Joseph Martin Colley v. Alisha Dale McBee

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 18, 2016 Session

JOSEPH MARTIN COLLEY v. ALISHA DALE MCBEE

Appeal from the Circuit Court for Marion County

No. 15829 J. Curtis Smith, Judge

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No. M2014-02296-COA-R3-CV – Filed February 2, 2017

___________________________________

This case concerns modification of a parenting plan. Following her divorce in

Tennessee, Mother moved with her child to Maryland. Father initially opposed the move,

but an agreed order entered after the move adopted an amended permanent parenting

plan, which named Mother the primary residential parent. The amended permanent

parenting plan granted Father parenting time over the summer, during certain holidays,

and when either Father traveled to Maryland or Mother traveled to Tennessee. After

experiencing difficulties exercising parenting time and growing concern over Mother‟s

care of the child, Father filed a petition requesting to be named primary residential parent.

The trial court denied the request. Although it found a material change in circumstances

based on the child‟s serious mental health issues, the court determined that it was in the

best interest of the child to remain with Mother. Father appeals arguing that the trial

court erred in: (1) finding it was in the child‟s best interest for Mother to remain the

primary residential parent; (2) not finding Mother in contempt; and (3) awarding

attorney‟s fees to Mother. We affirm the decision of the trial court.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT

and RICHARD H. DINKINS, JJ., joined.

Joseph Martin Colley, Whitwell, Tennessee, pro se appellant.

Trudy Bloodworth, Nashville, Tennessee, for the appellee, Alisha Dale McBee.

OPINION

I. FACTUAL HISTORY AND PROCEDURAL BACKGROUND

Alisha Dale McBee (“Mother”) and Joseph M. Colley (“Father”) are the parents of

a child (“Child”) born in 2003. They divorced on February 17, 2006, when Child was

two. Mother was designated the primary residential parent.

In 2008, Mother moved with Child to Maryland. In response, Father filed a

petition opposing parental relocation, to find Mother in contempt, and to modify custody

in the Circuit Court for Marion County, Tennessee. The parties successfully mediated

their dispute, and on April 17, 2008, the court entered an agreed order, which modified

the previous permanent parenting plan.

Under the amended permanent parenting plan, Mother remained the primary

residential parent. But the plan did not specify a number of days for Father to exercise

his parenting time. The plan granted Father parenting time on every spring break and for

thirty-five consecutive days in the summer. Otherwise, Father‟s parenting time was

contingent on the parents‟ travel schedule.

The new plan allowed Father parenting time if he traveled to Maryland, and the

plan also required Mother to notify Father if she traveled to Tennessee. If Mother came

to Tennessee for Thanksgiving, Child went to Father on Thanksgiving Day at 2:00 p.m.

If Mother did not come to Tennessee for Thanksgiving, the parties were to alternate the

Thanksgiving holidays. For Christmas, if Mother came to Tennessee, Child went to

Father from noon on Christmas day until the day before school or the date of Mother‟s

departure. If Mother did not come to Tennessee, Child went to Father on December 23

until the day before school.

On April 16, 2012, Father filed a petition to modify the parenting plan. Father

alleged a material change in circumstances because of Mother‟s failure to notify Father of

Child‟s multiple hospitalizations due to mental health issues and withholding of medical

information regarding Child. Father also alleged that Mother stated she was “unable to

„handle‟ the child.” According to Father, Mother‟s lifestyle was unstable and negatively

affected Child‟s mental and physical health. Father attached a proposed parenting

schedule to his petition, which essentially swapped the provisions from the amended

permanent parenting plan in terms of primary residential parent and parenting time.

A. PROOF AT HEARING

On April 11 and 29, 2014, the trial court held a hearing on Father‟s petition. Both

parents testified, offering contradictory views of Child‟s mental health. According to

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Mother, Child started counseling and therapy in 2007 at the age of four. That year, Child

ate the pet fish; was harming himself; had problems with other children at preschool; and

was lashing out, hitting, spitting, and biting. Specifically at home, Child‟s behavior

included banging his head against the wall; spinning; holding his half-sister down and

pulling her hair; running into walls trying to harm himself; trying to harm the family dog;

and pulling the tails off of two gerbils.

