### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE AUGU ST 8, 200 2 Session THOMAS CORNEL IUS MONROE v. C ATHERINE ROBINS ON (MONROE) Direct Appeal from the Circuit Court for Davidson County No. 98D-485; The Honorable Muriel Robinson, Judge

No. M2001-02218-COA-R3-CV - Filed January 16, 2003

This appeal arises from the granting of a petition to object to removal of a minor child. The t ria l court granted the father’s petition and pre vented the mother from relocating out o f state with the minor child, finding that the parties spent substantially equal time with th

e child and that the move was not in the child’s best interest. The parties raise multiple issues on appeal. For the following reasons , we aff

irm.
Tenn. R. App.P. 3; Ap peal as of Rig ht; Judgment of the C ircuit Court Affirm ed and Remanded
A LAN E. H IGHERS , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined. Matthew Mayo, Na shville, TN, for Appellant Abby R. Rubenfeld, Rose T. Palermo, Na shville, TN, for Appellees OPINION Facts and Procedural History Thomas Monroe (“Mr. Monroe”) and Catherine Robinson

(“Ms. Robinson”) were granted a divorce on the grounds of irreconcilable difference s on July 26, 1996. The final divorce decr ee incorporated

a Marital Dissolution Agreement (“MDA”) w hich provided

that Mr. Mo nroe and

Ms. Robinson would share joint custody of their minor daught er. The parties a lso included

a clause in the MDA stating that “the parties ag re e t ha t t he y will contin ue to main

tain their residence in Davidson Co un ty, Te nn es se e, or an ad jo in in g c ou nt y, at least u

ntil the min or child

reaches Eighteen (18) and graduates from hig h school, whichever occurs last.”-2-

Thereafter, on Ma y 19, 19 99, Ms. Robinson sent M r. Monroe

written n otice, pu

rsuant to Tennessee Code Annotated section 36-6-108(a), of her intent to relocate to North Carolina with the minor chil d. M r. M onr oe f

il ed h is Pet it io n t o Objec t t o R emo val of C hi ld on J une 16, 200 0. In response, the trial court issued a t em po ra ry restraining ord er on June 1 9, 2000, pr

eventing Ms. Robinson “from remov ing the minor c hild . . . fr

om the stat

e of Ten nessee o r jurisdiction of this Court, pending

the fina l hearin g in this ca use.” On July 31, 2000, Ms. Robinson filed her answer and a counter-petition for contempt, alleging that Mr. Monroe was not in compliance with several provisions of the MDA . Mr. Monr oe filed an answe r to the Counter

Petition for Contempt of Court on January 12 , 200 1. Thereafter, on Februar y 6, 2001, Mr. Monroe filed a Motion for, and Memorandum

of Law in Support of, J udgment on t he Pleadings. Ms. Robinson responded on February 21, 2001 and Mr . Monroe filed a reply to Ms. Robinson’s response on March 8, 2001. After a hearing, the trial court denied Mr. Monroe’s motion for judgment on the pleadings by order entered March 29, 2001.
Su bs eq ue nt ly, both Mr. Monroe and Ms. Robinson submitted proposed parenting plans and attendedmediation

to try to resolve their disputes. After an unsuccessful attempt at mediation, the trial court conducted a

hearing on April 9, 2001, to c onsider M r. Monroe ’s petitio n to object a nd Ms. Robinson’ s counter

-petition for cont empt. By order entere d May 22, 2001, the trial cour t dismissed Ms. Robinson’s petition for contempt , granted Mr. Monro e’s peti tion, and p rohibited Ms. Robinso n from re

locating to North Carolina with the child. In making its determination, the trial court found that the both of the parties are “fit and

proper p ersons t

o have custody of

their minor child” and that “both of the parties are spending a substantially equal amount of time wit

h their child.” The trial court recognized that the parties’ respec tive time s pent with t he child w as not exactly e

qual, but t hat exact equality is virtually impossible. The court also found that Ms. Robinson’s prop osed move had “no useful purpose, especia lly in view of the provision agreed to by both parties and incorporated into the Final Decree of Divorce at the request of both parties that the child remain in the Davidson County area

until she reaches the age of eighteen y ears.” The trialcourt further found that “the request to move would not be in the best interest and welfare of the minor child, and that the b est inter est and welfare of the minor child dictates that the child remain in Davi dson County , Tennessee,” that “there is no significant

change of

circumstances of the child or the parties,” and that Ms. Robinso n’s requ est to move is unrea sonable

and not justified in that the move would not be beneficial to the child.” The May 22, 2001 order also provided that, upon a motion filed by Mr. Monroe, the court would set reasonable attorney

fees for his expenses. Thereafter, on April 30, 2001, Mr. Monroe filed a motion for

attorne y f ees and c osts. Ms. Robinson filed a response to the motion for attorney fees on May

