IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 18, 2016 Session

CHERYL ELLEN MOUTON v. MICHAEL J. MOUTON

Appeal from the Circuit Court for Hamilton County

No. 13-D-351 W. Neil Thomas, III, Judge

___________________________________

No. E2016-00231-COA-R3-CV-FILED-NOVEMBER 16, 2016

___________________________________

In this parental relocation case, the trial court erred in finding that the mother did not 

have a reasonable purpose in relocating to another state for her employment. 

Furthermore, mother‟s purpose in relocating was not vindictive. Therefore, the judgment 

of the trial court is reversed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

ANDY D. BENNETT, J., delivered the opinion of the court, in which CHARLES D. SUSANO,

JR. , J., and THOMAS R. FRIERSON, II, J., joined.

Bill W. Pemerton, Chattanooga, Tennessee, for the appellant, Cheryl Ellen Mouton.

Steven Mark Jacoway, Chattanooga, Tennessee, for the appellee, Michael J. Mouton.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Michael J. Mouton (“Father”) and Cheryl Ellen Mouton (“Mother”) were married 

in Colorado in 2005 and moved from Littleton, Colorado to Chattanooga, Tennessee in 

2011. They had two children, Zoe and Triston, ages fifteen and seven, respectively, at 

the time of trial. Zoe was the child of Father from a prior marriage and Mother adopted 

her. About six months after moving to Chattanooga, the parties separated, and Mother 

filed for divorce on February 5, 2013.

The parties were divorced by final decree entered on May 26, 2015. The 

permanent parenting plan provided that Father was the primary residential parent for Zoe 
- 2 -

with 280 days of parenting time per year and that Mother was the primary residential 

parent for Triston with 280 days of parenting time per year. Because the parents had 

“relatively equal annual incomes” and each was the primary residential parent of one 

child, the trial court did not order either to pay child support. 

Mother worked for Healthgrades in Chattanooga as Director of Client 

Development at an annual salary of $80,000. In June 2015, she lost her job at 

Healthgrades. In a letter dated August 12, 2015, Mother notified Father of her intention 

to relocate to Littleton, Colorado with Triston. Mother stated that she had been offered a 

job as Director of Marketing and Consulting with Ethos in Denver. She anticipated that 

she would also be offered a job in Denver with HCA as Vice President of Quality and 

Performance Measures and with E2 Optics as a business development strategist. The 

move would also allow Mother to be close to her family. 

Father filed a petition in opposition to Mother‟s removal of the child, for 

modification of the primary residential parent, and for contempt on September 10, 2015. 

Nevertheless, Mother moved to Colorado with Triston on or about September 18, 2015. 

On October 23, 2015, the trial court ordered Mother to return Triston to the jurisdiction 

of the court; the court also ordered that the child would remain in the jurisdiction under 

further order of the court. The court entered a second order providing that, if Mother did 

not return Triston to the jurisdiction by 5:00 p.m. on October 30, 2015, Father would be 

temporarily designated as the primary residential parent and would take immediate 

physical custody of the child. Mother returned with Triston to Chattanooga as ordered on 

October 30, 2015. 

The case was tried on January 5 and 6, 2015, and there were only three witnesses: 

Father, Mother, and Bill Younkes, Mother‟s prospective employer in Colorado. Father‟s 

proof consisted of one witness, himself. He testified about the history of the parties‟ 

relationship and their interactions concerning the children since the divorce. Father gave 

details about disagreements between the parties regarding visitation. He also testified 

about an order of protection and a criminal warrant Mother obtained against him, both of 

which were ultimately dismissed. Father asserted that Mother frequently would not allow 

him to speak to Triston on the telephone.

When asked what effect he thought it would have on his relationship with Triston 

if the court allowed Mother to relocate to Colorado, Father testified as follows:

A. I just honestly see it as just being impossible. I mean, it is—it‟s been so 

hard to communicate with my son here when they‟re here or—even with 

court orders. And it‟s just—even when they move—go away, like she left 

and moved four times, I think. Four or five times I spoke to him in seven 

weeks I think it was. I mean, that‟s just—that‟s ridiculous. And even me 

not getting him for Christmas and there‟s a court order. . . . 
- 3 -

Q. What—how will it affect his contact or relationship with his sister, Zoe?

A. In the same way, you know, because the only time we get to speak with 

him is when he calls, you know. That‟s it. And who knows when that is. 

