Alanna Christine Howe v. John Ashley Howe
E2016-01212-COA-R3-CV
| Tenn. Ct. App. | Apr 10, 2017Background
- Parties divorced in 2008; custody incorporated into decree designating Father primary residential parent and awarding Mother 65 days of co-parenting time; Mother ordered to pay child support (initially $498, then $758 monthly) based on imputed income unless she furnished documentation.
- Mother moved to Florida; in August 2014 she petitioned to be designated primary residential parent, alleging Father's verbal/physical abuse of the child, inappropriate adults in the child’s presence, neglect of medical care, extended travel leaving the child with romantic acquaintances, and failure to notify Mother about school events.
- Father denied allegations, filed for contempt for Mother’s underpayments of child support (he alleged she paid $280/month despite the $758 order), and acknowledged some parenting-schedule adjustments were needed due to Mother’s relocation.
- At trial Father admitted some misconduct (one spanking with a belt; occasional profanity; overnight stays with romantic partners while child present; one instance of inappropriate video exposure; leaving child with another while on a trip). Guardian ad litem recommended Father remain primary residential parent though child wanted more time with Mother.
- Trial court denied Mother’s request to call the child in camera, found Mother failed to prove a material change warranting primary-parent designation but did increase Mother’s co-parenting time to 135 days, found Mother in contempt for unpaid child support arrears, split guardian fees, and denied attorney-fee awards to either party.
- Mother appealed, raising four issues: denial of child testimony, exclusion of former-attorney testimony, contempt finding, and denial of Father’s request for attorney’s fees/guardian costs.
Issues
| Issue | Mother's Argument | Father's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by refusing in-camera child testimony | Child’s testimony was relevant to corroborate abuse and child’s preference; exclusion prevented full fact-finding | Testimony would be cumulative, the child was coached/influenced, and testimony risked harm to child | Affirmed — court acted within discretion under Tenn. R. Evid. 403; testimony would be cumulative and child potentially coached |
| Whether excluding testimony of Mother’s former attorney was error | Former attorney would show Mother provided income information to Father as required by order | Testimony was irrelevant to modify past support; court controls support modifications | Affirmed — proffer was of minimal probative value; exclusion not reversible |
| Whether holding Mother in contempt for unpaid child support was error | Mother complied with order by giving income info to Father and paying based on that info | Child support order was not modified; arrears accrue until a modification action is filed | Affirmed — contempt proper; T.C.A. §36-5-101(f)(1) prevents retroactive modification of owed amounts prior to filing notice |
| Whether trial court abused discretion by denying Father attorney fees and guardian costs | Father prevailed on key issues and should recover fees under custody-fee statute | American Rule requires statutory or contractual basis; court has discretion under T.C.A. §36-5-103(c) | Affirmed — court did not abuse discretion in denying fees and guardian costs |
Key Cases Cited
- Bogan v. Bogan, 60 S.W.3d 721 (Tenn. 2001) (bench-trial findings reviewed de novo with presumption of correctness for factual findings)
- Hughes v. Metro. Govt. of Nashville and Davidson Cnty., 340 S.W.3d 352 (Tenn. 2011) (trial court credibility determinations afforded great deference)
- Whaley v. Perkins, 197 S.W.3d 665 (Tenn. 2006) (questions of law reviewed de novo)
- White v. Vanderbilt Univ., 21 S.W.3d 215 (Tenn. Ct. App. 1999) (standards for admissibility rulings and Rule 403 balancing)
- State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186 (Tenn. 2000) (American Rule on attorney fees)
- Taylor v. Fezell, 158 S.W.3d 352 (Tenn. 2005) (attorney-fee recovery principles)
- Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303 (Tenn. 2009) (statutory and contractual bases required to recover attorney fees)