Michael Joseph Crew Hensley v. Shellie Nicole Bouma Hensley ( 2017 )

11/15/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 19, 2017 Session
MICHAEL JOSEPH CREWS HENSLEY v.
SHELLIE NICOLE BOUMA HENSLEY
Appeal from the General Sessions Court for Campbell County
No. 15138 Amanda H. Sammons, Judge
No. E2017-00354-COA-R3-CV
In this post-divorce parenting dispute, the mother appeals the trial court’s judgment
modifying the residential co-parenting schedule and reducing the number of co-parenting
days allotted to the mother from that provided in the prior permanent parenting plan.
Having determined that the order appealed fails to resolve the issue of a corresponding
modification in child support, we conclude that it is not a final order. Accordingly, we
dismiss the appeal for lack of subject matter jurisdiction.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Terry M. Basista, Jacksboro, Tennessee, for the appellant, Shellie Nicole Bouma
Hensley.
Robert R. Asbury, Jacksboro, Tennessee, for the appellee, Michael Joseph Crews
Hensley.
OPINION
I. Factual and Procedural Background
The original plaintiff, Michael Joseph Crews Hensley (“Father”), and the original
defendant, Shellie Nicole Bouma Hensley (“Mother”), were divorced by order of the
Campbell County General Sessions Court (“trial court”) on September 16, 2009. The
court approved the parties’ partial settlement as to property distribution but conducted a
bench trial to address co-parenting issues concerning the parties’ twin children, a boy and
a girl (“collectively, the Children”), who were three years old at the time of the divorce
judgment. In a subsequent permanent parenting plan order entered June 2, 2010 (“June
2010 PPP”), the court designated Mother as the primary residential parent with all major
decision-making ability, granting her 215 days of annual co-parenting time as compared
to 150 days of annual co-parenting time to be enjoyed by Father.
At the time of the June 2010 PPP’s entry, Father resided in Campbell County,
Tennessee, and Mother had relocated to Albuquerque, New Mexico. Pursuant to the June
2010 PPP, the Children relocated to New Mexico to reside the majority of the time with
Mother, but Father was allowed to exercise his co-parenting time with the Children in
Tennessee. Mother was at that time and is currently employed as a licensed pharmacist.
The 2010 PPP provided that Mother would pay $358.00 per month to Father in child
support despite her designation as the primary residential parent. The June 2010 PPP
indicated that Mother’s gross monthly income was $9,833.33 while Father’s gross
monthly income was $2,080.00.
Upon Father’s subsequent petition to modify the permanent parenting plan, an
affidavit indicating Mother’s consent, and an announced agreement of the parties, the
trial court entered an agreed permanent parenting plan order on December 15, 2010
(“December 2010 PPP”). The court found that a material change in circumstance had
occurred and that it was in the best interest of the Children to designate Father as the
primary residential parent. Pursuant to the parties’ agreement, the court inverted the
number of annual co-parenting days originally enjoyed by each parent, with Father then
having 215 days per year as compared to Mother’s 150 days, and granted to Father all
major decision-making authority.
Although the December 2010 PPP provided some specific co-parenting time to
Mother to be exercised in New Mexico, it did not account for the full 150 days in this
way. The plan included a special provision stating that Mother could visit the Children in
Tennessee upon “reasonable notice” to Father, provided that her visits did not interfere
with the Children’s school schedule. As to child support, the December 2010 PPP
indicated that Mother’s gross monthly income was $6,686.00 while Father’s gross
monthly income was $1,368.00. Mother’s child support obligation was set at $882.00 per
month.
On November 25, 2013, Mother filed a petition for emergency custody, alleging,
inter alia, that the Children were dependent and neglected due to purported
environmental hazards in Father’s home. The trial court entered an ex parte order
granting Mother temporary custody on November 27, 2013. Following a hearing, the
trial court approved a subsequent agreement of the parties in an order entered December
20, 2013. Pursuant to this order, the Children were returned to Father’s primary custody
under the December 2010 PPP, and an order of reference was made for Father’s home
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environment to be inspected. The court further directed that if no new allegations were
brought as to Mother’s emergency petition by March 25, 2014, the petition would be
dismissed. Although the court’s subsequent order dismissing the emergency petition is
not included in the record on appeal, Mother does not dispute Father’s explanation that
such an order was entered on April 3, 2014.
