### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON A pr il 23, 200 9 S es sio n JAME S J EFFREY JACKS ON

v. KRIS TI LY N WILL IAM S An Appeal from the C hancery Court for D yer C ounty No. 03C236 Donald P. Harris, Senior Jud ge

No. W2008-00148-C OA-R3-C V - Filed September 18, 2009

This is a post-divorce pe tition for contempt and to mo d i fy a pa renting plan. The parties divorc ed when their

son was about thre e yea

rs old. They we re a war ded joint custody of their son and the mother wa s designated a s t he primary residential pa rent. Many disputes e nsued. The f ather filed a c on te mpt pe tit iona ga ins t th e mothe r, c la im ing th a t sh e wa s in c on te mpt fo r f a ili ng to s c he du le c omp e ns a tory w e e ke ndpa re nti ng tim e fo r the fathe r a ft e r the c hil d s pe nt o ne of his we e ke nd s w ith the mother, a nd for causing the father to miss six scheduled tele phone ca lls with t heir son over an eight-month period. The fathe r asserted that this a nd other conduct showed that the mother intende d to alienate the child from him, and on thi s basis filed a pe tition t o modify the pare nting plan. After a he ari ng , th e tr ia l c ou rt

de nie d th e fathe r’ s p e tit ion s for c on te mpt a nd fo r mod if ic a tio n. W e a ff

ir m. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Chancer y Court is Aff irme d and Remanded
H OL LY M. K I RBY , J., delivere d the opinion of the Court, in which A LA N E. H I G H ERS , P.J., W. S., and D AVI D R. F ARMER , J., joined.
Thomas E. We akley, Dye rsburg, Te nnessee , for the a ppellant, James Je ffe ry Jac kson.
Dea n P. Dedmon and Willi am Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellee, K risti Lyn W ill ia ms.
OP IN ION
F ACT S AND P R O C EE D ING S B E L OW
This is the s ec ond post-divorce appea l in this case . Petitioner/Appellant James Jef fre y Jackson ( “Father ”) and Respondent/Appellee Kristi Lyn Williams (“Mother ”) had a son, Alec ( born August 15, 2 0 0 0 ), d u ri ng their marriage. The parties we re divorc ed by fina l decr ee e ntere d on Marc h 10, 2004. In the final dec ree of divorce , the trial court awar ded the pa rties joint custody ofJ ud ge R

. L ee M oo r e, J r
. , w ho had pres i ded o ver t he p rev i ou s procee di ng s , r ecus ed hi m s el f

. I n Sept em ber 1 2 0 0 6 , t h e H o n o rab l e D o n ald P

. H arris, S en i o r Ju d g e, w as d esig n ated t o p resid e o v er th e p ro ce ed i n g s.

The c as e w as r em ande d f or a de t er m i nat i on r ega r di n g the am o u nt of Fa t her ’ s obl i gat i on f or out s t andi ng 2

m e d ic a l ex p e n se s in li g h t o f a m o u n ts th a t h e h a d a lre a d y p a id

. S e e H o lla n d sw o rth , 2006 W L 3371137, a t *3- 4. -2- Alec and designated Mother as the primary residential pa rent. A de tailed par enting plan was e ntere d establishing a sche dule for the parties’ residential pa renting time and setting forth the sta ndard pare nting orders. See Holland s w orth v. Jackson , No. W2005- 02091-COA-R3-CV, 2006 W L 3371137, at *1 (Te nn. Ct. App. Nov. 21, 2006).
On October 29, 2004, Father filed a petition to modify custody. In r esponse, Mother filed a c on te mpt pe tit iona ga ins t Fa the r. In Fa the r’ s pe tit ion , he a lle ge d th a t Mo the r h a d in te rf e re d w ith a te le ph on e conve rs a tio n b e tw e e n Fathe r andAl e c a ndge ne ra lly e ng a ge d ina c ou rs e of ho sti lit y against Father, a sserting that this amounted to a material change in c ircumstance s. After a lengthy hearing , th etr

ial court de nied Father’ s petition to m odify custody and also denied Mother’ s contempt petition against Father. On August 24, 2005, the tria l court ente red an order stating that both parties ha d e ng a ge d inina

