                                                                                     05/29/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                        Assigned on Briefs February 2, 2018

                 SAMRAT MITRA v. SUNEETHA IRIGREDDY

                  Appeal from the Circuit Court for Shelby County
                   No. CT-003134-14     Mary L. Wagner, Judge


                            No. W2017-01423-COA-R3-CV


This appeal involves a contentious dispute over visitation and child support for the
parties’ minor child. Having carefully reviewed the voluminous record before us, we
hold that the evidence supports the parenting plan determination and other rulings made
by the court.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, C.J. and FRANK G. CLEMENT, P.J., M.S., joined.

Jennifer Sheppard, Nashville, Tennessee, for the appellant, Samrat Mitra.

Margaret M. Chesney and Rebecca A. Bobo, Memphis, Tennessee, for the appellee,
Suneetha Irigreddy.

                                       OPINION

                                I.     BACKGROUND

      Suneetha Irigireddy (“Mother”) and Samrat Mitra (“Father”), who are of Indian
descent, were married in India in 2002. Mother and Father (collectively “the Parties”)
moved to North Carolina on a work visa for employment secured by Father. Stuti (“the
Child”) was born in February 2007 in North Carolina. Father continued working, while
Mother and the Child traveled to India in May 2008. Father followed shortly thereafter
when his work contract ended in June 2008. While in India, Mother and the Child stayed
with her parents, while Father stayed with his parents.1 The two families lived a
significant distance apart. Father visited at Mother’s home on occasion, while Mother
and the Child visited Father on occasion. Father remained in India until November 2008,
when he accepted an employment position in Canada. Mother followed shortly thereafter
in December 2008; however, the Child remained in India with the maternal grandparents
because the Parties had not yet established a home in Canada. The Child joined the
Parties in June 2009, when she was two years old.

        The Parties then returned to the United States in January 2010 to maintain their
immigration status. Mother accepted employment in North Carolina, while Father
searched for employment for several months before eventually moving to Texas for a job
opportunity in Fall 2010. He visited Mother and the Child twice in 2010, with the last
visit occurring in December 2010. At that point, the marital relationship had deteriorated.
Father returned to North Carolina in February 2011 in an attempt to visit the Child. He
did not advise Mother of his intent, and he did not attempt to contact her. Instead, he
waited outside of Mother’s apartment with a gift for the Child. No visit occurred because
they either were not home or were unaware of his presence. Thereafter, Father eschewed
Mother’s attempts to arrange visitation and advised her that he was “happy to be alone”
and that he did not wish to receive further contact from her. At some point, Mother
moved to Memphis, Tennessee.

       Father did not see the child from December 2010 until July 31, 2012, when he
again appeared at Mother’s apartment unannounced in Memphis. By that time, Father
had filed for and obtained a divorce in Texas. Father was able to visit the Child;
however, the visit did not go well given his long absence from her and failure to
communicate while absent. Father returned to Texas. The Parties communicated via
email but were unable to come to terms regarding future visitation. Father then sent an
email in September 2012, which provided, in pertinent part, as follows:

          Neither of you have to take the pain to let me meet your daughter, Stuti
          Irigireddy,2 at your home in Tennessee, nor do you have to bring her here in
          Austin on the holidays. YOU CAN KEEP HER!

                                                          ***



1
  Testimony later revealed that Father’s refusal to stay at the maternal grandparents’ house was in
deference to a cultural norm that ordinarily required the family to stay with the paternal grandparents and
discouraged the husband from residing with the maternal side of the family.
2
    Father’s reference to the Child using Mother’s maiden name was an insult in their culture.
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       Thanks for everything, but after my last visit to Memphis, I’ve really
       changed my mind - Neither am I willing to go see your daughter Stuti
       Irigireddy again, nor am I willing to take her out anywhere.

       In April 2013, Mother took the Child to India to reside with the maternal
grandparents, while Mother obtained and maintained employment in New Jersey. She
visited every six months and spoke to the Child on a daily basis. Mother began custody
proceedings while in India. She returned to the United States with the Child in February
2015, following Father’s filing of a petition for custody and injunctive relief on July 18,
2014, in the Circuit Court for Shelby County. Upon their return, Mother was designated
as the temporary, primary residential parent and was required to enroll the Child in
school in New Jersey. The Parties were also ordered to attend counseling sessions in
Tennessee to aid in the Child’s reunification with Father.

