Mom Cannot Relocate to Ohio w/ Kids After Expert Testimony
Tennessee child custody case summary on relocation and child support income determination.
Christopher Conrad Fichtel v. Jill Crowell Fichtel (Zirwas)
The mother and father in this Davidson County, Tennessee, were the parents of two children born in 2005 and 2007, and they were divorced in 2010. Under the permanent parenting plan, the mother was named the primary residential parent, and the father was awarded 134 days per year parenting time.
The father was a pharmacist, the mother was a physician, and the mother was ordered to pay child support.
The father remarried in 2013, and the mother became engaged to another physician who lived in Ohio. She made notification of her planned relocation, and the father filed a petition in opposition. He also asked to be named primary residential parent and for equal parenting time, and for a modification of the child support.
A trial was held that stretched out over almost a year. In addition to the testimony of the parents, the court heard testimony from experts as to the effects of the relocation, including the effects upon a child with autism spectrum disorder.
The court also heard testimony as to the parties’ income. The father’s tax return showed wages of about $442,000, but because of his self-employment, his accountant, Ronald Williams, testified that his useable income was much lower.
The trial court made its order in 2016 and extensively detailed the testimony of all witnesses. The court first noted that the actual time spent by each party was substantially equal, meaning that this portion of the parental relocation statute would apply. Under this section, the children’s best interests was the key factor. After reviewing all of the evidence, particularly the expert witness testimony, the court concluded that relocation did not favor the move. The mother ultimately chose not to relocate.
At a later hearing, the court set the father’s income at about $223,000, despite the higher amount shown on his tax return. The court found that the mother was not voluntarily underemployed and set her income at $240,000 per year. The mother appealed to the Tennessee Court of Appeals.
The appeals court first addressed relocation, and noted that this is governed by the Tennessee parental relocation statute. The court found that even though the split between parents was approximately 56/44, this constituted a substantially equal split, invoking that prong of the statute. The appeals court also found that the lower court had looked at the proper period of time in making this determination.
The appeals court then turned to the issue of best interests of the children, and also agreed that the lower court had ruled appropriately. In doing so, it reviewed the statutory factors. It extensively reviewed the evidence and expert testimony and concluded that the lower court acted within its discretion.
The appeals court also reviewed the child support determinations, starting with the lower court’s computation of the father’s income. Upon review, it concluded that the lower court had acted properly in concluding that some of the income on the father’s tax return was not available to him.
The trial court’s order had also taken certain depreciation expenses into account when making the determination, and the appeals court held that there were insufficient fact findings on these issues. Therefore, it remanded the case for a proper determination.
The father asserted on appeal that the finding of no underemployment by the mother was erroneous. But the appeals court held that the father had not met his burden of proof on this argument.
The appeals court also addressed the issue of when the new child support should have taken effect.
For these reasons, the Court of Appeals affirmed in part, reversed in part, and remanded the case.
No. M2018-01634-COA-R3-CV (Tenn. Ct. App. Jul. 10, 2019).
See original opinion for exact language. Legal citations omitted.
To learn more, see Tennessee Parent Relocation Statute Law.
See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.
