                                                                                      04/10/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             December 14, 2016 Session

          ALANNA CHRISTINE HOWE V. JOHN ASHLEY HOWE

               Appeal from the Chancery Court for Hamilton County
                   No. 070768    Pamela A. Fleenor, Chancellor


                            No. E2016-01212-COA-R3-CV


This post-divorce appeal concerns the requested modification of a parenting plan
designating the father as the primary residential parent and awarding the mother
reasonable visitation. The mother filed a petition to modify, alleging that a material
change in circumstances necessitated her designation as the primary residential parent.
The father objected and filed a motion for contempt for failure to pay child support.
Following a hearing, the court held the mother in contempt for failure to pay and denied
her request for designation as the primary residential parent. However, the court awarded
her additional co-parenting time, finding that a modification of the residential schedule
was warranted. The mother appeals. We affirm the decision of the trial court.


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


JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.
SUSANO, JR., and THOMAS R. FRIERSON, II, JJ., joined.

Paul W. Ambrosius, Nashville, Tennessee, for the appellant, Alanna Christine Howe.

John P. Konvalinka, Cleveland, Tennessee, for the appellee, John Ashley Howe.

                                     OPINION
                            I.     BACKGROUND

      Alanna Christine Howe (“Mother”) and John Ashley Howe (“Father”) were
married on December 19, 1992. One child (“the Child”) was born of the marriage in
September 2005. Mother filed a complaint for divorce on August 30, 2007.
       Mother and Father (collectively “the Parties”) were divorced by order of the court
on September 8, 2008. The divorce decree incorporated a parenting plan in which Father
was designated as the primary residential parent, while Mother was granted 65 days of
co-parenting time. Mother was also tasked with remitting child support at a rate of $498
per month for an initial six-month period and $758 per month thereafter pursuant to an
imputed income “unless she produced documentation to [Father] which would
substantiate an income for child support purposes.” Thereafter, Mother moved to
Florida. The residential schedule became unworkable given her move; however, Father
offered alternative visitation in keeping with the parameters of the parenting plan.

        On August 27, 2014, Mother filed a petition to modify the parenting plan to reflect
her designation as the primary residential parent. In support of her petition, she alleged
the following material change in circumstances:

       a.     [Father’s] verbal and physical abuse of [the Child], including fits of
       anger directed at [the Child;]

       b.    [Father’s] cohabitating or staying overnight with romantic
       acquaintances, while in the presence of [the Child];

       c.     [Father’s] travel out-of-town for extended periods, with the minor
       child being kept by [Father’s] romantic acquaintances;

       d.     [Father’s] failure to comply with his designated parenting times with
       [the Child];

       e.      [Father’s] failure to provide for appropriate medical and dental care
       for [the Child]; and

       f.     [Father’s] failure to notify [Mother] of events and activities
       regarding [the Child’s] school.

Mother further alleged that Father should be held in contempt for failure to comply with
the court order prohibiting him from making derogatory remarks about her to the Child or
in the presence of the Child.

       Father denied Mother’s allegations but agreed that a change in the residential
schedule was warranted given her relocation to Florida. He also filed a petition for
contempt for failure to pay child support in accordance with the court order. He provided
that Mother arbitrarily remitted payment at a rate of $280 per month, despite the order
directing payment of $758 per month. He further alleged that Mother had obtained
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gainful employment and realized a substantial increase in income, thereby necessitating
an increase in the amount of support due.

       Mother returned to Tennessee during the pendency of the hearing on the petition.
Prior to the hearing on the petition, Mother requested permission to present the Child as a
witness for an in camera hearing. The court-appointed guardian ad litem objected to the
request. The court initially reserved ruling on the issue but ultimately denied Mother’s
request to call the Child as a witness.

       At the hearing, the Parties each presented exhaustive testimony concerning the
other’s shortcomings as a parent and repeated attempts to antagonize the other parent.
These allegations were supported by a number of character witnesses. Much of the
testimony will not be recounted here because it is not relevant to the issues raised.

       As pertinent to this appeal, Mother testified concerning Father’s verbal and
physical abuse of the Child. Father admitted that he spanked the Child with a belt on one
occasion within the last three years and that he told her to get her “ass” in the car on
another occasion. Mother also testified concerning the Child’s reluctance to return to
Father after visitation.1 She claimed that the Child was also unhappy with her current
school. Father explained that the Child often went through an adjustment period after
returning from visitation with Mother.

       Mother testified concerning Father’s relationship with two women, Kelly Lawson
and Hollis Keene. She claimed that he stayed overnight with these women while the
Child was present and that the Child viewed inappropriate material while in his care.
Father conceded that he spent the night with Ms. Lawson on a regular basis and with Ms.
Keene on two occasions while with the Child. He also admitted to leaving the Child with
Ms. Lawson while he went on a missions trip. He likewise admitted that the Child
viewed an inappropriate video while he was with Ms. Keene.

