d 750, 761 (Tenn. Crim. App. 1993));

see also In re Carolina M., M2014-02133-COA-R3-CV, 2016 WL 6427853, at *5 (Tenn.

Ct. App. Oct. 28, 2016) (stating that “[w]illfulness, in the context of criminal contempt,

requires both (1) intentional conduct, and (2) a culpable state of mind”).

The trial court found Mother guilty of three acts of criminal contempt alleged to

have occurred on July 31, 2015, November 7, 2015, and November 18, 2015. With

respect to November 7, 2015, Father made the following allegations in his amended

motion for criminal contempt:

Mother refused Father’s visitation on November 7, 2015. The Mother

advised Father that she would not allow him visitation on this date because

she had plans. The Father had not agreed to forgo his visitation with the

minor child nor had the Mother consulted him prior to her denial of the

Father’s visitation with the minor child. The Defendant willfully violated

section 1 of the Agreed Temporary Parenting Plan Order on November 7,

2015.

At the hearing, Mother stated that she and her boyfriend went to the Dixie Stampede on

November 7, 2015, a Saturday. She further testified:

Q. And do you recall having a discussion about having plans with Mr.

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Howell?

A. Yes.

Q. And he said what?

A. He said okay. And I told him you can get her another Sunday or

throughout the week to make up the visit. He said okay.

Q. Did you have any reason to believe when Mr. Howell said okay that he

really was not in agreement with that?

A. No, because I didn’t think—he wasn’t okay—he was okay with it at the

time, but then when he found out what we were doing and who we were

doing it with, then that’s when he got mad about it, because I didn’t tell him

we had plans to go to Dixie Stampede. I just said, hey, we have plans on

November 7th, and he said okay.

Q. So it wasn’t until later that he then objected?

A. Right.

Father gave the following pertinent testimony:

Q. You had said you missed a visit because Ms. Smithwick told you that

she had plans and really she was at Dixie Stampede with her boyfriend?

A. Right.

Q. Did you ever ask her what her plans were?

A. No.

Q. Going to Dixie Stampede is having plans.

A. Right.

Q. Did you ever say no?

A. Not that I can remember.

Q. Did you say anything?

A. I think I just said okay.

Q. So if you said okay, is that not agreeing?

A. Yes, it is.

Based upon the evidence that Father agreed for Mother to exercise parenting time on

November 7, 2015, we conclude that the trial court erred in finding Mother in criminal

contempt for deviating from the temporary parenting plan on that day.

The allegations regarding July 31, 2015 are that Mother willfully refused Father’s

visitation as follows:

Father advised Mother that his designee would be receiving the child for

this visitation as allowed by the order. His designee and approved child

care provider, Ashley McCarter, who had a valid driver’s license, arrived at

the designated time and place with proper equipment to transport the minor

child. When Ms. McCarter arrived to pick up the child, not only was she

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denied the ability to leave with the child, but Mother attempted to instigate

an altercation with Ms. McCarter and the Defendant’s mother, the maternal

grandmother, vandalized Ms. McCarter’s vehicle. The Defendant willfully

and intentionally violated the Agreed Temporary Parenting Plan Order,

specifically section 1, section 5, and section 6 on July 31, 2015.

Similarly, with respect to November 18, 2015, the amended motion for criminal contempt

alleges that Mother delayed Father’s visitation time in the following manner:

The Father’s designee and approved child care provider, his mother,

Patricia Spraker, was to pick the child up at the designated place and time.

Patricia Spraker had a valid driver’s license and proper equipment to

transport the minor child on November 18, 2015. When Patricia Spraker

contacted Mother prior to the pickup, Mother advised the paternal

grandmother she would not be at the location to exchange the child.

Mother did not allow Father to begin visitation this day until 4:00 p.m.

absent agreement with the Petitioner. The Defendant willfully violated

section 1, section 5, and section 6 on November 18, 2015.

