H.A.S. v. H.D.S.

414 S.W.3d 115, 2013 WL 1296285, 2013 Tenn. App. LEXIS 218
Court of Appeals of Tennessee·Decided April 1, 2013·Published·Cited by 7 cases

Opinion

[117]*117OPINION

CHARLES D. SUSANO, JR., P.J.,

delivered the opinion of the Court,

in which D. MICHAEL SWINEY and JOHN W. McCLARTY, JJ., joined.

Lillian (“the Child”) is the offspring of H.A.S. (“Father”) and H.D.S. (“Mother”). The parties were never married to each other. They entered into two mediated agreements regarding Father’s co-parenting time with the Child. The agreements were never presented to or approved by a court. The parties followed the agreements for a time but conflicts developed and Father filed a petition seeking review and modification of the agreements. He asserted that there had been a material change in circumstances and that he should be awarded primary custody of the Child. Following a bench trial, the court found and approved the mediated agreements as being in the Child’s best interest. The court further determined that there had been no change in circumstances warranting a change in custody; but the court did find and hold that Father’s co-parenting time should be revised. Father appeals. We affirm.

I.

The parties dated for a few months during which time the Child was conceived. They lived together for a time during the pregnancy, but Mother moved out prior to the Child’s birth. She was living in her own apartment when the Child was born on August 22, 2008. Father was present for the delivery, but the couple did not continue their relationship. The Child has lived continuously with Mother; she was three at the time of trial. Mother is now married. She and the Child live with Mother’s husband in Jefferson County. Father has also married. He and his wife live in Knox County.

In December 2008, Father filed a petition in Knox County to establish paternity. In response, Mother filed a petition in Jefferson County. It also sought to establish the Child’s parentage. She accompanied her petition with a permanent parenting plan.1 The competing petitions remained pending while the parties twice attended mediation — once in April 2009 and later in September of the same year. The parties reached agreements setting forth Father’s co-parenting time and related matters. For ease of reference, we will refer to these two agreements collectively as “the Agreement.” It is undisputed that the Agreement was signed by the parties, their attorneys, and the mediator. Neither of the agreements was ever approved and entered of record by a court order. Neither of the two agreements, nor any other document of record, expressly makes an award of custody of the Child.

The agreement negotiated in April 2009 is styled simply “Mediated Agreement” and begins by stating: “With no presumption of correctness Father will have the following co-parenting time with [the Child].... ” Father was allotted one overnight visit on alternating Fridays and specified time each Tuesday until 2:00 p.m. The parties agreed to return to mediation shortly “to discuss a more permanent schedule....” Further, the parties agreed that jurisdiction of all custody issues would be transferred to Jefferson County. As planned, the parties met again and a second agreement was signed in September 2009. The latter agreement included a more detailed parenting schedule.2 Under [118]*118the September agreement, Father was allowed co-parenting time on alternate weekends and on Tuesdays. In addition, the parties agreed to a sharing schedule by which holidays, summer break, and other significant dates were equally divided between them. Further, Father agreed to pay “at least $45.00 per week” in child support pending a child support hearing or agreement.3 The September agreement provided for further review of the co-parenting schedule “when [the Child] starts school.”

In February 2011, Father filed a “Petition to Review” in the Knox County Juvenile Court in which he asserted that the filing of his petition was triggered by his desire to have the Child begin preschool. Father contended that the September agreement had become “unworkable” based on the parties’ disagreements regarding preschool and other “difficulties” including Father’s claim that Mother refused to allow him reasonable telephone access to the Child. The petition asserted that Father was “fully capable and willing” to assume custody of the Child, and “believes it to be in her best interest to reside primarily with him.” Father attached a proposed modified parenting plan to this effect. In May 2011, the trial court, ie., the Jefferson County Juvenile Court, entered an order setting Father’s child support obligation.4 The following month, the Knox County Juvenile Court transferred jurisdiction to the trial court as the more appropriate forum to hear the issues raised in the competing petitions.

In July 2011, Father, through his new and current counsel, moved the court to permit him to file an amended petition to review based on his assertion that existing “circumstances and issues,” not addressed before, “require a review of the parties’ co-parenting schedule.” In his amended petition, Father further alleged that Mother was not adhering to the parenting schedule under the September agreement in that she was refusing to allow Father his scheduled time on alternating Tuesdays. In addition, Father alleged that the September agreement was ambiguous regarding the parties’ summer co-parenting time and did not address the Child’s birthday. With respect to other matters, Father asserted that Mother had not consulted him regarding non-emergency medical decisions and was not properly earing for the Child. Father concluded that Mother’s withholding of the Child and refusal to allow him telephone contact constituted a material change in circumstances. He asked that he be allowed to show that the agreement mediated in September needed to be reviewed and modified. Mother answered and asserted that review of the parenting schedule was premature since the Child had not yet begun school — an event contemplated by the September agreement as a trigger for review and possible revision. Mother filed a counter-petition which stated her own issues with Father’s visits and requested that the court resolve them to avoid future difficulties.

The parties appeared for a hearing on two dates in December 2011. At the initial hearing, they outlined their positions. Father stated that he sought review of the September agreement based on his contention that the co-parenting schedule was not [119]*119being followed and that this was a material change in circumstances. Counsel stated: “[Mother] is not allowing [Father] to have time, [s]o we petitioned [for] review allotted by the ... Agreement, in the alternative this is an initial setting.” Father submitted that, in either case, “it would be a comparative fitness analysis.” Mother asserted that the Agreement was a contract that the parties had entered into in the Child’s best interest and reasserted her position that it was not yet due for review. She further contended that Father’s petition did not state a material change of circumstances, but, at most, stated a failure to follow every provision of the Agreement to the letter. Father responded that “we’re alleging there’s been a substantial, or a material change in circumstances, and that it is in the [C]hild’s best interest to be with [Father].” After hearing from the parties through their counsel, the trial court advised the parties that it found the issue to be whether Mother was blatantly or completely denying Father his visitation under the Agreement.

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H.A.S. v. H.D.S., 414 S.W.3d 115, 2013 WL 1296285, 2013 Tenn. App. LEXIS 218 (Tenn. Ct. App. 2013).

414 S.W.3d 115 (H.A.S. v. H.D.S.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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