Child started in a “regular” school and continued therapy, but an incident late in

2010 changed that. According to Mother, during bath time, Child ripped a towel bar off

of the bathroom wall and attempted to hit Mother on the head. Child‟s half-sister and

Mother locked Child in the bathroom, but Child continued to beat on the door and broke

all of the glass in the bathroom. Mother called the police, and they transported him to the

Rockford Center, a mental health facility. This episode led to a series of hospitalizations

for Child in 20101 and 2011.

During this time period, Child also began taking medications for his behavior.

According to Mother, Child took medications for attention-deficit/hyperactivity disorder

(“ADHD”) and mood and anxiety disorders.

In July of 2012, following a visit with Father, Mother took Child to the doctor

because, upon his return, he was very agitated, fidgety, and vomiting. The doctor‟s visit

led to Child‟s admission at Sheppard Pratt, another mental health facility. July 1, 2012,

would be the last time Father saw Child.

Child returned to Sheppard Pratt in December of 2012. Thereafter, Child had

multiple admissions, primarily at Sheppard Pratt, through August of 2013. The

admissions generally lasted weeks.

In August 2013, Child went from Sheppard Pratt to St. Vincent‟s Villa, a

residential treatment facility for children with behavioral and emotional challenges. At

the time of the hearing on Father‟s petition, Child had been at St. Vincent‟s Villa

continuously except for the weekly twenty-four hour periods that Mother was allowed to

bring Child home for visits.

Father‟s assessment of Child‟s mental health and behavior was markedly different

than Mother‟s. In most respects, Father believed Child to be like any other child. At one

point, Father compared child to his step-son:

He – [Step-son], he – they have the same traits when it comes to, you know,

they – [Child], he gets up in the morning. He is a good kid. He‟s got a

smile on his face first thing in the morning. He goes to bed at night. You

1

There was conflicting testimony on when the hospitalizations began.

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don‟t have to chase him off to bed. He is good about that. Overall, he is –

he is a good kid. He just – he is always – he is full of energy. He – he

loves his LEGOs and all that stuff like that, you know. He‟s got his shows

that he likes and stuff like that, but he is no different than [Step-son] is

when it comes to – I mean, they are both, you know, good kids. In my

opinion, they are – they act like any other kid.

Father did not dispute the diagnoses for Child, but he did question Child‟s

treatment. Father described an incident in 2009 after giving Child the medication Mother

had provided:

I‟d bought [Child] a bunch of these Star Wars action figures and he was in

there playing and he got quiet and the next thing I know, he is walking

around the house and he is mumbling. And I said, “what are you saying,

buddy?” And he finally got close enough I could hear what he was saying

and he was looking for his action figures. Well, the whole time he had

every one of his action figures in his hand, but it‟s just like he went from

being normal to like a zombie just wandering the house and it just scared

me to death, you know.

Father felt that Child could be treated on an outpatient basis and needed to be home. He

also felt that the repeated hospitalizations were harmful. Father testified that he had

researched and lined up psychiatric care and special education services for Child should

he become the primary residential parent.

Father also testified regarding problems he experienced with Mother. When Child

did visit, Father claimed that Mother would only send enough medication for the duration

of the visit, providing no extra for unforeseen circumstances. Father stated, and Mother

acknowledged, in one instance she did not send enough medication for Child‟s visit with

Father and, in another instance, provided medication in bottles with hand-written labels.

Father complained about Mother‟s failure to inform him of Child‟s

hospitalizations. Once, Father only discovered Child had been hospitalized through

family members who presumably heard from Mother‟s family living in Marion County.

In her testimony, Mother seemed to blame the failure to communicate on hospital rules

that prevented her from using her mobile phone, but she denied intentionally keeping

information from Father. However, she admitted on cross-examination that she had not

kept Father informed of changes in school, which was a requirement of the amended

permanent parenting plan.

Since July 1, 2012, Father has had limited contact with Child. He telephoned

Child at St. Vincent‟s, but he was not always allowed to speak with him. When he

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attempted to arrange a visit, St. Vincent informed Father that the visit would have to be

approved by Mother and arranged through her.

