Session July 18, 2014
Appeal from the Circuit Court for Putnam County No. 08N0199 Amy Hollars, Judge.
Pennye D. Weston, Cookeville, Tennessee, Pro Se.
Charlene Robin Vance, Watertown, Tennessee, for the appellee, Chris Eric Strickland.
Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.
RICHARD H. DINKINS, JUDGE.
This divorce action is before the court for a second time; the facts and procedural history of the case are set forth at Strickland v. Strickland, No. M2012-00603-COA-R3-CV, 2012 WL 6697296 (Tenn. Ct. App. Dec. 21, 2012). In the first appeal, Mother appealed the Final Order and Permanent Parenting Plan entered February 14, 2012; we affirmed the trial court's classification and division of the martial estate and the designation of Father as primary residential parent, but reversed the court's decision regarding the parenting plan. The case was remanded for the court to adopt a parenting schedule giving Mother more parenting time and to modify Mother's child support obligation accordingly.
On July 23, 2012, while the first appeal was pending, Mother filed a petition seeking to modify the parenting schedule; she alleged that a substantial and material change in circumstances within the meaning of Tenn. Code Ann. § 36-6-101 had occurred as a result of Father's move from Cookeville to Lebanon, Tennessee. A hearing was held on July 31 and the court entered an order on August 3 denying the motion ("the August 3, 2012 order"). The court held that Father's move was not a material change in circumstance, would not meaningfully affect the child's well-being, and that it would not interfere with Mother's visitation. The court further held that it was in the child's best interest to remain in the primary care of Father.
Pursuant to the order of remand, the court conducted a hearing on May 13, 2013, and entered a Final Order on Remanded Issues on May 31; a revised permanent parenting plan and a child support worksheet were attached to the order ("the May 31 order"). Of pertinence to this appeal, the order set Mother's parenting time at 145 days and Father's at 220 days, found that Mother was voluntarily underemployed and imputed monthly income of $1, 733.33 to her.
Mother moved to alter or amend the May 31 order, or in the alternative, to grant her a new trial pursuant to Tenn. R. Civ. P. 59. Mother asserted that the trial court did not comply with the Court of Appeals order to give her more meaningful parenting time; that the court should have considered Father's move to Lebanon and its effect on the child; and that the court erred by imputing income to her. A hearing on the motion was held on September 6, at the conclusion of which the court took the matter under advisement; the court held a follow up conference call with counsel on September 11 and on September 19 entered an order setting an evidentiary hearing for September 24 in order to "allow the parties the opportunity to put on proof as to the factors that affect the crafting of a permanent parenting plan order." The order also stated:
4.That this Court is not contemplating full litigation of this matter in any sense but rather finds it necessary to conduct a hearing concentrating on what has occurred since Father's move out of Putnam County and targeting on these issues which go into a best interest analysis for the sake of the child;
5.That this Court finds it necessary to make the record clear about what the circumstances are for this child now in his current situation and with the travel that is involved in getting this child back and forth between these parents;
6. That the Court is interested in looking at whether the Thursday overnights are giving meaningful time to Mother, what is the effect on the child of the Sunday overnights with delivery to school on Monday mornings and any alternative ways to provide adequate parenting time for Ms. Weston if these times are not in the best interest of the child;
On September 17, Mother filed a motion pursuant to Tenn. R. Civ. P. 60.02 (4) asking the court for relief from the August 3, 2012 order on the ground that the order was based on a February 2012 order that was later reversed on appeal and that "as a result the trial court applied an erroneous standard."
A hearing on the Rule 60 motion took place at the evidentiary hearing on September 24. At the conclusion of the hearing, the court made certain findings and orally approved the parenting plan proposed by Father; the court modified its ruling the next day in a letter to counsel. The court entered a Final Order on November 8: denying Mother's Rule 60 motion; denying Mother's request to change the ruling that she was voluntarily underemployed; modifying the parenting plan in the May 31 order by setting Father's parenting time at 242.5 days and Mother's parenting time at 122.5 days; and setting the parties' child support obligations. Mother appeals.
I. Parenting Plan