Facts: Mother and Father are the parents of two children. Their agreed parenting plan at the time of divorce gave Mother 245 days of parenting time to Father’s 120 days. All major decisions required joint agreement of the parents.

Three years later, Father petitioned to increase his parenting time because of changes to his work schedule.

Mother responded with a counter-petition to impose a paramour clause and prohibit Father from communicating with Mother through the children.

There was proof at trial demonstrating the parents’ inability to communicate and work together for the children’s benefit. Although neither party asked the trial court to modify the joint decision-making authority provisions, the trial court concluded that joint decision-making “is not working.” Mother was given sole decision-making authority over the children’s major decisions regarding education and extracurricular activities.

Father appealed.

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

Father complained that the change of decision-making authority was improper because neither party raised it, briefed it, or argued it to the trial court.

When modifying a parenting plan, Tennessee Code Annotated § 36-6-404(a)(2) gives the trial court the authority to “establish the authority and responsibilities of each parent with respect to the children.” Subsection -404(a)(3) directs the trial court to “minimize the children’s exposure to harmful parental conflict.”

The Court found the trial court acted within its statutory authority to modify the decision-making provisions even though neither party requested it:

During the trial, both parties presented a considerable amount of testimony regarding their inability to cooperate when making major decisions, especially decisions concerning the Children’s school enrollment and extracurricular activities. The parties also acknowledged that their conflict with respect to these subjects detrimentally affected the Children. Therefore, we conclude that the trial court had the authority and sufficient justification to modify the decision-making authority of the parents in the modified [parenting plan].

As the trial court determined, the prior allocation of joint decision-making authority with regard to education and extracurricular activities was simply “not working.” The parties acknowledged numerous disputes regarding the Children’s school enrollment and extracurricular activities.

The trial court’s decision to give Mother sole decision-making authority over education and extracurricular activities was not an abuse of discretion and, therefore, its judgment was affirmed.

K.O.’s Comment: This outcome is consistent with Smart v. Smart (joint decision-making is not possible between parents who are unable to communicate effectively concerning their children) and Neveau v. Neveau (child’s best interest is served if decisions can be made without undue delay and stress).

Brunetz v. Brunetz (Tennessee Court of Appeals, Eastern Section, September 20, 2018).