pp ro pria te be ha vio r an d ha d fa ile d to f os te r a go odre la tio ns hip be tw e e n th e c hil d and the other

pare nt, but it conc luded that these c ircumstance s existed at the time of the final dec ree of divorce and that ther e was no materia l c hange in c ircumstance s. There fore , the trial court declined to modify the pare nting plan. Father appe aled.
Meanwh il e, w hil e thefi rs t app e a l w a s p e nd ing , Fathe r f ile d a c on te mpt

pe tit iona ga ins t Mo the r. Fa the r c la ime d th a t Mo the r v iol a te d th e tria l c ou rt ’s pr e vio us or de rs by faili ng to p e rm it Father to have residential pare nting time on the first wee kend in Septe mber 2005, which was La bor Da y we ek en d

. Father a lso asserted that Mother did not comply with the original order granting Father re asonable telephone c ommunication. On October 27, 2005, the trial court e ntere d an orde r fi nd ing that Mo the r wa s no t in c on te mpt of c ou rt . H ow e ve r, in an atte mpt to r e me dy the pr ob le ms with the telephone communication betwee n Father a nd Alec, the trial court e ntere d an orde r giving Father the right to have telephone communication with Alec e ach Tuesday and Thursday e vening a t 8: 00 p. m. On June 9, 2006, a lso while Father’s f irst appea l was pending, Father filed a petition, pr o s e , for “ Contempt and [$]100,000,000 M i llion for Slander a nd False Allegations” a gainst Mother. Fa the r al le ge d tha t Moth e r “and he r hor de of famil y an d frie nd s” c omm itt e d sla nd e r an d ma de fa lse allegations against him , and that Mother had not followed the te lephone sc hedule e stablished in the trial court’ s October

2005 order . On September 26, 2006, Mother filed a motion to dismiss Father’s c omp la int fo r failu re to state a c la im up on wh ic h re lie f c ou ld be gr a nte d a ndfo r f a ilu reto c omp ly wi th the ru le s g ov e rn ing theiss ua nc e of su bp oe na s. 1
On Novembe r 21, 2006, this Court filed its opinion in the first appea l, upholding the trial court’s de ci sion on Father’s petition to modify custody and re manding the ca se for further pr oc e e din gs
. Id. at *4. The a ppellate c ourt commented: “ It is clear that Alec is c au ght in the 2
c ro ss- fi re of

Mo ther andFa the r’ s on -g oin g a nd e sc a la tin g ho sti lit y to wa rde a c h o the r. Cle arl y, thi s is not in Alec’s best intere st.” Id. at *3.O n Ju n e 1 8 , 2 0 0 7 , t h e tri al co u rt en t ere d an o rd er c o n si st en t w i t h i t s o ral ru l i n g s. 3
-3- A w e e k l a t e r , o n N o v e mb e r

2 8 , 2 0 0 6 , F a t h e r

f i l e d a n a d d i t i o n a l pr

o s e pleading, entitled

“ Pe tit ionfo r M od if

ic a tio n of Cus tod y an d Cont e mpt .” Th is p e tit ionstate d s imp ly that Fathe r “ wi ll sh ow thi s Co urt th a t th e ir [s ic ] h a s b e e n a

ma te ri a l c ha ng e in c ir c ums ta nc e that w ou ld w arr a nt a changeof custody,” and that Mother “is in c ontempt of this Court.” On February 2, 2007, Mother filed a motion to dismis s F at h er ’s petition and hold him in contempt of court. She claimed that Father’s p et i t i o n l ac k ed t h e r eq u i s i t e s p ec i fi ci t y an d wa s a c o n t i n u at i o n o f t h e s am e a l l eg at i o n s ra ised in his prior petition, f

i l ed b ec au se he w as unhappy w ith the outcome of the f irst appea l and other ru lin gs in M oth e r’ s fa vo r. Mo the r a sse rt e d that Fa the r’ s pe tit ion wa s fi le d to ha ra ss he r andc aus e needle ss liti gation. She later amended he r petit ion to include a r equest for attorney’ s fee s pursuant to Tennesse e Code Annotated § 36-5-103( c).
On Februa