In addition to testimony at the hearing, the trial court admitted the depositions of

individuals involved in Child‟s treatment at St. Vincent‟s Villa: Paula Sherman,

Dr. Mohammad Miasami, and Mindy Leifer. Ms. Sherman worked as an intern at St.

Vincent‟s Villa; at the time, she was studying for her Masters Degree in Social Work.

Her testimony related to Child‟s individual therapy, family therapy, and group therapy.

Ms. Sherman testified that Child was not very interested in therapy initially. She

stated that his behavior was “unsafe.” She explained that the facility had to make sure

that someone was always there in case the therapists needed assistance. Child would

“bolt,” as in he would suddenly run out of the unit. They knew that he had a history of

violence with other people based upon the unit he had been in previously. She described

him as being agitated on some days and happy on others. According to her, many factors

affected his state of mind.

Despite this, Ms. Sherman testified that Child was making progress towards the

goal of going home. She stated Child had been less violent overall and had made better

peer relationships and staff relationships. She described Child as working on improving

his behaviors and coping skills and stated that he “really wants to do well” at St.

Vincent‟s. Ms. Sherman also stated that Child‟s relationship with Mother was very good

and that they worked well as a team.

Yet, Ms. Sherman also stated that Child had a lot left to do. She testified that his

behavior was very unpredictable and he had trouble controlling his behavior. She opined

that more time in a residential center would be helpful to him.

Dr. Mohammad Miasami, a professor of psychiatry and pediatrics at Johns

Hopkins University, conducted Child‟s initial psychiatric evaluation upon his admission

to St. Vincent‟s. He diagnosed Child with mood disorder (not otherwise specified);

oppositional defiant disorder; ADHD; autism spectrum disorder; and a parent-child

relational problem. He also testified about residential care and why it was beneficial to

Child. He stated that ninety percent of the time, residential care, such as that offered at

St. Vincent‟s, was preceded by hospitalization and acute care. Residential care provided

intensive integrated multi-model therapies, including “individual therapy, . . . group

therapy, . . . recreational therapy, . . . [and] residential counselors, [to] monitor and sector

and supervise him 24/7.” St. Vincent‟s also provided “a special educational program,

instructional assistance, crisis management and supervision.”

Dr. Miasami also testified about Child‟s medications. Dr. Miasami had prescribed

several medications. Child‟s medications included Depakote, a mood stabilizer;

Trazodone, a mild antidepressant used for sleep; Clonidine, to control ADD

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hyperactivity/ADHD and to help Child calm down; Vyvanse, for ADHD; Abilify, used

for controlling assault disorder and aggression as well as augmenting the mood stabilizer;

and DDAVP, used for bedwetting.

Dr. Miasami opined that Child had made relative improvement, but not to the

extent that he could leave residential treatment. Dr. Miasami explained:

[Child] has [sic] extreme irritable [sic], all the things that you said,

that I identified as major or chief complaints. All those problems interferes

[sic] with his individual relationships, with peer relationships, compliance

with the routine, and at times he becomes self-injurious and aggressive. I

have to say all those exist, but the severity is reduced and frequency is

reduced, but he still has problems. When he still needs one-to-one

[therapy] in school and one-to-one [therapy] in residence, that means he

still needs intensive therapy, our residential treatment therapy. And the

good advantage we have is his school is walking distance within five

minutes from the residence and the team could collaborate with each other,

enhance his improvement and provide consistency, consistency to change

behavior. Changing the old behavior and teaching him new behavior takes

a lot of effort, consistency and consistency.

....

At this stage, I could testify to the fact that he still requires the

treatment provided. I do know that he has had some momentum and some

improvement, and I do think if we make any changes, because particularly

he has autism and transitions are very difficult for him, he would lose the

gain he‟s had here so far. It doesn‟t mean in future [sic] if he made enough

of improvement and there‟s another identical program like ours found in

any geographic place, we may not be able to help the transition, but at the

present time, he cannot move to less [sic] restrictive environment and he‟s

not finished with his treatment here.

