                                                                                          05/22/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              November 14, 2017 Session

             JANA LEA PURVIS v. DENNIS PATRICK PURVIS, II

                  Appeal from the Circuit Court for Bradley County
                    No. V-15-514 Lawrence H. Puckett, Judge


                             No. E2016-02167-COA-R3-CV


In this divorce case, Dennis Patrick Purvis, II (Father) appeals the trial court’s judgment
allowing Jana Lea Purvis (Mother), the primary custodial parent, to relocate to California
with the parties’ two children. The trial court found that Father had physically abused
Mother and emotionally abused her and the children. Mother appeals, challenging,
among other things, the trial court’s order expanding Father’s parenting time. She argues
that he should be limited to the co-parenting time set forth in her proposed parenting plan.
She states that his time should be so limited as mandated by Tenn. Code Ann. § 36-6-
406(a)(2) (2017). We find that the evidence does not preponderate against the trial
court’s findings of abuse. Accordingly, we affirm the trial court’s decision allowing
Mother to move to California. We modify the parenting plan to vacate the trial court’s
decision allowing Father visitation in California for one weekend a month in seven
months. We affirm the trial court’s judgment in all other respects.

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


CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Jerry Hoffer, Cleveland, Tennessee, for the appellant, Dennis Patrick Purvis, II.

Philip M. Jacobs, Cleveland, Tennessee, for the appellee, Jana Lea Purvis.




                                             1
                                            I.

       The parties were married on August 3, 2002. Two daughters, ages nine and five at
time of trial, were born to the marriage. Mother filed for divorce on July 13, 2015. She
alleged that it was in the best interest of the children for her to be named primary
residential parent. She requested the court to allow her to move to Chico, California,
where she grew up and has family support. Mother sought approval of her proposed
parenting plan and an award of spousal support. A five-day trial took place in late 2015.
Twenty-seven witnesses testified. At the end, the trial court orally delivered a
memorandum opinion that was incorporated into its final judgment.

        The trial court considered each of the fifteen factors set forth in Tenn. Code Ann.
§ 36-6-106(a) (2017), making extensive and specific findings of fact pertinent to each
applicable factor, in determining the best interest of the children. The court found that
most factors weighed in favor of Mother, and some weighed equally in both parents’
favor. Mother, and some of her other witnesses, testified that Father had emotionally and
verbally abused her and the children. She further alleged that Father threw a TV remote
control at her in a rage, hitting her in the face, which caused bruising and a black eye.
The trial court credited her testimony and discredited Father’s testimony. Mother was
designated primary residential parent and given permission to move to California, a move
the trial court found to be in the best interest of the children.

       At the end of the trial, the court stated it was adopting Mother’s proposed
parenting plan. Father filed a post-trial motion requesting the trial court to increase his
parenting time. On March 8, 2016, a hearing apparently took place on that motion. No
transcript of the hearing is in the record. In its final judgment, the trial court adopted
Mother’s proposed parenting plan but modified it to give Father additional parenting
time, including the entire summer vacation instead of roughly half, and every spring
break instead of alternating spring breaks between the parties. The trial court declined to
award Mother spousal support. Father timely filed a notice of appeal.

                                            II.

       Father raises the issue of whether the trial court erred in allowing Mother to
relocate to California with the children. Mother raises these issues:

              Whether the trial court erred in expanding Father’s parenting
              time from her proposed parenting plan, rather than limiting it
              after a finding of abuse as required by Tenn. Code Ann. § 36-
              6-406(a)(2).

                                            2
                Whether the trial court erred in declining to order Father to
                pay spousal support.

                Whether Father’s appeal is frivolous.1

                                                    III.

                                                     A.

       A trial court’s decision regarding a parenting schedule is subject to review under
the deferential abuse of discretion standard. C.W.H. v. L.A.S., 538 S.W.3d 488, 495
(Tenn. 2017). As the Supreme Court observed in C.W.H.,

                This Court has previously emphasized the limited scope of
                review to be employed by an appellate court in reviewing a
                trial court’s factual determinations in matters involving child
                custody and parenting plan developments. Armbrister [v.
                Armbrister], 414 S.W.3d [685], 692-93 [(Tenn. 2013]. . . .
                Indeed, trial courts are in a better position to observe the
                witnesses and assess their credibility; therefore, trial courts
                enjoy broad discretion in formulating parenting plans. Id. at
                693 (citing Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn.
                Ct. App. 2007)). “Thus, determining the details of parenting
                plans is ‘peculiarly within the broad discretion of the trial
                judge.’ ” Id. (quoting Suttles v. Suttles, 748 S.W.2d 427, 429
                (Tenn. 1988)). Appellate courts should not overturn a trial
                court’s decision merely because reasonable minds could reach
                a different conclusion. Eldridge v. Eldridge, 42 S.W.3d 82,
                85 (Tenn. 2001).

