Inconsistent Tennessee Parenting Plan Must Be Set Aside

Tennessee law case summary on parenting plans in divorce and family law from the Court of Appeals.

Gregory Keith Jarnigan v. Ginger Nicole Jarnigan – Tennessee divorce parenting plan law

Ginger Nicole Jarnigan and Gregory Keith Jarnigan were married in 1997 and had three sons who were born in 1999, 2003, and 2005.  In 2012, they were divorced in McNairy County, Tennessee.  At the time of their divorce, they agreed to and signed a marital termination agreement and permanent parenting plan.

The mother was not represented by a lawyer when the agreement was signed, and the mother later claimed that she had signed the last page, but had never seen the final typewritten agreement before signing.  She later determined that the final plan did not incorporate the parenting plan to which she had agreed.

Under the final plan accepted by the court, the father was named the primary residential parent and he received 183 days of parenting time.  The mother received 182 days parenting time.  There was an inconsistency, however, since the final plan stated that she received only two afternoons per week and alternating weekends.

The parties did not follow the plan immediately after  the decree was entered.  The mother actually kept the children during the work because the father had to be at work before 5:00 AM.  The father later got his work schedule changed, and then tried to have the parenting plan enforced.  The mother then filed a motion to have the original plan set aside.  She alleged that the father’s lawyer had misrepresented the allocation of time.

The trial court had a hearing and granted the mother’s motion.  It named the mother as the primary residential parent and gave the father visitation two afternoons per week and on alternating weekends.  After another hearing, it ordered the father to pay $750 per month in child support, plus retroactive amounts.  The father then appealed to the Tennessee Court of Appeals.

The father first argued that the trial court should not have set aside the original agreement.  The Court of Appeals concluded that it was obvious that the original order needed to be set aside, because it contained inconsistent provisions.  In one part, it divided the time 182 days and 183 days.  But the very next provision set a daily schedule that was very different.

The Court of Appeals then looked at the new parenting plan and whether it was appropriate to name the mother as the primary residential parent.  In particular, the Court of Appeals noted that the trial court had not considered the required statutory factors in determining the best interests of the children.  Therefore, it sent the case back for the trial court to draft a new parenting plan based upon the correct factors.

The Court of Appeals also noted that the child support would need to be recalculated after the new parenting plan was created.  The Court of Appeals also denied the mother her attorney fees.  It assessed the costs of appeal equally to both parties.

No. W2013-00300-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2013).

See original opinion for exact language.  Legal citations omitted.

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