Una P. Irvin v. Ernest J. Irvin, II
M2016-02540-COA-R3-CV
| Tenn. Ct. App. | Jan 8, 2018Background
- Parents Una (Mother) and Ernest II (Father) share two children; Mother was designated primary residential parent in prior orders and a permanent parenting plan allocated Father 114 days/year, mostly during summer.
- Father, a military servicemember, relocated to Tampa, Florida; Mother lives in Clarksville, Tennessee; increased travel and children’s extracurriculars prompted scheduling difficulties.
- Father petitioned (Aug 2015) to be named primary residential parent, alleging ongoing parental interference by Mother and emotional/safety concerns from their daughter Heidi; Mother counter-petitioned to modify the residential schedule and make Father pay transport costs.
- Interim motions in July 2016 involved allegations that Heidi feared her stepfather and had prior suicidal ideation; Heidi and a treating psychologist testified that Heidi felt distressed living with Mother and stepfather and expressed a desire to live with Father.
- Trial court (Nov 2016) denied Father’s request to change primary residential parent (finding no material change for custody) but found a material change for modifying the residential schedule, adopted a new parenting plan reducing Father’s days from 114 to 90 and requiring Father to pay all transportation costs; Father appealed.
- Court of Appeals vacated and remanded because the trial court, while conducting a best-interest analysis about changing primary custody, failed to perform the required best-interest analysis specifically on whether modifying the residential parenting schedule (i.e., reducing Father’s parenting days by 24) was in the children’s best interest.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether trial court abused discretion by reducing Father’s parenting time by 24 days | Father argued material change (relocation, interference, daughter’s distress) and that reduction was improper | Mother argued Father’s Florida move and children’s activities justified schedule change | Vacated and remanded: trial court failed to analyze whether modifying the residential schedule (reducing days) was in children’s best interest, so decision reversed for further proceedings |
| Whether trial court erred ordering Father to pay all transportation costs | Father argued allocation was improper given circumstances | Mother argued Father should bear travel costs due to relocation | Pretermitted by appellate court because underlying best-interest analysis was vacated; no decision on merits |
| Whether Father should receive appellate attorney’s fees | Father requested fees based on appeal outcome | Mother opposed | Denied: appellate court declined to award fees after considering ability to pay, success on appeal, good faith, and equitable factors |
Key Cases Cited
- Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013) (standard of review and two-step analysis for custody/modification)
- Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011) (definition of abuse of discretion)
- Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001) (trial court must apply correct legal standard in custody matters)
- Massey-Holt v. Holt, 255 S.W.3d 603 (Tenn. Ct. App. 2007) (deference to trial court credibility findings in parenting cases)
- John Kohl & Co., P.C. v. Dearborn & Ewing, 977 S.W.2d 528 (Tenn. 1998) (paying one’s own attorney’s fees as general rule)
- Moran v. Willensky, 339 S.W.3d 651 (Tenn. Ct. App. 2010) (factors for awarding appellate attorney’s fees in family cases)