In Re: Maddox P.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 16, 2016 Session

IN RE: MADDOX P.

Appeal from the Juvenile Court for Sumner County
No. 2011-JV-711 Barry R. Brown, Judge

No. M2016-00569-COA-R3-JV – Filed January 17, 2017

This appeal arises from a dispute over a residential parenting schedule. Joshua Parker
(“Father”) filed a petition against Anna Marsh (“Mother”) in the Juvenile Court for
Sumner County (“the Juvenile Court”) seeking to modify the parenting plan regarding
their minor child, Maddox (“the Child”). Mother filed a counter-petition. After a
hearing, the Juvenile Court made certain modifications to the existing parenting plan but
otherwise left it in place. Mother appeals to this Court, arguing in part that the Juvenile
Court should have established specific days each month that Father may exercise
visitation with the Child. Father, an airline pilot, has a shifting work schedule. We hold
that Mother’s requested schedule would have the practical effect of unduly limiting the
Child’s time with Father and that the Juvenile Court did not abuse its discretion in
denying Mother’s requested modification. We affirm the judgment of the Juvenile Court
in its entirety.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

Jon S. Jablonski, Brentwood, Tennessee, for the appellant, Anna Marsh.

Kirk D. Catron and Aaron J. Conklin, Murfreesboro, Tennessee, for the appellee, Joshua
Parker.
 OPINION

Background

In September 2012, the Juvenile Court entered an agreed order establishing a
permanent parenting plan regarding the Child, who was born in January 2009. The
parenting plan granted Mother 245 days of residential parenting time to Father’s 120
days. Father, an airline pilot with an unfixed work schedule, was granted a “minimum”
of ten days each month. The parties were to operate in good faith toward coordinating
Father’s residential parenting time around Father’s work schedule. The parenting plan
had various other provisions concerning holidays and transportation. Child support was
set at $742.00 per month from Father to Mother.

In April 2014, Father filed a petition to modify the parenting plan. Father alleged
that Mother had refused him additional days of visitation, that the Thanksgiving holiday
wrongly was balanced in favor of Mother, and that Mother refused to permit his parents
to pick up the Child. In July 2014, Mother filed a counter-petition. Mother alleged that
Father was in willful contempt of the parenting plan for, among other things, failing to
disclose fully his work schedule and for failing to coordinate the Halloween holiday. The
case was heard initially by a Magistrate in December 2014. The Magistrate entered an
order finding Father in contempt and modifying the parenting plan. Father appealed to
the Juvenile Court. A de novo hearing was conducted before the Juvenile Court in July
2015. The testimony at trial revealed an acrimonious relationship between Mother and
Father. Mother testified to difficulty in communicating with Father, sometimes requiring
20 to 30 emails to arrange a schedule. Mother testified to 70 occasions on which Father
was late in picking up the Child or canceled altogether. Mother sought a more consistent
visitation schedule rather than ten days throughout any given month. Mother testified:

Q. What would be so wrong -- if Josh has 13 days off, what would be so
wrong with giving him 12 days? Why is that the problem to you?
A. I feel like consistency is very important. And there’s no structure.
There’s no -- there’s no -- on the days that he sends sometimes he may have
-- there’s just never any consistency. I just try to look at the schedule and
think in terms of our son, what is the best way to do it for him.
Q. But my point is you have a person who flies an airplane for a living and
flew an airplane for a living when you were living with him. Correct?
A. I’m aware. Yes.
Q. Okay. So this is a schedule -- I mean, this child has lived under this kind
of a schedule since birth. Correct?
A. Yes.

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 Q. And you’ve not presented any proof, that I’ve heard, that this has done
any harm to this child.
A. I think my part that I have a difficult time understanding is -- is if it’s
truly about our son, if you need to be off for a wedding, if you need to be
off for a vacation, if you need to be off because you want to be off, if you
need to be off because it’s your thirty-second birthday and you want to go
out with friends, it’s never a problem he’s off. If our son graduates
kindergarten, if our son has soccer games, it’s I have to work. It depends.
And I’m not saying he’s never been to any of it. But I question the
prioritizing of what’s important and what’s not important.

