Cheryl Ellen Mouton v. Michael J. Mouton ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 18, 2016 Session
CHERYL ELLEN MOUTON v. MICHAEL J. MOUTON
Appeal from the Circuit Court for Hamilton County
No. 13-D-351 W. Neil Thomas, III, Judge
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No. E2016-00231-COA-R3-CV-FILED-NOVEMBER 16, 2016
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In this parental relocation case, the trial court erred in finding that the mother did not
have a reasonable purpose in relocating to another state for her employment.
Furthermore, mother‟s purpose in relocating was not vindictive. Therefore, the judgment
of the trial court is reversed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
ANDY D. BENNETT, J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR. , J., and THOMAS R. FRIERSON, II, J., joined.
Bill W. Pemerton, Chattanooga, Tennessee, for the appellant, Cheryl Ellen Mouton.
Steven Mark Jacoway, Chattanooga, Tennessee, for the appellee, Michael J. Mouton.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Michael J. Mouton (“Father”) and Cheryl Ellen Mouton (“Mother”) were married
in Colorado in 2005 and moved from Littleton, Colorado to Chattanooga, Tennessee in
2011. They had two children, Zoe and Triston, ages fifteen and seven, respectively, at
the time of trial. Zoe was the child of Father from a prior marriage and Mother adopted
her. About six months after moving to Chattanooga, the parties separated, and Mother
filed for divorce on February 5, 2013.
The parties were divorced by final decree entered on May 26, 2015. The
permanent parenting plan provided that Father was the primary residential parent for Zoe
with 280 days of parenting time per year and that Mother was the primary residential
parent for Triston with 280 days of parenting time per year. Because the parents had
“relatively equal annual incomes” and each was the primary residential parent of one
child, the trial court did not order either to pay child support.
Mother worked for Healthgrades in Chattanooga as Director of Client
Development at an annual salary of $80,000. In June 2015, she lost her job at
Healthgrades. In a letter dated August 12, 2015, Mother notified Father of her intention
to relocate to Littleton, Colorado with Triston. Mother stated that she had been offered a
job as Director of Marketing and Consulting with Ethos in Denver. She anticipated that
she would also be offered a job in Denver with HCA as Vice President of Quality and
Performance Measures and with E2 Optics as a business development strategist. The
move would also allow Mother to be close to her family.
Father filed a petition in opposition to Mother‟s removal of the child, for
modification of the primary residential parent, and for contempt on September 10, 2015.
Nevertheless, Mother moved to Colorado with Triston on or about September 18, 2015.
On October 23, 2015, the trial court ordered Mother to return Triston to the jurisdiction
of the court; the court also ordered that the child would remain in the jurisdiction under
further order of the court. The court entered a second order providing that, if Mother did
not return Triston to the jurisdiction by 5:00 p.m. on October 30, 2015, Father would be
temporarily designated as the primary residential parent and would take immediate
physical custody of the child. Mother returned with Triston to Chattanooga as ordered on
October 30, 2015.
The case was tried on January 5 and 6, 2015, and there were only three witnesses:
Father, Mother, and Bill Younkes, Mother‟s prospective employer in Colorado. Father‟s
proof consisted of one witness, himself. He testified about the history of the parties‟
relationship and their interactions concerning the children since the divorce. Father gave
details about disagreements between the parties regarding visitation. He also testified
about an order of protection and a criminal warrant Mother obtained against him, both of
which were ultimately dismissed. Father asserted that Mother frequently would not allow
him to speak to Triston on the telephone.
When asked what effect he thought it would have on his relationship with Triston
if the court allowed Mother to relocate to Colorado, Father testified as follows:
A. I just honestly see it as just being impossible. I mean, it is—it‟s been so
hard to communicate with my son here when they‟re here or—even with
court orders. And it‟s just—even when they move—go away, like she left
and moved four times, I think. Four or five times I spoke to him in seven
weeks I think it was. I mean, that‟s just—that‟s ridiculous. And even me
not getting him for Christmas and there‟s a court order. . . .
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Q. What—how will it affect his contact or relationship with his sister, Zoe?
A. In the same way, you know, because the only time we get to speak with
him is when he calls, you know. That‟s it. And who knows when that is.
We text, please have Triston call me, please have Triston call me, please
have Triston call me, please have Triston call me, you know. And nothing.
. . . Obviously, I want to see my son and I‟m just not able to or
communicate with him. And, I mean, I‟m his father, you know.