       Meanwhile, Mother objected to the trial court’s jurisdiction, citing the fact that
neither party resided in Tennessee and that the Child had not resided in Tennessee since
April 2013. The Parties later consented to the trial court’s jurisdiction, and the court
confirmed its subject matter jurisdiction over the pending custody and child support
issues. Mother did maintain a request for transfer of jurisdiction following the resolution
of the proceeding.

       The case proceeded to a hearing over the course of two days in January 2017, at
which the Parties testified concerning their tumultuous relationship and their difficulty in
reaching an agreement concerning Father’s visitation. The Parties also submitted
documentation establishing their income since their separation. The record reflects that
Father maintained an income of approximately $110,000 per year, while Mother
maintained an income of approximately $98,623 to $110,000 per year from 2014 through
2017. The Parties each offered conflicting accounts of the other’s attempt to facilitate or
impede Father’s participation with the Child. Father also claimed that the Child was not
doing well in school, while Mother submitted documentation establishing that the Child
had progressed and was in the process of overcoming the challenges of learning in the
United States with English as her second language.

       Following the hearing, the court designated Mother as the primary residential
parent and awarded Father with 100 days of co-parenting time, the majority of which was
scheduled during the Child’s breaks from school. The court also limited international
travel to two weeks, absent permission from the other parent or the court, but allowed
Mother to maintain possession of the Child’s passport. The court ordered Father to pay
child support at a rate of $935 per month and set his child support arrearage at $33,298,
in light of the Parties’ agreement that Father had remitted some payment, beginning in

                                            -3-
2015.3 The court awarded Mother attorney’s fees in the amount of $20,000. Father did
not object to the amount set by the trial court and waived a hearing on the issue. The
court ordered Father to remit payment on the child support arrearage and attorney fee
award at the combined rate of $750 per month until such time as the outstanding balances
are fulfilled. Lastly, the court declined Mother’s request for transfer of jurisdiction at the
conclusion of the proceeding, explaining that jurisdiction would be evaluated in the event
that either party needed a subsequent proceeding. Father filed this timely appeal.

                                       II.    ISSUES

       We consolidate and restate the issues raised on appeal as follows:

       A.     Whether the court erred in denying Mother’s request to transfer
       jurisdiction to the Child’s current home state at the conclusion of the
       hearing.

       B.     Whether the court erred in setting the residential schedule and
       limiting international travel.

       C.      Whether the court erred in calculating child support.

       D.      Whether the court erred in awarding Mother attorney’s fees.

       E.      Whether either party is entitled to attorney’s fees on appeal.

                                III.     STANDARD OF REVIEW

        This case was tried without a jury. We review the findings of fact made by the
trial court de novo, with a presumption of correctness unless the preponderance of the
evidence is to the contrary. Tenn. R. App. P. 13(d); In re C.K.G., 173 S.W.3d 714, 731
(Tenn. 2005). The trial court’s conclusions of law, however, are reviewed de novo and
“are accorded no presumption of correctness.” Brunswick Acceptance Co., LLC v. MEJ,
LLC, 292 S.W.3d 638, 642 (Tenn. 2008).




3
  Father was not given a credit for co-parenting time for 2011 through 2013 because he chose not to see
the Child during those years. He was not held responsible for child support while the Child resided in
India with the maternal grandparents. He was awarded credit for co-parenting time from 2014 through
2016 while he was in the process of attempting to secure such time.
                                                   -4-
                                  IV.    DISCUSSION

                                            A.

       Mother resided in Tennessee when the initial petition was filed by Father on July
18, 2014. Shortly thereafter, Mother moved to New Jersey. The Parties eventually
consented to the court’s jurisdiction of the matter as litigation progressed. However,
Mother requested a transfer of jurisdiction upon the court’s conclusion of the proceeding.
The court declined, stating that it would decide matters of continuing jurisdiction should
the need arise. Mother appeals this finding, while Father concurs with the court’s
decision to consider the matter anew should the need arise.