For his part, Father testified that in his profession as a pilot, there is a
bidding process by which one obtains his or her work schedule. The schedules are
bid upon according to seniority. Father could try to bid for certain days to
accommodate a precise schedule for visitation, or trade for it, but he could not
guarantee he would get that schedule. Father was in the process of changing his
employment from Compass to Delta Airlines. This change in airlines would put
Father at the bottom of the seniority list, but, according to Father, he would have
higher pay in the long run. Father testified:

Q. Did I also hear you testify that Mom never provides you extra parenting
time when requested? Did I hear that correctly? Did you tell Judge Brown
that?
A. She will occasionally. I guess I misspoke when we were talking about
the actual awarded schedule. Last minute, occasionally, Anna will give me
a few hours here or something like that.
Q. You’ve seen this (indicating)?
A. I have seen that.
Q. How many times are in here about extra time? Have you ever counted
the number?
A. I think it’s very misleading.
Q. Oh, it’s not truthful? Is that what you’re telling me?
A. There have been times that Anna has given me a half a day here or some
-- like, I got to take Maddox to dinner, to Chuck E. Cheese a time or two.
There have been times that she’s given me above ten days. You’re correct.
Q. How many times? Do you know?
A. I’m not sure.
Q. How about 34 times? Does that surprise you?
A. Absolutely.
Q. What about the 11 times she asked you to extracurricular events that you
didn’t come to? Is that true?
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A. If I missed anything from Maddox, including pick-ups or anything, it’s
been because of work.
Q. Is that just a good blanket for it all? Work, work, work?
A. Well, I do put Maddox as my priority.
Q. That’s why 70 times you were late or cancelled and didn’t get him at all,
because you put him as your priority?
A. If I can’t make a flight home from work, then I can’t make pick up.
Unfortunately, that is out of my control.

The Juvenile Court held as follows in a December 2015 order:

This cause came to be heard on the 16th day of July, 2015, before
the Honorable Barry Brown, Judge of the Juvenile Court for Sumner
County, Tennessee, at Gallatin, upon the de novo hearing of the Petition to
Modify Parenting Plan filed by the Respondent, JOSHUA PARKER, on
April 15, 2014 and Counter-Petition filed on July 21, 2014 by the
Petitioner, ANNA MARSH, and the Court finds, after hearing testimony of
the parties, the witness Anthony Persuitti, statements of counsel, evidence
submitted at trial and a review of the entire record, as follows:
1. The Father shall be responsible for one-half (1/2) of the minor
child’s, MADDOX WESLEY PARKER, school tuition, whichever school
that might be, starting the school year 2015-2016. This cost shall not factor
into child support as Father agreed to this voluntarily.
2. The Father is to give his list of days off he is available for
parenting the following month to the Mother within twenty-four (24) hours
of receiving such list. The Mother has thirty-six (36) hours from receipt of
such list of days off from the Father to inform him which ten (10) days he
shall have that month. If the Mother fails to respond within thirty-six (36)
hours the Father will send the Mother his list of ten (10) days. If the Father
has to miss or cancel any of those ten (10) days, those days shall be
forfeited by him.
3. The Father’s parents may pick up the minor child, MADDOX
WESLEY PARKER, upon notice to the Mother. The paternal grandparents
live in Kentucky and may not, after picking up such child, take him to
Kentucky.
4. The Father is in Contempt of Court with regard to the 2013
Halloween incident testified to by the parties. Father is ordered to pay
towards Mr. Longmire’s attorney’s fee the sum of six hundred ($600)
dollars.