Father opined that the cost of living in Denver, Colorado was “definitely higher”
than the cost of living in Chattanooga. According to his research, the cost of living was
31% higher in Denver than in Chattanooga. At the time of trial, Mother‟s parents lived in
Colorado Springs, and her brother also lived in Colorado. Father‟s sister and her family
lived in Atlanta, and Father stated that Triston enjoyed seeing his cousins in Atlanta
(three boys aged nine, thirteen, and fourteen) once a month. The rest of Father‟s family
lived in Louisiana and Texas. Triston‟s maternal great-grandmother and her family lived
in Chattanooga.
On cross-examination, Father was asked about Mother‟s stated purpose of
relocating for a job:
Q. . . . And when I asked you in deposition regarding the reasonable
purpose for Ms. Mouton‟s move, you had not looked at any job
opportunities that may be available to Ms. Mouton; did you?
A. No.
Q. And you did not do any research on the job market regarding Ms.
Mouton‟s skills, experience, or background; correct?
A. Correct.
Q. In fact, you did no research on the job market with regards to anything
Ms. Mouton may or may not have been able to do in terms of employment;
correct?
A. In Colorado?
Q. In the Chattanooga area.
A. Oh, yes.
Q. You did?
A. No, no. I did not.
Q. And I asked you specifically in deposition . . . you have not done any
research or looked at any job listings or have any proof that there are
opportunities available in this area that would fit Ms. Mouton‟s background
and expertise?
Answer: No, besides her saying yesterday that there were some.
Question: But you yourself have no proof?
Answer: I have no proof.
A. Right.
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....
Q. And as you sit here today, you still have no proof that there are
opportunities that exist for Ms. Mouton in this areas [sic] in terms of jobs;
right?
A. Right.
Father was further questioned regarding his allegation that Mother‟s purpose in
moving was vindictive. He acknowledged that Mother‟s reason for not allowing Triston
to have overnights was that Father‟s girlfriend/fiancée was spending the night, contrary to
the terms of the permanent parenting plan. Father admitted that, in her deposition
testimony, Mother stated that she had no intention of depriving him of any days of
parenting time with Triston, only to “reshuffle” them to make it possible for her to
relocate and that Father could spend even more time with Triston if he came to Colorado
to vacation with him. Father then testified:
A. I don‟t think monetary [regarding the expense of traveling] is the issue.
I think repetitive time, frequent time with my son is the issue and the value
of what my concern is. I think seeing my son physically for two weeks in
the summer or three weeks in the summer cannot compare to being with
him every week. There is so much lost there that I‟m not willing to lose.
Q. But you would agree with me that you would be able to exercise the
same or more days under Ms. Mouton‟s plan; correct?
A. The way it is now with how she is allowing? No, I don‟t agree with
you. She doesn‟t allow time here. How—and when she moved away, I
didn‟t get to see him. So I don‟t think—I‟m not going to agree with you.
Father later testified that he questioned Mother‟s motives:
I don‟t think Triston‟s mental wellbeing is intact right now. I think he‟s
being manipulated, being coerced, being lied to. I think he‟s being
sheltered from me, pulled away from me and his sister. I don‟t think that‟s
good parenting.
At the end of Father‟s proof, Mother moved to dismiss, asserting that Father had
failed to meet his burden of proving that Mother‟s proposed relocation was not for a
reasonable purpose, Tenn. Code Ann. § 36-6-108(d)(1)(A), or that Mother‟s motive for
relocation was vindictive. Tenn. Code Ann. § 36-6-108(d)(1)(C).1 The trial court
decided to exercise its discretion under Tenn. R. Civ. P. 41.02(2) to defer its decision
until it had heard all of the evidence.
1
Father conceded that there was no evidence of a “threat of specific and serious harm to
the child.” Tenn. Code Ann. § 36-6-108(d)(1)(B).
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Mother then put on her proof, beginning with her own testimony. She described
the interactions between the parties regarding Triston and stated that Father often asked
for last-minute changes in the parenting schedule. Mother testified that she decided to
relocate to Colorado because she lost her job at Healthgrades due to an executive
turnover. Once she knew that she was going to lose her job, in December 2014, she
began looking for another job in Chattanooga and the North Atlanta area in business
development, medical device sales, and hospital administration. Mother testified that she
applied for hundreds of jobs; she also enlisted recruiters to help her. She did not get any
offers within her field of expertise. She did get an offer from ADS Security at a salary of
$45,000 a year, significantly less than she was earning at Healthgrades.
At the same time that she received the ADS Security offer, Mother received an
offer to work at VITAL Marketing in Colorado as the Director of Marketing at a base
salary of $60,000 to $80,000. She also started having conversations with Bill Younkes,
whom she knew from his former position as the CEO of a company in Colorado at which
she had worked. He was an entrepreneur who had started a number of companies.