      Mother claimed that Father failed to take the Child to medical appointments and
allowed her to stay home from school on occasion for no reason. Father admitted that
Mother kept medical appointments for the Child while he did not. He agreed that he
allowed the Child to stay home from school on one occasion. He explained that they
were both not feeling well and that he decided to stay home to spend time with her.

       Mother testified that she presented Father with income information upon which
child support could be calculated and that she remitted payment in accordance with that


1
    Mother’s claim was verified by Rosella Parolari, Sherry Bishop, and Amy Daniels.
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information.2 She provided that she was employed by a church at a rate of $10 per hour
shortly following the divorce. She said that she moved to Florida in January 2013 to
pursue an employment opportunity that allowed her to realize an increased income of
$76,000 per year. She maintained her employment until February 2015, when she
accepted employment as dean at a university. She noted that her income increased from
$76,000 to $85,000 per year. She maintained her employment until May 2015, when she
returned to Tennessee to be with the Child. She explained that she was able to maintain
her employment in a different capacity but that her income decreased to $35,000 per year.

       Father agreed that he discussed Mother’s income information with her and that he
received some documentation. He claimed that he was unsure how she calculated her
support obligation. He asserted that she failed to increase her payments as her income
increased and to provide income information on a yearly basis as required.

       Following the hearing, the Guardian advised the court that the Child would like to
spend more time with Mother. However, the Guardian believed that the continued
designation of Father as the primary residential parent was in the Child’s best interest.
The trial court agreed and found that Mother failed to establish a material change in
circumstances supporting her requested designation as the primary residential parent.
However, the court awarded her 135 days of co-parenting time, finding that a material
change in circumstances warranted modification of the residential schedule. Relative to
child support, the court found Mother in contempt for failure to remit payment as ordered
and entered judgment against her for the arrearage. In so finding, the court
acknowledged that Mother had presented proof of her income to Father but that she
failed to seek relief from the court order by filing a petition to modify her support
obligation. The court ordered each party to pay their own attorney fees and to split the
Guardian’s fee. The Parties each filed a motion. This timely appeal followed the
consideration of the motions and entry of an amended order.

                                          II.     ISSUES

    We consolidate and restate the issues on appeal as follows:

       A.    Whether the trial court abused its discretion in refusing to permit the
       in camera testimony of the Child.

       B.     Whether the trial court abused its discretion in excluding the
       testimony of Mother’s former attorney.

2
 Mother presented an offer of proof in the form of testimony from her prior attorney, Pam O’Dwyer, who
confirmed Mother’s assertion.
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       C.     Whether the trial court erred in finding Mother in contempt.

       D.     Whether the trial court abused its discretion in failing to award
       Father attorney fees and expenses at trial.

                             III.    STANDARD OF REVIEW

       After a bench trial, we review a 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); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). Because the trial
court is in the best position to observe witnesses and evaluate their demeanor, we afford
great deference to a trial court’s credibility determinations. Hughes v. Metro. Govt. of
Nashville and Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011). We review questions
of law de novo with no presumption of correctness. Whaley v. Perkins, 197 S.W.3d 665,
670 (Tenn. 2006).

       Rulings on admissibility of evidence are within a trial court’s discretion, and an
appellate court will set aside such decisions “when the trial court has misconstrued or
misapplied the controlling legal principles or has acted inconsistently with the substantial
weight of evidence.” White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn. Ct. App.
1999). We review the decision of the trial court to determine: “(1) whether the factual
basis for the decision is supported by the evidence, (2) whether the trial court identified
and applied the applicable legal principle, and (3) whether the trial court’s decision is
within the range of acceptable alternatives.” Id. at 223. Improper admission or exclusion
of evidence requires a new trial if the outcome of the trial was affected. Tenn. R. App. P.
36(b); White, 21 S.W.3d at 222.

                                    IV.   DISCUSSION

                                            A.

       Mother argues that the court abused its discretion in denying her request to present
the Child as a witness to her allegations of physical and emotional abuse and neglect.
She asserts that she is entitled to a new hearing because her attempt to support the factual
allegations of her petition was thwarted by the court’s erroneous refusal to consider the
Child’s testimony. Father responds that the court did not abuse its discretion in excluding
the Child’s testimony when the testimony would have been cumulative and biased by
Mother’s influence. He explains that he admitted to the majority of Mother’s allegations
and that despite his admissions, the court still denied Mother’s requested designation as
the primary residential parent.

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      In denying Mother’s request to call the Child as a witness, the court found as
follows:

       The [c]ourt is going to exercise its discretion and not hear testimony from
       the [C]hild. She’s under 12 years of age. I don’t want to put her through
       this. I have examined other children that are teenagers. It’s very difficult.
       I’ve never had one that was not difficult.

       I also believe that she’s very much aware of this case and this case has been
       discussed with her, she is in the middle, and she’s been influenced, if not
       coached, and I don’t believe it’s going to assist the [c]ourt in any way in
       making its decision. So the [c]ourt’s going to exercise its discretion and not
       interview [her], although I’ve heard a lot of wonderful things about her and
       I certainly would love to meet her at some point, but I’m not going to put
       her through that.

