IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 7, 2017 Session

IN RE BLAKE A., ET AL.

Appeal from the Juvenile Court for Montgomery County

No. MCJVPLCV110004197000 Timothy K. Barnes, Judge

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No. M2016-01621-COA-R10-JV

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The parents of two children adopted a parenting plan in which Mother was designated the 

primary residential parent and parenting time was split equally; a special provision in the 

parenting plan prevented either parent from relocating with the children without the other 

parent’s permission. Mother subsequently informed Father of her intent to relocate to 

another state with the children. In response, Father filed a petition in opposition to 

removal and to modify the parenting plan. The court denied Mother’s relocation, holding 

that the provision in the parenting plan superseded the application of the parental 

relocation statute; the court further determined that the parties were spending 

substantially equal time with the children and that relocation was not in the children’s 

best interest. Mother appeals. We conclude that the court erred in holding that the 

provision in the parenting plan prevented Mother from relocating; that the court did not 

make sufficient findings of fact to support its holding that the parents were spending 

substantially equal time with the children; and that the finding that relocation is not in the 

best interest of the children is supported by the evidence. Accordingly, we reverse the 

judgment in part, affirm in part, and remand the case for further proceedings. 

Tenn. R. App. P. 10 for an Extraordinary Appeal; Judgment of the Juvenile Court

Reversed in Part and Affirmed in Part; Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which W. NEAL 

MCBRAYER, J., joined. FRANK G. CLEMENT, JR., P.J., M.S., not participating.

Christopher J. Pittman and Zachary L. Talbot, Clarksville, Tennessee, for the appellant, 

Jessica Lynne Long.

Mark R. Olson and Taylor R. Dahl, Clarksville Tennessee, for the appellee, Luther E. 

Anderson.

07/19/2018
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OPINION

Jessica Long (“Mother”) and Luther Anderson (“Father”) are the parents of a 

thirteen-year-old son and eleven-year-old daughter. Mother and Father have resided with 

each other on and off for the majority of the children’s lives; they separated in 2011. In 

September of 2011, Father filed a petition to legitimate the children, to determine a 

permanent parenting plan, and to enjoin Mother from relocating outside of Montgomery 

County with the children; a restraining order was entered barring Mother from relocating

with the children. In October, the court awarded temporary custody of the children to 

Father pending final adjudication of the petition.

On January 22, 2014, a final order adopting a Permanent Parenting Plan was 

entered. Mother was designated as primary residential parent and awarded 183 days, and 

Father was awarded 182 days. In the “Notice Regarding Parental Relocation” section of 

the order, in addition to the language required by Tennessee Code Annotated section 36-

6-108, the parents agreed to the following terms: 

(1) Neither parent shall have the right to move out of Montgomery County, 

Tennessee with the children unless agreed by both parents. 

(2) If either party allows the other to move out of Montgomery County, 

Tennessee then the children have the right to choose which parent they 

would like to live with as the primary parent.

(3) The parent who decides to move out of Montgomery County, Tennessee 

shall be responsible for all cost involved with visiting the children.

On July 10, 2014, Mother served Father with a Notice of Intent to Relocate to 

Ohio with the children, pursuant to Tennessee Code Annotated section 36-6-108(a). 

Father filed a petition pursuant to section 36-6-108(c) opposing the relocation, requesting 

that relocation be denied or, alternatively, that he be named the primary residential 

parent. Father later amended the petition, asserting that a material change of 

circumstances had arisen since the adoption of the original parenting plan and seeking to 

modify the plan by, inter alia, designating him primary residential parent. At the time of 

the events leading to this appeal, neither the petition opposing the relocation to Ohio nor 

the request to modify the parenting plan had been resolved. 

Thereafter Mother sent Father a notice expressing her intent to relocate with the 

children to Texas with her new husband; Father filed a petition on January 21, 2016, 

opposing relocation and seeking to modify the permanent parenting plan. In support of 

the proposed modification, Father alleged that a material change in circumstance had 

occurred since the entry of the parenting plan; he requested that he be named the primary 

residential parent and the parenting time with the children adjusted. The court set a 

hearing on Father’s petition for May 18. 
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Prior to the taking of proof, the court and counsel discussed the effect of the 

above-quoted provision in the parenting plan on the issues to be heard; following the 

discussion, the court adjourned the hearing and took the matter under advisement. On 

July 27 the court entered an order holding that “there is no case law or statutory authority 

to ignore the prior agreement entered into by and between the parties,” and “the more 

specific language of the parties, adopted as set forth herein, supersedes the language of 

the Tennessee Parental Rights Relocation Act, which makes the findings under the 

Tennessee Parental Relocation Act unnecessary in this case.” The court declined to 

consider Father’s petition to modify the parenting schedule “until such time as the parties 

have participated in mediation,” continued the appointment of the Guardian ad litem, and 

declined to certify the order as final pursuant to Tennessee Rule of Civil Procedure 54.02.

