                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 December 13, 2002 Session

  ELIZABETH DONAHUE WHITAKER v. LAWSON S. WHITAKER, III

                     Appeal from the Circuit Court for Hamilton County
                       No. 99-D-199    Jacqueline E. Schulten, Judge

                                  FILED FEBRUARY 25, 2003

                                 No. E2002-00847-COA-R3-CV


In this post-divorce case, Lawson S. Whitaker, III (“Father”) filed a complaint against Elizabeth
Donahue Whitaker (“Mother”), seeking to hold her in contempt of court for depriving him of
visitation privileges and parenting time with the parties’ minor daughter, Grace Anne Whitaker
(DOB: September 6, 1996) (“the child”). In response, Mother filed, inter alia, a counterclaim for
contempt and for modification of the parties’ Parenting Plan. The trial court found a substantial and
material change in circumstances justifying a modification of the Parenting Plan. In addition, the
trial court held Father in contempt due to his failure to follow the court’s prior orders and for
harassing Mother. Father appeals both the modification and the court’s finding of contempt. Mother
seeks attorney’s fees for this appeal. We affirm and remand to the trial court for that court to set
attorney’s fees for Mother in connection with this appeal.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                       Affirmed; Case Remanded with Instructions

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and HERSCHEL P. FRANKS , J., joined.

Michael E. Richardson, Chattanooga, Tennessee, for the appellant, Lawson S. Whitaker, III.

Leslie B. McWilliams, Chattanooga, Tennessee, for the appellee, Elizabeth Donahue Whitaker.


                                            OPINION

                                                 I.

        Mother and Father were divorced on June 23, 2000. The divorce judgment included a
Permanent Parenting Plan (“the Plan”), in which Mother was designated the primary residential
parent of the child. Father, who was employed as a traveling photographer with Olan Mills Studio,
typically worked from Tuesday until Saturday afternoon each week. In order to accommodate
Father’s work schedule, the parties agreed to visitation as follows:

               Prior to enrollment in school, the child will reside with Mother,
               except for the following days and times when the child will reside or
               be with Father: Every other week from Sunday at noon until Monday
               at 7:00 p.m., and the alternate week from Sunday at 9:00 a.m. until
               Monday at 7:00 p.m. If the Father has a weekend business meeting
               the overnight can be changed to Monday with seven (7) days[’] notice
               to Mother. If Father has to work on Monday, with seven (7) days[’]
               prior notice to Mother and there are no prior set plans for special
               events for the child or serious illness (defined as a fever or nausea),
               Father shall be entitled to pick the child up on Saturday evening at
               [7:00] p.m. and return the child to day care on Monday morning.

               Mother shall be entitled to one weekend every other month with the
               child, and on that weekend Father’s time shall be from Monday
               morning until Tuesday morning. Mother’s weekend shall not be on
               a [Monday that the father has to work, provided that he has notified
               her in advance of his work schedule. Mother shall give father 7 days’
               notice of her plans to change the weekend time. Since the father
               usually works out of town 5 nights per week, when he is working in
               Chattanooga, he shall be entitled to have the] child on Wednesday
               between 8:00 a.m. and 2:30 p.m. provided that the child is to be with
               the Father the entire time, or as otherwise agreed upon by the parties.
               Father shall give at least seven (7) days notice of his plans to exercise
               this weekly time with the child. Father shall provide to the Mother
               copies of his weekly and holiday schedule when they are received by
               him.

(Language in brackets in second paragraph added by trial court at a later date).

         On November 14, 2000, Father filed a complaint seeking to hold Mother in contempt of
court. In his complaint, Father alleged that Mother denied his scheduled visitation with the child on
several different occasions. In addition, Father asserted that Mother frequently interfered with his
telephone calls and conversations with the child. Mother filed an answer, denying Father’s
allegations. In a counterclaim, Mother alleged that Father has refused to cooperate with her since
the entry of the divorce, has “failed to give her any copies of his work schedule, and has repeatedly
failed to advise [Mother] of his change of plans.” Mother asserted that there has been a material and
substantial change in circumstances since the divorce, “in that the minor child has developed
significant behavior problems.” Mother claimed that the current visitation arrangement is too
disruptive for the child and that it should be modified. Mother also contended that Father has
repeatedly taken the child to the doctor and dentist without the prior knowledge or consent of
Mother, and that Father has “engaged in ongoing inappropriate conduct in the presence of the child
at the child’s school . . . .”


