# FILED April 30, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) HEATHER LYNN SCOTT , ) Rutherford County Chancery Court ) No. 93DR-1046 Plaintiff/Appellee. ) ) VS. ) C.A. No. 01A01-9806-CH-00272 ) GREGORY ALAN SCO TT , )

) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Chancery Court of Rutherford County at Murfressboro. Honorable Don R. Ash, Judge

Darrell L. Scarlett , Murfreesboro, Tennessee Attorney fo

r Defendant/App

ellant. Heather Lynn Scott , Pro Se

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)1 At the time of the divorce, the parties’ older daughter, Alyssa, wa s eight years of age and their younger daughter, Celina, was six y ears of age. In this child custody

dispute, the trial court denied Defendant Gregory Alan Scott’s petition to prohibit relocation or, in the alternative, to change custody. Additionally, the trial c ourt granted a counter-petition to increase child support filed by Plaintiff Heather Lynn

Scott. Mr. Scott appealsthe court’s ru ling with resp ect to both his petiti

on and Ms. Scott’s c

ounter-petition.

Ms. Scott also appeals, contending that the trial court erred in failing to order Mr. Scot t to pay her attorney fees. For the reasons stated below, we a ffirm the ruling of the trial court.
Procedural History

In October of

1993, Ms. Scott filed a petition seeking a divorce from Mr. Scott. The parties subsequently entered into a marital dissolution agree ment providing that the parties’ two minor children 1 should be placed i n the custody

of Ms. Scott

and that Mr. Scott

should pay $717.00 per month as child suppor

t. A final decree

of divorce, whic

h incorporated th

is agreem ent, was entered by the trial court in May of 1995.

In May of 1996, Mr. Scott filed a petition seeking an orde

r that would prohib

it Ms. Scott from removing the parties’ minor children from the state of Tennessee. In the alternative, Mr. Scott requ est ed a c han ge of cus tod y. Ms. Scott subsequently filed a counter-petition to increase the amount of Mr. Scott’s monthly child support obligation. After hearing the pending matters, the trial court ruled that custody of the children should remain with Ms. Scott, that the parties’ visitation schedule should be modified, andthat the amount of Mr. Scott’s month

ly support obl

igation should be inc r eased in accor

dance with the ap

plicable child sup

port guidelines w

ithout being redu

ced to reflect visitation exercise

d by Mr. Scott i

n excess of the amou

nt contemplated un

der the guidelin

es. Consistent with this ruling, the court entered an order (1) denying Mr. Scott’s re quest for an order prohibiting relocation, (2) denying Mr. Scott’s reques t f or a change of custody, (3) setting forth a modified visitation schedule , (4) in cre asing the amount o f Mr. Scott’s child s

upport obligation

to $1,067.00 per month, and (5) providing that ea

ch party is responsible for his or her own attorney fees. This appeal followed.Issues and Standard of Review

The issues raised

by the parti

es on appeal, as w

e perceive them

, are as follows:

I. Did the t rial court err in finding that there had not been a materia

l c hange of circumstances occurring subsequent to the p

arties’ initial cu

stody agr eement? II. Assumin g such a material c hange of circ

umstances, didthe trial court err in find ing that it was in th

e best interest of the parties’ minor

children to remain in the custody of Ms . Scott? III. Given that the p arti es’ modified visita tion schedule allows Mr. Scott to exercise more visitation tha

n is contemplatedby the child support guidelines, did the trial court err in den yingMr. Scott’s request for a downward

deviation from the amo unt of support prescribed by

the guidelines? IV. Did

the trial court err in fai ling to o rder Mr. Scott to pay the a ttorn ey f ees i ncur red b y Ms . Scot

t?

