In re Lukas S.-M

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned On Briefs June 2, 2016

IN RE: LUKAS S.-M.

Direct Appeal from the Juvenile Court for Putnam County
No. 5665 Steven D. Qualls, Judge

No. M2015-01367-COA-R3-JV – Filed June 30, 2016

This is an appeal from an order designating a primary residential parent, setting
visitation, and requiring the child to be returned to Tennessee. The juvenile court found
that Mother failed to comply with Tennessee‟s parental relocation statute, and after
conducting a best interest analysis, ordered that the child be returned to Tennessee.
Mother appealed both the court‟s application of the relocation statute and its
determination of the child‟s best interests. We vacate in part and affirm in part.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated in
part, Affirmed in part, and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

Elizabeth Ann Shipley, Cookeville, Tennessee, for the appellant, Natalie S.

Robert Steven Randolph, Algood, Tennessee, for the appellee, Deven M.

OPINION

Background & Procedure

The parties, Devin M. (“Father”) and Natalie S. (“Mother”), are the parents 1 of
the child, Lukas S.-M. (“the Child”),2 who was born on April 2014, out of wedlock. At

1
Although not made part of the record, Father‟s paternity was apparently established on April 17, 2014, as
noted by the juvenile court‟s order setting support.
2
In cases involving a minor child, it is this Court‟s policy to redact names in order to protect the child‟s
identity. In this case, in order to preserve both clarity and the anonymity of the child, we will redact the
names of individuals sharing the child‟s surname and will refer to those individuals by their given name
and the first letter of their surname.
the time of the Child‟s birth, the parties were no longer in a relationship. On June 4,
2014, Mother filed a petition in the juvenile court of Putnam County to set support. On
July 9, 2014, the juvenile court entered an order setting Father‟s child support obligation
but did not address visitation. At the time, the parties made arrangements for visitation
by agreement.

Mother took the Child to Minnesota, where Mother has family, for an extended
visit in August 2014 and, in October 2014, advised Father by text message that she and
the child would not be returning to Tennessee. On December 8, 2014, Father filed a
petition for equal visitation and alleged that Mother had violated the parental relocation
laws set forth in Tennessee Code Annotated section 36-6-108. Subsequently, on
February 20, 2015, Father filed a motion to compel the return of the Child to Tennessee.
Then, on March 17, 2015, because Mother had attempted to have a Minnesota court
exercise jurisdiction over the Child, the juvenile court entered an order finding that
Tennessee was the home state of the Child as defined in the Uniform Child Custody
Jurisdiction and Enforcement Act3 and that it was the proper court to accept jurisdiction
in this case.

After a hearing on March 26, 2015, the juvenile court entered a temporary order
finding that Tennessee Code Annotated section 36-6-108 applied to this case and that
Mother did not comply with the procedures set forth in that statute. Additionally, the
court noted that it considered Mother‟s testimony with respect to concerns that caused her
to move to Minnesota but ultimately found that her concerns “did not justify her move
and violation of T.C.A. § 36-6-108.” Despite the fact that the court found that Mother
had violated the relocation statute, it determined that “it would be impossible . . . at this
time” to grant Father‟s motion compelling the return of the Child due to Mother no
longer having a place to live nor a source of income to support herself in Tennessee. The
court also granted Father four days of visitation in April, as well as an additional
visitation period from May 31-June 2, 2015, which were to take place in Putnam County.
Finally, the court instructed Mother to file her answer to Father‟s petition and noted that
while it had not made any ruling regarding the primary residential parent, that “which
party is living in Tennessee may be a factor that the Court considers at the final hearing.”
On June 2, 2015, Mother filed an answer and counter petition, requesting that the juvenile
court award her primary residential parent status and allow the Child to remain in
Minnesota. The juvenile court conducted the final hearing in this matter on June 3, 2015
and heard testimony from both parties. Just prior to the hearing, the juvenile court

3
“„Home state‟ means the state in which a child lived with a parent or a person acting as a parent for at
least six (6) consecutive months immediately before the commencement of a child custody proceeding.
In the case of a child less than six (6) months of age, “home state” means the state in which the child lived
from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned
persons is part of the period.” Tenn. Code Ann. § 36-6-205(7).
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sustained Father‟s objection to any other witnesses, besides the parties themselves, being
allowed to testify due to the fact that neither party “made a proper and timely disclosure
of their witnesses according to the local rules.” The court also limited testimony in the
final hearing to “new evidence” not presented during the March 26, 2015 hearing.

