IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 6, 2016 Session

NOVE KEPHART, SR. V. DANIELA F. SCHWARZER KEPHART

Appeal from the Chancery Court for Coffee County

No. 2011-CV-249 L. Craig Johnson, Chancellor

No. M2015-02285-COA-R3-CV – Filed October 26, 2016

The father of two children opposes the relocation of the children with their mother from 

middle Tennessee to Harrison, Arkansas. He also contends he is entitled to a child 

support deviation. At trial, testimony revealed that the mother wants to relocate because 

her husband accepted a position in Harrison that resulted in an annual salary increase of 

$20,000, plus a bonus. The mother also testified that she was offered a job in Harrison 

that pays more than her current position. The trial court granted permission to relocate, 

finding that the relocation had a reasonable purpose because the mother and her husband 

would receive a significant increase in annual income and increased opportunities for 

advancement in Arkansas. The trial court also found that relocating would not result in 

serious harm to the children and was not intended to defeat the father‟s visitation. In 

addition, the trial court denied the father‟s request for a child support deviation. The 

father appealed, contending that the court‟s findings about the relocation are erroneous

and that he is entitled to a child support deviation. The evidence supports the trial court‟s 

findings regarding the purpose and nature of the relocation. Additionally, the father is not 

entitled to a child support deviation under the plain language of the regulations. 

Accordingly, we affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and RICHARD H. DINKINS, JJ., joined.

Thompson G. Kirkpatrick, Manchester, Tennessee, for the appellant, Nove Kephart, Sr.

Greg Bennett Perry, Manchester, Tennessee, for the appellee, Daniela F. Schwarzer 

Kephart.
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OPINION

Daniela F. Schwarzer Kephart (“Mother”) and Nove Kephart, Sr. (“Father”) are 

the parents of two minor children. The parties were divorced in 2012 and entered an 

agreed parenting plan that named Mother the primary residential parent. Subsequently, 

Mother met and married James Corty (“Husband”).

In December 2013, Mother obtained a restraining order against Father. The order 

was in place until October 2014 when the parties went to mediation and agreed on a 

modified parenting plan. Under the modified plan, Mother remained the primary 

residential parent with 249 days of residential parenting time while Father had 116 days 

of residential parenting time. Additionally, the modified plan states that Father does not 

have a child support obligation because “[t]he children receive social security payments 

based upon [Father‟s] disability which exceed the amount due under the Tennessee Child 

Support Guidelines . . . .”

In April 2015, Mother notified Father that she intended to relocate to Harrison, 

Arkansas. In response, Father filed a petition in opposition to the relocation. Mother 

answered the petition, alleging that Husband had accepted a position in Harrison 

“resulting in a change of income from approximately $70,000 annually to a current salary 

of $100,000.00.” Mother also alleged that she currently earned $34,000 annually and had 

received a job offer in Harrison with a salary of $50,000.

Trial occurred in August 2015. Mother testified that Husband had worked for 

Baxter Industries in Winchester, Tennessee, until January 2015 when he took a position 

at Pace Industries in Harrison, Arkansas. Mother testified that she lived in Manchester at 

a house that Husband had purchased in September 2014. Mother testified that she and 

Husband began discussing the possibility that Husband would take the job in Arkansas in 

December 2014, about four months after the house was purchased. Mother stated that 

Husband was renting a house in Arkansas and that the Manchester house was currently 

under contract to be sold. Mother also stated that she had “received a formal job offer 

acknowledgement letter” from Pace. Mother testified that this job had a higher salary 

than her current job.

In addition, Mother testified that Father was a good parent and that he had 

exercised all of his parenting time. Mother stated that she received “$600-something per 

child” in monthly payments based on Father‟s social security disability benefits. 

Husband testified that he currently worked as a “quality manager” at Pace and had 

worked as a “quality engineer” in the past. His base-pay at Pace was $90,000, and he had 

the ability to earn about $9,000 as bonus pay. His base-pay at his previous job had been 

$70,000. Husband also testified that Pace was a growing company that made a broad 
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range of products. Husband stated that he had the potential for career advancement at 

Pace.

The parties stipulated that there were quality engineer jobs available in middle 

Tennessee but did not stipulate that those jobs would provide a similar income or that 

Husband would be a viable candidate for them. Husband stated that he had not looked for 

any other jobs in middle Tennessee before he took the job in Arkansas. However, 

Husband also testified that he had not been actively looking for out-of-state jobs either. 

Instead, Pace contacted him because they “had [his] resume on file from three years ago.”