To the extent that these issues involve questions of law, the trial court’s ruling is subject to de novo review. See, e.

g., In r e Estat e of Hume , 984 S.W .2d 602, 604 (Tenn. 1999 )(citing City of Tullaho ma v. Bedford County , 938 S.W.2d 408, 412 (Tenn. 1997)). The factualfindings of the trial
c our t, however, are entitled to a presumption of correctness and must be upheld unless they are contrary to the preponderance of the evidence. See, e.g., Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984); T.R.A.P. 13(d).
Child Custody

When considering a petition to change custody, a trial court must engag e in a two step analysis. First, the court must determine whether there hasbeen a material change of circumstances arising subsequent to the initial decreeawarding custody such that the welfare of the child demands
a redetermination of custody. See, e.g., Masseng ale v. Massengale , 915 S.W.2d 818, 819 (Tenn. App. 1995)(cit ing Dailey v. Dailey , 635 S.W.2d 391, 393 (Tenn. App. 1981)). If the court finds that there has, in fact, bee n a material change of circumstances, it then seeks to devise a custody arrangement

that is in the best int

erest of the child. S ee, e.g., Varley v. Varley , 934 S.W.2d 659,665-66 (Tenn. App. 1996)(quo ting Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. App. 1993)); Tenn.

Code Ann. § 36-6-106 (Su pp. 1998). When dete

rmining what woul

d be in the best interest of the child, the court ass esse s the comparative fitness of the par

ties seeking cus

tody, consid

ering all relevant factors in light of the particular circumstances of the case. See Ruyle v. Ruyle , 928 S.W.2d 439, 442 (Tenn. Ap

p. 1996); Matter of Parsons , 914 S.W.2d 889, 893 (Tenn. App. 1995).

Consistentwith the tw o step a nalysis set forth above, the threshold question in the instant case is whether there has been a material chang

e of circumstanc

es occurring s

ubsequent to the filing of

the parties’ divorce decree in May of 1995. The trial court found that there had not been such a change of ci

rcumstances. On

appeal, Mr. Scott c

hallenges this

finding, alleging

six factors, which he contend

s are sufficien

t to establish a mate

rial change of

circumstances,

as follows:
(1) Ms. Scott intends to reloc at e with the childre n to Maryland, where the c hildre n will be exposed to members of Ms. Scott’s fam il y who may pose a danger to or be a bad influence on the children; (2) Ms. Sco tt h as an erra tic wor k hi sto ry; (3) M s. Scott allowed the children’s health insurance coverage to lapse; (4) Ms. Sco tt f ile d fo r ban kru ptc y; (5) Ms. Scott became pre gnant with and ha

s given birth to a child out of wedlock; and (6) Mr. Scott’s personal and financial circumstances have improved.

We discuss eachof these allegations separately. Our conclusion regarding the question of changed circumstances,

however, is

not based on evidence of any single alleged f actor but instead is reached after consideration of all relevant evidence contained in the record.

Ms. Scott testified that, if the trial co u rt denied Mr. Scott’s petition to prevent relocation or change custody, she intended to move with the children to the state of

Maryland so that she could be closer to her family. In Taylor v. Taylor , 849 S.W.2d 319 (Tenn. 1993), the Tennessee Supreme Court expressly held that rel o cation, in and of itself, is not a material change of circumstances sufficient to justify a redetermination of custody. See id. at 332. In Aaby v. Strange ,2 The Tennessee General Assembly recently enacted a statute setting forth the procedure and analysis to be used in cases of parental relocation. See Tenn. Code Ann. § 36-6-108 (Supp. 1998)(effective May 7, 1998). 924 S.W.2d 623 (Tenn. 1996), the court clarifie d its holding in Taylor , stating that “a custodial parent will be allowed to

remove the child from the jurisdiction unless the non-custodial parent can show, by a prepond

erance o f the evidence, that the custodial parent’s motives for moving are vindictive—that

is, intended to defeat or deter the visitation rights of the non-custodial parent.” Id. at 629. See also Tyndall v. Tyndall , 934 S.W.2d 57, 57 (Tenn. App. 1996). The court explained, however, that “a non-custodial parent’s hands are [not] tied where removal could pose a specific, serious threat of harm

to the child.” Aaby , 924 S.W.2d at 629. According to the court, the noncustod ial pa rent in suc h a situati on may still s eek a change of c ustody based o n a material change of circumstances. See id. 2

In the case at bar,

the trial court expr

essly found t

h at M s. Scott’s motives for relocating to Maryland

with the children w

ere not vindictive. Mr. Scott does not ch allenge this finding on appeal. Rather, he contends that the circumstances surrounding the relocation serve as evidence of changed cir

cumstances war

ranting a rede

termination of cus

tody. Specif

ically, Mr.