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 5. The parties are to split Thanksgiving as follows:
a. Wednesday at 6:00 p.m.-Friday at 6:00 p.m. with Father on even
years.
b. Friday at 6:00 p.m.-Sunday at 6:00 p.m. with Mother on odd
years.
c. This holiday parenting time shall occur regardless of whose
scheduled weekend this is.
6. Father is entitled to a seven (7) day and a six (6) day vacation
each year. Father must inform Mother within forty-five (45) days of which
days he is taking for vacation prior to exercising such visitation by written
notice. This vacation time is not in addition to the ten (10) days the Father
receives each month. The seven (7) day and six (6) day vacations can not be
consecutive or in the same month.
7. Each party shall pay their own attorney’s fees other than that set
out in Section 4 of this Order and shall split any unpaid court costs one-half
(1/2) each.
8. Other holidays shall be the same as set out in the 2012 Permanent
Parenting Plan, including the Christmas vacation. Holidays are in addition
to the Father’s ten (10) days he receives each month.
9. A new child support worksheet and child support obligation shall
be prepared to coincide with the Court’s Order. The parties shall exchange
their income and cost of health insurance, through their respective counsel,
as of June 30, 2015.
10. In all other respects the September 25, 2012 Permanent
Parenting Plan remains the same.

Mother filed a motion to alter or amend the judgment. In February 2016, the
Juvenile Court entered another order as follows:

THIS CAUSE came to be heard the 1st day of February, 2016,
before the Honorable Barry Brown, Judge of the Juvenile Court for Sumner
County, Tennessee upon motion of the Respondent/Counter-Petitioner,
ANNA MARSH, to Alter and/or Amend the Court’s final judgment
entered herein on December 7, 2015. The Court, hearing argument of
counsel, grants same.
IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED that Paragraph 2 of said Order shall be modified and altered to
require the Petitioner/Counter-Respondent/Father, JOSHUA PARKER, to
provide his actual work schedule to the Respondent/Counter-
Petitioner/Mother, ANNA MARSH, when scheduling parenting time as
opposed to providing a “list of days off”;
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 IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that Paragraph 3 of said Order shall be clarified to the extent that the
paternal grandparents are not allowed to exercise the Petitioner/Counter-
Respondent/Father’s parenting time as set forth herein but may pick up the
parties minor child during the Petitioner/Counter-Respondent/Father’s
scheduled parenting time provided the Father will be no later than five (5)
hours from beginning of same and being physically present with the parties
minor child for same;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that Paragraph 4 of said Order is amended to specifically award the
Respondent/Counter-Petitioner/Mother, ANNA MARSH, a judgment in
the amount of Six Hundred Dollars and no cents ($600.00) for her
attorney’s fees for which execution may issue if necessary;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the parties shall apply any child support modification which is the
result of a new child support worksheet to be filed should a significant
variance exist herein with the effective date of retroactivity of same being
July 1, 2015.

Subsequently, Mother filed a motion to set child support and to enter a final order.
In April 2016, the Juvenile Court entered its final order in this matter, stating:

This cause came on for final hearing on this the 5th day of April
2016, before the Honorable Barry Brown, Judge of the Juvenile Court for
Sumner County, Tennessee, upon Motion of the Respondent/Counter-
Petitioner, Anna Marsh, to set child support and enter a Final Order in this
action.
Based upon the documentation attached to the Motion; the
stipulation of Counsel that the cost to provide health insurance for the
minor child is $106.74 per month; the 2015 Forms W-2, which were
tendered to the Court as an offer of proof by Joshua Parker, and marked as
Collective Exhibit 1; argument of Counsel; and the entire record herein, the
court finds as follows:
1) The cost to provide health insurance for the minor child, which
insurance is provided by Father, is $106.74 per month as stipulated by the
parties;
2) The number of days that the child is with each parent according to
the Orders of December 7, 2015, and February 17, 2016, is one-hundred
thirty (130) days with the Father and two hundred thirty-five (235) days
with the Mother;