We text, please have Triston call me, please have Triston call me, please 

have Triston call me, please have Triston call me, you know. And nothing. 

. . . Obviously, I want to see my son and I‟m just not able to or 

communicate with him. And, I mean, I‟m his father, you know. 

Father opined that the cost of living in Denver, Colorado was “definitely higher” 

than the cost of living in Chattanooga. According to his research, the cost of living was 

31% higher in Denver than in Chattanooga. At the time of trial, Mother‟s parents lived in 

Colorado Springs, and her brother also lived in Colorado. Father‟s sister and her family 

lived in Atlanta, and Father stated that Triston enjoyed seeing his cousins in Atlanta 

(three boys aged nine, thirteen, and fourteen) once a month. The rest of Father‟s family 

lived in Louisiana and Texas. Triston‟s maternal great-grandmother and her family lived 

in Chattanooga. 

On cross-examination, Father was asked about Mother‟s stated purpose of 

relocating for a job:

Q. . . . And when I asked you in deposition regarding the reasonable 

purpose for Ms. Mouton‟s move, you had not looked at any job 

opportunities that may be available to Ms. Mouton; did you?

A. No.

Q. And you did not do any research on the job market regarding Ms. 

Mouton‟s skills, experience, or background; correct?

A. Correct.

Q. In fact, you did no research on the job market with regards to anything 

Ms. Mouton may or may not have been able to do in terms of employment; 

correct?

A. In Colorado? 

Q. In the Chattanooga area.

A. Oh, yes.

Q. You did?

A. No, no. I did not.

Q. And I asked you specifically in deposition . . . you have not done any 

research or looked at any job listings or have any proof that there are 

opportunities available in this area that would fit Ms. Mouton‟s background 

and expertise?

Answer: No, besides her saying yesterday that there were some.

Question: But you yourself have no proof?

Answer: I have no proof.

A. Right.
- 4 -

. . . .

Q. And as you sit here today, you still have no proof that there are 

opportunities that exist for Ms. Mouton in this areas [sic] in terms of jobs; 

right?

A. Right.

Father was further questioned regarding his allegation that Mother‟s purpose in 

moving was vindictive. He acknowledged that Mother‟s reason for not allowing Triston 

to have overnights was that Father‟s girlfriend/fiancée was spending the night, contrary to 

the terms of the permanent parenting plan. Father admitted that, in her deposition 

testimony, Mother stated that she had no intention of depriving him of any days of 

parenting time with Triston, only to “reshuffle” them to make it possible for her to 

relocate and that Father could spend even more time with Triston if he came to Colorado 

to vacation with him. Father then testified:

A. I don‟t think monetary [regarding the expense of traveling] is the issue. 

I think repetitive time, frequent time with my son is the issue and the value 

of what my concern is. I think seeing my son physically for two weeks in 

the summer or three weeks in the summer cannot compare to being with 

him every week. There is so much lost there that I‟m not willing to lose.

Q. But you would agree with me that you would be able to exercise the 

same or more days under Ms. Mouton‟s plan; correct?

A. The way it is now with how she is allowing? No, I don‟t agree with 

you. She doesn‟t allow time here. How—and when she moved away, I 

didn‟t get to see him. So I don‟t think—I‟m not going to agree with you. 

Father later testified that he questioned Mother‟s motives:

I don‟t think Triston‟s mental wellbeing is intact right now. I think he‟s 

being manipulated, being coerced, being lied to. I think he‟s being 

sheltered from me, pulled away from me and his sister. I don‟t think that‟s 

good parenting.

