Facts: Mother and Father divorced in 2010. Mother was named the primary residential parent and was awarded 223 days of parenting time to Father’s 142 days.
Two years later, Mother married an officer in the United States Navy. Mother’s husband received orders requiring him to move to Virginia.
Mother notified Father of her desire to relocate with Child to Virginia. Father filed a petition in opposition to the proposed relocation and requested a change of custody.
The main reason Father opposed Mother’s relocation was because of an incident of sexual abuse by Child’s stepbrother.
The proof at trial showed that Mother took appropriate steps to protect Child once she learned of the abuse. Mother and her husband fully implemented the safety plan Child’s therapist recommended — part of which required extra supervision of the children when Child and the stepbrother were together — and there have been no further incidents of abuse.
The trial court concluded Father had failed to prove that relocating to Virginia with Child would pose a specific threat to Child that outweighed the threat of harm from a change in custody. Thus, the trial court approved Mother’s request to relocate with Child.
The trial court entered a parenting plan awarding Mother 253 days of parenting time and 112 days for Father. Holidays were shared, and Father was awarded one weekend per month in Virginia during the school year. Child was to spend the majority of the summer with Father in Tennessee, with Mother to have one week at the beginning and end of the summer. During Child’s summer vacation with Father, Mother was awarded two four-day periods with Child in Tennessee.
Notably, the transportation costs incurred when Child flies to Tennessee to visit Father were allocated to Mother. The trial court explained its rationale for imposing Child’s transportation costs to Tennessee on Mother by noting that (1) Mother is the one who wanted to move, (2) Mother can afford to pay these costs, and (3) Child will not suffer any detriment as a result.
On Appeal: The Court of Appeals affirmed the trial court.
The trial court made Mother responsible for the transportation costs except for the nine weekends during the school year when Father may visit Child in Virginia. Mother argued the trial court improperly deviated downward from the presumptive child support amount Father should have been ordered to pay under the child support guidelines by requiring her to use a large portion of Father’s child support payments to pay for Father’s visitation.
The parental relocation statute, Tennessee Code § 36-6-108(f), addresses transportation costs and provides:
The court shall assess the costs of transporting the child for visitation, and determine whether the deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.
The child support guidelines that specifically address deviations for parenting time-related travel expenses as follows:
If parenting time-related travel expenses are substantial due to the distance between the parents, the tribunal may order the allocation of such costs by deviation from the [presumptive child support obligation], taking into consideration the circumstances of the respective parties as well as which parent moved and the reason that the move was made.
Deviation from the child support guidelines is within the discretion of the trial court and must serve the best interest of the child. Before deviating from the presumptive child support amount, trial courts are required to consider “all available income of the parents” and are required to find that an amount of child support other than the amount calculated under the Guidelines is reasonably necessary to provide for the needs of the child.
After reviewing the record, the Court concluded:
We disagree with Mother that the trial court deviated downward to lower her child support order when it made her responsible for [Child’s] travel expenses to Tennessee. Instead, we believe the court simply followed the statute’s direction to “assess the costs of transporting the child for visitation” and chose not to deviate from the guidelines after considering the relevant factors in this case. Mother was permitted to relocate with [Child] to Virginia, as she requested, and the trial court did not abuse its discretion by requiring her to share Father’s cost of exercising his visitation with [Child] once he was there.
Mother also argued the trial court erred in denying her request for an award of attorney’s fees.
Tennessee Code § 36-6-108(i) gives the trial court discretion to award attorney’s fees and other litigation expenses to either parent in a relocation matter. In this case, the trial court exercised its discretion not to award Mother her fees. The trial court commented:
[T]he reason we’re here . . . is because the mother married a gentleman and at the time she knew full well . . . that she was going to take the child away from the natural father. Just by virtue of the fact of marrying the man, she knew that was a consequence, so then to come back into court and request attorney’s fees is absurd. It is her fault that we’re here and we need to clearly understand that.
The Court rejected the trial court’s reasoning but affirmed the result, stating:
We disagree with the trial court’s reasoning that Mother was “absurd” to request her attorney’s fees under the facts of this case. Mother had every right to marry whomever she chose and to follow her husband to a different state when his work required him to relocate. We disagree with the trial court’s use of the word “fault” in its judgment. However, the statute does not grant Mother the right, as the prevailing party, to recover her fees, either. The trial court found Father had legitimate concerns regarding Mother’s relocation and [Child’s] continued safety….
[W]e cannot say under the facts of this case that the court abused its discretion in denying Mother’s request for her fees.
Accordingly, the trial court’s judgment was affirmed.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.