Dr. Miasami stated that the eventual goal of any treatment was to discharge the patient.

But, in Child‟s case, his treatment team believed he still required treatment at St.

Vincent‟s.

Mindy Leifer was a social worker at St. Vincent‟s. She worked as an individual,

group, and family therapist for a unit of ten boys, which included Child. When Child

first came to St. Vincent‟s, he “presented with anxiety, conduct issues, school problems,

social and problems with peers and problems with self-care and some sleep problems.”

She explained that Child‟s parent-child relational diagnosis related to his difficulty in

accepting directives, being aggressive, and being oppositional at home.

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Ms. Leifer described Child‟s treatment plan and care.

[I]ndividual therapy to assist him in dealing with past traumas, identifying

feelings, working on social skills, peer relationships, getting along at home,

dealing with mood lability. We have psycho pharmacotherapy, which is

basically use of psychotropic drugs. He‟s on medication to deal with mood,

deal with hyperactivity and impulsivity, to deal with attention deficit and to

deal with sleep difficulties. He has family therapy to help others learn

about his illness, help them work with issues at home, group therapy to deal

with social and peer relationships. There are therapeutic milieu, which is

day-to-day living. He attends a private separate day school which provides

a small classroom, crisis intervention, one-to-one assistance.

Ms. Leifer also described Child‟s progress. According to her, Child was

responding well to his therapy at St. Vincent‟s and was improving. However, she opined

that it would not be in Child‟s best interest to be discharged because, while he had

improved, he would not be successful without the structure provided by St. Vincent‟s.

Ms. Leifer stated that, when Child was first brought to St. Vincent‟s, he heard voices and

that had subsided. But she warned that the voices might return if he was discharged too

early. In addition, according to Ms. Leifer, leaving at this point in his therapy would be

stressful, and he was at risk of causing harm to himself due to his impulsivity.

Ms. Leifer testified that, although the ultimate goal was for Child to be released,

he would be unable to attend a regular public school. She did not believe he could

manage a public school. She thought he would most likely have to attend a school run by

St. Vincent‟s and be evaluated yearly.

B. TRIAL COURT‟S RULINGS

On October 10, 2014, the trial court entered its Memorandum Opinion and Order

denying Father‟s request for a change of primary residential parent. Although finding

Mother not to be credible, the court explained that “her testimony about [Child‟s] mental

health problems [wa]s corroborated by medical proof.” The court found that Child had a

“significant psychological illness” and noted that he had been diagnosed with disruptive

mood dysregulation disorder, ADHD, and autism spectrum disorder.

Based on Child‟s mental condition, the court concluded that there had been a

material change of circumstance since approval of the amended permanent parenting

plan. See Tenn. Code Ann. § 36-6-106(a)(2)(B) (2014). However, after considering the

best interest factors, see Tennessee Code Annotated § 36-6-106(a) (2014),2 the court

2

The hearing in this case took place before the effective date of the 2014 revisions to Tennessee

7

determined that it was in Child‟s best interest to remain with Mother and to continue with

his current mental health providers in Maryland.

In the Memorandum Opinion and Order, the trial court also denied Father‟s

request to hold Mother in contempt for violation of the amended permanent parenting

plan. The court determined that Mother‟s decision to prevent Father from exercising his

parenting time in Tennessee was due to medical necessity and not a willful violation of

the plan.

On May 5, 2015, the trial court entered a separate order approving a parenting

plan. The order provided the amended permanent parenting plan would remain in place,

but the court adopted an alternative parenting plan to be effective when Child was “in

residential and/or in-patient treatment.” Under the order, Mother was required to notify

the circuit court clerk in writing within five days of Child‟s admission or discharge from

a residential or in-patient treatment program.

On May 26, 2015, the trial court entered an order on Mother‟s request for award of

her attorney‟s fees and costs. The court awarded Mother $7,000 in attorney‟s fees to be

paid at the rate of $500 per month.

II. ANALYSIS

On appeal, Father argues the trial court erred in: (1) finding a material change but

still determining it to be in the best interest of the child to remain with Mother; (2) failing

to find Mother in contempt; and (3) awarding Mother $7,000 in attorney‟s fees.