Scott
ar gues that the environme nt to which the child

ren would be expose

d in Marylan

d is unst able an d potentially

dangerous,

noting that the re

location would pla

ce the parties’ children in

close proximity to Ms. Scott’s mother and Ms. Scott’s two brothers, Steven and Bill.

Ms. Scott’s mother owns two homes in Oc ean City, Maryland, a condominium, which
serves as her primary residence, and a two s toryhouse in a community called Ocean Pin

es. Ms. Scott testified that, if allowed to relocate to Maryland, she and the parties’ children would be living rent free in the house owned by her mother. A lthough Ms. S cott’s mother teaches concert piano approximately

thre e to five days

per week, she wo

uld be available a

t different times t

o assist Ms. Scott withchild care. As noted by Mr. Scott, Ms. Scott’s mother has been married four times and, at the time of trial, w

as in the process o

f getting anoth

er divorce. At the time of trial, Ms. Scott’s brother Steven was twenty

-one year s of age and re

sided with his mo

ther in her O cean City condominium. Steven has a history of mental illness and has been treated for manic depression and paranoid schizophrenia. Mr. Scott fears that Ste ven may phy

sically har

m the parties’ chi

ldren. Ms.Scott, however, testifi ed that, at the time of trial, Steven was doing well and was not experiencing any psycho logical problems. She furt her testified, ho

wever, that, bec

ause she had not r

ecently observed Steven’s behavior, she would not be comfortable leaving the children alone with him. Ms. Scott’s brother Bill res

ides in Baltimore. According to Ms. Scott, Bill has been a drug addict for a number of ye

ars and formerl

y engag ed in “running dr

ugs” from Miami to

New York. At the ti

me of trial, Bill was in a drug rehabilitation center in Westminster, Maryland. Ms. Scott admitted that she had previously allowed the parties’ children to be around Bill under the mistaken belief that he was not using drugs. She further testified, however, that she would not allow the children to have future contact

with Bill so long as she had any suspicion that he w

as using drugs a

nd that she would never leave Bill alone with the children.

Mr. Scott also argues that Ms. Scott’s work history is evidence of a material ch ange of circumstances. Ms. Scott is a registered nurse. At the time o f the parties’ divorce, she was working at Middle Tennessee Medical Center and earned between $30,000.00 and $32,000.00 per year. Although Ms. Scott r esigned from thi

s position in May

of 1996, she contin

ued to work a t Middle Tennessee Medical

Center until July of 1996. According to Ms. Scott, she resig

ned from this position because sheplanned to reloca te to Maryland. Shortly thereafter , however, she was served witha court order prohibiting her from removing the parties’ children from the state of Tennessee. Ms. Scott remained unemployed until October of 1996 when she began working for

the Rutherford County Health Department. She resigned from t his position, in April

of 1997 and, in that

same month, b ega n working at the Tennessee Rehab Center. In June of 1997, she resigned f rom her position at the Tennessee Rehab Center. According to Ms. Scott, thisresignation occ urred because she had conflicts

with the director of nursing and because she was experiencing sickness associated withpregnancy. Ms. Scott remained unemploy ed until August of 1997, when she b ega n working for Home Technology, a home health care ag ency, on an “as needed” basis. At tr ial, Ms. Scott testified that she had not worke d for Home Techn ology sinc

e October of 1997 , when she becam e empl oyed by the Rutherford County School Sy stem as a substitute teacher. During the period of time that she substitute taught for the Rutherfor

