Denial of Attorney’s Fees Appealed in Lebanon, Tennessee Modification of Parenting Schedule: Emch v. Emch

September 26, 2022 K.O. Herston 0 Comments

Facts: Father and Mother, the divorced parents of one child, had an agreed parenting plan that provided for equal time via alternating weeks plus a midweek visit. It designated Mother as the primary residential parent and required joint decision-making in all categories, including educational decisions.

The parents agreed to send the child to daycare in Wilson County, where both parents lived.

When it was time for the child to start kindergarten, the parties were at an impasse over where the child would attend school. By then, Mother planned to move to Williamson County with her fiancé and wanted the child to attend school there. However, Father had recently built a house with his wife in Wilson County and wanted the child to attend school there.

Father petitioned to change the parenting plan to designate him as the primary residential parent and use his address to determine the child’s school zoning.

Mother argued the child should attend the school for which she is zoned because she is the primary residential parent. She also argued the joint decision-making provision was not implicated because enrolling the child in the school for which she is zoned was not an educational decision.

Although Mother’s relocation was not far enough to trigger the parental relocation statute, which only applies when a parent relocates over 50 miles away from the other parent, the proof showed the child would have a long commute during the school year no matter which school she attended.

The trial court found there was not enough of a material change to justify changing the primary residential parent designation, and it denied Father’s request to use his address for school zoning. However, the court found that the increase in the child’s school commute time was a material change that justified changing the parenting schedule. The trial court kept the alternating week schedule and eliminated the midweek visits. While the trial court found the decision of where to send the child’s school was within the scope of the joint decision-making provision, it ordered the parents to send the child to the school for which Mother is zoned. Mother’s request for attorney’s fees was denied.

On Appeal: The Court of Appeals affirmed the trial court.

Tennessee Code Annotated § 36-5-103(c) allows trial courts to award attorney’s fees to the prevailing party in actions to modify a permanent parenting plan. The decision to grant attorney’s fees under this statute is largely within the trial court’s discretion. Absent an abuse of discretion, appellate courts will not interfere with the trial court’s ruling.

Mother argued that the statute entitled her to attorney’s fees at the trial court level because “Father filed a petition in which he made false allegations against Mother in bad faith for the purpose of attempting to change custody.”

The Court of Appeals disagreed:

[T]he trial court explained that it denied Mother’s request for an award of her trial attorney’s fees because Father was following the parenting plan when he commenced the action, [stating]:

In the foregoing matter, both parties prevailed in part. Once the parents disagreed about the school and were unable to resolve the issue in mediation, Father either had to file a petition or lay down, and the latter was not an option. Father had to seek relief from the Court as that is how the parenting plan is designed. The Court does not fault Father for filing this petition.

We find no error in the trial court’s decision and affirm its denial of Mother’s request for an award of her attorney’s fees.

The Court affirmed the trial court’s judgment in its entirety.

Emch v. Emch (Tennessee Court of Appeals, Middle Section, September 1, 2022).

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Denial of Attorney’s Fees Appealed in Lebanon, Tennessee Modification of Parenting Schedule: Emch v. Emch was last modified: September 28th, 2022 by K.O. Herston

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