Section one of the agreed temporary parenting plan order, referenced in Father’s

motion for criminal contempt, sets forth the parenting schedule. Section five provides

that the receiving parent or his or her designee “will transport the child for visitation, so

long as the transporting individual has a valid driver’s license and proper equipment for

transport of a child this age.” Section six states that “approved child care providers while

child is in Father’s care [are] Ashley McCarter, Trina Howell, or Patricia Spraker.”

Mother attempts to justify her actions on July 31 and November 18, 2015 by emphasizing

that Father’s work schedule had changed, that his girlfriend and mother were caring for

the child for much of his parenting time, and that mediation should have occurred to

change the parenting schedule. Mother argues that “[s]he understood that the mediated

agreement was based upon times that the father could actually exercise his co-parenting

time.”

Mother’s arguments are contrary to the actual language of the agreed temporary

parenting plan, which explicitly provides for approved child care providers while in the

other parent’s care. Moreover, the temporary parenting plan states that it “will be

modified by agreement, mediation, or hearing upon Father obtaining different

employment, Mother discontinuing breastfeeding, or October 1, 2015, whichever occurs

first.” Thus, contrary to Mother’s position, mediation was not the only means for

modification of the agreement. Furthermore, she had the option of requesting mediation,

or a hearing, if she felt that modification was necessary. Until then, Mother was bound

by the terms of the temporary parenting plan. We find no error in the trial court’s

decision to find Mother in criminal contempt for her actions on July 31 and November

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18, 2015.3

(2) Parenting Plan

Mother argues that the trial court erred in failing to adopt her proposed parenting

schedule, pursuant to which Father would have six overnight visits every two weeks.

Mother’s plan also required each parent to give the other parent the right of first refusal to

keep the child in the event that the parent himself or herself could not personally care for

the child for a period of four or more hours.4 Mother asserts, in particular, that the trial

court failed to give proper consideration to the fact that she is still breastfeeding and to

the parties’ employment schedules.

Trial courts have “broad discretion” to fashion parenting plans, as the Tennessee

Supreme Court has explained:

Because decisions regarding parenting arrangements are factually driven

and require careful consideration of numerous factors, Holloway v. Bradley,

190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit, 948

S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have the

opportunity to observe the witnesses and make credibility determinations,

are better positioned to evaluate the facts than appellate judges. Massey-

Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus,

determining the details of parenting plans is “peculiarly within the broad

discretion of the trial judge.” Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.

1988) (quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App.

1973)). “It is not the function of appellate courts to tweak a [residential

parenting schedule] in the hopes of achieving a more reasonable result than

the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). A

trial court’s decision regarding the details of a residential parenting

schedule should not be reversed absent an abuse of discretion. Id. “An

abuse of discretion occurs when the trial court ... appl[ies] an incorrect legal

standard, reaches an illogical result, resolves the case on a clearly erroneous

assessment of the evidence, or relies on reasoning that causes an injustice.”

3

Mother also argues that Father is estopped from claiming that she engaged in criminal contempt

because he consented to exercising makeup parenting time. There is no evidence of makeup time directly

related to the two instances as to which we have found no error. We find no merit in Mother’s argument.

Mother also assigns error to the trial court’s award of attorney fees against her with regard to the criminal

contempt award. However, as set forth in the procedural summary above, this part of the trial court’s

order was amended by agreed order on March 15, 2016, and Mother was not required to pay Father’s

attorney fees.

4

The permanent parenting plan adopted by the trial court requires a right of first refusal for a

twelve-hour time period during which the parent cannot personally care for the child.

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Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).

Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013). Thus, the Armbrister Court

concluded, an appellate court will not find that a trial court has abused its discretion

unless the trial court’s parenting arrangements “‘fall[ ] outside the spectrum of rulings

that might reasonably result from an application of the correct legal standards to the

evidence found in the record.’” Id. (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 88

(Tenn. 2001)).

On the breastfeeding issue, Mother objects to the following statements made by

the trial court in the final order:

The Court has concerns about the Mother’s ability to facilitate a

relationship with the Father as she testified that her relationship with the

child is more important than the Father’s relationship with the child, and

that she, the Mother, has custody of the child, and the Father only has

visitation with the child, and the Mother’s sworn testimony that her

relationship with the child was more important than the Father having a

relationship with the child.

