In Re Caleb F.

11/28/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 7, 2017 Session

IN RE CALEB F. ET AL.

Appeal from the Juvenile Court for Montgomery County
No. 14-JV-794, 14-JV-795 Timothy K. Barnes, Judge
___________________________________

No. M2016-01584-COA-R3-JV
___________________________________

Shortly after entry of an agreed permanent parenting plan, Father filed a petition to find
Mother in contempt and to modify the parenting plan. The petition alleged that a material
change in circumstance had occurred since the adoption of the agreed plan, such as
Mother allegedly interfering with Father’s parenting time. The juvenile court found a
material change in circumstance had occurred and modified the parenting plan by
increasing Father’s parenting time. From this ruling, Father appealed, claiming that the
court erred by not granting him equal parenting time. Because the court’s order
modifying the plan contains insufficient findings of fact and conclusions of law, we
vacate and remand.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY B. BENNETT
and RICHARD H. DINKINS, JJ., joined.

Sharon T. Massey, Clarksville, Tennessee, for the appellant, Bryan F.

Mark R. Olson and Taylor R. Dahl, Clarksville, Tennessee, for the appellee, Kera S.

OPINION

I.

On December 18, 2014, Bryan F. (“Father”) filed a petition in the Juvenile Court
for Montgomery County, Tennessee, for civil contempt against Kera S. (“Mother”) and
for modification of permanent parenting plan. The plan, which had been approved by an
October 8, 2014 order, addressed the parties’ two children: Caleb F., born in May 2007,
and Jack F., born in February 2009 (together, the “children”). According to the order
approving the plan, the parties had “reached a substantial agreement with regard to the
terms of the [plan].” The plan designated Mother as the primary residential parent and
awarded her 295 days of parenting time each year, while Father received 70 days.

In his modification petition, Father alleged that Mother had “willfully violated the
Court’s Order and plan as follows”:

a. By denying the Father his allotted parenting time;
b. By denying the Father the ability to communicate with the children by
phone or other means;
c. By demeaning the Father to the children and instructing them to lie to
him[;]
d. By harassing the Father to his Army superiors about child support
despite his compliance with the Court’s Order;
e. By failing or refusing to inform Father of medical emergencies of
children;
f. Mother is intentionally scheduling events and appointments for children
on Father’s days of visitation.

Based on these allegations, Father asserted that a material change in circumstance
warranted a modification of the parties’ agreed parenting plan. Father sought, among
other things, “more time with the children” and a “recalculat[ion of] any award of child
support arrearages based upon any re-calculated child support figures resulting from this
petition.”

Mother filed a response, generally denying all material allegations in Father’s
petition. She counter-petitioned for civil and criminal contempt, alleging that Father
abused the children and requesting that Father’s parenting time be supervised.1

A.

The juvenile court held a trial over three days in August and November of 2015
and in January of 2016. The first day of the trial focused primarily, not on the allegations
of Father’s petition, but on a concern identified by the children’s guardian ad litem.
Calling the case “the strangest” he had ever seen, the GAL stated he had “grave
concerns” for the children. In opening statements, the GAL asserted that the children
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The day following the filing of the petition for modification, the Kentucky Cabinet for Health
and Family Services received a report of suspected child abuse or neglect involving Father and his then
girlfriend. The court suspended Father’s parenting time as a result. Following an investigation, the
Cabinet for Health and Family Services found the allegations to be “unsubstantiated,” and the court
permitted Father to resume his parenting time.
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acted “vastly different” in Mother’s care as opposed to Father’s care. In Mother’s care,
the children were “very much out of control,” but with Father, the children acted “like
appropriate children.” With respect to Caleb, who had been diagnosed with autism,
specifically, the GAL questioned “whether the conditions for which Caleb ha[d] been
diagnosed truly exist[].” The GAL could not understand how “someone with autism
c[ould] turn that off depending on which parent they [we]re with.”2

The testimony during the first day of trial largely corroborated the GAL’s
impressions. Two therapists and a case manager from Health Connect America testified
that, when the children were with Father, they were respectful and well-behaved. But,
when the children were under Mother’s care, the children acted unruly and defiant.
According to the testimony, the children would throw tantrums, squeal, moan, run around
the office, and kick and hit each other and Mother.

One therapist opined that Mother “enables” the children’s behavior, and she
recommended that Mother have a mental health assessment. The other therapist was of
the opinion that Mother’s “anxieties and her hatred towards [Father]” were detrimental to
the children’s mental health. She also recommended that Mother be mentally evaluated.

