### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Mar ch 10 , 20 09 Ses si on

ELI Z ABETH LEANNE HUDSO N v. LARSO N DOUGLAS H UDSON

Appeal f rom the Eighth Circuit Court for Davidson County No. 06D-533 C arol Solom an, Jud ge

No. M2008- 01143-COA-R 3-CV - F iled Novem ber 3, 2009

This case involves an appea l conce rning the reloc ation of Eliz abeth L eanne Hudson (“Mother ”) and her two minor children from Nashville, Tenne ssee, to Hopkinsv i l l e, Kentucky

. L arson Doug las Hudson (“F ather ”) opposed the reloc ation. After a three day bench trial, the tri al court g rante d Mother’s reque st to reloc ate afte r finding
, pursuant to Tenn. Code Ann. § 3 6 -6 -1 0 8
, that the reloc ation was rea sonable and not vindictive. The trial court also awa rded Mother attorney ’s fee s. For the following rea sons, we aff irm the holding of the trial court reg arding the reloc ation but reve rse

conce rning the attorne y ’s fe es. 1

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed in Par t, Re verse d in P art; Case Re m anded

J O H N W. M C C L A R T Y , J
., delivere d the opi nion of t he court, in which H E R S C H E L P. F R A N K S , P.J

. joined. D. M I C H A E L S W I N E Y , J . filed a dissenting opinion.

Helen S. Roge rs and L awr ence J

. Kamm, Nashville, Tenne ssee, for the Appellant, L arson Doug las Hudson.

Phill ip Robinson and Phili p E. Smit h, Nashville, Tenne ssee, for the Appellee
, Eliz abeth L eanne Hudson.

O u r f

i r s t o p i n i o n i n t h i s c a s e o r i g i n a l l y w a s f i l e d o n S e p t e m b e r 2 9
, 2 0 0 9

. F a t h e r t h e r e a f t e r f i l e d a p e t i t i o n 1

t o r e h e a r

. T h e p e t i t i o n t o r e h e a r c o n t a i n e d a m e r i t o r i o u s a s s e r t i o n

. A c c o r d i n g l y , w e g r a n t e d t h e p e t i t i o n , w i t h d r e w o u r

o r i g i n a l O p i n i o n , a n d n o w s u b m i t t h i s s u b s t i t u t e o p i n i o n

. T h e d i s s e n t i n g o p i n i o n i s a l s o w i t h d r a w n , a n d a n e w d i s s e n t i n g o p i n i o n w i l l b e s u b m i t t e d

.OP INION



### I

. F actual Background

The Divorce Settlement

Mother and Fa ther wer e divorce d on J an u ary 29, 2007, on the g rounds of irrec oncilable differ ence s. The parties have two minor children, Sara (d.o.b. 9/15/99) and Emily (d.o.b. 4/24/2001) (“c hildren”)

. Per the custody ag ree ment, Fa ther saw the children fi v e o ut of ever y fourtee n day s, four of which he had 24-hour custody

. He had custody ever y other Wednesda

y evening and eve ry other Wednesda

y evening throug h Sunday

.

P er a mediated divorce settlement, Mother rece ived $38,400 in child support per y ear ; t h e $600,000 home (not y et fully paid for) ; $1,033,686 in proce eds from the rec ent sale of Fa ther’s
company , Hea

ring Planet, I nc. (“Company ”); alimony in the amount of $130,268; and $3000 for a country club membership. F ather ag ree d to pa y around $33,000 per y ear for the children to attend

a prestig ious private school in Nashvil l e. Mother also was to rec eive half of any “ea rn-out”
pay ments (“e ar n -outs”) – additional pay ments conting ent on the post-sale perf ormanc e of the Company

.

The ear n-out ag ree ment set aside a potential $8,000

, 0 0 0 t hat would be paid out to sever al Company executives over a t h ree -y ear period based upon the attainment of specifie d g oals. The

ear n-outs wer e used by the buy er (“B uy er” ) of the Company as an incentive to keep the experience d Fa ther on as CEO for at least three y ear s. Howeve r, the ear n-outs wer e not g uara

nteed beca

use the perf ormanc e criter ia wer e desig ned to become m o re d i fficult to achie ve eac h y ear

. I n fac t, the
company bare l y m et the criteria the first y ear ; the s tandar d was met only afte r Father forfe ited his $108,000 y ear ly bonus in return for the more lucra tive ear n-out. As a result, Mothe r rec eived an additional $625,000 in ear n-outs for the f

iscal y ear April 1, 2006 - Mar ch 31, 2007.

The divorce was contentious; the acr imony betwee n Fa ther and Mother continued afte r the divorce and eventua lly spilled over into the reloc ation dispute. For instance, on J une 4, 2007, Fa ther filed a Petition for Contempt ag ainst Mother for failing to remove his name from the m ortg ag e as require d under a previous ag ree ment. F a th e r a ls o c omplained that Mother interfe red with his custody time on one occa sion and impeded his ability to contac t the children by phone. Additionally
, Fa ther alleg ed, without any concr ete proof, that Mother was having o v ernight male g uests while the children w ere prese nt. On Aug ust 13, 2007, Fathe r ame nded the Petition for Contempt to include a cha rg e that Mother f

ailed to pay

for the e x penses f

or the c opy ing of

cer tain video tapes.