11, 2001. By orde

r entered June 11, 2001, the trial court awarded $6,000 in attorn ey fees to M

r. Monroe . On July

9, 2001, Ms

. Robinson filed a Motion to Alter or Amend both the Ma

y 22 and the June

11 order s. The trial court deniedthis motion by order entere d August 24, 2001. Ms. Robinson timely filed her notice of appeal on September 6, 2001.-3- Issues The parties raise the following issues, as we pe rceive them, for our review:
1. Whether

the trial court er red in finding tha

t the par ties wer e spending a subs tantially equal amount of time with the minor child.
2. Whether

the trial court erred in determining that the mother

did not hav e a rea sonable purpose for relocating to North Carolina with the minor child.
3. Whether

the tr ial cour t erred

in finding

that the mo ve was no t in the ch ild’s best interest

. 4. Whether the trial court erred in awarding attorney fees to the father. Standard of Review Appellat e review o f a non-j ury

case is de novo upon the record. Woolman v. Woolman , 2001 Tenn. App. LEXI S 930, at *4 ( Tenn. Ct. A pp. De c. 28, 2001) (citi ng Wright v. City of Knoxville , 898 S.W.2d 177, 1 81 (Tenn . 1995)). There isa presumption o f correctness as to the trial court’s factual findings, unless the preponderance of the evidence is otherwise. Id .; see also Tenn. R. App. P. 13(d). For

issues of law, the standard of review is de novo , with no pr

esumption

of corr ectness

. Woolman , 2001 Tenn. App. LEX IS, at *4 (citi ng Ridings v. Ralph M. Parsons Co. , 914 S.W.2d 79, 80 (Tenn. 1996)). Law and Analysis
T ennessee law on the issue of parental relocation is gover ned by section 36-6- 10 8 of th e Tennessee Code. Section 36-6-108 delineates between parents who spend substantially equal amounts of time with their children and those who do not. See Tenn. Code Ann. § 36-6-108 (2002). Section (c) go verns pa

rental r elocatio n where

the pare nts are s pending

substantia

lly equal amounts of time with the child. See id . Section (d) governs parental reloc ation where the relocating pare nt is spending the greater amount of time with the child. See id

. After a review of the record , it is s omewhat difficult to discern which section of 36-6-108 the trial court

applied. The court found that “both parties are spending a substantially equal amount of time with their child” and that the pro pos ed relocation was not in the best interest of the minor child. These findings w ould seem to indica te that the court ma de its decision based on section(c). However, the trial court went on to find that Ms. Robinson’s request to move had no useful pu rpose and that the request was unreasonable. This find ing would seem to indicate that the trial court applied section (d). Irre spective of this apparent ambiguity in the trial court’s ruling, we find that once the trial

court de termined that the p arties w ere spe

nding su bstantially

equal int ervals o f time-4-

withtheir mino

r child, th e sectio n to be app lied was s ection ( c). Thus , we will a ddress the partie s’ issues within this framework.
The first issue for our review relates to Ms. Robinson’s contention that the trial court erred in ma ki ng th e c ri ti ca l t hr es ho ld de te rm in at io n o f w hi ch se ct io n o f t he st at ut e t o a pp ly. Sp ec if ic al ly, she claims that the trial court erred in finding that the partiesspent substantially equal periods o f time with their child. According to the

parties’ MDA, which was incorporated into the final divorce decree , Mr. Monroe and Ms. Robinson have shared joint custody of the c hild. The MDA specifically pr ovided that Ms. Robinson would have possession of the child during the year

from Monday morning

at 8:00 a.m. for nine (9) consecu tive day s until Wednesday

at 8:00 a.m., when the minor chil d will be taken to day care or school and th en picked up for [Mr. Monroe] to have possession of the minor child fro m Wednesday

until the following Mond ay morni ng when the minor child shall be retur ned to daycar

e or school but no later than 12:00 p.m. During the nine (9) da y consecutive day possession of [Ms. Robinson], [Mr. Monroe] will have possession of the minor child on Wednesday s from af ter scho ol or afte

r school c are unti l Thursday morning

when the minor child shall be returned to day care or school.
The MDA also provided that Mr. Monroe would have two (2) weeks in the summer months with the child, with Ms. Robinson having thre e (3) w eeks. Th e holiday s were sp lit equall y be tween bo th parents