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 3) The average monthly cost incurred by Mother to provide work
related child care for the child is $157.83 per month;
4) That, notwithstanding the prior Order of December 7, 2015,
which required, “The parties shall exchange their income and cost of health
insurance, through their respective counsel, as of June 30, 2015”, the
parties’ entire 2015 income as reflected on their respective Forms W-2
should be used as their income for the child support worksheet; to wit,
$65,000.00 for Mother ($5,416.67 per month) and $93,246.07 for Father
($7,770.51 per month);
5) Counsel should prepare a child support worksheet based upon
these figures and said worksheet is attached to this Order, which reflects
that the monthly child support obligation is Six Hundred Thirteen Dollars
($613.00) per month from Father to Mother, which amount is a significant
variance from the present support obligation of Seven Hundred Forty-two
Dollars ($742.00) per month as is presently Ordered;
6) The new child support in the amount of Six Hundred Thirteen
Dollars ($613.00) per month from Father to Mother, shall be retroactive to
the payment that was due on July 1, 2015;
7) As a result of the new support amount, which has been made
retroactive to July 1, 2015, the Father has overpaid his child support
obligation by One Hundred Twenty-nine Dollars ($129.00) per month for 9
months (July 2015 through March 2016) in the total amount of $1,161.00;
and
8) The amount of $1,161.00 shall be paid to Father by Mother as
follows: $75 per month.
9) This Order shall be a Final Order resolving all outstanding issued
between the parties. Accordingly, it is so ORDERED, ADJUDGED, and
DECREED.

Mother timely filed an appeal to this Court.

Discussion

Although not stated exactly as such, Mother raises the following two issues on
appeal: 1) whether the Juvenile Court abused its discretion in the modification of the
parties’ parenting plan by failing to take into account the best interests of the Child and
by failing to provide consistency in the Child’s life, and 2) whether the Juvenile Court
abused its discretion in declining to award attorney fees to Mother at trial other than the
$600.00 award for the contempt portion of the hearing. Father attempts in his brief’s
conclusion to raise his own issue of whether this appeal should be held frivolous and
whether he should be awarded his attorney’s fees.
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 Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).

Both parties agree that the Juvenile Court’s three orders quoted above lack
sufficient findings of facts or conclusions of law. Regarding how this Court may proceed
when confronted with limited findings of fact and conclusions of law, we have stated:

We note . . . that Rule 52.01 of the Tennessee Rules of Civil Procedure
requires the trial court to state expressly its findings of fact and conclusions
of law, even where the parties do not request it. Tenn. R. Civ. P. 52.01. If
the trial court fails to do so, its decision is normally vacated and the cause
remanded for such findings and conclusions; however, the appellate court
may, in some circumstances, “soldier on” in the absence of them. See
Town of Middleton v. City of Bolivar, No. W2011-01592-COA-R3-CV,
2012 WL 2865960, at *26 (Tenn. Ct. App. July 13, 2012).

In re: S.J., 387 S.W.3d 576, 594 n. 9 (Tenn. Ct. App. 2012).

In our view, the record on appeal, containing among other things transcripts of the
hearings, is developed sufficiently such that we may proceed with appellate review. We
admonish trial courts, however, to comply with Rule 52.01 of the Tennessee Rules of
Civil Procedure as our “soldiering on” despite deficient orders is not always possible.

We first address whether the Juvenile Court abused its discretion in the
modification of the parties’ parenting plan by allegedly failing to take into account the
best interests of the Child by failing to provide consistency in the Child’s life. This Court
has stated:

[W]hen a court is considering a petition to modify a residential parenting
schedule, it must first determine whether a material change of circumstance
has occurred. Tenn. Code Ann. § 36-6-101(a)(1)(C). If such a change is
established, the court proceeds to determine whether modification of the
schedule is in the best interest of the child, utilizing the factors at § 36-6-
106(a) and, where applicable, § 36-6-406.

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Wheeler v. Wheeler, No. M2015-00377-COA-R3-CV, 2016 WL 3095695, at *3 (Tenn.
Ct. App. May 24, 2016), no appl. perm. appeal filed. The standard for reviewing a trial
court’s modification to a residential parenting schedule is that of abuse of discretion.
Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013). An abuse of discretion
occurs when a trial court “appl[ies] an incorrect legal standard, reaches an illogical result,
resolves the case on a clearly erroneous assessment of the evidence, or relies on
reasoning that causes an injustice.” Id. (quoting Gonsewski v. Gonsewski, 350 S.W.3d
99, 105 (Tenn. 2011)).