A final hearing was set for September 29. 

Mother filed an application for extraordinary appeal pursuant to Rule 10 of the 

Tennessee Rules of Appellate Procedure; the question Mother presented for review was 

“[w]hether the Juvenile Court erred in denying [Mother’s] relocation with the parties’ 

children on the ground that the agreement not to relocate in the parties’ parenting plan 

supersedes the Parental Relocation Statute at Tenn. Code Ann. § 36-6-108.” The 

application was granted on September 1, 2016. In the order granting the application, we 

did not stay the hearing scheduled for September 29, and requested that the trial court 

make additional findings concerning whether relocation would be permitted if we 

determined in the appeal that the Parental Relocation Statute applied.

The final hearing took place on September 29, and October 11 and 14, 2016. The 

court heard testimony from both parents, the children’s stepfather, the daughter’s school 

counselor and riding instructor, the son’s baseball and football coaches, and the guardian 

ad litem. On November 9 the court entered a final order, holding that Mother could not 

relocate the children and would remain the primary residential parent; Mother was given 

183 days parenting time and Father 182 days. The order also provided that the children 

would be exchanged on a week-on, week-off basis and would attend school in the 

Father’s district, with Father being able to enroll the children in private school at his 

expense. All other decisions were to be made jointly. Mother appeals, contending that 

the court erred in holding that the provisions of the parenting plan superseded the 

relocation statute and in preventing her from relocating with the children. 

A. STANDARD OF REVIEW

We review a trial court’s factual findings de novo, accompanied by a presumption 

of the correctness of the findings of fact, unless the preponderance of the evidence is 

otherwise. Tenn. R. App. P. 13(d); see Boarman v. Jaynes, 109 S.W.3d 286, 289–90 

(Tenn. 2003). For the evidence to preponderate against a trial court’s findings of fact, it 

must support another finding of fact with greater convincing effect. Walker v. Sidney 

Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); Realty Shop, Inc. v. R.R. 

Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). We will also give 
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great weight to a trial court’s factual findings that rest on determinations of credibility 

and the weight of oral testimony. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.

1997); Woodward v. Woodward, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007); B & G 

Constr., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn. Ct. App. 2000). No presumption of 

correctness attaches to the trial court’s conclusions of law and our review is de novo. 

Blair v. Brownson, 197 S.W.3d 681, 683 (Tenn. 2006).

B. WHETHER THE AGREEMENT IN THE PARENTING PLAN SUPERSEDES THE 

RELOCATION STATUTE

Tennessee Code Annotated section 36-6-108 governs relocation of parents whose 

children are subject to a parenting plan. In order to give the other parent ample notice of 

his or her intention to move as well as the opportunity to object, the statute sets out a 

procedure that the parent who intends to relocate must follow and establishes the 

standards for a court to apply when ruling on a request to relocate, depending upon the 

amount of residential parenting time each parent exercises. Mother argues that the trial 

court erred in holding that the agreement superseded section 36-6-108 because the statute 

does not contain a provision allowing for its terms to be waived or otherwise avoided by 

agreement of the parties. She argues that the case of Self v. Self, No. M2014-02295-

COA-R3-CV, 2015 WL 5610657 (Tenn. Ct. App. Sept. 23, 2015), “makes clear that the 

court must apply Tennessee Code Annotated section 36-6-108 regardless of the 

agreement of the parties.”

Self was a parental relocation case in which a mother, who had been designated 

the primary residential parent, attempted to relocate with the children to another county. 

The father opposed the relocation, relying in part on a provision in the parenting plan,

which had been incorporated into the final divorce decree, that stated “if either party 

should relocate from Lincoln County, Tennessee, the children shall reside primarily with 

the party remaining so as to keep the children in the Lincoln County School System.” Id. 

at *2. Based on that provision, the trial court held that the mother was estopped to 

relocate and denied her request. Id. at *1. Pursuant to the mother’s motion, the trial 

court thereafter conducted a best interest analysis and found that relocation was not in the 

children’s best interest; it denied relocation on that basis. Id. On appeal, we reversed the 

trial court’s holding that the mother was estopped from relocating because of the 

provision in the parenting plan; we affirmed the denial of relocation on the basis that 

relocation was not in the children’s best interest. Id. at *4, *9. In reaching the holding 

that the provision did not prevent the mother from relocating, we reasoned that the 

agreement lost its contractual nature when it was merged into the final decree, thereby 

becoming subject to “the continuing statutory power of the court to modify its terms 

when changed circumstances justify.” Id. at *4 (quoting Helton v. Helton, No. M2002-

02792-COA-R3-CV, 2004 WL 63478, at *5 (Tenn. Ct. App. January 13, 2004)). 