On June 18, 2015, the juvenile court entered a final order in this matter, noting that
it had previously found Mother to be in violation of the parental relocation statute and
that “[i]f Mother had followed the statute and the hearing was held sooner, Mother would
not have placed herself in the hardship that today‟s decision may now cause her.” The
court then considered the fifteen factors set forth in Tennessee Code Annotated section
36-6-106 and the best interests of the Child in fashioning its parenting plan. Based on
those factors, the court found:

a. The proof shows that mother was the primary residential parent prior
to her leaving Tennessee and moving to Minnesota.

b. Mother‟s move with the child to Minnesota caused her to have a
stronger bond and relationship with the child. However, this was due to
mother‟s actions and should not be held against father.

c. Father has made substantial efforts to be a part of his son‟s life. He
has had to save money to hire an attorney and bring legal action in an effort
to assert his parental rights.

d. The Court believes that both parents are able to provide the child
with the necessary food, clothing, medical care, education, and other
necessary care.

e. The Court finds that both parents are good parents and they both
have a good relationship with their son. The Court further finds that both
parents love their child and the child shows that same love and affection for
each of them.

f. The Court finds that the moral, physical, mental, and emotional
fitness of each parent as it relates to their ability to parent the child is
appropriate.

....
i. The Child was born in Putnam County, Tennessee and was living
here until mother decided to move to Minnesota.

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 j. There was no evidence or concern by the Court regarding physical or
emotional abuse of the child.

k. The Court is not concerned with the character or behaviors of other
individuals that reside in or frequent the home of either parent.

l. This child is too young to state a preference.

m. The Court has fashioned a visitation schedule that considers the
employment schedule of father. Mother will need to obtain employment
upon her return to Putnam County, Tennessee.

n. The Court finds that the economics and financial ability of both
parties would prohibit regular and consistent visits with the child if mother
remained in Minnesota and father remained in Tennessee. This would be a
fourteen (14) hour drive and this distance severely limits visitation
opportunities.

o. The Court finds that it is in the best interest of this child to remain in
Putnam County, Tennessee so that he can have a regular and frequent
visitation schedule with his father. Mother placed herself in her current
position. Her aunts, uncles, cousins, etc. can remain her support system
from a distance and the best interests of the child take priority over what
mother believes is in her best interests.

The court then ordered that the Child be returned to Putnam County, Tennessee on or
before August 12, 2015 and entered a permanent parenting plan naming Mother the
primary residential parent. The parenting plan awarded Mother and Father 201.5 and
163.5 days with the Child, respectively. Mother filed a notice of appeal on June 18,
2015.
Issues

Mother raises the following issues on appeal:

I. Whether the trial court erred in finding that the Relocation Statute
applied and if so, whether the statute was applied correctly.

II. Whether the trial court erred in its analysis of the best interest of the
child.

Father raises two additional issues, which we have reworded slightly:
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 III. Whether the record is incomplete, and if so whether this Court is
precluded from hearing the issues on appeal.

IV. Whether Mother‟s brief complies with the Tennessee Rules of
Appellate Procedure, and if not whether her appeal should be dismissed.

Standard of Review

The Tennessee Supreme Court recently described in detail the standard of review
that applies when an appellate court reviews a trial court‟s decision on a parenting
arrangement:

In a non-jury case such as this one, appellate courts review the trial court‟s
factual findings de novo upon the record, accompanied by a presumption of
correctness of the findings, unless the preponderance of the evidence is
otherwise. See Tenn. R. App. 13(d); Armbrister v. Armbrister, 414 S.W.3d
685, 792 (Tenn. 2013). We review the trial court‟s resolution of questions
of law de novo with no presumption of correctness. Armbrister v.
Armbrister, 414 S.W.3d at 692.

Because decisions regarding parenting arrangements are factually
driven and require careful consideration of numerous factors, trial judges,
who have the opportunity to observe the witnesses and make credibility
determinations, are better positioned to evaluate the facts than appellate
judges. Armbrister v. Armbrister, 414 S.W.3d at 693. Determining the
details of parenting plans is “peculiarly within the broad discretion of the
trial judge.” Armbrister v. Armbrister, 414 S.W.3d at 693 (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.” Armbrister v. Armbrister, 414 S.W.3d at 693 (quoting 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.
Armbrister v. Armbrister, 414 S.W.3d at 693 (citing Eldridge v. Eldridge,
42 S.W.3d at 88). A trial court abuses its discretion when it applies an
incorrect legal standard, reaches an illogical conclusion, bases its decision
on a clearly erroneous assessment of the evidence, or employs reasoning
that causes an injustice to the complaining party. State v. Banks, 271
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 S.W.3d 90, 116 (Tenn. 2008) (citing Konvalinka v. Chattanooga-Hamilton
Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). A trial court
abuses its discretion in establishing a residential parenting schedule “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 found in the record.” Armbrister v. Armbrister, 414 S.W.3d at
693 (quoting Eldridge v. Eldridge, 42 S.W.3d at 88).