At the end of Father‟s proof, Mother moved to dismiss, asserting that Father had 

failed to meet his burden of proving that Mother‟s proposed relocation was not for a 

reasonable purpose, Tenn. Code Ann. § 36-6-108(d)(1)(A), or that Mother‟s motive for 

relocation was vindictive. Tenn. Code Ann. § 36-6-108(d)(1)(C).1 The trial court 

decided to exercise its discretion under Tenn. R. Civ. P. 41.02(2) to defer its decision 

until it had heard all of the evidence.

 

1

Father conceded that there was no evidence of a “threat of specific and serious harm to 

the child.” Tenn. Code Ann. § 36-6-108(d)(1)(B). 
- 5 -

Mother then put on her proof, beginning with her own testimony. She described 

the interactions between the parties regarding Triston and stated that Father often asked 

for last-minute changes in the parenting schedule. Mother testified that she decided to 

relocate to Colorado because she lost her job at Healthgrades due to an executive 

turnover. Once she knew that she was going to lose her job, in December 2014, she 

began looking for another job in Chattanooga and the North Atlanta area in business 

development, medical device sales, and hospital administration. Mother testified that she 

applied for hundreds of jobs; she also enlisted recruiters to help her. She did not get any 

offers within her field of expertise. She did get an offer from ADS Security at a salary of 

$45,000 a year, significantly less than she was earning at Healthgrades.

At the same time that she received the ADS Security offer, Mother received an 

offer to work at VITAL Marketing in Colorado as the Director of Marketing at a base 

salary of $60,000 to $80,000. She also started having conversations with Bill Younkes,

whom she knew from his former position as the CEO of a company in Colorado at which 

she had worked. He was an entrepreneur who had started a number of companies. 

Mother described the opportunity with Mr. Younkes as follows:

A. We‟re starting three different companies. One is Mentis Health 

Partners, which is an LLC. And then underneath that, we have a nonprofit, 

which is the Coalition for Sepsis Survival. And then another one I can‟t 

say yet because we haven‟t got all the trademarks on it yet. But it‟s health 

care, and it‟s in development of a coalition across the sepsis mortality rates 

within the State of Colorado. And then we‟re going state by state. We‟re 

working with different legislations. We‟re putting together different 

business models of bringing the hospitals—the hospital associations 

together, the different CMS and regulatory agencies as well to help 

decrease sepsis mortality rates across each state.

Q. So sounds like it‟s in your business development field.

A. Absolutely, yes, sir. And my expert knowledge around, you now, 

sepsis and quality initiatives and working with CMS in my previous roles.

Mother admitted that she had not yet made any money but had been volunteering her 

time to do the research necessary to write a grant proposal and other projects necessary to 

get the enterprise off the ground. Under the anticipated pay structure, she would make a 

base salary of $150,000 to $175,000 per year. Mother testified that the team working on 

this project had secured some funding from private investors and corporate sponsorships. 

She knew they had in excess of a million dollars to date. 

Mother testified that, when she first moved back to Colorado, she worked for 

VITAL Marketing, but she was unable to keep that position because she had to move 

back to Chattanooga in compliance with a court order. When asked to compare the cost 

of living in Littleton, Colorado and Chattanooga, Tennessee, Mother stated that “Littleton 
- 6 -

is a little bit more expensive just because it is Colorado.” 

Mother also offered the testimony of Bill Younkes, the entrepreneur who started 

the commercial company and the nonprofit organization for which Mother had been 

volunteering her time. Mr. Younkes testified that Mother “has been assisting me in 

developing the sales and marketing plan” for both entities. He stated that Mother would 

become a partner-employee in the commercial company beginning at the beginning of 

February. He estimated that her base salary would be $60,000 to $70,000 a year with the 

opportunity to earn double that amount through bonuses. Mr. Younkes stated that 

Mother‟s position would be finalized in the next week or two. Mother would also have 

some type of equity interest in the company.

Decision of Trial Court

In a memorandum and order filed on January 11, 2016, the trial court focused 

upon the lack of experience of Ms. Mouton‟s prospective employer “in the proposed line 

of business: consulting services to hospital patients in connection with reducing their 

morbidity percentage at medical institutions through the prevention of sepsis.” Based 

upon the totality of the evidence, including all of the evidence concerning Ms. Mouton‟s 

prospective employer, the trial court could not “find a reasonable basis for the move.”