2As a result of Fa ther’s Petition for Contempt, Mother pay ed off the mortg ag e by borrowing

a g a in s t $ 3 0 0
, 0 0 0 o f her investment portfolio. Subsequently
, Fa ther voluntarily withdrew his Petition for Contempt. Thus, as a result of the divorce
, Mother owned the house fre e and clea r and still had

a net worth of ap p rox imately $1,570,000, not including the $300,000 debt. I f invested

conser vatively
, it was estimated that she would rec eive at least $50,000 per y ear in interest. Added
to the $38,400 she rec eives for child support, Mother will make around $90,000 p er y ear without working

.

Father’s resignation and the Petition to Relocate

Around the end of the first ear n-out period, Marc h 2007, Fa ther resig ned from the Company
, althoug h he rema ined employ ed there in a limit ed capa city until J une 30, 2007. Fa t her did not immediately disclose his r esig nation to Mothe r. Fa ther insisted the rea son he did not immediately tell her was fear o f h er re action beca use hi s resig nation fore closed any possibili ty of further earnouts. I nstead, Mother found out about the resig nation from other source s sometime in April. On April 25, 2007, Mother called Fa ther to confirm t h e resig nation. That same day
, she called her attorney s and beg an discussing reloc ation plans.

On J une 21, 2007 - ab o u t fo u r an d a half months afte r the divorce was finalized - Mother filed a P et i t i o n to Relocate (“Petition”). The Petition contained the following rea sons for the reloc ation:

1. Mother can no longe r aff ord to stay in her home at 3600 Bow linga te L ane, Nashville, Tenne ssee, a

nd has bee n forc ed to place this property for sa le. 2. Mother must secure employ ment, and nee ds a flexible work sche dule not a vailable to her in the vicinity

of Na shville, Tennessee

. 3. T h e co s t o f l i v i n g i n Ho p k i nsville, Kentucky
, is less than the cost of living in Nashville, Tenne ssee. 4. I n Ho p k i n s v i l l e, Kentucky
, Mother will have family members as an add i t i o n al support sy stem that is not available to her in Nashville, Tenne ssee. 5. Mother fee ls the re is such hostility toward he r in the community wher e she and the children r eside that it is advisable for her a nd the childre n to reloca te.

Fa ther opposed t h e re l ocation and submitt ed I nterrog atories and Document Requests on Aug ust 6, 2007, conce rning the Petition. On September 5
, 2 0 0 7
, M other filed a Motion for a Protective Orde r based o n wh at she considere d to be inappropria te I nterrog atory and Document Requests. The trial court g rante d the Motion on October 4, 2007, and, as a result, Fa ther was only
g iven ac cess to Mother’ s sworn financ ial statement.

During a deposition on Marc h 6, 2008, Fa ther produce d an email that purported to contra dict

some of Mot her’ s deposition testimony reg arding the qualit y of her rela tionship wit h her mother

. Fa ther obtained the email by acc essing Mother’s email acc ount without her knowledg e. He h ad

3previously set up the acc ount, and M o t h er h ad failed to rese t the password afte r the divorce

. On

Marc h 17, 2008, the t rial court g rante d Mother a Restraining Orde r aga inst Father from acce ssing
any of Mother’s elec tronic communications. The Orde r also preve nted Fa ther from using the email at trial. This court de clined to hea r F ather ’s interlocutory

appea l on the matter.

Trial Procee dings

The reloc ation trial was held on April 14 - 15, 200 8

. T he trial court spent an inordinate
amount o f t i m e h earing testimony reg arding Fa ther’s resig nation from the Company
, despite its tang ential rela tionship to the re asons for reloc ation stated in the Petition. I n short, Fa ther insisted his departur e wa s purely

a business dec ision based on his dissatisfaction with Buy er. A lthough at trial he admitted that he used the divorce as the excuse to e nd the business rela tionship, he alleg ed that he only did so to avoid “burning bridg es” with Buy er. I n other words, Fa ther thought i t was better to tell Buy er that he was leaving to g et a “fr esh start” as a result of the divorce rathe r than tell Buy er he was leaving beca use of Buy er’ s behavior

. Mother, on the other hand, contende d Fa ther left the business only

to ensure tha t she would not rec eive a ny more e arn- outs.

Mother testified that she is a trained nurse. Although she did not work full-time during the marria g e, she would work one shift ever y quarte r in order to keep her license curr ent. She rec eived thes e q u ar t er ly appointments throug h a temporar y health car e staffing ag ency named “All About Staffing .” Mother admitted that she did not start look i n g fo r a job in Hopkinsville until afte r she filed the Petition. She found a job in Hopkinsville as a “Home Hea lth Nurse” that had very flexibl e hours, allowing her to only work during the hours when the children wer e in school. Significa ntly
, Mother admits that she did not look for any nursing jobs in Nashville. When questioned about why she did not look in Nashville, she responde d that, bas ed on her previous experience as a nurse in Nashville, she would not be a ble to find a job that met her hourly require ments.

