Court Can’t Modify Parenting Plan Without Request from a Parent
Tennessee child custody modification case summary.
Karen Marchand Shaw v. Kevin Michael Shaw
The trial court made an order entitled “sua sponte,” establishing a new parenting plan.
The husband and wife were divorced in Shelby County, Tennessee, in 2009. At the time, their two children were four years old. In 2013, the mother sent the father a notice of her proposed relocation, and the husband objected. Both parties filed a proposed parenting plan. The court mistakenly approved the mother’s plan, believing that it was agreed to by both parties. This mistake was corrected, and the original 2009 plan was reinstated. In 2016, the mother again filed a petition to modify, and a new plan was entered. Under the 2016 plan, the mother was named primary residential parenting, but with flexible parenting time due to the mother’s work schedule.
The father was awarded attorney fees for litigation concerning the relocation request and the modification, but denied his fees with respect to another modification.
The mother appealed in 2016, but moved to voluntarily dismiss the appeal. On the other hand, the mother attempted to obtain orders of protection against the father. The father filed a petition for contempt for interference with his parenting time. In 2017, the father received an injunction, but the mother followed up with her own contempt motion.
Meanwhile, the father was attempting to collect the attorney fee judgment, which included a lien on the mother’s home. Ultimately, the father won a judgment compelling sale of the house.
While other motions were pending, the trial court made an order entitled “sua sponte,” establishing a new parenting plan. The court found that the current plan was unworkable. It continued the mother as primary residential parent, but established equal parenting time. This was on a week-on-week-off basis, but the trial court made clear that no exceptions would be permitted. In particular, once a child was dropped off, they were not allowed to have the other parent take them back until the week was over. The father was also awarded some of his fees and costs. The mother, acting as her own attorney, appealed to the Tennessee Court of Appeals.
After addressing some procedural issues and reversing part of the costs judgment, the court turned to the wife’s argument that the sua sponte parenting plan was improper. The father pointed out that the issues were largely moot, since the juvenile court subsequently found the children dependent and neglected. The appeals court agreed, but also pointed out that the dependency case was currently on appeal. If the appeal were to be successful, then the issues would still need to be litigated. Therefore, the court turned to the merits of the issue. Citing a 2007 case, the court held that it was improper to modify a parenting plan without one party making such a request. For this reason, it vacated the new parenting plan.
Regarding writing findings of facts and conclusions of law:
The Tennessee Supreme Court has previously considered how specific an order must be to comply with Rule 52.01:
There is no bright-line test by which to assess the sufficiency of factual findings, but the findings of fact must include as much of the subsidiary facts as is necessary to disclose to the reviewing court the steps by which the trial court reached its ultimate conclusion on each factual issue. Courts need not make findings on stipulated or undisputed facts, unless conflicting inferences can be drawn from undisputed facts.
After addressing other issues raised by the mother, the appeals court affirmed the remainder of the lower court’s order.
No.W2018-006773-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022).
See original opinion for exact language. Legal citations omitted.
To learn more, see Modifying Custody & Parenting Plans and our video, How is child custody determined in Tennessee?
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.
