                                                                                                  03/06/2020
                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                      November 6, 2019 Session

               WAFA BADAWI HINDIYEH v. WALEED FAWZI ABED

                   Appeal from the Chancery Court for Rutherford County
                         No. 16CV-802      J. Mark Rogers, Judge
                          ___________________________________

                                  No. M2018-01581-COA-R3-CV
                              ___________________________________


This is the second appeal of a parenting plan. In the first appeal, Father successfully
challenged the adoption of a plan that allocated him only 80 days parenting time; the case
was remanded with instructions for the trial court to increase Father’s parenting time.
Following a hearing, the trial court adopted Father’s proposed parenting plan which
granted the parties equal parenting time, and in so doing, addressed other matters.
Mother appeals. We affirm the award of equal parenting time and the adjustment to child
support and income tax deductions that necessarily followed; we modify the plan to
include certain provisions that were in the previous parenting plan.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and CARMA DENNIS MCGEE, J., joined.

Karla C. Miller, Nashville, Tennessee, for the appellant, Wafa Badawi Hindiyeh.

Charles G. Ward, Murfreesboro, Tennessee, for the appellee, Waleed Fawzi Abed.

                                     MEMORANDUM OPINION1


1
    Rule 10 of the Rules of the Court of Appeals states:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
       This divorce and child custody case comes before us a second time. The first
appeal focused on the classification of a marital asset and the court’s residential parenting
time determination, with its ancillary considerations of child support and daycare
expenses. The trial court had named the Mother, Wafa Hindiyeh, as primary residential
parent and granted her 285 days of parenting time with the parties’ son. The Father,
Waleed Abed, who received 80 days of parenting time, appealed; this Court affirmed the
majority of the trial court’s decision, vacated the parenting schedule, and remanded the
case, holding:

               Given the Trial Court’s findings, it is puzzling why the Trial Court
       entered a permanent parenting plan granting Husband only 80 days of
       parenting time with the Child per year to Wife’s 285. In short, the
       permanent parenting plan entered by the Trial Court contradicts the Trial
       Court’s own favorable findings regarding Husband. The evidence does not
       preponderate against these findings. Husband’s late work schedule in itself
       does not justify such a minimal award of parenting time. Given the
       evidence in the record on appeal, the Trial Court’s own findings, and the
       statutory goal of maximum participation for both parents in the life of the
       child, the Trial Court erred in granting Husband only 80 days per year with
       the Child. We, therefore, vacate the Trial Court’s judgment as it relates to
       the residential schedule of the permanent parenting plan and remand for the
       Trial Court to award Husband significantly more time with the Child to
       comply with our General Assembly’s mandate that the custody
       arrangement provides for both parents to have the maximum participation
       in their child’s life as consistent with all relevant factors. On remand, the
       Trial Court is not required to award precisely equal time to both parents,
       and we do not disturb the Trial Court’s designation of Wife as primary
       residential parent.

Hindiyeh v. Abed, No. M2017-00410-COA-R3-CV, 2018 WL 1953213, at *10 (Tenn. Ct.
App. Apr. 25, 2018).

        Pursuant to the remand order, the trial court held a hearing, at which the parties
presented argument and advocated the proposed parenting plans that had been introduced
at the original trial of the case. The trial court subsequently entered an order adopting the
equal parenting time provision in Father’s proposed plan, under which, inter alia,
Father’s child support obligation was decreased from $852 per month to $194 per month.
In addition, the plan replaced provisions in the prior plan with respect to the holiday and
summer vacation schedule, transportation arrangements, decision making authority, the
allocation of the federal income tax exemption; ordered that Mother’s residence would
determine the school zone for the child; and eliminated a section titled “Other,” which
dealt with issues such as overseas travel, along with several other standard provisions.
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       Mother appeals, contending that the court exceeded the scope of the remand by
ordering equal parenting time without making additional findings that it was in the
child’s best interest to do so. Mother also complains that certain provisions of the
original which were not disturbed by the ruling in the prior appeal were not included in
the new plan.

        In the first opinion, we affirmed the trial court’s factual determinations, vacated
the residential schedule, and remanded the case for the trial court to increase Father’s
parenting time; after hearing from the parties, the court awarded the parties equal
parenting time. As noted earlier, the factual findings the court made in the original
decree were affirmed in the first appeal, and the parties did not introduce additional proof
on remand. We see no abuse of discretion in the court’s decision to award Father equal
parenting time. The same facts which led us to conclude that Father’s time should be
increased support the equal parenting time ordered by the court; contrary to Mother’s
argument, it was not necessary for the court to make additional findings of fact, including
a best interest determination, in complying with this court’s mandate.

       The increase in Father’s parenting time necessitated a modification of his child
support obligation and the allocation of the federal income tax exemption. Mother does
not contest the amount of child support ordered, and we affirm the order in that regard.

       While Mother had been allocated the exemption in the original parenting plan, the
new plan provided that the parents would alternate years in claiming the child on their tax
returns. Mother does not specifically argue that the court erred in ordering this provision,
but includes the change in the allocation of the tax exemption in a list of differences
between the original plan and the new plan.

