Joshua Cordell Payne v. Kyndra Loran Payne

Father appeals the trial court’s order granting Mother’s petition that she be named the primary residential parent of their one child. Father was named the primary residential parent when the parties were divorced, and Mother was granted liberal parenting time with the child. Father filed three separate petitions during the following three years seeking to modify and limit Mother’s time with the child. However, Father was unable to prove any of his allegations against Mother, leading the court to deny each of his petitions. In response to his final petition to modify, Mother filed a counter petition asking to be named the primary residential parent. The trial court granted Mother’s petition, finding that Father’s petitions seeking to limit Mother’s time with the child and his failure to investigate the allegations in his petitions intentionally interfered in the child’s relationship with her mother, constituting a material change in circumstances unanticipated at the time the permanent parenting plan was established. Father contends the trial court was precluded by res judicata and collateral estoppel from finding his earlier petitions were frivolous and filed without adequate investigation, and that the court erred in relying on these findings to change the primary residential parent from Father to Mother. We affirm the trial court’s judgment and grant Mother her attorney’s fees incurred at trial and this appeal. We remand this case to the trial court to determine Mother’s reasonable attorney’s fees.