Fa ther responde d to Mother’s t es t imony by calling two expert witnesses, both of whom claimed that a nurse with Mother’s skills could have almost cer tainly found a job in Nashville to fit her needs. Edwina Temple, the Human Resource s Direc tor for “All About Staffing ,” testified there

was a “ver

y high probability ” of fi n d i n g s h i ft s for Mother on the day s when the children wer e in Fa ther’s custody

. Michelle J arr ett, a reg ional manag er for a nursing staffing company in Nashville, testified that Mother’s pref err ed hours from 8:00 a.m. to 2:00 p.m. exis ted in doctor’s office s, clinics, home health, hospice, and outpatient surg ery cente rs, and that such jobs would pay more than their
counter parts in Hopkinsville. She also claimed that thes e j o b s would offe r Mother car eer advanc ement, while the job in Hopkinsville would not.

Both the trial and previous deposition testimony of Mother’s mother, Wanda Wade, established that the mother, g randmother
, aunt, and uncle live in Hopkinsville. Although not raised
at trial, Fa ther points out in his brief that Ms. Wade stated in her deposition that she did not plan on “being a baby sitter” for the children. Ms.Wade also is the prim ary car etake r of the g randmother
, who has dementia. Ms. Wade also noted in her deposition that the aunt and uncle provide littl e help with the g randmother

beca use of their

busy jobs.

4As a result of the divorce
, Mother had to re- apply to the local country club wher e she and her

husband had been members. Mother’s application was tabled by the application committee, and the trial court h ea rd t es timony from Fa ther about his involvement in the decision. Although Fa ther admitted to being friends w ith those on the committee, he c laimed he ha d nothing to do with their decision. Additionally
, on the advice of counsel, Fa ther ref used to write a letter supporting Mother’s admission, a s he did not want to become involved in the situation. Howeve r, Fa ther admitted that he knew that membership in the country club was important to Mother and that it was embar rassing for her t o be denied admission. Fa ther did eventua lly write a short note in support of Mother’s membership, althoug h the trial cour t found it to be “too littl e, too late.”

I n addition to the country club incident, Mother testified that she “didn’t fee l c omfortable” in the subdivision wher e she lived beca use of her neig hbor’s activities. Mother claimed a neig hbor told Fa ther that one of the children kept pulling the “F or Sale” sign out of the y ard. One of the neig hbors also told Fa ther about a strang e car p ar k ed outside of Mother’s house overnig ht. That information was used as a basis for Fa ther’s asser

tion in the Petition for Contempt that Mother was having male over- night g uests

. Fa t her admitted that he former ly jogg ed with one of Mother’s neig hbors who occa sionally provided unsolicited g ossip about Mother. Howeve r, Fa ther contende d that he would not per

petuate suc h conver sations.

The trial court also hear d testimony conce rning the communication p r o b lems betwee n Fa ther and Mot h er during the period following the di vorce

. For instance, Fathe r complained that he and his pare nts had been trea ted rudely by Mother at a b i rt h day party for one of the children. On the other hand, Mother complained about Fa t h er ’s reque st for separ ate pare nt-teac her confe renc es. During the di vorce trial, Dr. David McMillan, Fat h er ’s t hera pist, testified t hat Father understood that his hy per- controlling nature was a signific ant rea son why the marria g e failed. Additionally
, Dr. McMillan opined that part of the problem post-divorce was that Mother and Fa ther wer e maintaining
too much contac t. I n other words, neither party was doing particula rly well at transitioning from the
status of marria g e to divorce

. Dr. McMillan also testified that Fa ther was making g ood prog ress in chang ing his c ontrolling be havior a nd that Fa ther loved his childre n very much.

The trial court hear d ex t en sive testimony about the differ ence s betwee n the children’ s Nashville school, the Ensworth School (“ E n s wo rt h”), and the Hopkinsville school, University Heig hts Aca demy (“U HA”)

. Although both schools are private, it is undisputed that UHA is much smaller and has signific antly few er resour ces than Ensworth. For example, at UHA, Spanish is the only fore ign lang uag e offe red and it is only taug ht three day s a wee k; there is no musical instrument instruction; and the starting salary for teache rs i s only $21,000 per y ear

. Meanwhile, Ensworth i s nationally acc redited offe ring sever al fore ign lang uag es and a first class library

. At trial, Fa ther offe red the testimony of Dr. Susan Smartt, who works at the National Comprehensive Center for Tea cher Quality at Vande rbilt University

. Dr. Smartt testified that Ensworth wa s an “e x em plary school when it c omes to inde pendent schools, not only in Nashville but in the Southeast.

. . .” She also opined that removing the children from Ensworth was a “dra matic decision” that would make a “big differ ence ” in their lives.

5The Trial

Court’s Rulings

The trial court held that there was a rea sonable purpose for Mother’s reloc ation based on 1) Fa ther’s prema ture resig nation from the Company
, 2) Mother’s difficulty in g aining membership in the country club, 3) Fa ther’s improper and controlling behavior towards Mother, 4) the exis tence of
suppo rt fr om her extended family
, and 5) the rela tive closene ss of Hopkinsville to Nashville. Specifica lly , the trial cour t’s Opinion and Orde r stated that:

• There is a leg itimate purpose for wife to move home to her family wher e she

can work and have some assistance with the childcar e, coupled with Fa ther’s behavior and his desire to control eve ry one and e very thing;

• There is nothing neg ative about the m o ve to Hopkinsville except that the

children w ill not get to see their F ather quite as much a s they

do now;

• The lower cost of l iving in Hopkinsville will assist Mother with her loss of

income by Fa ther’s quitting his employ ment a n d a ll o w s M o th e r f

r eedom from the har assment and da ily

intrusion of the Fa ther.