Mother described the opportunity with Mr. Younkes as follows:
A. We‟re starting three different companies. One is Mentis Health
Partners, which is an LLC. And then underneath that, we have a nonprofit,
which is the Coalition for Sepsis Survival. And then another one I can‟t
say yet because we haven‟t got all the trademarks on it yet. But it‟s health
care, and it‟s in development of a coalition across the sepsis mortality rates
within the State of Colorado. And then we‟re going state by state. We‟re
working with different legislations. We‟re putting together different
business models of bringing the hospitals—the hospital associations
together, the different CMS and regulatory agencies as well to help
decrease sepsis mortality rates across each state.
Q. So sounds like it‟s in your business development field.
A. Absolutely, yes, sir. And my expert knowledge around, you now,
sepsis and quality initiatives and working with CMS in my previous roles.
Mother admitted that she had not yet made any money but had been volunteering her
time to do the research necessary to write a grant proposal and other projects necessary to
get the enterprise off the ground. Under the anticipated pay structure, she would make a
base salary of $150,000 to $175,000 per year. Mother testified that the team working on
this project had secured some funding from private investors and corporate sponsorships.
She knew they had in excess of a million dollars to date.
Mother testified that, when she first moved back to Colorado, she worked for
VITAL Marketing, but she was unable to keep that position because she had to move
back to Chattanooga in compliance with a court order. When asked to compare the cost
of living in Littleton, Colorado and Chattanooga, Tennessee, Mother stated that “Littleton
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is a little bit more expensive just because it is Colorado.”
Mother also offered the testimony of Bill Younkes, the entrepreneur who started
the commercial company and the nonprofit organization for which Mother had been
volunteering her time. Mr. Younkes testified that Mother “has been assisting me in
developing the sales and marketing plan” for both entities. He stated that Mother would
become a partner-employee in the commercial company beginning at the beginning of
February. He estimated that her base salary would be $60,000 to $70,000 a year with the
opportunity to earn double that amount through bonuses. Mr. Younkes stated that
Mother‟s position would be finalized in the next week or two. Mother would also have
some type of equity interest in the company.
Decision of Trial Court
In a memorandum and order filed on January 11, 2016, the trial court focused
upon the lack of experience of Ms. Mouton‟s prospective employer “in the proposed line
of business: consulting services to hospital patients in connection with reducing their
morbidity percentage at medical institutions through the prevention of sepsis.” Based
upon the totality of the evidence, including all of the evidence concerning Ms. Mouton‟s
prospective employer, the trial court could not “find a reasonable basis for the move.”
On the issue of vindictiveness, the trial court found that the proof showed that
Mother had “always encouraged the relationship between Triston and his father and that
there certainly is no pattern by [Mother] unreasonably to disrupt or refuse any parenting
time that [Father] was entitled to.” The trial court concluded that “vindictiveness was not
the motivating factor for the move.”
The court proceeded to the best interest analysis and determined that it was not in
Triston‟s best interest to move with Mother to Colorado. Father‟s petition opposing
Mother‟s request to relocate with the minor child was granted.
On appeal, Mother asserts that the trial court erred (1) in finding no reasonable
purpose for her proposed relocation; (2) in concluding that the proposed relocation was
not in Triston‟s best interest; and (3) in denying her motion to dismiss Father‟s petition at
the close of his proof. Father argues that the trial court erred in failing to find that
Mother‟s motive in relocating was vindictive. Mother further requests that this Court
award her reasonable attorney fees on appeal.
STANDARD OF REVIEW
We review the trial court‟s findings of fact de novo with a presumption of
correctness unless the preponderance of the evidence is otherwise. TENN. R. APP. P.
13(d). We give great weight to the trial court‟s credibility determinations because the
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trial court is in the best position to assess witnesses‟ demeanor. C & W Asset Acquisition,
LLC v. Oggs, 230 S.W.3d 671, 676 (Tenn. Ct. App. 2007); Robinson v. Robinson, No.
M2003-02289-COA-R3-CV, 2005 WL 1541861, at *2 (Tenn. Ct. App. June 30, 2005).
Questions of law are reviewed de novo with no presumption of correctness. Nelson v.
Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
ANALYSIS
Parent relocations often create wrenching situations: one parent loses regular
parenting time with the child(ren) as a result of the other parent‟s move. This Court has
previously stated:
“One of the most common post-divorce flashpoints occurs when the
primary residential parent decides to move with his or her child or children
to another city or state. The farther the move, the more intense the
opposition because of the move‟s effect on visitation and the ability of the
other parent to foster and maintain an appropriate relationship with his or
her child or children.”
