Facts: After 20 years of marriage, Mother and Father entered into a marital dissolution agreement (“MDA”) and agreed temporary parenting plan.

In December 2013, the trial court entered a final decree of divorce, incorporating the MDA and the agreed temporary parenting plan with the stipulation that the parties would submit a permanent parenting plan in January 2014.

The December 2013 parenting plan designated Mother as the primary residential parent and gave her 215 days of parenting time compared to Father’s 150 days.

Neither party filed a proposed permanent parenting plan by the January 2014 deadline.

For reasons unknown to the Court of Appeals, a subsequent hearing took place in April 2014 where the trial court adopted Father’s proposed temporary parenting plan designating Father as the primary residential parent and awarding Mother 132 days of parenting time.

A hearing took place in August 2014 where the trial court determined the parenting plan entered in April 2014 was in the children’s best interest and would constitute the permanent parenting plan.

Mother appealed.

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

Mother argued the temporary parenting plan entered in December should have been treated as a permanent parenting plan, with any subsequent changes thereto requiring a modification hearing.

Tennessee Code Annotated § 36-6-404(a) requires that “[a]ny final decree . . . in an action for absolute divorce, legal separation, annulment, or separate maintenance involving a minor child shall incorporate a permanent parenting plan.”

Similarly, Tennessee Code Annotated § 36-6-403 states that “a temporary parenting plan shall be incorporated in any temporary order of the court in actions for absolute divorce, legal separation, annulment, or separate maintenance involving a minor child….”

Thus, temporary parenting plans are reserved for temporary orders pending the final hearing. The trial court must make a final, “permanent” decision on parental responsibility when it enters the final order on divorce.

After reviewing the record, the Court concluded:

[W]e determined that the trial court . . . lacked authority to enter a “temporary” parenting plan concomitant with the parties’ final decree of divorce. We therefore conclude that the provisions in the parties’ final decree designating the parenting plan as “temporary” and contemplating the entry of a subsequent “permanent” parenting plan of no consequence. We also conclude that the “temporary” parenting plan entered in December 2013 concomitant with the final decree must constitute the permanent parenting plan in this matter….

We conclude that the December 2013 parenting plan is currently the controlling permanent parenting plan at this time. Any subsequent parenting plans entered by the trial court herein are vacated due to the lack of findings by the court regarding a material change of circumstances necessary for the grant of a modification.

Accordingly, the parenting plans adopted by the trial court after the December 2013 parenting plan are vacated. The December 2013 parenting plan designating Mother as the primary residential parent is considered the operative parenting plan at this time.

K.O.’s Comment: (1) Lay readers should be advised there is no such thing as a “permanent” parenting plan because any parenting plan is subject to modification if there is a material change of circumstances and it is in the child’s best interest that the parenting plan be changed. Despite a parenting plan’s designation as “permanent,” it is always subject to change if the criteria are met.

(2) This case is consistent with Davidson v. Davidson, where the trial court entered a temporary parenting plan at the time of divorce because of its wish to “monitor” the mother’s behavior. The trial court subsequently entered two revised parenting plans in response to changes in the mother’s behavior. The Court of Appeals vacated the parenting plans entered subsequent to the one entered at the time of divorce.

Rigsby v. Rigsby (Tennessee Court of Appeals, Eastern Section, November 25, 2015).

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