                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                     January 14, 2015 Session

       HEATHER DAWN LYONS HEILIG v. ROBERT TODD HEILIG

                    Appeal from the Circuit Court for Hamilton County
                        No. 09D158     Jacqueline S. Bolton, Judge


                   No. E2014-00586-COA-R3-CV-FILED-JUNE 15, 2015


This is a post-divorce parent relocation case. Robert Todd Heilig (Father) notified
Heather Dawn Lyons Bevil,1 formerly Helig (Mother) of his intent to move with the
parties‟ minor son from Chattanooga to Toccoa, Georgia, about three and a half hours
away, in order to assume new employment. Mother opposed the move and filed a
petition asking the trial court to disallow it. Mother alleged that the parties were
spending substantially equal intervals of time with the child, and that the move was not in
the best interest of the child. The trial court, applying the parent relocation statute, Tenn.
Code Ann. § 36-6-108 (2014), found that Father was spending substantially more time
with the child than Mother, and held that Mother “failed to prove that the relocation does
not have a reasonable purpose, that the relocation would pose a threat of specific and
serious harm to [the child] or that the Father‟s motive is vindictive.” The trial court
allowed Father to relocate with the child. Mother appeals, raising the issue of whether
the trial court erred in its calculation of the parties‟ respective parenting time, and
whether it should have found such time “substantially equal.” We affirm.

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

CHARLES D. SUSANO, JR., C.J., delivered the opinion of the court, in which D. MICHAEL
SWINEY and JOHN W. MCCLARTY, JJ., joined.



        1
          Mother married Paul Christopher Bevil about two and a half years after her divorce from Father.
She indicated her preference for her new surname of Bevil in her testimony at trial. We will honor her
request in this opinion, but the language of the style of this case is established by the original pleading,
i.e., Mother‟s original divorce complaint.

                                                     1
Curtis L. Bowe, III, Chattanooga, Tennessee, for the appellant, Heather Dawn Lyons
Bevil.

Steven M. Jacoway and McKinley S. Lundy, Jr., Chattanooga, Tennessee, for the
appellee, Robert Todd Heilig.

                                       OPINION

                                           I.

        The parties were married on May 30, 1998. They cared for two foster children
during the marriage ‒ Father‟s nephew Timothy (DOB 1/24/00), and Timothy‟s half-
brother Jake (DOB 2/6/02). Before the parties‟ divorce, Father legally adopted the two
boys, but Mother did not. One child, Cameron, was born to the marriage on August 31,
2004. Cameron, Timothy, and Jake have lived together as brothers since Cameron‟s
birth. The parties were divorced on May 6, 2009. The permanent parenting plan (PPP)
initially designated Mother as primary residential parent and provided that each party
would spend 182.5 days with Cameron. The PPP was later amended several times, once
by agreement and once by order of the court, so that at the time of Mother‟s petition
opposing relocation, Father was the primary residential parent with 233 days of parenting
time, and Mother had 132 days according to the PPP.

       Mother filed her petition on November 7, 2013. Father answered, alleging in
pertinent part as follows:

             [P]ursuant to the current Permanent Parenting Plan in place,
             the Mother spends less than thirty-nine (39%) percent of
             parenting days per year with the parties‟ minor son, Cameron
             Heilig. The Father further avers that it is not in their minor
             son‟s best interest to remain in Chattanooga instead of
             relocating with the Father, his stepmother and his two
             stepbrothers . . . to Toccoa, Georgia.

             [T]he Father‟s relocation does have a reasonable purpose in
             that the Father has taken a position as a Pastor of Student
             Ministries at The Pointe Church, a church affiliated with a
             Church of God located in Eastanollee, Georgia. The Father
             took this position after being laid off from his prior
             employment and being unable to obtain any new employment
             in or about the Chattanooga area. Furthermore, the minor
             son‟s relocation with Father, stepmother, and his two
                                           2
             stepbrothers would not cause any specific or serious harm.
             The Father has determined that the local public schools in the
             Toccoa, Stephens County, Georgia area are excellent. There
             are numerous youth sports programs available in that area in
             which the minor son may participate. Finally, the Father is
             not being vindictive in relocating to Toccoa, Georgia,
             particularly as he attempted to obtain alternative employment
             in or about the Chattanooga, Tennessee area and was unable
             to do so.