It should be noted that these statements were made in the context of the court’s analysis

regarding changing the child’s surname, discussed below. Mother asserts that she

explained her deposition testimony about being “more important” at the hearing:

Q. And you were asked [at her deposition] if you are more important of a

parent and you testified yes. Why at this time or prior to this time did you

think that?

A. To sustain her life, she has to eat and she eats through me. Again, I’ve

tried to feed her and she refuses. She’s very independent. She knows what

she wants.

Q. So the only reason for saying that is because you are her food source?

A. Yes, I’m her food source. I feel like me and Trevor are—we love her

equally. I know that he’s just as important as a parent than I am, but

unfortunately, he can’t feed her breast milk.

Mother further testified that she had difficulty pumping breast milk, had developed

numerous infections, and had been advised by her doctor to stop pumping. Mother

argues that there was no medical proof that her breastfeeding regimen was inappropriate

and that the trial court failed to give proper consideration to the fact that she is still

breastfeeding the child.

In considering the best interest of the child and all of the statutory factors pursuant

to Tenn. Code Ann. § 36-6-106(a), the trial court made the following finding:

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“Breastfeeding does not prohibit Father’s co-parenting time. The minor child is thirteen

months old and has the ability to eat baby and solid foods as well as drink milk from a

sippy cup.” The factual findings stated by the court are supported by the evidence.

Mother further asserts that the trial court failed to properly consider the parties’

work schedules. Citing In re Connor S.L., No. W2013-00668-COA-R3-JV, 2013 WL

5230258, at *5 (Tenn. Ct. App. Sept. 16, 2013), she argues that she should have received

more parenting time because of her greater availability. We disagree. Decisions

regarding parenting time are “factually driven.” Armbrister, 414 S.W.3d at 693. In In re

Connor S.L., both parents worked; the mother’s job at the child’s day care allowed her to

be more available for parenting time than the father, who had two jobs, would be. In re

Connor S.L., 2013 WL 5230258, at *11. In the present case, Mother has chosen not to

work in order to stay at home with the child; Father is working two jobs in an effort to

support himself and the child. The trial court stated that, pursuant to Tenn. Code Ann. §

36-6-106(a)(14), it took Father’s work schedule into account “in the formulation of the

day to day co-parenting schedule.”

The trial court analyzed all of the other statutory factors set forth in Tenn. Code

Ann. § 36-6-106(a) as follows:

a. Pursuant to Tenn. Code Ann. § 36-6-106(a)(1), the strength, nature,

and stability of the child’s relationship with each parent: The Mother

has performed most of the day to day parenting because of her own

decision to restrict the Father’s co-parenting time.

b. Pursuant to Tenn. Code Ann. § 36-6-106(a)(2)[,] each parent’s or

caregiver’s past and potential for future performance of parenting

responsibilities: the Mother is not attempting to facilitate a

relationship with the Father. Based on a reading of the text messages

exchanged between the parties and submitted as a collective exhibit to

the Court, the Mother has a practice of limiting the Father’s co-

parenting time due to reasons because it is cold outside to the Father

cannot make up his visitation because the Mother said so. No proof

was proffered as to any just reason to restrict the Father’s co-parenting

time. The Court has concerns about the Mother’s ability to foster a

relationship between the child and the Father.

c. Pursuant to Tenn. Code Ann. § 36-6-106(a)(3), refusal to attend a

court ordered parent education seminar: while not a factor for ruling

as no parenting class was previously ordered, both parents shall

complete a parenting class within sixty days. . . .

d. Pursuant to Tenn. Code Ann. § 36-6-106(a)(4), the disposition of each

parent to provide the child with food, clothing, medical care,

education and other necessary care: Both parents are willing and able

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to provide the child with food, clothing, medical care, education and

other necessary care.

e. Pursuant to Tenn. Code Ann. § 36-6-106(a)(5), the degree to which a

parent has been the primary caregiver: the Mother has been the

primary caregiver since the child’s birth and the Court takes this into

consideration.

