Mom Loses Custody After Profanity-Laced Tirade w/ Kids Present

Tennessee child custody modification case summary.

Sarah H. Richardson v. Benjamin N. Richardson

When the mother and father in this Montgomery County, Tennessee, case were divorced in 2015, the permanent parenting plan named the mother as the primary residential parent of their two children.  At the time, the father was on active duty in the military, and he enjoyed equal time with the children when in the Clarksville area.  When he was out of the area, the mother had most of the time with the children.  The mother was awarded the marital home and was responsible for the mortgage going forward.  The father, however, was ordered to make payments to make the mortgage current.  He was unable to do so, and the mortgage was foreclosed.  At that time, the mother notified the father that she was moving to Texas so that a friend could prevent her from becoming homeless.  She married the friend a short time after the divorce was finalized.  As a result of the move, the father was no longer able to exercise equal parenting time.

In 2019, the mother asked for a modification of the parenting plan.  She alleged that there had been a material change of circumstances due to the relocation and the father’s failure to communicate or cooperate.  She asked that the father’s parenting time be reduced to 80 days per year, along with a recalculation of the child support based upon the change of parenting time.

The father agreed that there had been a material change of circumstances, but painted it in a different light.  He alleged that the mother failed to cooperate and involved the children in adult conversations.  He alleged that the mother had denied him parenting time and attempted to alienate the children.  The father also made a number of motions for contempt, and the mother asked that a guardian ad litem be appointed.  This request was denied, and the case went to trial in late 2019.

After reviewing exhibits and hearing evidence, which included a tape recorded phone call between the parties, the trial court ruled in favor of the father and named him the primary residential parent.  It also found the mother in contempt and ordered her to jail for two days.

Ultimately, the trial court issued a parenting plan giving the father 262 days of parenting time, with the mother getting 103.  The father was also awarded $7000 in attorney’s fees.  After some post-trial motions, the mother appealed to the Tennessee Court of Appeals.

The mother first argued that there had not been a proper finding of material change of circumstances.  But the appeals court disposed of this issue by noting that she had not properly stated the issue in her appeal, even though she discussed it in the brief.  It held that the issue had been waived.

The mother also argued that the father had not properly requested the relief that was granted, namely a change of primary residential parent.  But the appeals court looked at the father’s request and noted that it did, indeed, use the language “modified to name Father primary residential parent.”  For this reason, the appeals court held that this argument lacked merit.

The appeals court then turned to the best interests of the children, which is governed by a set of statutory factors.  Here, the mother argued that the trial court had not made specific findings of fact, and that the conclusions were not supported by the record.  But despite the lack of findings, the appeals court held that this was a case where it could “soldier on” and review the record.  Of particular note was the fact that the lower court’s written order did contain a number of factual findings, and it was clear which factors the trial court had considered.

Also, the trial judge, Ross H. Hicks, had recently retired.  Therefore, if the case were remanded for findings, it would be assigned to a different judge, who would need to rehear the evidence.  It also noted that the mother had failed to order a transcript of the lower court’s proceedings, which would have made the review easier.

For these reasons, the Court of Appeals reviewed the lower court’s ruling and agreed that the evidence supported the conclusions.  It noted, in particular, that during the recorded phone call, in which the children were heard, included considerable profanity by the mother.  The court concluded that she “chose to engage in her tirade while her children were present.”  The court concluded that this call constituted “egregious misconduct” on her part.

The appeals court also agreed that the mother had been reluctant to provide basic clothing needs of the children, and that emotional and mental fitness favored the father.

After reviewing all of the evidence, the appeals court agreed with the lower court that the change of custody was in the children’s best interest.

The appeals court also affirmed the finding of contempt against the mother.  For these reasons, it affirmed the lower court’s judgment and remanded the case.

No.M2020–00179-COA-R3-CV (Tenn. Ct. App. Sep. 17,  2021).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Modifying Custody & Parenting Plans.

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.