Upon subsequent motions filed by Mother in 2014, the trial court entered orders
clarifying provisions of the December 2010 PPP as to payment of the Children’s travel
expenses, the ability of the Children to travel via airplane unaccompanied, and winter
break co-parenting time. Although Mother’s November 2013 petition had been
dismissed, in November 2014, Mother filed, inter alia, a motion to amend her November
2013 petition, again alleging a material change in circumstance. As noted by the trial
court in an order entered January 16, 2015, Mother subsequently voluntarily withdrew
her motion to amend the November 2013 petition.
On February 13, 2015, Mother commenced the instant action by filing a petition to
modify the December 2010 PPP. She asserted that a substantial and material change in
circumstance had occurred since entry of the 2010 PPP, averring, inter alia, that the
Children’s living conditions with Father were unsatisfactory and that Father had failed to
“supervise” the Children sufficiently to prevent the parties’ daughter from breaking her
arm when she fell from a bunk bed. Mother also alleged that Father had failed to
cooperate with the trial court’s clarifying order that the Children could travel by air
unsupervised and with a provision of the December 2010 PPP that Father was to pay for
the Children’s travel to New Mexico during the scheduled co-parenting time with
Mother. Mother requested that she be designated the primary residential parent. Father
filed an answer to Mother’s petition, denying all substantive allegations.
Mother filed an amended petition on September 4, 2015. In her amended petition,
Mother stated, inter alia, that she was willing to continue paying the $882.00 per month
in child support she was currently paying so that Father could more easily afford to visit
the Children in New Mexico if she were the primary residential parent. In his response to
the amended petition, Father averred that Mother was improperly attempting to exchange
child support payments for parenting time with the Children. Mother subsequently filed a
motion on November 13, 2015, to establish Thanksgiving visitation.
The trial court conducted a bench trial over the course of three days on November
20, 2015; June 3, 2016; and August 5, 2016. Following the second day of hearings, the
court entered an order on June 6, 2016, appointing attorney Amanda McCulloch as a
guardian ad litem. The court also directed that the Children were to be present for the
next hearing date. The Children subsequently testified in chambers on the final hearing
date. Although no record of the Children’s testimony was made, Mother acknowledges
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that the Children expressed their desire that Father remain their primary residential
parent.
In an order entered January 24, 2017, the trial court found that a material change
in circumstance had occurred since entry of the December 2010 PPP, thereby
necessitating a change in the residential co-parenting schedule. As to the material
change, the court specifically found that Mother and Father had each respectively
remarried and relocated.1 The court concomitantly entered a permanent parenting plan
order (“2017 PPP”), modifying the residential co-parenting schedule to reduce the
number of Mother’s co-parenting days from 150 to 90. Mother’s annual co-parenting
time is set forth in the 2017 PPP specifically as follows:
June 1 through July 31 -- 61 days
December 26 through January 3 -- 9 days
Thanksgiving (Wed. to Sun.) -- 5 days
Mother’s Day weekend -- 2 days
Fall Break -- 7 days
Spring Break -- 7 days
As Mother notes, the actual number of annual days provided to Mother in the 2017 PPP
totals 91.
The days provided to Mother are designed to allow her to exercise co-parenting
time in New Mexico. The 2017 PPP includes the following provision concerning
transportation for the Children:
The children shall travel between their parents’ respective homes/(i.e.,
to/from the nearest major city with an airport that permits one-way flights
between said cities) via airplane. The mother shall hereinafter be solely
responsible for purchasing her son[’s] airfare, and the Father shall
hereinafter be solely responsible for purchasing his daughter[’s] airfare.
The parties shall coordinate flight arrangements to facilitate both children
being able to travel together on the same flights, wherever possible.
Mother is responsible for booking all flights, and Father shall provide
Mother with a means to purchase [the daughter’s] airfare at least 30 days in
advance of any scheduled flight.
1
It appears, however, that Mother and Father each still reside in the same general geographic area as they
did upon entry of the December 2010 PPP. Mother continues to reside in New Mexico, and Father
continues to reside in Tennessee.
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In its January 24, 2017 order, the trial court also found that Mother’s allegations
regarding environmental conditions in Father’s home were not supported by the evidence.