The second day of testimony undercut many, if not all of the concerns, expressed
by the witnesses from Health Connect America. A psychologist, who gave Mother a
psychological assessment after the first day of trial, stated that she found nothing
abnormal with Mother. When asked to square her assessment with the concerns
expressed by the Health Connect America witnesses, the psychologist testified that the
Health Connect America witnesses may have made assumptions about how Mother was
parenting, without speaking to Mother. And, in the psychologist’s view, some of the
statements by the Health Connect America witnesses “were not based on anything other
than speculation.”

The psychologist also explained why the children might behave differently in the
care of Mother and Father. In the psychologist’s view, it was not uncommon for children
to exhibit different behaviors in the home of one parent versus the home of the other.
The behavioral difference could be attributed to the fact that Mother had dealt with the
children all their lives whereas Father was relatively new to their lives. The psychologist
also pointed to the difference in the voice used by a father versus a mother and the
expectations that each parent might be placing on the children.

Only on the last day of the trial did the evidence focus on Father’s reasons for
seeking a modification of the parenting plan. Father asserted that Mother interfered with
his parenting time. He cited an incident on December 10, 2014, when Mother was not
home at an agreed-upon time for exchange of the children and failed to contact him. But

2
During the course of the trial, Father stipulated that Caleb was autistic.
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Mother explained that she took the children’s half-brother to the emergency room for a
chest x-ray. While at the hospital, Mother also had Caleb seen because of an asthma
attack earlier in the day at school. To establish that she communicated these events to
Father, Mother entered into evidence her phone records. The phone records included a
text message sent to Father forty minutes prior to the exchange time detailing their
whereabouts and showed a three-minute phone call to Father’s phone later that day.

Father also accused Mother of not giving him the children on another occasion
around Thanksgiving when they did not have school. Under the agreed parenting plan,
Father exercised parenting time with the children on non-school days other than specified
holidays. According to Mother, only Jack was out of school the day Father referenced.
In addition, because it was close to the Thanksgiving break, which under the plan
alternated between Mother and Father, Mother did not believe that Father was entitled to
have the children for that additional day.

Although the parenting plan allowed Father two phone calls per week, Father
complained that Mother would sometimes not answer the phone. According to Father,
when Mother did answer, she would either refuse to let him speak to the children, make
noise in the background during the call, or cut the call short.

Father testified to other complaints regarding Mother. Father claimed Mother
would tell the children that she could not buy Christmas presents because of Father’s
failure to pay child support and that she called Father a liar in the children’s presence.
During Father’s time in the military, Mother contacted Father’s superiors regarding past
due child support. Father also alleged that Mother did not keep him adequately informed
about the children while they were in her care. Father complained that Mother failed to
advise him of Caleb’s asthma attack at school until after the fact and that Mother did not
give adequate notice of changes in the children’s extracurricular activities.

Mother testified that it was difficult to communicate with Father because he would
use obscene words and call her names. She admitted that her conduct when interacting
with Father and his wife had been inappropriate on occasion, such as “flipp[ing them]
off” at an exchange. Mother explained that Father and his wife videotaped the
exchanges, which irritated Mother. But Mother denied ever interfering with Father’s
parenting time and, in fact, claimed to have offered him more time than he was entitled to
receive. Mother also complained that Father undermined her parenting and told the
children she was a liar.

B.

At the conclusion of trial, the juvenile court announced that it would modify the
permanent parenting plan. Among other things, the court stated its purpose was “to try to

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do what’s in the best interests of these children, particularly Caleb.” On May 4, 2016, the
court entered its “Final Order,” making the following findings:

The Court found, by a preponderance of the evidence, that the
children exhibit different behavior with the Father than with the Mother.
The Court found that there is not sufficient evidence to conclude that the
Mother has been doing anything wrong with regard to parenting the
children. No expert testimony was presented related to any deficiency of
the Mother. The testimony showed that the Mother’s parenting has been
appropriate.

There has been a material change of circumstances which would
warrant a modification of the current Permanent Parenting Plan.

The order then modified the parenting plan by increasing Father’s parenting time to 120
days and correspondingly decreasing Mother’s parenting time to 245 days. The court set
child support at $977 per month and awarded retroactive child support. In addition, the
court ordered the parties to split equally the cost of Caleb’s private school education.

From this decision, Father filed a notice of appeal. Father argues that the court
abused its discretion by not ordering equal parenting time and that the court’s “ruling was
erroneous, contrary to the weight of evidence and not supported by the record.”