        Relevant evidence is defined by Rule 401 of the Tennessee Rules of Evidence as
“evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence.” Tenn. R. Evid. 401. “In other words, evidence is relevant if it helps the
trier of fact resolve an issue of fact.” Neil P. Cohen, et al., Tennessee Law of Evidence §
4.01[4], at 4-9 (5th ed. 2005). “Evidence which is not relevant is not admissible.” Tenn.
R. Evid. 402. If the evidence is relevant, it is admissible unless another legal rule
excludes it. Tenn. R. Evid. 402.

        Under Rule 403 of the Tennessee Rules of Evidence, the trial court may exclude
relevant evidence “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” This rule
requires trial courts to conduct a two-part balancing test. White, 21 S.W.3d at 227. First,
the trial court must “balance the probative value of the [challenged evidence] against the
countervailing factors.” Id. “After the court has engaged in the balancing analysis, it
may then exercise its discretion to determine whether the evidence should be excluded if
the prejudice substantially outweighs the probative value of the evidence.” Id. (citation
omitted).

       The trial court is best situated to conduct the Rule 403 balancing test. Here, the
proffered testimony concerned the Child’s desire to live with Mother and her
corroboration of Mother’s factual allegations contained in the petition. Assuming,
without deciding, that the Child’s testimony was relevant, her corroboration of Mother’s
factual allegations was of minimal probative value when the record reflects that Father
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admitted to the majority of the allegations. Additionally, the Guardian advised the court
of the Child’s desire to spend more time with Mother. In deference to the trial court’s
discretion in such matters, we affirm the court’s ruling.

                                         B. & C.

       Mother argues that the court erred by holding her in contempt for failure to pay
child support when she followed the express terms of the court’s order by providing
Father with income information upon which child support could be calculated. She
further claims that the court abused its discretion in excluding testimony from her former
attorney that would have substantiated her claim. Father responds that the court did not
err by holding Mother in contempt for failure to pay child support when the support order
was never modified. He explains that the proffered testimony was irrelevant because the
court holds the exclusive authority to modify a child support obligation.

       Here, the proffered testimony would have simply corroborated Mother’s claim that
she provided Father with income information upon which child support could be
calculated.    Assuming, without deciding, that the testimony was relevant, her
corroboration of Mother’s factual allegations was of minimal probative value when the
record reflects that Father admitted to the receipt of some income information.
Moreover, a child support order is not subject to modification prior to the date that an
action for modification is filed. Tennessee Code Annotated section 36-5-101(f)(1)
provides, in pertinent part, as follows:

      Any order for child support shall be a judgment entitled to be enforced as
      any other judgment of a court of this state, and shall be entitled to full faith
      and credit in this state and in any other state. Except as provided in
      subdivision (f)(6), such judgment shall not be subject to modification as to
      any time period or any amounts due prior to the date that an action for
      modification is filed and notice of the action has been mailed to the last
      known address of the opposing parties. If the full amount of child support
      is not paid by the date when the ordered support is due, the unpaid amount
      is in arrears, shall become a judgment for the unpaid amounts, and shall
      accrue interest from the date of the arrearage at the rate of twelve percent
      (12%) per year. All interest that accumulates on arrearages shall be
      considered child support.

(Emphasis added.). Accordingly, we affirm the court’s finding of contempt and the
exclusion of the attorney as a witness.



                                            -7-
                                            D.

       Father claims that the court abused its discretion in failing to award attorney fees
and expenses, including the cost of the Guardian, at trial because he was successful on
the pertinent issues before the court. Tennessee follows the American Rule which
provides that “litigants pay their own attorney’s fees absent a statute or an agreement
providing otherwise.” State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194
(Tenn. 2000); accord Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005). “Under the
American [R]ule, a party in a civil action may recover attorney fees only if: (1) a
contractual or statutory provision creates a right to recover attorney fees; or (2) some
other recognized exception to the American [R]ule applies, allowing for recovery of such
fees in a particular case.” Cracker Barrel Old Country Store, Inc. v. Epperson, 284
S.W.3d 303, 308 (Tenn. 2009).

      A right to recover attorney fees in custody disputes was created in Tennessee Code
Annotated 36-5-103(c), which provides,

      The plaintiff spouse may recover from the defendant spouse, and the spouse
      or other person to whom the custody of the child, or children, is awarded
      may recover from the other spouse reasonable attorney fees incurred in
      enforcing any decree for alimony and/or child support, or in regard to any
      suit or action concerning the adjudication of the custody or the change of
      custody of any child, or children, of the parties, both upon the original
      divorce hearing and at any subsequent hearing, which fees may be fixed
      and allowed by the court, before whom such action or proceeding is
      pending, in the discretion of such court.

(Emphasis added.). In deference to the trial court’s discretion in such matters, we affirm
the court’s refusal to award attorney fees and expenses, including the cost of the
Guardian, at trial.

                                 V.     CONCLUSION

       The decision of the trial court is affirmed. The case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Alanna
Christine Howe.


                                                 _________________________________
                                                 JOHN W. McCLARTY, JUDGE

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