02/05/2024 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON October 17, 2023 Session

DAEMON SHAUN KEY v. CAILEY MARJORIE GONZALES

Appeal from the Chancery Court for Madison County No. 72081 James F. Butler, Chancellor ___________________________________

No. W2021-01465-COA-R3-CV ___________________________________

Father appeals the denial of his petition in opposition to a proposed relocation by Mother and his petition to change custody of the children. After considering the testimony of over ten witnesses, the trial court ruled that the children’s best interests were served by allowing Mother to relocate and by her remaining the children’s primary residential parent. The trial court also awarded Mother considerable attorney’s fees, including fees incurred in defending against a dependency and neglect action that had eventually been dismissed, with the related visitation and custody issues transferred to the trial court. Discerning no abuse of discretion in the trial court’s decisions, we affirm. We deny, however, Mother’s request for attorney’s fees incurred on appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY ARMSTRONG and CARMA DENNIS MCGEE, JJ., joined.

David Camp, Jackson, Tennessee, for the appellant, Daemon Shaun Key.

J. Noble Grant, III, Jackson, Tennessee, for the appellee, Cailey Marjorie Gonzales.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

The parties Plaintiff/Appellant Daemon Shaun Key (“Father”) and Defendant/Appellee Cailey Marjorie Gonzalez (“Mother”) were divorced by the Madison County Chancery Court (“the trial court”) in 2016. A permanent parenting plan was entered August 23, 2016, designating Mother as the primary residential parent of the parties’ two minor children—Jackson, born in 2011, and Sophia, born in 2013.

Mother hand-delivered a letter to Father giving notice of her intention to relocate with the children from Parsons, Tennessee, to Nashville, Tennessee, in February 2019. Father filed a petition in opposition to Mother’s intent to relocate in the trial court on March 22, 2019, and requested a modification of the parenting plan to designate himself as the primary residential parent. Mother then filed a petition seeking approval of her relocation, modification of the parenting plan and child support, civil contempt,1 and a restraining order on April 15, 2019.

In the summer of 2019, Father took the children to a therapy group, as discussed in detail below. As a result of their sessions, the therapy group made a referral to the Tennessee Department of Children’s Services (“DCS”) regarding possible abuse by Mother’s husband, Vincent Gonzales (“Stepfather”). In August 2019, DCS filed a petition to adjudicate the children dependent and neglected in the Henderson County Juvenile Court (“the juvenile court”).2 Therein, DCS alleged at least two behaviors where Stepfather had acted inappropriately with Jackson, despite Jackson asking him to stop: a single instance involving hair clippers as discussed in detail infra, and multiple instances where Stepfather throws cold water on Jackson while he is in the shower. The petition further alleged that Stepfather’s son, who was a few years older than Jackson, was violent with Jackson “for fun” and that Mother did not prevent the violence or the conduct of Stepfather despite Jackson asking her to. Both children also reported an incident concerning Sophia where Stepfather “grabbed [] Sophia [], when she was running down the hall, threw her on the couch, held her down, pulled her pants down, and kissed her on the buttocks.” Based on these allegations, DCS asked that the children be removed from Mother’s custody and placed either with Father or with DCS, and that Mother be permitted only supervised visitation with the children. An ex parte protective custody order was entered on August 2, 2019, placing the children in Father’s custody and providing for supervised visitation with Mother; Stepfather was ordered to have no contact with the children.

The relocation matter in the trial court was suspended while the dependency and neglect action proceeded. A preliminary hearing occurred in the juvenile court on August 6, 2019. After hearing the proof, the juvenile court ordered that the children would remain in Father’s custody and that Mother would be permitted eight hours of weekly visitation supervised by the children’s maternal grandmother. Again, Stepfather was not permitted contact with the children. Another hearing was held on November 20, 2019. During this hearing, DCS announced a conditional dismissal of the petition without prejudice.^[3] The conditions for dismissal were as follows: (1) temporary custody was to remain with Father; (2) Stepfather was to have no visitation with the children; and (3) the issues of custody and visitation and any “further modifications” would be transferred to the trial court to be decided with the relocation matter. Visitation was to remain as previously ordered. A written order reflecting DCS’s conditional dismissal was entered on January 15, 2020. Thus, jurisdiction over the relocation matter returned to the trial court in January 2020.