. Based u

pon the schedule

contained in the MDA, Mr. M onroe ha d possessi on of the c

hild for approxima

tely 43 % of the

time, while

Ms. Robinson had possession approximately 57% of the time. Since th e enactment of section 36-6-108, there have been two appellate cases that have addressed the mean ing of th e phrase “substan tially equal intervals of

time.” The first c ase is Connell v. Connell , 2000 Tenn. App. LEXI S 28 (Tenn. Ct. App. Jan. 28, 2000). In this case, the parties we re granted a divorce and custody

of the parties’ children was given to the mother, with the father having vi s itation. Id . at *2. Tw o ye ars afte r their di vorce, t

he mother

was offe red a job opportuni

ty in California. Id . at *3. Despite the father’s opposition to the proposed move, the trial court granted the mother’s request and allowed her to relocate with the children. Id . at *4-5. The father appealed the judgment, alleging that the trial court e rred in finding that the “time spent by the parties with the children was not substantially equal.” Id . at *9. Noting that the divorce decree a warded the father visitation that was “slightly le ss than 40% of the children’s time,” this Court upheld the trial court’s finding that the p arties w ere not s pending substantia

lly e qual amou

nts of time

withthe children. Id

. at *12. The second c ase to explore the meanin g of sub stantiall y equal int ervals o f time is Woolman v. Woolman , 2001 Tenn. App. LEXI S 930 (Tenn. Ct. App. Dec. 28, 2001). In this case, this Court upheld the tr ial co urt’s finding tha

t the par ties wer e spending substa

ntially equal am ounts of tim

e-5-

withtheir child. The parties’ divorce decree provided that the parties would share “joint and legal physical custody of their three minor children.” Id . at *2. Specifically, the decree provided that the children would spend one week per month during the school year

with their mother and three weeks per month during the summer months. Id . at *2. This amounted to app ro xi ma te ly e ighteen (18) weeks or 35% of

the time with the mother and approximately thirty-four (34) weeks or 65% of the time with the father. The decree also provide d that neither party would change the

residence of

the children outside of Williamson County without court approval or the prior written consent of the other party. Id . at *2. Approximately one y

ear after their divorce, the mother wished to relocate with the parties’ children to Illinois, where she had acc epted a new job. Id . at *3. The m o ther filed a Petition for Modification of Custody, alleging that there had been a substantial and material cha nge in circumstance such that a change in custody was in the children’s best interests. Id . at *3. At the hearing on the petition, the trial court granted the father’ s motion to dismiss. Id

. at *4. On appea l, this Court wasasked to d ecide whether t

he trial c ourt err

ed by refusing to allo w the chil dren to relocate to Illinois with their mother. Id . at *4.
We began our

analysis with an overvie

w of section 36-6-108. Id . at *5. The threshold issue in considering a petition for relocation is whether or not the parents are spendingsubstantially equal interva ls of time with the child or children. See Tenn. Code Ann. § 36-6-108 (c), (d). The trial court f ound signific ant that th

e partie s testifie d that the y w ere spe

nding su bstantially equal a

mounts o f time with their children and that the divorce decree granted the parties “pure

joint legal and physical custody of the children.” See Woolman , 2001 Tenn . App. L EXIS , at *5-6. This Court upheld the trial courts’s finding that the parties were spending substantially equal intervals of time with the children. See id . at *6.
I n the case at bar, the parties’ divorce decree provided that the parties would share join t custody of their child. Per the di vorce decree, M r. Monroe

had posse ssion of the minor c hild approxima

tely 43% of the time, with Ms. Robinson havin g possession approximately 57% of the time. As stated by

the trial court, the time spe

nt with the

child is “not exa

ctly equal be cause e

xactly equal is almost an impossibility, but it’s substan tial ly equal.” The governing provision, section 36-6- 108, r equires that the time be substantially equal. See Tenn. Code Ann. § 36-6-108. It does not require that the time be exactly equal, nor does the provision set any

concrete perimeters as to what qualifies as substantially equal. See id . The statute has left the determination of wh at constitutes substantia lly equal within the discretion of the trial judg e . See id . Accordingly , based upon the langua ge of the statu te and the ho ldin gs in the above cases, we hold that the trial court was cor rect in using se ction 36- 6-108©) b ecause the evide nce doe s not prep onderat e agains t the trial court’s finding that the child was sp ending substantia

lly e qual inte rvals of time with both paren

ts. Where a trial court has made the threshold determination that the parties ar e spending substantia lly equal int ervals o f tim e with the child or children, section 36-6-108(c) requires the application of a best interest analy sis to determine whether the proposedrelocation is appropriate.-6-