       A trial court’s “‘decisions with regard to the allocation of exemptions for minor
children are discretionary and should rest on facts of the particular case.’” Id. (citation
omitted).

        The court did not state why it ordered that Father could claim the tax exemption in
alternating years. Where the court does not make written findings explaining its
allocation of income tax exemptions, we examine the record to determine if there is
justification for alternating the exemption between the parties. Smith v. Smith, No.
M2006-01390-COA-R3-CV, 2010 WL 288758, at *6 (Tenn. Ct. App. Jan. 25, 2010). On
the record presented, we do not conclude that the provision is inequitable or that the court
abused its discretion in this regard. As in Smith,2 both parents are exercising similar

2
  In Smith, the father, who earned significantly more income, was named the primary residential parent of
the parties’ two children; the mother was ordered to pay child support. Smith, 2010 WL 288758, at *2.
The court divided the tax exemptions between the parties, allowing each parent to claim a tax deduction
                                                  -3-
amounts of time with the child and both must maintain a residence for the child. In this
case, the parties have relatively similar incomes, and the allocation is consistent with the
fact that the parties share equal parenting time. Accordingly we affirm the trial court’s
decision to allow the parties to alternate years in which they claim the child on their tax
return.

       With respect to the provisions of the original parenting plan beyond the parenting
time, child support, and the federal tax exemption provisions that were altered when the
court adopted the new plan, the court did not explain and we discern no justification for
these changes; accordingly, we modify the new plan to reinstate section I of the former
plan, which was approved in the first appeal.3



for one child, and this Court affirmed that decision as equitable, holding that “Mother’s lesser income, her
child support obligation, and her other economic responsibilities for the children warrant the award to her
of the tax deduction for one child.” Id. at *6.
3
  In her brief, Mother identifies the following specific provisions which were not contained in the new
plan and which are reinstated:

        I. OTHER:

        The following special provisions apply:

              1. Father is not to take the minor child overseas without the Mother’s consent.

              2. Mother will coordinate with Father in order to obtain a passport for the minor
      child. Once the passport is received, the Mother will keep the minor child’s passport in her
      possession.

                 1. PRIORITIES UNDER THE RESIDENTIAL SCHEDULE: In the event a
        holiday parenting period (listed above in Subsection C) conflicts with a vacation period
        (listed below in Subsections D, E, F and G), then the holiday period (Subsection C) will
        take precedence over the vacation period. Holiday visitation (Subsection C) and vacation
        periods (Subsections D, E, F and G) take precedence over day-to-day visitation
        (Subsection B). This provision is to be followed unless otherwise agreed between the
        parties.
                 2. MODIFICATIONS: The parties are aware that modifications of the parenting
        schedule may be done at any and all times that BOTH parties may agree. The parties are
        aware that modifications of the parenting plan may be needed in the future to address
        issues of graduations, deaths, remarriages, reunions, etc. Requests of one party to modify
        a parenting schedule shall not be unreasonably withheld so long as said parent is being
        offered a comparable period of time.
                 3. MEANS TO CONTACT THE OTHER PARENT AND CHILD: Each party
        has the right to know the address and phone number of the other parent at all times. Each
        parent shall keep the other informed at all times as to his or her current residence address
        and phone number and that of the child. If a parent or child obtains an e-mail address,
        said address should be given to the other parent.
                                                   -4-
      In light of our resolution of the issues raised and in our discretion, we decline to
award either party their fees on appeal.

       In conclusion, we affirm the trial court’s award of equal parenting time to the
parties, the modification to the child support award and the order that the income tax
exemption be alternated between the parties; we modify the parenting plan to reinstate
section I of the previous plan.




                                                         RICHARD H. DINKINS, JUDGE




                4. USE OF PARENTAL NAMES: All parental names such “mom,” “dad,”
        “mommy,” “daddy,” “mother,” “father,” shall be reserved exclusively for the natural
        parents during their lifetime.
                5. ACTIVITIES: Neither parent will schedule activities for the child during the
        other parent’s scheduled parenting time without the other parent’s prior agreement.
                6. CONSENT: If a parent does not obtain the required consent of the other parent
        to a decision requiring JOINT consent, or makes a decision without the consent of the
        other parent he or she may be subjected to civil or criminal penalties.
                7. EXTRACURRICULAR ACTIVITIES: The Mother will be the decision
        making authority for all extracurricular activities. Any and all costs or expenses incurred
        involving the minor child’s extracurricular activities shall be paid by the Mother. This
        includes any fees, dues, or end-of-year parties and trophies. Furthermore, if the parties
        agree to the extracurricular activity, the parties agree to be responsible for getting the
        minor child to said games and practices during their parenting time.

In addition, and upon our review of both plans, there are several provisions that are included in the new
plan that were not in the old plan or that were different, e.g., the change in the place of exchange of the
child and addition of the times for the Thanksgiving holiday; inasmuch as Mother does not make a
specific argument as to those items, we do not address them. See Tenn. R. App. P. 27(a)((7).
                                                   -5-