ry 12, 2007, the trial c ourt held a hearing in the matter. Our appellate rec ord does not include a transcript of t h at hea ring. Father wa s instructed to amend his motions to include a more spec ific statement to support t h e relief sought; all motions were he ld in abeyanc e pending Father’s f iling of a more spe cific state ment. Acc ordingly, o n F ebruary 27, 2007, Father filed an 3 “Amende d Mo ti o nf

o r Modification of Custody and Contempt,” alleging that Mother “ha s continued on a cour se of c onduct towar d alienating his relationship with the parties’ minor child, Alec.” Father a lle ge d th a t Mo the r c on tin ue d to make fa lse a lle gatio ns a ga ins t hi m, w ou ld n ot r e sp on d t o h is re qu e st t o e xc ha ng e Al e c a t a loc a tio n oth e r than a la w e nf or c e me nt a ge nc y, wo uldno t r e sp on d to his re qu e st t o atte ndc ou ns e lin g r e ga rd ing Al e c , r e fu se d to co mmuni c a te wi th F a the r, de nie d h im telephone c ommunicatio n wi t h Alec f rom time to tim e, failed to inform him of medical or de ntal service s relate d to Alec, a nd ra n a new spaper birthday announc ement for Alec that identified Mother’s pr esent husband a s Alec’ s father without mentioning F ather

. Also o n February 27, 2007, Father filed an “Amende d Motion F or Contempt and [$ ]1 00 ,0 00 ,0 00 Mil lio n f

or Sla nd e r andFa lse Al le gatio ns .” Th is m oti on state d that Mo the r wa s in c on te mpt of thetr ia l c ou rt ’s or de rs fo r n ot a llo wi ng Fa the r a “vi si tat io n ma ke up we e ke nd ” wi th Alec to c ompensate f

or Father’ s regular

wee kend with Alec that was missed on P resident’s Day wee kend bec ause that was Mother’ s designated holiday. The motion also asserted that Mother failed to allow Father his court-order ed telephone communication on six differ ent occa sions. On July 10, 20 07 , M oth e r f

ile d r e sp on se s to Fa the r’ s a me nd e d mo tio ns
. On Octobe r 9, 2007, the trial c ourt held a he aring in the matter. Father was re prese nted by c ou ns e l w ithre sp e c t on ly t o c on te mpt -r e la te d is sues . Fathe r c on tin ue d to re pr e se nt h ims e lf wi th respe ct to the claim for

$100,000,000 for slande r/false allegations and his petition to modify the pare nting plan. At the outset of the hearing, the trial court dismiss ed the damage s claim based on slander/f alse a llegations for lack of subject matter jurisdiction. This ruling has not been appe aled. The he aring proc eede d on Father’s c ontempt petition and his petiti on to modify custody.
Father testified a

bout the conduct that he felt supported hi s cl ai m s against Mother. I n February 2006, Father said, Mother exer cised he r re sidential pare nting tim e with Alec on President’s Day we ekend be cause the par enting plan allocat ed the Pre sident’s Day holiday to he r. The-4-

Pr e sid e nt’ s D a y w e e ke ndin 20 06 fe ll on Fa the r’ s re gu lar w e e ke ndwi th A le c . Fathe r s ub mitte d in to evidenc e a May 2, 2006 letter fr om his attor n ey t o M o ther’s attorney re questing that Mother schedule a make -up we ekend, as they had done in the past. Up to the time of trial, Father claimed, Mother had r efuse d t o co o p er ate in scheduling this compensatory wee kend. Father admitted, howeve r, that Mother ha d acc ommodated hi s reque st for a few extra days adde d on to his summ er residential pa

renting time.
Father a lso testified that, on six differe nt occa sions between A pril 27 and Dec ember 26, 2006, Alec was not a vailable f or his court-or dere d 8:00 p.m. Tuesday/Thursday telephone c all. On these oc casions, whe n Father did not rea ch Alec by telephone at 8:00 p.m., Father ca lled the local sheriff ’s offic e for