f. Pursuant to Tenn. Code Ann. § 36-6-106(a)(6), the love, affection, and

emotional ties existing between each parent and the child: The child is

bonded with both parents. This is not a determining factor.

g. Pursuant to Tenn. Code Ann. § 36-6-106(a)(7), the emotional needs

and developmental level of the child: The child is developing well

and maximization of co-parenting should occur . . . for the emotional

and developmental needs of the child.

h. Pursuant to Tenn. Code Ann. § 36-6-106(a)(9), the child’s interaction

and interrelationships with siblings, other relatives and step-relatives,

and mentors, as well as the child’s involvement with the child’s

physical surroundings, school, or other significant activities: The

child has a sibling, a half-brother, and this relationship needs to be

fostered. Further, both parents have extended family and the child

needs as much contact with extended family as possible to foster those

relationships.

i. Pursuant to Tenn. Code Ann. § 36-6-106(a)(10), [t]he importance of

continuity in the child’s life and the length of time the child has lived

in a stable, satisfactory environment: The child is young, being

thirteen months old, and while the Mother has been the primary

residential parent, the child will adapt to the co-parenting schedule.

j. Pursuant to Tenn. Code Ann. § 36-6-106(a)(11), evidence of physical

or emotional abuse . . . . There has been no evidence as to any abuse.

k. Pursuant to Tenn. Code Ann. § 36-6-106(a)(12), 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: There are no

concerns in either of the parent’s homes. The only concern is the

Mother’s lack of knowledge of her boyfriend’s history of drug abuse.

A reasonable parent would fully inform themselves regarding the drug

abuse history of a paramour, if not for current concerns, but to know

what to look for in the future.

l. Pursuant to Tenn. Code Ann. § 36-6-106(a)(13), the reasonable

preference of the child if twelve (12) years of age or older: This factor

does not apply.

....

n. Pursuant to Tenn. Code Ann. § 36-6-106(a)(8), the moral, physical,

mental and emotional fitness of each parent as it relates to their ability

to parent the child: There are no concerns with either parent’s fitness

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as a parent.

The trial court found that Father “is a good parent and shows a willingness to co-

parent.” Therefore, the court stated, “Co-parenting time with the Father, by law, should

be maximized.” The trial court concluded that, “It is in the best interest of the minor

child that the Father immediately have overnights with the child but that the extended

periods of overnight be on a graduated plan.”

We cannot say that the trial court abused its discretion in declining to adopt the

parenting schedule proposed by Mother and in adopting the parenting schedule

incorporated in the final order. Under the permanent parenting plan enacted by the trial

court, each parent has equal parenting time and an equal number of overnight visits, but

the regular parenting time is staggered so that the child is never away from either parent

for more than three days. The trial court considered all of the relevant statutory

factors and entered a parenting plan that does not “‘fall[ ] outside the spectrum of rulings

that might reasonably result from an application of the correct legal standards to the

evidence found in the record.’” Armbrister, 414 S.W.3d at 693 (quoting Eldridge, 42

S.W.3d at 88).5

(3) Temporary Child Support

The agreed temporary parenting plan order entered by the trial court on May 21,

2015, based upon the parties’ agreement reached in mediation, provides: “Father shall

pay child support in the amount of $300.00 per month to Mother . . . , beginning in June,

with no arrearage owing. Parties agree that this amount is correct as a deviation from the

guidelines given Father’s time with the child.” Mother asserts that the trial court erred in

5

Mother objects to a provision in the parenting plan providing that the child’s entry into

kindergarten “shall constitute a material change in circumstance and the parties shall mediate prior to the

child being enrolled in school.” She contends that this provision makes the plan a temporary, rather than

a permanent, parenting plan. Mother cites no authority for this argument and states only that this

provision is “very confusing” and “clear error.” Tennessee Rule of Appellate Procedure 27(a)(7)(A)

provides that “[t]he brief of the appellant shall contain . . . [a]n argument . . . setting forth the contentions

of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why

the contentions require appellate relief, with citations to the authorities and appropriate references to the

record . . . relied on.” A “[p]laintiff’s failure to comply with the Rules of Appellate Procedure and the

rules of this Court waives the issues for review.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000).