A. STANDARD OF REVIEW

We review the trial court‟s findings of fact de novo on the record with a

presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App.

P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). In weighing the

preponderance of the evidence, determinations of witness credibility are given great

weight, and they will not be overturned without clear and convincing evidence to the

contrary. In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). “Because

„[c]ustody . . . determinations often hinge on subtle factors, including the parents‟

demeanor and credibility during . . . proceedings themselves, appellate courts „are

reluctant to second-guess a trial court‟s decisions.‟” In re Alexandra J.D., No. E2009-

00459-COA-R3-JV, 2010 WL 5093862, at *3 (Tenn. Ct. App. Dec. 10, 2010) (quoting

Johnson v. Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004)). We review the trial

court‟s conclusions of law de novo with no presumption of correctness. Tenn. R. App. P.

13(d); Armbrister, 414 S.W.3d at 692.

Code Annotated § 36-6-106(a). The citations in this opinion are to the pre-2014 version of the statute.

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B. PRIMARY RESIDENTIAL PARENT

Adjudicating disputes over who should be designated the primary residential

parent is one of a court‟s greatest responsibilities. Massey-Holt v. Holt, 255 S.W.3d 603,

607 (Tenn. Ct. App. 2007). A court‟s designation of the primary residential parent as

part of a final decree of divorce is considered res judicata upon the facts in existence or

those which were reasonably foreseeable when the decision was made. Steen v. Steen, 61

S.W.3d 324, 327 (Tenn. Ct. App. 2001). However, because circumstances change in

unanticipated ways, courts are statutorily empowered to modify a primary residential

parent designation. See Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 2016) (indicating a

decree awarding custody of a minor child “shall remain within the control of the court

and be subject to such changes or modification as the exigencies of the case may

require”).

Courts apply a two-step analysis to primary residential parent designation

decisions. Keisling v. Keisling, 196 S.W.3d 703, 718 (Tenn. Ct. App. 2005). The

threshold issue is whether a material change in circumstance has occurred since the

court‟s prior custody order. Armbrister, 414 S.W.3d at 697-98; Tenn. Code Ann. § 36-6-

101(a)(2)(B). Only if a material change in circumstance has occurred do we consider

whether a modification is in the child‟s best interest. Armbrister, 414 S.W.3d at 705.

The “determinations of whether a material change of circumstances has occurred and

where the best interests of the child lie are factual questions.” In re T.C.D., 261 S.W.3d

734, 742 (Tenn. Ct. App. 2007). Decisions on questions related to custody and visitation

should be directed towards promoting the children‟s best interests by placing them in an

environment that will best serve their physical and emotional needs. Shofner v. Shofner,

181 S.W.3d 703, 716 (Tenn. Ct. App. 2004); Gaskill v. Gaskill, 936 S.W.2d 626, 630

(Tenn. Ct. App. 1996).

The parent requesting a change in the primary residential parent has the burden of

proving the threshold issue of a material change in circumstance by a preponderance of

the evidence. Tenn. Code Ann. § 36-6-101(a)(2)(B). In this case, Father does not contest

the trial court‟s finding a material change. Rather, Father argues that the trial court erred

in determining the child‟s best interest.

In determining a child‟s best interest, courts must consider a non-exclusive list of

factors found at Tennessee Code Annotated § 36-6-106(a). The best interest analysis is a

“particularly fact-intensive process.” McEvoy v. Brewer, No. M2001-02054-COA-R3-

CV, 2003 WL 22794521, at *5 (Tenn. Ct. App. Nov. 25, 2003). Under the analysis, the

trial court must determine which parent is “comparatively more fit than the other to be

the custodial parent.” Id.

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As stated above, the determination of where the best interests of the child lie is a

factual question. In re T.C.D., 261 S.W.3d at 742. On appeal, we presume that the trial

court‟s findings are correct unless the evidence preponderates against them. Armbrister,

414 S.W.3d at 693; see Tenn. R. App. P. 13(d). In order for evidence to preponderate

against a finding of the trial court, it must support another finding of fact with greater

convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing

Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000)).

