Angela Slavko v. Scott Slavko ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 1, 2016
ANGELA SLAVKO v. SCOTT SLAVKO
Appeal from the Circuit Court for Marshall County
No. 11CV04 Franklin L. Russell, Judge
No. M2015-01267-COA-R3-CV – Filed September 9, 2016
This post-divorce appeal concerns the mother‟s notice of intent to relocate to
Pennsylvania with the parties‟ minor children. The father responded by filing a petition
in opposition to the requested relocation. The trial court granted the father‟s petition.
The mother appeals. We reverse the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, P.J., M.S., and KENNY ARMSTRONG, J., joined.
Debbie Zimmerle, Lewisburg, Tennessee, for the appellant, Angela Slavko.
Scott Slavko, Lewisburg, Tennessee, pro se.
OPINION
I. BACKGROUND
Angela Slavko (“Mother”) and Scott Slavko (“Father”) were married on May 18,
2001. Two children were born of the marriage. Mother filed a complaint for divorce on
January 21, 2011, alleging inappropriate marital conduct and irreconcilable differences as
statutory grounds. Father responded by filing a counter-complaint for divorce, also
alleging inappropriate marital conduct and irreconcilable differences as statutory grounds.
Mother and Father (collectively “the Parties”) were divorced by final decree in
April 2012. The divorce decree incorporated a parenting plan in which Mother was
designated as the primary residential parent of the Children, while Father was awarded
119 days of co-parenting time. Thereafter, Mother filed a petition to modify the
permanent parenting plan and establish Father‟s child support obligation. The trial court
granted the motion by adjusting the parenting plan to accommodate Father‟s work
schedule and by ordering him to remit payment for child support in the amount of $388
per month.
On April 6, 2015, Mother provided Father with a notice of intent to relocate to
Philadelphia, Pennsylvania, citing her desire to reside with her current husband, an
employment opportunity, an educational opportunity, proximity to relatives and a church,
and the availability of extracurricular activities for the Children as reasons for the
relocation. Mother explained that her current husband moved to Pennsylvania to care for
his biological son and that she currently lives with her mother in an attempt to ease the
financial strain of maintaining two households. Father responded by filing a petition in
opposition to the requested relocation, asserting that the proposed relocation was neither
reasonable nor in the best interest of the Children, who had established a close
relationship with him and the maternal grandmother. He further alleged that the
opportunities cited by Mother were available in Tennessee and that the relocation was
“primarily for the benefit of [Mother] and her new husband.”
A hearing was held at which the Parties testified. Mother provided a statement of
the evidence because a transcript was not available for this court‟s review. Pursuant to
the statement, Mother testified that her husband moved to Pennsylvania to tend to his
son‟s physically debilitating medical needs. She explained that the court would not
permit long-distance visitation given the child‟s medical condition. She stated that she
and her minor children moved in with her mother following her husband‟s relocation.
She alleged that her mother no longer wished to house her and the Children and refused
to provide childcare while she worked. She explained that she is employed as a nurse
with an hourly wage of approximately $25.63 per hour and an additional $7 per hour
when she works on weekends.
Mother testified that she obtained employment in Pennsylvania with an agency
that would provide an approximate $30,000 increase in her current pay with the same
amount of hours. She also intended to pursue an educational opportunity while working.
She sought to enroll the Children in a private school with a 14 to 1 student to teacher
ratio. She further provided that her husband was willing to care for the Children while
she worked and that combining their households would provide her with greater financial
stability. She questioned Father‟s financial stability and alleged that he requested her
assistance in remitting payment for an electric bill in February 2015.
Father conceded that he had considered relocating to Pennsylvania at one time.
He stated that he had just obtained employment at Frito Lay in Middle Tennessee and
that he intended to arrange his schedule to better accommodate the Children. He
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provided that the maternal grandmother agreed to provide childcare for him as needed.