Husband testified that the house he purchased in Manchester was only two blocks 

away from where Father lived. He stated that Father occasionally came over to the house 

and took care of Husband‟s dog in Husband‟s absence. Husband also stated that he had 

discussed the possibility of moving to Harrison with Father and had offered to pay for 

Father to move to Harrison “if he would consider it.”

Father testified that he was actively involved in the lives of his children and had 

not failed to exercise any parenting time. He stated that he did not consider Husband‟s 

offer to move him to Harrison because his son from a previous marriage was graduating 

from high school and he was busy with other family matters. Father‟s only income was 

$1,200 per month in social security. He stated that he did not have a lot of money and 

could not afford to “meet [Mother] halfway” if she relocated to Arkansas. 

Trish Miller, a licensed professional counselor who interviewed and performed 

assessments on the children, opined that relocation would cause the children emotional 

harm. She stated that it “could be” traumatic for the children to move to Arkansas with 

Mother. However, she also testified that it “could be” traumatic for the children if they 

remained with Father and Mother moved to Arkansas. According to Ms. Miller, 

allocating parenting time so that the children could spend time with both parents would 

reduce the trauma of relocation.

Ms. Miller further opined that there was “a high percentage” that both children had 

been exposed to some kind of “sexual behaviors that are not normal for their age group.” 

Ms. Miller stated that this exposure was not necessarily the result of criminal conduct and 

could not say how the exposure occurred. According to her testimony, the exposure could 

just as easily have happened in Mother‟s or Father‟s home.

The trial court granted Mother permission to relocate, finding that the request to 

relocate had a reasonable purpose because Mother and Husband “will receive a 

significant increase in annual income” as well as “increased opportunities for 

advancement and future income” in Harrison, Arkansas. The trial court also found that 

the relocation was not vindictive and would not “have a detrimental effect on the children 

that arises to the level of severe harm to the children.”
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Father filed a motion to alter or amend that included a request for a deviation from 

the child support guidelines. According to Father‟s motion, each child received $680 per 

month (i.e., $1,360 in total) based on Father‟s social security disability benefit. Because 

his child support obligation was only $345 per month under the child support guidelines, 

Father requested that he receive $1,015 per month, the difference between his child 

support obligation and the total amount of social security disability the children received 

on his account. The trial court denied the request. Father appealed.

STANDARD OF REVIEW

The standard of review of a trial court‟s findings of fact is de novo with a 

presumption that those findings are correct unless the preponderance of the evidence is 

otherwise. Tenn. R. App. P. 13(d); Rawlings v. John Hancock Mut. Life Ins. Co., 78 

S.W.3d 291, 296 (Tenn. Ct. App. 2001). The evidence preponderates against a trial 

court‟s finding of fact when it supports another finding of fact with greater convincing 

effect. See Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); 

The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. 

App. 1999).

The presumption of correctness applies only to the trial court‟s findings of fact, 

not to its conclusions of law. See Hardcastle v. Harris, 170 S.W.3d 67, 79 (Tenn. Ct. 

App. 2004). Accordingly, we review the trial court‟s resolution of legal issues de novo 

without a presumption of correctness. See id.

ANALYSIS

Father argues that the trial court erred by allowing Mother to relocate with the 

children. Father also argues that the trial court erred by failing to grant him a deviation 

from the child support guidelines.

I. RELOCATION

Tennessee‟s parental relocation statute contains two different standards for 

determining whether a parent should be allowed to relocate. See Tenn. Code Ann. 

§ 36-6-108(c)-(d). The appropriate standard depends upon whether the parents are 

actually spending substantially equal intervals of time with the child. See id.; Rutherford 

v. Rutherford, 416 S.W.3d 845, 848-49 (Tenn. Ct. App. 2013) (quoting Lima v. Lima, No. 

W2010-02027-COA-R3-CV, 2011 WL 3445961, at *3 (Tenn. Ct. App. Aug. 9, 2011)). 

Here, it is undisputed that Mother, the parent desiring to relocate, is actually 

spending a substantially greater amount of time with the children than Father. In such 

situations, a presumption in favor of allowing the relocation exists. See Tenn. Code Ann. 
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§ 36-6-108(d)(1); Collins v. Coode, No. M2002-02557-COA-R3-CV, 2004 WL 904097, 

at *2 (Tenn. Ct. App. Apr. 27, 2004) (“Tenn. Code Ann. § 36-6-108 embodies a 

legislatively mandated presumption in favor of a relocating custodial parent who spends 

substantially more time with the child than the non-custodial parent.”). In order to rebut

this presumption, Father must carry the burden of proving that (1) the relocation does not 

have a reasonable purpose; (2) the relocation would pose a threat of specific and serious 

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

or (3) 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 . . . .” Tenn. Code Ann. 