Id. (emphasis in original).

        The parties agree that because the trial court made an initial custody determination
in this divorce action, the parental relocation statute does not apply in this case. Tenn.
Code Ann. § 36-6-108 (stating that the statute applies “[a]fter custody or co-parenting has

        1
           Mother also includes this issue in her brief: “whether the trial court erred and abused its
discretion by requiring the Mother to be responsible for travel expenses associated with the Father’s co-
parenting time.” In their briefs, both parties state that the trial court issued such an order. But it is
nowhere to be found in the record before us. “It is well-settled that a trial court speaks through its written
orders.” Williams v. City of Burns, 465 S.W.3d 96, 119 (Tenn. 2015). There is no indication in the
record that Mother was, or should be, required to pay Father’s travel expenses.
                                                     3
been established by the entry of a permanent parenting plan or final order” (emphasis
added)); see Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799,
at *3 n.3 (Tenn. Ct. App., filed Feb. 22, 2013) (parental relocation statute “has been held
inapplicable in cases where the trial court is making an initial custody decision or
parenting arrangement”), and cases cited therein. “Instead, a best interest analysis
applies, and the court should consider the proposed relocation of the parent when making
its best interest analysis.” Id.

       The governing statute, Tenn. Code Ann. § 36-6-106, provides as follows, in
pertinent part:

              (a) In a suit for annulment, divorce, separate maintenance, or
              in any other proceeding requiring the court to make a custody
              determination regarding a minor child, the determination shall
              be made on the basis of the best interest of the child. In
              taking into account the child’s best interest, the court shall
              order a custody arrangement that permits both parents to
              enjoy the maximum participation possible in the life of the
              child consistent with the factors set out in this subsection (a),
              the location of the residences of the parents, the child’s need
              for stability and all other relevant factors. The court shall
              consider all relevant factors, including the following, where
              applicable:

              (1) The strength, nature, and stability of the child’s
              relationship with each parent, including whether one (1)
              parent has performed the majority of parenting
              responsibilities relating to the daily needs of the child;

              (2) Each parent’s or caregiver’s past and potential for future
              performance of parenting responsibilities, including the
              willingness and ability of each of the parents and caregivers
              to facilitate and encourage a close and continuing parent-child
              relationship between the child and both of the child’s parents,
              consistent with the best interest of the child. . . . ;

              (3) Refusal to attend a court ordered parent education seminar
              may be considered by the court as a lack of good faith effort
              in these proceedings;



                                             4
(4) The disposition of each parent to provide the child with
food, clothing, medical care, education and other necessary
care;

(5) The degree to which a parent has been the primary
caregiver, defined as the parent who has taken the greater
responsibility for performing parental responsibilities;

(6) The love, affection, and emotional ties existing between
each parent and the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each
parent as it relates to their ability to parent the child. . . . ;

(9) The child’s interaction and interrelationships with
siblings, other relatives and step-relatives, and mentors, as
well as the child’s involvement with the child’s physical
surroundings, school, or other significant activities;

(10) The importance of continuity in the child’s life and the
length of time the child has lived in a stable, satisfactory
environment;

(11) Evidence of physical or emotional abuse to the child, to
the other parent or to any other person. The court shall,
where appropriate, refer any issues of abuse to juvenile court
for further proceedings;

(12) The character and behavior of any other person who
resides in or frequents the home of a parent and such person’s
interactions with the child;

(13) The reasonable preference of the child if twelve (12)
years of age or older. The court may hear the preference of a
younger child upon request. The preference of older children
should normally be given greater weight than those of
younger children;



                                5
              (14) Each parent’s employment schedule, and the court may
              make accommodations consistent with those schedules; and

              (15) Any other factors deemed relevant by the court.

       The trial court found that Mother was the primary caregiver of the children during
the marriage, “operat[ing] in that role and tak[ing] a greater responsibility for performing
parenting responsibilities.” The court, expressly finding Mother to be an “exemplary,
outstanding person,” stated the following:

              I think protecting the child[ren’s] intellectual and moral
              development is something that certainly I would think ‒ at
              this point I think the father’s deficient in and the mother’s
              superior in.

Mother testified at length about Father’s abuse ‒ the one incident of physical abuse, and
emotional and verbal abuse, including Father’s attempt to isolate her from her family and
friends in the community. Father denied her allegations. Regarding the trial court’s
assessments of the parties’ credibility, it found as follows:

              I have absolutely no reason not to believe the mother. And I
              do believe her and I credit her on the material matters in this
              case against any conflicting testimony by the father or by his
              sister or by his niece.