On the issue of vindictiveness, the trial court found that the proof showed that 

Mother had “always encouraged the relationship between Triston and his father and that 

there certainly is no pattern by [Mother] unreasonably to disrupt or refuse any parenting 

time that [Father] was entitled to.” The trial court concluded that “vindictiveness was not 

the motivating factor for the move.”

The court proceeded to the best interest analysis and determined that it was not in 

Triston‟s best interest to move with Mother to Colorado. Father‟s petition opposing 

Mother‟s request to relocate with the minor child was granted. 

On appeal, Mother asserts that the trial court erred (1) in finding no reasonable 

purpose for her proposed relocation; (2) in concluding that the proposed relocation was 

not in Triston‟s best interest; and (3) in denying her motion to dismiss Father‟s petition at 

the close of his proof. Father argues that the trial court erred in failing to find that 

Mother‟s motive in relocating was vindictive. Mother further requests that this Court 

award her reasonable attorney fees on appeal.

STANDARD OF REVIEW

 We review the trial court‟s findings of fact de novo with a presumption of 

correctness unless the preponderance of the evidence is otherwise. TENN. R. APP. P.

13(d). We give great weight to the trial court‟s credibility determinations because the 
- 7 -

trial court is in the best position to assess witnesses‟ demeanor. C & W Asset Acquisition, 

LLC v. Oggs, 230 S.W.3d 671, 676 (Tenn. Ct. App. 2007); Robinson v. Robinson, No.

M2003-02289-COA-R3-CV, 2005 WL 1541861, at *2 (Tenn. Ct. App. June 30, 2005). 

Questions of law are reviewed de novo with no presumption of correctness. Nelson v. 

Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999). 

ANALYSIS

Parent relocations often create wrenching situations: one parent loses regular 

parenting time with the child(ren) as a result of the other parent‟s move. This Court has 

previously stated:

“One of the most common post-divorce flashpoints occurs when the 

primary residential parent decides to move with his or her child or children 

to another city or state. The farther the move, the more intense the 

opposition because of the move‟s effect on visitation and the ability of the 

other parent to foster and maintain an appropriate relationship with his or 

her child or children.” 

Rudd v. Gonzalez, No. M2012-02714-COA-R3-CV, 2014 WL 872816, at *7 (Tenn. Ct. 

App. Feb. 28, 2014) (quoting Collins v. Coode, No. M2002-02557-COA-R3-CV, 2004 

WL 904097, at *2 (Tenn. Ct. App. Apr. 27, 2004)). 

Our legislature has created a statutory framework to address parental relocation. 

See Tenn. Code Ann. § 36-6-108. The appropriate analysis depends upon the relative 

amount of time the parents spend with the child(ren). In the present case, Mother spends

substantially more time with Triston than does Father; therefore, the applicable statutory 

provision is Tenn. Code Ann. § 36-6-108(d)(1):

If the parents are not actually 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, the other parent may, within thirty 

(30) days of receipt of the notice, file a petition in opposition to removal of 

the child. The other parent may not attempt to relocate with the child unless 

expressly authorized to do so by the court pursuant to a change of custody 

or primary custodial responsibility. The parent spending the greater amount 

of time with the child shall be permitted to relocate with the child unless 

the court finds:

(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 
- 8 -

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

the parent spending less time with the child.

(Emphasis added). Thus, if the parents do not spend substantially equal intervals of time 

with the child, there is “„a legislatively mandated presumption in favor of [the] relocating 

custodial parent . . . .‟” Redmon v. Redmon, No. W2013-01017-COA-R3-CV, 2014 WL 

1694708, at *5 (Tenn. Ct. App. Apr. 29, 2014) (quoting Collins, 2004 WL 904097, at 

*2). The burden is on the parent opposing the relocation to prove one of the three 

statutory grounds. See Clark v. Clark, No. M2002-03071-COA-R3-CV, 2003 WL 

23094000, at *3 (Tenn. Ct. App. Dec. 30, 2003). If the opposing parent fails to do so, the 

court must allow the relocation. Tenn. Code Ann. § 36-1-108(d)(1).

