Relocation and Parenting Plan “Ineffective” Without Child Support: Brown v. Brown

Facts: The parties divorced after 16 years of marriage. They entered an agreed parenting plan that designated Mother as the primary residential parent and established nearly equal parenting time. Notably, the parenting plan failed to establish child support because the parties agreed that no support would be owed until two properties were sold. Both parties filed various post-divorce motions, including Mother’s motion to relocate and modify the parenting plan after her remarriage to a Maryland resident. After a trial, the trial court denied Wife’s motion to relocate, modified the parenting plan to change custody to Father, and established child support. Mother appealed.

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

Relocation. At the time of trial, the parties were spending essentially equal amounts of time with the children. Thus, the operative statute is Tennessee Code Annotated § 36-6-108(c), which provides that the the children’s best interest will be the controlling consideration. After examining the record, the Court concluded:

The children had lived their whole lives in Tennessee and had a stable support system of relatives in the Crossville area. They have no ties to the State of Maryland and barely knew [Mother’s] new husband and his family. Upon the trial court interviewing the children in camera, they expressed their desire to remain in Tennessee. The evidence of record supports a finding that this unanticipated move to another state would affect the “well-being [of the children] in a meaningful way. . . .” [W]e find that a preponderance of the evidence supports the trial court’s determination that the best interest of the children was served by denying [Mother] the right to relocate the children. The trial court did not err in its application of the parental relocation statute.

Child Support. The parties’ agreed that child support would not be owed until certain properties were sold. Mother complained that they had agreed to auction the properties if they had not sold within six months and that Father was dragging his feet disposing of the properties.

Tennessee Code Annotated § 36-6-404(a) provides that every final decree for divorce involving a minor child must incorporate a permanent parenting plan. In addition, Tennessee Code Annotated § 36-5-101(j) provides that any agreement on child support must be affirmed, ratified, and incorporated into the divorce decree. This statute contemplates that the child support agreement will be: (1) written, (2) approved by the court, (3) incorporated into a court order, and (4) contain an acknowledgment by the parties that they may not alter the agreement without court approval. However, a child’s right to support cannot be bargained away by a parent to the child’s detriment. For example, a marital dissolution agreement providing that a parent “waives any and all child support payments which would be due and owing” was determined to be void as against public policy. Similarly, an agreement that one parent would not seek child support if the other would not seek alimony has been declared void. In another case, the Court refused to enforce an agreed order that stated, “Due to the parties current economic situation, child support shall not be ordered and the state guidelines shall not apply.”

The Court found an analogous case where it had previously held:

The divorce decree stated that it incorporated a “permanent parenting plan,” but by the parenting plan’s own terms, it would not “commence” until the occurrence of a future event. In effect, then, there was no permanent parenting plan in existence for over three years following the divorce. . . . We find that the provisions of the divorce decree provided for a “permanent parenting plan” that was not effective, and allowing Father to avoid his child support obligation indefinitely, are void.

Relying on the above-cited opinion and statutes, the Court held the parenting plan in this case was not a final judgment. The Court held that the trial court’s error was rectified, however, “now that the trial court has granted [Mother] credit for the back child support to which she was entitled and entered a child support award accompanied by the required paperwork . . . .”

Accordingly, the trial court was affirmed.

Brown v. Brown (Tennessee Court of Appeals, Eastern Section, April 13, 2012).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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