II.

A.

As an initial matter, we must address Mother’s argument that Father’s notice of
appeal was untimely. An untimely notice of appeal deprives us of subject matter
jurisdiction over the appeal. Ball v. McDowell, 288 S.W.3d 833, 836 (Tenn. 2009).
Subject matter jurisdiction implicates our power to adjudicate a particular type of case or
controversy. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Toms v. Toms, 98
S.W.3d 140, 143 (Tenn. 2003); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn.
2000). If we lack subject matter jurisdiction, we are required to dismiss the appeal. See
Tenn. R. App. P. 3(e); Arfken & Assocs., P.A. v. Simpson Bridge Co., Inc., 85 S.W.3d
789, 791 (Tenn. Ct. App. 2002).

The thirty-day period in which a party aggrieved by the final judgment must file
either a post-trial motion or a notice of an appeal begins with the entry of a final
judgment. See Tenn. R. Civ. P. 59.02; Tenn. R. App. P. 4(a)-(b). Mother points out that
the “Final Order” adopting the modified permanent plan was entered on May 4, 2016, but
Father did not file his notice of appeal until July 27, 2016. Consequently, our analysis of

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whether this appeal was timely turns on whether the “Final Order” constituted a final
judgment.

We conclude that the “Final Order” was not a final judgment.3 The Tennessee
Rules of Appellate Procedure define “final judgment” by exclusion. A final judgment is
not an “order that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties.” Tenn. R. App. P. 3(a). Orders that resolve fewer than all
claims or the rights and liabilities of fewer than all the parties are “subject to revision at
any time before entry of a final judgment adjudicating all the claims, rights, and liabilities
of all parties.” Id. Our Supreme Court has described a final judgment as a judgment
“that resolves all of the parties’ claims and leaves the court with nothing to adjudicate.”
Ball, 288 S.W.3d at 836-37.

Clearly, the court’s May 4, 2016 order did not resolve the parties’ claims. The
order did not address Mother’s counter-petition for contempt and request that Father’s
parenting time be supervised. While this case was pending on appeal, this Court
“identified at least four issues that appear to remain unresolved.” And as a result, on
October 25, 2016, we ordered the parties to obtain from the juvenile court a final order
disposing of all the pending claims and motions. On November 23, 2016, the court
entered an order disposing of outstanding motions and requests for relief. With the entry
of the November 23, 2016 order, Father’s prematurely filed notice of appeal was treated
as filed as of November 23, 2016. See Tenn. R. App. P. 4(d).

Alternatively, Mother argues that, because Father’s notice of appeal does not
reference the “Final Order” entered on May 4, 2016, the scope of his appeal is limited to
matters addressed in an order that was referenced in the notice.4 See id. 3(f) (“The notice
of appeal . . . shall designate the judgment from which relief is sought[.]”). We disagree.
The notice of appeal is not a “review-limiting device.” Id. 13(a) advisory committee cmt.
(“[O]nce any party files a notice of appeal the appellate court may consider the case as a
whole.”); Thompson v. Logan, No. M2005-02379-COA-R3-CV, 2007 WL 2405130, at

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Mother also argues that no Rule 59 post-trial motion was filed within thirty days of the May 4
order to extend the deadline for the filing of the notice of appeal. Certain post-judgment motions, if
timely made, will toll the commencement of the thirty-day period for filing the notice of appeal until the
trial court adjudicates the pending post-judgment motion. Tenn. R. Civ. P. 59.01; Tenn. R. App. P. 4(b).
Because of our conclusion that the May 4 order was not a final judgment, this argument is similarly
unavailing.
4
Father’s notice of appeal referenced a “final judgment of the Juvenile Court of Montgomery
County filed on the 1st day of July.” The record contains no final judgment filed or entered on that date.
Mother posits that Father’s notice of appeal may be referring to an order that was entered on July 8, 2016,
following a hearing that occurred on July 1, 2016. The July 8, 2016 order addressed, among other things,
Caleb’s schooling and Father’s child support obligation.

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*16 (Tenn. Ct. App. Aug. 23, 2007) (“[A]n appeal from a final judgment brings up all
pre-judgment orders or decisions, and any question of law or fact may be considered.”).

B.