       A hearing occurred on January 15, 2014. Six persons testified ‒ Mother and
Father, both stepparents, a counselor who had seen Cameron, and the stepfather‟s mother.
The trial court also took Cameron‟s testimony in an in camera hearing. The parties
presented proof pertaining to the twelve-month period immediately preceding Mother‟s
petition. Mother presented evidence showing that she had actually spent 147 days of
parenting time, 15 more than anticipated by the PPP. Mother, on the other hand,
calculated that she had spent a total of 311 hours “parenting” Cameron over the past year,
consisting of time spent volunteering at his school, accompanying him to his sports
teams‟ practices and games, and the like. Mother argued that these 311 hours should be
divided by 8 to yield a total of 38 additional days for which she should be given credit.
Father readily admitted that he had agreed to allow Mother extra parenting days, and he
did not controvert Mother‟s 147-day total for the year, but denied that she should be
given credit for the additional scattered 311 total hours Mother was with Cameron over
the past year, for the purposes of calculating time under the parent relocation statute.

      In its memorandum opinion and order, the trial court ruled in pertinent part as
follows:

             Though disputed, the Court finds that the Father spends
             substantially more time with the child than the Mother[;]
             therefore, the provisions of T.C.A. § 36-6-108(d)(1)(A-C)
             apply.

             First the Court will address the issue which is disputed as to
             substantial intervals of time which Mother claims she has
             more than Father opines. Mother claims that in addition to
             the regular days allowed on the Parenting Plan, she has at
             least 300 more “hours” of time with the child through her
             activities at the ballfield [sic] and at the child‟s school. The
             Tennessee Department of Human Services Guidelines for

                                            3
            calculations of a “day” are delineated in Rule 1240-2-
            4.02(10) of the guidelines.

                   “Days” ‒ For purposes of this chapter, a “day”
                   of parenting time occurs when the child spends
                   more than twelve (12) consecutive hours in a
                   twenty-four (24) hour period under the care,
                   control or direct supervision of one parent or
                   caretaker. The twenty-four (24) hour period
                   need not be the same as a twenty-four (24) hour
                   calendar day.      Accordingly, a “day” of
                   parenting time may encompass either an
                   overnight period or a daytime period, or a
                   combination thereof.

            Therefore, it is logical when determining for visitation
            purposes the definition of a day, the Court needs to look no
            further than the Rule as hereinabove stated.

            [T]hough the Court certainly commends the Mother for her
            extra efforts for the benefit of the parties[‟] child, the Court
            finds that the 300 additional hours do not constitute what
            would be considered a “day” according to the rules of law
            that the Court must apply.

                                 *      *       *

            Mother[] testified she has spent substantially more time with
            the child, Cameron, than contemplated in the Permanent
            Parenting Plan. This is not disputed by Father. He is the one
            who offered Mother the extra time.

                                 *      *       *

            The Court specifically finds that Mother has failed to prove
            that the relocation does not have a reasonable purpose, that
            the relocation would pose a threat of specific and serious
            harm to Cameron or that the Father‟s motive is vindictive.

The trial court ordered that Father be allowed to relocate to Toccoa, Georgia with
Cameron. Mother timely filed a notice of appeal.
                                            4
                                           II.

      Mother raises the following issues, as quoted verbatim from her brief:

             1. [Whether] the Circuit Court erred by failing to apply
             Tennessee law to specifically calculate, compare, and find
             substantially equal parenting time.

             2. [Whether] the Circuit Court erred by failing to determine
             substantially equal parenting time pursuant to Tennessee law
             and then failed to apply the best interest standard.

                                           III.

       In this non-jury case, our standard of review is de novo upon the record of the
proceedings below; however, the record comes to us with a presumption of correctness as
to the trial court‟s factual determinations, a presumption we must honor unless the
evidence preponderates against those findings. Tenn. R. App. P. 13(d); Goddard v.
Goddard, No. E2011-00777-COA-R3-CV, 2012 WL 601183 at *3 (Tenn. Ct. App. E.S.,
filed Feb. 24, 2012); Rudd v. Gonzalez, No. M2012-02714-COA-R3-CV, 2014 WL
872816 at *6 (Tenn. Ct. App. W.S., filed Feb. 28, 2014). “For questions of law, the
standard of review is de novo without a presumption of correctness afforded to the lower
court‟s conclusions of law.” Thorneloe v. Osborne, No. E2012-02004-COA-R3-CV,
2013 WL 4606375 at *2 (Tenn. Ct. App. E.S., filed Aug. 26, 2013); Edgeworth v.
Edgeworth, No. W2006-01813-COA-R3-CV, 2007 WL 2403356 at *5 (Tenn. Ct. App.
W.S., filed Aug. 23, 2007).