The court did find that Father had failed to comply with the travel arrangements set forth
in the December 2010 PPP by insisting on driving the Children to a meeting point in
Oklahoma for the transfer to Mother, thus cutting into Mother’s co-parenting time, and
by failing to split the cost of the Children’s travel with Mother. As to the number of co-
parenting days that Mother had actually exercised under the December 2010 PPP, the
court stated the following:
The Court moreover finds that the parties have failed to adhere to the
Parenting Plan previously set forth in that the Mother has only been given
the children no more than 109 days of the 150 days to which she has been
entitled in any given year since 2011. Part of this may be due to error on
the part of the parties when the Parenting Plan was initially drafted;
however, a portion of it is undoubtedly due to the Father’s failure to comply
with the travel arrangements as ordered by this Court in 2015.2
The 2017 PPP includes the following special provision regarding Mother’s ability
to visit the Children in Tennessee beyond her scheduled co-parenting time in New
Mexico:
The Mother shall, in addition to the specified visits, also be allowed
additional parenting time if she voluntarily visits Tennessee at her own
expense and desires visitation with her children during non-school hours
that are agreeable with Father. Father shall not unreasonably withhold the
child(ren) from their Mother at these times.
As to child support, the 2017 PPP provides that Father’s and Mother’s respective
gross monthly incomes are “as previously set forth in Parenting Plan of 12/15/2010
unless and until further order of the Child Support Court.” Under the section labeled,
“Federal Income Tax Exemption,” the box is checked by “father is the parent receiving
child support.” Otherwise, however, neither the trial court’s January 24, 2017 order nor
the 2017 PPP mention the amount of Mother’s child support obligation, and no child
support worksheet is attached, despite the statement in the 2017 PPP that “[t]he Child
Support Worksheet shall be attached to this Order as an Exhibit.” Mother timely
appealed to this Court, presenting as her sole issue the trial court’s modification of the
residential co-parenting schedule to reduce the number of her co-parenting days from 150
to 90.
2
The trial court did not find Father in contempt of court for violating the travel arrangements as
previously ordered by the court, and no issue has been raised concerning contempt.
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II. Issues Presented
Mother presents one issue on appeal, which we have restated as follows:
1. Whether the trial court erred by modifying the residential co-
parenting schedule to reduce the number of Mother’s annual co-
parenting days with the Children.
Father presents one additional issue, which we have similarly restated as follows:
2. Whether, for child support purposes, the trial court properly set
Mother’s co-parenting days to reflect the actual number of annual
co-parenting days she will enjoy.
III. Standard of Review
We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). We review questions of law de novo with no presumption of correctness.
Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn.
1998)). The trial court’s determinations regarding witness credibility are entitled to great
weight on appeal and shall not be disturbed absent clear and convincing evidence to the
contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
Determinations regarding child support are reviewed under an abuse of discretion
standard. See Mayfield v. Mayfield, 395 S.W.3d 108, 114-15 (Tenn. 2012); Richardson v.
Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005). As this Court has explained:
Prior to the adoption of the Child Support Guidelines, trial courts
had wide discretion in matters relating to child custody and support.
Hopkins v. Hopkins, 152 S.W.3d 447, 452 (Tenn. 2004) (Barker, J.,
dissenting). Their discretion was guided only by broad equitable principles
and rules which took into consideration the condition and means of each
parent. Brooks v. Brooks, 166 Tenn. 255, 257, 61 S.W.2d 654, 654 (1933).
However, the adoption of the Child Support Guidelines has limited the
courts’ discretion substantially, and decisions regarding child support must
be made within the strictures of the Child Support Guidelines. Berryhill v.
Rhodes, 21 S.W.3d 188, 193 (Tenn. 2000); Jones v. Jones, 930 S.W.2d 541,
545 (Tenn. 1996); Smith v. Smith, 165 S.W.3d 279, 282 (Tenn. Ct. App.
2004).
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***
Because child support decisions retain an element of discretion, we
review them using the deferential “abuse of discretion” standard. This
standard is a review-constraining standard of review that calls for less
intense appellate review and, therefore, less likelihood that the trial court’s
decision will be reversed. State ex rel. Jones v. Looper, 86 S.W.3d 189,
193 (Tenn. Ct. App. 2000); White v. Vanderbilt Univ., 21 S.W.3d 215, 222-
23 (Tenn. Ct. App. 1999). Appellate courts do not have the latitude to
substitute their discretion for that of the trial court. Henry v. Goins, 104
S.W.3d 475, 479 (Tenn. 2003); State ex rel. Vaughn v. Kaatrude, 21
S.W.3d 244, 248 (Tenn. Ct. App. 2000). Thus, a trial court’s discretionary
decision will be upheld as long as it is not clearly unreasonable, Bogan v.
Bogan, 60 S.W.3d 721, 733 (Tenn. 2001), and reasonable minds can
disagree about its correctness. Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001); State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000).
Discretionary decisions must, however, take the applicable law and the
relevant facts into account. Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.