The trial court made factual findings relative to several of the best interest factors.

In doing so, the court determined the following factors favored Mother over Father:

(1) The strength, nature, and stability of the child’s relationship with

each parent, including whether one (1) parent has performed the

majority of parenting responsibilities relating to the daily needs of the

child; and

(5) 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. Because of [Child‟s] lengthy and

on-going mental condition Mother has overseen his treatment and is more

attuned to his condition and needs. She has performed the majority of daily

parenting responsibilities. As a result she has a much stronger and more

stable relationship with [Child]. The Court places heavy weight on these

factors in Mother‟s favor in the best interest analysis.

....

(6) The love, affection, and emotional ties existing between each parent

and the child. Father has had little recent opportunity to develop ties with

his son because of [Child‟s] unfortunate mental condition. However this

Court must evaluate this factor based on present circumstances and places

moderate weight in the best interest analysis in favor of Mother.

(7) The emotional needs and developmental level of the child. [Child]

has substantial emotional needs and his developmental level presently is

extremely limited. Since Mother is more intimately acquainted with his

emotional needs and level of development the Court places heavy weight in

her favor in the best interest analysis.

(10) The importance of continuity in the child’s life and the length of

time the child has lived in a stable, satisfactory environment.

Continuity is of utmost importance in [Child‟s] life if he is to achieve some

semblance of a normal life. He will likely remain in counseling and must

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remain in an extremely structured environment at least until he is 18 years

old. Since Mother is more attuned and acquainted with his needs the Court

places heavy weight on this factor in her favor in the best interest analysis.

The court did not find that any of the best interest factors weighed in favor of Father.

The court then concluded that Child‟s best interest was not to change the primary

residential parent:

The medical proof substantiates Mother‟s testimony that [Child] is

presently unable to function in a normal fashion. All his care has been

provided in the geographic area where Mother resides and it is not in

[Child‟s] best interest that he be placed under the care of different doctors

and other personnel as such would be detrimental to his well-being. The

Court has concerns for the well-being of [Child‟s half- and step-siblings] if

[Child] lived in Father‟s home. The Court concludes that it is in [Child‟s]

best interest that Mother remain his primary parent.

Father takes issue with the court‟s best interest analysis. He argues that best

interest factors 1 and 5 actually weigh in his favor. Factor 1 concerns the strength,

nature, and stability of each parent‟s relationship with the child, including whether one

parent has performed the majority of parenting responsibilities. Tenn. Code Ann. § 36-6-

106(a)(1). Factor 5 considers the degree to which one parent has been the primary

caregiver. Id. § 36-6-106(a)(5).

From our review of the record, the evidence does not preponderate against the trial

court‟s factual finding, and we discern no error in the weighing of factors 1 and 5. The

trial court found these factors weighed in favor of Mother because Mother had been the

primary caregiver since the divorce. She had overseen Child‟s treatment for his mental

illnesses and was therefore attuned to Child‟s condition and needs. The trial court also

found that Mother had a stronger and more stable relationship with Child than Father,

which would be a natural consequence of spending considerably more time with Child.

In addition to misapplication of factors 1 and 5, Father argues that the trial court

failed to consider factors 8, 9, and 11; factors he submits weigh in his favor. Factor 8

concerns the moral, physical, mental, and emotional fitness of each parent as it relates to

their ability to parent the child. Id. § 36-6-106(a)(8). Father claims there was domestic

violence involved in Mother‟s most recent marriage. He argues she had moved

residences four times and placed Child in six different schools since she moved to

Maryland. He also argues Mother‟s health, including migraines and breast cancer, posed

obstacles to her ability to parent. He, on the other hand, had a stable home and no health

issues.

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We respectfully disagree with Father‟s assessment of factor 8. Mother testified

that she moved to Maryland because of her previous husband‟s job. Mother and her

former husband separated in 2010 and divorced in 2013. Mother was with her former

husband only a short period of time, and there was no evidence that Mother‟s former

husband was involved in her life since the divorce.