Reasonable purpose

In this case, then, we must determine whether the trial court erred in finding that 

Father met his burden of proof to establish that Mother‟s proposed relocation was not for 

a reasonable purpose. 

Determinations of “whether a proposed move has a reasonable purpose are factintensive and require a thorough examination of the unique circumstances of each case.” 

In re Spencer E., No. M2009-02572-COA-R3-JV, 2011 WL 295896, at *11 (Tenn. Ct. 

App. Jan. 20, 2011); see also Rudd, 2014 WL 872816, at *11. As we have consistently 

held, “a salary increase and career advancement opportunities „can be a factual predicate 

to constitute a reasonable purpose for relocation.‟” Webb v. Webb, No. E2008-00862-

COA-R3-CV, 2009 WL 348362, at *2 (Tenn. Ct. App. Feb. 11, 2009) (quoting Roberts v. 

Roberts, No. E2005-01175-COA-R3-CV, 2005 WL 2860199, at *6 (Tenn. Ct. App. Oct. 

31, 2005)). We have also stated, however, that there must be more than “a mere hope or 

belief of a better opportunity or a salary increase.” Id. Other pertinent economic factors 

include “the relative significance of the [salary] increase, the cost of living in the 

proposed location compared to the present location, the firmness of the job offer, 

opportunity for career advancement and economic betterment of the family unit.” Slaton 

v. Ray, No. M2004-01809-COA-R3-CV, 2005 WL 2756076, at *3 (Tenn. Ct. App. Oct. 

24, 2005). 

 

In finding no reasonable purpose, the trial court focused almost exclusively upon 

Mother‟s prospective employer, reasoning that the courts impose an implicit 

“requirement that there be some certainty with respect to the entity making the offer of 

employment.” The trial court found that Mr. Younkes had no experience in the particular 

type of business being developed, namely “consulting services to hospital patients in 

connection with reducing their morbidity percentage at medical institutions through the 

prevention of sepsis.” While commending the objective of the company as “promising,” 

the trial court expressed concern that “there are as yet no results with which to gauge its 

prospects.” Similarly, although the salary projections for Mother of $60,000 to $150,000 
- 9 -

(with bonuses) were “potentially lucrative; there was no certainty with respect to the 

ability of the entity to eventually make that payment.”

As stated above, Mother‟s job prospects must be more than “a mere hope or 

belief.” Webb, 2009 WL 348362, at *2. They need not, however, be an absolute

certainty. Contrary to the reasoning of the trial court, we find that Mother‟s opportunity 

with Mr. Younkes was not speculative or uncertain enough to justify the trial court‟s 

decision. Mr. Younkes had experience with start-up companies and had already 

contributed substantial capital and raised additional capital for the venture at issue. 

Moreover, Mother had developed other job opportunities in Colorado. She was offered a 

job with Ethos as Director of Marketing and Consulting but had to decline the offer 

because of this litigation. She began a job with VITAL Marketing but lost the job 

because she was under a court order to return Triston to Chattanooga. There is no 

evidence to suggest Mother could not find other such opportunities in Colorado if 

necessary. Mother testified that the only job she found in the Chattanooga area 

(including North Atlanta), out of the hundreds of jobs for which she applied, was a job at 

ADS Security paying $45,000 a year. Mother testified that the cost of living in Littleton, 

Colorado was only slightly higher than the cost of living in Chattanooga. 

This case is similar to Redmon v. Redmon, 2014 WL 1694708, at *6-7, in which

the mother found a job in another state and the father produced no evidence of jobs in the 

home county. The court in Redmon stated:

[C]omparison of Mother‟s job opportunities in the McNairy County area to 

Mother‟s job offer in Oxford [Mississippi] is relevant to the question of 

whether her proposed relocation is for a reasonable purpose. . . . As the 

party with the burden of proving lack of reasonable purpose, however, the 

onus was on Father to produce evidence from which such a comparison 

could be made. Mother testified that nurse practitioner job positions 

available in the general McNairy County and Jackson, Tennessee areas 

were not suitable for her, that they were either temporary positions or 

included requirements she did not meet. In response, Father proffered only 

his own testimony criticizing Mother for not applying for nurse practitioner 

positions near McNairy County and speculating that “surely” there were 

such nurse practitioner jobs available in his area. This does not suffice to 

meet his burden of proving that Mother‟s proposed relocation does not have 

a reasonable purpose.