assistance , to ensure that a re port was f iled in order to have a

written re cord of the ph on e c a lls he mis se d. In a ll, Fa the r c a lle d th e sh e ri ff ’s of fi c e ov e r t we nty -f

ou r t ime s. Onc ro ssexamination, Father conce ded that, on eac h of the six occ asions in dispute, he spoke with Alec on the telephone at some point later in the e veni n g ; Father insisted that the later c ontact with Alec occur red only be cause the sherif f’s de partment for ced M o t h er to call him. On eac h occa sion, someone fr om the sheriff ’s department c ontacted Mother, and afte r talking to he r informe d Father that Alec w as at some e vent that preve nted him from calling Father at 8:00 p.m. F ather attributed Alec’ s unavailabi li tyo nth e s eo c c a s io n s to M other’s e fforts to frustrate his telephone communication with his son.
Mother also testified at the hearing. She said she believe d that allowing Father e xtra days in the summer of 2006 made up for the w eeke nd he missed in February 2006. Regarding the missed telephone c alls, Mother ac knowledged that on six dates F ather did not rec eive a telephone c all from Al e c a t 8: 00 p. m. S he e xp la ine d th a t, o n e a c h o c c a sio n, Al e c wa s in vo lve d in so me kin d o f e ve nt, su c h a s a fu ne ra l vis itatio n or c hu rc h e ve nt, a nd that Al e c e ve ntu a lly sp ok e to Fa the r on a ll of tho se e ve nin gs . M oth e r c ha

ra c te ri z e d th e mis se d te le ph on e c a lls a s si mpl y “mi sh aps ,” a ndno te d th a t, i n fo ur ye ars , s he ha d mi sse d o nly six sc he du le d te le ph on e c a lls

. Mother and Father both te stified about difficulties that occur red w hen Alec was e xchange d from one pa

rent to th e o t h er
. In the pa st, the exchanges had taken plac e at a local Burger

King restaur ant, which Father pref err ed. At the time of trial, the exc hanges w ere taking place at the loca l police depa

rtment. Mother c omplained that Father usua lly brought a video camera to rec ord the exchange. Father

complained a

bout Mother’s family members being pre sent for the exchange. Mother admitted plac ing a notice in the loca l newspa per on the occa sion of Alec’ s birthday, wh ic h in c lud e d a

ph oto of Al e c wi th a

c apti on statin g th a t he wa s “ the so n o f Jay and Krist i Williams,” when in fa ct Alec is Father’s son and Jay Williams’ stepson. Mother said that she purp o s ef u l ly did not mention F ather ’s name, c ommenting that Father could have place d a similar notice in the new spaper

himself. She testified that she informs Alec’ s medical pr oviders that Father is Alec’s biologica l father , but indicates that she is t h e primary residential pa rent for medical pu rp os e s. Ho we ve r, sh e auth oriz e s th e me dic a l pr ov ide rs to g ive F ath er in for ma tio n o n A le c if reque sted, and lists Father as A lec’ s biological father on school information shee ts. Both M other and Father

testified that they havetried family counseling; not surprisingl y, both said that it had not wo rk e d f or the m. M oth e r t e sti fi e d th a t sh e ha s e xp e nd e d a bo ut $ 20 ,0 00 in atto rney ’s fees inThe t r i al c our t a l s o gr ant ed M ot her ’ s m ot i on f or s anc t i ons i n t he am ount of $300 bas ed upon Fa t her ’ s not i ci ng 4 M o t h er’s de p o si t i o n bu t fai l i n g t o s ecu re cou rt repo rt i n g s ervices , t h ereb y cau si n g M o t h er t o ex p en d un n eces sary att o rn ey ’s fee s.

T h e t ri al j u d g e al so cau t i o n ed Father: 5

I k n o w th a t t h e re a re p ro b le m s. B u t I te ll y o u w h a t y o u ’r e a b o u t t o g e t i n to b e c a u se w h e n th a t ch ild g e ts to b e c lo s e t o t e e n a g e y e a rs , t h e n h e ’s g o in g to h a v e a m in d o f h is o w n . A n d if so m e th in g is
u n p le a sa n t ab o u t h a v in g to c o m e se e y o u , h e ’ll ju st re fu se to d o it . A n d y o u ’r e m a k in g it u n p le a sa n t.

