Masse v. Masse Cottar Divorce Appeal
Tennessee Court Decision.
Timothy Wayne Masse (“Father”) and Mandy Jo Masse Cottar (“Mother”) were
married in 2001 and divorced on January 16, 2009. They have three minor children.
Mother was named the primary residential parent when the parties were divorced, and
each parent was awarded fifty percent of the residential parenting time. During their
marriage, the parties lived in Spring Hill. Following the divorce, Mother remarried and
relocated from Spring Hill, in Maury County, to Goodlettsville, in Robertson County.
The children continued to attend school in Maury County even after Mother moved to
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Stella L. Hargrove
On July 24, 2014, Father filed a petition to modify the parties’ parenting plan. Father asserted that a material change of circumstances had occurred and that it would be in the children’s best interest for the primary residential parent designation to be changed from Mother to him. Father asked the court to award him 235 parenting days each year. The basis for Father’s petition was Mother’s plan to change the children’s schools from Maury County to Robertson County, which she announced shortly before school was to begin in Maury County. In an email to Father dated July 22, 2014, Mother stated that the children were not eligible to attend Maury County schools because she, as the custodial parent, no longer lived in Maury County. She wrote, “I will now be enrolling them in Robertson County schools since I am the custodial parent and they should be enrolled where I live.”
The trial court held a show cause hearing on July 30, 2014, and entered an order specifying that the children were to continue to be enrolled in the Maury County public school system unless the parties reached a joint decision to send them elsewhere, as the parenting plan provides. Mother then filed an answer to Father’s petition and a counter petition to modify the parenting plan. Mother requested that she remain the primary residential parent and that the parties maintain their fifty percent residential time with the children, but she wanted the court to award her decision making authority for the children’s educational and extracurricular activities. The parties engaged in discovery, in preparation for trial, and tried their case on February 27, 2015.
The parties’ testimony showed that Mother works in Brentwood and Father works from home, in Spring Hill. A little over six months following the parties’ divorce in January 2009, Mother filed a petition to modify the parenting plan because she was engaged to a man who lived in Cedar Hill, which is in Robertson County, and she wanted to relocate with the children to Cedar Hill. Father did not agree to change the children’s schools from Maury County to Robertson County, and the parties went to mediation at Mother’s insistence. Mother ended up not marrying the man who lived in Cedar Hill, and so she dismissed her petition to modify. However, in June 2010 Mother married another individual, Addison Cottar, who lived in Goodlettsville, which is in Robertson County. Mother then moved to Goodlettsville to live with Mr. Cottar. Mother lived with Mr. Cottar in Goodlettsville from 2010 to sometime in 2013, when she moved back to Spring Hill for a few months. She and Mr. Cottar then moved to Cross Plains, which is also in Robertson County. At the time of trial, Mother testified that she was in the process of getting a divorce from Mr. Cottar and that she had begun dating someone else. She testified that she had moved out of the house she had shared with Mr. Cottar and was living with her brother, just a quarter mile away, in a house owned by her mother. Each of Mother’s houses in Cross Plains was about sixty-eight miles from Father’s house in Spring Hill.
Father remarried in May 2011. His current wife has a child from a previous marriage who lives with Father and his wife for eleven months of the year. Father’s wife testified that Father is a good parent to his three children as well as to her child and that her child gets along well with the parties’ three children when they are all together. Father and his wife live in Spring Hill.
According to the permanent parenting plan the trial court put into effect in 2009, when the parties were divorced, Mother and Father were awarded time with the children for a full week at a time before delivering them to the other parent. At the time of trial, the youngest child was in elementary school and the older two children were in middle school. The drive from Mother’s house to Father’s house was approximately one hour. Despite the terms of the parenting plan, Mother testified that when she had the children with her, she routinely dropped the youngest off with Father in the morning, where the child would wait for the school bus to pick him up and take him to school, and Mother would drive the older two children to their school. In the afternoon, the children went to Father’s house after school, where they would stay until Mother picked them up after her work day ended. When they are with Mother, the children spend approximately two hours in the car traveling back and forth between Robertson County and Maury County on the days they have school, one hour in the morning and another hour in the afternoon/evening. Father expressed his concern that the children spend too much time in the car during the weeks they are with Mother during the school year. The parties agreed that the children’s grades have not suffered as a result of their spending so much time in the car during Mother’s weeks.
The evidence showed that Mother and Father both love and care for their children and they are able to work together for the benefit of the children. For example, the youngest child plays baseball in Maury County, and on days he has baseball practice, Father drives him to practice regardless of whether it is his week or Mother’s week. When he has baseball, the parties’ son stays with Father even during the weeks he is supposed to be with Mother. Mother testified that when the elder daughter was involved with the pep band and was playing at a night game, this daughter would stay with Father during Mother’s weeks to accommodate Mother’s schedule. The younger daughter played soccer in Robertson County, and Mother testified that when she had practice during the week, Mother would pick her up from school, drive her to practice, and bring her back to school the next day, regardless of whether the practices occurred during Mother’s week or Father’s week. Because Father works from home and lives near the children’s schools, both parties have agreed that the schools should contact Father during the day if an issue comes up with any of the children, even during Mother’s weeks with the children.
Mother testified that she would like to move the children from Maury County schools to Robertson County schools. She explained that she has driven the children down to Maury County for years and now it is Father’s turn to do the driving. She also testified that the school regulations of Maury County provide that the primary residential parent is supposed to live in Maury County for the children to be able to attend Maury County schools without paying a fee.
The children attend church with Mother in Robertson County. When they are with Mother, they participate in church activities on Wednesday evenings and on Sundays. Father testified that if he were designated the primary residential parent, he would be willing for the children to continue their participation in the church activities in Robertson County during the week on Wednesday evenings
Based on the totality of evidence in the record and the deferential treatment we are to accord the trial court’s decision, we conclude that Mother has not established that the evidence preponderates against the trial court’s findings that (a) Father proved by a preponderance of the evidence that there was a material change of circumstances or that (b) it is in the children’s best interest that the primary residential parent designation change from Mother to Father. We note that as the children get older and are required to spend more time on homework or at school participating in extra-curricular activities, it will become more important that they reside closer to school and not spend so much time driving back and forth from home to school each day.
In modifying the permanent parenting plan, the trial court awarded Father sole authority to make educational decisions for the children. Mother contends the trial court erred in this regard and should have given her this decision making authority. Mother has made it clear that if she is able to decide where the children go to school, she will move them from Maury County to the Robertson County school system. As discussed above, however, the trial court found the children should not be removed from the Maury County school district, where they are thriving. Mother fails to convince us the trial court abused its discretion in giving Father the authority to decide where the children go to school. As a result, we affirm the trial court’s decision awarding Father this decision making authority.
The trial court’s judgment is affirmed in all respects. Costs of this appeal shall be assessed against the appellant, Mandy Jo Masse Cottar, for which execution shall issue if necessary.
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