d County School System, Ms. Scott was experiencing contractions and other symptoms associated with her pregnancy, requiring her to take pr escription medication. At trial, Ms. Scott te stified that she ha

d not worked as a su

bstitute teache r since December of 1997. Although Ms. Scott was unemployed at the time of trial,

she testified that shelooked forward to going back to work and intended to obtain employment after the court rendered i ts decision rega

rding child custo

dy. During

the pendency

of the custody

proceedings, M

s. Scot t received an offer of employment from a hospital in Mary land. Ms. Scott was unable to accept this position, however, beca

use she was unwilli

ng to relocate

without the parties’ children. At the time of trial, Ms. Scott had contacted one hospital, one nursing home, and one he a lth department in Maryland r

egarding pote

ntial employm

ent opportunities.

As additional evidence of chan ge d circumstances, Mr. Scott notes that, during the periodof time that the parties’ children were in the custody of Ms. Scott, there wa s a lapse in the children’s health insurance coverage. At the time of their divorce, the parties agr eed that Ms. Scott would obtain health insurance for the children through her employer and that Mr. Scott would pay the cost o f thi s coverage. A fter Ms. Scott resi

gned from her jo

b, Mr. Scott repea

tedly asked

Ms. Scott to obtain the necessary forms so that the children could be added

to h is h eal th i nsu ranc e po lic y. Ms. Scott called her employer on several occasions in an attempt

to obtain these forms but had not received them at the time that the children’s coverage lapsed on Septembe r 1, 1997. Accord

ing to Ms. Scott, she mistaken

ly believed

that t he children’s ins

urance covera

ge did not expire u

ntil October 1, 1997. Sometime after the coverage lapsed, Mr. Scott contacted Ms. Scott’s em plo ye r dir ect ly, obtained the necessary forms, and subsequently purchased health insurance for the children through his own employer.

Mr. Scott also argue

s that Ms. Scott has demonstratedfinancial irresponsibility since the partie s ’ divorce. Durin g the period of ti

me that Ms. Scott was

unemployed

in 1996, she fell behind on her mortgag

e payments a

nd consequently

received a

letter of foreclosure. In order to delay th e fo reclosure, Ms. Sc

ott filed for Chapt

er 13 bankruptcy

. Ms. Scott subseque

ntly attempte

d to convert the Chapter 13 bankruptcy into a Chapter 7 bankrup tcy. Th e Chapter 7 bankruptcy was ultimately

dismissed, however, because Ms. Scott failed to appear at a scheduled

hearing. Ms. Sco

tt testified that

she did not receiv

e notice of this he

aring. Additiona

lly, Ms. Scott indicated that, if the trial court permitted her to r

elocate with the p

arties’ children, she intended to refile for bankruptcy in Maryland. Finally, Ms. Scott denied that th

e children had su

ffered in any

way as a re

sult of her involvement in bank

ruptcy proc

eedings.Subsequent to the parties’ divorce, Ms. Scott began da ting a man by

the name of Jim Luna. She and Mr. Luna en gaged in an on an d off relationship for approximately two years. At
somepoint in the relatio

nship, Ms. Sc ott became p regnant. Acc ording to Ms. Scott,

the parties’ children were very happy tha t they were going to have a new brother or si

ster. When Mr. Scott learned of the pregnan

cy, howeve

r, he became ve

ry upse t. He questi oned Ms. Scott about the pregnancy

and, in front of the

children, Ms. Scott

commented that “it happens all the time” and that “there is nothing wrong with that.” Shegave birth to the child in January

of 1998. Accordi

ng to Ms. Scott, the parties’ children enjoy having a little brother. Mr. Scott argues that, by having a child out of wedlock and by making such comments in front of

the children, Ms. Scott has failed to set a good example for the children and that such behavior is evidence of a materia l change of circumstances requiring a redetermination of custody.