1996). Accordingly, a trial court will be found to have “abused its
discretion” when it applies an incorrect legal standard, reaches a decision
that is illogical, bases its decision on a clearly erroneous assessment of the
evidence, or employs reasoning that causes an injustice to the complaining
party. Perry v. Perry, 114 S.W.3d 465, 467 (Tenn. 2003); Clinard v.
Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); Overstreet v. Shoney’s, Inc.,
4 S.W.3d 694, 709 (Tenn. Ct. App. 1999).
Richardson, 189 S.W.3d at 725.
Regarding adherence to the Child Support Guidelines, this Court has explained:
In Tennessee, awards of child support are governed by the Child Support
Guidelines (“the Guidelines”) promulgated by the Tennessee Department of
Human Services Child Support Services Division. Tenn. Code Ann. § 36-
5-101(e)(2). Tennessee’s Child Support Guidelines have the force of law.
Jahn v. Jahn, 932 S.W.2d 939, 943 (Tenn. Ct. App. 1996). Statutes and
regulations pertaining to child support are intended to “assure that children
receive support reasonably consistent with their parent or parents’ financial
resources.” State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248-49
(Tenn. Ct. App. 2000); see also Tenn. Comp. R. & Regs. 1240-02-
04.01(3)(e). Courts are therefore required to use the child support
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guidelines “to promote both efficient child support proceedings and
dependable, consistent child support awards.” Kaatrude, 21 S.W.3d at 249;
see also Tenn. Code Ann. § 36-5-101(e); Tenn. Comp. R. & Regs. 1240-
02-04-.01(3)(b), (c).
Sykes v. Sykes, No. M2012-01146-COA-R3-CV, 2013 WL 4714369, at *2 (Tenn. Ct.
App. Aug. 28, 2013) (footnote omitted).
IV. Finality of Trial Court’s Judgment
As a threshold matter, we address, sua sponte, the issue of whether the trial court’s
January 2017 PPP and concomitantly entered order constitute a final judgment over
which this Court has subject matter jurisdiction. See Bayberry Assocs. v. Jones, 783
S.W.2d 553, 559 (Tenn. 1990) (“Unless an appeal from an interlocutory order is provided
by the rules or by statute, appellate courts have jurisdiction over final judgments only.”).
Neither the 2017 PPP nor the corresponding order include an order addressing child
support, and no Child Support Guidelines worksheet has been attached to the 2017 PPP,
despite the inclusion in the 2017 PPP of a statement that “[t]he Child Support Worksheet
shall be attached to this Order as an Exhibit.” Although the section entitled “Federal
Income Tax Exemption” in the 2017 PPP has a checked box by Father as “the parent
receiving child support,” the section entitled “Child Support” has no amount of child
support obligation set and is also missing any indication that Mother is the party ordered
to pay child support.
When questioned during oral argument, Father’s counsel stated that he believed
the 2017 PPP included a provision that child support would remain as in the December
2010 PPP until modified by the child support magistrate. However, the sole provision in
the 2017 PPP referencing a continuation of the December 2010 PPP child support
findings states:
Father’s gross monthly income is $ as previously set forth in Parenting Plan
of 12/15/2010 unless and until further order of the Child Support Court.
Mother’s gross monthly income is $ as previously set forth in Parenting
Plan of 12/15/2010 unless and until further order of the Child Support
Court.
(Emphasis added; blank dollar amounts in original.) The 2017 PPP and accompanying
order do not contain a statement that the child support obligation would remain the same
as in the December 2015 PPP, and no calculations pursuant to the Child Support
Guidelines are included. During oral argument, neither party was able to provide
8
information regarding any subsequent child support proceedings related to the trial
court’s modification of the residential co-parenting schedule in this action.
We also note that although Mother did not request a reduction in child support in
her amended modification petition, she did raise the issue inasmuch as she offered to
continue paying the same amount of support even if designated as the primary residential
parent. In his answer to this amended petition, Father stated the following in relevant
part:
By way of positive averment, Father would aver that it is both unlawful and
improper for the Mother to attempt to offer child support payments in
exchange for the children. Tennessee law is clear that a correct child
support calculation should be submitted with a permanent parenting plan,
reflecting an accurate day count and income for both parents.
On appeal, Father has raised the issue of whether, for purposes of calculating child
support, the trial court properly reduced Mother’s co-parenting days to more closely
reflect the purported number of co-parenting days she had been exercising. Father has
also asserted that Mother’s real motivation on appeal is to reduce her child support
obligation, an allegation that Mother has vehemently denied. The parties’ appellate
pleadings thus do not indicate that the issue of child support has been resolved.