-5- defe nding against Father’ s petitions for contempt, petitions to modi fy, and othe r motions and petitions.
At the conc lusion of the hearing, the trial court found that Mother wa s not in will ful contempt of court with regar d to the missed President ’s Da y wee kend in 2006, or the f ailure to ha ve Alec available by telephone to Father at pre cisely 8:00 p.m. on six occasions in 2006. In addition, the trial court held that Father ha d not established a mate rial change in circ umstances suff icient to justify changing the pa

renting ar range ment to designate him as the pri m ar y residential parent. The trial judge commented, “ It seems to me the circumstanc es have been the same since this divorce

. . . .” 4 The trial c ourt observe d that Father was to blame for much of the “ esca lating hostil ity” betwee n the pa rt ie s:
I don’t kno w wh at h as to happen, but something has to happe n to stop you fr om d oin g th is. And, Mr. Jac kson , t o tell you the truth, I find that most of it is you. You know, you ca ll the s heriff ’s department and lea ve those phone messages, and every tim e yo u do tha t, the y ha ve to fi ll out a re po rt a nd c ir c ulate it andapp ro ve it andfi le it and keep r ecor ds of it, and that’s re ally an abuse unless th ere ’s somebody who’s committed a crime. And this is not a crime.

. . . And I don’t know, I ’m surprised the sheriff hasn’t gotten a restraining order to preve nt you from ca lling over there beca use you’ve got to the point every time you call they’ ve got to send out a re port. . . . 5
Th e tr ia l c ou rt

de nie d M oth e r’ s r e quest fo r atto rn e y’ s f e e s, ins truc tin g M oth e r’ s c ou ns e l th a t, t o obtain a fe e aw ard, she would be re quired to f ile a motion for sanctions pursuant to Rule 11 of the Tenne ssee Rules of Civil Procedure . On J anuary 14, 2008, the t rial cour t entere d an orde r consistent with its oral ruling. The trial court subsequently cert i fi ed t h i s order as a f inal appea lable orde r. Fr om this or de r, Fa the r n ow app e a ls.

I S S UE S ON A PP E AL AND S TAN D A R D OF R EVIEW On appe al, Father a

rgues that the trial court erre d in denying his moti on for c ontempt based on Mo th e r ’ s f

a il u r e to c o o p e r a te w ith Fath e r in c o mp e n s a ti n g f o r th e mi s s e d Pr e s id e n t’s Day-6-

wee kend and f

or failing to comply with the t rial court’s order on the s ix occa sions mentioned above regarding te le p h o n e c o mmu n ic a ti o n
. H e f u r th e r ar g u e s th a t th e tria l c o u r t e rr e d inf in d in g no materia l change in circumstanc es to w arr ant a change in the pare nting plan to designate him as the primary r esidential par ent.
The trial c ourt’s findings of fa ct ar e re viewed de novo on the reco rd, pr e su min g th os e findings to be correc t unless the preponde ranc e of the evidenc e is otherwise

. Kendrick v. Shoemake , 90 S.W .3 d 566 , 5 70 (T e nn . 2 00 2) ; Hass v. Kni ghton , 67 6 S.W .2 d 55 4, 55 5 (T e nn
. 19 84 ); Te nn . R. App. P. 13(d). In weighing the preponde ranc e of the evidenc e, the trial court’s f indings of fac t that are based on witness cre dibilit y are given great weight, and they w ill not be overturned a bsent clea r and convinc ing evidence to the contra ry. In r e Ado ption o f A .M .H. , 215 S.W.3d 793, 809 (Tenn. 2002). Whe ther a

party fa cing an a llegation of civil contempt ac tually violated the trial court’s order is a question of fa ct , s ubject to this standard of r eview. Hawkin s v. O'Brien , No. M2008-02289-COA- R3-CV, 2009 WL 2058802, at *1 ( Tenn. Ct. App. July 15 , 2009). Whe n a pare nt files a petition to modify the parenting plan, the petitioning parent ha s the burden of showing that a ma te ri a l c ha ng e in c ir c ums ta nc e s ha s oc c ur re d wh ic h make s the c ha ng e se rv e the c hil d’ s b e st interest. Blair v. Badenh ope , 77 S.W.3d 137, 148 (Tenn. 2002)