Over the course of the new few months, the trial court entered several orders giving Mother additional visitation with the children. On April 13, 2020, in particular, the trial court entered an order expanding Mother’s visitation with the children such that Mother was permitted Wednesday night visitation for three hours and overnight weekend visitation with the children in the home of the maternal grandmother or Mother’s brother. The no contact order prohibiting Stepfather from having contact with the children remained in effect. On December 7, 2020, the trial court entered an order allowing Stepfather to have contact with the children “only at counseling sessions with Veldon ‘Doc’ Reedy.”

The relocation and change in custody requests were eventually heard by the trial court in July 2020 and August 2021. Much of the testimony concerned the catalyst for the dependency and neglect action. Father testified that around the time the relocation dispute began, the children began experiencing anxiety about returning to Mother. When Father attempted to discuss these issues with Mother, he testified that she “turned and walked away” and would not discuss it with him. Mother denied that Father ever informed her that he was taking the children to counseling and testified that she only learned of it once DCS initiated the dependency and neglect action.^[4]

Regardless, Father took the children for counseling with Positive Living Group beginning with Jackson in the summer of 2019. Caleb Vivio, a master’s-level mental health counselor with Positive Living Group, testified that he began seeing Jackson in July 2019. Mr. Vivio testified that he and his colleagues decided to make a DCS referral after certain troubling allegations were communicated to them through Father. In particular, Mr. Vivio testified that Father informed him that Stepfather had trimmed Jackson’s body hair underneath his underwear without consent.^[5] Mr. Vivio was concerned by this contact fold: (1) due to her feeling that the children were safe; and (2) due to bullying by Mother’s counsel.

because it involved “touching an area the underwear covers even though the child was asking him to stop.” When Mr. Vivio later spoke with Jackson, he disclosed that he was scared to return to Stepfather’s home.

Father also informed Mr. Vivio about an incident wherein Stepfather pulled down Sophia’s underwear and kissed her on the bottom. Lekichia Franklin, a licensed master’s- level social worker formerly with Positive Living Group, testified that she met with Sophia beginning in August 2019, and that she also disclosed this incident to her. During this session with Sophia, outside of Father’s presence, Sophia stated that Stepfather chased her around the house, “pushe[d] her on the couch and tries to lift her behind in the air,” and touched her underwear area. Sophia stated that this incident occurred once.

Based on both children’s disclosures, Positive Living Group made a referral of these statement to DCS, which launched an investigation. Ms. Franklin testified that she merely made the referral but did not have an opinion on whether abuse occurred. Still, she testified that both children expressed a preference to live with Father and testified that Stepfather is mean to Jackson. Indeed, the treatment of Jackson by Stepfather had caused Mr. Vivio and Ms. Franklin to diagnose Jackson with Post-Traumatic Stress Disorder related to the Stepfather’s conduct.

Following the filing of the ex parte order of protection, Mother’s visitation was supervised only. Linda Lipscomb, a volunteer court-appointed special advocate, was present for some of the visitation with Mother. She testified that despite the no-contact order prohibiting Stepfather from having contact with the children, Mother “pass[ed] messages” from Stepfather to Jackson asking him to come home to Mother. Ms. Lipscomb later clarified that this was a conversation between Mother and Jackson in which Mother promised that if Jackson came home, Stepfather promised that “nothing else would happen.” Ms. Lipscomb thereafter recommended that the supervised visitation be changed to therapeutic visitation. Ms. Lipscomb performed a home visit that she said was concerning, as Mother mostly cried and Stepfather did most of the talking. Otherwise, Ms. Lipscomb testified that Mother’s home was appropriate. Ms. Lipscomb also testified that the children told her on multiple occasions that they are scared of Stepfather and do not wish to live with Mother for this reason.

William Beyer, a licensed psychological examiner and professional mental health advisor, performed examinations of Mother and Stepfather in conjunction with the dependency and neglect matter. Mr. Beyer testified that Stepfather possibly suffers from, inter alia, narcissistic personality disorder, is attention seeking, and may not be able to control his anger. Still, he testified that these were not definite diagnoses and that he believed Stepfather was capable of change. Mr. Beyer also testified that Mother may be overly conforming to the wishes of others.