He asserted that relocating the Children away from their maternal grandmother “would
not be good for them.” He questioned Mother‟s desire to move to Pennsylvania and
claimed that she had mentioned relocating to several different places. He believed that
she simply wanted to leave Tennessee.
Following the presentation of the evidence, the trial court entered an order, which
provided, in pertinent part, as follows:
THIS cause came to be heard on the 29th day of May, 2015, upon
[Father‟s] Petition in Opposition to Relocation. Based upon the evidence
presented, the Court finds th[e] following:
That [Mother] shall not be awarded permission or allowed to relocate with
the parties‟ minor children[.]
The court then entered an agreed permanent parenting plan in which Father was
designated as the primary residential parent and Mother was provided with 65 days of co-
parenting time. Mother was also tasked with remitting child support in the amount of
$596 per month. This timely appeal followed.1
II. ISSUES
We consolidate and restate the issues raised on appeal as follows:
A. Whether this court must vacate the judgment and remand the action
based upon the court‟s failure to issue specific findings of fact and
conclusions of law pursuant to Rule 52.01 of the Tennessee Rules of Civil
Procedure.
B. Whether the proposed relocation must be permitted pursuant to
Tennessee Code Annotated section 36-6-108(d)(1).
1
Father failed to file a responsive brief. Accordingly, this matter was submitted for a decision on the
record and the appellant‟s brief pursuant to Rule 29(c) of the Tennessee Rules of Appellate Procedure.
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III. DISCUSSION
A.
Rule 52.01 of the Tennessee Rules of Civil Procedure provides, in pertinent part,
as follows:
In all actions tried upon the facts without a jury, the court shall find the
facts specially and shall state separately its conclusions of law and direct
the entry of the appropriate judgment.
Here, the trial court failed to find the facts specially and state separately its conclusions of
law before directing entry of the appropriate judgment.
In the absence of specific findings of fact and conclusions of law, an appellate
court will generally either (1) remand the action with direction to the trial court to issue
the appropriate findings and conclusions or (2) conduct a de novo review to determine
where the preponderance of the evidence lies. Lovelace v. Copley, 418 S.W.3d 1, 35-36
(Tenn. 2013) (citations omitted). Remanding to the trial court would only further prolong
this litigation and potentially result in a second appeal, thereby frustrating the ability of
the Children to achieve closure and finality in an already tenuous situation. Moreover,
we believe that conducting a de novo review is feasible here given the record and the
specific framework provided by the parental relocation statute, codified at Tennessee
Code Annotated section 36-6-108, in determining such issues.
B.
The parental relocation statute creates a mechanism for determining whether a
parent who has custody of a child may relocate outside the state or more than 100 miles
from the other parent within Tennessee. Tennessee Code Annotated section 36-6-
108(d)(1) applies in this action because the record reflects that Father did not spend
substantially equal intervals of time with the Children. The provision provides:
(d)(1) If the parents are not actually spending substantially equal intervals
of time with the child and the parent spending the greater amount of time
with the child proposes to relocate with the child, the other parent may,
within thirty (30) days of receipt of the notice, file a petition in opposition
to removal of the child. The other parent may not attempt to relocate with
the child unless expressly authorized to do so by the court pursuant to a
change of custody or primary custodial responsibility. The parent spending
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the greater amount of time with the child shall be permitted to relocate with
the child unless the court finds:
(A) The relocation does not have a reasonable purpose;
(B) The relocation would pose a threat of specific and serious
harm to the child that outweighs the threat of harm to the
child of a change of custody; or
(C) The parent‟s motive for relocating with the child is
vindictive in that it is intended to defeat or deter visitation
rights of the non-custodial parent or the parent spending less
time with the child.
Tenn. Code Ann. § 36-6-108(d)(1). The parent opposing the relocation bears the burden
of proof to establish one of these three grounds. Clark v. Clark, No. M2002-03071-
COA-R3-CV, 2003 WL 23094000, at *3 (Tenn. Ct. App. Dec. 20, 2003). The relocation
shall be permitted if the opposing parent fails to prove any of the three grounds. Tenn.
