Posted by: koherston | April 13, 2016

Court Divided (Again) Over Whether Parenting Plan Modification Must Address Child Support: In re Gabrielle R.

Facts: Mother and Father are the parents of two children. Father paid court-ordered child support.

Later, Father petitioned to change custody. Immediately prior to the trial, the parties announced they had reached an agreement changing the parenting schedule and the amount of each party’s parenting time. The specific terms of their agreement was recited in open court, after which both parties affirmed their agreement under oath.

Subsequent court filings indicate a lack of consensus as to the nature of the parties’ agreement. Each party filed proposed parenting plan reflecting their understanding of the agreement.

The trial court entered Mother’s parenting plan because it was consistent with the parties’ “announced agreement.” The parenting plan entered by the trial court did not specify a particular amount of child support, however.

Father appealed the trial court’s entry of Mother’s proposed parenting plan.

On Appeal: In a 2-1 decision, the Court of Appeals dismissed Father’s appeal because the order appealed from is not a final judgment.

Unless an appeal from an interlocutory order is provided by the rules or by statute, appellate courts only have jurisdiction over final judgments. A judgment is a final when it decides and disposes of the whole merits of the case leaving nothing for the further judgment of the court.

tennessee child supportIn Leonardo v. Leonardo, a divided Court held “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.” Judge Stafford dissented.

The Tennessee Supreme Court accepted permission to appeal in Leonardo and issued an order vacating that portion of the Court’s majority opinion regarding modification of child support. The Supreme Court remanded the case to the trial court with the direction that the trial court permit discovery and conduct a hearing on the issue of the appropriateness of any modification of child support and the proper amount of child support if it is determined that child support is subject to modification.

A majority of the Court believes the Supreme Court endorsed its holding in Leonardo, explaining:

Had the Supreme Court disagreed with our substantive holding in Leonardo, it would have reversed this Court or would have determined that the issue of child support was not before the trial court and thereby negated the requirement that a trial court revisit child support when it changes a residential parenting schedule. If the Supreme Court had disagreed with our legal position on that issue, there would have been no need for its remand for discovery and a hearing on child support. As we interpret it, the Supreme Court’s mandate that the trial court inquire into the “appropriateness of any modification” relates to whether a significant variance existed, not to whether a modification was appropriate in the absence of a pleading requesting relief related to child support.

Failing to require a trial court to revisit child support incident to a modification of the parenting schedule poses a serious threat to children’s welfare. Child support payments are for the benefit of the child, and both parents have a duty to support their minor children. Holding otherwise would only undermine our trial courts’ authority to exercise continuing jurisdiction over the care of the children of this State.

Accordingly, the majority dismissed the appeal for lack of subject matter jurisdiction.

Dissent: Just as he did in Leonardo, Judge Stafford filed a dissenting opinion, stating:

Because I cannot accept that an agreed upon change in a parenting plan automatically necessitates an unrequested reconsideration of the parties’ child support obligations, I must respectfully dissent….

[A]t this juncture, there is no pending request by either party to modify the parties’ child support obligations. Despite this fact, the majority concludes that the trial court was required to enter a new child support worksheet, presumably for the trial court to consider the parties’ current incomes…. Based upon my concerns regarding the application of Tennessee law and fundamental due process, as more fully articulated in my dissent in Leonardo, I must respectfully dissent from the majority’s conclusion that the trial court was required to reconsider the parties’ respective child support obligations given that no such request for relief is pending at this time.

The end result of the majority’s holding is that this Court is deprived of subject matter jurisdiction by the trial court’s purported failure to adjudicate an issue not raised nor litigated by the parties. Because such a holding prevents this Court from reviewing the issues and claims actually raised by the parties, I find it illogical and not an effective use of judicial resources.

K.O.’s Comment: Hopefully we won’t have to wait for the Supreme Court’s decision in Leonardo to resolve this question. Perhaps one of the parties in this case will ask the Supreme Court to weigh in.

In re Gabrielle R. (Tennessee Court of Appeals, Western Section, March 17, 2016).

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


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