In her brief, Mother states an argument but does not provide reasons or authority to support that

argument. We, therefore, consider this issue waived.

It should be noted that, under Tenn. Code Ann. § 36-6-101(a)(2)(C), in cases involving

modification of a residential parenting schedule (not modification of the primary residential parent), a

material change of circumstance “may include, but is not limited to, significant changes in the needs of

the child over time, which may include changes relating to age . . . .”

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setting temporary child support at $300 a month because there was no child support

worksheet and no proper explanation for the deviation from the child support guidelines.

The child support guidelines provide that they “shall be applicable in every

judicial or administrative action to establish, modify, or enforce child support, whether

temporary or permanent . . . .” TENN. COMP. R. & REGS. 1240-02-04-.01(2)(a). The

child support guidelines contain the following requirements regarding deviations from the

amount of child support required pursuant to the guidelines:

(b) The tribunal may order as a deviation an amount of support different

from the amount of the presumptive child support order if the deviation

complies with the requirements of this paragraph (1) and with this chapter.

The amount or method of such deviation is within the discretion of the

tribunal provided, however, the tribunal must state in its order the basis for

the deviation and the amount the child support order would have been

without the deviation. In deviating from the Guidelines, primary

consideration must be given to the best interest of the child for whom

support under these Guidelines is being determined.

(c) When ordering a deviation from the presumptive amount of child

support established by the Guidelines, the tribunal’s order shall contain

written findings of fact stating:

1. The reasons for the change or deviation from the presumptive amount of

child support that would have been paid pursuant to the Guidelines; and

2. The amount of child support that would have been required under the

Guidelines if the presumptive amount had not been rebutted; and

3. How, in its determination,

(i) Application of the Guidelines would be unjust or inappropriate in the

particular case before the tribunal; and

(ii) The best interests of the child for whom support is being determined

will be served by deviation from the presumptive guideline amount.

TENN. COMP. R. & REGS. 1240-02-04-.07(1) (emphasis added). Although the agreed

temporary parenting plan order states that the deviation from the child support guideline

amount is justified by “Father’s time with the child,” the order does not give the

presumptive amount of child support or discuss how application of the guidelines “would

be unjust on inappropriate” or how deviation would serve the best interest of the child.6

TENN. COMP. R. & REGS. 1240-02-04-.07(1)(c).

6

The fact that temporary support was set through an agreement of the parties is not dispositive.

“‘[A]s a general rule, a custodial parent may not waive her minor child’s right of support.’” Huntley v.

Huntley, 61 S.W.3d 329, 335-36 (Tenn. Ct. App. 2001) (quoting Norton v. Norton, No. W1999-02176-

COA-R3-CV, 2000 WL 52819, at *4 (Tenn. Ct. App. Jan.10, 2000)).

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Because the order setting temporary child support does not comply with the

requirements of the child support guidelines, we must vacate this part of the order and

remand for a determination that complies with the guideline requirements.

(4) Wage Assignment

Mother asserts that the trial court erred, in the permanent parenting plan, in failing

to order Father to pay child support by wage assignment despite a specific finding that

Father was in arrears.

Tennessee Code Annotated section 36-5-501 provides as follows with respect to

income withholding:

(a)(1) For any order of child support issued, modified, or enforced on or

after July 1, 1994, the court shall order an immediate assignment of the

obligor’s income, including, but not necessarily limited to: wages, salaries,

commissions, bonuses, workers’ compensation, disability, payments

pursuant to a pension or retirement program, profit sharing, interest,

annuities, and other income due or to become due to the obligor. The order

of assignment shall issue regardless of whether support payments are in

arrears on the effective date of the order. The court’s order, shall include

an amount sufficient to satisfy an accumulated arrearage, if any, within a

reasonable time. The order may also include an amount to pay any medical

expenses that the obligor owing the support is obligated or ordered to pay.