§ 36-6-108(d)(1)(A)-(C).

The trial court found that Father had not proved any of the grounds listed in Tenn. 

Code Ann. § 36-6-108(d)(1). Father contends that the evidence preponderates against the 

trial court‟s findings and that all three grounds are present in this case.

A. Reasonable Purpose

Father contends that the relocation lacked a reasonable purpose because it was 

based on purely financial considerations.

There are no bright-line rules about what constitutes a reasonable purpose for a 

proposed relocation. Redmon v. Redmon, No. W2013-01017-COA-R3-CV, 2014 WL 

1694708, at *5 (Tenn. Ct. App. Apr. 29, 2014). Instead, such determinations “are factintensive and require a thorough examination of the unique circumstances of each case.” 

Id. (quoting Lima, 2011 WL 3445961, at *7) (internal quotation marks omitted). In 

determining whether a reasonable purpose exists, courts must consider both economic 

and non-economic factors. Id. Ultimately, the reasonable purpose “must be a significant 

purpose, substantial when weighed against the gravity of the loss of the noncustodial 

parent‟s ability to fully participate in their children‟s lives in a more meaningful way.” 

Carman v. Carman, No. M2011-01265-COA-R3-CV, 2012 WL 1048600, at *4 (Tenn. 

Ct. App. Mar. 26, 2012) (quoting Webster v. Webster, No. W2005-01288-COA-R3-CV, 

2006 WL 3008019, at *14 (Tenn. Ct. App. Oct. 24, 2006)) (internal quotation marks 

omitted).

“Doubtless, relocation because of a better job opportunity, greater salary, and 

career advancement opportunities, establishes a „reasonable purpose‟ within the meaning 

of the statute.” Redmon, 2014 WL 1694708, at *5 (quoting Rudd v. Gonzales, No. 

M2012-02714-COA-R3-CV, 2014 WL 872816, at *11 (Tenn. Ct. App. Feb. 28, 2014)).

When a parent relocates based on better job prospects, it may be relevant to compare the

parent‟s job offer in the new location with his or her job opportunities in the current 

location. See id. at *7. Relevant factors include “the relative significance of the increase, 

the cost of living in the proposed location compared to the present location, . . . 
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opportunity for career advancement and economic betterment of the family unit.” See id. 

(alteration in original).

As the party opposing relocation, Father had the burden of producing evidence 

from which this comparison could be made. See id. The parties stipulated that there were 

quality engineer jobs available in middle Tennessee but there was no evidence about the 

salary of those jobs or whether Husband would be a viable candidate for them. Although 

there was some evidence about the cost that Husband and Mother were paying for 

housing in both middle Tennessee and Harrison, Arkansas, there was little additional 

evidence about the general cost of living in both locations. Instead, the evidence 

demonstrated that Husband received a significant salary increase at a stable, growing 

company and that there would be opportunities for career advancement in Harrison.

Similarly, Mother testified that the job she was offered in Harrison paid more than the job 

she currently had.

Based on the foregoing, the trial court did not err when it found that the proposed 

relocation had a reasonable purpose.

B. Threat of Specific and Serious Harm

Father contends that Mother‟s proposed relocation poses a threat of specific and 

serious harm based on the testimony of Ms. Miller, the therapist. The entirety of Father‟s 

argument on this point reads as follows:

The Therapist testified that the proposed relocation would have a 

detrimental affect [sic] on the minor child. The Therapist further found that 

the children had been exposed to inappropriate sexual behavior, and there 

had been allegations previously lodged regarding inappropriate sexual 

behavior against [Mother and Husband].

In order to establish this ground, the threat of harm must be “specific and serious” 

and must outweigh “the threat of harm to the child of a change of custody . . . .” See 

Tenn. Code Ann. § 36-6-108(d)(1)(B). Subjecting the children to inappropriate sexual 

behavior would likely qualify as “specific and serious harm.” See, e.g., Tenn. Code Ann. 

§ 36-6-108(d)(2)(C) (stating that specific and serious harm includes situations in which a 

parent wishes to relocate and take up residence with a person who has a history of child 

or domestic abuse). Additionally, specific and serious harm exists when a child relies on 

the non-relocating parent “who provides emotional support, nurturing and development 

such that removal would result in severe emotional detriment to the child.” See Tenn. 

Code Ann. § 36-6-108(d)(2)(D).