       The issue of subject matter jurisdiction, which “call[s] into question the court’s
lawful authority to adjudicate a controversy brought before it,” is a question of law.
Redwing v. Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn.
2012) and Cheatham Cnty. v. Kong, No. M2008-01914-COA-R3-CV, 2009 WL
1910952, *3 (Tenn. Ct. App. June 30, 2009) (citing Northland Ins. Co. v. State, 33
S.W.3d 727, 729 (Tenn. 2000)). Therefore, the review is de novo, without any
presumption of correctness. Kong, 2009 WL 1910952, at *3 (citing Northland Ins. Co.,
33 S.W.3d at 729). Tennessee Code Annotated section 36-6-217 provides as follows:

       (a)    Except as otherwise provided in § 36-6-219, a court of this state
       which has made a child-custody determination consistent with this part has
       exclusive, continuing jurisdiction over the determination until:

       1)     A court of this state determines that neither the child, nor the child
       and one (1) parent, nor the child and a person acting as a parent have a
       significant connection with this state and that substantial evidence is no
       longer available in this state concerning the child’s care, protection,
       training, and personal relationships; or

       2)      A court of this state or a court of another state determines that the
       child, the child’s parents, and any person acting as a parent do not presently
       reside in this state.

We agree with the court’s decision to withhold ruling on the issue until the need arises to
make such a determination, especially given each parent’s propensity to move for
employment opportunities.


                                            -5-
                                             B.

       Mother next challenges the parenting plan adopted by the trial court. Parenting
and visitation arrangements are recognized as “among the most important decisions
confronting a trial court in a divorce case.” Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn.
Ct. App. 2006). In making such decisions, the needs of the child are paramount, and the
desires of the parent are secondary. Id. While trial courts have broad discretion to make
parenting decisions, their determinations must be made based upon proof and applicable
principles of law. Id. Given the discretion involved and the fact that the decision often
hinges on witness credibility, our court has stated that “appellate courts are loathe to
second-guess a trial court’s conclusion.” Id. “Appellate courts should reverse custody
decisions ‘only when the trial court’s ruling falls outside the spectrum of rulings that
might reasonably result from an application of the correct legal standards to the
evidence.’” Kelly v. Kelly, 445 S.W.3d 685, 696 (Tenn. 2014).

        Tennessee Code Annotated section 36-6-106(a) provides that, taking into account
a child’s best interest, the trial court shall adopt a parenting plan that permits each parent
to enjoy the maximum participation possible in the child’s life that is consistent with the
factors set forth in the statute. See Strickland v. Strickland, No. M2012-00603-COA-R3-
CV, 2012 WL 6697296, at *10 (Tenn. Ct. App. Dec. 21, 2012). The relationship
between the child and each parent should be fostered because of the fundamental
importance of the parent-child relationship to the welfare of the child. Tenn. Code Ann.
§ 36-6-106(a). The location of the parents’ residences, the child’s need for stability, and
all other relevant factors must be considered. Id.; Tenn. Code Ann. § 36-6-401(a).

        Mother asserts that the current plan allows her little downtime with the Child
when Father received a disproportionate amount of the summer and school-free days.
She further claims that the court erred in arbitrarily limiting her international travel with
the Child to two weeks. Father claims that the court erred in even allowing international
travel to India and in allowing Mother to maintain possession of the Child’s passport.

       While we are sympathetic with Mother’s lack of school-free days with the Child,
the court properly crafted a plan with the intent of maximizing each parent’s participation
in the Child’s life given the Parties’ location and the Child’s need for stability. The only
way in which to facilitate Father’s participation in the Child’s life is through visitation on
school-free days given his current location in Texas and Mother’s location in New Jersey.
Accordingly, we hold that the court did not abuse its discretion in awarding Father a
disproportionate amount of school-free days. Further, we uphold the court’s limitation of
international travel for the same reason. In so holding, we note that each party is
permitted to request additional time for international travel but is simply not given
unfettered discretion to leave the country for an unspecified amount of time. This
                                             -6-
limitation is reasonable under the circumstances presented in this case and in light of the
court’s responsibility to maximize each parent’s participation in the life of the Child.
Father’s objections to Mother’s ability to travel to India and her maintenance of the
passport are of little concern given the court’s limitation on such travel. We uphold the
decision of the trial court on these issues as well.