Furthermore, the trial court has not certified the 2017 PPP and accompanying order as a
final judgment pursuant to Tennessee Rule of Civil Procedure 54.02.
In a recent case in which a juvenile court had set child support in a 2012
proceeding outside the context of the 2014 custody order at issue on appeal, this Court
dismissed the appeal for lack of subject matter jurisdiction, explaining in relevant part:
The issue of child support should have been revisited in the parenting plan
adopted pursuant to the December 22, 2014 order. See Schreur v. Garner,
No. M2010-00369-COA-R3-CV, 2011 WL 2464180, at *6 (Tenn. Ct. App.
June 20, 2011) (noting that the “change in the residential parenting
schedule was the trigger for the modification of child support”). If, on
reconsideration of the child support issue, the trial court found a significant
variance, it should have modified the support obligation pursuant to the
Child Support Guidelines. Because the trial court did not revisit the child
support issue incident to its modification of the parenting plan, the
December 22, 2014 order is not a final judgment as it does not adjudicate
all issues. Accordingly, we do not have jurisdiction to hear this appeal.
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In Leonardo v. Leonardo, No. M2014-00372-COA-R3-CV, 2015
WL 3852802 (Tenn. Ct. App. June 18, 2015), perm app. granted (Tenn.
Nov. 24, 2015), this Court addressed the issue of child support following
the modification of a permanent parenting plan in a post-divorce case. In
addition to arguing that the trial court erred in modifying the parties’
parenting plan, the appellant/mother in Leonardo asserted error due to the
trial court’s sua sponte decision to modify the father’s child support
obligation in the absence of any pleading requesting such relief. Id. at *3.
In Leonardo, the majority affirmed the trial court’s decision to modify child
support in light of the modification to the parties’ parenting schedule. In
pertinent part, the majority opinion concluded that: “[A] petition to modify
visitation time or the primary residential parent necessitates a recalculation
of child support so long as the opposing party received adequate notice of
the petition and so long as there is a significant variance in accordance with
the Tennessee Child Support Guidelines.” Id. at *7. Although our State
Supreme Court granted permission to appeal in Leonardo and vacated the
majority opinion solely with respect to the modification of child support,
we do not interpret the Supreme Court’s action in Leonardo as a reversal of
our holding that a change in a child’s residential schedule is sufficient to
require a trial court to revisit child support and modify support if a
significant variance exists. Indeed, the Supreme Court remanded the case
to the trial court “with the direction that the trial court permit discovery and
conduct a hearing on the issue of the appropriateness of any modification of
child support and the proper amount of child support if it is determined that
child support is appropriately subject to modification.” Leonardo v.
Leonardo, No. M2014-00372-SC-R11-CV (Tenn. Nov. 24, 2015). Had the
Supreme Court disagreed with our substantive holding in Leonardo, it
would have reversed this Court or would have determined that the issue of
child support was not before the trial court and thereby negated the
requirement that a trial court revisit child support when it changes a
residential parenting schedule. If the Supreme Court had disagreed with
our legal position on that issue, there would have been no need for its
remand for discovery and a hearing on child support. As we interpret it, the
Supreme Court’s mandate that the trial court inquire into the
“appropriateness of any modification” relates to whether a significant
variance existed, not to whether a modification was appropriate in the
absence of a pleading requesting relief related to child support.
Failing to require a trial court to revisit child support incident to a
modification of the parenting schedule poses a serious threat to children’s
welfare. “Child support payments are for the benefit of the child, and both
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parents have a duty to support their minor children.” Hopkins v. Hopkins,
152 S.W.3d 447, 490 (Tenn. 2004) (citation omitted). Holding otherwise
would only undermine our trial courts’ authority to exercise continuing
jurisdiction over the care of the children of this State.
In re Gabrielle R., No W2015-00388-COA-R3-JV, 2016 WL 1084220, at *3 (Tenn. Ct.
App. Mar. 17, 2016).
Determining In re Gabrielle R. to be on point with the instant action, we conclude
that because the trial court in its judgment has modified the residential co-parenting
schedule but failed to address the issue of a corresponding modification in child support,
the judgment is not final. We therefore do not have subject matter jurisdiction to
consider this appeal. See Bayberry Assocs., 783 S.W.2d at 559.; In re Gabrielle R., 2016
WL 1084220, at *4.
V. Conclusion
The appeal of this matter is dismissed without prejudice to the filing of a new
appeal once a final judgment has been entered. This case is remanded to the trial court
for further proceedings consistent with this opinion. Costs on appeal are taxed to the
appellant, Shellie Nicole Bouma Hensley.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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