Fin all y, Mr. Scott argues that his own persona l and fi nancial circumstances have materially

changed since

that parties’ original custody agreement. At the time of the divorce, Mr. Scott worked as a design engineer for Mer cer C orporation and earned $21,000.00 per year. He initially remained in the pa

rties’ apartmen

t but later moved in w

ith one of hisbrothers. At the ti me of trial, however, he was employed as a project eng ineer at Wright Industries and earned $54,000.00 per year. Mr. S cott has recentl y remarrie

d and shares a thr

ee bedroom expand

able home with

his
new wife Teresa Sco

tt. At trial, the new

Mrs. Scott testifie

d that she has a ve

ry good re

lationship withthe parties’ children. Addition ally, Mr. Sco

tt indicated that, i

f the court gra

nted his petition to change custody, the

new Mrs. Scott would quit her job so that she could stay home with the children when they were not in school.

Basedon ou r review of the e ntire record in th

e case at bar, w

e cannot say

that th e evidence preponderates against the trial court’s finding that there has not been a material change of circumstances. There is no evidence that the failed marriages of Ms. Scott’s mother have had any negativeimpact

on the parties’ children. Although we are somewhat concerned about the children’s exposure to Ms. Scott’s brothers, Ms. Scott assured the trial court that the children would not be left alone with Steven and would not have a

ny con tact with Bill if he wa

s using dr ugs. We re

cognize that Ms. Scott’s employment history has been rather inconsistent since the pa rties ’ divo rce. It appears, however, that Ms. Scott i nitially bec

ame unemploy

ed in anticipation

of her relocati

on toMaryland. Additionally, Ms. Scott’s later period of u

nemployment

was, at least

in part, the resul

t Ms. Scott’s pregna

ncy and the

birth of her son. We

also note that, at the tim

e of trial, Ms. Scott was eager to return to work and had inquired about possible employment opportunities in Marylan d. It is undisputed that, subsequent to the divorce, Ms. Sc

ott allowed the chi

ldren’s health in

surance to lapse, apparently because she was mistaken about the date on which their c over age expir

ed. Fort una tel y, there is no evidence suggesting that the children sustained any serious illness or injury during the brief period

of time that they were uninsured. Additionally, we note that, at the time of trial, the children were insured through Mr. Scott’s employer. Subsequent to the parties’ divorce, Ms. Scott experienced serious financialdifficulty and ultimately filed for bankruptcy . There is no evidence, however, that thechildren have suffered in any way as a result of Ms. Scott’s involvement in bankruptcy proceedings. Rather, it ap pears that, although Ms. Scott was unable to pay her creditors during this period of time, she continued to provide for her children in the manner to

which they had become accustomed. At the time of trial , Ms. Scott had recently given birth to a child out of wedlock. During

her pregnanc

y, Ms. Scot t made an isolated comment in front of the children ind icating her belief that there was nothing inappropriate about the fact that she was pregnant . Although we shareMr. Scott’s conce rn that, by becoming pregnant out of wedlock, Ms. Scott is not setting the best example for the children, we can find no evidence suggesting that the children have suffered any adverse consequences as a result of Ms. Scott’s conduct. F inally, we recognize that Mr. Scott’s personal and financial circumstances have improved since the parties’ divorce. Spe cif ica lly,
we note that Mr. Scott h

as remarried a

nd that the new Mrs . Scott has establis hed a good rela

tionship withthe parties’ children. Considering all of the evidence d iscussed above, however, we do not think that the changed circumstances in the instant case are such that the w el fare of the children demanda redetermination of custody. Thus, we conclude that the trial court did not err in deny ing Mr. Sco tt’ s pe tit ion to p reve nt r elo cat ion or, in t he al ter nat ive , to chan ge cu sto dy.