As in Self, Mother and Father in this case agreed that neither parent would be 

permitted to move away from Clarksville with the children without the other parent’s 
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consent; this agreement was made the order of the court. Father relied on this provision 

in opposing Mother’s relocation, and the trial court concluded that the provision 

superseded the requirements of the relocation statute. We agree with the holding in Self

that parents cannot “bargain away the continuing jurisdiction of the care and custody of 

children.” 2015 WL 5610657 at *4. Contrary to the trial court’s holding, the provision in 

the parenting plan cannot prevent the court from following the procedures set forth in 

section 36-6-108 as it considers the potential change in circumstances caused by 

relocation of one of the parents. 

Accordingly, we reverse the trial court’s determination that the provision in the

parenting plan superseded the relocation statute. 

C. APPLICATION OF THE RELOCATION STATUTE1

Tennessee Code Annotated section 36-6-108(c) applies if the parents are “actually 

spending substantially equal intervals of time with the child.” In that situation, “no 

presumption in favor of or against the request to relocate with the child shall arise.” 

Rather, the court must determine whether to permit relocation on the basis of the best 

interests of the child.

Tennessee Code Annotated section 36-6-108(d) applies if the parents are not 

spending substantially equal intervals of time with the child, and the parent spending the 

greater amount of time with the child proposes to relocate with the child. In that 

situation, the relocation shall be permitted unless the court finds one or more of the 

following factors to exist:

(A) The relocation does not have a reasonable purpose;

(B) The relocation would pose a threat of specific and serious harm to the 

child that outweighs the threat of harm to the child of a change of custody; 

or

(C) The parent’s motive for relocating with the child is vindictive in that it 

is intended to defeat or deter visitation rights of the non-custodial parent or 

the parent spending less time with the child.

Tenn. Code Ann. § 36-6-108(d). If one of the above factors does exist, then the court 

shall determine whether or not to permit relocation of the child based on the best interest 

 

1 The trial court in this case applied, and we utilize in our review, the version of Tennessee Code 

Annotated section 36-6-108 in effect at the time of the hearing in September and October 2016. In 2018, 

section 36-6-108 was amended such that the trial court no longer makes a preliminary determination as to 

whether the parties are spending substantially equal amounts of time with the children in order to proceed 

to determine the best interest of the children under the previous subsection (c) or to invoke the 

presumption in favor of relocation under the previous subsection (d); rather, the court is to perform a best 

interest analysis whenever a petition in opposition to relocation is filed. 2018 Tenn. Pub. Acts, ch. 853, §§ 

1-2, effective July 1, 2018.
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of the child.2Tenn. Code Ann. § 36-6-108(e).

In determining that relocation was not in the children’s best interest, the trial court 

applied section 36-6-108(c). Mother argues that, because the court found that the parties 

“had not exercised substantially equal amounts of time with their children,” the court 

should have applied section 36-6-108(d). Consequently, our resolution of this issue 

begins with a consideration of the court’s determination that parents were actually 

spending substantially equal intervals of time with the children. 

Our Supreme Court explained how to determine the “time actually spent” in 

Kawatra v. Kawatra, 182 S.W.3d 800 (Tenn. 2005), a parental relocation case. In that 

case, using the number of hours that each parent spent with the child in the year 

preceding the hearing, the trial court found that the parents were spending substantially 

equal intervals of time, applied section 36-6-108(c), and denied the primary residential 

parent’s request to relocate. Id. at 803. This court reversed the determination that the 

parties were spending substantially equal time, holding that the trial court erred in 

excluding hours spent in school for the “total time spent”; we held that the parties were 

not spending substantially equal time, applied section 36-6-108(d), and permitted the 

relocation. The Supreme Court affirmed, holding that: 

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 child; and 

4) any other factor that the trial court deems relevant.

