Samrat Mitra v. Suneetha Irigreddy

05/29/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 2, 2018

SAMRAT MITRA v. SUNEETHA IRIGREDDY

Appeal from the Circuit Court for Shelby County

No. CT-003134-14 Mary L. Wagner, Judge

No. W2017-01423-COA-R3-CV

This appeal involves a contentious dispute over visitation and child support for the

parties’ minor child. Having carefully reviewed the voluminous record before us, we

hold that the evidence supports the parenting plan determination and other rulings made

by the court.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY, C.J. and FRANK G. CLEMENT, P.J., M.S., joined.

Jennifer Sheppard, Nashville, Tennessee, for the appellant, Samrat Mitra.

Margaret M. Chesney and Rebecca A. Bobo, Memphis, Tennessee, for the appellee,

Suneetha Irigreddy.

OPINION

I. BACKGROUND

Suneetha Irigireddy (“Mother”) and Samrat Mitra (“Father”), who are of Indian

descent, were married in India in 2002. Mother and Father (collectively “the Parties”)

moved to North Carolina on a work visa for employment secured by Father. Stuti (“the

Child”) was born in February 2007 in North Carolina. Father continued working, while

Mother and the Child traveled to India in May 2008. Father followed shortly thereafter

when his work contract ended in June 2008. While in India, Mother and the Child stayed

with her parents, while Father stayed with his parents.1 The two families lived a

significant distance apart. Father visited at Mother’s home on occasion, while Mother

and the Child visited Father on occasion. Father remained in India until November 2008,

when he accepted an employment position in Canada. Mother followed shortly thereafter

in December 2008; however, the Child remained in India with the maternal grandparents

because the Parties had not yet established a home in Canada. The Child joined the

Parties in June 2009, when she was two years old.

The Parties then returned to the United States in January 2010 to maintain their

immigration status. Mother accepted employment in North Carolina, while Father

searched for employment for several months before eventually moving to Texas for a job

opportunity in Fall 2010. He visited Mother and the Child twice in 2010, with the last

visit occurring in December 2010. At that point, the marital relationship had deteriorated.

Father returned to North Carolina in February 2011 in an attempt to visit the Child. He

did not advise Mother of his intent, and he did not attempt to contact her. Instead, he

waited outside of Mother’s apartment with a gift for the Child. No visit occurred because

they either were not home or were unaware of his presence. Thereafter, Father eschewed

Mother’s attempts to arrange visitation and advised her that he was “happy to be alone”

and that he did not wish to receive further contact from her. At some point, Mother

moved to Memphis, Tennessee.

Father did not see the child from December 2010 until July 31, 2012, when he

again appeared at Mother’s apartment unannounced in Memphis. By that time, Father

had filed for and obtained a divorce in Texas. Father was able to visit the Child;

however, the visit did not go well given his long absence from her and failure to

communicate while absent. Father returned to Texas. The Parties communicated via

email but were unable to come to terms regarding future visitation. Father then sent an

email in September 2012, which provided, in pertinent part, as follows:

Neither of you have to take the pain to let me meet your daughter, Stuti

Irigireddy,2 at your home in Tennessee, nor do you have to bring her here in

Austin on the holidays. YOU CAN KEEP HER!

***

1

Testimony later revealed that Father’s refusal to stay at the maternal grandparents’ house was in

deference to a cultural norm that ordinarily required the family to stay with the paternal grandparents and

discouraged the husband from residing with the maternal side of the family.

2

Father’s reference to the Child using Mother’s maiden name was an insult in their culture.

-2-

Thanks for everything, but after my last visit to Memphis, I’ve really

changed my mind - Neither am I willing to go see your daughter Stuti

Irigireddy again, nor am I willing to take her out anywhere.

In April 2013, Mother took the Child to India to reside with the maternal

grandparents, while Mother obtained and maintained employment in New Jersey. She

visited every six months and spoke to the Child on a daily basis. Mother began custody

proceedings while in India. She returned to the United States with the Child in February

2015, following Father’s filing of a petition for custody and injunctive relief on July 18,

2014, in the Circuit Court for Shelby County. Upon their return, Mother was designated

as the temporary, primary residential parent and was required to enroll the Child in

school in New Jersey. The Parties were also ordered to attend counseling sessions in

Tennessee to aid in the Child’s reunification with Father.

