Facts: Father was named the primary residential parent when the parties were divorced, and Mother was granted liberal parenting time with Child. Father filed three separate petitions during the following three years seeking to modify and limit Mother’s time with Child. Each time, the trial court entered a temporary ex parte restraining order prohibiting Mother from having any contact with Child until a hearing. Ultimately, Father was unable to prove any of his allegations against Mother, leading the trial court to deny each of his petitions. In response to his final petition to modify, Mother filed a counter petition asking to be named the primary residential parent. After a hearing, the trial court granted Mother’s petition, finding that Father’s petitions intentionally interfered in Child’s relationship with Mother and constituted a material change in circumstances. Father appealed.
On Appeal: The Court of Appeals affirmed the trial court.
Change of Custody. The Court summarized the evidence in the record regarding the three petitions filed by Father. In each instance, Father made very serious allegations (sexual abuse, drug use, etc.) but admitted at the hearing to having no proof whatsoever to support his allegations nor making any effort to investigate his allegations. Reading the cited excerpts of Father’s cross examination, one can only imagine the trial court’s frustration with Father’s nonsense. The Court of Appeals easily concluded:
Based on the evidence presented at the hearing in August 2009, we conclude the evidence does not preponderate against the trial court’s finding that Father filed each of the three petitions seeking to modify Mother’s parenting time without undertaking necessary investigation and that they were frivolous. Therefore, the court was not precluded from relying on these findings in its consideration of the child’s best interest in deciding whether to name Mother the primary residential parent.
Both Father and Mother agreed that transporting the child back and forth every day is not in her best interest, especially now that she is of school age. They agreed that the parenting plan had to be altered in some way to provide more stability in the child’s day to day life. One of the factors trial courts are to consider in determining a child’s best interest is the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. Tenn. Code Ann. §36-6-404(b)(3). The trial court was reasonable in concluding Father was not facilitating the child’s relationship with Mother by filing petitions to limit her time with the child when Father had no basis for the assertions he made in the petitions.
Accordingly, we conclude the trial court’s decision to name Mother the primary residential parent was reasonable and supported by a preponderance of the evidence.
Attorney’s Fees. Mother argued the trial court erred by failing to award her the attorney’s fees she incurred defending each of Father’s frivolous petitions. Mother also sought to recover her attorney’s fees incurred in defending Father’s appeal. The Court agreed.
Tennessee Code Annotated § 36-5-103(c) provides:
The plaintiff spouse may recover from the defendant 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.
The Court has previously stated that requiring parents who initiate custody or support proceedings to underwrite the costs if their claims are ultimately found to be unwarranted is appropriate as a matter of policy. The other parent’s ability to pay his or her legal expenses is not a prerequisite for awarding attorney’s fees under the statute.
Considering the foregoing, the Court ruled:
Awarding Mother attorney’s fees is reasonable and equitable in this case. Mother was compelled to defend three petitions Father filed without adequately investigating whether the allegations had any basis in fact. In these petitions, Father was unable to prove even one material change of circumstance supporting his request that Mother’s time with their child be reduced. Father agreed before the trial court the parenting plan should be changed, but was unable to prove that the child’s best interests required some other plan than the one adopted. Consequently, we conclude that Mother is entitled to an award of attorney’s fees in defending these actions at the trial level. Additionally, we award Mother attorney’s fees incurred in this appeal.
The facts in this case are a bit extreme but they still serve as a warning to parents that the failure to promote a relationship with the other parent can be a material change of circumstances resulting in a change of custody. It is also important to remember that the courts are the place to resolve serious disagreements, not frivolous claims based on nothing more than an active imagination. In this case, Father played expensive games for a long time but the court finally got fed up with his antics.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce And Family Law Attorney.