Rudd v. Gonzalez, No. M2012-02714-COA-R3-CV, 2014 WL 872816, at *7 (Tenn. Ct.
App. Feb. 28, 2014) (quoting Collins v. Coode, No. M2002-02557-COA-R3-CV, 2004
WL 904097, at *2 (Tenn. Ct. App. Apr. 27, 2004)).
Our legislature has created a statutory framework to address parental relocation.
See Tenn. Code Ann. § 36-6-108. The appropriate analysis depends upon the relative
amount of time the parents spend with the child(ren). In the present case, Mother spends
substantially more time with Triston than does Father; therefore, the applicable statutory
provision is Tenn. Code Ann. § 36-6-108(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 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
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is intended to defeat or deter visitation rights of the non-custodial parent or
the parent spending less time with the child.
(Emphasis added). Thus, if the parents do not spend substantially equal intervals of time
with the child, there is “„a legislatively mandated presumption in favor of [the] relocating
custodial parent . . . .‟” Redmon v. Redmon, No. W2013-01017-COA-R3-CV, 2014 WL
1694708, at *5 (Tenn. Ct. App. Apr. 29, 2014) (quoting Collins, 2004 WL 904097, at
*2). The burden is on the parent opposing the relocation to prove one of the three
statutory grounds. See Clark v. Clark, No. M2002-03071-COA-R3-CV, 2003 WL
23094000, at *3 (Tenn. Ct. App. Dec. 30, 2003). If the opposing parent fails to do so, the
court must allow the relocation. Tenn. Code Ann. § 36-1-108(d)(1).
Reasonable purpose
In this case, then, we must determine whether the trial court erred in finding that
Father met his burden of proof to establish that Mother‟s proposed relocation was not for
a reasonable purpose.
Determinations of “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-JV, 2011 WL 295896, at *11 (Tenn. Ct.
App. Jan. 20, 2011); see also Rudd, 2014 WL 872816, at *11. As we have consistently
held, “a salary increase and career advancement opportunities „can be a factual predicate
to constitute a reasonable purpose for relocation.‟” Webb v. Webb, No. E2008-00862-
COA-R3-CV, 2009 WL 348362, at *2 (Tenn. Ct. App. Feb. 11, 2009) (quoting Roberts v.
Roberts, No. E2005-01175-COA-R3-CV, 2005 WL 2860199, at *6 (Tenn. Ct. App. Oct.
31, 2005)). We have also stated, however, that there must be more than “a mere hope or
belief of a better opportunity or a salary increase.” Id. Other pertinent economic factors
include “the relative significance of the [salary] increase, the cost of living in the
proposed location compared to the present location, the firmness of the job offer,
opportunity for career advancement and economic betterment of the family unit.” Slaton
v. Ray, No. M2004-01809-COA-R3-CV, 2005 WL 2756076, at *3 (Tenn. Ct. App. Oct.
24, 2005).
In finding no reasonable purpose, the trial court focused almost exclusively upon
Mother‟s prospective employer, reasoning that the courts impose an implicit
“requirement that there be some certainty with respect to the entity making the offer of
employment.” The trial court found that Mr. Younkes had no experience in the particular
type of business being developed, namely “consulting services to hospital patients in
connection with reducing their morbidity percentage at medical institutions through the
prevention of sepsis.” While commending the objective of the company as “promising,”
the trial court expressed concern that “there are as yet no results with which to gauge its
prospects.” Similarly, although the salary projections for Mother of $60,000 to $150,000
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(with bonuses) were “potentially lucrative; there was no certainty with respect to the
ability of the entity to eventually make that payment.”
As stated above, Mother‟s job prospects must be more than “a mere hope or
belief.” Webb, 2009 WL 348362, at *2. They need not, however, be an absolute
certainty. Contrary to the reasoning of the trial court, we find that Mother‟s opportunity
with Mr. Younkes was not speculative or uncertain enough to justify the trial court‟s
decision. Mr. Younkes had experience with start-up companies and had already
contributed substantial capital and raised additional capital for the venture at issue.
Moreover, Mother had developed other job opportunities in Colorado. She was offered a
job with Ethos as Director of Marketing and Consulting but had to decline the offer
because of this litigation. She began a job with VITAL Marketing but lost the job
because she was under a court order to return Triston to Chattanooga. There is no
evidence to suggest Mother could not find other such opportunities in Colorado if
necessary. Mother testified that the only job she found in the Chattanooga area
(including North Atlanta), out of the hundreds of jobs for which she applied, was a job at
ADS Security paying $45,000 a year. Mother testified that the cost of living in Littleton,
Colorado was only slightly higher than the cost of living in Chattanooga.