Meanwhile, Mother objected to the trial court’s jurisdiction, citing the fact that

neither party resided in Tennessee and that the Child had not resided in Tennessee since

April 2013. The Parties later consented to the trial court’s jurisdiction, and the court

confirmed its subject matter jurisdiction over the pending custody and child support

issues. Mother did maintain a request for transfer of jurisdiction following the resolution

of the proceeding.

The case proceeded to a hearing over the course of two days in January 2017, at

which the Parties testified concerning their tumultuous relationship and their difficulty in

reaching an agreement concerning Father’s visitation. The Parties also submitted

documentation establishing their income since their separation. The record reflects that

Father maintained an income of approximately $110,000 per year, while Mother

maintained an income of approximately $98,623 to $110,000 per year from 2014 through

2017. The Parties each offered conflicting accounts of the other’s attempt to facilitate or

impede Father’s participation with the Child. Father also claimed that the Child was not

doing well in school, while Mother submitted documentation establishing that the Child

had progressed and was in the process of overcoming the challenges of learning in the

United States with English as her second language.

Following the hearing, the court designated Mother as the primary residential

parent and awarded Father with 100 days of co-parenting time, the majority of which was

scheduled during the Child’s breaks from school. The court also limited international

travel to two weeks, absent permission from the other parent or the court, but allowed

Mother to maintain possession of the Child’s passport. The court ordered Father to pay

child support at a rate of $935 per month and set his child support arrearage at $33,298,

in light of the Parties’ agreement that Father had remitted some payment, beginning in

-3-

2015.3 The court awarded Mother attorney’s fees in the amount of $20,000. Father did

not object to the amount set by the trial court and waived a hearing on the issue. The

court ordered Father to remit payment on the child support arrearage and attorney fee

award at the combined rate of $750 per month until such time as the outstanding balances

are fulfilled. Lastly, the court declined Mother’s request for transfer of jurisdiction at the

conclusion of the proceeding, explaining that jurisdiction would be evaluated in the event

that either party needed a subsequent proceeding. Father filed this timely appeal.

II. ISSUES

We consolidate and restate the issues raised on appeal as follows:

A. Whether the court erred in denying Mother’s request to transfer

jurisdiction to the Child’s current home state at the conclusion of the

hearing.

B. Whether the court erred in setting the residential schedule and

limiting international travel.

C. Whether the court erred in calculating child support.

D. Whether the court erred in awarding Mother attorney’s fees.

E. Whether either party is entitled to attorney’s fees on appeal.

III. STANDARD OF REVIEW

This case was tried without a jury. We review the findings of fact made by the

trial court de novo, with a presumption of correctness unless the preponderance of the

evidence is to the contrary. Tenn. R. App. P. 13(d); In re C.K.G., 173 S.W.3d 714, 731

(Tenn. 2005). The trial court’s conclusions of law, however, are reviewed de novo and

“are accorded no presumption of correctness.” Brunswick Acceptance Co., LLC v. MEJ,

LLC, 292 S.W.3d 638, 642 (Tenn. 2008).

3

Father was not given a credit for co-parenting time for 2011 through 2013 because he chose not to see

the Child during those years. He was not held responsible for child support while the Child resided in

India with the maternal grandparents. He was awarded credit for co-parenting time from 2014 through

2016 while he was in the process of attempting to secure such time.

-4-

IV. DISCUSSION

A.

Mother resided in Tennessee when the initial petition was filed by Father on July

18, 2014. Shortly thereafter, Mother moved to New Jersey. The Parties eventually

consented to the court’s jurisdiction of the matter as litigation progressed. However,

Mother requested a transfer of jurisdiction upon the court’s conclusion of the proceeding.

The court declined, stating that it would decide matters of continuing jurisdiction should

the need arise. Mother appeals this finding, while Father concurs with the court’s

decision to consider the matter anew should the need arise.

The issue of subject matter jurisdiction, which “call[s] into question the court’s

lawful authority to adjudicate a controversy brought before it,” is a question of law.

