Posted by: koherston | July 1, 2015

Court Unanimous on “Maximum Participation” and Third Party Caregivers but Divided on Notice for Child Support Modification in Nashville, TN: Leonardo v. Leonardo

Facts: Mother and Father are the parents of Child. They were divorced in 2012. Mother was named the primary residential parent with 256 days of parenting time. Father received 109 days of parenting time.

In 2013, Father petitioned to modify the parenting schedule to provide for equal time, i.e., 182.5 days to each parent. Father alleged a variety of material changes of circumstances, including that Mother had denied him the right to pick Child up from daycare and exercise parenting time with Child while Mother was working. In his petition, Father specifically stated he was not seeking to modify child support.

Tennessee child supportAfter a trial, the trial court granted Father’s petition, commenting that “[t]he Court views that the state of law in Tennessee is such that either party should be able to pick up the minor child while the other party is working and the child is in the possession of a third party child care provider.”

The trial court also modified the child support obligation.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court (2-1 on the child support modification).

Maximum participation and third party caregivers. The trial court stated its belief that “the state of law in Tennessee is such that either party should be able to pick up the minor child while the other party is working and the child is in the possession of a third party child care provider.”

Mother argued this finding is “unsupported by any statute or case law: it is not the law in Tennessee, nor should it be.”

Tennessee Code Annotated § 36-6-106(a) states that, “in taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in subdivisions (a)(1)-(10) [i.e., the best interest factors], the location of the residences of the parents, the child’s need for stability and all other relevant factors.”

Like the trial court, the unanimous Court rejected Mother’s argument, reasoning:

At the time of the trial, the parties’ child was in daycare. Mother argued that it was best for the child to have a set schedule and for the Father not to visit or remove her from daycare when his schedule allowed. Father agreed that when the child started kindergarten, she would need to remain at the school during school hours, but given his schedule and the increased distance between his home and Mother’s new home, he would visit with the child at daycare whenever he could. The trial court agreed that this would foster the relationship between the Father and the child and that the child’s need for stability was not undermined by Father’s occasional visits to the daycare. Under Tennessee Code Annotated § 36-6-106(a), and from the totality of the circumstances, we conclude that the trial court did not err in allowing Father to visit the child while she is in daycare or with a third party caregiver.

Modification of child support. Mother argued the fact that Father did not specifically petition for modification of child support precluded the trial court from addressing that issue.

Tennessee Code Annotated § 36-5-101(f)(1) requires only that a party file an “action for modification” in order to trigger review of child support.

Tennessee Code Annotated § 36-6-405 specifically addresses “modifying permanent parenting plans.” The statute provides that, “[i]n a proceeding for a modification of a permanent parenting plan, a proposed parenting plan shall be filed and served with the petition for modification and with the response to the petition for modification.” Likewise, § 36-6-402(3) defines a “permanent parenting plan,” in relevant part, to mean “a written plan . . . including the allocation of parenting responsibilities and the establishment of a residential schedule, as well as an award of child support.” Once the trial court enters a parenting plan, it must also enter a child support worksheet.

In a 2-1 decision, the Majority concluded:

Based upon: (1) the requirement that a proposed parenting plan form must be filed with a petition for modification of a permanent parenting plan; (2) the fact that the proposed form requires disclosure of the parties’ incomes; (3) the plan requires disclosure of a proposed child support amount; and (4) the fact that the trial court is required to include a child support worksheet with its parenting plan, we conclude that the filing of a petition to modify child visitation and/or the child’s residential parenting schedule triggers a review of the parents’ respective child support obligations….

[I]n light of Father’s timely submission of a parenting plan form, we conclude that Mother had notice that a modification of child support was possible (and, in fact, was the trial court’s duty to establish upon modification of parenting time)….

Mother was on notice that the issue of modification of child support was before the court based upon Father’s petition to modify visitation and the income disclosures contained in the attached proposed parenting form.

Accordingly, the trial court’s judgment was affirmed.

Dissent: Judge Stafford concurred on the third party caregiver issue but dissented on the child support modification, writing:

I must [] dissent from the majority’s holding that the trial court did not err in modifying Mother’s child support obligation, where no pleadings were filed notifying Mother that the issue would be tried, no opportunity to conduct discovery on the issue, and no opportunity to present evidence to the trial court concerning modification of child support….

Tennessee Rule and Regulation 1240-02-04-.01 specifically outlines the situations where the Child Support Guidelines “shall be applied” to establish or modify a child support award. These situations include divorce or separate maintenance actions, paternity determinations, actions involving orders for custody of child, “any other actions in which the provision of support for children is established by law,” and actions involving interstate enforcement of custody awards involving the previous outlined actions. Notably missing from the list of actions is an action to modify a residential parenting schedule….

Because Mother was clearly not given sufficient notice that a modification of child support was at issue and she was given no opportunity to respond to the trial court’s sua sponte decision to modify child support, I must conclude that the trial court proceedings failed to comply with due process. Accordingly, even assuming arguendo, that the issue of child support modification was triggered by the substantial change in the parties’ residential schedule, I would vacate the trial court’s judgment and remand for additional discovery and an evidentiary hearing on this issue. For this reason, I must respectfully dissent in part from the majority Opinion.

K.O.’s Comment: (1) Mother’s argument that the trial court’s third party caregiver finding is unsupported by any statute or case law is flat wrong. As the Court noted here, the trial court’s finding is consistent with the “maximum participation” provision of § 36-6-106(a), which was itself simply a restatement of the longstanding policy set forth in § 36-6-401. Moreover, it is entirely consistent with case law that preceded the “maximum participation” provision, e.g., Miller v. Miller, which hold that a child’s time with a parent should not be diminished in favor of time with third parties.

(2) Judge Stafford’s dissent raises valid concerns about due process, particularly in in light of Father’s affirmative statement in his petition that he was not seeking to modify child support and Mother’s reasonable reliance on that representation. I agree with Judge Stafford that the case should have been remanded for additional discovery related to the child support modification, which discovery was requested by Mother and denied by the trial court.

Leonardo v. Leonardo (Tennessee Court of Appeals, Middle Section, June 18, 2015).

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


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