. The trial court’ s conclusions of law ar e re viewed de novo , with no such presumption of cor rec tness. Kendrick , 90 S.W.3d at 569-70.
A N A L Y SIS
Cont empt
We f irst examine whether the evidenc e pre ponderates aga inst the trial court’s c onclusion that Mother w as n o t in contempt of court by her failure to compensate for Fathe r’s missed we ekend pare nting tim e in Februa ry 2006 and he r fai l ure to c omply with the trial court’s orde r re garding telephone c alls o n six occa sions. In order to establish that Mother was in c ontempt of the trial court’s or ders, the f

ollowing mustbe shown: First, the order a lleged to have been violate d must be “lawf ul.” S ec o n d , the orde r alleged to ha ve been violated must be clea r, specific , and unambiguous. Third, the pe rs on a lle ge d to hav e vio la te d the or de r mus t hav e a c tua lly dis ob e ye d or o the rw ise resisted the or der. Fourth, the pe rson’s violation of the orde r must be “willful.”
Konv alinka v . Chat

tan oo ga -H amilto n Coun ty Hos

p. Auth. , 249 S.W.3d 346, 354-55 (Te nn. 2008) (footnotes omitted).
Fr om o ur re vie w o f the re c or d, we c a nn ot c on c lud e that th e e vid e nc e pr e po nd e rate s a ga ins t the trial court’s finding that Mother’s a lleged failure to make up Fathe r’s missed President’s D ay wee kend or Mother ’s fai l u re to make Alec available for six out of seve ral hundre d require d te le ph on e c a lls a t th e app oin te d ti me di d no t amount to w ill fu l vi olatio n o f the c ou rt ’s or de rs
. Mother testified that she was unde r the impression that the i s s u e o f Father’ s missed weeke nd had been r esolved by he r agr eeme nt to additional residential pare nting time for Father in the summer of 2006. Mother also testified that she had good rea son for the six ti mes that Alec missed the telephone c a ll w ithFa the r at th e de sig nate d ti me , a ndthat Fathe r e ve ntu a lly sp ok e to A le c on each of the seFa t her a ppea r s t o i ndi ca t e t hat t he oper abl e par ent i ng pl an or der i s t he one en t ered o n A ugus t 24, 2005; 6 ho w ever , w e not e t hat t hi s order di d no t al t er t he pare nt i ng ar r angem ent s et out i n t he fi nal decr ee of di vo r ce. -7- occa sions. Thus, th e t el ep h one ca lls were de layed, not denie d. The trial c ourt cre dited Mother’s testimony on both of th es e i s s u es
. On appea l, we ar e re quired to give gre at def ere nce to the trial court’s de termination on witnesses’ c redibility. Se e In re A do ption o f A .M .H. , 215 S.W.3d at 809. Gi vin g a pp ro pria te de fe re nc e to the se c re dib ili ty de te rm inatio ns , w e c on c lud e that th e e vid e nc e in the re cord supports the trial court’s findings. There fore , we a ffirm the tria l court’s de nial of Father’ s pe tit ionfo r c on te mpt

. Modification of Parentin g Plan
Father ne xt argue s that the t rial court err ed in denying hi s petition to m odify the par enting plan base d on the behavior described above and also on Mother ’s continued c onduct in “alienating [Father’ s] re lationship with . . . Alec.” In support of this c laim, Fathe r asse rts that Mother re fuses to consider e xchanging Ale c at somepla ce othe r than the police station, ref uses t o attend counse ling rega rding issues perta ining to Alec, fails to inf orm him of medical or dental services re lated to Alec , and discoura ges a close parent/child relationship between him and Ale c. Father points to Mot her’ s pla c e me nt o f the birthd a y a nn ou nc e me nt i n th e ne ws pa pe r, ind ic a tin g th a t her curr ent h us ba ndis Alec’ s father , as evide nce of Mother’s intent to discoura ge Father ’s re lationship with Alec.
From our car eful re view of the rec ord, the e vidence does not support Fa t her’ s claims that c ir c ums ta nc e s a