                                            C.

       Father raises a number of issues concerning the court’s calculation of child support
and his support arrearage, while Mother questions the court’s failure to award retroactive
child support while the Child was living in India with the maternal grandparents. “In
making the court’s determination concerning the amount of support of any minor child or
children of the parties, the court shall apply, as a rebuttable presumption, the child
support guidelines” that are promulgated by the Tennessee Department of Human
Services Child Support Service Division. Tenn. Code Ann. § 36-5-101(e)(1)(A). The
setting of child support is a discretionary matter we review using the deferential “abuse of
discretion” standard of review, which requires the court “to consider (1) whether the
decision has a sufficient evidentiary foundation, (2) whether the court correctly identified
and properly applied the appropriate legal principles, and (3) whether the decision is
within the range of acceptable alternatives.” State ex rel. Vaughn v. Kaatrude, 21 S.W.3d
244, 248 (Tenn. Ct. App. 2000).

        First, Father claims that the court erred in calculating Mother’s gross income.
According to the child support worksheet, the court calculated Mother’s gross monthly
income as $8,983.19, which is the gross monthly income for someone earning
$107,798.28. This amount was taken from Mother’s 2015 W-2. Father claims that the
court should have calculated Mother’s gross monthly income as $110,000, an amount she
testified to at trial, which was based upon two W-2s she submitted to establish her
income in 2014. We find no error in the court’s calculation of the current child support
obligation or Father’s support arrearage based upon the record before us.

       Father next takes issue with the court’s crediting Mother with the additional
expenses of the Child’s monthly health insurance premium and child care expenses.
Father claims that there was no evidence submitted to support Mother’s claimed
expenses. However, Mother testified concerning these amounts. The court credited this
testimony and used the amounts supplied in the child support worksheet. We find no
error in the court’s calculations for the current child support obligation or Father’s
support arrearage based upon the record before us.

       Father also takes issue with the court’s order requiring him to pay his support
arrearage and attorney fee obligation at the rate of $750 per month, which represents
                                            -7-
$375 for child support and $375 for attorney’s fees. Father claims that this obligation, in
addition to the current support obligation, equals almost 19 percent of his income, which
does not include the cost of facilitating visitation or payment for extracurricular activities
and uncovered medical expenses while the Child is in his care. He maintains that such a
payment is contrary to the goals of the Child Support Guidelines and not in the best
interest of the Child.

       The Child Support Guidelines provide, in pertinent part, as follows:

       (3) The major goals in the development and application of these Guidelines
       are, to the extent possible, to:
               (a) Decrease the number of impoverished children living in
               single parent families;
               (b) Make child support awards more equitable by ensuring
               more consistent treatment of persons in similar circumstances
               while ensuring that the best interests of the child in the case
               before the tribunal are taken into consideration;
               (c) Improve the efficiency of the tribunal process by
               promoting settlements and by giving tribunals and parties
               guidance in establishing appropriate levels of support awards;
               (d) Encourage parents paying support to maintain contact
               with their child; [and]
               (e) Ensure that, when parents live separately, the economic
               impact on the child is minimized, and, to the extent that either
               parent enjoys a higher standard of living, the child shares in
               that higher standard[.]

Here, the Parties maintain an almost equal standard of living. However, Father was
absent from the Child’s life for a significant amount of time, leaving Mother with the sole
financial responsibility of raising the Child. While we acknowledge that the arrearage,
coupled with the attorney fee award, represents a significant amount of income, Father
accrued this arrearage as a result of his absence. The arrearage must be paid in a timely
manner. We find no abuse of discretion in the court’s calculation of the arrearage or the
manner in which Father was directed to remit payment.

       Father next claims that he was not given the appropriate amount of credit for past
payments of support. Father testified at trial that he left $12,000 in the Parties’ joint
checking account at the time of the separation. Mother acknowledged that they shared an
account and that some money was left by him in the account at the time of the separation.
She did not remember the amount he contributed, while Father claimed that the money
was left with the specific intent to provide for the Child. No evidence was submitted to
                                             -8-
establish the amount Father contributed to the account. The trial court found that the
contents of the joint checking account should have been an issue addressed by the court
responsible for classifying and distributing the marital estate. Given Father’s history of
his failure to provide and extended absences from the Child’s life, we agree with the trial
court’s finding on this issue.