See Tenn. Cod

e Ann. 36- 6-108©); see also Woolman , 2001 Tenn. App. LEXIS, at *6. Section 36-6- 108(c) p rovides: (c) If th e paren ts are a ctually spending substantia

lly e qual inte rvals of time withthe chil d and the relocating parent seeks to move with the child, the other pa rent may , within th ir ty ( 30 ) d ays of receipt of notice, file a petition in opposition to removal of the child. No presumption in favor of or against the request to reloc ate with

the child shallarise. T

he court shalldetermine whethe

r or not to permit re location of the ch ild basedupon the b est

interests of the child. The court shall consider all relevant factors including the following where applicable : (1) The extent to which visitation rights have been allowed and exercised; (2) Whether the primary r esidential parent, once out o f the juri sdiction, is likely to comply with any new visita

tion arra ngemen t; (3) The love, affection and emotional ties existing between the pa rents and child; (4) The disp osition of the parents to provide the child with food, clothing, medical car e , education, and other necessary care and the degree to which a parent has been the primary caregiver; (5) The impor

tance of continuity

in the chi ld’s life

and the le

ngth of t ime the child has lived in a stable , satisfa

ctory environm

ent; (6) The s tability

of the fa mily unit of the

parents ; (7) The m

ental an d phy sical he alth of the parents ; (8) The home, scho ol and com munity of the pa rents; (9) The rea sonable

preference of the child if twelve ( 12) years of age or older. The court may hear the preference of a y

ounger child upon request. The prefe rences of older children should normally be g iven greater weig ht than those of young er children; (10) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; and (11) The character

and behavior of any

other person who resides in or frequents the home of a parent and such persons’ interactions with the child. Tenn. Code Ann. § 36-6-108(c).-7-

In denying

Ms. Robinson’s request to relocate wi th the minor child to North Carolina, the trial court found that the relocation was not in the b est inter est of the child and that t he “best interest and welfare of the minor child dictates that the child rema in in Davidson County, Tennessee.” Upon reviewing the record, we cannot say that the evidenc e prepon

derate s again st

a finding that relocation to North Carolina would not be in the best interest of the minor child.
Mr. Monroe testified that he has exercised p ossession o f the child in accordance with the MDA. Mr . Monroe also testi fied tha t he has a

“good a nd close, consiste

nt, and fr

equent” relatio nshi p with his child. It was undisputed that the child loves Mr. Monroe and his new wife

. This was apparent from the testimony of Mr. Monroe, Ms. Robinson, and Ms. Robinson’s mother. Mr. Monro e testifi ed that he has rema rried a nd that the

child loves her step-moth

er and g ets along well with her. Ms. Robinso n testifie d that the child ge ts along well with M

r. Monroe , that the

child loves him and his new wife, and that Mr. Monroe isvery involved with the child’s c hurch and school activitie s. Ms. Robinson’s mother also testified that the child has a good relationship with her father and that the child loves him

very much. She f

urther testified that the child loves both her mother and father very

much. There was also testimony that the child is resilient, bright, and talented and is well adjusted and happy

in Davidso n County

and that the only ang er problem the child has relates to the proposed reloca ti on. Ms. R obinson testified that the child likes her current school and her friends in the Nashville area. There was also testimony from Ms. Robinson’s mother that the scho ol the chi l d currently a

ttends is an excellent school.
Ms. Robinson testified thatshe has no immediate family in the Nashville ar ea and would like to relocate to be closer to her parents a nd family. Ms. Robinson testifi ed to the support that the child’s grandp ar ents would provide. Ms. Robinson’s mother testified that if Ms. Robinson were allowedto move the child to North Carolina, she and her husband w ould be av ailable t o assist with the child.
It was undisputed tha t Ms. Robinson had never done any thing to interfere with the relation ship between Mr. Monroe and the minor c

hild. I n fact, M s. Robinson

testifie d that she

feels it is important that the minor child spend time with Mr. Monroe. Ms. Robinson also testified that her proposed parenting plan set out “ge nerous time” between father and child during the summe r months and allowed visitation on weekend holiday s and spring break.
From our review of the record, we a re unable to

