Facts: Mother and Father, the parents of two children, divorced in 2009. Much parenting-related litigation ensued throughout the years after that.

In 2016, the trial court entered a parenting plan that provided a flexible parenting schedule revolving around Mother’s variable work schedule.

Two years later, after more never-ending litigation, a hearing was held where the trial court ruled on various motions. That same day, the trial court entered an order sua sponte striking the 2016 parenting plan and establishing a new parenting plan.

For my nonlawyer readers, sua sponte is a Latin phrase meaning “of its own will.” In the legal context, it refers to when a court acts on its own motion rather than at the request of the parties. When a court does that, the court is acting sua sponte.

The trial court commented, “There has been virtually no agreement on any topic whatsoever, much less coparenting, between the parties over 10 years. Such animosity nearly rises to the level of rage.” The trial court found the current parenting plan “unworkable” and entered a new parenting plan awarding equal parenting time under what the Court of Appeals calls “a rather unique framework.”

Specifically, the new parenting plan provides for equal time via alternating weeks. However, each child “has the absolute ability to determine if they want to spend their week with either parent.” Once a child has been dropped off at the other parent’s house, the child may not leave that parent’s home until the week has elapsed. This was designed to prevent “going back and forth” and to prevent the children from playing one parent against the other.

Further, each parent is responsible for parenting during their week, with no exceptions. For example, if it is Mother’s week and she cannot care for the children for any reason, she cannot simply tell Father to keep them another week. It is her week, and she must do it. The plan also required extensive supervision by a guardian ad litem.

The trial court recognized “that this is a harsh result” but felt it necessary given the parties’ actions over the past decade and the failure of their previous parenting plans that allowed for “more leeway.” The trial court commented that it intended to make this parenting schedule “as black-and-white as possible.”

Mother appealed.

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

Tennessee law provides an order is void where the trial court ruled on an issue wholly outside of the pleadings. One exception to that rule is that an issue may be tried by express or implied consent.

Mother argued that she did not have proper notice that modification of the parenting plan was at issue. The Court agreed:

In this case, Father does not dispute that no pleading was filed asking for a modification of the parenting plan. Nor does he in any way assert that this issue was tried by consent.

*     *     *

Here, neither party requested modification of the parenting plan. The trial court therefore erred in addressing an issue that was not raised by the parties. The sua sponte parenting plan … is therefore vacated.

Thus, the Court reversed the trial court’s judgment modifying the parenting plan.

K.O.’s Comment: (1) The issue of each child being vested with the “absolute ability to determine if they want to spend their week with either parent” was not an issue in this appeal. However, readers should note that the Court in Carter v. Carter found there is “no authority for permitting a child to have the discretion to decide when and whether to spend time with the parent.”

(2) Father also requested attorney’s fees on appeal citing only Tennessee’s “frivolous” appeals statute, Tennessee Code Annotated § 27-1-122. That statute presents a high bar for success and, for that reason, rarely works. The Court noted, “Father cites no other statute that he asserts would entitle him to fees.”

Tennessee’s child-related litigation statute, Tennessee Code Annotated § 36-5-103(c), provides a much easier path for a prevailing party. It wouldn’t have mattered here since Mother prevailed on appeal, but it gives me one more opportunity to make my readers aware of this error. Had Father prevailed on appeal, his citation to this statute would’ve given him a much stronger argument for attorney’s fees. I’ve repeatedly pointed this out, but I’ll keep at it until everyone gets the memo.

Shaw v. Shaw (Tennessee Court of Appeals, Western Section, August 10, 2022).

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