This case is similar to Redmon v. Redmon, 2014 WL 1694708, at *6-7, in which
the mother found a job in another state and the father produced no evidence of jobs in the
home county. The court in Redmon stated:
[C]omparison of Mother‟s job opportunities in the McNairy County area to
Mother‟s job offer in Oxford [Mississippi] is relevant to the question of
whether her proposed relocation is for a reasonable purpose. . . . As the
party with the burden of proving lack of reasonable purpose, however, the
onus was on Father to produce evidence from which such a comparison
could be made. Mother testified that nurse practitioner job positions
available in the general McNairy County and Jackson, Tennessee areas
were not suitable for her, that they were either temporary positions or
included requirements she did not meet. In response, Father proffered only
his own testimony criticizing Mother for not applying for nurse practitioner
positions near McNairy County and speculating that “surely” there were
such nurse practitioner jobs available in his area. This does not suffice to
meet his burden of proving that Mother‟s proposed relocation does not have
a reasonable purpose.
Redmon, 2014 WL 1694708, at * 7 (footnote omitted). The Redmon court concluded that
the evidence preponderated against the trial court‟s finding that the proposed relocation
did not have a reasonable purpose. Id.
In this case, Father did not produce any evidence of jobs available for Mother in
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the Chattanooga area. Father failed to prove that Mother‟s proposed relocation to
Colorado for job opportunities was not for a reasonable purpose. We conclude that the
trial court erred in finding that Mother‟s relocation was not for a reasonable purpose.
Vindictive Motive
Under Tenn. Code Ann. § 36-6-108(d)(1)(C), a parent‟s motive for relocation is
considered vindictive if the move “is intended to defeat or deter visitation rights of the
non-custodial parent or the parent spending less time with the child.” We must determine
whether the evidence preponderates against the trial court‟s finding that “vindictiveness
was not the motivating factor for the move.” We interpret this finding to mean that
Mother‟s move was not intended to defeat or deter Father‟s parenting time with Triston.
Credibility is a crucial factor with respect to the trial court‟s determination
regarding vindictiveness. Father testified to instances where he believed that Mother was
attempting to keep him from seeing Triston and asserted that, if allowed to move, Mother
would continue to attempt to minimize his time with Triston. Mother denied any intent to
deny Father parenting time with Triston and proposed a parenting plan under which
Father would have eighty days of parenting time with Triston a year, with additional time
if Father wanted to come to Colorado. The trial court concluded that Mother “has always
encouraged the relationship between Triston and his father and that there certainly is no
pattern by [Mother] unreasonably to disrupt or refuse any parenting time that [Father]
was entitled to.” The trial court further stated: “Satisfactory explanations were given to
the Court with respect to any misunderstandings between the parties regarding time spent
with Triston by his father.” The court gave the following examples:
[Father] claimed that he was not given time with Triston this Christmas. In
fact, [Mother] offered [Father] the opportunity to spend Christmas time
with Triston on December 20 at the home of his fiancée, but [Father]
indicated that he would be working and the festivities at his fiancée‟s home
would occur after it was necessary for Triston to return to his mother to be
able to fly to Denver, Colorado on a 5:00 a.m. flight the next morning.
Likewise, with respect to the end of the Christmas [vacation], there was
confusion as to whether [Father] would be in Chattanooga on the exchange
date, since he indicated to [Mother] that he would be in Louisiana at least
until 7:00 p.m. on December 27, the exchange date.
In light of the trial court‟s crediting of Mother‟s testimony, we conclude that the
evidence does not preponderate against the trial court‟s finding that Mother‟s motive in
moving was not vindictive.
Because we have determined that Father failed to prove any of the grounds
required under Tenn. Code Ann. § 36-6-108(d)(1) to prevent Mother‟s relocation, we
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need not address Mother‟s arguments regarding best interests or her motion to dismiss.
Attorney fees
Mother further requests that this Court award her attorney fees pursuant to Tenn.
Code Ann. § 36-6-108(i), which provides: “Either parent in a parental relocation matter
may recover reasonable attorney fees and other litigation expenses from the other parent
in the discretion of the court.” We decline to award Mother attorney fees for this appeal.
CONCLUSION
The judgment of the trial court is reversed and the case is remanded for further
proceedings consistent with this opinion. Costs of the appeal are assessed against the
appellee, Michael J. Mouton, and execution may issue if necessary.
__________________________
ANDY D. BENNETT, JUDGE
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