                                    *      *       *

              Again, there is lots in this record that goes against the
              credibility of the father in this case. Just a lot of things. Even
              from his own witnesses that were supposed to be here to
              support him.

                                    *      *       *

              I credit what [Mother] says about Mr. Purvis’s lack of
              truthfulness. Many times he’s lied in her presence.

       Among the reasons for finding the move to California to be in the children’s best
interest, the trial court found that Mother had a family support system there, and that her
relationships with church and community members in Cleveland had been undermined by
Father, leaving her with little support. In this vein, the court found:
                                               6
The problem I see in this case is the father’s treatment of the
mother with other people, third parties, convincing them that
‒ either that she was on drugs or she had an affair or
something like that and then these children being in those
environments. To me that’s a very significant concern for the
welfare of these children.

                     *      *       *

Two positions that we’ve got here is that basically the mother
has been isolated from her relationships at Lee [University]
and also at the church because people have taken sides.
That’s just obvious[] in this proof.

                     *      *       *

And here’s a real problem. Because of the reaction of the
father here, there ‒ she lost all of her support system. Even
her counselor at the beginning, Ms. Lemmert. She just
doesn’t have it here and I think that she needs it because of
my finding that she’s been a victim of domestic ‒ emotional
abuse and domestic violence in this incident.

                     *      *       *

So I do believe that she really believes, as she said, that
California is best for the children because she has an extended
family there. There’s a loving community there for her and
the children. And so let me add to that. Her move to
California would be for good reason in light of the domestic
violence too so she can obtain an adequate support group for
her as the victim of domestic violence. And it’s best for her
children also because of the [e]ffect of the domestic abuse on
them.

And, of course, the family connections. Really they don’t
have any connections. The father’s family is just his sister
and his niece here in Tennessee and the rest of his family is in
Ohio. So the real family connections are more available
elsewhere.
                                7
The evidence does not preponderate against these findings of the trial court.

       At the end of trial, the court stated that it was adopting Mother’s proposed
parenting plan, which provided Father 80 days of parenting time. Specifically, the
parenting plan allowed Father one weekend every month in September, October,
November, January, February, April, and May; every fall break; alternating Thanksgiving
and spring breaks; approximately ten days of the Christmas or winter break; and roughly
half, or four weeks, of the children’s summer vacation. In its final judgment, the trial
court provided as follows:

              the Court adopts Exhibit 15, Mother’s proposed Permanent
              Parenting Plan. . . . After argument on March 8, 2016, the
              parenting plan is modified to show that Father would have the
              following co-parenting times in addition to what is already
              stated in the plan to insure the minimum of eighty (80) days
              per year:

              a) Every Spring Break ‒ 7 days

              b) Every Fall/Thanksgiving Break ‒ 7 days

              c) Christmas Break ‒ 8-10 days

              d) Summer ‒ 8 weeks (56 days); Father’s time shall be
              continuous 8 weeks.

       On appeal, Mother argues that the trial court erred in expanding Father’s parenting
time after making its findings of domestic abuse. Mother relies on Tenn. Code Ann. §
36-6-406(a), which provides, in pertinent part:

              a parent’s residential time as provided in the permanent
              parenting plan or temporary parenting plan shall be limited if
              it is determined by the court, based upon a prior order or other
              reliable evidence, that a parent has engaged in any of the
              following conduct:

                                   *      *       *




                                              8
                (2) Physical or sexual abuse or a pattern of emotional abuse
                of the parent, child or of another person living with that child
                as defined in § 36-3-601.2

(Emphasis added.) This Court has interpreted section 406 to be mandatory on several
occasions. Carr v. Carr, No. M2017-00556-COA-R3-CV, 2018 WL 1137109, at *6
(Tenn. Ct. App., filed Mar. 1, 2018) (“section 36-6-406(a)(2) embodies a statutory
mandate”); Jacobsen v. Jacobsen, No. M2012-01845-COA-R3-CV, 2013 WL 1400618,
at *1, *6 (Tenn. Ct. App., filed Apr. 5, 2013) (section 406(a) “mandates that a parent’s
parenting time shall be limited if the parent is found to have engaged in abuse”); Beyer v.
Beyer, 428 S.W.3d 59, 71 (Tenn. Ct. App. 2013); In re Emma E., No. M2008-02212-
COA-R3-JV, 2010 WL 565630, at *7 (Tenn. Ct. App., filed Feb. 17, 2010) (“[i]f the
court determined that Father physically, sexually, or emotionally abused Mother, it would
have been bound to limit Father’s parenting time to some degree”); Burden v. Burden,
250 S.W.3d 899, 913 (Tenn. Ct. App. 2007). The Supreme Court has likewise indicated
that a finding of abuse under section 406(a) “necessitates limiting the parent’s residential
time with the child.” Armbrister v. Armbrister, 414 S.W.3d 685, 696 (Tenn. 2013)
(emphasis added).