Fur thermore
, the trial court held that Mother’s purpose for moving to Hopkinsville was not vindictive. The court found that the re location would be in the be st interest of the children, even though the reloc ation statute does not require such a finding once it is found that the reloc ation has a reasonable purpose, does not threa ten t he children, and is not vindictive. Additionally
, M o t h er was g rante d attorney

fee s. Fa ther filed a

timely appea l.



### I I

. Issues f or Re view

1. Did the trial court err in finding that M o t h er ’s reloc ation from Nashville, Tenne ssee, to Hopki n s v il le
, K e n tuc ky
, serve d a rea sonable purpose?

2. Did the trial court err in not finding that Mother soug ht reloc ation for a vindictive purpose ?

3. Did the trial court err in finding that reloc ation was in the children’ s best interest.

4. Did the trial cour

t err in g ranting attorney ’s fe es to Mother.

6

### I I I

. Stand ard of Review an d the Relocat ion S tatute

The standard of revie w of a trial court’s finding s of fac t is de novo and we presume that the finding s of fac t of the trial court are corr ect unless the preponde ranc e of the evidenc e is otherwise. Tenn. R. App. P. 13( d); Rawlings v. J ohn Hancoc k Mut. Life Ins. Co. , 78 S.W .3d 291, 296 (Tenn. Ct. App. 2001). For the evidenc e to preponde rate ag ainst a trial court’s finding o f fa ct , it must support another finding of fac t with g rea ter convincing eff ect. W alker v. Sidney Gilreath & Assocs.
, 40 S.W .3d 66, 71 (Tenn. Ct. App. 2000). Where the trial court does not make finding s of fac t, there is no presumption of corr ectne ss a nd “we must conduct our own independe nt r eview of the rec ord
to deter mine wher e the preponde ranc e of the evidenc e lies.” Brooks v. Brooks
, 992 S.W .2d 403, 405 (Tenn. 1999). We also g ive g rea t weig ht t o a t ri al court’s deter minations of the cre dibilit y of witnesses. Estate of W

alton v. Y oung , 950 S.W .2d 956
, 9 5 9 (T en n. 1997); B& G Constr., Inc. v. Polk
, 37 S.W .3d 462, 465 (Tenn. Ct. App. 2000). I s s u es o f law are revie wed de novo with no presumption of cor

rec tness. Nelson v. W

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

.

The reloc ation statute, Tenn. Code Ann. § 36-6-108 (Supp. 2008), g overns this action. The
statute cre ates a mecha

nism for deter

mining whether a pare nt who has custody of a child may reloc ate outside the state or more than 100 miles from the other paren t within Tenne ssee. Be cause Fa ther

conce des that he does not spend substantially equal time with the children, Tenn. Code Ann. § 36-6- 108(d)( 1) applies in this action. The Code provides:

The pa rent spending the g rea ter a mount of time with the child shall be permitted to reloc ate with the c hild unless the court finds:

(A) The re location does not have a re asonable purpose; (B ) The reloc ation wo u l d p o s e a threa t of specific and ser ious harm to the child that outweig hs the threa t of harm to the child of a c hang e of c ustody ; or (C) The pare nt’s motive for reloc ating with the child is vindictive i n t h at it is intended to defe at or deter visitation rig hts o f t h e non-custodial pare nt or the pare nt spending less time with the child.

Id.

Tenn. Code Ann. § 36-6-108( e) g oes on to sta te that, “[i] f the court finds one (1) or more of the g rounds desig nated in subsection (d), the court shall deter mine whether or not to permit reloc ation of the c hild based on the be st interest of the c hild.”

Although the statute does not provide a definition of “re asonable purpose,” it does define “spec ific and serious harm.” Tenn. Code Ann. § 36-6-108( d)(2)

. As such, the parties ag ree that while subsection (A) and (C) a

re in issue, subsec tion (B) is not.

7Fa ther also arg ues t hat M other’s reloca tion was done for a vindictive purpose. “A parent’s motive for reloc ating is vindictive if it is intended to defe at or deter the visitation rig hts of the other
pare nt.” See Tenn. Code Ann. §36-6-108( d)(1) (C); Caudill v. Foley
, 21 S.W .3d 203, 213 (Tenn. Ct. App. 1999).

The party opposing the reloc ation - in this case Fa ther - bears the burden of proving

unrea sonablene ss or vindictiveness. Clark v. Clark
, No

. M2002-03071-COA- R3-CV, 2003 WL 23094000, at *3 (Te nn. Ct. App. M.S., Dec. 30, 2003).



### I V

. Discussion

Contentions of

the P artie s

Trial Court Errors

Fa th er em p h ati cally asser ts that the trial court made numerous err ors during trial and in its Opinion and Orde r.

First, Father arg ues that the trial c ourt incorre ctly focuse d on whether Fa ther quit his job to

ensure that Mother would not rec eive any more ear n-outs. Fa ther asser

ts that even if Fa

ther quit his job in bad fa ith (which he claims he did not)
, it ha s nothing to do with the reloc ation issue; instea d, it is a brea ch of contra ct issue reg arding the marital dissoluti on ag ree ment that should be litigated in another forum.

