Dismissal of Parenting Plan Modification Reversed In Franklin, Tennessee: Gordon v. Gordon

Facts: Father and Mother are the parents of three children, only one of whom remains a minor. When they divorced, Mother was designated the primary residential parent and Father received 110 days of parenting time.

Three years later, both parents had remarried. Stepmother exhibited hostile and inappropriate behavior toward Mother in front of the children.

Mother petitioned to modify the parenting schedule because of Stepmother’s actions.

Father counter-petitioned to change custody because Mother remarried and moved 20 miles away, which would require the youngest child to change schools.

Tennessee parenting planAs the first petitioner, the trial started with Mother’s witnesses. After Father’s attorney completed her direct examination of Father, Mother’s attorney moved to involuntarily dismiss Father’s counter-petition because he failed to prove a material change in circumstance.

The trial court granted the motion, dismissed Father’s counter-petition, and allowed Mother’s attorney to cross-examine Father regarding Mother’s petition.

The trial court modified the parenting schedule to remove Father’s weekday visitation but replaced it with a schedule that preserved 110 days of parenting time for Father.

Father appealed.

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

Rule 41.02(2) of the Tennessee Rules of Civil Procedure says:

After the plaintiff in an action tried by the court without a jury has completed the presentation of plaintiff’s evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court shall reserve ruling until all parties alleging fault against any other party have presented their respective proof-in-chief.

The Court held it was error to dismiss Father’s counter-petition before he completed his proof:

We have repeatedly held that Rule 41.02(2) clearly contemplates that the proper time to lodge a motion for involuntary dismissal is after plaintiff completed the presentation of plaintiff’s evidence. . . . As a result, we have repeatedly held that, when a trial court dismisses a case pursuant to Rule 41.02(2) before a plaintiff has closed his or her proof, it constitutes reversible error.

* * * * *

Rule 41.02(2) does not empower a trial court to order an involuntary dismissal before the plaintiff closes his or her proof.

The trial court vacated the trial court’s order dismissing Father’s counter-petition and sent the case back to the trial court for further proceedings.

K.O.’s Comment: Father may want to revise the material changes he alleges.

There is ample caselaw holding that the remarriage of a parent does not constitute a material change sufficient to warrant a change in custody. See, e.g., McDonald v. Bunnell and In re T.C.D.

Similarly, a parent’s relocation of less than the 50-mile threshold needed to invoke the parental-relocation statute is not a material change sufficient to justify reconsideration of custody. See, e.g., Winans v. Winans and Null v. Cummins.

Gordon v. Gordon (Tennessee Court of Appeals, Middle Section, October 16, 2018).

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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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