Kelly v. Kelly, 445 S.W.3d 685, 691-92 (Tenn. 2014). With these principles in mind, we
turn to the substance of this appeal.

Analysis

A. Applicability of the Relocation Statute

We first address Mother‟s assertion that the juvenile court erred in finding that the
Relocation Statute, Tennessee Code Annotated section 36-6-108, applied in this case. “In
a series of cases beginning with Gregory v. Gregory, W2002-01049-COA-R3-CV, 2003
WL 21729431 (Tenn. Ct. App. July 14, 2003) (no Tenn. R. App. P. 11 app. filed), this
court has held that the standards in the Relocation Statute should not be applied when the
court is making the initial custody decision or parenting arrangement.” Nasgovitz v.
Nasgovitz, M2010-02606-COA-R3-CV, 2012 WL 2445076 at *5 (Tenn. Ct. App. June
27, 2012). Rather, in an initial custody decision, the trial court must “consider what is in
the child‟s best interests” as provided in Tennessee Code Annotated section 36-6-106.
Rudd v. Rudd, W2009-00251-COA-R3-CV, 2009 WL 4642582, at *6 (Tenn. Ct. App.
Dec. 9, 2009) (affirming trial court‟s use of general custody and visitation statute instead
of Relocation Statute in ordering initial permanent parenting plan). Because the final
hearing in this case was for an initial custody determination and no permanent parenting
plan previously existed, the Relocation Statute does not apply. Accordingly, we vacate
the juvenile court‟s finding with respect to the Relocation Statute.

In his brief, Father concedes that the Relocation Statute does not apply but argues
that its application did not affect the outcome of this case. In Graham v. Vaughn,
M2012-01982-COA-R3-CV, 2014 WL 356975 (Tenn. Ct. App. Jan. 30, 2014), this Court
addressed a similar issue. In that case, the father of a nine year old girl filed a petition
seeking to legitimate the child, requesting that he be named primary residential parent,
and asking that the mother be prevented from moving to Florida with the child. Id. at *1.
In her answer, the mother, having already moved, asked to be allowed to remain in
Florida with the child. Id. The trial court, in making its initial custody determination,
applied the Relocation Statute, determined that there was no reasonable purpose for the
mother‟s proposed relocation and that the move was not in the child‟s best interest, and
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ordered that the child be returned to Tennessee. Id. On appeal, this Court determined
that “[n]otwithstanding the fact that the parental relocation statute does not apply in this
proceeding, it was appropriate for the court to consider Mother‟s plan to remain in
Florida as the court designated the primary residential parent and adopted the parenting
plan.” Id. at *2. Further, we noted that although the trial court applied the incorrect
statute, that it nevertheless “used the correct standard––best interest of the child.” Id.
(citing Nasgovitz, 2012 WL 2445076 at *7. After determining that the evidence in that
case did not preponderate against the trial court‟s findings of fact, we affirmed the court‟s
requirement that the child be returned to Tennessee. Graham, 2014 WL 356975 at *3.

Here, although the juvenile court incorrectly applied the Relocation Statute, it
determined that “it would be impossible” to grant Father‟s motion to compel the return of
the Child prior to the final hearing due to Mother‟s living and employment
circumstances. The court then noted in the March 26, 2015 order that “which party was
living in Tennessee may be a factor that [it would consider] at the final hearing.” In the
juvenile court‟s June 18, 2015 final order, the court found that it was in the Child‟s best
interest to remain in Tennessee in order to have regular and frequent visitation with
Father. Therefore, although the Relocation Statute does not apply in this case, the
juvenile court applied the correct standard––best interest of the child––in its
determination that the Child should remain in Tennessee. The correctness of that
determination, however, is also at issue in this case.

B. Best Interests of the Child

Mother also asserts that the juvenile court neglected to take into account a number
of factors relevant to the “best interest of the child” analysis and, therefore, that the
court‟s parenting plan determination was not in the Child‟s best interests. However, we
must first consider Father‟s argument that this Court is precluded from considering the
issue based on his assertion that Mother failed to provide an adequate appellate record
and that Mother‟s brief does not comply with the Rules of Appellate Procedure.4 Our
review of the record indicates that a substantial portion of the transcript of the March 26,
2015 hearing, in which the juvenile court considered whether Mother violated the
Relocation Statute, is missing. The transcript, which was admitted as an exhibit in the
final hearing, begins in media res with Father‟s cross-examination, ends before the
hearing concludes, and contains no record of the juvenile court‟s decision. Noticeably
absent from the transcript is the entirety of Mother‟s testimony. Further, the notary