Redwing v. Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn.

2012) and Cheatham Cnty. v. Kong, No. M2008-01914-COA-R3-CV, 2009 WL

1910952, *3 (Tenn. Ct. App. June 30, 2009) (citing Northland Ins. Co. v. State, 33

S.W.3d 727, 729 (Tenn. 2000)). Therefore, the review is de novo, without any

presumption of correctness. Kong, 2009 WL 1910952, at *3 (citing Northland Ins. Co.,

33 S.W.3d at 729). Tennessee Code Annotated section 36-6-217 provides as follows:

(a) Except as otherwise provided in § 36-6-219, a court of this state

which has made a child-custody determination consistent with this part has

exclusive, continuing jurisdiction over the determination until:

1) A court of this state determines that neither the child, nor the child

and one (1) parent, nor the child and a person acting as a parent have a

significant connection with this state and that substantial evidence is no

longer available in this state concerning the child’s care, protection,

training, and personal relationships; or

2) A court of this state or a court of another state determines that the

child, the child’s parents, and any person acting as a parent do not presently

reside in this state.

We agree with the court’s decision to withhold ruling on the issue until the need arises to

make such a determination, especially given each parent’s propensity to move for

employment opportunities.

-5-

B.

Mother next challenges the parenting plan adopted by the trial court. Parenting

and visitation arrangements are recognized as “among the most important decisions

confronting a trial court in a divorce case.” Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn.

Ct. App. 2006). In making such decisions, the needs of the child are paramount, and the

desires of the parent are secondary. Id. While trial courts have broad discretion to make

parenting decisions, their determinations must be made based upon proof and applicable

principles of law. Id. Given the discretion involved and the fact that the decision often

hinges on witness credibility, our court has stated that “appellate courts are loathe to

second-guess a trial court’s conclusion.” Id. “Appellate courts should reverse custody

decisions ‘only when the trial court’s ruling falls outside the spectrum of rulings that

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

evidence.’” Kelly v. Kelly, 445 S.W.3d 685, 696 (Tenn. 2014).

Tennessee Code Annotated section 36-6-106(a) provides that, taking into account

a child’s best interest, the trial court shall adopt a parenting plan that permits each parent

to enjoy the maximum participation possible in the child’s life that is consistent with the

factors set forth in the statute. See Strickland v. Strickland, No. M2012-00603-COA-R3-

CV, 2012 WL 6697296, at *10 (Tenn. Ct. App. Dec. 21, 2012). The relationship

between the child and each parent should be fostered because of the fundamental

importance of the parent-child relationship to the welfare of the child. Tenn. Code Ann.

§ 36-6-106(a). The location of the parents’ residences, the child’s need for stability, and

all other relevant factors must be considered. Id.; Tenn. Code Ann. § 36-6-401(a).

Mother asserts that the current plan allows her little downtime with the Child

when Father received a disproportionate amount of the summer and school-free days.

She further claims that the court erred in arbitrarily limiting her international travel with

the Child to two weeks. Father claims that the court erred in even allowing international

travel to India and in allowing Mother to maintain possession of the Child’s passport.

While we are sympathetic with Mother’s lack of school-free days with the Child,

the court properly crafted a plan with the intent of maximizing each parent’s participation

in the Child’s life given the Parties’ location and the Child’s need for stability. The only

way in which to facilitate Father’s participation in the Child’s life is through visitation on

school-free days given his current location in Texas and Mother’s location in New Jersey.

Accordingly, we hold that the court did not abuse its discretion in awarding Father a

disproportionate amount of school-free days. Further, we uphold the court’s limitation of

international travel for the same reason. In so holding, we note that each party is

permitted to request additional time for international travel but is simply not given

unfettered discretion to leave the country for an unspecified amount of time. This

-6-

limitation is reasonable under the circumstances presented in this case and in light of the

court’s responsibility to maximize each parent’s participation in the life of the Child.

Father’s objections to Mother’s ability to travel to India and her maintenance of the

passport are of little concern given the court’s limitation on such travel. We uphold the

decision of the trial court on these issues as well.

C.