Mother argues that the Juvenile Court should have approved Mother’s proposed
parenting plan which would establish a specific one-week schedule for Father to visit the
Child each month. According to Mother, the Child needs consistency above all. Mother
points to evidence in the record reflecting that Father has not always adhered to the 2012
parenting plan. Indeed, Father was held in contempt for one violation of the parenting
plan.

It is evident that the Juvenile Court found a material change in circumstances
sufficient to modify, if only slightly, the parenting plan and residential schedule. The
evidence does not preponderate against this finding. However, it is not at all clear from
the evidence or Mother’s argument that the cause of Father’s past non-compliance is the
non-fixed nature of the parenting residential schedule, or that the proper remedy would be
to set a fixed one-week schedule. Father is an airline pilot who must bid for his work
schedule and is not currently in a position to guarantee specific days for his availability to
visit the Child. The almost certain effect of adopting Mother’s proposed parenting plan
would be to curtail the Child’s time with Father. Tenn. Code Ann. § 36-6-106 (a) (2014)
instructs courts to “order a custody arrangement that permits both parents to enjoy the
maximum participation possible in the life of the child consistent with the factors set out
in this subsection (a), the location of the residences of the parents, the child’s need for
stability and all other relevant factors.” This is not an ironclad rule, and may be
superseded by other relevant factors, but, barring evidence to the contrary, our starting
point is to proceed with an eye toward maximizing parenting time for each parent.
Mother’s proposed parenting plan would almost surely limit the Child’s visitation time
with Father. At various points in her argument, Mother asserts that Father places his
career ambitions above the best interest of the Child. We believe, however, that the
Child’s best interest is not served by forcing Father to choose between his career and a
fixed visitation schedule. Father’s continued professional success as a pilot has and
should continue to inure to the Child’s best interest. This of course in no way means that
Father can cite his career to disregard the parenting plan. It means merely that a flexible
visitation schedule serves to maximize the Child’s time with Father, while
acknowledging the reality of Father’s profession. We find such a balance to be in the
Child’s best interest, as did implicitly the Juvenile Court.
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 While the Juvenile Court’s orders in this case are not a model of clarity, it appears
that the Juvenile Court rejected Mother’s contention that a fixed schedule would serve the
Child’s best interest. The Juvenile Court instead made certain minor tweaks to the
existing 2012 parenting plan and required the parties to coordinate in advance on Father’s
availability. We find no abuse of discretion in the Juvenile Court’s decision to keep the
2012 parenting plan in effect as modified by the Juvenile Court.

We next address whether the Juvenile Court abused its discretion in declining to
award attorney fees to Mother at trial other than the $600.00 award for the contempt
portion of the hearing. Tenn. Code Ann. § 36-5-103(c) (2014) provides:

(c) 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 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.

Our standard of review on this issue is abuse of discretion. Father received some
requested relief with respect to Thanksgiving alternation and his parents’ ability to pick
up the Child, but he did not get additional days per month beyond the minimum of ten.
Mother, on the other hand, lost on her primary issue raised below and on appeal, that of
requesting a set monthly schedule for Father’s visitation. Therefore, apart from the
finding against Father for contempt which was not appealed, Mother could hardly be said
to have prevailed either below or on appeal. We find no abuse of discretion in the
Juvenile Court’s declining to award Mother any additional attorney’s fees incurred in
these proceedings pursuant to Tenn. Code Ann. § 36-5-103(c).

As a final matter, Father attempted to raise in the conclusion of his brief the issue
of whether this appeal should be held frivolous, or whether, as an alternative, he should
be awarded attorney’s fees pursuant to Tenn. Code Ann. § 36-5-103(c). We do not
address issues raised in passing in the conclusion of a brief. “Courts have consistently
held that issues must be included in the Statement of Issues Presented for Review
required by Tennessee Rules of Appellate Procedure 27(a)(4). An issue not included is
not properly before the Court of Appeals.” Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn.
Ct. App. 2001). We see no reason to make an exception here.

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 Conclusion

The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the Appellant, Anna Marsh, and her surety, if any.

____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE

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