Phillip Neal Kennedy v. Jane Kennedy
M2016-01635-COA-R3-CV
Tenn. Ct. App.Jun 23, 2017Background
- Parties divorced in 2011; parenting plan named Mother primary residential parent with equal co-parenting time for two children (one later reached majority).
- Father was later designated primary residential parent by agreed order (Mother given 125 days/year; Father to pay $437/month child support).
- Father filed a 2013 petition to modify the residential schedule, seeking to reduce Mother’s time to 80 days and obtain retroactive support, alleging Mother failed to exercise her time; Mother countered that Father prevented visitation and sought more time.
- Extensive litigation followed; after various motions, a June 20, 2016 hearing was held (Child, then 17, testified in camera favoring limited consistent time).
- Trial court found a material change in circumstances, modified the schedule to 90 days/year for Mother, ordered Mother to pay $352/month child support, awarded Father $32,000 in attorney fees, and awarded 12 months of retroactive child support.
Issues
| Issue | Kennedy (Mother) Argument | Kennedy (Father) Argument | Held |
|---|---|---|---|
| Modification of residential schedule | Trial court erred reducing Mother’s time to 90 days—court already found material change and Father previously agreed 125 days was acceptable | Court acted within discretion in crafting schedule serving child’s best interests | Affirmed: material change found; modification within broad discretion |
| Retroactive child support | If modification was erroneous, Mother entitled to reversal of retroactive award | Retroactive support appropriate given affirmed modification | Affirmed: retroactive award proper post-modification |
| Trial attorney fees | Award was unreasonable and unsupported by record | Fees were within court’s discretion; Mother waived reasonableness challenge | Affirmed: award within discretion; Mother failed to preserve reasonableness challenge |
| Appellate attorney fees / sanctions | (No separate argument) | Appeal frivolous; requests fees under Tenn. Code Ann. § 27-1-122 and § 36-5-103(c) | Denied: appellate fees/sanctions not awarded; trial fees upheld |
Key Cases Cited
- Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013) (trial courts have broad discretion in parenting arrangements; appellate courts should not "tweak" schedules)
- Blackburn v. Blackburn, 270 S.W.3d 42 (Tenn. 2008) (standard of review for conclusions of law de novo)
- Whitaker v. Whitaker, 957 S.W.2d 834 (Tenn. Ct. App. 1997) (custody decisions entitled to broad trial-court discretion)
- Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001) (abuse-of-discretion standard explained)
- Kahn v. Kahn, 756 S.W.2d 685 (Tenn. 1988) (trial court may fix attorney fees without expert testimony or detailed proof)
- Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303 (Tenn. 2009) (discussion of American Rule and statutory exceptions for attorney fees)
- Miller v. Miller, 336 S.W.3d 578 (Tenn. Ct. App. 2010) (requirement that fee request include affidavit with hourly rate and time spent)