       “In applying the de novo standard, we are mindful that „[t]rial 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.‟ ” Aragon v.
Aragon, No. M2013-01962-COA-R3-CV, 2014 WL 1607350 at *4 (Tenn. Ct. App. M.S.,
filed Apr. 21, 2014). “Because [c]ustody and visitation determinations often hinge on
subtle factors, including the parents‟ demeanor and credibility during . . . proceedings,
appellate courts are reluctant to second-guess a trial court‟s decisions.” Lower v. Lower,
No. M2013-02593-COA-R3-CV, 2014 WL 5089346 at *4 (Tenn. Ct. App. W.S., filed
Oct. 8, 2014) (internal quotation marks omitted). As we have observed, “[r]elocation
cases are fact intensive and require an examination of the specific facts related to the
rationale and motives for moving.” Carman v. Carman, No. M2011-01265-COA-R3-
CV, 2012 WL 1048600 at *4 (Tenn. Ct. App. M.S., filed Mar. 26, 2012).



                                            5
                                                  IV.

       The Tennessee parent relocation statute, Tenn. Code Ann. § 36-6-108, controls the
resolution of the issues on this appeal. The Supreme Court construed this statute in
Kawatra v. Kawatra, 182 S.W.3d 800, 802-03 (Tenn. 2005) stating in pertinent part as
follows:

                In 1998, our state legislature enacted Tennessee Code
                Annotated section 36–6–108, which applies when a parent
                seeks to relocate outside the state or more than 100 miles2
                away from the other parent residing within the state. See
                Tenn. Code Ann. § 36–6–108(a) (2001). The statute requires
                the trial court to determine whether the parents are “actually
                spending substantially equal intervals of time with the child.”
                Id. at (c), (d). If the parents are spending substantially equal
                intervals of time with the child, section 36–6–108(c) provides
                that “[n]o presumption in favor of or against the request to
                relocate with the child shall arise.” Instead, the court must
                determine whether relocation of the child is in the child‟s best
                interests. Id. at (c).

                The approach differs if the parents are “not actually spending
                substantially equal intervals of time with the child.” If the
                parent spending the greater amount of time with the child
                seeks to relocate with the child, the court shall permit the
                relocation unless it finds that: 1) the relocation fails to have a
                reasonable purpose; 2) the relocation poses a threat of
                “specific and serious harm” to the child that outweighs the
                threat of harm that a change of custody would pose to the
                child; or 3) the parent has a vindictive motive for relocating.
                Id. at (d)(1)-(3). If one or more of these grounds exist, the
                court shall determine whether relocation is in the child‟s best
                interests. Id. at (e).

“The parent opposing the relocation bears the burden of proof to establish one of these
three grounds, and if he or she fails to do so, the relocation shall be permitted.” Lima v.
Lima, No. W2010-02027-COA-R3-CV, 2011 WL 3445961 at *3 (Tenn. Ct. App. W.S.,
filed Aug. 9, 2011); Redmon v. Redmon, No. W2013-01017-COA-R3-CV, 2014 WL
1694708 at *5 (Tenn. Ct. App. W.S., filed Apr. 29, 2014).
       2
         In 2014, the legislature amended the statute to change “100 miles” to “50 miles.” See 2014 Pub.
Acts Ch. 617. The language of the statute otherwise remains identical.
                                                    6
       Mother testified as follows in support of her argument that the trial court should
find that she and Father were actually spending substantially equal intervals of time with
Cameron:

             Q: Now, you have ‒ what is your visitation by the parenting
             plan? What does it show as being your number of days?

             A: The parenting plan shows 132 days.

             Q: In actuality, say the past year, 2013 ‒ I asked you to look
             through the calendar and count how many actual days you
             had. How many days?

             A: Actual days was 147.

                                  *      *       *

             Q: In addition to those days, what are some activities that
             Cameron does that you‟re involved in?

             A: Cameron is extremely, extremely involved in sports . . .
             As him being involved in a sport, being the mom that I am, I
             have been the team mom on many of those teams, including
             football and baseball, et cetera.

             In addition to his sports and my involvement going to all of
             his practices and all of his games, I‟m also involved in his
             school. At the school I volunteer there regularly, sometimes
             weekly. The classroom mom, I have been first, second, third,
             fourth ‒ excuse me. First grade I was not the classroom
             mom; I just did field trips and volunteered in the classroom.
             And then second through fourth grade I have been the
             classroom mom every year, PTA committee member, go on
             all the field trips, and actually sub in the class.