find that t he evide nce pre pondera tes aga inst the trial court’s finding that relocation to Nor th Carolina would not be in the best interest of the child. Accordingly , we affirm the trial court’s decision re fusing t o allo w the chil d to reloc ate to North Carolina with Ms. Robinson.
The final issue for our review relates to the trial court’ s grant of attorney ’s fees to Mr. Monroe. Ms. Robinson argues that section 36-6-108 does not provide for the award of attorney ’s fees to e ither pa rty in a relocation action. She further argues that the awa rd of attorney ’s fees was-8-

punitive in nature. Mr. Monroe argues that he wa s entitled to attorney’s fees in accordance with the terms of their MDA and in accordance with Tennessee Code Annotated section 36-5-103(c).
This Court has previously held that there is no provision in section 36 -6-108 which authorizes an awar

d of attor ney ’s fees to either party

. Schremp v . Schremp , 2000 Ten n. A pp. LEXIS 791, at * 12 (Tenn. Ct . App. De c. 7, 2000 ). Mr. Mon roe doesnot dispute

this, but a

rgues t hat he is entitled to attorney’s fees under Tennessee Code An notated section 36-5-103©). Section 36-5- 103(c) provides that a person to whom custody of a child is awarded

“may recover from the other spouse reas onable attorney

fees incurred . . . in regar d to any suit or action conc erning the adjudication of the custody or the change o f custody of any child.” Woolman , 2001 Tenn. App. LEXI S 930, at * 16 (citing Tenn. Code Ann. § 36-5-103(c)).
We find section 36-5-103(c) inapplicable to the case a t bar. Mr. Monr oe argues that the provision is ap plicab le beca use a com

ponent of his petitio n to oppose

reloca tion was a

request to award h im full cus tody

of the mino

r child. T he relevant port

ion of his p etition sta

tes: 21. The Father

is a fit and prop er pers on to be na med as pr imary custodia n or to be awarded full custody

of his daughter

under the circumstances; the threat of the Mother to reloc ate rep resents a change of circ umstances, and if the Mother follows th

rough o n her pla

n to herse lf relocate, the Father is prepared to be primary c

ustodian of his daughter.
Mr. Monroe also arg ues that in the petition’s praye r for relief, he asked the court to modify the previous orders of the court, if necessary , “to state tha t the Father is named as primary custodian and/or is awarded absolute legal custody of the minor child of

the part ies, and that he be designated as the party

with whom th

e child sh all prima

rily reside, with an ap

propria te visitat ion sched ule for the Mother.” We find this insufficient to trigger the la nguage of sectio n 36-5-10 3(c). Th is case involved the relocation of a minor child, not the adjudication of custody. As the trial court stated, if Ms. Robinson decides to move, the parties may participate in a completely different lawsuit which would be a petition for change of custody .”
Mr. Monroe further contended that he is e

ntitled to attorney fees under the MDA. This court has previously held that litigants must pay their own attorney

fees “unless a contract, statute, or other recognized

equitable principle permits them to seek pay ment from their adversaries.” Allman v. Allman , 2000 T enn. A pp. LEXIS 7 66, at *16 (T enn. C t. App . Nov. 22, 20 00) (ci ting Morro w v . Bobbitt , 943 S.W.2d 38 4, 392 (Te nn. Ct. App . 1996)). The par ties in this cas e in cluded such a provision in their MDA. The relevant provision of the MDA stated: “[i]n the event that it becomes reasona bly necessary

for eithe r party to institute legal proceedings to procure the e nforcement of any provision of this agreement, he or she shall be entitled to a judg ment for rea sonable ex penses, includin g attorney’s f

ees, incurred in prosecuting the action.” Mr. Monroe argues that upon receiving notice of

Ms. Robinson’s proposed relocation, it was reasona bly necessa ry that he in stitute this action. The parties are bound by their agreement, and the awa rd by the trial court

is affirmed.-9- Conclusion
Ac co rd in gl y, we affirm the trialcourt’s finding that the move is not in the best interest of the child. We also affirm the trial court’s grant of attorney fees to Mr. Monroe under the circumstances of this case . We will

not addre ss the part

ies’ issue relating to whethe

r the tria l court e rred in determining that Ms. Rob inso n’s purpo se for relocation was not reasonable as this was re ndered mootby o

ur decis ion that the

trial cou rt corre ctly applied s e ction 36-6 -108(c). We remand to the trial court to consider attorney fees incurred on appeal. Costs on appeal taxed t o the Appellant, Ca th er in e R ob in so n, an d h er su re ty, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

___________________________________ ALAN E. HI

GHERS, JUDGE