Withholding shall not exceed fifty percent (50%) of the employee’s income

after FICA, withholding taxes, and a health insurance premium that covers

the child, are deducted. The order shall also include an amount necessary to

cover the fee due the clerk of the court or the department, if appropriate. In

the event the court does not order an immediate assignment pursuant to

subdivision (a)(2), every order shall be enforceable by income assignment

as provided in this chapter.

(2)(A) Income assignment under this subsection (a) shall not be required:

(i) If, in cases involving the modification of support orders, upon proof

by one party, there is a written finding of fact in the order of the

court that there is good cause not to require immediate income

assignment and the proof shows that the obligor has made timely

payment of previously ordered support. “Good cause” shall only be

established upon proof that the immediate income assignment would

not be in the best interests of the child. The court shall, in its order,

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state specifically why such assignment will not be in the child’s best

interests; or

(ii) If there is a written agreement by both parties that provides for

alternative arrangements. Such agreement must be reviewed by the

court and entered in the record.

(Emphasis added).

By its clear language, Tenn. Code Ann. § 36-5-501(a) makes it mandatory for a

trial court to “order an income assignment, absent specific statutory exceptions [quoted

above].” Horine v. Horine, No. E2013-02415-COA-R3-CV, 2014 WL 6612557, at *9

(Tenn. Ct. App. Nov. 24, 2014); see also Reeder v. Reeder, 375 S.W.3d 268, 277 (Tenn.

Ct. App. 2012) (finding no error in trial court’s wage assignment due to Father’s failure

to show good cause to be excused from requirement). In the present case, there is no

written agreement between the parties for alternative arrangements for the payment of

child support. As to the first exception, the trial court’s order does not contain written

findings setting forth good cause to excuse Father from wage assignment.7 We,

therefore, agree that the trial court erred in failing to order Father to pay child support by

wage assignment.

(5) Name Change

Mother’s final argument is that the trial court erred in changing the child’s

surname to Father’s surname.

Pursuant to Tenn. Code Ann. § 68-3-305(b)(1), the surname of a child born to an

unmarried mother shall be the surname of the mother or the mother’s maiden surname or

a combination of those two surnames. See also In re Joseph H., No. M2014-01765-

COA-R3-JV, 2015 WL 5032066, at *3 (Tenn. Ct. App. Aug. 25, 2015). A child’s

surname does not change as the result of a paternity determination unless the court so

orders. In re Jacob H.C., No. M2012-02421-COA-R3-CV, 2013 WL 6155608, at *3

(Tenn. Ct. App. Nov. 20, 2013); Sullivan v. Brooks, No. M2009-02510-COA-R3-JV,

2011 WL 2015516, at *1 (Tenn. Ct. App. May 23, 2011).

The standards for analyzing the propriety of changing a nonmarital child’s

surname are set forth in Barabas v. Rogers:

7

In Horine, this Court noted that “Section 36-5-501(a)(2)(A)(i) [the good cause exception] only

appears to apply when a party is seeking a modification of a previously ordered child support award.”

Horine, 2014 WL 6612557, at *10. Because the trial court’s permanent parenting plan was not a

modification of child support, this exception would not even apply.

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The courts should not change a child’s surname unless the change promotes

the child’s best interests. Among the criteria for determining whether

changing a child’s surname will be in the child’s best interests are: (1) the

child’s preference, (2) the change’s potential effect on the child’s

relationship with each parent[,] (3) the length of time the child has had its

present surname, (4) the degree of community respect associated with the

present and proposed surname, and (5) the difficulty, harassment, or

embarrassment that the child may experience from bearing either its present

or its proposed surname. The parent seeking to change the child’s surname

has the burden of proving that the change will further the child’s best

interests.

Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993) (citations omitted).

Furthermore, “[t]he amount of proof required to justify the change is ‘not insubstantial.’”

In re A.C.S., No. M2008-898-COA-R3-JV, 2009 WL 348510, at *3 (Tenn. Ct. App. Feb.