Ms. Miller‟s testimony does not support the finding that relocating to Harrison, 

Arkansas, will cause either of these results. Although Ms. Miller testified that the 
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children had been exposed to inappropriate sexual behavior, she was unable to testify 

about how this exposure occurred. Indeed, she could not testify about whether the 

exposure occurred in Father‟s or Mother‟s home. Without any evidence about the source 

of the exposure to inappropriate behavior, there is no factual basis for finding that 

relocating with Mother would subject the children to any inappropriate sexual behavior. 

Similarly, although there is evidence that the children are attached to Father and 

that he provides them with emotional support, there is no evidence that they rely on him 

so heavily that relocation would cause them “severe emotional detriment.” See Mann v. 

Mann, 299 S.W.3d 69, 76 (Tenn. Ct. App. 2009). Ms. Miller‟s testimony that relocation 

would cause “emotional harm” does not amount to evidence that “removal would result 

in severe emotional detriment to the child.” See Tenn. Code Ann. § 36-6-108(d)(2)(D) 

(emphasis added). Indeed, Ms. Miller testified that it “could be” traumatic for the 

children whether they moved to Arkansas with Mother or remained with Father in 

Tennessee. This testimony does not establish that any threat of harm from relocating 

“outweighs the threat of harm to the child of a change of custody . . . .” See Tenn. Code 

Ann. § 36-6-108(d)(1)(B).

As a result, the evidence does not preponderate against the trial court‟s finding that 

relocation will not subject the children to specific and serious harm.

C. Motive for Relocating

Father contends that Mother‟s motive for relocating was vindictive. A parent‟s 

motive for relocation “is „vindictive‟ within the meaning of the statute when „it is 

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

spending less time with the child.‟” Sanko v. Sanko, No. E2014-01816-COA-R3-CV, 

2015 WL 4199204, at *9 (Tenn. Ct. App. June 16, 2015) (quoting Tenn. Code Ann. 

§ 36-6-108(d)(1)(C)), perm. app. denied (Tenn. Nov. 24, 2015). We cannot broaden this 

definition. See id.

As support for his argument, Father relies on the timing of the decision to relocate.

Father notes that the parties were involved in ten months of “very contentious litigation” 

that culminated with the October 2014 modified parenting plan. Father also notes that 

Husband accepted the job in Arkansas only two months after the October 2014 plan was 

entered. 

Without more, the timing of Husband‟s decision does not cause the evidence to 

preponderate against the trial court‟s finding about Mother‟s motive for the proposed 

relocation. Indeed, the evidence at trial demonstrated that Husband purchased a house in

Manchester, Tennessee, in September 2014, only four months before Mother and 

Husband began discussing relocation to Arkansas. If Husband and Mother intended to 

relocate in order to prevent Father from visiting his children, it seems unlikely that 
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Husband would purchase a house only two blocks away from where Father lived. 

Moreover, Husband testified that he was willing to help Father maintain contact with the 

children and that he had offered to pay for Father to move to Harrison. Father confirmed 

that Husband and Mother had offered to help him move but stated that he did not 

consider accepting this offer.

Therefore, the evidence supports the trial court‟s finding that Mother‟s motive for 

relocating was not vindictive.

II. CHILD SUPPORT DEVIATION

Father contends that he is entitled to a child support deviation because the amount 

of federal disability benefits the children receive due to his disability is greater than the 

amount of child support he is required to pay under the child support guidelines. 

As previously stated, Father‟s child support obligation is $345 per month, and the

children receive $1,360 per month in total based on Father‟s social security disability 

benefit. According to the child support guidelines, if the amount of child support due is 

less than the amount of social security benefits the child receives on the obligor‟s account 

then “the child support obligation of that parent is met and no additional child support 

amount must be paid by that parent.” See Tenn. Comp. R. & Reg. 

1240-2-4-.04(3)(a)(5)(iii)(I) (emphasis added). This subsection clearly states that Father 

is not required to pay any additional child support. It does not require or suggest that 

Father might be entitled to retain the difference between his child support obligation and 

the amount of social security benefits his children receive.

Moreover, all deviations from the child support guidelines must serve the best 

interest of the children who are receiving support. See Tenn. Comp. R. & Reg. 

1240-2-4-.07(1)(b), (c)(3). It is difficult to see how the best interests of the children 

would be served by reducing the amount of money they receive, and Father‟s brief does 

not make any argument about how his proposed deviation might do so. Consequently, the 

trial court did not err by denying Father‟s request for a deviation from the child support 

guidelines.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs 

of appeal assessed against Nove Kephart, Sr.

________________________________

FRANK G. CLEMENT, JR., P.J., M.S.