In light of our finding with respect to the question of changed circumstances, we find it un nece ssa ry t o discuss whether a change of cu

stody would be

in the best interes

t of the parties’ minor children.
Child SupportAfter ruli ng that the parties’ minor children should remain in the custody of M s . Scott, the trial court modified Mr. Scott’s visitation schedule to take into account Ms. Scott’s intention to relocate with the children to Maryland. The court then found that, under Tennessee’s child support guideline

s, Mr. Scott is oblig

ated to pay t

o Ms. Sco tt $1,067.00 per mon th as child support. On appeal, Mr. Scott challenges the amount of his child support obligation, arguing that the trial court should have allowed a downwa rd devia tion from the amount prescribed by the guidelines.

When determining the amount of a paren t’s child support ob ligation, trial c

ourts must apply as a rebuttable presumption the amounts set forth in the child support guidelines. See Tenn. Code Ann. § 36-5-101(e)(1) (Supp. 1998). Trial courts havelimited discretion t o deviate from the

se guidelines,

however, in certain situations. See Jones v. Jones , 930 S.W.2d 541, 544 (Tenn. 1996); Nash v. Mulle , 846 S.W.2d 803, 805 (Tenn. 1993); Bowers v. Bowers , 956 S.W.2d 496, 499 (Tenn. App. 1997). The Tennessee rule regarding deviation from

the guidelines provides in pertinent part as follows:
(2) Deviation from the gu ide lines may be appropriate in other cases when the c

ourt finds it is

in the best interest of the child(ren) including, but not limited to, the follow ing: (a) In cases where the Department of Human Services has taken custody of the child(ren) pursuant to a ne glect, dependant, or abuse action and where the parent(s)

is/are making r

easonable effortsto secure the return o f the child(ren) to the family; and/or (b) In cases where physical custody of the child(ren) is more equally divided betweenthe part ies than occurs in a sit uation where one party has a n average amount of overnight vi sitati on as defined in 1240-2-4-.02(6).

. . . . (5) In deviating from the guidelines, primar y consideration must be given to the best interest of the child(ren) for whose

support the guidelines are being utilized.3 It appears as if, in reaching this conclusion, the Eastern Section assumed that the “F riday to S und ay” vi sit ati on d isc uss ed i n Ru le 1 240 -2- 4-. 02( 6) co nsi sts of o nly t wo d ays. Add iti ona lly, the calculation of the Eastern Section apparently does not take into account that some of thenoncustodial parent’s weekend visitation overlaps with the non-custodial parent’s summer and holiday visitation.

4 In reaching this conclusion, we first calculated the amount of summer and holiday visitation that is contemplated by the guidelines. According to Rule 1240-2-4-.02(6), the guidelines assume that the non-custodial parent is exercising two weeks of summer visitation and two weeks of holiday vacation for a total of twenty -eight days. See Tenn. Comp. R. & Regs. ch. 1240-2-4-.02(6)

(1994). Next, we c

alculated the am

ount of weekend v

isitation that is contemplated by the guidelines. Rule 1240-2-4-.02(6) states that the guidelines a ssume that the non-custodial parent is exercising visitation “every other weekend from F riday to Sunday.” Id. Interpreting this rule literally, we think that its drafter s intended for the non-custodial parent’s weekend visitation to consist of three days (Friday , Saturday, and Sunday), rather than only two days . Th us, the amo unt of w eeke nd v isi tat ion ass ume d un der t he gu ide lin es i s eq ual to t wen tyTenn. Comp. R. & Reg

s. ch. 1240-2-4-. 04 (1997). Rule 124 0-2-4-.02(6) pr

ovides as follows:
(6) These

guidelines are

designed to appl

y to situatio

n s where children are liv

ing primarily

with one parent butstay overni

ght with the other

parent a t least as often as ev ery ot her w eeke nd f rom Frid ay to Sun day, two weeks in the summer and two weeks during hol ida ys throughout the year. These guidel ines are designed to consider the actual physical custody of the child(re n ), regardless of whether custody is awarded to one parent and vi

si tation to the other or such an arrangement

is ordered to be jo

int custody or

split cus tod y. In situations where o vernight time

is divided more equally bet

ween the parent

s, the courts will have to make a case-by

-case determin

ati on as to the ap propriate

amount of support (reference 1240-2-4- .04).