Mr. Beyer, testified, however, that he did not believe that Stepfather was guilty of sexual grooming in any manner. Instead, he testified that what occurred seemed to be the opposite of sexual grooming, in that the behavior did not encourage a relationship, but was “horseplay, aggravating, [and] irritating” to the children. Mr. Beyer further testified that Stepfather was able to recognize his immature behaviors and could address those behaviors. As such, he concluded that there was minimal risk to the children if Mother and Stepfather resumed unsupervised contact with the children. And Mr. Beyer testified that there was nothing in his evaluation to cause him to believe that Stepfather could not effectively parent.

Velden Reedy, a licensed clinical social worker, testified that he had completed over twenty visits with the children, parents, and stepparents by August 27, 2021.6 In his initial testimony, Mr. Reedy testified that he was not concerned about Mother’s willingness to protect the children and that a twelve-week parenting and anger management class could be helpful for Stepfather in dealing with some of the issues outlined by Mr. Beyer. In his testimony over a year later, Mr. Reedy testified that the children had a healthy relationship with both Mother and Stepfather. In particular, after two counseling sessions with the children and Stepfather together, Mr. Reedy testified that the children appeared to be comfortable around Stepfather. For example, Jackson, upon seeing Stepfather for the first time, stated that he missed him and became emotional. At Mr. Reedy’s suggestion, Stepfather apologized to Jackson and Jackson accepted his apology. Jackson had expressed a desire that visitation “go back like they used to be” before the court proceedings began.

Father testified that he opposed Mother’s relocation primarily on the basis that the distance would prevent him from protecting his children from Stepfather’s abuse,7 as Father believes that Mother is unlikely to do so. Father therefore testified that the current visitation plan, in which Mother was only permitted overnight visitation at the home of a family member, should be ordered permanently.

Mother denied that any of what the children experienced that led to the DCS investigation was abuse. Instead, she testified that the incidents may have occurred, but were taken out of context. Specifically, Mother testified that she knows that the hair trimming and cold-water incidents occurred but that the situations did not occur as stated and were harmless antics. And Mother testified that the children never told her that Stepfather’s behavior hurt them or made them fearful. Mother essentially testified that the children’s alleged fear of Stepfather was due to coaching by Father in an effort to interfere with her ability to parent the children.^[8] Indeed, this was not the first time that Father had interfered with Mother’s parenting time, as he admitted that a few weeks before receiving notice of the relocation, he contacted the police to press custodial interference charges against Mother; the parenting plan, however, provided that the time was Mother’s.^[9] After Father was informed by the police that Mother was abiding by the plan, he did not press charges.

Mother also characterized the violence with Stepfather’s child against Jackson as “roughhousing” and testified that she had repeatedly intervened to protect Jackson, but that this behavior is typical in sibling relationships, including between Jackson and Sophia. Still, she testified that, based on DCS’s recommendations, she and Stepfather completed a psychological evaluation with Mr. Beyer, an intensive 12-week parenting class, and counseling with Mr. Reedy. Mother also testified as to her concerns with Father’s parenting skills, as Sophia had suffered injuries in Father’s custody after falling out of a moving car. Mother also testified that Jackson informed her that Father bit him as a punishment after she noticed bruising on his arm.^[10]

Mother also testified about her desire to move to Nashville. According to Mother, she was the primary care provider for the children both during the parties’ marriage and after the divorce until the issuance of the ex parte order. Indeed, the proof shows that she was also the primary source of financial support for the children until the change in custody, as Father did not pay child support under the parenting plan.^[11] Mother testified, however, both her and Stepfather have better options for career advancement in Nashville. For Mother in particular, she testified that she would keep her same job as a nurse, but transfer to Nashville; however, there is the opportunity to advance in Nashville that is not present in West Tennessee. Mother testified that by advancing her and Stepfather’s careers, she hoped to provide the children with a better life. Mother also testified that she had investigated the Nashville area, and if relocation was permitted, planned to move to the Fairview area in Williamson County, about an hour from Father’s current home in Henderson County, Tennessee. According to Mother, the schools in that area are good, as they have smaller class sizes and more extra-curricular activities. Mother was particularly happy about the extra-curricular opportunities because her “two children are very different and them being able to do things that are more tailored to their personalities is important for them to express themselves and grow.” Mother further testified that the move would put her closer to her brother, who is close with the children, as well as Stepfather’s son.