Second, Fa ther takes issue with the trial court’s finding that h e wa s responsible for the Mother’s reje ction at the country club. The rec ord, acc ording to Fa ther, contains no proof that Fa ther did any thing other

than take his law y er’ s advice to remain ne utral.

Third, Fa ther arg ues that the trial court put too much emphasis on Fa ther’s alleg ed behavior towards Mother, when in fac t none of the g rounds listed in the Petition conce rn Fa ther’s interac tions with Mother.

As an example of the above contentions, Fa ther focuse s on finding s from the trial court like “the lower cost of living in Hopkinsville will assist Mother with her loss of income by Fa ther’s quitting his employ

ment and allows Mother fre edom from the hara ssment and daily intrusion of the Fa ther.” Fa ther arg ues that Mother had no “loss of income” beca use the ear

n-out pay ments wer e not g uara nteed in the first place ; if Mother had wanted more g uara nteed income s h e s hould have barg ained for it during the divorce proce eding s. Fa ther also reiter ates that Mother’s Petition contains
no g rounds re g arding

the purporte d “har assment and da ily intrusions of Fathe r.”

8Reasonable Purpose

Fa ther a rg ues that the fa cts in the record, when applied to the re asons stated in the Petition, preponde rate ag ainst the trial court ’ s f in d in g th a t th e M o ther’s reloc ation serve s a rea sonable purpose. Fa t h er p o i n t s out that Mother’s asser tion that she could no longe r aff ord to stay in her home is fac tually incorre ct; even if she was to pay off the house completely
, she would still have a net worth of at lea st $1.3 mil lion.

Fa ther also takes issue with Mother’s contention that she needs to move for employ ment

rea sons. First, Fa ther notes that Mother does not have to work at all since her combined alimony and investments should y ield around $90,000 per y ear

. Second, Fa ther points out Mother made no attempt to find work in Nashville. Fu rt h er m o re , the testimony at trial shows that she could have found a better pay ing job with flexibl e hours and opportunities for car eer advanc ement in Nashville. Fa ther arg

ues that while this court has consistently held that an i n cr ea s e in salary or car eer advanc ement can be a fac tual predic ate to constitute a rea sonable p u rpose for reloc ation, the same cannot be said when simil ar employ ment is available wi t h o u t relocation. Fa ther supports this contention by analog izi ng to Robinson v. Robinson
, No. M2003-022089-COA- R3-CV, 2005 WL 1541861, at *7 (Tenn. Ct. App. M.S., June 30, 2005), wher e the court held there was no rea sonable
purpose for reloc ating to attend a school when an equivalent education was available without reloc ation.

Fa th er co n t en ds that Mother’s cost of living arg ument is contra ry to established case law. Fa ther cites to Slayton v. Ray
, No. M2004-01809-COA- R3-CV, 2005 WL 2756076, at *3 (Tenn. Ct. App. M.S., Oct. 24, 2005), for the proposition that co s t o f l i ving does not by itself constitute a

rea sonable purpose, but is instead only a fac tor that must be taken into consideration along with other economic components. For instance, t h i s C o u rt has taken cost of living into consideration wher e reloc ation would have r esulted in a only a sl ight increa se i n pay

. See, e .g., Roberts v. Robe rts , No. E2005-01175-COA- R3-CV, 2005 WL 2860199, at *6. (Tenn. Ct

. Ap p

. E.S., Oct. 31, 2005). Howeve r, Fa ther notes he was unable to find any case s wher e a decr ease in cost of living that offse t

a decr ease in pay was found to be a rea sonable purpose. Thus, Fa ther arg ues that Mother has no other

ec o n o m i c fac tors to couple with the lower cost of living that would turn “cost of living” int o a

rea sonable purpose

.
Mother, on the other hand, states that if she stay s in Nashville, she would have to invade the principal of her assets to continue to enjoy the same standard of living that she had during the marria g e. Fa ther points out in his reply brief that Mother is not entitled to the same standard of living
at this stag e; that was a matter for the previous divorce mediation and is completely separ ate from the reloc ation question.

Reg arding t h e p re s en ce of Mother’s family members in Hopkinsville, Fa ther arg ues that,
contra ry to Mother’s conte ntion, reloca tion will cause a ne t loss of support for the children. Fa ther questions the eff

ectivene ss of a support sy stem that consists of a g randmother who has de mentia, a mother who is busy car ing for the g randmother
, and an aunt and uncle who are so busy they provide

9littl e help in car ing for the g randmother

. Fa ther also sug g ests that, based on the deposition testimony of Ms. Wade that s h e wi l l n o t be a “baby sitter,” the streng th of Mother’s rela tionship with her mother i s q u es tionable. Fa ther then points out that, befor e the reloc ation, Fa ther had provided a 2 support sy stem which has now be en sig nificantly diminis hed due to the move

.