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        Hearings were held on the competing claims on November 6, 2001, and December 6, 2001.
At the conclusion of the hearings, the trial court issued its ruling from the bench, holding Father in
contempt of court “for failure to follow these [sic] Court’s orders, as well as harassing [Mother].
And if you do it again, you’ll serve the ten days that I’m [suspending] today.” The court then
incorporated the transcript of its ruling into its Final Order. With respect to the Plan, the court,
through its Order, modified it as follows:

                Prior to enrollment in school, the child will reside with Mother,
                except for the following days and times when the child will reside or
                be with Father: Beginning December 14, 2001, and continuing every
                other weekend thereafter, from Friday at 6:00 p.m. until Sunday at
                6:00 p.m. except as otherwise stated in this plan.

                As soon as he is aware of his schedule, Father shall notify Mother
                when he is going to pick up the child if he is not going to be available
                at 6:00 p.m. on Friday. Father shall provide to the Mother copies of
                his weekly and holiday schedule when they are received by him.

In addition, the trial court “restrained and enjoined [Father] from taking the child to the doctor or the
dentist unless requested by [Mother], or in the case of an emergency and [Father] is unable to locate
[Mother].” The court also “permanently restrained and enjoined [Father] from being in the child’s
classroom.” From this judgment, Father appeals.

                                                   II.

        In this non-jury case, our review of the trial court’s factual findings is de novo; however, the
case comes to us accompanied by a presumption that those findings are correct – a presumption that
we must honor unless the evidence preponderates against the trial court’s factual findings. Tenn R.
App. P. 13(d); Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). Our search for
the preponderance of the evidence is tempered by the principle that the trial court is in the best
position to assess the credibility of the witnesses; accordingly, such determinations are entitled to
great weight on appeal. Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995);
Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991).

                                                  III.

                                                   A.

        Father first argues that the trial court erred in finding him in contempt of court and imposing
upon him a suspended sentence of ten days in jail, as “he did not knowingly violate any provision
of the Final [Divorce] Decree and Permanent Parenting Plan.” We disagree.




                                                  -3-
      In issuing its ruling from the bench at trial, the court gave two reasons for holding Father in
contempt: first, for failing to follow the court’s orders, and second, for harassing Mother.

        Section 2.2 of the Plan provides that “Father shall provide to the Mother copies of his weekly
and holiday schedule when they are received by him.” Father’s employer, Olan Mills Studio,
provides him with a calendar each year setting out his schedule for the entire year. However, Olan
Mills also provides Father with a weekly schedule that apparently contains the details of when and
where Father will be working each week. Father readily admitted at trial that he had provided
Mother with the yearly calendar of his work schedule, rather than the weekly schedules:

               [The yearly calendar] has been 99 percent accurate, 100 percent most
               of the time. It is what I go by when I make plans. I look at this and
               that tells me whether I’m working that day or not. That is sufficient,
               you know, notice to [Mother] when I work on Monday and when I
               should have the child.

               I have gone beyond that to give [Mother] calls to remind her to look
               at the schedule that I am working. And she has forced me to go
               beyond that to give her a weekly work schedule that I get less than
               seven days before the work day, and that work schedule has
               information that’s really not pertinent to [Mother] and that can even
               change.

Mother’s counsel cross-examined Father about the importance of the weekly schedules as follows:

               Q: [The weekly schedule is] much more current than something that
               you received more than two years ago, isn’t it?

               A: That’s correct.

               Q: This schedule also tells the location of where you’re going to be
               working so it’s possible for [Mother] to be able to calculate what time
               you may be arriving to pick up Grace as well, doesn’t it?

               A: That’s not relevant I don’t believe.

               Q: It’s not relevant if you’re five hours away from here and you’re
               scheduled to work until 5:00 on Saturday for [Mother] to know that
               there’s no way you’re going to be able to pick the child up at 7:00 on
               Saturday?

               A: My pickup time is 7:00 Saturday, and what that schedule says is
               not relevant to when I pick her up.


                                                 -4-
               Q: [Father], are you telling this court if you are working an
               assignment that’s five hours away on Saturday and you’re scheduled
               to work until 5:00 on Saturday that you’re going to be here at 7:00 to
               pick the child up?

               A: Where I’m scheduled to work is not relevant to my 7:00 pickup
               time. If I have a 7:00 pickup time, I will make every effort to be there
               by 7:00. If I can’t, I would call [Mother] and tell her that I would not
               be able to.

               Q: On that Saturday evening or that Saturday afternoon when you
               weren’t going to be there on time?

