Facts: Mother and Father are the never-married parents of two children.

The trial court approved their agreed parenting plan that gave Father 120 days of parenting time each year.

During Father’s parenting time, Mother informed him of a domestic violence incident involving Stepfather. Although the children were not present, Stepfather threatened to harm them.

Stepfather was arrested, Mother moved out, and Father agreed to keep the children temporarily.

One week later, Father petitioned to modify the parenting plan to change custody because Mother lacked a suitable home for the children because of the domestic violence incident.

The trial court entered an ex parte restraining order—later converted to a temporary injunction—giving Father custody.

Mother then obtained a no-contact order of protection for her and the children against Stepfather. Because the children were no longer at risk, the trial court dissolved the temporary injunction and returned custody to Mother.

Mother answered Father’s petition and denied that a material change occurred.

Father admitted Mother responded appropriately to the domestic violence incident.

The trial court found there had not been a material change of circumstances to justify changing the parenting plan. Despite this, the trial court modified the parenting plan’s decision-making authority to:

• require the children to attend the schools for which Mother is zoned unless the parties agree otherwise;
• give Mother sole decision-making authority over whether one child repeats a grade;
• allow each parent to make nonemergency healthcare and extracurricular activity decisions “when the children are in their possession.”

It’s worth noting that neither party requested any changes to decision-making authority in their pleadings. Still, both lawyers argued at trial that their respective clients should be awarded sole decision-making authority in all categories.

Father appealed.

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

When considering a request to change a parenting plan, Tennessee courts must first determine if a material change in circumstances has occurred since the entry of the existing plan. If it has, the court must decide whether the proposed change is in the child’s best interest.

While there is no “bright line” test for whether a material change has occurred, the material change must have occurred after the entry of the existing parenting plan and affect the child’s well-being in a material way. In addition, when a change of custody is sought, the material change also must not have been reasonably anticipated or foreseen when the existing plan was entered.

The Court found the trial court erred by changing the parenting plan absent a material change:

[T]here is no evidence to indicate that the domestic incident involving Stepfather affected the well-being of the children. The children were not present during the incident, and the parties agree that Mother has provided adequate care for the children since the incident. After the incident, Mother obtained a full order of protection against Stepfather, protecting her and the children, and filed for divorce against Stepfather.

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The parties have each exhibited a clear inability or unwillingness to coparent. In fact, the trial court specifically found that “the parties do not have the ability to agree on anything” and that each frequently refuses to consider the other’s opinion on matters that concern the children. However, their unwillingness to effectively communicate with one another has not been shown, in this case, to have affected the well-being of the children. It is undisputed that both parents have a loving relationship with the children and that they spend quality time together when the children are in their physical custody.

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[T]he trial court erred by making the previously-mentioned changes to the permanent parenting plan. … [I]f a material change in circumstances has not occurred, then the parenting plan should not be changed in any way.

The Court reversed the trial court’s modifications to the decision-making provisions of the parenting plan.

K.O.’s Comment: (1) The Court criticizes that neither party pleaded to modify the decision-making provisions but acknowledges that both parties argued for those modifications at trial.

The Court is correct that relief cannot be granted for unpleaded claims but does not mention the exception to this rule that occurs when the parties try an unpleaded issue by consent.

See, e.g., Renken v. Renken, at *6 (“When issues not raised by the pleadings are tried by consent, they shall be treated in all respects as if they had been raised in the pleadings.”). See also In re Evella S., at *9 (“We will find implied consent when a party knew or reasonably should have known of the evidence relating to the [unpleaded; I refuse to write “unpled.” –KO] ground, did not object to this evidence, and was not prejudiced thereby.”).

(2) The trial court said a material change must “adversely affect the minor children in a negative way.” The Court responds by noting the material-change standard to modify custody does not require showing a substantial risk of harm to the child. The Court finds the trial court’s implicit requirement of showing substantial risk of harm to be harmless error because there was no material change.

While this might be harmless error in this context, the Court does not note that the trial court’s statement is inaccurate. It is not true that a material change must adversely affect the child in a negative way. Positive changes to a child can constitute material changes resulting in modifications to parenting plans.

See, e.g., In re Lauren S. (trial court applied incorrect legal standard by implicitly requiring the father to prove the changes were detrimental to the child or reflected negatively on the mother); Pace v. Pace (no proof that material change was beneficial or detrimental to child); Cook v. Cook (child’s close relationship with the stepmother is a positive change sufficient to change the schedule).

Canzoneri v. Burns (Tennessee Court of Appeals, Middle Section, August 4, 2021).

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