4
Mother argues in her reply brief that it was incumbent on Father to question the completeness of the
record by filing an objection with the trial court within fifteen days after service of notice of the filing of
the transcript. See Tenn. R. App. P. 24(b). However, Father‟s duty under Rule 24(b) does not extend to
ensuring that the record prepared by Mother meets the minimum requirements to support Mother‟s
argument on appeal.
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public‟s statement of certification portentously refers to “portions” of the hearing, rather
than to the full hearing. Because the trial court only heard testimony from events taking
place after March 26, 2015 in the final hearing, a full transcript of that prior hearing is
necessary to undertake a review of the juvenile court‟s best interest analysis. The
missing record is exacerbated by the fact that the vast majority of Mother‟s factual
statements in her appellate brief are absent from the record outside of Mother‟s pleadings.

Tennessee Rules of Appellate Procedure 24(b) and (c) provide guidelines
regarding an appellant‟s responsibilities concerning the appellate record, stating in
relevant part:

(b) Transcript of Stenographic or Other Substantially Verbatim
Recording of Evidence or Proceedings. . . . If a stenographic report or
other contemporaneously recorded, substantially verbatim recital of the
evidence or proceedings is available, the appellant shall have prepared a
transcript of such part of the evidence of proceedings as is necessary to
convey a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of appeal.

(c) Statement of the Evidence When No Report, Recital, or Transcript
is Available. If no stenographic report, substantially verbatim recital or
transcript of the evidence or proceeding is available, . . . the appellant shall
prepare a statement of the evidence or proceedings from the best available
means, including the appellant‟s recollection. The statement should
convey a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of appeal.

Tenn. R. App. P. 24(b) & (c).

“This Court‟s authority to review a trial court‟s decision is limited to those issues
for which an adequate legal record has been preserved.” Taylor v. Allstate Ins. Co., 158
S.W.3d 929, 931 (Tenn. Ct. App. 2004). Further, “[t]he appellant has the primary
responsibility to prepare a factual record containing a full, accurate and complete account
of the evidence presented at trial.” In re SLD, E2005-01330-COA-R3-PT, 2006 WL
1085545 at *4 (Tenn. Ct. App. April 26, 2006); see also Tenn. R. App. 24(b). In Sherrod
v. Wix, 849 S.W.2d 780 (Tenn. Ct. App. 1992), involving a divorce and child custody, the
mother was awarded custody of the parties‟ minor son. The father sought custody of
him, challenging the trial court‟s alteration of his visitation schedule. However, the Court
did not receive a transcript of the trial court proceedings and stated that:

Our ability to deal with the issue is hampered by the absence of either a
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 transcript of the proceedings in the trial court or a statement of the evidence
prepared in accordance with Tenn. R. App. P. 24(c).

When a trial court decides a case without a jury, its findings of fact
are presumed to be correct unless the evidence in the record preponderates
against them. Tenn. R. App. 13(d). This court cannot review the facts de
novo without an appellate record containing the facts, and therefore, we
must assume that the record, had it been preserved, would have contained
sufficient evidence to support the trial court‟s factual findings. McDonald
v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989); Irvin v. City of
Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct. App. 1987); Gotten v. Gotten,
748 S.W.2d 430, 432 (Tenn. Ct. App. 1988).

Sherrod, 849 S.W.2d at 783. Similarly, in State v. Ballard, 855 S.W.2d 557, 560–561
(Tenn. 1993), the Supreme Court of Tennessee stated that “[a]bsent the necessary
relevant material in the record an appellate court cannot consider the merits of an issue.”

Here, the portion of the record available to us demonstrates that the juvenile court
heard testimony relevant to the issue on appeal in this case during the March 26, 2015
hearing. Further, the court limited testimony in the final hearing to testimony not
presented during the previous hearing. As in Sherrod, “[o]ur ability to deal with the issue
is hampered” by the absence of a full March 26, 2015 transcript. In the event that no full
transcript was available, it was incumbent on Mother to prepare a statement conveying a
“fair, accurate and complete account of what transpired” in accordance with Rule 24 of
the Tennessee Rules of Appellate Procedure. Because no such account is available, we
“must assume that the record . . . contained sufficient evidence to support the trial court‟s
factual findings.” Sherrod, 849 S.W.2d at 783. Accordingly, the judgment of the trial
court with respect to the parenting plan and the Child‟s best interests must be affirmed.

Conclusion

For the foregoing reasons, the judgment of the juvenile court is vacated in part and
affirmed in part. Costs of this appeal are taxed one half to the appellee, Devin M., and
one half to the appellant, Natalie S., and her surety, for which execution may issue if
necessary.

_________________________________
BRANDON O. GIBSON, JUDGE

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