               A: That’s correct.

               Q: And you understand that [Mother] is a single parent, you
               understand that your daughter is left with very few individuals, and
               that if [Mother] has plans for Saturday evening assuming you’re
               taking your daughter as you are saying you’re going to at 7:00 and
               you don’t bother to show up or you don’t bother to call until Saturday
               afternoon, that that seriously interferes with her ability to carry out
               her plans?

               A: I don’t believe that’s relevant.

Clearly, Father not only knowingly, but intentionally failed to provide Mother with his weekly work
schedules, even though he was under a court order to do so. At the conclusion of the trial, the court
again instructed Father to provide Mother with a copy of his weekly schedule as soon as he receives
it each week, “so that [Mother] may try to attempt to schedule those alternating weekends and know
whether or not you’re actually going to be there or not to get [the child].”

       Furthermore, the Plan provides, in section 3.3.1, as follows:

               Mother and Father shall conduct themselves with respect to each
               other and the child so as to provide a loving, stable, consistent and
               nurturing relationship with the child even though they, themselves,
               are being divorced. To that end they will not speak derogatorily of
               each other or the members of the family of the other, will not cause
               the child to be drawn into any dispute regarding decisions affecting
               the child and will not attempt to curry favor with the child to the
               detriment of the other.




                                                 -5-
The record is replete with instances of the Father violating this provision. Mother testified that, on
one occasion, Father, while standing in the doorway of Mother’s house, grabbed the child and told
Mother that he would have her “thrown in jail” if she ever prevented him from seeing the child
again; Mother stated that, on that particular evening, she was late getting home from her sister’s
house due to traffic and that Father was angry because he was unable to pick up the child at the
scheduled time. A nursery school worker at the parties’ church testified to an instance at church
when the child was unwilling to leave with Father as scheduled. When Mother was encouraging the
child to leave with her Father, Father grabbed the child away from Mother, and in the process, the
child bumped her head on the corner of a desk. Father simply carried the crying child out of the
building, as she was reaching back for Mother and the child’s older half-sister, Rachel.

         Finally, Rachel, Mother’s eighteen-year-old daughter from a previous marriage, testified
about an occasion when Father arrived at the church with the child unexpectedly. Rachel was
working at the church that week, assisting with vacation bible school. Mother had instructed Rachel
that if Father attempted to leave the child at the church that day, Rachel should tell him that he had
to take the child to school. When Father arrived at the church with the child, Rachel did exactly as
Mother had instructed her. Rachel testified that Father became very angry, grabbed the child from
Rachel, and told the child that “nobody wants you. Your sister doesn’t want you here.” When
Rachel protested, Father backed her against some cabinets and stated, “I’ll see you in court over this,
baby.” The director of the nursery called security to escort Father out of the building.

        Again, there is clear evidence of Father’s violations of the civility provision of the Plan,
which is also against the court’s orders. Accordingly, we hold that the evidence does not
preponderate against the trial court’s determination that Father should be held in contempt for
violating the court’s prior orders.

        With respect to evidence of Father harassing Mother, the court made the following statements
at the conclusion of the trial:

               There’s nothing wrong with this child that can’t be cured by the
               parents getting along. And I frankly, for the record, want it shown
               that [Mother] has bent over backwards, sir, to try to make you have
               this child in your life, and you have done nothing but absolutely
               harass her endlessly. It’s going to cease today or you will go to jail.

                                                ***

               Communication between [Father and Mother] will be by e-mail or fax
               only. You are restrained, enjoined and permanently enjoined from
               ever calling [Mother] at work, unless there is an emergency, period.

                                                ***



                                                 -6-
                Do not get out of the car in [an] attempt to engage, until you-all
                become more peaceful toward each other, in any conversation.
                There’s nothing to be said or talked about between you and [Mother].
                When you pick up and deliver the child, do not get out of the car. Do
                not come to [Mother’s] house unannounced. She can just as well call
                the police, as I’m surprised she hasn’t. You have no business at her
                home, sir.

Based upon the court’s findings, we cannot say that the evidence preponderates against the court’s
decision to hold Father in contempt for harassing Mother. This issue is without merit.

                                                    B.

         An initial award of custody is “subject to such changes or modification as the exigencies of
the case may require.” Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 2002). This court has noted that
the initial judgment awarding custody “is res judicata and is conclusive in a subsequent application
to change custody unless some new fact has occurred which has altered the circumstances in a
material way so that the welfare of the child requires a change of custody.” Griffin v. Stone, 834
S.W.2d 300, 301-02 (Tenn. Ct. App. 1992). The best interest of the child is the paramount
consideration. Musselman, 826 S.W.2d at 922.