Code Ann. § 36-6-108(d)(1). If the court finds one of the grounds to be present, “the
court shall determine whether or not to permit relocation of the child based on the best
interest of the child.” Tenn. Code Ann. § 36-6-108(e).
Here, Father never alleged that the motive behind the desire to relocate was
vindictive or that the relocation posed a threat of serious and specific harm to the
Children. Accordingly, we will limit our review to whether the proposed relocation has a
reasonable purpose. “[D]eterminations concerning whether a proposed move has a
reasonable purpose are fact-intensive and require a thorough examination of the unique
circumstances of each case.” In re Spencer E., No. M2009-02572-COA-R3-CV, 2011
WL 295896, at *11 (Tenn. Ct. App. Jan. 20, 2011) (citation omitted). “[T]he „reasonable
purpose‟ of the proposed relocation must be a significant purpose, substantial when
weighed against the gravity of the loss of the non-custodial parent‟s ability „to participate
fully in their children‟s lives in a more meaningful way.‟” Webster v. Webster, No.
W2005-01288-COA-R3-CV, 2006 WL 3008019, at *14 (Tenn. Ct. App. Oct. 24, 2006)
(quoting Aaby v. Strange, 924 S.W.2d 623, 631 (Tenn. 1996)). “As this [c]ourt has held
in the past, the desire of a primary residential parent to move to be near his or her
extended family can form the basis for a reasonable purpose, particularly when this
reason is augmented by additional considerations.” Rogers v. Rogers, No. W2006-
00858-COA-R3-CV, 2007 WL 1946617, at *11 (Tenn. Ct. App. July 3, 2007) (citing
Price v. Bright, No. E2003-02738-COA-R3-CV, 2005 WL 166955, at *11 (Tenn. Ct.
App. Jan. 26, 2006); (Caudill v. Foley, 21 S.W.3d 203, 212 (Tenn. Ct. App. 1999)). In
Rogers, the court held that the purpose for relocating was unreasonable when the only
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reason for the proposed move was the proximity of extended family. 2007 WL 1946617,
at *11 (noting that even that reason was speculative when the extended family had not yet
moved to the proposed location). In contrast, this court determined in Price and Caudill
that the purpose for relocating was reasonable when the relocating parent sought to be
near family and when there were concrete job opportunities available. Price, 2005 WL
166955, at 11; Caudill, 21 S.W.3d, at 212.
Here, Mother cited numerous reasons in support of her relocation, including (1)
proximity to her husband; (2) availability of support from extended family; (3) an
employment opportunity with an increased income; (4) the ability to pursue post-graduate
education; and (5) the absence of reliable family support in Tennessee. She also claimed
that the relocation would reduce the financial strain of maintaining two households and
testified concerning specific educational and extracurricular activities for the Children.
Father failed to respond to the majority of Mother‟s stated reasons in his petition in
opposition to the proposed relocation or at the hearing. He simply asserted that similar
opportunities were available in Tennessee and that the relocation would disrupt the
Children‟s relationship with the maternal grandmother. He also claimed that the
relocation was solely for the benefit of Mother and her current husband.
We agree that similar employment and educational opportunities may be available
in Tennessee. However, Mother presented many other considerations in support of her
proposed relocation. With all of the above considerations in mind, we conclude that the
stated purposes for relocating are reasonable and substantial when considered together
and that the purposes outweigh Father‟s loss of co-parenting time. Accordingly, we need
not address whether the relocation was in the best interest of the Children. See Tenn.
Code Ann. § 36-6-108(d)(1) (providing that relocation shall be permitted unless one of
the enumerated grounds has been established). We reverse the decision of the trial court.
IV. CONCLUSION
The judgment of the trial court is reversed. The case is remanded for further
proceedings such as modification of the parenting plan to accommodate Mother‟s
relocation. Costs of the appeal are taxed to the appellee, Scott Slavko.
_________________________________
JOHN W. McCLARTY, JUDGE
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