Mother admitted that she had moved multiple times since moving to Maryland,

but she provided adequate explanations for the moves. She was attempting to find the

best situation for Child and his half-sister. We have recognized that school changes may

be detrimental to a child. See S.A.M.D. v. J.P.D., W2011-01256-COA-R3-CV, 2012 WL

5266194, at *17 (Tenn. Ct. App. Oct. 25, 2012). But in this situation Child‟s mental

health required specialized treatment, and it is understandable that the treatment might

necessitate moves and changes of schools.

Factor 9 focuses on the child‟s interaction and relationships with siblings and

relatives and involvement with physical surroundings, school, and other significant

activities. Tenn. Code Ann. § 36-6-106(a)(9). For his argument that factor 9 weighs in

his favor, Father submits that Child never displayed aggressive behavior in front of him

and that he was not concerned that Child might harm others in his household. However,

even if we discount Mother‟s testimony, Ms. Sherman testified that Child‟s previous unit

was known for having violent patients and that his behavior upon admission at St.

Vincent‟s was “unsafe.” Dr. Miasami also testified that he had prescribed medication to

treat Child‟s “assault disorder” and aggression. Although the proof showed that Child

was making progress in dealing with his aggressive behavior, factor 9 does not favor

Father.

Finally, factor 11 requires the court to consider whether there is any evidence of

physical or emotional abuse of the child. Id. § 36-6-106(a)(11). Father cites to one

instance in which Mother informed Father of a cut on Child‟s head that, after a medical

visit, did not require stitches. Father also claims that Child‟s admission to mental health

facilities on multiple occasions constitutes abuse. In light of the medical proof, we

disagree. This record does not support a finding of either physical or emotional abuse.

We conclude that the trial court appropriately weighed the best interest factors and

found that it was in the child‟s best interest for Mother to remain the primary residential

parent. The court found that Child had serious mental health issues and that premature

removal from treatment could cause harm. Furthermore, the court stated that it appeared

that Father was not thoroughly convinced of the severity of Child‟s mental health issues.

The evidence does not preponderate against any of these findings.

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C. CONTEMPT

Father argues that the trial court erred in not holding Mother in contempt. In

denying Father‟s request, the court made the following findings:

This Court has the power to inflict punishment for contempt for the

willful disobedience of any order of the court pursuant to T.C.A. § 29-9-

102. Father argues Mother willfully failed to comply with the current

Parenting Plan. The proof has established [Child‟s] long-standing

psychological problems and the extensive care that he has received.

Mother has failed to effectively inform Father of [Child‟s] treatment. Even

if she had done better at communicating the details of [Child‟s] treatment to

Father the Court doubts Father would have accepted the information as true

or necessary. The Court concludes Mother‟s actions in not allowing Father

to exercise parenting time in Tennessee was based on medical necessity and

not a willful violation of Court order.

Tennessee Code Annotated § 29-9-102 grants courts the power to “issue

attachments, and inflict punishments for contempts of court” for “[t]he willful

disobedience or resistance of any officer of such courts, party, juror, witness, or any other

person, to any lawful writ, process, order, rule, decree, or command of such courts.” Id.

§ 29-9-102(3) (2010). Civil or criminal contempt requires four elements: (1) the order

allegedly violated must be lawful; (2) the order must be clear and unambiguous; (3) the

individual charged must have violated the order; and (4) the individual must have acted

willfully in violating the order. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth.,

249 S.W.3d 346, 354-55 (Tenn. 2008); Furlong v. Furlong, 370 S.W.3d 329, 336 (Tenn.

Ct. App. 2011) (stating that the four-element analysis outlined in Konvalinka applies to

criminal and civil contempt actions). The only element at issue here is whether Mother

acted willfully in violating the amended permanent parenting plan by not permitting

Father to exercise his visitation.

In the context of civil contempt, “a person acts „willfully‟ if he or she is a free

agent, knows what he or she is doing, and intends to do what he or she is doing.” State ex

rel. Flowers v. Tenn. Trucking Ass’n Self. Ins. Grp. Trust, 209 S.W.3d 602, 612 (Tenn.