             Q: So really then it‟s fair to say that you spend a lot more
             time than just 147 days?

             A: Oh, absolutely.

                                             7
             Q: Is this during the daytime when this is going on?

             A: The baseball is during the week and on the weekends, and
             the school is during the week, the weekday. And on your
             sports practices, they‟re always during the week. Typically
             it‟s a Tuesday/Thursday or a Monday/Wednesday type of
             schedule. So I‟m always at the ball field three to four times a
             week during the week with Cameron.

                                  *      *       *

             Q: So considering the fact that the calendar shows you had
             him actually 147 days that were your days ‒

             A: Right.

             Q: ‒ and all of the other times that you had him, do you think
             it works out where you had about 50/50 in ‒

             A: I do. I ran some numbers and looked at hours actually
             spent. You know, for me if I look at as a parent in a 24-hour
             day, you‟re parenting ‒ you‟re working eight hours, you‟re
             sleeping eight hours, and you‟re parenting eight hours. So
             actual face-to-face parenting time, when I calculated the times
             that I was at the ball games and ball practices that [Father]
             doesn‟t come to as often, and then I calculate the time that
             I‟m on field trips with Cameron and actually parenting him
             face-to-face over the last ‒ over the last year, I came up with
             an additional 311 hours of additional parenting time on top of
             my 147.

             So for me I look and say, okay, if a typical parenting day
             really consists of 8 hours, and I just divided 8 into 311. That
             comes up to an additional 38 days that I actually was with
             Cameron parenting on top of my 147.

        This Court has previously addressed the manner in which parenting time is to be
calculated for purposes of determining whether the parents are spending substantially
equal intervals of time with a child. In Clark v. Clark, No. M2002-03071-COA-R3-CV,
2003 WL 23094000 (Tenn. Ct. App. M.S., filed Dec. 30, 2003), the father “contended
that if one calculated the time each parent spent with the children on the basis of waking
                                             8
hours alone, their time would be substantially equal” and “calculated his time on the basis
of the hours between 2:30 or 3:00 p.m. on the days when he picked the children up from
school, and 8:00 p.m. when he returned them to the mother.” Id. at *2, 3. Rejecting this
calculation method, we agreed with the trial court that “it was inappropriate to base its
decision on waking hours alone, because such an analysis discredits the mother‟s
continuing responsibility for the children during the time they are in school, and even
when they are asleep.” Id. at *3. We observed in Clark that “the responsibilities of a
parent do not end when the children go to sleep or when they are in school,” and
concluded that “we see no reason to adopt the „waking hours‟ methodology proposed by
Mr. Clark either as a general principle or for the purposes of this particular case.” Id. at
*5.

      In Helton v. Helton, No. M2002-02792-COA-R3-CV, 2004 WL 63478 at *8
(Tenn. Ct. App. M.S., filed Jan. 13, 2004), the father made an argument similar to
Mother‟s in the present case in that he argued certain blocks of time less than a day
should be calculated as “a day” for purposes of the parent relocation statute:

              To reach the conclusion that he actually spends substantially
              equal time with the child, [father] asks us to count as full days
              those times when he has the child for a portion of the day.
              For example, he argues that on those weekends when he picks
              the child up from school on Friday and returns the child to
              school on Monday morning, he has the child for all or part of
              four days. Applying that method of calculation to the
              visitation schedule, he asserts that he has the child for some
              part or all of 187 days each year. He accordingly contends
              that even though he may have to return Luke to Ms. Buscher
              on some of those days, the schedule amounts to a
              substantially equal sharing of the child by the parties. The
              fallacy with this argument is that if Mr. Helton is entitled to
              claim as full days those days on which he has visitation for
              part of the time, then Ms. Buscher would be similarly entitled
              to claim the portion during which she has custody as a full
              day also. Otherwise, Mr. Helton would receive credit for an
              entire day during which he only had the child for a few hours.
              The result is that the total for both parents would amount to
              more than 365 days per year. We decline to adopt such a
              method of calculation.

       In Collins v. Goode, No. M2002-02557-COA-R3-CV, 2004 WL 904097 at *2
(Tenn. Ct. App. M.S., filed Apr. 27, 2004), the Court, citing Clark and Helton, stated that
                                             9
“[t]his court has consistently declined to approve various „rounding-up‟ theories proposed
by non-residential parents to inflate the amount of time they have spent with their
children.”