      With this principle in mind, we examine the trial court’s factual findings of abuse.
The court found as follows in pertinent part:

                I credit [Mother’s] testimony that [Father] snapped in a rage
                and picked up the remote control and threw it at her face and
                she went to the bedroom. That he wasn’t holding the remote
                to begin with, he picked it up.

                                        *       *        *

                I’ve granted her a divorce because I credited that she didn’t
                feel safe. He’s not a good example for her children. There’s
                no signs of change. She could not any longer accept his
                treatment of her. That he attempted to intimidate her.
                Yelling, breaking things and punching things. A lamp on the
                lamp stand. Punched a hole in the wall I think or door. He
                doesn’t like to be questioned or disagreed with, which I think
                is sustained by the record.


        2
           Tenn. Code Ann. § 36-6-601 defines “abuse,” in pertinent part, as “inflicting, or attempting to
inflict, physical injury on an adult or minor by other than accidental means, placing an adult or minor in
fear of physical harm, physical restraint, malicious damage to the personal property of the abused party.”
                                                      9
                     *       *        *

[Father] called her things like stupid, idiot and you don’t
know about money and the “B” word and that she never
called him names or tried to hurt his feelings. I credit that.

                     *       *        *

Not only did he say his family didn’t want to ‒ didn’t love her
but they didn’t want to help her. And I credit that she’s
observed the children many times scared of him. And then
his comment, “well, good. They should be scared of me.” I
credit that.

                     *       *        *

I believe there’s emotional abuse here on top of domestic
violence. I think there’s emotional abuse by the father here.
You don’t go around putting holes in the walls and throwing
pictures of family members when you’re mad and breaking
things and then throwing things at your wife when you get
angry. You just don’t do those things. And then the way he
interacted with his child. . . . I think the father’s treatment of
the mother and his conduct is operative in this difficulty for
this child so there is some evidence of physical and emotional
abuse to the other parent and even to these children.

                     *       *        *

Children who are emotionally abused or even physically
abused still can love their parent. This is not a new or
unusual phenomenon. But the question is what’s in the best
interest of these children and between these two parents.

She does question his emotional fitness and I believe she has
grounds for doing that based on her observation and he needs
to get physically fit so he can do things with them. But I
credit her testimony about the emotional abuse . . . The [elder
daughter] is having some physical manifestations of some
emotional turmoil so I believe that the father’s conduct is
affecting this child.
                                 10
As can be seen, the trial court’s findings regarding Father’s abuse are detailed, extensive,
and unambiguous. Based on our review of the over 1,400 pages of testimony in the
transcript, we find the evidence does not preponderate against those findings. Under the
circumstances of this case, we believe Tenn. Code Ann. § 36-6-406(a)(2) mandates that
Father’s parenting time be limited. Accordingly, we vacate the trial court’s judgment so
as to delete Father’s co-parenting time of one weekend per month in September, October,
November, January, February, April, and May. Given Father’s financial situation and the
distance involved, we doubt that this change will, as a practical matter, have any real
effect. With this modification, we hold that the trial court did not abuse its discretion in
its judgment regarding the co-parenting time allotted to each party.

                                            B.

      Mother argues that the trial court erred in declining to award her spousal support.
Our standard of review of the trial court’s spousal support decision is as stated by the
Supreme Court:

              For well over a century, Tennessee law has recognized that
              trial courts should be accorded wide discretion in determining
              matters of spousal support. This well-established principle
              still holds true today, with this Court repeatedly and recently
              observing that trial courts have broad discretion to determine
              whether spousal support is needed and, if so, the nature,
              amount, and duration of the award.