Ct. App. 2006)). Our Supreme Court has addressed the standard of review for a trial

court‟s willfulness determination:

Determining whether the violation of a court order was willful is a factual

issue that is uniquely within the province of the finder-of-fact who will be

able to view the witnesses and assess their credibility. Thus, findings

regarding “willfulness” should be reviewed in accordance with the Tenn. R.

App. P. 13(d) standards.

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Id. at 357. In other words, we will review the trial court‟s finding on willfulness “de

novo upon the record of the trial court, accompanied by a presumption of the correctness

of the finding, unless the preponderance of the evidence is otherwise.” Tenn. R. App. P.

13(d).

The evidence does not preponderate against the trial court‟s factual findings that

Mother‟s actions were based on medical necessity. The proof showed that Mother was

allowed only once weekly visits of twenty-four hours at a time. As such, the court did

not err in denying Father‟s request.

D. ATTORNEY‟S FEES

Mother sought attorney‟s fees at the conclusion of the hearing. Father argues that

the trial court erred in awarding attorney‟s fees to Mother. The trial court entered the

following order:

Before the Court is an application asking Joseph Martin Colley,

Petitioner (“Mr. Colley”), to pay attorney‟s fees and costs in the amount of

$13,162.25 filed by Catherine White (“Ms.White”), former counsel for

Alisha Dale McBee, Defendant and Respondent (“Ms. McBee”). . . .

The Court finds that Ms. White was reasonably successful in this

litigation on behalf of her client but that the litigation was unduly prolonged

by tactics employed by Ms. McBee. The Court finds the amount of

attorney‟s fees and costs submitted by Ms. White is reasonable based on

applicable legal standards but because Ms. McBee prolonged this litigation,

the full amount of fees and costs requested should not be awarded. The

Court concludes that Ms. McBee has the financial need and Mr. Colley has

the financial ability to pay the sum of $7,000

Tennessee courts follow the American Rule, which provides that litigants are

responsible for paying their own attorney‟s fees unless there is a statutory or contractual

provision stating otherwise. Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005) (citing

State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000)).

Tennessee Code Annotated § 36-5-103(c) does permit an award of attorney‟s fees when

one parent successfully defends a prior primary residential parent designation. See

Shofner v. Shofner, 232 S.W.3d 36, 40 (Tenn. Ct. App. 2007); Scofield v. Scofield, No.

M2006-00350-COA-R3-CV, 2007 WL 624351, at *7 (Tenn. Ct. App. Feb. 28, 2007).

The statute provides as follows:

The plaintiff spouse may recover from the defendant spouse, and the spouse

or other person to whom the custody of the child, or children, is awarded

may recover from the other spouse reasonable attorney fees incurred in

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enforcing any decree for alimony and/or child support, or in regard to any

suit or action concerning the adjudication of the custody or the change of

custody of any child, or children, of the parties, both upon the original

divorce hearing and at any subsequent hearing, which fees may be fixed

and allowed by the court, before whom such action or proceeding is

pending, in the discretion of such court.

Tenn. Code Ann. § 36-5-103(c) (2014). We have observed that “requiring parents who

precipitate custody or support proceedings to underwrite the costs if their claims are

ultimately found to be unwarranted is appropriate as a matter of policy.” Sherrod v. Wix,

849 S.W.2d 780, 785 (Tenn. Ct. App. 1992). The award of attorney‟s fees is within the

trial court‟s sole discretion, and we will not interfere with the trial court‟s decision absent

a clear showing of an abuse of that discretion. See, e.g., Taylor, 158 S.W.3d at 359.

We affirm the award of attorney‟s fees. Father has not shown a clear abuse of

discretion on the part of the trial court.

III. CONCLUSION

We affirm the denial of Father‟s request to change the primary residential parent.

The trial court appropriately considered the best interest factors and the evidence does not

weigh against its factual finding. We also affirm the denial of the request to hold Mother

in contempt and the award of attorney‟s fees to Mother. This case is remanded to the trial

court for such further proceedings as may be necessary and consistent with this opinion.

_________________________________

W. NEAL MCBRAYER, JUDGE

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