Father raises a number of issues concerning the court’s calculation of child support

and his support arrearage, while Mother questions the court’s failure to award retroactive

child support while the Child was living in India with the maternal grandparents. “In

making the court’s determination concerning the amount of support of any minor child or

children of the parties, the court shall apply, as a rebuttable presumption, the child

support guidelines” that are promulgated by the Tennessee Department of Human

Services Child Support Service Division. Tenn. Code Ann. § 36-5-101(e)(1)(A). The

setting of child support is a discretionary matter we review using the deferential “abuse of

discretion” standard of review, which requires the court “to consider (1) whether the

decision has a sufficient evidentiary foundation, (2) whether the court correctly identified

and properly applied the appropriate legal principles, and (3) whether the decision is

within the range of acceptable alternatives.” State ex rel. Vaughn v. Kaatrude, 21 S.W.3d

244, 248 (Tenn. Ct. App. 2000).

First, Father claims that the court erred in calculating Mother’s gross income.

According to the child support worksheet, the court calculated Mother’s gross monthly

income as $8,983.19, which is the gross monthly income for someone earning

$107,798.28. This amount was taken from Mother’s 2015 W-2. Father claims that the

court should have calculated Mother’s gross monthly income as $110,000, an amount she

testified to at trial, which was based upon two W-2s she submitted to establish her

income in 2014. We find no error in the court’s calculation of the current child support

obligation or Father’s support arrearage based upon the record before us.

Father next takes issue with the court’s crediting Mother with the additional

expenses of the Child’s monthly health insurance premium and child care expenses.

Father claims that there was no evidence submitted to support Mother’s claimed

expenses. However, Mother testified concerning these amounts. The court credited this

testimony and used the amounts supplied in the child support worksheet. We find no

error in the court’s calculations for the current child support obligation or Father’s

support arrearage based upon the record before us.

Father also takes issue with the court’s order requiring him to pay his support

arrearage and attorney fee obligation at the rate of $750 per month, which represents

-7-

$375 for child support and $375 for attorney’s fees. Father claims that this obligation, in

addition to the current support obligation, equals almost 19 percent of his income, which

does not include the cost of facilitating visitation or payment for extracurricular activities

and uncovered medical expenses while the Child is in his care. He maintains that such a

payment is contrary to the goals of the Child Support Guidelines and not in the best

interest of the Child.

The Child Support Guidelines provide, in pertinent part, as follows:

(3) The major goals in the development and application of these Guidelines

are, to the extent possible, to:

(a) Decrease the number of impoverished children living in

single parent families;

(b) Make child support awards more equitable by ensuring

more consistent treatment of persons in similar circumstances

while ensuring that the best interests of the child in the case

before the tribunal are taken into consideration;

(c) Improve the efficiency of the tribunal process by

promoting settlements and by giving tribunals and parties

guidance in establishing appropriate levels of support awards;

(d) Encourage parents paying support to maintain contact

with their child; [and]

(e) Ensure that, when parents live separately, the economic

impact on the child is minimized, and, to the extent that either

parent enjoys a higher standard of living, the child shares in

that higher standard[.]

Here, the Parties maintain an almost equal standard of living. However, Father was

absent from the Child’s life for a significant amount of time, leaving Mother with the sole

financial responsibility of raising the Child. While we acknowledge that the arrearage,

coupled with the attorney fee award, represents a significant amount of income, Father

accrued this arrearage as a result of his absence. The arrearage must be paid in a timely

manner. We find no abuse of discretion in the court’s calculation of the arrearage or the

manner in which Father was directed to remit payment.

Father next claims that he was not given the appropriate amount of credit for past

payments of support. Father testified at trial that he left $12,000 in the Parties’ joint

checking account at the time of the separation. Mother acknowledged that they shared an

account and that some money was left by him in the account at the time of the separation.

She did not remember the amount he contributed, while Father claimed that the money

was left with the specific intent to provide for the Child. No evidence was submitted to

-8-

establish the amount Father contributed to the account. The trial court found that the

contents of the joint checking account should have been an issue addressed by the court

responsible for classifying and distributing the marital estate. Given Father’s history of

his failure to provide and extended absences from the Child’s life, we agree with the trial

court’s finding on this issue.