              Equally well-established is the proposition that a trial court’s
              decision regarding spousal support is factually driven and
              involves the careful balancing of many factors. Kinard v.
              Kinard, 986 S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also
              Burlew, 40 S.W.3d at 470; Robertson v. Robertson, 76
              S.W.3d 337, 340–41 (Tenn. 2002). As a result, “[a]ppellate
              courts are generally disinclined to second-guess a trial judge’s
              spousal support decision.” Kinard, 986 S.W.2d at 234.
              Rather, “[t]he role of an appellate court in reviewing an award
              of spousal support is to determine whether the trial court
              applied the correct legal standard and reached a decision that
              is not clearly unreasonable.” Broadbent v. Broadbent, 211
              S.W.3d 216, 220 (Tenn. 2006). Appellate courts decline to
              second-guess a trial court’s decision absent an abuse of
              discretion. Robertson, 76 S.W.3d at 343. An abuse of
                                            11
             discretion occurs when the trial court causes an injustice by
             applying an incorrect legal standard, reaches an illogical
             result, resolves the case on a clearly erroneous assessment of
             the evidence, or relies on reasoning that causes an injustice.
             Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn.
             2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn.
             2010). This standard does not permit an appellate court to
             substitute its judgment for that of the trial court, but “
             ‘reflects an awareness that the decision being reviewed
             involved a choice among several acceptable alternatives,’ and
             thus ‘envisions a less rigorous review of the lower court’s
             decision and a decreased likelihood that the decision will be
             reversed on appeal.’ ” Henderson, 318 S.W.3d at 335
             (quoting Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524
             (Tenn. 2010)). Consequently, when reviewing a discretionary
             decision by the trial court, such as an alimony determination,
             the appellate court should presume that the decision is correct
             and should review the evidence in the light most favorable to
             the decision.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-06 (Tenn. 2011) (internal citations and
footnote omitted).

       A trial court’s award of spousal support is governed by Tenn. Code Ann. § 36–5–
121(i) (2017), which provides:

             In determining whether the granting of an order for payment
             of support and maintenance to a party is appropriate, and in
             determining the nature, amount, length of term, and manner
             of payment, the court shall consider all relevant factors,
             including:

             (1) The relative earning capacity, obligations, needs, and
             financial resources of each party, including income from
             pension, profit sharing or retirement plans and all other
             sources;

             (2) The relative education and training of each party, the
             ability and opportunity of each party to secure such education
             and training, and the necessity of a party to secure further

                                           12
             education and training to improve such party’s earnings
             capacity to a reasonable level;

             (3) The duration of the marriage;

             (4) The age and mental condition of each party;

             (5) The physical condition of each party, including, but not
             limited to, physical disability or incapacity due to a chronic
             debilitating disease;

             (6) The extent to which it would be undesirable for a party to
             seek employment outside the home, because such party will
             be custodian of a minor child of the marriage;

             (7) The separate assets of each party, both real and personal,
             tangible and intangible;

             (8) The provisions made with regard to the marital property,
             as defined in § 36–4–121;

             (9) The standard of living of the parties established during the
             marriage;

             (10) The extent to which each party has made such tangible
             and intangible contributions to the marriage as monetary and
             homemaker contributions, and tangible and intangible
             contributions by a party to the education, training or increased
             earning power of the other party;

             (11) The relative fault of the parties, in cases where the court,
             in its discretion, deems it appropriate to do so; and

             (12) Such other factors, including the tax consequences to
             each party, as are necessary to consider the equities between
             the parties.

       The parties’ marriage lasted around thirteen years. Father’s monthly gross income
was established at $5,250 for child support calculation purposes. Mother worked as a
schoolteacher for the early part of the marriage, then stayed at home with the children.
She has a master’s degree in teaching and is licensed to teach Spanish in Tennessee. At
                                            13
the time of trial, she expected soon to get her license to teach English as well. Mother
testified that she accepted a job offer to teach at Bradley High School before trial, in the
event that she was required to stay in Tennessee. The salary was $42,500, which is the
amount of income imputed to her by the trial court to calculate child support. Father’s
child support payment was set at $549 per month. Mother testified that she “had no
doubt” she would be able to get a teaching job in California. Her father had also offered
her a job in California.

       Mother’s affidavit of income and expenses estimates her total expenses in
California to be $3,875 per month. The trial court, recognizing Mother’s excellent
employment history, hard work, and marketable skills, opined that “she will not have any
problems getting a job in California.” Father was awarded the marital residence and
ordered to pay Mother one-half the equity in the house, an amount of $20,185.50.
Considering Mother’s earning capacity and the $549 per month child support, we cannot
say that the trial court abused its discretion in declining to award her spousal support.

       Finally, Mother argues that Father’s appeal is frivolous. Considering only the
issue Father raised, the question of whether his appeal is frivolous is arguably a close
one. Exercising our discretion, we do not hold this appeal to be frivolous.

                                            IV.

       The judgment of the trial court is affirmed as modified. Costs on appeal are
assessed to the appellant, Dennis Patrick Purvis, II. The case is remanded to the trial
court with instructions to adjust the parenting plan proposed by Mother as provided in
this opinion.




                                          _______________________________
                                          CHARLES D. SUSANO, JR., JUDGE




                                            14