Fa ther also cites to Rogers v. Rogers
, No. W2006-00858-COA-R3-CV, 2007 WL 1946617, at *11 (Tenn. Ct. App. W .S., J uly 3, 2007), i n which thi s court upheld the t rial court’s finding that the custodial mother’s reloc ation from Memphis to South Carolina was not rea sonable wher e the only

rea son for the m o v e wa s to be with her extended family

. I n that case , the mother, who lived in Memphis, had extended fa mily who also lived there . The membe rs of the e x tended f amily wer e in the ear ly stag es of planning to move to Spartanburg
, South Carolina, and the mother wished to

acc ompany them. Id

. at *3. Be cause of the distance of the move and the specula tive nature of whether the extended family would even follow throug h with their plan to move, the trial court found the mother’s reloc ation reque st to be unrea sonable. Id. at *11. I n rea ching our conclusion, this court noted t hat “the desire of a primary residential parent to move t o be near his or her extended family

can form the basis for a rea sonable purpose, particula rly when this rea son is aug mented by additional considerations.” Id.

M o t h er responds that Fa ther mis-char acte rizes the Mother’s rela tionship with her mother. Fur thermore
, Mother testified that she thought the Hopkinsville community was “tig ht knit” and that it would provide a safe
, supportive environment for the children. Mother notes that this court and the Tenne ssee Supreme Court have on sever al occasions held t hat non-economic reasons can form the basis of a rea sonable purpose for reloc ation. See, e.g., Caudill

, 21 S.W .3d at 212 (holding that having “many friends and rela

tives” in the reloc ation are a constitutes a rea sonable purpose for reloc ation). I n response to Fa ther’s relianc e o n R o g er s , Mother arg ues that the trial court considere d Fa ther’s inappropria te beha

vior towards Mother

to aug ment Mother’s de sire to be c loser to her family

.
Reg arding Mother’s final r e a s o n f o r r e lo c a ti o n , F a th e r d is a g ree s with Mother’s contention that the community is so hostile that it is advisable for her and the children to reloc ate. Fa ther arg ues that the incidence s Mother complains of hardly rise to the level of hostili ty ; instead, they are simply social
conseque nces of divorce

. Fa ther then cites to O’Bannon v. O’Bannon
, No. E2002-02553-COA- R3- CV, 2003 WL 22734673, at *8 (Te nn. Ct. App. E.S., Nov. 20, 2003) which notes, inter alia , that a
pare nt’s desire to move to esca pe the social conseque nces of a di v o rce does not constitute a

rea sonable purpose. Mother contends that Fa ther is downplay ing the embar rassment that the country club incident and ne ighbor hood g ossip has cause d her.

Vindictivene

ss

Fa ther contends that Mother wished to move for a vindictive purpose. Whil e Fa ther admits

Fat her al so m akes thi s ass er ti on bas ed on the email he too k fr om Mo the r’ s email acc ount w i t h o u t her 2 knowled ge or p e r mi s s i o n. T he tr ia l cou rt re fus ed to con si der thi s eviden ce, and we agree wit h the tr ia l

cou rt ’s re aso nin g. Th us, we r ef use to cr edi t t he i nfo rmati on c ont ai ned in th is email.

10there is no overt admi s sion of vindictiveness in the rec ord, Fa ther arg ues the “totality of the

circ umstances” reve als Mother’s bad faith motives. For instance, Fa ther notes the suspicious timing of Mother’s decision to reloc ate. Fa ther also arg ues that Mother’s stated purposes for moving are so

unrea sonable that he r re al motivation must be re veng e.

Mother responds by asser ting that the new pare nting schedule she proposed had substantially the same amount of visitation time as the old schedule

. Thus, she was not defe ating t h e visitation rig hts of Fa ther. Since, per Caudill
, reloc ation is vindictive only if it is intended to defe at or deter the visitation rig hts of the other pare nt, Mother arg ues she was not be ing vindictive as a matter of law. Mother contends that the trial court’s reje ction of Mother’s proposed schedule is immaterial; Fa ther,

on the other hand, replies that Mothe r k n ew her proposed schedule would be reje cted and that she only prese nted it to satisfy Caudill ’s require ments.

Mother also arg ues that the trial judge cre dited Mother’s testimony that she had no vindictive
purpose, a

nd that this court must give de fer ence to those findings.

Best Intere

st of the Chil dren

Fa ther c ontends that it was err or for the trial cour t to make the best intere st finding be cause

once a rea sonable purpose is established, the statute demands a halt to any further inquiry

. Fa ther also is emphatic that the re location could not possibly be in the best intere sts of the children be cause :

• the childre n g rewup in Nashville;

• they

have immediate acc ess to both pare nts in Nashville;

• they

g o to a superior

school in Nashville; and

• they will now have to spend th re e hours on the road ever y other wee kend when visiting F ather

. Attorney’s Fe es

Fa ther contends that the trial court never made a finding of the rea sonablene ss of the attorney fee s, nor did it g ive Fa

ther an opportunity to question them. Mother’s brief was silent on this issue.



### V

. Analysis

Reasonable purpose

Although this court aff

irms the ultimate conclusion of the trial court, we neve rt h el es s find merit in sever al of Fa ther’s arg uments. We concur that the motivations reg arding Fa ther’s resig nation

are larg ely immaterial to the reloc ation case

. Per the marital dissoluti on agre em en t , t he ear n-out pay ments wer e never g uara

nteed. Fur

thermore
, the evidenc e strong ly sug g ests that even if Fa ther had stay ed on, the Company likely would not have met the ear n-out thresholds during the second and third

11y ear

. Thus, it is inappropria te to conclude that Mother “lost income” beca use of Fa ther’s resig nation. Although the timing of the resig nation and the events surrounding it do tang entially touch upon the strained rela tionship of Mother and Fat h er , we do not think that the issue war rante d the depth of inquiry that was g iven to it.