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

 

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If the court finds that it is not in the best interest of the child to relocate, but the parent with whom the 

child lives the majority of the time decides to relocate anyway, then the court is authorized to make a new 

custody determination. Tenn. Code Ann. § 36-6-108(e).
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In this case, the court found that the parties have not exercised substantially equal 

amounts of time with the children but also found that “the proof preponderate[s] in favor 

of finding that the Mother willfully, intentionally, and without just cause interfered with 

the Father’s time with the minor children, [and] but for the Mother’s interference, the 

parties would have spent substantially equal amounts of time with the minor children.” 

The parenting plan provides Mother 183 days with the children and Father 182 

days. The court held that the parties were not spending the time specified in the plan, but 

rather that Mother prevented Father from exercising parenting time; the court did not 

make specific findings as to the circumstances of Mother’s interference with Father’s 

time or the amount of “time actually spent” by either parent. 

Mother and Father testified at length regarding the time each spent with the 

children; some of the testimony conflicted. For instance, Mother testified that in the past 

365 days Father had exercised 100 days of parenting time; when asked about Mother’s 

estimate of days, Father testified that he “did not believe that to be true.” The court did 

not address or resolve the conflicting testimony in the Final Order; neither did the court 

make a determination of which parent was the most credible witness. Because the court 

did not make these crucial findings, we cannot determine whether the evidence supports 

or preponderates against the trial court’s finding that “[b]ut for the Mother’s interference 

the parties would have spent substantial equal amounts of time with the minor children.”3 

As a consequence, we cannot determine whether the court was correct in applying section 

36-6-108(c) or whether Mother was entitled to the presumption in favor of relocation at 

section 36-6-108(d). 

For the foregoing reasons, we reverse the judgment and remand the case for the 

trial court to make the necessary findings of fact as to the time spent with the children by 

each parent and, on the basis of such finding, reconsider the court’s application of section 

36-6-108.

D. BEST INTEREST ANALYSIS

Tennessee Code Annotated section 36-6-108(c) requires the court to conduct a 

best interest analysis to determine whether relocation is in the children’s best interest; in 

conducting the analysis, the court is to consider all relevant factors, specifically including 

those found at section 36-6-106(a)(1)-(15). The trial court determined that relocation was 

not in the best interest of the children, making factual findings in that regard. Mother 

 

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“[F]indings of fact are particularly important in cases involving the custody and parenting schedule of 

children,” and without such findings “we are unable to afford appropriate deference to the trial court’s 

decision.” Gooding v. Gooding, 477 S.W.3d 774, 782–83 (Tenn. Ct. App. 2015) (quoting In re Connor 

S.L., No. W2012-00587-COA-R3-JV, 2012 WL 5462839, at *4 (Tenn. Ct. App. Nov. 8, 2012)). 
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does not contest this holding; rather, she contends that the court should have applied 

section 36-3-108(d). 

The determination of the best interest of a child is a factual question, and this 

Court will presume a trial court’s factual findings in this regard to be correct, unless 

evidence preponderates otherwise. In re T.C.D., 261 S.W.3d 734, 742 (Tenn. Ct. App. 

2007). In reviewing a trial court’s judgment, “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.’” Johnson v. 

Johnson, 165 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting Koch v. Koch, 874 

S.W.2d 571, 575 (Tenn. Ct. App. 1993)). 

Upon our review of the record, the evidence does not preponderate against the 

determination that relocation is not in the best interest of the children; the court’s findings 

are supported by the testimony and other evidence in the record. The weight to be given 

this holding is to be determined after the court has made the threshold determination as to 

whether Tennessee Code Annotated section 36-6-108(c) or (d) (2016) applies to Father’s 

petition. 

E. ATTORNEY’S FEES

Father requests an award of his attorney’s fees for this appeal. 

[I]t is in the sole discretion of this court whether to award attorney’s fees on 

appeal. As such, when this Court considers whether to award attorney’s 

fees on appeal, we must be mindful of the ability of the requesting party to 

pay the accrued fees, the requesting party’s success in the appeal, whether 

the requesting party sought the appeal in good faith, and any other equitable 

factor that need be considered.

Spigner v. Spigner, No. E2013-02696-COA-R3-CV, 2014 WL 6882280, at *13 (Tenn. 

Ct. App. Dec. 8, 2014) (citations omitted). Considering the circumstances of this case

and our resolution of the issues, in our discretion, we decline to award fees.

For the foregoing reasons, the judgment of the trial court is reversed in part, and 

affirmed in part; the case is remanded for further proceedings in accordance with this 

opinion. 

RICHARD H. DINKINS, JUDGE