Tenn. Comp. R. & Regs. ch. 1240-2-4-.02(6) (1994). Interpreting this rule, the Easte rn Section of this Court previousl

y stated tha

t the guidelines a

ssume that the child

is inthe care of the

custodial parent approximately 285 days per y ear and is in the care of the non-custodial parent during the remaining 80 days of the year. 3 See Morgan v. Morgan , No. 03A01-9705-CV-0 0166 , 1997 WL 672063, at *2 (Tenn. App. Oct. 30, 1997). See also Casteel v. Casteel , No. 03A01-9703-CV-00073, 1997 WL 414401, at *2 (Tenn. A pp . July 24, 1997) (“The parties c oncede that an a

llowance is factored into the Guidelines for the 80 days residency of the children with their father, and that if the children spend more time with the obligor than is assumed his child support payments should b e reduced.”). Based

on our calculations, however, we think that the rule assumes that child spends 265 days per ye ar i n th e car e of t he cu sto dia l pa rent and 100 days per year in the care of the non-custodial parent. 4six weekends at three days per weekend for a total of seventy -eight days. This total must be reduced, however, to reflect that two of these weekends overlap with the non-custodial pare nt’s summer and holiday visitation. Accordingly, only seventy-two days, rather tha n seventy-eight days, should be included as weekend visitation. When the amount of the non-custodial parent’s summer and holiday visitation (twenty-eight day s) is added to the amount of the non-custodial parent’s weekend visitation (seventy-two day s), the total amount of visitation contemplated by the child support guidelines is 100 days per ye ar. It follows, then, that the child is assumed by the guidelines to be in the care of the custodial parent during the remaining 265 day s of the year.
5 Using the calcu

lations of the East

ern Section of this

Court, however, M

r. Scott has a right to exercise thirty-three more day s of visitation than are contemplated by the child support guidelines. In the instant case, the modified visitation schedule allows Mr. Scott to visit with the parties’ minor children a total of 113 days per year . Thus, this schedule affords Mr. Scott thirteen
more days of visitation than are contemplated by

the child support g

uidelines. 5 Although the trial court recognized this

excess visitation, it declined to decrease Mr. Scott’s child support obligation pursuant to Rule 124

0-2-4-.04(2)(b

), explaining as f

ollows:
Even though this goes more tha n what standard vi

sitation is, I’m going to find that it is not app ropr iate to deviate from the Guidelines. The basis for th at is that Ms. Scott is g oing to have to help with some of the

se transportation

costs.

On appeal, Mr. Scott notes that the transportation expenses referr

ed to by the tr

ial court are sole

ly the result of

Ms. Scott’ s decision

to reloca te with the

children to Mary land. We find, however, that the origin of these expenses is irrelevant. Reg ardless of the reason that Ms. Scott must incur the transportation costs, the end result is a reduction in the amount of money that Ms . Scott has availab le to use for the support of the parties’ children. When deviating from the child support guidelines, the court’s pri mar y considera tion is the best interest of the child for whose support the guidelines are being utilized. See Tenn. Comp. R. & Reg s. ch. 1240-2-4-.04(5) (1997). Given Ms. Scott’s recent financial difficulties and t he impact that the t

ransportation expe

nses are likely

to have on her abi

lity to support the parties’ children, we do not think that it is in the children’s best interest to allow a downward

deviation from the guidelines. Thus, we findno error on the pa rt of the trial cou

rt with respect to its calculation of Mr. Scott’s child support obligation.
Attorney FeesIn matters of child custody, trial courts areauthorized by statute to grant attorney fees

to the party to whom custody is awarded. See Tenn. Code Ann. § 36-5-103(c) (Supp. 1998). In the instantcase, however