We also ag ree with Fa

ther that the economic rea sons for reloc ation prese nted by Mother are insufficient. I t is undisputed that Mother never looked for employ ment in Nashville. This fac t alone is fata l to Mother’s contention that she could only find suitable employ ment in Hopkinsville. Be cause of this, Fathe r is corr ect in his asser tion that there are no other economic factors to couple w ith the lower c ost of living to constitute a “ rea sonable purpose .”

We also concur with Fa ther that the country club i ncident and t h e n ei g hborhood gossip are social conseque nces of divorce that do not rise to the level of a “hostile environment,” espec ially consider ing their temporal proxi mity to the actua l divorce

. The country club incident cer tainly disappointed Mother, and the neig hborhood g ossip may have made her uncomforta ble. Howeve r, per O’Bannon , those incidenc es alone cannot be considere d a re asonable basis for r eloca tion.

Despite our ag ree ment with F ather on the above issues, we must never theless conc lude that the trial court was corr ect in its ultimate decision to allow the reloc ation based upon familial support in Hopkinsville. As Mother corr ectly points out, Caudill announce s that the pre s en ce of family members in another town can be a rea sonable purpose for reloc ation. Fur thermore
, we find Fa ther’s relianc e on Rogers to be misplaced. The reloc ation in that case is easily distinguishable from the one at bar. I n Rogers
, the mother was attempting to move from Memphis to South Carolina based on the specula tive plans of her extended family members. I n this c ase, Mother is only moving about six ty 60 miles to be near

her Mother

and other rela tives who have lived in Hopkinsvill e for some time.

I t is also important to keep in mind that Tenn. Code Ann. § 36-6-108 is only applied when a custodial pare nt reloc ates outsid e t h e s t at e o r 100 miles from the other pare nt within Tenne ssee. Thus, had Mother moved the same 60 mile distance in-state, the statute would not even be applicable

. Whil e thi s court is cer

tainly not imply ing t h at any move out -of- state i s rea sonable if it is less than 100 miles, the rela tively close distance betwee n Nashville and Hopkinsville must be taken into consideration. The trial court found that the short distance betwee n the two cities milit ated towards the re asonable ness of the r eloca tion, and we a g ree

.

Fa ther complains t h at i t was improper for the trial court to put so much emphasis on his controlling nature and poor behavior towards Mother beca use such a g round was not contained in the orig inal Petition. We ag ree that, in the absence of such a g round i n the P etition, those interac tions by themselves do not constitute a rea sonable purpose for reloc ation. Howeve r, we find that those past interac tions have h ad a d i re ct bear ing on the amount of support Mother believes she could rec eive from F ather

in Nashville. Althoug h Fa ther make s a compe lling ca se that the re location will in fact

cause a net loss of support beca use of Fa ther’s absenc e, it is clea r from Fa ther’s arg ument that he is thinking in term s o f p ure logistica l support. At the same time, the “support” Mother ref ers to undoubtably has an emotional component. Whil e we applaud Fa ther’s rec ent eff

orts to see a thera

pist

12to chang e his controlling behavior
, his past int er ac t i o n s wi th Mother have clea rly cre ated an atmosphere of hostili ty and distrust betwee n the parties that cannot be undone in the short term. Thus, it is not surprising that Mother believ es t h e emot ional support she would rec eive in Hopkinsville would be g rea ter than any support Fa ther cou l d p ro vide in Nashville. Fur thermore
, the trial court

cre dited Mother’s testimony that she believed she would rec eive more support in Hopkinsville, and this court must g ive “g rea t weig ht” to that deter mination. I n s h o rt, we do not believe the rec ord preponde rate s ag ainst the trial court’s findi n g t h at “it is rea sonable for Mother to reloc ate to Hopkinsville, wher e Mother will have family members as an additional support sy stem that is not available to her in Na shville.”

Vindictivene

ss

We find that the rec ord does not preponde rate ag ainst the trial court’s finding s that Mother’s reloc ation was not vindictive. The trial court hear d Mother testify that the purpose of the reloc ation

was not vindictive and it found her testimony cre dible. Al t houg h Mother’s timing conce rning Fa ther’s resig nation and her decision to reloc ate is slightly suspicious, it is not enoug h to g ive rise to

an infere nce of vindictiveness or preponde rate ag ainst the trial court’s finding s. Fur thermore
, we find Fa ther’s contention that Mother’s proposed pare nting plan wa s n o t h i n g more than a ruse to circ umscribe Caudill is a stretch a t best and complete ly

without merit at worst.

Best Intere

st of the Chil dren

Tenn. Code Ann. § 36-6-108( d)(1) is clea r that if a reloc ation has a rea sonable purpose, does
not threa ten the child, and is not v i n d i ct i v e, then the pare nt shall be allowed to move. Having deter mined that Mother has satisfied all three of these require ments, there is no rea son for this court to make a be st interest inquiry beca use it will not affec t the outcome of this appe al.

Attorney’s Fe es

Fa ther contends that the trial court abused its discretion by awa rding at to r n e y ’ s f e e s to M o th e r. Fa ther arg ues that Mother has substantial assets to pay her leg al fee s, and the trial court did not aff ord him an opportunity

to be hea rd on this issue.