Finally, we must address Mother’s claim that the court abused its discretion in

declining to award support for the period of time that the Child resided in India with the

maternal grandparents. Mother argues that Father still had an obligation to support the

Child, regardless of her whereabouts. We agree; however, the court is provided a certain

amount of discretion in setting the support obligation and may deviate from the

guidelines when appropriate. Following our review, we hold that the court did not abuse

its discretion in awarding a downward deviation for the period of time that the Child was

not in either party’s care.

D. & E.

Father claims that the court abused its discretion by awarding attorney fees and

claims that the amount awarded was unreasonable and not supported by the record under

the circumstances. He further requests his attorney fees on appeal. Mother claims that

Father waived the issue of reasonableness and the payment schedule imposed by the trial

court. She also claims that the court improperly limited her award of attorney fees at trial

and further requests additional attorney fees on appeal.

An award of attorney fees in custody and child support cases is made “in the

discretion of [the] court.” Tenn. Code Ann. § 36-5-103(c); see also Huntley v. Huntley,

61 S.W.3d 329, 341 (Tenn. Ct. App. 2001). 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).

A right to recover attorney fees in custody and child support disputes at trial or on

appeal was created in Tennessee Code Annotated 36-5-103(c), which provides,

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

-9-

may recover from the other spouse reasonable attorney fees incurred in

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.

(Emphasis added.). Additionally, Tennessee Code Annotated section 27-1-122 provides

for an award of sanctions in the form of attorney fees on appeal when an appeal is

determined to be frivolous. To find an appeal frivolous, the appeal must be wholly

without merit and lacking in justiciable issues. See Davis v. Gulf Ins. Group, 546 S.W.2d

583, 586 (Tenn. 1977); Indus. Dev. Bd. of Tullahoma v. Hancock, 901 S.W.2d 382, 385

(Tenn. Ct. App. 1995).

The record reflects that testimony was not presented in support of the request for

attorney fees because Father waived a hearing on the issue. The trial court need not have

“a fully developed record of the nature of the services rendered” before awarding

attorney fees. Kahn v. Kahn, 756 S.W.2d 685, 696 (Tenn. 1988); Coleman v. Coleman,

No. W2011-00585-COA-R3-CV, 2015 WL 479830, at *11 (Tenn. Ct. App. Feb. 4,

2015). Indeed,

a trial judge may fix the fees of lawyers in causes pending or which have

been determined by the court, with or without expert testimony of lawyers

and with or without a prima facie showing by plaintiffs of what a

reasonable fee would be.

Kahn, 756 S.W2d at 696 (quoting Wilson Mgmt. Co. v. Star Distribs., 745 S.W2d 870,

873 (Tenn. 1988)). However, the party requesting attorney fees must, at a minimum,

provide “an affidavit containing the attorney’s hourly rate and time spent on the case.”4

Coleman, 2015 WL 479830, at *11 (citing Miller v. Miller, 336 S.W.3d 578, 587 (Tenn.

Ct. App. 2010)). “Should a dispute arise as to the reasonableness of the fee awarded,

then ‘in the absence of any proof on the issue of reasonableness, it is incumbent upon the

[party challenging the fee] to pursue the correction of that error in the trial court by

insisting upon a hearing upon that issue.”’ Kline v. Eyrich, 69 S.W.3d 197, 210 (Tenn.

2002) (quoting Wilson, 745 S.W.2d at 873). Father did not raise the issue of

reasonableness before filing his notice of appeal. Consequently, reversal of the award is

not justified because the record contains no proof that the award of attorney fees was

unreasonable. Id. We affirm the award of attorney fees in deference to the trial court’s

4

An affidavit of attorney fees was provided as required.

- 10 -

discretion in such matters. Exercising our discretion, we also respectfully deny each

party’s request for attorney fees on appeal.

V. CONCLUSION

We affirm the decision of the trial court and remand for such further proceedings

as may be necessary. Costs of the appeal are taxed equally to the appellee, Suneetha

Irigreddy and to the appellant, Samrat Mitra.

_________________________________

JOHN W. McCLARTY, JUDGE

- 11 -