      In Kawatra, the Supreme Court addressed this issue, providing the following
guidance:

             Tennessee Code Annotated section 36–6–108 does not define
             what constitutes “actually spending substantially equal
             intervals of time.” We conclude, however, that the time that
             the parties‟ child was attending school should not be used to
             reduce the total number of hours available for computation.
             The responsibilities of a parent do not end when a child is
             asleep, at school or day care, or otherwise outside of the
             parent‟s presence. Furthermore, the use of hours as the sole
             basis for computing the time that each parent spent with the
             child does not provide the trial court with the flexibility
             needed to consider the circumstances of each case. Rather,
             the “time actually spent” with each parent should be
             computed in units of a day. See also Tenn. Comp. R. & Regs.
             1240–2–4–.02(10) (2005) (adopting a definition of “day”
             under the Child Support Guidelines).

             To determine the number of days to credit to each parent for
             purposes of Tennessee Code Annotated section 36–6–108(c)
             and (d), the trial court should first examine the provisions of
             the residential schedule. The trial court should then consider
             additional time each parent spent with the child that is not
             reflected in the residential schedule. If either parent violated
             the terms of the residential schedule by interfering with the
             other parent‟s time with the child, the trial court should make
             any necessary adjustments to reflect the time that the child
             should have been in the care of the other parent. To allocate a
             day to one parent when both parents claim credit for that day,
             the trial court should examine 1) the hours each parent
             actually spent with the child on that day; 2) the activities in
             which each parent engaged with the child; 3) the resources
             the parent expended on the child‟s behalf during that time
             period, including the costs of a meal or any other costs
             directly related to that parent‟s care and supervision of the

                                           10
              child; and 4) any other factor that the trial court deems
              relevant.

182 S.W.3d at 803-04 (footnotes omitted).

        Under these authorities, we must reject Mother‟s proposed calculation method of
parenting time. Like the trial court, we commend Mother for her support of Cameron and
involvement in his school and sports activities. The proof in the record reflects that
Mother has been an excellent parent. But calculating parenting time by lumping together
various scattered hours spent with the child at sports practices or at school, and dividing
the total by 8 under a “waking hours” theory, does not comport with the parent relocation
statute, the Child Support Guidelines‟ definition of “a day,” or case law precedent as
discussed above.

        Mother argues that the trial court erred by failing to find the specific number of
days each parent actually spent with the child. Although this would have been the better
practice, the absence of a specific finding in this regard does not require us to vacate the
court‟s ruling under the circumstances presented here. It is clear from the trial court‟s
order that it properly rejected Mother‟s argument that her estimated 311 hours spent with
Cameron over the course of a year should amount to any additional “days.” Thus, we are
left with the largely undisputed assertion that Mother actually spent 147 days, or 40% of
the time, with the child in the 12 months preceding her petition. The trial court correctly
held that a 60% ‒ 40% split between the parents does not amount to “substantially equal”
parenting time under the relocation statute. See Kawatra, 182 S.W.3d at 804 (split of
37.8% ‒ 62.2% “percentages do not permit us to conclude that the parties spent
substantially equal intervals of time with the child”). “This Court has twice held that a
split of custodial parenting time which approximated 60%-40% was not substantially
equal.” Kawatra v. Kawatra, No. M2003-01855-COA-R3-CV, 2004 WL 1944135 at *5
(Tenn. Ct. App. E.S., filed Feb. 28, 2005) (citing Connell v. Connell, No. 03A01-9808-
CV-00282, 2000 WL 122204, (Tenn. App. E.S., filed Jan. 25, 2000) and Branham v.
Branham, No. E2003-01253-COA-R3-CV, 2004 WL 716729 (Tenn. App. E.S., filed
Apr. 2, 2004, petition to rehear granted May 5, 2004)).

       The trial court also held that Mother “failed to prove that the relocation does not
have a reasonable purpose, that the relocation would pose a threat of specific and serious
harm to [the child] or that the Father‟s motive is vindictive.” Mother has not appealed
these rulings.




                                            11
                                          V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Heather Dawn Lyons Bevil. The case is remanded to the trial court for
enforcement of the trial court‟s judgment and for collection of costs assessed below,
pursuant to applicable law.



                                         _____________________________________
                                         CHARLES D. SUSANO, JR., CHIEF JUDGE




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