        Finally, we must address Mother’s claim that the court abused its discretion in
declining to award support for the period of time that the Child resided in India with the
maternal grandparents. Mother argues that Father still had an obligation to support the
Child, regardless of her whereabouts. We agree; however, the court is provided a certain
amount of discretion in setting the support obligation and may deviate from the
guidelines when appropriate. Following our review, we hold that the court did not abuse
its discretion in awarding a downward deviation for the period of time that the Child was
not in either party’s care.

                                          D. & E.

       Father claims that the court abused its discretion by awarding attorney fees and
claims that the amount awarded was unreasonable and not supported by the record under
the circumstances. He further requests his attorney fees on appeal. Mother claims that
Father waived the issue of reasonableness and the payment schedule imposed by the trial
court. She also claims that the court improperly limited her award of attorney fees at trial
and further requests additional attorney fees on appeal.

       An award of attorney fees in custody and child support cases is made “in the
discretion of [the] court.” Tenn. Code Ann. § 36-5-103(c); see also Huntley v. Huntley,
61 S.W.3d 329, 341 (Tenn. Ct. App. 2001). 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 and child support disputes at trial or on
appeal 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
                                            -9-
          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.). Additionally, Tennessee Code Annotated section 27-1-122 provides
for an award of sanctions in the form of attorney fees on appeal when an appeal is
determined to be frivolous. To find an appeal frivolous, the appeal must be wholly
without merit and lacking in justiciable issues. See Davis v. Gulf Ins. Group, 546 S.W.2d
583, 586 (Tenn. 1977); Indus. Dev. Bd. of Tullahoma v. Hancock, 901 S.W.2d 382, 385
(Tenn. Ct. App. 1995).

       The record reflects that testimony was not presented in support of the request for
attorney fees because Father waived a hearing on the issue. The trial court need not have
“a fully developed record of the nature of the services rendered” before awarding
attorney fees. Kahn v. Kahn, 756 S.W.2d 685, 696 (Tenn. 1988); Coleman v. Coleman,
No. W2011-00585-COA-R3-CV, 2015 WL 479830, at *11 (Tenn. Ct. App. Feb. 4,
2015). Indeed,

          a trial judge may fix the fees of lawyers in causes pending or which have
          been determined by the court, with or without expert testimony of lawyers
          and with or without a prima facie showing by plaintiffs of what a
          reasonable fee would be.

Kahn, 756 S.W2d at 696 (quoting Wilson Mgmt. Co. v. Star Distribs., 745 S.W2d 870,
873 (Tenn. 1988)). However, the party requesting attorney fees must, at a minimum,
provide “an affidavit containing the attorney’s hourly rate and time spent on the case.”4
Coleman, 2015 WL 479830, at *11 (citing Miller v. Miller, 336 S.W.3d 578, 587 (Tenn.
Ct. App. 2010)). “Should a dispute arise as to the reasonableness of the fee awarded,
then ‘in the absence of any proof on the issue of reasonableness, it is incumbent upon the
[party challenging the fee] to pursue the correction of that error in the trial court by
insisting upon a hearing upon that issue.”’ Kline v. Eyrich, 69 S.W.3d 197, 210 (Tenn.
2002) (quoting Wilson, 745 S.W.2d at 873). Father did not raise the issue of
reasonableness before filing his notice of appeal. Consequently, reversal of the award is
not justified because the record contains no proof that the award of attorney fees was
unreasonable. Id. We affirm the award of attorney fees in deference to the trial court’s

4
    An affidavit of attorney fees was provided as required.
                                                     - 10 -
discretion in such matters. Exercising our discretion, we also respectfully deny each
party’s request for attorney fees on appeal.

                                  V.    CONCLUSION

       We affirm the decision of the trial court and remand for such further proceedings
as may be necessary. Costs of the appeal are taxed equally to the appellee, Suneetha
Irigreddy and to the appellant, Samrat Mitra.

                                                  _________________________________
                                                  JOHN W. McCLARTY, JUDGE




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