Mother admitted, however, that her plans to move had been placed on hold due to the dependency and neglect action. Instead of focusing on the move, Mother testified that she first wanted to focus on the return of her children. As such, no concrete plans to move were on the horizon. And Mother testified that if she was not permitted to relocate with the children, she would not relocate at all.

Stepfather confirmed that he completed all of the recommendations that DCS made, including anger management classes, a psychological evaluation, an intensive parenting class, and counseling both individually and as a family with Mr. Reedy. Other than the counseling, however, Stepfather testified that he did not believe he needed help with his parenting. Stepfather denied any anger issues or aggressive behavior toward Father. Stepfather also testified that he apologized to Jackson about the cold-water incidents, which Stepfather described as a prank he plays on his own child and that is played on him by the children, that Jackson did not have a problem with the hair trimming incident, and that he never kissed Sophia’s private areas.

Stepfather’s desire to relocate was mostly financial. He testified that prior to moving to Parsons to take care of a family member,12 he earned approximately $60,000.00 per year in sales. He has not been able to earn nearly that amount in West Tennessee, and only currently earns $12 per hour at a facility that builds deer blinds. Stepfather testified that he has looked for better employment near Jackson, Tennessee, but has found none that paid better or that would allow him to see his older son on weekends. Stepfather further testified that his contacts for obtaining employment are in Nashville and that some have informed him that they could find him suitable employment in Nashville following the relocation.

The trial court entered its order on November 12, 2021. The order incorporated the trial court’s September 20, 2021 oral findings of fact and conclusions of law. The trial court found that Father’s “main issue” was with Stepfather and not Mother, and that Father failed to prove a material and substantial change of circumstances sufficient to justify a modification of the original parenting plan. The trial court granted Mother’s request to relocate with the children and dissolved the no-contact order as to Stepfather. The permanent parenting plan entered by the trial court designated Mother as the children’s primary residential parent and granted Father visitation every other weekend and for large portions of the summer.^[13] Father was held in civil contempt for failure to pay his portion of the parties’ shared credit card balance as set out in the parties’ marital dissolution agreement. Father was therefore ordered to reimburse Mother for the expense or risk further punishment. All other matters were dismissed. The trial court granted Mother’s request for her attorney’s fees, directing her counsel to submit an affidavit of time and expenses and giving Father until October 31, 2021, to file any objections.

Father filed his notice of appeal on December 17, 2021. Father then filed an objection to Mother’s attorney’s fees request on January 10, 2022. The trial court entered its order awarding Mother $52,640.00 in attorney’s fees and $3,585.42 in expenses on December 15, 2022.14

II. ISSUES PRESENTED

On appeal, Father challenges the trial court’s finding that granting the relocation petition was in the children’s best interests and denial of Father’s petition for custody. He also asserts that the trial court abused its discretion in awarding attorney’s fees to Mother. In the posture of appellee, Mother seeks an award of attorney’s fees incurred on appeal.

III. STANDARD OF REVIEW

The trial court heard this case sitting without a jury. Accordingly, we review the trial court’s findings of fact de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the trial courts conclusions of law, and our review is de novo. Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). Regardless, “we are mindful that trial courts are vested with wide discretion in matters of child custody and that the appellate courts will not interfere except upon a showing of erroneous exercise of that discretion.” Johnson v. Johnson, 165 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Koch v. Koch, 874 S.W.3d 571, 575 (Tenn. Ct. App. 1993)). This deference extends to decisions under the parental relocation statute: “[i]nasmuch as parental relocation decisions involve ‘significant’ trial court discretion, these decisions should be reviewed pursuant to an abuse of discretion standard.” Hall v. Hall, No. M2021-00757-COA-R3-CV, 2022 WL 1642700, at *3 (Tenn. Ct. App. May 24, 2022). “An abuse of discretion occurs when the trial court . . . appl[ies] an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).

IV. ANALYSIS

A.

