Posted by: K.O. Herston | November 15, 2012

Equal Parenting Time Modified to Unequal Time in Tennessee Post-Divorce: Crum v. Fillers

Facts: The parties divorced and agreed to a parenting plan that designated Mother as the primary residential parent and provided for equal parenting time of 182.5 days to each parent. Years later, Mother filed a petition to modify the parenting plan, alleging that Father refused to exercise holiday visitation, communicate with her in a rational manner, had verbally abused the Children and used vulgar language and offensive gestures in front of the Children, would not allow the Children to complete homework or bathe while in his care, and so on. The trial court found that a material change in circumstances had occurred and changed the parenting schedule to reduce Father’s parenting time to 80 days. Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Father argued the trial court erred in failing to order a child custody arrangement that allowed for his maximum participation in the Children’s lives as directed by the post-2011 version of Tennessee Code Annotated § 36-6-106(a).

When a petition to change or modify custody is filed, the parent seeking the change has the burden of showing (1) that a material change in circumstance has occurred and (2) that a change of custody or in the residential schedule is in the child’s best interest. A finding that a material change in circumstance has occurred is a threshold inquiry.

There are no bright line rules as to whether a material change in circumstance has occurred, but the Tennessee Supreme Court has directed courts to consider (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way.

The determination of whether a “material change of circumstance” has occurred requires a different standard depending upon whether a parent is seeking to modify custody or modify the residential parenting schedule.

First, the Court determined that Mother was seeking to change only the parenting schedule and not custody since she was already designated the primary residential parent. As a result, it applied Tennessee Code Annotated § 36-6-101(a)(2)(C), which is a far easier standard for finding a material change.

In this case, the court’s ruling was premised upon Father’s failure to adhere to the parenting plan and his derogatory comments about Mother. Having reviewed the record, we hold that the record supports the court’s decision that a material change in circumstances occurred since the filing of the original parenting plan and that this change merited review of the residential parenting schedule.

Then it determined that the trial court need not consider the new “maximum participation” statute because

[t]he modification at issue in this case related to the existing residential parenting schedule, not the initial custody determination. Accordingly, the court was not required to conduct a comparative fitness analysis pursuant to Tennessee Code Annotated § 36-6-106(a).

Recognizing the trial court’s broad discretion in such matters, the Court held that the record supported the trial court’s modification of the parenting plan. The trial court was affirmed.

K.O.’s Comment: While I agree with the outcome of this case, I disagree with the Court’s legal analysis in two important ways:

1.  By applying the easier “material change” standard of Tennessee Code Annotated § 36-6-101(a)(2)(C) instead of the more stringent standard in -101(a)(2)(B), the Court overlooked precedent requiring it to apply subsection (B) in situations such as this where the parenting schedule is changed from equal parenting time to unequal time. See, e.g., Richards v. Richards. The Court gives improper significance to the primary residential parent designation by equating it (erroneously, in my opinion) with “custody.” In an equal parenting arrangement, neither parent is the “primary residential parent” as that term of art is defined in Tennessee Code Annotated § 36-6-402(4). In that instance, it becomes a purely arbitrary designation that should have no substantive significance whatsoever in a subsequent modification proceeding per Tennessee Code Annotated § 36-6-410, which states that the PRP designation in equal time arrangements is “solely for the purpose of” state/federal statutes and insurance that require someone to be designated the primary residential parent.

2.  By holding that the trial court was correct to disregard the factors of Tennessee Code Annotated § 36-6-101(a) in favor of those of § 36-6-404(b), the Court ignores precedent holding that (a) there is no substantive difference between the two sets of factors, and (b) the two sets of factors are not an “either/or” proposition or mutually exclusive. To create a differing procedural framework and analysis is unwise and unnecessary, in my opinion, particularly when it is entirely based upon what should be a meaningless “primary residential parent” designation when the parents share equal time.

One other note — this is my 300th post! Yikes.

Crum v. Fillers (Tennessee Court of Appeals, Eastern Section, October 11, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


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