Redmon, 2014 WL 1694708, at * 7 (footnote omitted). The Redmon court concluded that 

the evidence preponderated against the trial court‟s finding that the proposed relocation 

did not have a reasonable purpose. Id. 

In this case, Father did not produce any evidence of jobs available for Mother in 
- 10 -

the Chattanooga area. Father failed to prove that Mother‟s proposed relocation to 

Colorado for job opportunities was not for a reasonable purpose. We conclude that the 

trial court erred in finding that Mother‟s relocation was not for a reasonable purpose. 

Vindictive Motive

 Under Tenn. Code Ann. § 36-6-108(d)(1)(C), a parent‟s motive for relocation is 

considered vindictive if the move “is intended to defeat or deter visitation rights of the 

non-custodial parent or the parent spending less time with the child.” We must determine 

whether the evidence preponderates against the trial court‟s finding that “vindictiveness 

was not the motivating factor for the move.” We interpret this finding to mean that 

Mother‟s move was not intended to defeat or deter Father‟s parenting time with Triston.

Credibility is a crucial factor with respect to the trial court‟s determination 

regarding vindictiveness. Father testified to instances where he believed that Mother was 

attempting to keep him from seeing Triston and asserted that, if allowed to move, Mother 

would continue to attempt to minimize his time with Triston. Mother denied any intent to 

deny Father parenting time with Triston and proposed a parenting plan under which 

Father would have eighty days of parenting time with Triston a year, with additional time 

if Father wanted to come to Colorado. The trial court concluded that Mother “has always 

encouraged the relationship between Triston and his father and that there certainly is no 

pattern by [Mother] unreasonably to disrupt or refuse any parenting time that [Father] 

was entitled to.” The trial court further stated: “Satisfactory explanations were given to 

the Court with respect to any misunderstandings between the parties regarding time spent 

with Triston by his father.” The court gave the following examples:

[Father] claimed that he was not given time with Triston this Christmas. In 

fact, [Mother] offered [Father] the opportunity to spend Christmas time 

with Triston on December 20 at the home of his fiancée, but [Father] 

indicated that he would be working and the festivities at his fiancée‟s home 

would occur after it was necessary for Triston to return to his mother to be 

able to fly to Denver, Colorado on a 5:00 a.m. flight the next morning. 

Likewise, with respect to the end of the Christmas [vacation], there was 

confusion as to whether [Father] would be in Chattanooga on the exchange 

date, since he indicated to [Mother] that he would be in Louisiana at least 

until 7:00 p.m. on December 27, the exchange date. 

In light of the trial court‟s crediting of Mother‟s testimony, we conclude that the 

evidence does not preponderate against the trial court‟s finding that Mother‟s motive in 

moving was not vindictive. 

Because we have determined that Father failed to prove any of the grounds 

required under Tenn. Code Ann. § 36-6-108(d)(1) to prevent Mother‟s relocation, we 
- 11 -

need not address Mother‟s arguments regarding best interests or her motion to dismiss. 

Attorney fees

Mother further requests that this Court award her attorney fees pursuant to Tenn. 

Code Ann. § 36-6-108(i), which provides: “Either parent in a parental relocation matter 

may recover reasonable attorney fees and other litigation expenses from the other parent 

in the discretion of the court.” We decline to award Mother attorney fees for this appeal.

CONCLUSION

The judgment of the trial court is reversed and the case is remanded for further 

proceedings consistent with this opinion. Costs of the appeal are assessed against the 

appellee, Michael J. Mouton, and execution may issue if necessary. 

__________________________

ANDY D. BENNETT, JUDGE