Tenn. Code Ann. § 36-6-108( i) provides the trial court with the discretion to awa rd attorney ’s fee s in reloc ation case s. I t permits either pare nt to “re cover rea sonable at t o rn ey fe es and other litigation expenses from the other pare nt[ .]” Id. Pursuant to the statute, we revie w this issue raised
on appea l for abuse of discre tion. Id.

Discussing the abuse of discretion standard in Eldridge v. Eldridge
, the Tenne ssee Supreme Court stated that an appellate court should not disturb a trial court’s ruling when “re asonable minds

can disag ree as to [t he] propriety of the decision made.” E l dridge v. Eldridge, 42 S.W .3d 82, 85 (Tenn. 2001) . The Eldridge court fur ther e x plained:

13A trial co urt abuses its discretion only when it “applie[s] an incorre ct leg al standard, or rea che[s] a decision which is ag ainst l o gi c o r rea soning that

cause s an injusti ce to the party co m p l ai n i n g .” The abuse of discretion standard does not permit the appellate court to substitut e its judgme nt for that of the trial c ourt.

Id. (citations omitted).

Thus, a trial court’s discretionar y decision ordinarily will stand as long as rea sonable judicial minds can differ reg arding its soundness. Ove rstreet v. Shoney’ s Inc., 4 S.W .3d 694, 709 (Tenn. Ct. App. 1999). As a re sult, when we review a trial court’s discretionary decision, we “beg in with the presumption that the dec ision is corr ect and should review the evidenc e in the lig ht most favorable to the decision.” Id.

I n this case , we find that the trial court abused its discretion in its awa rd of attorney ’s fee s to Mother. Whil e it is within the trial court’s discre t i o n t o aw ar d attorney ’s fee s, it appea rs

unrea sonable, unfair, and ag ainst logic in this case based upon the totality of the circ umstances. M o t h er h as the financ ial means to pay her own attorney ’s fee s. When awa rding attorney ’s fee s t o Mother, the trial court did not take into acc ount Mother’s financ ial position. Mother has a net worth that totals in excess of one milli on dollars coupled with her investment ear nings and wag es from her

new job in Hopkinsville, Kentucky
, all of which provides Mother with the means to aff ord the leg al fee s associate d with a matter she initiated.

Although Mother presented sufficient proof to justify the relocation petition, the proof also

reve als that the reloc ation favor ed Mother’s interests more than the children’ s interests. For example, the Petition to R eloca te states the f ollowing:

(1) Mother

can no long er a ffor d to reside in the mar ital residenc e . . . .

(2) Mo t h er h as located employ ment in the State of Kentucky that offe red he r work w ith the gr eate r flexibili ty she nee ds . . . .

(3) Mother

will have her

family close by as additional support sy stem.

(4) [ M o ther] fee ls that there is such hostili ty toward her in the community wher e she and her children resided that it is a dvisable for her . . . to re locate.

Additionally
, it appea

rs from this cou rt ’s review of the rec ord that the trial court’s order direc ting Fa ther to pay Mother’s attorney ’s fee s is punitive. T h ere are numerous ref ere nces expressing disapproval of Fa ther’s conduct and actions throug hout the proce eding s. The trial court’s Opinion and Orde r conta ined the followingrema rks:

(1) [Fa ther] had a se vere issue with the need to be in control . . . . 14(2) F ather told the Mother, y ou can kiss y our country club g oodby e . . . .

(3) Refer ring to Fa ther’s note to the country club, “this was too littl e, too late.”

(4) He is the source of conf lict in this situation.

(5) L iving in Hopkinsville will assist M o t h er with her loss of income by Fa ther’s quitting his employ m ent and allow the Mother fre edom from hara ssment and daily

intrusion of Fa

ther . . . .

I nstead of focusing on Mother’s reloc ation and its purpose, the trial court persisted in making irrele vant observa tions about Fa ther’s conduct and actions. We found nothing in the rec ord to support

awa rding attorney ’s fee s to Mother in light of her fin an ci al m ea n s

. Fur ther, the reloc ation favor ed Mother’s interests more than the children’ s interests, and it seems that the trial court’s disapproval of Fa ther influenc ed its decision to awa rd attorne y ’s fe es.

As a result, this court finds that the awa rd of attorney ’s fee s in this case is unrea sonable, unfair, and aga inst logic

. We further find that it cause s an inj ustice t o Fa ther ba sed upon the totality of t he circ umstances, and there fore
, it is an abuse of the trial court’s discretion to make such an awa rd. We thus rever se the trial c ourt’s aw ard of attorney ’s fe es to Mother.



### V I

. Conclusion

For the rea sons discussed above, we aff irm the trial court’s ruling allowing Mother to reloc ate from Nashville, Tenne ssee, to Hopkinsville, Kentucky
, in th at this reloc ation serve s a rea sonable
purpose and is not for a vindictive purpose. We reve rse the trial court’s awa rd of attorney ’s fee s based
upon an abuse of discretion. There fore
, the judgme nt of the trial court is aff irmed in part and reve rsed in part. Costs on appea l are taxed equally to both parties. The case is r emande d to the trial court for
pay ment of costs below.

_____________________________ J OHN W. McCL ARTY, J UDGE

15