We now turn to Father’s issues on appeal. We review the trial court’s factual
findings de novo on the record, with a presumption of correctness, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); see, e.g., Armbrister v. Armbrister, 414
S.W.3d 685, 692 (Tenn. 2013). Evidence preponderates against a trial court’s finding of
fact when it “support[s] another finding of fact with greater convincing effect.” Watson
v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005). 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). We review the trial court’s
conclusions of law de novo, with no presumption of correctness. Armbrister, 414 S.W.3d
at 692.

Trial courts have wide discretion in fashioning parenting plans. Marlow v.
Parkinson, 236 S.W.3d 744, 748 (Tenn. Ct. App. 2007) (citing Parker v. Parker, 986
S.W.2d 557, 563 (Tenn. 1999)). We do not interfere with these decisions except upon a
showing of abuse of that discretion. See, e.g., Suttles v. Suttles, 748 S.W.2d 427, 429
(Tenn. 1988). A trial court abuses its discretion only if it: (1) applies an incorrect legal
standard; (2) reaches an illogical conclusion; (3) bases its decision on a clearly erroneous
assessment of the evidence; or (4) employs reasoning that causes an injustice to the
complaining party. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008); see also Kline v. Eyrich, 69 S.W.3d 197, 203-04 (Tenn. 2002);
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). In other words, if “reasonable
minds can disagree as to [the] propriety of the decision made,” the trial court’s ruling will
be upheld. Eldridge, 42 S.W.3d at 85 (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn.
2000)).

Regrettably, in this case our review is hampered by the juvenile court’s failure to
make specific findings of fact and conclusions of law. As noted by Mother in her brief,
the court did specify the material change of circumstance that potentially justified
modification of the agreed permanent parenting plan. And as noted by both parties, the
court did not specify the statutory best interest factors upon which it relied in making a
determination of the children’s best interests. The court also failed to find that the plan as
modified was in the children’s best interest.

Tennessee Rule of Civil Procedure 52.015 requires trial courts to make findings of
fact and conclusions of law, even if neither party requests them. See, e.g., Ward v. Ward,

5
The Tennessee Rules of Civil Procedure governed this proceeding under Tennessee Rule of
7
No. M2012-01184-COA-R3-CV, 2013 WL 3198157, at *14 (Tenn. Ct. App. June 20,
2013). Rule 52.01 provides, in relevant part, “In all actions tried upon the facts without a
jury, the court shall find the facts specially and shall state separately its conclusions of
law and direct the entry of the appropriate judgment.” Tenn. R. Civ. P. 52.01. “Simply
stating the trial court’s decision, without more, does not fulfill this mandate.” Barnes v.
Barnes, No. M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 (Tenn. Ct. App. Oct.
24, 2012).

“[F]indings of fact are particularly important in cases involving the custody and
parenting schedule of children, as these determinations often hinge on subtle factors,
including the parents’ demeanor and credibility during [the] proceedings.” In re Connor
S.L., No. W2012-00587-COA-R3-JV, 2012 WL 5462839, at *4 (Tenn. Ct. App. Nov. 8,
2012) (quoting Hyde v. Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905, at
*3 (Tenn. Ct. App. Oct. 12, 2010)). The parties themselves deserve to know the factual
basis for the trial court’s decision on such important matters. Ward, 2013 WL 3198157
at *15. Trial courts also need to be as “precise as possible in making child custody
findings” in order to facilitate appellate review. In re Elaina M., No. M2010-01880-
COA-R3-JV, 2011 WL 5071901, at 88 (Tenn. Ct. App. Oct. 25, 2011).

Under Rule 52.01, the trial court’s order should indicate why and how it reached a
decision, and which factual findings led the court to rule as it did. Pandey v. Shrivastava,
No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *4 (Tenn. Ct. App. Feb. 22,
2013). Although the court need not list every applicable statutory factor and an
accompanying conclusion for each factor, the trial court is required to “consider all
applicable factors.” Id. (quoting In re Connor S.L., 2012 WL 5462839, at *4). But we
have no indication that a trial court has considered all applicable statutory factors apart
from its written order. Anil Const., Inc. v. McCollum, No. W2013-01447-COA-R3-CV,
2014 WL 3928726, at *8 (Tenn. Ct. App. Aug. 7, 2014) (“It is well-settled that a trial
court speaks through its written orders—not through oral statements contained in the
transcripts—and that the appellate court reviews the trial court’s written orders.”) (citing
Alexander v. JB Partners, 380 S.W.3d 772, 777 (Tenn. Ct. App. 2011); Palmer v.
Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977)).