The genesis of this dispute involves Mother’s request to relocate with the children more than fifty miles from her current residence. Father timely filed a petition in opposition to Mother’s proposed relocation pursuant to Tennessee’s parental relocation statute, Tennessee Code Annotated section 36-6-108(b). As such, there is no dispute that the trial court was required to determine whether Mother should be allowed to relocate with the children upon consideration of the non-exclusive best interest factors contained in section 36-6-108(c)(2). Although the trial court did not specifically reference section 36-6- 108(c)(2) in its ruling, it made detailed factual findings that mirror the statutory best interest factors. As such, we will consider each factor, the trial court’s ruling, and Father’s argument thereon in turn.

We begin with the factor concerned with “[t]he nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life[.]” Tenn. Code Ann. § 36-6-108(c)(2)(A). With regard to this factor, the trial court found that Mother was the primary caregiver of the children both prior to and after the parties’ divorce. The trial court further found that the children have a strong bond with Mother.

On appeal, Father asserts that he has also been actively involved in the children’s lives. Moreover, he asserts that the trial court’s finding fails to consider the children’s interactions with Stepfather and his child, who Father asserts have acted inappropriately toward the children. As such, Father asserts that Mother’s “failure to protect” the children from Stepfather and his son supports a finding that relocation is not in the children’s best interests.

The bulk of Father’s argument as to this factor, and indeed many of the factors in dispute, concerns Father’s characterization of Stepfather’s behavior as inappropriate and abusive, as well as his assertion that Mother would not protect the children from the abuse. In support of this description, Father submitted his own testimony, as well as the testimony of various experts and lay witnesses, regarding Mother’s failure to protect the children from Stepfather’s narcissistic and abusive behavior, as well as the bullying by Stepfather’s son. To allow the children to move further away from Father, he contends, leaves them without his protection against the negative behavior rampant in Mother’s home.

After considering Father’s proof and Mother’s counter-proof, however, the trial court simply did not view Mother’s and Stepfather’s behavior in the same way as Father. Instead, the trial court found that Mother would protect the children if they needed to be protected. In making this finding, the trial court appeared to rely in large part on the testimony of Mother and Mr. Reedy that Mother’s home, with Stepfather and his son present, did not pose a risk of harm to the children and that they were comfortable with Stepfather.^[15] In our view, then, a large part of the trial court’s finding that Mother would protect the children rests on the trial court’s assessment of the witnesses’ credibility. When reviewing findings that hinge on credibility, this Court is required to afford the trial court considerable deference, as “trial courts are ‘uniquely positioned to observe the demeanor and conduct of witnesses.’” Kelly v. Kelly, 445 S.W.3d 685, 692–93 (Tenn. 2014) (quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)). “[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary.” Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). Clear and convincing evidence eliminates any “serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” State v. Sexton, 368 S.W.3d 371, 404 (Tenn. 2012) (quoting Grindstaff v. State, 297 S.W.3d 208, 221 (Tenn. 2009)).

Here, evidence was presented both for and against a finding that Stepfather’s behavior was inappropriate.^[16] After fully considering this evidence, the trial court found that Stepfather’s behavior, while sometimes “immature,” was not inappropriate such that he could not be around the children. Instead, the trial court found that Mother and Stepfather have dealt with the immature acts against the children “appropriately” and “have satisfied the court that those things will not happen in the future.” The trial court further found that Mother would protect the children if ever there was something to protect them from. Given the deference we must give to findings that rest on credibility, we must conclude that the evidence does not preponderate against the trial court’s finding that the children were safe in the home of Mother and Stepfather. As such, we agree with the trial court, that prior to the initiation of the dependency and neglect action, Mother was the primary caregiver of the children. This factor therefore favors Mother’s request to relocate.

We next consider the factor concerned with “[t]he age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child[.]” Tenn. Code Ann. § 36-6-108(c)(2)(B). With regard to this factor, the trial court found that the children are at an age where they can readily adjust to the move and that the move will not have an adverse effect on their physical, educational, or emotional development. Once again, Father asserts that the trial court’s ruling fails to take into account how the relocation will cause “isolation of the minor children with a narcissistic Stepfather and conformist mother[.]” Again, as previously discussed, Father has not shown that the trial court erred in finding that Stepfather did not pose a danger to the children or that Mother would not properly protect them. So Father has not met his burden to show