Facts: Mother and Father are the never-married parents of Child. Their initial parenting plan awarded Father 116 days of parenting time.

Three years later, Father petitioned to modify the parenting plan to increase his parenting time to equal time, i.e., 182.5 days to each parent.

Mother filed an answer opposing Father’s requested modification. Her pleading did not, however, seek to reduce Father’s parenting time.

After questioning from the trial court at the end of the first day of trial, Mother filed—in the middle of the trial— a counter-petition to limit Father’s parenting time.

The trial court dismissed Mother’s counter-petition because she did not obtain leave of court before filing it.

The trial court then found that Father engaged in a “campaign of emotional abuse” against Mother that was adversely affecting Child. Father’s petition to increase his parenting time was denied, and his parenting time was reduced to 55 days in increments of 48 hours or less.

Mother was also awarded over $21,000 in attorney’s fees.

Father appealed.

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

Father argued the trial court erred by reducing his parenting time when Mother did not seek a reduction in any pleading she filed.

Tennessee law is clear that it is error for a trial court to decide issues not raised in the pleadings or tried by consent. When issues are tried by consent, they are treated as if they had been raised in the pleadings.

The Court concluded the reduction in Father’s parenting time was tried by consent:

Several facts lead us to conclude that this issue was indeed tried by consent. First, during opening arguments before the trial court, Mother’s counsel announced that she was relying on Tennessee Code Annotated § 36-6-406 to reduce Father’s parenting time due to a pattern of emotional abuse. Father’s counsel did not object to Mother’s counsel’s statements or take issue with it in any way.

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Despite the fact that the parties were proceeding solely on Father’s petition, the very first thing that Father’s counsel asked Mother was about her request that Father’s time with the child be reduced. In fact, this issue was covered extensively during redirect by Father’s counsel. . . .

We concede that it is unusual that the trial court both granted mother’s request for a reduction in Father’s parenting time and dismissed her counter-petition actually seeking that relief. Still, Mother testified extensively at trial that she was seeking a reduction in parenting time due to Father’s abusive tendencies and her belief that Father was improperly influencing the child to engage in similar behavior. Father did not object to this evidence, but sometimes even elicited it. Under similar circumstances, we have held that a parenting time issue was tried by consent. . . . The fact in this case even more strongly support a finding that this issue was tried by consent: in addition to Mother’s extensive testimony, the parties consented to the trial court’s consideration of the prior court file that documented Father’s abuse, and Father’s counsel specifically conceded that the trial court was at liberty to decrease his parenting time even without a specific pleading filed by Mother.

Before affirming the trial court’s judgment, including the award of attorney’s fees to Mother, the Court commented that the case “was unnecessarily complicated by Mother’s decision not to file a pleading seeking affirmative relief until the eleventh hour.”

In re John B. (Tennessee Court of Appeals, Middle Section, October 15, 2020).