        “Custody decisions are factually driven and require the careful consideration of numerous
factors.” Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). A petition to
modify a custodial arrangement addresses itself to the wide and sound discretion of the trial court,
and “we will not tamper with that discretion unless the facts demonstrate that the trier of fact has
abused his or her discretion.” Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997).

        First, Father asserts that there was no material and substantial change in circumstances
justifying the court’s modification of the Plan. We disagree.

        In the instant case, Father has a unique work schedule that the court attempted to
accommodate so that Father could have ample time with his daughter; in fact, Father was afforded
abundant flexibility with that schedule, provided he gave Mother sufficient notice and a copy of his
weekly work schedule. However, because of Father’s conduct in failing to provide Mother with
sufficient notice and in refusing to provide Mother with his weekly schedules, this arrangement has
not worked. Therefore, the court, in its discretion, altered that schedule, awarding Father “alternating
weekends, 6:00 [p.m.] on Friday to 6:00 [p.m.] on Sunday.” As we find that the trial court did not
abuse its discretion in modifying the Plan, we will not disturb its decision.

       Father next contends that the trial court erred in restricting his ability to visit the child’s pre-
school classroom. Kathleen Lanza, the headmistress at the child’s pre-school, testified that Father’s
impromptu visits to the classroom when the child is in school cause her to exhibit immaturity and
prevent her from fully interacting with the other children in the classroom. Ms. Lanza stated that,


                                                   -7-
in the past, Father would often arrive at school with the child late and interrupt the class that was
already in progress. Ms. Lanza opined that this sort of behavior was “just kind of uncomfortable for
the children in the middle of whatever they were doing, and it’s hard for the teacher because she was
having to stop what she was doing to try to talk to the parent.”

       In rendering its decision, the trial court held as follows:

               [Father] is further restrained and permanently enjoined until he
               proves himself to either the school or to this Court from being in this
               child’s classroom while this child is trying to study. I have found
               nothing in the record but his inappropriate conduct which has caused
               disruptions in the classroom, and that will not take place anymore.
               He is enjoined from being in her classroom.

Based upon the testimony of Ms. Lanza, we find that the trial court did not abuse its discretion in
modifying the Plan to enjoin Father from visiting his daughter’s classroom.

        Finally, Father asserts that the trial court erred in preventing Father from taking the child to
any medical or dental appointments. Section 3.2.2 of the Plan provides that, while the parties “will
consult with respect to major, non-emergency medical decisions” and that either party “may make
emergency decisions affecting the health and safety of the child,” Mother will make all other medical
decisions “after consultation.” However, the testimony at trial revealed that Father had been taking
the child to the doctor without the prior knowledge or consent of Mother. Mother testified that, on
more than one occasion, Father had shown up at the pediatrician’s office without an appointment,
demanding that the child be seen by the doctor. Mother later received a letter from the child’s
pediatrician, in which the doctor stated that she was withdrawing as the child’s doctor. In the letter,
the doctor cited the poor communication between the parents with respect to the child’s medical care
and noted that “often [the child’s] presence in the office is unknown to the other parent.” In
addition, Father began taking the child to the dentist without the knowledge or consent of Mother.

       After hearing the testimony on the medical matters affecting the child, the court ruled as
follows:

               You will not take this child to a doctor or a dental appointment unless
               Mother asks you to do so. Mother is the decision maker as to the
               medical and dental needs of this child.

       Father clearly violated the court’s prior order with respect to non-emergency medical
decisions when he began taking the child to the pediatrician and the dentist without consulting with
Mother. Therefore, we find no abuse of discretion in the court’s decision to modify the Plan to
prevent Father from taking the child to any medical or dental appointments.




                                                  -8-
                                                 C.

        Mother seeks her attorney’s fees incurred on this appeal. We find that she is entitled to such
an award and therefore remand this case to the trial court for a determination of a reasonable fee.
See D v. K, 917 S.W.2d 682, 687 (Tenn. Ct. App. 1995) (awarding reasonable attorney fees upon
petition for rehearing and remanding to trial court for a determination of those fees).

                                                 IV.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Lawson S. Whitaker, III. This case is remanded for a determination of an award to Mother of her
attorney’s fees incurred on this appeal, for collection of costs, and for enforcement of the judgment
below, all pursuant to applicable law.



                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




                                                 -9-
