Leslie Kay Johnson v. Darren Tracy Johnson

Citation: Not availableDocket: E2012-02618-COA-R3-CV

Court: Court of Appeals of Tennessee; September 23, 2013; Tennessee; State Appellate Court

Original Court Document: View Document

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Leslie Kay Johnson and Darren Tracy Johnson were divorced in 2010, with a permanent parenting plan granting Mother primary residential custody and equal parenting time with their minor child. In April 2012, Mother filed an Emergency Petition for Custody and Contempt, claiming the Child experienced severe anxiety and panic attacks related to visits with Father. Initially, no proposed parenting plan was submitted with the petition, prompting Father to file a motion to dismiss based on this statutory requirement. The Trial Court denied Father’s motion and subsequently issued an emergency order suspending Father’s visitation pending a hearing.

A hearing in May 2012 resulted in a continued suspension of Father’s weekday visitation, awaiting a psychiatrist's report on the Child. In August 2012, Father sought to reinstate the original parenting plan and recover lost visitation time, but the Trial Court noted a change in circumstances had already been established. Father also filed a motion to dismiss Mother's petition, reiterating the lack of a proposed parenting plan.

On September 5, 2012, Mother filed her proposed plan, followed by Father's own petition for a change in co-parenting time the next day, coinciding with the scheduled hearing on Mother's petition. The Trial Court ultimately modified the parenting plan to grant Mother increased time with the Child, leading to Father's appeal. The Court of Appeals upheld the Trial Court's decision, affirming its jurisdiction and the modification of the parenting plan.

The Trial Court's November order, following the September 6, 2012 hearing, addressed both parties' petitions. The court orally ruled that Father waived his right to dismiss under Tenn. Code Ann. 36-6-405 due to previous hearings and the timing of his motion. The final order modified the parenting plan, granting Mother 219 days and Father 146 days with the Child. The court found that the temporary emergency order was unnecessary, acknowledging a change in circumstances since the last order and that the previous co-parenting arrangement was not in the child's best interest. The court noted Father's negative responses to suggestions about activities and therapy, and while Mother also contributed to issues regarding time arrangements, she had made efforts to encourage more time for the Child with Father. The court criticized Father's lack of communication and avoidance behavior, suggesting that alternating summer weeks should be a goal for the parties. Father subsequently appealed, raising two issues: whether the Trial Court erred in denying his motion to dismiss and whether it erred in establishing the new co-parenting schedule. On appeal, the review is de novo with a presumption of correctness for the Trial Court's factual findings unless evidence suggests otherwise. Father argued that Mother did not properly invoke the Trial Court's jurisdiction by filing her petition, citing the case of Hodge v. Hodge, which outlined the requirements to awaken a court's jurisdiction in domestic actions.

To restore the trial court's jurisdiction, a party must file a petition for modification along with a proposed parenting plan as per Tenn. Code Ann. 36-6-405, or a Rule 60 motion for relief from judgment. Neither party filed the necessary petition or motion, resulting in the trial court lacking jurisdiction to modify the permanent parenting plan from the 2003 judgment. Father's argument centered on Mother's failure to file a proposed parenting plan with her Emergency Petition for Custody and Contempt in April 2012, which he claimed meant the trial court lacked subject matter jurisdiction. 

However, the timeline indicates that while Mother initially did not submit a proposed plan, both parties eventually filed their proposed permanent parenting plans before the hearing. Thus, the requirements of Tenn. Code Ann. 36-6-405 were ultimately met, allowing the trial court to exercise jurisdiction. 

Father contended that only his proposed plans should be considered and that the trial court had no choice but to adopt one of them. It was noted that Father failed to submit a permanent parenting plan, which violates the statute. The court concluded that Mother's proposed plan adequately addressed the circumstances necessitating modification and therefore adopted it, rejecting Father's claims about the exclusivity of his proposals. The trial court had jurisdiction, and Mother's plan was deemed appropriate and effective immediately.

Massey-Holt does not support the notion that trial courts are limited in their authority regarding parenting plans. Trial courts can establish their own permanent parenting plans that prioritize the best interests of the child, as outlined in T.C.A. 36-6-404. In the case of Gentry v. Gentry, the court clarified that a trial court is not obligated to adopt a proposed parenting plan from either party; it can create its own. In this instance, the trial court modified the original parenting plan to increase the mother's parenting time, determining that there had been a material change in circumstances and that this modification served the child's best interests. The evidence supported the trial court's findings, leading to the affirmation of its judgment. The case is remanded for cost collection, with appellate costs assessed against the appellant, Darren Tracy Johnson, and his surety if applicable.