If we cannot determine from the trial court’s written order what legal standard it
applied or what reasoning it employed, then the trial court has not complied with Rule
52.01. See Ray v. Ray, No. M2013-01828-COA-R3-CV, 2014 WL 5481122, at *16
(Tenn. Ct. App. Oct. 28, 2014). The reviewing court must be able to ascertain “the steps
by which the trial court reached its ultimate conclusion on each factual issue.” Lovlace v.
Copley, 418 S.W.3d 1, 35 (Tenn. 2013) (quoting 9C CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 2579, at 328 (3d ed. 2005)).
“Without such findings and conclusions, this court is left to wonder on what basis the

Juvenile Practice and Procedure 101(c)(3)(D).
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[trial] court reached its ultimate decision.” Hardin v. Hardin, W2012-00273-COA-R3-
CV, 2012 WL 6727533, at *3 (Tenn. Ct. App. Dec. 27, 2102) (quoting In re K.H., No.
W2008-01144-COA-R3-PT, 2009 WL 1362314, at 88 (Tenn. Ct. App. May 15, 2009)).
We face precisely that scenario in this case.

Here, we are left to wonder what material change in circumstance prompted the
court’s decision to modify the parties’ agreed permanent parenting plan. Only a short
period of time had elapsed between the approval of the plan and Father’s petition to
modify. Father’s petition alleged various acts by Mother, such as interference with his
parenting time and harassment. But the court made no factual findings regarding Father’s
allegations, did not assess witnesses’ credibility, and made no mention of the statutory
best interest factors that should have directed its decision. Tenn. Code Ann. § 36-6-
106(a) (2017); see also Pandey, 2013 WL 657799, at *4. Although Father presented
evidence at trial, and the court found, that the children behaved differently when they
were with Father than when they were with Mother, the court also found that Mother’s
parenting was appropriate. Because the court did not make sufficient findings of fact or
conclusions of law to explain its decision, we cannot discern whether the court erred or
abused its discretion.

Although “the appellate court may choose to conduct its own independent review
of the record” in the absence of sufficient findings of fact, it is not prudent to do so in this
case. Williams v. Singler, No. W2012-01253-COA-R3-JV, 2013 WL 3927934, at *10
(Tenn. Ct. App. July 31, 2013); see also Lovlace, 418 S.W.3d at 36; Brooks v. Brooks,
992 S.W.2d 403, 404-05 (Tenn. 1999); Coley v. Coley, No. M2007-00655-COA-R3-CV,
2008 WL 5206297, at *6 (Tenn. Ct. App. Dec. 12, 2008). Unlike other cases in which
we have conducted an independent review, this record lacks conclusions of law and
assessments of the witnesses’ credibility. Without these determinations, we are ill-
equipped to conduct an independent review of the record.

Thus we vacate the juvenile court’s order and remand for entry of an order in
compliance with Rule 52.01. See Pandey, 2013 WL 657799, at *5-6; Hardin, 2012 WL
6727533, at *6; In re Connor S.L., 2012 WL 5462839, at *4; Simpson v. Fowler, No.
W2011-02112-COA-R3-CV, 2012 WL 3675321, *4 (Tenn. Ct. App. Aug. 28, 2012).
Pending entry of the trial court’s order on remand, the provisions of the current parenting
plan entered on May 4, 2016, will remain in effect as a temporary order.

C.

Mother requests that this Court grant her an award of attorney’s fees on appeal.
We have discretion under Tennessee Code Annotated § 36-5-103(c) to award a prevailing
party fees incurred on appeal. Pippin v. Pippin, 277 S.W.3d 398, 407 (Tenn. Ct. App.
2008); Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App. 2004). We consider the
following factors in our decision to award fees: (1) the requesting party’s ability to pay
9
the accrued fees; (2) the requesting party’s success in the appeal; (3) whether the
requesting party sought the appeal in good faith; and (4) any other relevant equitable
factors. Hill v. Hill, No. M2006-02753-COA-R3-CV, 2007 WL 4404097, at *6 (Tenn.
Ct. App. Dec. 17, 2007). In light of these factors and our decision to vacate and remand
the juvenile court’s judgment, we decline to award Mother her attorney’s fees incurred on
appeal.

III.

Based on the foregoing, we vacate the judgment of the juvenile court and remand
for all further proceedings as may be necessary and consistent with this opinion. The
current permanent parenting plan will remain in effect pending the entry of an order
containing the necessary findings of fact and conclusions of law.

_________________________________
W. NEAL MCBRAYER, JUDGE

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