re ma te ri a lly dif

fe re nt tha n th e y wer e a t th e tim e of the fi na l de c re e
. Sa dly , it 6 appea rs from the record that the parties’ difficulties have been mor e or le ss constant since the divor ce decr ee w as ente red. Certainly, Mother’s misguided “birt h d ay announcement” in the loca l newspa per, impl ying that her husband is Alec’ s fathe r, was insensitive to both Father and Alec. For his part, Father dismiss es any attempts by Mother to c ooperate with him as mere ly trying to “look good” to the trial c ourt, ce rtain that her cooper ation was motivated only by h i s n u m er o us filings against her . Father’s rigidity regarding Alec ’s telep h o n e calls and his “r eporting” Mother to law enfor cemen t u n d o u b tedly cre ates c onsiderable pressure for young Ale c, and indicates that Father va lue s p e na liz ing Mo the r mor e than bu ild ing a nu rt uring fathe r/ so n r e la tio ns hip . U nd e r a ll o f the se circ umstances, we must affirm the tria l court’s de nial of Father’ s motion for modification of the pare nting plan. Fees on Appeal
Mother has r equeste d her attorney’s fe es and costs on appea l pursuant to Tenne ssee Code Annotated § 27- 1-122, alleging that Father ’s appe al is frivolous. The decision of whether to awa rd damage s for the f

iling of a frivolous appe al re sts in t he discre tion of this C ourt. Whalu m v. Ma rsh all , 224 S.W.3d 169, 180-81 (Te nn. Ct. App. 2006) (citing Banks v. St. Francis H osp. , 697 S.W.2d 340, 343 (Tenn. 1985)). An appea l is frivolous when it ha s “no rea sonable chanc e of succe ss, ” o r i s “so utterly devoid of me rit as to justify the imposi tion of a pena lty.” Id. (quoting Jackson v. Aldridge , 6 S.W .3 d 5 01 , 5 04 (Tenn . Ct . A pp . 1 99 9) ; Combu stion Eng’g, In c. v. Kennedy , 5 62 S.W .2 d 2 02 , 2 05 (T e nn
. 19 78 ))

. In thi s c a se , e ve n if Fa the r s tr on gly dis a gr e e s w ith-8-

the trial court’s determination as to the parties’ c redibility, he fails to point to “ clea r and convinc ing” evidenc e to the contr ary. In r e Ado ption o f A .M .H. , 215 S.W.3d at 809. Ther efor e, we are obliged on appea l t o defe r to the trial court’s finding that Mother’s testimony was c redible. Id. The trial c ou rt c re dit e d Mo the r’ s e xp la natio n that the te le ph on e c a lls wi th Al e c did no t oc c ur a t 8 :0 0 p .m. beca use of unavoidable circumstance s, and that ea ch telephone call took placelater in the e vening. Father admits that the telephone calls wer e mere ly de layed. The trial court cre dit ed Mother’s explanation that she acc o mm o d ate d Fa th e r ’ s r e q u e s t for additional par enting time during the summer of 20 06 , in pa

rt to c omp e ns ate fo r the mis se d Pr e sid e nt’ s D a y w e e ke nd , a ndFa the r a dmi ts t o rec eiving the extra

pare nting time in the summer. Based on this re cord, we can only conclude that Father’s appea l ha d “no rea sonable chanc e of succe ss.” Wha lum , 224 S.W.3d at 180-81. Unde r the c ir c ums ta nc e s inthi s c a se , w e fi ndthat Mo the r i s e nti tle d to he r re a so na ble fe e s a ndc os ts o n a

pp e a l, and we rema nd the ca se to the trial court to determine the amount of the fee awa rd.
The de cision of the trial court is aff irmed, and the case i s rema nded for further proce edings consistent with this opinion. Costs on appea l are to be taxed to Appellant Jame s Jeffr ey Jac kson and his surety, for w hich exe cution may issue, if nec essary.

__________________________________________ HOLLY M. K IRBY, JUDGE