12, 2009) (quoting Brown v. Baird, No. 01A01-9704-JV-00148, 1997 WL 638278, at *1

(Tenn. Ct. App. Oct. 17, 1997)). “Minor inconvenience or embarrassment” is not

sufficient. Brown, 1997 WL 638278, at *1.

At the hearing, Father was asked for the reasons why it was important to change

the child’s surname to his surname. He emphasized that Mother’s surname is not the

surname of her biological father.8 We do not consider this fact relevant, however.

Mother’s surname is her surname. Father also testified: “I want my daughter growing up

having my last name, you know, having, you know, relation to the last name. It doesn’t

make sense to why [Mother] wouldn’t want her daughter to have her father’s last name,

but her sisters’ dad’s last name.” The mere preference of a parent is not a reason to

justify a name change under Tenn. Code Ann. § 68-3-305(b)(1). See Whited v. Fleenor,

No. E2002-01185-COA-R3-JV, 2003 WL 1092968, at *2 (Tenn. Ct. App. Mar. 13, 2003)

(stating that “[t]here is nothing to indicate in the best interest analysis that incorporates as

a relative factor the mere preference of a parent to bestow his or her name); see also In re

Joseph H., 2015 WL 5032066, at *6.

In its final order, the trial court used different reasoning to justify its decision to

change the child’s surname to Father’s surname. The court went through the Barabas

factors:

a. The child’s preference: none.

b. The change’s potential effect on the child’s relationship with each

parent: This factor is the determining factor. The Mother has allowed

her boyfriend the benefits of paternity that she has not allowed the

8

Mother’s surname is the surname of her legal father, to whom Mother’s mother was married at

the time of her birth.

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Father [by allowing him overnight visits in the household with Mother

and the child]. The Court has concerns about the Mother’s ability to

facilitate a relationship with the Father as she testified that her

relationship with the child is more important than the Father’s

relationship with the child, and that she, the Mother, has custody of the

child, and the Father only has visitation with the child, and the Mother’s

sworn testimony that her relationship with the child was more important

than the Father having a relationship with the child. The Mother’s

history of thwarting the Father’s co-parenting time was also a

consideration, as well as the Mother’s hostility towards the Father and

the extended (paternal) family. Based on this history, changing the

child’s surname to that of the Father will further strengthen their

relationship.

c. The length of time the child has had its present surname: The time the

child has had the last name of Smithwick is short given the child is

thirteen months old.

d. The degree of community respect associated with the present and

proposed surname: Neither parent’s surname is either disreputable or

respected in the community.

e. The difficulty, harassment, or embarrassment that the child may

experience from bearing either its present or its proposed surname:

There is none. The child likely does not even know [its] current

surname.

(Emphasis added). Thus, the sole reason for the trial court’s decision to change the

child’s surname to Father’s surname was its concern over Mother’s previous attempts to

thwart the relationship between Father and child and its belief that changing the child’s

surname would somehow strengthen the relationship between the child and Father. The

burden of proof was upon Father to support a finding that a change of surname would

serve the best interest of the child. We find no evidence in the record to support a

conclusion that changing the child’s surname to Father’s surname would improve the

relationship between Father and the child. See generally In re A.C.S., 2009 WL 348510,

at *3 (finding that “there appears no proof that a change of the child’s surname will effect

a change in the child’s relationship with either parent”).

We conclude that the trial court erred in changing the child’s surname to Father’s

surname.

CONCLUSION

We reverse the trial court’s finding of criminal contempt with respect to the

November 2015 incident, but affirm the trial court’s decision regarding the other two

criminal contempt findings. We affirm the trial court’s decision regarding the permanent

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parenting schedule. We vacate the trial court’s determination of temporary child support,

and reverse its determinations regarding wage assignment and changing the child’s

surname. This case is remanded to the trial court for further proceedings consistent with

this opinion. Costs of this appeal shall be taxed equally to both parties, and execution

may issue if necessary.

_________________________________

ANDY D. BENNETT, JUDGE

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