, the trial court r

uled that each of

the parties is res

ponsible for his or her

own attorney fees. Ms. Scott

argues on appea

l that the trial cou

rt should have req

uired Mr. Scott to

pay her attorney fees. In support of this argument, Ms. Scott relies on Sherrod v. Wix , 849 S.W.2d 780 (Tenn. App. 1992). In Sherrod , the trial court initially awarded custody of the parties’ infant son to Mrs. Wix. See id. Within months of this determination, Mr. Sherrod bega n investigating Mrs. Wix’s activities. See id. He hired a private investigator, followed Mrs. Wix, and actually examined her garbage in an ef

fort toobtain incriminating evidence against her. See id. Mrs. Wix subseque ntly obtainedan order enjoining Mr. Sherrod from harassing her. See id. Mr. Sherrod then filed a petition to change custody. See id. During the course of discovery, Mr.

Sherrod mailed to M

rs. Wix
a questionnaire seeking personal information regarding her current marriage. See id. at 783. The questionnaire purported to be from “Modern Woman Research” and promised that, if retur ned within ten days, Mrs. Wix woul

d receive a free subscription to a popular women’s magazine. See id. Mrs. Wix completed and returned th e questionnaire to a post office box that had been rented by Mr. Sherrod. See id. At the conclusion of the hearing on Mr. Sherrod’s petition to change custody, the trial court (1) denied the petition, (2) found that Mr. Sherrod’s conduct regarding the questionnaire constituted harassment in violation of the injunction, and (3) ordered Mr. Sherrod to pay Mrs. Wix’s attorney fees. See id. at 783, 784. On appe al, we held as fol

lows:

Basedon the facts of this case, the trial cour t prop erly determinedthat Mr. Sherrod should pay the legal expense

s Mrs. Wix incurred in responding to his request for a change in thecustody. Mr. Sherrodprecip itat ed these proceedings, and the obsessive way he pursedMrs. Wix

prolongedthe proceedings and added signific

antly to their expense. He

did notultimately carry

the day, and many o

f his allegations were eventually found to be unwarranted.

Id. at 785.

Unlike Mr. Sherrod, Mr. Scott did not engage in any obsessive or harassing behavior that prolonged the cus

tody proceedings

or added signific

antlyto their expense. Ms. Scott suggests that Mr. Scott prolonged

the proceedings

by calling as witne

sses various fa mily members who offered cumulative testimony. We disa gree. Mr. Scott ca

lled only six

witnesses during the one dayhearing on his petition to prevent relocation o r ch ange custody. Even assuming that some of the

testimony of these witnesses was cumulative, we cannot say that the trial court’s allowance of this testimony had any significant impact on the length or expense of the proceedings. Finally, although Mr. Scott admittedly did n ot prevail at the tr

ial court level,

his allegations were not unwarranted as
were many of the allegat ions of Mr. Sherrod . Rather, the fac

ts of the instant ca

se were largely undisputed by Ms. Sco tt. In lig ht of these undisputed facts, Mr. Scott apparently had genuine
concerns regarding the welfare of the parties’ children. Thus, we think that the facts of Sherrod are distinguishable from those of the case at bar.

The all owance of attorney fees in child custody cases is largely within the soun d discretion of the trial court. See , e.g., Smith v

. Smith , 984 S.W.2d 606, 610 (Tenn. App. 1997)( citing Storey v. Storey , 835 S.W.2d 593, 597 (Tenn. App. 1992)). Absent an abuse o f discretion, reviewing courts will not interfere with a trialcourt’s ruling regarding this matter. See id. We can find nothing in the record of the instant case sug gesting that t he court abused i

ts discretion. Acc

ordingly, we uphold

the court’s denia

l of Ms. Scott’s req

uest for attorne

y fees.

Conclusion

Based on the foregoin

g, the ruling of

the trial court is in

all respects aff

irmed. Costs
on a ppe al a re as ses sed to M r. S cot t, f or w hic h ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ HIGHERS, J. (Conc

urs)

______________________________ LILL ARD, J. (Concurs)